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As filed with the Securities and Exchange Commission on July 6, 1998
REGISTRATION NO. 333-__________
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-----------------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
-----------------------
COX COMMUNICATIONS, INC.
(Exact name of Registrant as specified in its charter)
DELAWARE 58-2112251
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1400 LAKE HEARN DRIVE
ATLANTA, GEORGIA 30319
(404) 843-5000
(Address, including zip code, and telephone number, including area code,
of Registrant's principal executive offices)
-----------------------
JIMMY W. HAYES
SENIOR VICE PRESIDENT, FINANCE
AND CHIEF FINANCIAL OFFICER
COX COMMUNICATIONS, INC.
1400 LAKE HEARN DRIVE
ATLANTA, GEORGIA 30319
(404) 843-5000
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
-----------------------
PLEASE ADDRESS A COPY OF ALL COMMUNICATIONS TO:
STUART A. SHELDON, ESQ.
DOW, LOHNES & ALBERTSON, PLLC
1200 NEW HAMPSHIRE AVENUE, NW
WASHINGTON, D.C. 20036-6802
(202) 776-2000
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time to
time after the effective date of this Registration Statement, as determined by
market conditions
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If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [X]
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
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TITLE OF EACH CLASS OF
SECURITIES TO BE AGGREGATE AMOUNT TO PROPOSED MAXIMUM OFFERING PROPOSED MAXIMUM AGGREGATE
REGISTERED(1) BE REGISTERED(2) PRICE PER UNIT(2) OFFERING PRICE (2) AMOUNT OF REGISTRATION FEE
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<S> <C> <C> <C> <C>
Debt Securities........ $1,000,000,000 (3) 100% $1,000,000,000 (3) $295,000
====================================================================================================================================
</TABLE>
(1) Securities registered hereunder (the "Debt Securities") may be sold
separately, together or as units with other Debt Securities registered
hereunder. (2) United States dollars or the equivalent thereof in one or more
foreign currencies, foreign currency units or composite currencies estimated in
accordance with Rule 457 solely for the purpose of computing the registration
fee. (3) Represents the aggregate principal amount of all Debt Securities which
shall not be issued at an original issue discount, plus, if any Debt Securities
are issued at an original issue discount, such principal amount thereof as shall
result in an aggregate offering price of $1,000,000,000.
-------------------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933, AS AMENDED, OR UNTIL THE REGISTRATION STATEMENT
SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID
SECTION 8(A), MAY DETERMINE.
<PAGE> 2
Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with the
Securities and Exchange Commission. These securities may not be sold nor may
offers to buy be accepted prior to the time the registration statement becomes
effective. This prospectus shall not constitute an offer to sell or the
solicitation of an offer to buy nor shall there be any sale of these securities
in any State in which such offer, solicitation or sale would be unlawful prior
to registration or qualification under the securities law of any such State.
SUBJECT TO COMPLETION, DATED JULY 6, 1998
$1,000,000,000
COX COMMUNICATIONS, INC.
DEBT SECURITIES
Cox Communications, Inc. (the "Company") may offer and issue from time to
time, together or separately, its unsecured debentures, notes, bonds or other
evidences of indebtedness and forward contracts with respect thereto (the "Debt
Securities") having an aggregate initial public offering price of $1 billion
(including the U.S. dollar equivalent thereof for which the initial public
offering price is denominated in one or more foreign currencies, foreign
currency units or composite currencies). The Debt Securities may be offered as
separate series, in amounts, at prices and on terms to be determined at the time
of sale and set forth in one or more supplements to this Prospectus (each, a
"Prospectus Supplement"). Debt Securities may be issuable in global form or
registered form without coupons or in bearer form with or without coupons
attached. The Company will offer Debt Securities to the public on terms
determined by market conditions. Debt Securities may be sold for U.S. dollars,
foreign currency, foreign currency units or composite currencies; principal of,
and any interest on, the Debt Securities may likewise be payable in U.S.
dollars, foreign currencies, foreign currency units or composite currencies, in
each case, as the Company specifically designates and as set forth in the
accompanying Prospectus Supplement. The Debt Securities in respect of which this
Prospectus is being delivered are hereinafter also referred to collectively as
the "Offered Securities."
Unless otherwise specified in the accompanying Prospectus Supplement, the
Offered Securities will be senior securities of the Company. The accompanying
Prospectus Supplement will set forth the specific terms of the Offered
Securities, including, where applicable, the specific designation, aggregate
principal amount, denomination, initial public offering price, maturity (which
may be fixed or extendible), priority, redemption terms, if any, interest rate
(or manner of calculation thereof), if any, time of payment of interest (if
any), terms for any conversion or exchange (including the terms relating to the
adjustment thereof), listing (if any) on a securities exchange, currency, form
(which may be registered or bearer or certificated or global), terms for any
repayment at the option of the holder, terms for any sinking fund payments,
provisions regarding original issue discount securities, additional covenants
and any other specific terms of the Debt Securities. The Prospectus Supplement
will also contain information, where applicable, about certain United States
Federal income tax considerations relating to the Debt Securities covered
thereby. The accompanying Prospectus Supplement will also set forth the name of,
and compensation to, each dealer, underwriter or agent (if any) involved in the
sale of the Offered Securities being offered and the managing underwriters with
respect to each series sold to or through any such underwriters.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS
THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS
PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
The Offered Securities may be offered directly, or through dealers,
underwriters or agents designated from time to time, by the Company, as set
forth in the accompanying Prospectus Supplement. Net proceeds to the Company
will be the purchase price in the case of sales to a dealer, the public offering
price less discount in the case of sales to an underwriter or the purchase price
less commission in the case of sales through an agent -- in each case, less
other expenses attributable to issuance and distribution. If any agents, dealers
or underwriters are involved in the offering of the Debt Securities in respect
to which this Prospectus is being delivered, the names of such agents, dealers
or underwriters and any applicable commissions or discounts will be set forth in
the accompanying Prospectus Supplement. The net proceeds to the Company from
such sale will also be set forth in such Prospectus Supplement. See "Plan of
Distribution" for possible indemnification arrangements for dealers,
underwriters and agents.
THE DATE OF THIS PROSPECTUS IS ___________, 1998.
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CERTAIN PERSONS PARTICIPATING IN THIS OFFERING MAY ENGAGE IN TRANSACTIONS
THAT STABILIZE, MAINTAIN OR OTHERWISE AFFECT THE PRICE OF THE DEBT SECURITIES,
INCLUDING OVER-ALLOTMENT, STABILIZING AND SHORT-COVERING TRANSACTIONS IN SUCH
DEBT SECURITIES, AND THE IMPOSITION OF A PENALTY BID, IN CONNECTION WITH THE
OFFERING OF THE DEBT SECURITIES. FOR A DESCRIPTION OF THESE ACTIVITIES, SEE
"PLAN OF DISTRIBUTION" IN THE ACCOMPANYING PROSPECTUS SUPPLEMENT.
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATION IN CONNECTION WITH THIS OFFERING OTHER THAN THOSE CONTAINED OR
INCORPORATED BY REFERENCE IN THIS PROSPECTUS OR THE ACCOMPANYING PROSPECTUS
SUPPLEMENT AND, IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATIONS MUST NOT
BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE COMPANY OR ANY UNDERWRITER,
DEALER OR AGENT. THIS PROSPECTUS AND ANY APPLICABLE PROSPECTUS SUPPLEMENT DO NOT
CONSTITUTE AN OFFER TO SELL OR A SOLICITATION OF AN OFFER TO BUY ANY SECURITIES
OFFERED HEREBY IN ANY JURISDICTION TO ANY PERSON TO WHOM IT IS UNLAWFUL TO MAKE
SUCH OFFER OR SOLICITATION IN SUCH JURISDICTION. NEITHER THE DELIVERY OF THIS
PROSPECTUS OR ANY PROSPECTUS SUPPLEMENT NOR ANY SALE MADE HEREUNDER SHALL UNDER
ANY CIRCUMSTANCES CREATE ANY IMPLICATION THAT THERE HAS BEEN NO CHANGE IN THE
AFFAIRS OF THE COMPANY SINCE THE DATE HEREOF OR THEREOF.
