UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF THE
SECURITIES ACT OF 1934
Cox Communications, Inc.
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(Exact name of Registration as specified in charter)
Delaware
(State of incorporation or origination)
58-2112251
(IRS Employer Identification No.)
1400 Lake Hearn Drive, Atlanta, Georgia 30319
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(Address of principal executive offices) (Zip Code)
Securities to be registered pursuant to Section 12(b) of the Act:
Title of each class Name of each exchange on which
to be so registered each class is to be registered
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Exchangeable Subordinated Debentures New York Stock Exchange
due 2030
If this form relates to the registration of a class of securities pursuant to
Section 12(b) of the Exchange Act and is effective pursuant to General
Instruction A.(c), check the following box. [X]
If this form relates to the registration of a class of securities pursuant to
Section 12(g) of the Exchange Act and is effective pursuant to General
Instruction A.(d),check the following box. [ ]
Securities Act registration statement file number to which this form relates:
333-82575 (if applicable).
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Securities to be registered pursuant to Section 12(g) of the Act:
None.
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ITEM 1. DESCRIPTION OF REGISTRANT'S SECURITIES TO BE REGISTERED
The class of securities to be registered hereby is Exchangeable
Subordinated Debentures due 2030 (the "Premium PHONES") of Cox Communications,
Inc., a Delaware corporation.
For a description of the Premium PHONES, reference is made to the
description included under the caption "Description of Premium PHONES" in the
prospectus supplement and under "Description of Debt Securities" in the
accompanying prospectus included in the Rule 424(b) filing made by Cox under the
registration statement on Form S-3 (file no. 333-82575).
ITEM 2. EXHIBITS
4.1 Indenture of Cox Communications, Inc. relating to the Premium PHONES
(incorporated herein by reference as an exhibit to the registration
statement on Form S-1, file no. 33-99116).
4.2 Form of Second Supplemental Indenture relating to the Premium PHONES.
4.3 Form of Premium PHONES.
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SIGNATURES
Pursuant to the requirements of Section 12 of the Securities Exchange
Act of 1934, the registrant has duly caused this registration statement to be
signed on its behalf by the undersigned, thereto duly authorized.
COX COMMUNICATIONS, INC.
Date: March 13, 2000 By: /s/ Dallas S. Clement
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Dallas S. Clement
Vice President and
Treasurer
Exhibit 4.2
COX COMMUNICATIONS, INC.
AND
THE BANK OF NEW YORK
Trustee
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SECOND SUPPLEMENTAL INDENTURE
Dated as of March 14, 2000
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Supplementing the Indenture
Dated as of June 27, 1995
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Creating a series of Debt Securities designated
Premium PHONES - 3% Exchangeable Subordinated Debentures due 2030
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SECOND SUPPLEMENTAL INDENTURE, dated the 14th day of March, 2000,
between COX COMMUNICATIONS, INC., a corporation existing under the laws of the
State of Delaware (the "Company"), and THE BANK OF NEW YORK, a New York banking
corporation, having its principal corporate trust office in The City of New
York, New York, as trustee (the "Trustee").
WHEREAS, the Company has heretofore executed and delivered to the
Trustee an Indenture dated as of June 27, 1995 (the "Original Indenture" and, as
supplemented to the date hereof, the "Indenture"), providing for the issuance by
the Company from time to time of its debentures, notes, bonds or other evidences
of indebtedness to be issued in one or more series (in the Original Indenture
and herein called the "Securities");
WHEREAS, the Company, in the exercise of the power and authority
conferred upon and reserved to it under the provisions of the Original Indenture
and pursuant to appropriate resolutions of the Board of Directors, has duly
determined to make, execute and deliver to the Trustee this Second Supplemental
Indenture to the Original Indenture in order to establish the form and terms of,
and to provide for the creation and issue of, a series of Securities designated
as the "Premium PHONES - 3% Exchangeable Subordinated Debentures due 2030" under
the Original Indenture in an aggregate original principal amount of up to
$335,366,000 (the "Debentures");
WHEREAS, Section 9.01 of the Original Indenture provides, among other
things, that the Company, when authorized by a Board Resolution, and the
Trustee, at any time and from time to time, without the consent of any Holders,
may enter into an indenture supplemental to the Original Indenture to establish
the terms of Securities of any series as permitted by Sections 2.01 and 2.03 of
the Original Indenture; and
WHEREAS, all things necessary to make the Securities, when executed by
the Company and authenticated and delivered by the Trustee and issued upon the
terms and subject to the conditions hereinafter and in the Indenture set forth
against payment therefor, the valid, binding and legal obligations of the
Company and to make this Second Supplemental Indenture a valid, binding and
legal agreement of the Company, have been duly authorized.
NOW, THEREFORE, THIS SECOND SUPPLEMENTAL INDENTURE WITNESSETH that, in
order to establish the terms of the series of Securities designated as the
"Premium PHONES - 3% Exchangeable Subordinated Debentures due 2030," and for and
in consideration of the premises and of the covenants contained in the Original
Indenture and in this Second Supplemental Indenture and for other good and
valuable consideration the receipt and sufficiency of which are hereby
acknowledged, it is mutually covenanted and agreed as follows:
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ARTICLE ONE
DEFINITIONS AND OTHER
PROVISIONS OF GENERAL APPLICATION
Section 101. Definitions.
Each capitalized term that is used herein and is defined in the
Original Indenture shall have the meaning specified in the Original Indenture
unless such term is otherwise defined herein, in which case such term shall have
the meaning specified herein.
"Additional Distribution" shall mean any distribution to Holders of the
Debentures made pursuant to Section 206 as a result of a Reference Share
Distribution.
"Adjusted Principal Amount" shall mean, for each $1,000 Original
Principal Amount of the Debentures, $1,000, minus any and all Extraordinary
Additional Distributions and any Yield Adjustments made in respect to such
Original Principal Amount of Debentures pursuant to Section 204.
"Average Transaction Consideration" shall mean, with respect to a
holder of one Reference Share in a Reference Share Offer, (a) the aggregate
consideration actually paid or distributed in respect of all Reference Shares
accepted in such Reference Share Offer, divided by (b) the total number of
Reference Shares outstanding immediately prior to the expiration of the
Reference Share Offer and entitled to participate in such Reference Share Offer.
"Business Day" shall mean any day that is not a Saturday, Sunday or
legal holiday, on which banking institutions or trust companies in The City of
New York are authorized or obligated by law or regulation to close.
"Closing Price" shall mean, with respect to any security on any date of
determination, the closing sale price (or, if no closing sale price is reported,
the last reported sale price) of that security (regular way) on the New York
Stock Exchange on that date or, if the security is not listed for trading on the
New York Stock Exchange on that date, as reported in the composite transactions
for the principal United States national or regional securities exchange on
which the security is so listed, or if the security is not so listed on a United
States national or regional securities exchange, as reported by the Nasdaq
National Market or, if the security is not so reported, the last quoted bid
price for the security in the over-the-counter market as reported by the
National Quotation Bureau or a similar organization. In the event that no such
quotation is available for that day, the Board of Directors will be entitled to
determine the Closing Price on the basis of those quotations that it in good
faith considers appropriate, unless "Closing Price" is to be determined for
purposes of valuing securities to be distributed pursuant to a Reference Share
Distribution and in the opinion of the Board of Directors there is a substantial
likelihood that such securities will have an aggregate fair market value in
excess of $100,000,000, in which event the Closing Price will be determined by a
nationally recognized investment banking or appraisal firm appointed by the
Company for such purpose. With respect to options, warrants and other rights to
purchase a security, the Closing Price shall be the value of the underlying
security determined as aforesaid, minus the exercise price; and with respect to
securities
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exchangeable for or convertible into a relevant security, the Closing Price
shall be the Closing Price of the exchangeable or convertible security
determined as aforesaid or, if it has no Closing Price, the fully converted
value based upon the Closing Price of the underlying security determined as
aforesaid. If an "ex-dividend" date for a security occurs during the period used
in determining the security's Current Market Value or Exchange Market Value, the
Closing Price of the security on any day prior to the "ex-dividend" date used in
such determination shall be reduced by the amount of the dividend. For this
purpose, the amount of a non-cash dividend will be equal to the amount of the
dividend, as of the record date therefor, as determined by a nationally
recognized investment banking firm retained by the Company for this purpose. To
the extent that trading (regular way) of, or quotations for, any security as to
which "Closing Price" is to be determined continues past 4:00 p.m., New York
City time, on the applicable securities exchange, the National Market System or
over-the-counter market, as the case may be, "Closing Price" shall be deemed to
refer to the price or bid at the time that is then customary for determining the
trading day's index levels for stocks traded on such securities exchange, the
National Market System or over-the-counter market.
"Common Equity Securities" shall mean any securities (i) that are
common stock or a Tracking Stock or participate without limitation in earnings
and dividends in parity with such common stock or Tracking Stock and (ii) that
are Marketable Securities. For greater certainty, the term "Common Equity
Securities" does not mean warrants, options or other rights to purchase, or
securities exchangeable or convertible into, Common Equity Securities.
"Company" shall mean the Person named as the "Company" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of the Indenture, and thereafter "Company"
shall mean such successor Person, and any other obligor upon the Debentures.
"Current Market Value" shall mean, with respect to any Reference Share,
the average of the Closing Prices for such Reference Share over the 20 Trading
Day period immediately prior to (but not including) the fifth Trading Day
preceding the applicable Redemption Date (or, in the case of Section 204(b), the
Stated Maturity).
"Debenture" shall mean $1,000 Original Principal Amount of the
Debentures.
"Debentures" shall mean the Company's Premium PHONES - 3% Exchangeable
Subordinated Debentures due 2030.
"Depository" shall have the meaning assigned to it in the Original
Indenture.
"DTC" shall mean The Depository Trust Company.
"Exchange Agent" shall mean any Person authorized by the Company to act
as Exchange Agent under the Indenture. The Company initially authorizes the
Trustee to act as Exchange Agent for the Debentures on its behalf. The Company
may at any time and from time to time authorize one or more Persons (including
the Company) to act as Exchange Agent in addition to or in place of the Trustee
with respect to the Debentures.