TABLE OF CONTENTS
<TABLE>
<S> <C>
Available Information ............................................. 3
Information Incorporated by Reference ............................ 3
The Company ....................................................... 5
Ratio of Earnings to Fixed Charges ................................ 5
Use of Proceeds ................................................... 6
Description of the Debt Securities ................................ 7
Plan of Distribution .............................................. 16
Legal Matters ..................................................... 17
Experts ........................................................... 17
</TABLE>
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AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and, in accordance
therewith, is required to file reports, proxy statements and other information
with the Securities and Exchange Commission (the "Commission"). Such reports,
proxy statements and other information filed by the Company with the Commission
can be inspected and copied at the Public Reference Section of the Commission at
450 Fifth Street, N.W., Washington, D.C. 20549, and at the Commission's regional
offices at Seven World Trade Center, 13th Floor, New York, New York, 10048 and
Citicorp Center, Suite 1400, 500 West Madison Street, Chicago, Illinois 60601.
Copies of such material can be obtained by mail from the Public Reference
Section of the Commission at 450 Fifth Street, N.W., Washington, D.C. 20549, at
prescribed rates, or through the World Wide Web (http://www.sec.gov). The
Company's Class A Common Stock, par value $1.00 per share, is listed on the New
York Stock Exchange (Symbol: COX), and reports, proxy statements and other
information concerning the Company may be inspected and copied at the offices of
the New York Stock Exchange, Inc., 20 Broad Street, New York, New York 10005.
The Company has filed with the Commission a Registration Statement on Form
S-3 under the Securities Act of 1933, as amended (the "Securities Act"), which
relates to the Debt Securities (the "Registration Statement"). As permitted by
the rules and regulations of the Commission, this Prospectus does not contain
all of the information set forth in the Registration Statement and the exhibits
and schedules thereto. For further information with respect to the Company and
the Debt Securities, reference is hereby made to the Registration Statement,
exhibits and schedules filed therewith. The Registration Statement may be
inspected without charge by anyone at the office of the Commission at 450 Fifth
Street, N.W., Washington, D.C. 20549, and copies of all or any part thereof may
be obtained from the Commission upon payment of the prescribed fees. Statements
contained in this Prospectus as to the contents of any contract or other
document referred to herein are not necessarily complete, and in each instance
reference is made to the copy of such document filed as an exhibit to the
Registration Statement or otherwise filed with the Commission. Each such
statement is qualified in all respects by such reference.
INFORMATION INCORPORATED BY REFERENCE
The following documents have been filed with the Commission by the Company
and are incorporated herein by reference and made a part hereof:
(i) the Company's Annual Report on Form 10-K for the year ended
December 31, 1997;
(ii) the Company's amended Annual Report on Form 10-K/A for the year
ended December 31, 1997;
(iii) the Company's Quarterly Report on Form 10-Q for the quarter
ended March 31, 1998;
(iv) the Company's Current Report on Form 8-K dated May 5, 1998;
(v) the Company's amended Current Report on Form 8-K/A dated May 5,
1998; and
(vi) the Company's Proxy Statement for the 1998 Annual Meeting of
Stockholders dated March 23, 1998.
All documents filed by the Company with the Commission pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of this Prospectus
and prior to the termination of the offering of the Offered Securities shall be
deemed to be incorporated in this Prospectus by reference and to be a part
hereof from the date of filing of such documents. The Company's Commission file
number for Exchange Act documents is 1-6590. The Company will provide, without
charge to any person to whom a copy of this Prospectus and the accompanying
Prospectus Supplement are delivered, upon the written or oral request of such
person, a copy of any document incorporated by reference herein other than
exhibits to such documents unless such exhibits are specifically incorporated by
reference in such document. Requests should be directed to Dallas S. Clement,
Treasurer, Cox Communications, Inc., 1400 Lake Hearn Drive, Atlanta, Georgia
30319 (telephone: (404) 843-5000).
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Any statement contained herein or in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Prospectus to the extent that a statement contained herein
(or in the accompanying Prospectus Supplement) or in any other subsequently
filed document which also is or is deemed to be incorporated by reference herein
modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Prospectus.
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THE COMPANY
Cox Communications, Inc. (the "Company") is among the nation's largest
broadband communications companies with (i) U.S. broadband network operations
and (ii) investments in cable television programming, telecommunications and
technology and broadband networks.
The Company is an indirect 75.0% owned subsidiary of Cox Enterprises, Inc.
("CEI"). Prior to the Company's incorporation in May 1994, the Company's
operations and investments were a division of Cox Holdings, Inc., a wholly-owned
subsidiary of CEI. These operations and investments were contributed by CEI to
the Company on May 25, 1994. CEI, a privately-held corporation headquartered in
Atlanta, Georgia, is one of the largest media companies in the United States
with consolidated revenues in 1997 of approximately $4.9 billion. CEI, which has
a 100-year history in the media and communications industry, publishes 16 daily
and 11 weekly newspapers and owns or operates 11 television stations in addition
to its interest in the Company. Through its indirect majority-owned subsidiary,
Cox Radio, Inc., CEI owns, operates or provides sales and marketing services
for, 59 radio broadcast stations pending closing of previously announced
transactions. Through Manheim Auctions, CEI is also the world's largest operator
of auto auctions.
The Company's principal executive offices are located at 1400 Lake Hearn
Drive, Atlanta, Georgia 30319 (telephone: (404) 843-5000).
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth the ratio of earnings to fixed charges of the
Company for the periods indicated:
<TABLE>
<CAPTION>
Three Months Ended
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Year Ended December 31, March 31,
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1997 1996 1995 1994(1) 1993 1998(2) 1997
---- ---- ---- ------- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C>
2.0x 1.5x 2.7x 2.7x 8.7x 0.9x 1.7x
</TABLE>
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(1) The ratio decreased from 1993 to 1994 due to increased interest expense
resulting from debt associated with the Company's acquisition through merger
of the cable television assets of The Times Mirror Company.
(2) Earnings were inadequate to cover fixed charges by $8.3 million for the
three months ended March 31, 1998.
For purposes of this computation, earnings are defined as income before
income taxes (excluding losses and undistributed earnings on equity method
investments), minority interests and fixed charges (excluding capitalized
interest). Fixed charges are the sum of (i) interest cost (including capitalized
interest), (ii) estimated interest component of rent expense and (iii) dividends
on subsidiary preferred stock.
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USE OF PROCEEDS
Unless otherwise described in the accompanying Prospectus Supplement, the
Company intends to use the net proceeds from the sale of the Offered Securities
for general corporate purposes, which may include additions to working capital,
the repayment or redemption of existing indebtedness and the financing of
capital expenditures and acquisitions. The Company may borrow additional funds
from time to time from public and private sources on both a long-term and
short-term basis and may sell commercial paper to fund its future capital and
working capital requirements in excess of internally generated funds. See
"Description of the Debt Securities."
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DESCRIPTION OF THE DEBT SECURITIES
GENERAL
The Debt Securities will be unsecured senior obligations of the Company.
Most of the assets of the Company are owned by its subsidiaries. Therefore, the
Company's rights and the rights of its creditors, including holders of Debt
Securities, to participate in the assets of any subsidiary upon such
subsidiary's liquidation or recapitalization will be subject to the prior claims
of such subsidiary's creditors, except to the extent that the Company may itself
be a creditor with recognized claims against the subsidiary.
The following description of the terms of the Debt Securities sets forth
certain general terms and provisions of the Debt Securities to which any
Prospectus Supplement may relate. The particular terms of any Debt Securities
and the extent, if any, to which such general provisions will not apply to such
Debt Securities will be described in the Prospectus Supplement relating to such
Debt Securities.
Unless otherwise specified in the accompanying Prospectus Supplement, the
Debt Securities will be issued from time to time in series under an Indenture,
dated as of June 27, 1995 (the "Indenture"), between the Company and The Bank of
New York, as Trustee (the "Trustee").
The Indenture does not limit the aggregate principal amount of Debt
Securities that may be issued thereunder, and the Indenture provides that Debt
Securities may be issued thereunder from time to time in one or more series. A
copy of the Indenture is incorporated by reference as an exhibit to the
Registration Statement of which this Prospectus is a part. The following summary
of certain provisions of the Indenture and the Debt Securities does not purport
to be complete and is subject to, and is qualified in its entirety by reference
to, all the provisions of the Indenture, including the definitions of certain
terms therein and those terms made a part thereof by the Trust Indenture Act of
1939, as amended. Capitalized terms used in the following summary and not
otherwise defined herein shall have the meanings ascribed to them in the
Indenture.