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"Exchange Date" shall mean, with respect to any Notice of Exchange, the
date on which the Notice of Exchange and all documents, instruments and payments
required to be tendered in connection with the related exchange have been
received by the Exchange Agent.
"Exchange Market Value" shall mean, for each Reference Share
attributable to the Debentures at the date of determination, (a) in the case of
a Notice of Exchange delivered to the Exchange Agent prior to March 14, 2002,
the Closing Price for such Reference Share on the twentieth Trading Day
following the Exchange Date (unless more than $1,000,000 aggregate Original
Principal Amount of Debentures have been validly tendered for exchange on such
date, in which case Exchange Market Value shall mean the average of the Closing
Prices for such Reference Share over the five Trading Day period ending on the
twentieth Trading Day immediately following the Exchange Date); and (b) in the
case of a Notice of Exchange delivered to the Exchange Agent on or after March
14, 2002, the Closing Price for such Reference Share on the Trading Day
following the Exchange Date (unless more than $1,000,000 aggregate Original
Principal Amount of Debentures have been validly tendered for exchange on such
date, in which case the Exchange Market Value shall mean the average of the
Closing Prices for such Reference Share over the five Trading Day period
immediately following the Exchange Date). The aggregate Exchange Market Value of
the Reference Shares attributable to any Debenture for which a Notice of
Exchange is delivered to the Trustee shall equal the sum of the Exchange Market
Values of the Reference Shares attributable to such Debenture.
"Extraordinary Additional Distribution" shall mean any Additional
Distribution other than a Regular Additional Distribution, whether of cash or
property; provided that in the event of a Reference Share Offer, the amount of
the Extraordinary Additional Distribution on each Debenture in respect of such
Reference Share Offer shall equal the portion of the Average Transaction
Consideration deemed to be received on the Reference Shares of the class or
series subject to the Reference Share Offer attributable to such Debenture
(immediately prior to giving effect to the Reference Share Proportionate
Reduction relating to that Reference Share Offer) other than the portion of the
Average Transaction Consideration that consists of Common Equity Securities,
which themselves become part of the Reference Shares as a result of the
Reference Share Offer Adjustment.
"Extraordinary Distribution" shall mean any Reference Share
Distribution other than a Regular Cash Dividend.
"Final Period Distribution" shall mean, for each Debenture, (a) all
Regular Cash Dividends on any Reference Shares attributable to such Debenture
for which the ex-dividend date has occurred but which, at the date of
determination, have not been received by the holders of such Reference Shares
and (b) all Extraordinary Distributions on any Reference Shares attributable to
such Debenture for which the ex-dividend date has occurred but which, at the
date of determination, have not been received by the holders of such Reference
Shares, but only to the extent that the value of such Extraordinary
Distributions (determined in accordance with Section 206(d) or (e)) exceeds the
Adjusted Principal Amount of such Debenture.
"Interest Payment Date" shall have the meaning assigned to it in
Section 205.
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"Maturity Repayment Amount" shall have the meaning assigned to it in
the form of Debenture attached hereto as Exhibit A.
"Notice of Exchange" shall mean the notice of exchange given to the
Exchange Agent by a Holder of its request to exchange Debentures pursuant to
Section 209(c).
"Optional Redemption" shall mean any redemption of the Debentures, in
whole or in part, at the option of the Company pursuant to Section 208(a).
"Original Principal Amount" shall mean the face value of $1,000
principal amount per Debenture.
"Reference Company" shall mean Sprint Corporation, for so long as any
Reference Shares are Sprint PCS Stock, and any other issuer of a Reference
Share.
"Reference Share" shall initially mean one share of Sprint PCS Stock;
and after the date hereof shall mean and include each share or fraction of a
share of Common Equity Securities received by a holder of a Reference Share in
respect of that Reference Share, and, to the extent the Reference Share remains
outstanding after any of the following events but without duplication, including
the Reference Share outstanding immediately prior thereto, in each case directly
or as the result of successive applications of this paragraph upon any of the
following events: (i) a distribution on or in respect of a Reference Share, made
in Reference Shares; (ii) the combination of a Reference Share into a smaller
number of shares or other units; (iii) the subdivision of outstanding shares or
other units of a Reference Share; (iv) the conversion or reclassification of a
Reference Share by issuance or exchange of other Common Equity Securities; (v)
any Common Equity Securities issued for a Reference Share in any consolidation
or merger of a Reference Company, or any surviving entity or subsequent
surviving entity of a Reference Company (referred to herein as a "Reference
Company Successor"), with or into another entity (other than any Common Equity
Securities issued in connection with (A) a Reference Share Offer or (B) a merger
or consolidation in which (x) the Reference Company is the continuing
corporation and in which the Reference Shares outstanding immediately prior to
the merger or consolidation issued by such Reference Company are not exchanged
for cash, securities or other property of the Reference Company or another
corporation or (y) an election is given as to the consideration to be received
by a holder of such Reference Shares); (vi) any Common Equity Securities issued
in exchange for a Reference Share in any statutory exchange of securities of a
Reference Company or any Reference Company Successor with another corporation
(other than any Common Equity Securities issued in connection with (A) a
Reference Share Offer or (B) a statutory exchange of securities in which (x) the
Reference Company is the continuing corporation and in which the Reference
Shares outstanding immediately prior to the statutory exchange issued by such
Reference Company are not exchanged for cash, securities or other property of
the Reference Company or another corporation or (y) an election is given as to
the consideration to be received by a holder of such Reference Shares); (vii)
any Common Equity Securities issued with respect to a Reference Share in
connection with any liquidation, dissolution or winding up of the Reference
Company or any Reference Company Successor; and (viii) any Common Equity
Securities received in exchange for a Reference Share as part of the Average
Transaction Consideration deemed received in any Reference Share Offer. For
purposes of this definition, (I) a conversion or redemption by Sprint
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Corporation of all shares of Sprint PCS Stock pursuant to Article Sixth, Section
7.1 of its Articles of Incorporation shall be deemed a consolidation or merger;
and (II) a redemption by Sprint Corporation pursuant to Article Sixth, Section
7.2 of its Articles of Incorporation of all of the outstanding shares of Sprint
PCS Stock in exchange for common stock of one or more wholly-owned subsidiaries
that collectively hold all of the assets and liabilities attributed to its PCS
Group shall be deemed a statutory exchange of shares of Sprint PCS Stock for
shares of common stock of the relevant subsidiary or subsidiaries; provided,
however, that if there is an election given to holders of Sprint PCS Stock in
connection with any such conversion or redemption, the transaction shall be
deemed a Reference Share Offer.