Reference is made to the Prospectus Supplement for the following terms and
other possible terms of each series of Debt Securities in respect of which this
Prospectus is being delivered (to the extent such terms are applicable to such
Debt Securities): (i) the classification, specific designation, date, aggregate
principal amount, purchase price and denomination of the Debt Securities; (ii)
currency or units based on or relating to currencies in which such Debt
Securities are denominated and/or in which principal, premium, if any, and/or
interest will or may be payable; (iii) any date of maturity (which may be fixed
or extendible); (iv) interest rate or rates (or the method by which such rate or
rates will be determined, if any); (v) the dates on which any such interest will
be payable; (vi) the place or places where the principal of, premium, if any,
and interest on the Debt Securities will be payable; (vii) any repayment,
redemption, prepayment or sinking fund provisions and any provisions related to
the purchase of such Debt Securities at the option of the holders; (viii)
whether the Debt Securities will be issuable in global form (and, if so, the
identity of the depositary with respect thereto), registered form and/or bearer
form ("Bearer Securities") and, if Bearer Securities are issuable, any
restrictions applicable to the exchange of one form for another and to the
offer, sale and delivery of Bearer Securities; (ix) the terms, if any, on which
such Debt Securities may be converted into or exchanged for stock or other
securities of the Company or other entities, any specific terms relating to the
adjustment thereof and the period during which such Debt Securities may be so
converted or exchanged; (x) any applicable United States federal income tax
consequences, including whether and under what circumstances the Company will
pay additional amounts on Offered Securities held by a person who is not a U.S.
person (as defined in the Prospectus Supplement) in respect of any tax,
assessment or governmental charge withheld or deducted and, if so, whether the
Company will have the option to redeem such Debt Securities rather than pay such
additional amounts; and (xi) any other specific terms of the Debt Securities,
including any additional events of default or covenants provided for with
respect to such Debt Securities, and any terms which may be required by or
advisable under applicable laws or regulations.
Debt Securities may be presented for exchange and registered Debt Securities
may be presented for transfer in the manner, at the places and subject to the
restrictions set forth in the Debt Securities and the Prospectus Supplement.
Such services will be provided without charge, other than any tax or other
governmental charge payable in connection therewith, but subject to the
limitations provided in the Indenture. Debt Securities in bearer form and the
coupons, if any, appertaining thereto will be transferable by delivery.
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Debt Securities will bear interest at a fixed rate (a "Fixed Rate Security")
or a floating rate (a "Floating Rate Security"). Debt Securities bearing no
interest or interest at a rate that at the time of issuance is below the
prevailing market rate will be sold at a discount below their stated principal
amount. Special United States federal income tax considerations applicable to
any such discounted Debt Securities or to certain Debt Securities issued at par,
which are treated as having been issued at a discount for United States federal
income tax purposes, will be described in the accompanying Prospectus
Supplement.
Debt Securities may be issued, from time to time, with the principal amount
payable on any principal payment date, or the amount of interest payable on any
interest payment date, to be determined by reference to one or more currency
exchange rates, commodity prices, equity indices or other factors. Holders of
such Debt Securities may receive a payment of principal on any principal payment
date, or a payment of interest on any interest payment date, that is greater
than or less than the amount of principal or interest otherwise payable on such
dates, depending upon the value on such dates of the applicable currency,
commodity, equity index or other factor. Information as to the methods for
determining the amount of principal or interest payable on any date, the
currencies, commodities, equity indices or other factors to which the amount
payable on such date is linked and certain additional tax considerations will be
set forth in the applicable Prospectus Supplement.
Unless otherwise indicated in the accompanying Prospectus Supplement, the
Debt Securities will be issued only in fully registered form, without coupons,
in denominations of $1,000 and any integral multiples of $1,000. Unless
otherwise specified in the Prospectus Supplement, the principal amount of the
Debt Securities will be payable at the corporate trust office of the Trustee in
New York, New York. The Debt Securities may be presented for transfer or
exchange at such office unless otherwise specified in the Prospectus Supplement,
subject to the limitations provided in the Indenture, without any service
charge, but the Company may require payment of a sum sufficient to cover any tax
or other governmental charges payable in connection therewith.
RANKING
Unless otherwise specified in a Prospectus Supplement for a particular
series of Debt Securities, all series of Debt Securities will be senior
indebtedness of the Company and will be direct, unsecured obligations of the
Company, ranking on a parity with all other unsecured and unsubordinated
obligations of the Company.
CERTAIN COVENANTS
The Indenture contains covenants including, among others, the following:
Limitation on Liens. The Company will not, and will not permit any
Restricted Subsidiary to, create, incur or assume any Lien (other than Permitted
Liens) on Restricted Property to secure the payment of Indebtedness of the
Company or any Restricted Subsidiary if, immediately after the creation,
incurrence or assumption of such Lien, the aggregate outstanding principal
amount of all Indebtedness of the Company and the Restricted Subsidiaries that
is secured by Liens (other than Permitted Liens) on Restricted Property would
exceed the greater of (i) $200 million or (ii) 15% of the aggregate outstanding
principal amount of all Indebtedness of the Company and the Restricted
Subsidiaries (whether or not so secured), unless effective provision is made
whereby the Debt Securities (together with, if the Company shall so determine,
any other Indebtedness ranking equally with the Debt Securities, whether then
existing or thereafter created) are secured equally and ratably with (or prior
to) such Indebtedness (but only for so long as such Indebtedness is so secured).
Limitation on Indebtedness of Restricted Subsidiaries. The Company will not
permit any Restricted Subsidiary to incur any Indebtedness if, immediately after
the incurrence or assumption of such Indebtedness, the aggregate outstanding
principal amount of all Indebtedness of the Restricted Subsidiaries would exceed
the greater of (i) $200 million or (ii) 15% of the aggregate outstanding
principal amount of all Indebtedness of the Company and the Restricted
Subsidiaries; provided that, in any event, a Restricted Subsidiary may incur
Indebtedness to extend, renew or replace Indebtedness of such Restricted
Subsidiary to the extent that the principal amount of the Indebtedness so
incurred does not exceed the principal amount of the Indebtedness extended,
renewed or replaced thereby immediately prior to such extension, renewal or
replacement plus any premium, accrued and unpaid interest or capitalized
interest payable thereon.
Designation of Subsidiaries. The Company may designate a Restricted
Subsidiary as an Unrestricted Subsidiary or designate an Unrestricted Subsidiary
as a Restricted Subsidiary at any time, provided that (i)
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immediately after giving effect to such designation, the Leverage Ratio of the
Restricted Group is not greater than 7:1 and the Company and the Restricted
Subsidiaries are in compliance with the "Limitation on Liens" and "Limitation on
Indebtedness of Restricted Subsidiaries" covenants, and (ii) an Officers'
Certificate with respect to such designation is delivered to the Trustee within
75 days after the end of the fiscal quarter of the Company in which such
designation is made (or, in the case of a designation made during the last
fiscal quarter of the Company's fiscal year, within 120 days after the end of
such fiscal year), which Officers' Certificate shall state the effective date of
such designation.
Mergers or Sales of Assets. The Indenture provides that the Company may not
merge into or consolidate with another corporation or sell or lease all or
substantially all its assets to another corporation unless (i) either (A) the
Company is the surviving corporation or (B) the resulting, surviving or
transferee corporation is organized under the laws of a state of the United
States or the District of Columbia and agrees to pay promptly when due the
principal of and premium, if any, and interest on the Debt Securities, and to
assume, perform and observe all the covenants and conditions of the Indenture,
and (ii) immediately after and giving effect to such transaction, no Event of
Default has occurred.
The Indenture does not contain any provisions affording holders of Debt
Securities any additional protection in the event that the Company enters into a
highly-leveraged transaction.
DEFINITIONS
"Default" means any event which is, or after notice or passage of time or
both would be, an Event of Default.
"Indebtedness" means, without duplication, with respect to any Person: (i)
any indebtedness of such Person (A) for borrowed money or (B) evidenced by a
note, debenture or similar instrument (including a purchase money obligation)
given in connection with the acquisition of any property or assets, including
securities; (ii) any guarantee by such Person of any indebtedness of others
described in the preceding clause (i); and (iii) any amendment, extension,
renewal or refunding of any such indebtedness or guarantee. The term
"Indebtedness" excludes (i) any indebtedness of the Company or any Restricted
Subsidiary to the Company or another Restricted Subsidiary, (ii) any guarantee
by the Company or any Restricted Subsidiary of indebtedness of the Company or
another Restricted Subsidiary, (iii) trade accounts payable and (iv) letters of
credit, performance bonds and similar obligations issued in favor of
governmental or franchising authorities as a term of cable television franchise
or other governmental franchise, license, permit or authorization held by such
Person or any of its Subsidiaries.
"Lien" means any mortgage, pledge, security interest, encumbrance, lien or
charge of any kind (including any conditional sale or other title retention
agreement or lease in the nature thereof).
"Leverage Ratio" with respect to the Restricted Group means, as of the date
of and after giving effect to any designation of an Unrestricted Subsidiary as a
Restricted Subsidiary or any designation of a Restricted Subsidiary as an
Unrestricted Subsidiary, in each case in accordance with the "Designation of
Subsidiaries" covenant, the ratio of (i) the aggregate outstanding principal
amount of all Indebtedness of the Restricted Group as of such date to (ii) the
product of four times the Restricted Group Cash Flow for the most recent full
fiscal quarter for which financial information is available on such date.
"Permitted Liens" means: (i) any Lien which arises out of a judgment or
award against the Company or any Restricted Subsidiary with respect to which the
Company or such Restricted Subsidiary at the time shall be prosecuting an appeal
or proceeding for review (or with respect to which the period within which such
appeal or proceeding for review may be initiated shall not have expired) and
with respect to which (a) the Company or such Restricted Subsidiary shall have
secured a stay of execution pending such appeal or proceeding for review or (b)
the Company or such Restricted Subsidiary shall have posted a bond or
established adequate reserves (in accordance with generally accepted accounting
principles) for the payment of such judgment or award; (ii) any Lien upon any
real or personal property or interest therein of the Company or a Restricted
Subsidiary existing at the time of acquisition thereof or securing the payment
of Indebtedness incurred by the Company or such Restricted Subsidiary to finance
some or all of the purchase price of, or cost of construction of or improvements
on, any such property or interest therein; provided that (A) the outstanding
principal amount of the Indebtedness secured by such Lien does not at any time
exceed 100% of the greater of the purchase price for or the fair
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<PAGE> 11
value of such real or personal property or interest therein, (B) such Lien does
not encumber or constitute a charge against any other Restricted Property
theretofore owned by the Restricted Group (except that in the case of
construction or improvement, the Lien may extend to unimproved real property on
which the property so constructed or the improvement is located), and (C) the
Indebtedness secured by such Lien would be permitted to be incurred under the
covenant described under "Limitation on Indebtedness of Restricted
Subsidiaries"; and (iii) any Lien representing the extension, renewal or
replacement (or successive extensions, renewals or replacements) of Liens
referred to in clause (ii) above; provided that the principal of the
Indebtedness secured thereby does not exceed the principal of the Indebtedness
secured thereby immediately prior to such extension, renewal or replacement,
plus any accrued and unpaid interest or capitalized interest payable thereon,
and that such extension, renewal or replacement shall be limited to all or a
part of the property (or interest therein) subject to the Lien so extended,
renewed or replaced (plus improvements and construction on such property). The
outstanding principal amount of Indebtedness secured by a Lien permitted by
clause (ii) or (iii) above or, if less, the fair value of the property or
interest therein secured thereby, shall be included in the calculation pursuant
to the covenant described under "Limitation on Liens" of the aggregate
outstanding principal amount of Indebtedness secured by Liens on Restricted
Property for purposes of determining whether a Lien (other than a Permitted
Lien) may be incurred in compliance with such covenant.
"Person" means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization, government
or any agency or political subdivision thereof or any other entity.
"Principal Property" means, as of any date of determination, any property or
assets owned by any Restricted Subsidiary other than (i) any such property
which, in the good faith opinion of the Board of Directors, is not of material
importance to the business conducted by the Company and its Restricted
Subsidiaries taken as a whole and (ii) any shares of any class of stock or any
other security of any Unrestricted Subsidiary.
"Restricted Group" means, as of any date of determination, the Company and
the Restricted Subsidiaries as of such date after giving effect to any
designation being made on such date in accordance with the "Designation of
Subsidiaries" covenant.
"Restricted Group Cash Flow" for any period means the Restricted Group Net
Income for such period, plus (i) the sum (without duplication) of the aggregate
of each of the following items of the Company and the Restricted Subsidiaries
for such period to the extent taken into account as charges to Restricted Group
Net Income for such period: (A) interest expense, (B) income tax expense, (C)
depreciation and amortization expense and other noncash charges, (D)
extraordinary items and (E) after-tax losses on sales of assets outside of the
ordinary course of business not otherwise included in extraordinary items in
accordance with generally accepted accounting principles, minus (ii) the sum
(without duplication) of the aggregate of each of the following items of the
Company and the Restricted Subsidiaries for such period to the extent taken into
account as credits to Restricted Group Net Income for such period: (A) noncash
credits, (B) extraordinary items and (C) after-tax gains on sales of assets
outside of the ordinary course of business not otherwise included in
extraordinary items in accordance with generally accepted accounting principles.
For purposes of this definition, (i) "Restricted Group Net Income" for any
period means the aggregate of the net income (loss) for such period of the
Company and the Restricted Subsidiaries, determined on a consolidated basis in
accordance with generally accepted accounting principles; provided that the net
income (loss) of any Person accounted for by the equity method of accounting and
the net income (loss) of any Unrestricted Subsidiary shall be excluded, except
that the net income of any such Person or Unrestricted Subsidiary shall be
included to the extent of the amount of dividends or distributions paid by such
Person or Unrestricted Subsidiary to the Company or a Restricted Subsidiary
during such period; and (ii) if the Company or any Restricted Subsidiary
consummated any acquisition or disposition of assets during the period for which
Restricted Group Cash Flow is being calculated, or consummated any acquisition
or disposition of assets subsequent to such period and on or prior to the date
as of which the Leverage Ratio is to be determined, then, in each such case, the
Restricted Group Cash Flow for such period shall be calculated on a pro forma
basis (and not as a pooling of interests, if applicable) as if such acquisition
or disposition had occurred at the beginning of such period.
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<PAGE> 12
"Restricted Property" means, as of any date of determination, any Principal
Property and any shares of stock of a Restricted Subsidiary owned by the Company
or a Restricted Subsidiary.
"Restricted Subsidiary" means each Subsidiary of the Company other than the
Unrestricted Subsidiaries.
"Stated Maturity" means, with respect to any security, the date specified in
such security as the fixed date on which the final payment of principal of such
security is due and payable, including pursuant to any mandatory redemption
provision (but excluding any provision providing for the repurchase of such
security at the option of the holder thereof upon the happening of any
contingency unless such contingency has occurred).
"Subsidiary" means, in respect of any Person, any corporation, association,
partnership or other business entity of which more than 50% of the total voting
power of shares of Capital Stock or other interests (including partnership
interests) entitled (without regard to the occurrence of any contingency) to
vote in the election of directors, managers or trustees thereof is at the time
owned or controlled, directly or indirectly, by (i) such Person, (ii) such
Person and one or more Subsidiaries of such Person or (iii) one or more
Subsidiaries of such Person.
"Unrestricted Subsidiary" means (i) any Subsidiary of the Company that has
been designated as an Unrestricted Subsidiary as permitted by the covenant
described under "Designation of Subsidiaries" and not thereafter redesignated as
a Restricted Subsidiary as permitted thereby and (ii) each Subsidiary of any
Unrestricted Subsidiary.