"Reference Share Distribution" shall mean any dividend or distribution
on or in respect of a Reference Share, including payments and distributions in
connection with (i) the consolidation or merger of a Reference Company or
Reference Company Successor, a statutory exchange of securities of a Reference
Company or Reference Company Successor or a liquidation or dissolution of a
Reference Company or Reference Company Successor or (ii) any Reference Share
Offer, but shall not include any dividend or distribution made in the form of
additional Reference Shares.
"Reference Shares Eligibility Date" shall mean March 14, 2002.
"Reference Share Offer" shall mean any tender offer or exchange offer
made for 30% or more of the outstanding shares of a class or series of Reference
Shares of a Reference Company or any consolidation, merger or statutory exchange
involving a class or series of Reference Shares of a Reference Company in which
an election is given to holders of such Reference Shares as to the consideration
to be received in the transaction. A "Reference Share Offer" shall include a
conversion or redemption by Sprint Corporation of less than all shares of Sprint
PCS Stock pursuant to Article Sixth, Section 7.1 of its Articles of
Incorporation or any conversion or redemption by Sprint Corporation of all
shares of Sprint PCS Stock pursuant to Article Sixth, Section 7.1 or Section 7.2
of its Articles of Incorporation in which a holder of Sprint PCS Stock is given
an election as to the consideration that he or she may receive.
"Reference Share Offer Adjustment" shall mean (a) an adjustment to the
Reference Shares attributable to each Debenture to include the portion of the
Average Transaction Consideration received in a Reference Share Offer that
consists of Reference Shares, and (b) a reduction in the number of Reference
Shares attributable to each Debenture prior to such Reference Share Offer by the
Reference Share Proportionate Reduction.
"Reference Share Proportionate Reduction" shall mean a proportionate
reduction in the number of Reference Shares of the class or series of Reference
Shares which are the subject of the applicable Reference Share Offer and
attributable to each Debenture, calculated in accordance with the following
formula:
[OBJECT OMITTED]
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where:
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R = the fraction by which the number of Reference Shares of the
class or series of Reference Shares subject to the Reference
Share Offer and attributable to each Debenture will be
reduced;
X = the aggregate number of Reference Shares of the class or
series of Reference Shares subject to the Reference Share
Offer accepted in the Reference Share Offer; and
N = the aggregate number of Reference Shares of the class or
series of Reference Shares subject to the Reference Share
Offer outstanding immediately prior to the expiration of the
Reference Share Offer.
"Regular Additional Distribution" shall mean any Additional
Distribution as a result of a Reference Share Distribution that consists of a
Regular Cash Dividend.
"Regular Cash Dividend" shall mean any cash dividend declared by a
Reference Company on its Reference Shares in accordance with the Reference
Company's publicly announced regular common equity dividend policy.
"Securities Exchange Act" shall mean the United States Securities
Exchange Act of 1934, as amended.
"Senior Indebtedness" means the principal of, premium, if any, and
interest on, and any other payment due pursuant to, any of the following,
whether outstanding on the date the Debentures are issued or incurred by the
Company in the future:
(a) all of the Company's indebtedness for money borrowed,
including any indebtedness secured by a mortgage or other lien
which is (1) given to secure all or part of the purchase price
of property subject to the mortgage or lien, whether given to
the vendor of that property or to another lender, or (2)
existing on property at the time the Company acquires it;
(b) all of the Company's indebtedness evidenced by notes, debentures, bonds or
other securities sold by the Company for money;
(c) all of the Company's lease obligations which are capitalized on the
Company's books in accordance with generally accepted accounting principles;
(d) all indebtedness of others of the kinds described in (a) and
(b) above and all lease obligations of others of the kind
described in (c) above that the Company, in any manner, assume
or guarantee or that the Company in effect guarantee through
an agreement to purchase, whether that agreement is contingent
or otherwise; and
(e) all renewals, extensions or refundings of indebtedness of the
kinds described in (a), (b) or (d) above and all renewals or
extensions of leases of the kinds described in (c) or (d)
above;
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unless, in the case of any particular indebtedness, lease, renewal, extension or
refunding, the instrument or lease creating or evidencing it or the assumption
or guarantee relating to it expressly provides that such indebtedness, lease,
renewal, extension or refunding is not superior in right of payment to the
Debentures. The Company's senior Debt Securities issued under the Original
Indenture constitute Senior Indebtedness for purposes of the Debentures.