DEFAULTS
An Event of Default with respect to Debt Securities of any series is defined
in the Indenture as (i) a default in the payment of interest on the Debt
Securities when due, continued for 30 days, (ii) a default in the payment of
principal of any such Debt Security when due at its Stated Maturity, upon
optional redemption, upon required repurchase, upon declaration or otherwise,
(iii) the failure by the Company to comply with its obligations under "--
Certain Covenants -- Mergers or Sales of Assets" above, (iv) the failure by the
Company to comply within 60 days after notice with any of its other agreements
contained in the Indenture, including its obligations under the covenants
described above in "-- Certain Covenants" under "-- Limitation on Liens," "--
Limitation on Indebtedness of Restricted Subsidiaries" or "-- Designation of
Subsidiaries," (v) Indebtedness of the Company or any Restricted Subsidiary is
not paid within any applicable grace period after final maturity or is
accelerated by the holders thereof because of a default and the total amount of
such Indebtedness unpaid or accelerated exceeds 5% of the aggregate outstanding
principal amount of all Indebtedness of the Company and the Restricted
Subsidiaries (the "cross-acceleration provision") or (vi) certain events of
bankruptcy, insolvency or reorganization of the Company or a Restricted
Subsidiary (the "bankruptcy provisions"). However, a default under clause (iv)
with respect to a series of Debt Securities will not constitute an Event of
Default until the Trustee or the holders of 25% in principal amount of the
outstanding Debt Securities of such series notify the Company of the default and
the Company does not cure such default within the time specified after receipt
of such notice.
If an Event of Default occurs and is continuing with respect to a series of
Debt Securities, the Trustee or the holders of at least 25% in principal amount
of the outstanding Debt Securities of such series may declare the principal of
and accrued but unpaid interest on all the Debt Securities of such series to be
due and payable. Upon such a declaration, such principal and interest shall be
due and payable immediately. If an Event of Default relating to certain events
of bankruptcy, insolvency or reorganization of the Company occurs and is
continuing, the principal of and interest on all the Debt Securities will ipso
facto become and be immediately due and payable without any declaration or other
act on the part of the Trustee or any holders of the Debt Securities. Under
certain circumstances, the holders of a majority in principal amount of the
outstanding Debt Securities of a series may rescind any such acceleration with
respect to the Debt Securities of such series and its consequences.
Subject to the provisions of the Indenture relating to the duties of the
Trustee, in case an Event of Default occurs and is continuing, the Trustee will
be under no obligation to exercise any of the rights or powers under the
Indenture at the request or direction of any of the holders of the Debt
Securities of any series unless such holders have offered to the Trustee
reasonable indemnity or security against any loss, liability or expense. Except
to enforce the right to receive payment of principal, premium (if any) or
interest when due, no holder of
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<PAGE> 13
a Debt Security may pursue any remedy with respect to the Indenture or the Debt
Securities of the same series unless (i) such holder has previously given the
Trustee notice that an Event of Default is continuing, (ii) holders of at least
25% in principal amount of the outstanding Debt Securities of such series have
requested the Trustee to pursue the remedy, (iii) such holders have offered the
Trustee reasonable security or indemnity against any loss, liability or expense,
(iv) the Trustee has not complied with such request within 60 days after the
receipt thereof and the offer of security or indemnity and (v) the holders of a
majority in principal amount of the outstanding Debt Securities of such series
have not given the Trustee a direction inconsistent with such request within
such 60-day period. Subject to certain restrictions, the holders of a majority
in principal amount of the outstanding Debt Securities of any series are given
the right to direct the time, method and place of conducting any proceeding for
any remedy available to the Trustee or of exercising any trust or power
conferred on the Trustee. The Trustee, however, may refuse to follow any
direction that conflicts with law or the Indenture or that the Trustee
determines is unduly prejudicial to the rights of any other holder of a Debt
Security of the same series or that would involve the Trustee in personal
liability.
The Indenture provides that if a Default occurs and is continuing with
respect to a series of Debt Securities and is known to the Trustee, the Trustee
must mail to each holder of the Debt Securities of such series notice of the
Default within 90 days after it occurs. Except in the case of a Default in the
payment of principal of, premium (if any) or interest on any Debt Security, the
Trustee may withhold notice if and so long as a committee of its trust officers
determines that withholding notice is not opposed to the interest of the holders
of the Debt Securities of such series. In addition, the Company is required to
deliver to the Trustee, within 120 days after the end of each fiscal year, a
certificate indicating whether the signers thereof know of any Default that
occurred during the previous year. The Company also is required to deliver to
the Trustee, within 30 days after the occurrence thereof, written notice of any
event which would constitute certain Defaults, their status and what action the
Company is taking or proposes to take in respect thereof.
AMENDMENTS AND WAIVERS
Subject to certain exceptions, the Indenture may be amended with respect to
a series of Debt Securities with the consent of the holders of a majority in
principal amount of the Debt Securities of such series then outstanding
(including consents obtained in connection with a tender offer or exchange for
the Debt Securities) and any past default or compliance with any provisions may
also be waived with such a consent of the holders of a majority in principal
amount of the Debt Securities of such series then outstanding. However, without
the consent of each holder of an outstanding Debt Security of such series, no
amendment may, among other things, (i) reduce the amount of Debt Securities of
such series whose holders must consent to an amendment, (ii) reduce the rate of
or extend the time for payment of interest on any Debt Security of such series,
(iii) reduce the principal of or extend the Stated Maturity of any Debt Security
of such series, (iv) reduce the premium payable upon the redemption of any Debt
Security of such series or change the time at which any Debt Security of such
series may or shall be redeemed, (v) make any Debt Securities of such series
payable in money other than that stated in the Debt Security of such series,
(vi) impair the right of any holder of the Debt Securities of such series to
receive payment of principal of, and interest on, such holder's Debt Securities
of such series on or after the due dates therefor or to institute suit for the
enforcement of any payment on or with respect to such holder's Debt Securities
or (vii) make any change in the amendment provisions which require each holder's
consent or in the waiver provisions.
Without the consent of any holder of the Debt Securities, the Company and
the Trustee may amend the Indenture to cure any ambiguity, omission, defect or
inconsistency, to provide for the assumption by a successor corporation of the
obligations of the Company under the Indenture, to provide for uncertificated
Debt Securities in addition to or in place of certificated Debt Securities, to
add guarantees with respect to the Debt Securities, to secure the Debt
Securities, to add to the covenants of the Company for the benefit of the
holders of the Debt Securities or to surrender any right or power conferred upon
the Company, to make any change that does not adversely affect the rights of any
holder of the Debt Securities or to comply with any requirement of the
Commission in connection with the qualification of the Indenture under the Trust
Indenture Act.
The consent of the holders of the Debt Securities is not necessary under the
Indenture to approve the particular form of any proposed amendment. It is
sufficient if such consent approves the substance of the proposed amendment.
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<PAGE> 14
After an amendment under the Indenture becomes effective, the Company is
required to mail to holders of the Debt Securities of the affected series a
notice briefly describing such amendment. However, the failure to give such
notice to all holders of the Debt Securities of such series, or any defect
therein, will not impair or affect the validity of the amendment.
DEFEASANCE
The Company at any time may terminate all its obligations under the Debt
Securities of a series and the Indenture with respect to such series ("legal
defeasance"), except for certain obligations, including those respecting the
defeasance trust and obligations to register the transfer or exchange of the
Debt Securities of such series, to replace mutilated, destroyed, lost or stolen
Debt Securities of such series and to maintain a registrar and paying agent in
respect of the Debt Securities of such series. The Company at any time may
terminate its obligations with respect to a series of Debt Securities under the
covenants described under "-- Certain Covenants" (other than the covenants
described under "-- Mergers or Sales of Assets") and any other restrictive
covenants described in the accompanying Prospectus Supplement relating to such
series, the operation of the cross-acceleration provision and the bankruptcy
provisions described under "-- Defaults" above ("covenant defeasance").
The Company may exercise its legal defeasance option notwithstanding its
prior exercise of its covenant defeasance option. If the Company exercises its
legal defeasance option with respect to a series of Debt Securities, payment of
the Debt Securities of such series may not be accelerated because of an Event of
Default with respect thereto. If the Company exercises its covenant defeasance
option with respect to a series of Debt Securities, payment of the Debt
Securities of such series may not be accelerated because of an Event of Default
specified in clause (iv), (v) or (vi) under "-- Defaults" above.
In order to exercise either defeasance option with respect to a series of
Debt Securities, the Company must irrevocably deposit in trust (the "defeasance
trust") with the Trustee money or U.S. Government Obligations, which through the
payment of interest thereon and principal thereof in accordance with their terms
will provide money in an amount sufficient to pay all the principal (including
any mandatory sinking fund payments) of, premium, if any, on, and interest on
,the Debt Securities of such series to redemption or maturity, as the case may
be, and must comply with certain other conditions, including delivery to the
Trustee of an Opinion of Counsel to the effect that holders of the Debt
Securities of such series will not recognize income, gain or loss for federal
income tax purposes as a result of such deposit and defeasance and will be
subject to federal income tax on the same amount and in the same manner and at
the same times as would have been the case if such deposit and defeasance had
not occurred (and, in the case of legal defeasance only, such Opinion of Counsel
must be based on a ruling of the Internal Revenue Service or other change in
applicable federal income tax law) and the creation of the defeasance trust will
not violate the Investment Company Act of 1940, as amended. In addition, the
Company is required to deliver to the trustee an Officers' Certificate stating
that such deposit was not made by the Company with the intent of preferring the
Holders over other creditors of the Company or with the intent of defeating,
hindering, delaying or defrauding creditors of the Company or others.
TRANSFER
The Debt Securities may be transferred or exchanged in accordance with the
Indenture. Unless otherwise indicated in the applicable Prospectus Supplement,
the Debt Securities will be issued in registered form and will be transferable
only upon the surrender of the Debt Securities being transferred for
registration of transfer. The Company may require payment of a sum sufficient to
cover any tax, assessment or other governmental charge payable in connection
with certain transfers or exchanges. The Company is not required to transfer or
exchange any Debt Security selected for redemption. In addition, the Company is
not required to transfer or exchange any Debt Security for a period of 15 days
before a selection of Debt Securities to be redeemed or before any interest
payment date.
CONCERNING THE TRUSTEE
The Bank of New York is the Trustee under the Indenture and has been
appointed by the Company as Registrar and Paying Agent with regard to the Debt
Securities.
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The Indenture provides that if an Event of Default occurs (and is not cured)
with respect to a series of Debt Securities, the Trustee will be required, in
the exercise of its power, to use the degree of care of a prudent man in the
conduct of his own affairs. Subject to such provisions, the Trustee will be
under no obligation to exercise any of its rights or powers under the Indenture
at the request of any holder of Debt Securities of such series, unless such
holder shall have offered to the Trustee security and indemnity satisfactory to
it against any loss, liability or expense and then only to the extent required
by the terms of the Indenture.
The Trustee is a depository for funds and performs other services for, and
transacts other banking business with, the Company in the normal course of
business.
GOVERNING LAW
The Indenture provides that it and the Debt Securities will be governed by,
and construed in accordance with, the laws of the State of New York without
giving effect to applicable principles of conflicts of law to the extent that
the application of the law of another jurisdiction would be required thereby.
GLOBAL SECURITIES
The registered Debt Securities of a series may be issued in the form of one
or more fully registered global securities (a "Registered Global Security") that
will be deposited with a depositary (a "Debt Depositary") or with a nominee for
a Debt Depositary identified in the Prospectus Supplement relating to such
series and registered in the name of the Debt Depositary or a nominee thereof.
In such case, one or more Registered Global Securities will be issued in a
denomination or aggregate denominations equal to the portion of the aggregate
principal amount of outstanding registered Debt Securities of the series to be
represented by such Registered Global Securities. Unless and until it is
exchanged in whole for Debt Securities in definitive registered form, a
Registered Global Security may not be transferred except as a whole or in part
by the Debt Depositary for such Registered Global Security to a nominee of such
Debt Depositary or by a nominee of such Debt Depositary to such Debt Depositary
or another nominee of such Debt Depositary or by such Debt Depositary or any
such nominee to a successor of such Debt Depositary or a nominee of such
successor. The specific terms of the depositary arrangement with respect to any
portion of a series of Debt Securities to be represented by a Registered Global
Security will be described in the Prospectus Supplement relating to such series.
The Company anticipates that the following provisions will apply to all
depositary arrangements.
Ownership of beneficial interests in a Registered Global Security will be
limited to persons that have accounts with the Debt Depositary for such
Registered Global Security ("participants") or persons that may hold interests
through participants. Upon the issuance of a Registered Global Security, the
Debt Depositary for such Registered Global Security will credit, on its
book-entry registration and transfer system, the participants' accounts with the
respective principal amounts of the Debt Securities represented by such
Registered Global Security beneficially owned by such participants. The accounts
to be credited shall be designated by any dealers, underwriters or agents
participating in the distribution of such Debt Securities or by the Company if
such Debt Securities are offered and sold directly by the Company. Ownership of
beneficial interests in such Registered Global Security will be shown on, and
the transfer of such ownership interests will be effected only through, records
maintained by the Debt Depositary for such Registered Global Security (with
respect to interests of participants) and on the records of participants (with
respect to interests of persons holding through participants). The laws of some
states may require that certain purchasers of securities take physical delivery
of such securities in definitive form. Such limits and such laws may impair the
ability to own, transfer or pledge beneficial interests in Registered Global
Securities.
So long as the Debt Depositary for a Registered Global Security or its
nominee is the registered owner of such Registered Global Security, such Debt
Depositary or such nominee, as the case may be, will be considered the sole
owner or holder of the Debt Securities represented by such Registered Global
Security for all purposes under the Indenture. Except as set forth below, owners
of beneficial interests in a Registered Global Security will not be entitled to
have the Debt Securities represented by such Registered Global Security
registered in their names, will not receive or be entitled to receive physical
delivery of such Debt Securities in definitive form and will not be considered
the owners or holders thereof under the Indenture. Accordingly, each person
owning a beneficial interest in a Registered Global Security must rely on the
procedures of the Debt Depositary for such Registered Global Security and, if
such person is not a participant, on the procedures of the participant through
which such person owns its interest, to exercise any rights of a holder under
the Indenture. The Company
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<PAGE> 16
understands that under existing industry practices, if the Company requests any
action of holders or if an owner of a beneficial interest in a Registered Global
Security desires to give or take any action which a holder is entitled to give
or take under the Indenture, the Debt Depositary for such Registered Global
Security would authorize the participants holding the relevant beneficial
interests to give or take such action, and such participants would authorize
beneficial owners owning through such participants to give or take such action
or would otherwise act upon the instructions of beneficial owners holding
through them.
Principal, premium, if any, and interest payments on Debt Securities
represented by a Registered Global Security registered in the name of a Debt
Depositary or its nominee will be made to such Debt Depositary or its nominee,
as the case may be, as the registered owner of such Registered Global Security.
None of the Company, the Trustee or any other agent of the Company or agent of
the Trustees will have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership
interests in such Registered Global Security or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interests.
The Company expects that the Debt Depositary for any Debt Securities
represented by a Registered Global Security or its nominee, upon receipt of any
payment of principal, premium or interest in respect of such Registered Global
Security, will immediately credit participants' accounts with payments in
amounts proportionate to their respective beneficial interests in such
Registered Global Security as shown on the records of such Debt Depositary or
its nominee. The Company also expects that payments by participants to owners of
beneficial interests in such Registered Global Security held through such
participants will be governed by standing customer instructions and customary
practices, as is now the case with the securities held for the accounts of
customers in bearer form or registered in "street name", and will be the
responsibility of such participants.
If the Debt Depositary for any Debt Securities represented by a Registered
Global Security is at any time unwilling or unable to continue as Debt
Depositary or ceases to be a clearing agency registered under the Exchange Act,
and a successor Debt Depositary registered as a clearing agency under the
Exchange Act is not appointed by the Company within 90 days, the Company will
issue such Debt Securities in definitive form in exchange for such Registered
Global Security. In addition, the Company may at any time and in its sole
discretion determine not to have any of the Debt Securities of a series
represented by one or more Registered Global Securities and, in such event, will
issue Debt Securities of such series in definitive form in exchange for all of
the Registered Global Security or Securities representing such Debt Securities.
Any Debt Securities issued in definitive form in exchange for a Registered
Global Security will be registered in such name or names as the Debt Depositary
shall instruct the Trustee. It is expected that such instructions will be based
upon directions received by the Debt Depositary from participants with respect
to ownership of beneficial interests in such Registered Global Security.