Senior indebtedness does not include:
(a) any indebtedness of the Company or of any Restricted Subsidiary to the
Company or another Restricted Subsidiary;
(b) any guarantee by the Company or any Restricted Subsidiary of indebtedness of
the Company or another Restricted Subsidiary;
(c) any accounts payable or other liability to trade creditors
arising in the ordinary course of business (including
guarantees thereof or instruments evidencing such
liabilities);
(d) letters of credit, performance bonds and similar obligations
issued in favor of governmental or franchising authorities as
a term of a cable television franchise or other governmental
franchise, license, permit or authorization held by the
Company or any of its Subsidiaries; and
(e) the Company's Exchangeable Subordinated Debentures due 2029
(the "PRIZES") which rank pari passu with the Debentures.
"Sprint Corporation" shall mean Sprint Corporation, a Kansas
corporation.
"Sprint PCS Stock" shall mean the Sprint Corporation PCS common
stock-Series 1, par value $1.00 per share.
"Tracking Stock" shall mean an equity security which tracks the
performance of one or more subsidiaries or a distinct line of business of the
issuer of such equity security.
Trading Day" shall mean (i) where the Closing Price of a security is to
be determined, a day on which the security (a) is not suspended from trading or
quotation at the close of business on the national or regional securities
exchange, the National Market System or over-the-counter market that is the
primary market for the trading or quotation of that security and (b) has traded
or been quoted at least once on the national or regional securities exchange,
the National Market System or over-the-counter market that is the primary market
for the trading or quotation of that security, and (ii) for any other purpose
under this Second Supplemental Indenture, any day on which the Nasdaq National
Market and the New York Stock Exchange are open for the transaction of business.
"Yield Adjustment" shall mean any adjustment required to be made to
the Adjusted Principal Amount on any Interest Payment Date following any
Extraordinary Additional Distribution (except for the Interest Payment Date
immediately following such Extraordinary Additional Distribution) so that the
interest payment on such Interest Payment Date does not
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represent an annualized yield in excess of 3% on the Adjusted Principal Amount
of the Debentures during the semi-annual period immediately preceding such
Interest Payment Date.
Section 102. Section References.
Each reference to a particular section set forth in this Second
Supplemental Indenture shall, unless the context otherwise requires, refer to
this Second Supplemental Indenture.
Section 103. Conflict with Original Indenture.
To the extent that any of the terms set forth in this Second
Supplemental Indenture or the certificates representing the Debentures shall
conflict with any of the terms of the Original Indenture, the terms of this
Second Supplemental Indenture and the certificates representing the Debentures
shall be controlling with respect to the Debentures.
Article Two
TITLE AND TERMS OF THE SECURITIES
Section 201. Title of the Securities.
The title of the Securities of the series established hereby is the
"Premium PHONES - 3% Exchangeable Subordinated Debentures due 2030."
Section 202. Amount.
The aggregate Original Principal Amount of the Debentures which may be
authenticated and delivered under the Indenture is initially limited to
$335,366,000, except for Debentures authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other Debentures
pursuant to Section 2.07, 2.08, 2.09 or 9.04 of the Original Indenture;
provided, however, that the series of Securities established hereby may be
reopened, without the consent of the Holders of Outstanding Debentures, for
issuance of additional Debentures.
Section 203. Registered Securities.
The certificates for the Debentures shall be Registered Securities and
shall be in substantially the forms attached hereto as Exhibit A, and shall bear
the legends as are inscribed thereon.
Section 204. Stated Maturity; Changes to Original Principal Amount or
Adjusted Principal Amount.
(a) The Stated Maturity of the principal of the Debentures shall be March 14,
2030.
(b) Not less than 30 Business Days prior to the Stated Maturity of the principal
of the Debentures, the Company shall issue a press release and provide it to DTC
for dissemination through the DTC broadcast facility, as to whether or not the
Company will deliver, or cause to be delivered, Reference Shares in exchange for
any Debentures submitted for exchange, in
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accordance with Section 209, from the date of such notice through 5:00 p.m.,
New York City time, on the Trading Day next preceding such Stated Maturity.