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<PAGE> 17
PLAN OF DISTRIBUTION
The Company may sell the Offered Securities to one or more underwriters or
dealers for public offering and sale by them or may sell the Offered Securities
to investors directly or through agents. The accompanying Prospectus Supplement
will set forth the terms of the offering of the of the Offered Securities and
the method of distribution of the Offered Securities offered thereby and
identify any firms acting as underwriters, dealers or agents in connection
therewith, including the name or names of any underwriters, the purchase price
of the Offered Securities and the proceeds to the Company from the sale, any
underwriting discounts and other items constituting underwriters' compensation,
any public offering price, any discounts or concessions allowed or reallowed or
paid to dealers and any securities exchange or market on which the Offered
Securities may be listed. Only underwriters so named in such Prospectus
Supplement are deemed to be underwriters in connection with the Offered
Securities offered thereby.
The Debt Securities may be distributed from time to time in one or more
transactions at a fixed price or prices (which may be changed) or at prices
determined as specified in the Prospectus Supplement. In connection with the
sale of the Debt Securities, underwriters, dealers or agents may be deemed to
have received compensation from the Company in the form of underwriting
discounts or commissions and may also receive commissions from purchasers of the
Debt Securities for whom they may act as agent. Underwriters may sell the Debt
Securities to or through dealers, and such dealers may receive compensation in
the form of discounts, concessions or commissions from the underwriters or
commissions from the purchasers for whom they may act as agent. Certain of the
underwriters, dealers or agents who participate in the distribution of the Debt
Securities may engage in other transactions with, and perform other services
for, the Company and its subsidiaries in the ordinary course of business.
Any underwriting compensation paid by the Company to underwriters or agents
in connection with the offering of the Debt Securities, and any discounts,
concessions or commissions allowed by underwriters to dealers, are set forth in
the Prospectus Supplement. Underwriters, dealers and agents participating in the
distribution of the Debt Securities may be deemed to be underwriters, and any
discounts and commissions received by them and any profit realized by them on
the resale of the Debt Securities may be deemed to be underwriting discounts and
commissions under the Securities Act. Underwriters and their controlling
persons, dealers and agents may be entitled, under agreements entered into with
the Company, to indemnification against and contribution toward certain civil
liabilities, including liabilities under the Securities Act.
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LEGAL MATTERS
The validity of the Offered Securities will be passed upon for the Company
by Dow, Lohnes & Albertson, PLLC, Washington, D.C.
EXPERTS
The consolidated financial statements of the Company incorporated in this
Prospectus by reference from the Company's Annual Report on Form 10-K for the
year ended December 31, 1997 have been audited by Deloitte & Touche LLP,
independent auditors, as stated in their report, which is incorporated herein by
reference, and have been so incorporated in reliance upon the report of such
firm given upon their authority as experts in accounting and auditing.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following are the expenses of issuance and distribution of the Debt
Securities registered hereunder on Form S-3, other than underwriting discounts
and commissions. All amounts except the Registration Fees are estimated.
<TABLE>
<S> <C>
Registration fee ................................................ $295,000
Rating Agency fees .............................................. 50,000
Legal fees and expenses ......................................... 100,000
Accounting fees and expenses .................................... 50,000
Printing and engraving expenses ................................. 60,000
Trustee's fees .................................................. 30,000
Miscellaneous ................................................... 15,000
--------
Total ................................................... $600,000
========
</TABLE>
- ---------
All of the above expenses have been or will be paid by the Company.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Reference is made to Section 102(b)(7) of the Delaware General Corporation
Law (the "DGCL"), which enables a corporation in its original certificate of
incorporation or an amendment thereto to eliminate or limit the personal
liability of a director for violations of the director's fiduciary duty, except
(i) for any breach of the director's duty of loyalty to the corporation or its
stockholders, (ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii) pursuant to Section
174 of the DGCL (providing for liability of directors for unlawful payment of
dividends or unlawful stock purchases or redemptions), or (iv) for any
transaction from which a director derived an improper personal benefit. The
Company's Amended Certificate of Incorporation contains a provision which
eliminates the liability of directors to the extent permitted by Section
102(b)(7) of the DGCL.
Reference is made to Section 145 of the DGCL, which provides that a
corporation may indemnify directors and officers as well as other employees and
individuals against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement in connection with specified actions, suits or
proceedings, whether civil, criminal, administrative or investigative (other
than an action by or in the right of the corporation (a "derivative action")),
if they acted in good faith and in a manner they reasonably believed to be in or
not opposed to the best interests of the corporation and, with respect to any
criminal action or proceeding, had no reasonable cause to believe their conduct
was unlawful. A similar standard is applicable in the case of derivative
actions, except that indemnification only extends to expenses (including
attorneys' fees) incurred in connection with the defense or settlement of such
action, and the statute requires court approval before there can be any
indemnification where the person seeking indemnification has been found liable
to the corporation. The statute provides that it is not exclusive of other
indemnification that may be granted by a corporation's charter, by-laws,
disinterested director vote, stockholder vote, agreement or otherwise. The
Amended Certificate of Incorporation of the Company provides that the Company
shall indemnify its directors and officers to the fullest extent permitted by
Delaware law.
II-1
<PAGE> 20
ITEM 16. EXHIBITS.
<TABLE>
<CAPTION>
Exhibit
Number Description
------- -----------
<S> <C> <C>
4.1 -- Indenture dated as of June 27, 1995 between Cox Communications,
Inc. and The Bank of New York, as Trustee, relating to the Debt
Securities (previously filed as an exhibit to the Company's
Registration Statement on Form S-1 (File No. 33-99116) and
incorporated herein by this reference).
5 -- Opinion of Dow, Lohnes & Albertson, PLLC.
12 -- Statement setting forth computation of ratios of earnings to
fixed charges.
23.1 -- Consent of Deloitte & Touche LLP.
23.2 -- Consent of Dow, Lohnes & Albertson, PLLC (contained in their
opinion filed as Exhibit 5).
24 -- Powers of Attorney (included on page II-4).
25 -- Form T-1 Statement of Eligibility under the Trust Indenture Act
of 1939 of The Bank of New York, as Trustee under the Indenture
(previously filed as an exhibit to the Company's Registration
Statement on Form S-1 (File No. 33-9200) and incorporated herein
by this reference).
</TABLE>
ITEM 17. UNDERTAKINGS.
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement to include any material
information with respect to the plan of distribution not previously disclosed in
the registration statement or any material change to such information in the
registration statement.
(2) That, for the purpose of determining any liability under the Securities
Act of 1933, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
(4) That, for purposes of determining any liability under the Securities Act
of 1933, each filing of the Registrant's annual report pursuant to section 13(a)
or 15(d) of the Securities Exchange Act of 1934 that is incorporated by
reference in the registration statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(5) If any of the Offered Securities are offered at competitive bidding, (a)
to use its best efforts to distribute prior to the opening of bids, to
prospective bidders, underwriters, and dealers, a reasonable number of copies of
a prospectus which at that time meets the requirements of section 10(a) of the
Act, and relating to the securities offered at competitive bidding, as contained
in the registration statement together with any supplements thereto and (b) to
file an amendment to the registration statement reflecting the results of
bidding, the terms of the reoffering and related matters to the extent required
by the applicable form, not later than the first use, authorized by the issuer
after the opening of bids, of a prospectus relating to the securities offered at
II-2
<PAGE> 21
competitive bidding, unless no further public offering of such securities by the
issuer and no reoffering of such securities by the purchasers is proposed to be
made.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the Registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the Registrant of expenses incurred
or paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
The Company hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act of
1933, the information omitted from the form of prospectus filed as part of this
registration statement in reliance upon Rule 430A and contained in a form of
prospectus filed by the Company pursuant to Rule 424(b)(1) or (4) or 497(h)
under the Securities Act of 1933 shall be deemed to be part of this registration
statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities Act of
1933, each post-effective amendment that contains a form of prospectus shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
II-3
<PAGE> 22
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Atlanta, State of Georgia, on July 2, 1998.
COX COMMUNICATIONS, INC.
By: /s/ James O. Robbins
-------------------------------------
James O. Robbins
President and Chief Executive Officer
POWER OF ATTORNEY
Cox Communications, Inc., a Delaware corporation, and each person whose
signature appears below, constitutes and appoints James O. Robbins and Jimmy W.
Hayes, and either of them, with full power to act without the other, such
person's true and lawful attorneys-in-fact, with full power of substitution and
resubstitution, for him or her and in his or her name, place and stead, in any
and all capacities, to sign this Registration Statement, any subsequent related
registration statement filed pursuant to Rule 462(b) promulgated under the
Securities Act of 1933, and any and all amendments to such registration
statements and other documents in connection therewith, and to file the same,
and all exhibits thereto and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact, and
each of them, full power and authority to do and perform each and every act and
thing necessary or desirable to be done in and about the premises, as fully to
all intents and purposes as he or she might or could do in person, thereby
ratifying and confirming all that said attorneys-in-fact, or any of them, or
their or his or her substitute or substitutes, may lawfully do or cause to be
done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Registration Statement has been signed below by the following persons on behalf
of the Registrant and in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ James C. Kennedy
- -----------------------------------
James C. Kennedy Chairman of the Board of Directors July 2, 1998
/s/ James O. Robbins
- -----------------------------------
James O. Robbins President and Chief Executive July 2, 1998
Officer, Director
/s/ Jimmy W. Hayes
- -----------------------------------
Jimmy W. Hayes Senior Vice President, Finance July 2, 1998
(Principal Financial Officer)
/s/ John M. Dyer
- -----------------------------------
John M. Dyer Vice President, Accounting and July 2, 1998
Financial Planning (Principal
Accounting Officer)
/s/ David E. Easterly
- -----------------------------------
David E. Easterly Director July 2, 1998
/s/ Robert F. Erburu
- -----------------------------------
Robert F. Erburu Director July 2, 1998
</TABLE>
II-4
<PAGE> 1
EXHIBIT 5
[Dow, Lohnes & Albertson, PLLC letterhead]
July 2, 1998
Cox Communications, Inc.
1400 Lake Hearn Drive
Atlanta, Georgia 30319
Re: Registration Statement on Form S-3 for $1,000,000,000
of Debt Securities of Cox Communications, Inc.
Ladies and Gentlemen:
We have acted as special counsel for Cox Communications, Inc., a
Delaware corporation ("Cox"), in connection with the preparation of the
above-referenced registration statement (the "Registration Statement"), filed
with the Securities and Exchange Commission (the "Commission") pursuant to the
Securities Act of 1933, as amended (the "Act"), to register the public offering
by Cox of $1,000,000,000 aggregate principal amount of debentures, notes, bonds
or other evidences of indebtedness (the "Debt Securities").
In preparing this opinion, we have examined and reviewed such documents
and made such investigations of law as we have considered necessary or
appropriate to render the opinions expressed below. We have reviewed (a) the
Registration Statement; (b) Cox's Amended Certificate of Incorporation and
Bylaws; (c) the Indenture entered into on June 27, 1995 by Cox and The Bank of
New York, as Trustee, providing for the issuance of the Debt Securities (the
"Indenture"); and (d) such other documents, corporate records, certificates of
public officials, certificates of officers of the Company and other instruments
relating to the authorization and issuance of the Debt Securities as we deemed
relevant or necessary for the opinion herein expressed. As to matters of fact
relevant to our opinion, we have relied upon certificates of officers of Cox
without further investigation.
With respect to the foregoing documents, we have assumed (i) the
authenticity of all documents submitted to us as originals, the conformity with
authentic original documents of all documents submitted to us as copies or
forms, the genuineness of all signatures and the legal capacity of natural
persons, and (ii) that the foregoing documents, in the forms thereof submitted
for our review, have not been altered, amended or repealed in any respect
material to our opinion
<PAGE> 2
Cox Communications, Inc.
July 2, 1998
Page 2
as stated herein. We have not reviewed any documents other than the documents
listed above for purposes of rendering our opinion as expressed herein, and we
assume that the documents submitted to us for our review have not been altered,
amended or repealed in any respect material to our opinion as stated herein. We
have not reviewed any documents other than the documents listed above for
purposes of rendering our opinion as expressed herein, and we assume that there
exists no provision of any such other document that bears upon or is
inconsistent with our opinion as expressed herein. We have conducted no
independent factual investigation of our own but rather have relied solely upon
the foregoing documents, the statements and information set forth therein and
the additional matters recited or assumed herein, all of which we assume to be
true, complete and accurate in all material respects.
Our opinion is limited to matters of law of the District of Columbia,
the General Corporation Law of the State of Delaware, and the United States of
America, insofar as such laws apply, and we express no opinion as to conflicts
of law rules, or the laws of any states or jurisdictions, including federal laws
regulating securities or other federal laws, or the rules and regulations of
stock exchanges or any other regulatory body, other than as specified above.
Based upon and subject to the foregoing and any other qualifications
stated herein, we are of the opinion that the Debt Securities, when duly
executed, authenticated and delivered in accordance with the provisions of the
Indenture against payment therefor and under the terms and conditions described
in the Registration Statement and the Indenture, will constitute valid and
binding obligations of Cox, subject, as to enforcement, (i) to any applicable
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and
similar laws relating to or affecting creditors' rights generally and (ii) to
general principles of equity and judicial discretion.
We hereby consent to the use of this opinion as Exhibit 5 to the
Registration Statement and to all references to our firm in the Registration
Statement; provided, however, that in giving such consent we do not admit that
we come within the category of persons whose consent is required under Section 7
of the Act or the Rules and Regulations of the Commission thereunder. Except as
provided for hereinabove, without our prior written consent, this opinion may
not be furnished or quoted to, or relied upon by, any other person or entity for
any purpose.
DOW, LOHNES & ALBERTSON, PLLC
By: /s/ Stuart A. Sheldon
-----------------------------------
Stuart A. Sheldon
Member
<PAGE> 1
EXHIBIT 12
COX COMMUNICATIONS, INC.
STATEMENT SETTING FORTH COMPUTATION OF
RATIO OF EARNINGS TO FIXED CHARGES
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31, THREE MONTHS ENDED MARCH 31,
-----------------------------------------------------------------------------------
1997 1996 1995 1994 1993 1998 1997
-----------------------------------------------------------------------------------
(DOLLARS IN MILLIONS) (DOLLARS IN MILLIONS)
<S> <C> <C> <C> <C> <C> <C> <C>
Earnings Available for Fixed Charges:
- ------------------------------------
Net income (loss) $(136.5) $ (51.6) $103.8 $ 26.6 $ 77.1 $(101.9) $(37.8)
Income tax expense (benefit) (53.5) 23.0 99.9 25.7 66.0 (48.2) (9.0)
Equity in net losses of affiliated companies 404.4 170.4 79.7 43.9 28.2 141.8 81.3
Fixed charges (see below, excluding capitalized
interest) 213.9 157.9 143.3 55.7 22.4 55.4 49.9
------------------------------------------------- ----------------------
Total $ 428.3 $299.7 $426.7 $151.9 $193.7 $ 47.1 $84.4
================================================= ======================
Fixed Charges:
- -------------
Interest expense $ 202.1 $146.1 $132.3 $ 46.1 $ 12.9 $ 53.1 $46.8
Capitalized interest 0.1 43.2 14.2 0.1 0.0 0.0 0.1
Interest component of rentals charged to income 8.5 5.1 4.3 2.9 2.8 2.3 1.4
Dividends on subsidiary preferred stock 3.4 6.7 6.7 6.7 6.7 0.0 1.7
------------------------------------------------- ----------------------
Total fixed charges including capitalized
interest $ 214.0 $201.1 $157.5 $ 55.8 $ 22.4 $ 55.4 $50.0
================================================= ======================
Ratio of Earnings to Fixed Charges 2.0 x 1.5 x 2.7 x 2.7 x 8.7 x 0.9 x 1.7 x
================================================= ======================
</TABLE>
<PAGE> 1
EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
Cox Communications, Inc. on Form S-3 of our reports dated February 6, 1998,
appearing in the Annual Report on Form 10-K and the Annual Report on Form 10-K/A
of Cox Communications, Inc. for the year ended December 31, 1997 and to the
reference to us under the heading "Experts" in the Prospectus, which is part of
this Registration Statement.
DELOITTE & TOUCHE LLP
Atlanta, Georgia
July 6, 1998