If Reference Shares are to be delivered in connection with any such exchange,
Debentures validly exchanged during that period, in accordance with
Section 209, will be exchanged for the Reference Shares attributable to such
Debentures, and the Company shall pay at Stated Maturity to Holders that do not
exchange their Debentures an amount, in cash, determined in the same manner
as the Redemption Price is determined in Section 208(a)(ii) (substituting
the term "Stated Maturity" for "Redemption Date" therein), in full payment
for such Debentures. If Reference Shares are not to be delivered in connection
with any such exchange, the exchange right set forth in Section 209 will
terminate as of the 30th Business Day prior to the Stated Maturity of the
principal of the Debentures and the Company shall pay at Stated Maturity to
Holders of Debentures an amount, in cash, determined in the same manner as
the Redemption Price is determined in Section 208(a)(i)(B)
(substituting the term "Stated Maturity" for "Redemption Date" therein), in full
payment for such Debentures. Any notice by the Company as to whether or not it
will deliver Reference Shares in exchange for Debentures pursuant to this
Section 204(b) shall be irrevocable.
(c) The principal amount of each Debenture shall initially equal the Original
Principal Amount. Thereafter, the principal amount of each Debenture, as of any
date of determination, shall equal the Adjusted Principal Amount. In calculating
the Adjusted Principal Amount, (i) the value of any Extraordinary Additional
Distribution shall be subtracted as of the date it is distributed to holders of
the Debentures, and (ii) the amount of each Yield Adjustment shall be subtracted
on the Interest Payment Date to which such Yield Adjustment relates. In no event
will the Adjusted Principal Amount be less than zero.
(d) At least five Business Days prior to the Stated Maturity of the principal of
Debentures, the Company shall deliver an Officers' Certificate to the Trustee
which: (i) sets forth the amount to be paid in accordance with Section 204(b) at
such Stated Maturity for each Debenture and for all Debentures then Outstanding,
(ii) sets forth a reasonably detailed calculation of such amounts, and (iii)
directs the Trustee to adjust its records accordingly and to request the
Depository to adjust its records accordingly. At or prior to 10:00 a.m., New
York City time, on the date of Stated Maturity of the principal of the
Debentures, the Company shall deposit with the Trustee or with a Paying Agent
(or, if the Company is acting as its own Paying Agent, segregate and hold in
trust as provided in Section 3.03 of the Original Indenture) an amount in cash
sufficient to pay, in accordance with Section 204(b), the amount due on all
Debentures that are Outstanding at 5:00 p.m., New York City time, on the date of
such Stated Maturity.
(e) In the event of an acceleration of maturity of the Debentures pursuant to
Section 6.01 of the Original Indenture (as modified by Section 217 hereof),
there shall become immediately due and payable an amount equal to the sum of (1)
the greater of (a) the Adjusted Principal Amount of the Debentures then
Outstanding and (b) the Current Market Value of the Reference Shares
attributable to the Debentures, (2) any accrued and unpaid interest on the
Debentures and (3) subject to Section 211, any Final Period Distribution on the
Debentures, determined as if (i) in the case of an Event of Default specified in
clause (g) or (h) of Section 6.01 of the Original Indenture, the date of such
Event of Default were the Stated Maturity of the
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principal of the Debentures and (ii) in the case of any other Event of Default,
the date of declaration of acceleration were the Stated Maturity of the
principal of the Debentures.
Section 205. Interest.
(a) The Debentures shall bear interest from March 14, 2000 or from the most
recent Interest Payment Date to which interest has been paid or provided for,
payable semiannually on March 14 and September 14 of each year (each, an
"Interest Payment Date"), commencing September 14, 2000, to the Persons in whose
names the Debentures (or one or more Predecessor Securities) are registered at
the close of business on the March 1 or September 1 immediately preceding such
Interest Payment Date. Calculations of interest on each Debenture shall be based
on the Original Principal Amount, without regard to changes in the Adjusted
Principal Amount.
(b) Interest on the Debentures will accrue at the rate of 3% per annum of the
Original Principal Amount, without regard to changes in the Adjusted Principal
Amount, until the principal thereof is paid or made available for payment.
Section 206. Additional Distributions.
(a) The Company shall distribute, or cause to be distributed, as an Additional
Distribution to all Holders of Debentures, any Reference Share Distribution
received by holders of Reference Shares, or the cash value thereof, in
accordance with this Section 206.
(b) In the case of any Regular Cash Dividend, the Company shall pay, to the
Holder of each Debenture, as a Regular Additional Distribution, the amount of
cash received by a holder of the number of Reference Shares attributable to such
Debenture in respect of such Regular Cash Dividend. Such payment shall be made
by the Company on the next Interest Payment Date to Holders of Debentures as of
5:00 p.m., New York City time, on the Regular Record Date for such Interest
Payment Date.
(c) In the case of any Extraordinary Dividend, the Company shall deliver, to the
Holder of each Debenture, as an Extraordinary Additional Distribution, all
dividends and distributions, or the fair market value thereof (determined in
accordance with Section 206(d) or (e)), received by a holder of the number of
Reference Shares attributable to such Debenture in respect of such Extraordinary
Dividend. Any distribution pursuant to this subsection (c) shall be made by the
Company to Holders of Debentures as of a special record date which shall be the
10th Business Day after the date of the payment of the Extraordinary
Distribution by the applicable Reference Company, and shall be distributed to
such Holders on the 10th Business Day following such special record date.
(d) If an Extraordinary Distribution consists of securities or units that are
Marketable Securities (other than securities which are, or become, Reference
Shares), such securities or units will be distributed by the Company to Holders
of the Debentures in accordance with Section 206(c); provided, that the Company
shall not distribute fractional securities or units. In lieu of fractional
securities or units, the Company shall pay the Holders of Debentures an amount
in cash equal to the Closing Price, as of the special record date, of the
security or unit to be distributed multiplied by such fractional interest. For
purposes of determining the existence of fractional interests, all Debentures
held by a Holder shall be considered together (no matter how
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many separate certificates such Holder may have). In the event the Company
is unable to distribute any securities or units as part of an Extraordinary
Additional Distribution because any necessary qualifications or
registrations of such securities or units under applicable state or federal
securities laws cannot be obtained on a timely basis, the Company may instead
deliver, in lieu of such securities or units, cash based on the average of the
Closing Prices of such securities or units over the five Trading Days ending
on the Trading Day next preceding the distribution by the Company of such
Extraordinary Additional Distribution.
(e) If an Extraordinary Distribution consists of cash, assets or property other
than securities or units that are Marketable Securities, the Company shall pay
to Holders of the Debentures an amount of cash equal to the fair market value
thereof; such fair market value to be determined as of the date such
Extraordinary Distribution is made or paid to holders of the applicable
Reference Shares. Such fair market value shall be equal to the amount determined
in good faith by the Board of Directors, unless the Board of Directors
determines in good faith that there is a substantial likelihood that the
aggregate fair market value will be in excess of $100,000,000, in which case
such fair market value shall be determined by a nationally recognized investment
banking or appraisal firm retained by the Company for this purpose. The fair
market value so determined shall be set forth in a Board Resolution or, in the
case of a determination by an investment banking or appraisal firm, an Officers'
Certificate.
(f) At least five Business Days prior to the payment or delivery of an
Extraordinary Additional Distribution by the Company pursuant to Section 206(c),
the Company shall deliver to the Trustee a Board Resolution setting a special
record date for such Extraordinary Additional Distribution and an Officers'
Certificate setting forth: (i) the exact amount of Marketable Securities or cash
to be distributed on or with respect to the Reference Shares attributable to
each Debenture, and (ii) the total amount of Marketable Securities or cash to be
distributed on or with respect to the Reference Shares attributable to all
Debentures that are Outstanding as of such special record date. If any
distribution relates to any assets or other property that is not publicly
traded, then at least five Business Days prior to such distribution, the Company
shall deliver to the Trustee: (A) a Board Resolution establishing the fair
market value of the assets or other property, unless such fair market value is
determined by a nationally recognized investment banking or appraisal firm, in
which case the Company shall deliver to the Trustee the report of such firm and
(B) an Officers' Certificate setting forth (I) the exact amount of cash to be
distributed on or with respect to the Reference Shares attributable to each
Debenture and (II) the total amount of cash to be distributed on or with respect
to the Reference Shares attributable to all Debentures that are Outstanding as
of such special record date in respect of any assets or other property that is
not publicly traded. The Trustee is only responsible for distributing Marketable
Securities in the form of global book entry securities that are DTC eligible. At
or prior to 10:00 a.m., New York City time, on the date an Extraordinary
Additional Distribution is to be made pursuant to Section 206(c), the Company
shall (x) in the case of an Extraordinary Additional Distribution consisting of
cash, deposit with the Trustee or with a Paying Agent an amount of cash equal to
the Extraordinary Additional Distribution to be paid on such date and (y) in the
case of an Extraordinary Additional Distribution consisting of Marketable
Securities, transfer by book-entry to the account of the Trustee or a Paying
Agent at DTC (or any successor Depository) the amount of Marketable Securities
to be distributed in such Extraordinary Additional Distribution on such date.
The Company shall act as its own Paying Agent for any Marketable Securities to
be delivered other than through book-entry. The Company shall issue a
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press release setting forth the amount and composition, per Debenture,
of any Extraordinary Additional Distribution and the Adjusted Principal Amount
thereof, and shall deliver such press release to DTC for dissemination
through the DTC broadcast facility.
Section 207. Registration, Transfer and Exchange.
(a) The principal of and interest on the Debentures shall be payable and the
Debentures may be surrendered or presented for payment, the Debentures may be
surrendered for registration of transfer or exchange, and notices and demands to
or upon the Company in respect of the Debentures and the Indenture may be
served, at the office or agency of the Company maintained for such purposes in
The City of New York, from time to time, and the Company hereby appoints the
Trustee, acting through its office or agency in The City of New York designated
from time to time for such purpose, as its agent for the foregoing purposes;
provided, however, that at the option of the Company payment of interest on the
Debentures may be made by check mailed to the address of the Persons entitled
thereto, as such addresses shall appear in the Security Register; and provided,
further, that (subject to Section 4.02 of the Original Indenture) the Company
may at any time remove the Trustee as its office or agency in The City of New
York designated for the foregoing purposes and may from time to time designate
one or more other offices or agencies for the foregoing purposes and may from
time to time rescind such designations.
Section 208. Redemption of the Debentures.
(a) Optional Redemption. The Debentures will be redeemable at the option of the
Company, in whole or in part at any time or from time to time after March 17,
2004, on at least 30 Business Days (but not more than 60 days) prior notice to
Holders of the Debentures. In the notice of redemption, the Company shall
specify its irrevocable election of one of the following options (each, a
"Redemption Price"):
(i) to terminate Holders' right to exchange, in accordance with Section
209, Debentures called for redemption (but not affecting the exchange
rights of Holders of any Debentures not called for redemption), in
which case (A) no further exchange of such Debentures called for
redemption pursuant to Section 209 will be permitted on or after the
30th Business Day preceding the Redemption Date and (B) on the
Redemption Date, the Company shall pay Holders, for each Debenture to
be redeemed, a Redemption Price, in cash, equal to the sum of (1) the
greater of (a) the Adjusted Principal Amount of such Debenture as of
the Redemption Date and (b) 100% of the Current Market Value of the
Reference Shares attributable to such Debenture, (2) any accrued and
unpaid interest on such Debenture to the Redemption Date and (3)
subject to Section 211, any Final Period Distribution on such
Debenture; or
(ii) to exchange Debentures surrendered at the option of Holders in
accordance with Section 209, for Reference Shares until 5:00 p.m., New
York City time, on the Trading Day next preceding the Redemption Date,
in which case on the Redemption Date the Company shall pay Holders who
do not elect to exchange Debentures for Reference Shares in accordance
with Section 209(c), for each Debenture to be redeemed, a Redemption
Price, in cash, equal to the sum of (1) the Adjusted
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Principal Amount of such Debenture at the Redemption Date, (2) any
accrued and unpaid interest on such Debenture to the Redemption
Date and (3) subject to Section 211, any Final Period Distribution on
such Debenture.
(b) Notices. In case of any redemption, the Company shall deliver an Officers'
Certificate to the Trustee not less than five Business Days prior to the
Redemption Date which sets forth (i) the Redemption Price to be paid for each
Debenture called for redemption on such Redemption Date and (ii) the aggregate
amount payable for all Debentures called for redemption on such Redemption Date.
(c) Interest Accrual to Cease. Once notice of redemption has been given and
funds are irrevocably deposited with the Trustee, interest on the Debentures
will cease to accrue on and after the Redemption Date and all rights of the
Holders of the Debentures called for redemption will cease, except for the right
of Holders to receive the Redemption Price (but without interest on such
Redemption Price) and any right to receive payment pursuant to Section 211.
(d) Payment Failure. In the event that the Company fails to pay any amount due
on redemption of the Debentures on a Redemption Date, interest on the Debentures
called for redemption shall continue to accrue at an annual rate of 3% of the
Original Principal Amount thereof from the date originally set for redemption to
the actual date of payment, and such actual date of payment shall be deemed to
be the Redemption Date for purposes of calculating the amount to be paid to the
Holders of Debentures on redemption, except that the amount of the Final Period
Distribution shall be determined as of the date originally set for redemption.
Section 209. Exchange of the Debentures.
(a) Each Debenture will be exchangeable at the option of the Holder at any time
(except as otherwise provided in subsection (f) below) for the Exchange Market
Value of the Reference Shares attributable to that Debenture. The number of
Reference Shares attributable to each Debenture initially shall be 16.28 shares
of Sprint PCS Stock, subject to adjustment as a result of any Reference Share
Proportionate Reduction or any other adjustment contemplated by the definition
of "Reference Shares."
(b) The Company shall pay 100% of the Exchange Market Value of the Reference
Shares attributable to each Debenture, only in cash, for all exchanges made on
or before the Reference Shares Eligibility Date. On and after the Reference
Shares Eligibility Date, the Company may, at its option, (i) pay 100% of the
Exchange Market Value of the Reference Shares attributable to each Debenture in
cash; (ii) deliver the Reference Shares attributable to such Debenture in
payment of such Exchange Market Value; or (iii) deliver a combination of
Reference Shares and cash. Such payment or delivery will be made as promptly as
practicable, but in any event within ten Trading Days after the date of
determination of the Exchange Market Value. The Company shall notify the
Exchange Agent of its election to pay cash or deliver Reference Shares, or a
combination of the foregoing, by no later than 9:30 a.m., New York City time, on
the Trading Day next following the applicable Exchange Date. The Exchange Agent
shall notify an exchanging Holder of the Company's election under this Section
209(b) prior to 10:00 a.m., New York City time, on the next Trading Day after
the Exchange Date.
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(c) To exchange a Debenture a Holder must (a) in the case of a Debenture held
through the Depository, surrender such Debenture for exchange through book-entry
transfer into the account of the Exchange Agent, transmit an agent's message
requesting such exchange and comply with such other procedures of the Depository
as may be applicable in the case of an exchange and (b) in the case of a
Debenture held in certificated form, (i) complete and manually sign the Notice
of Exchange attached to the Debenture (or complete and sign a facsimile of the
Notice of Exchange) (and attached hereto is Exhibit B) and deliver such Notice
of Exchange to the Exchange Agent, (ii) surrender the Debenture to the Exchange
Agent, (iii) furnish appropriate endorsements and transfer documents, if
required by the Exchange Agent, the Company or the Trustee and (iv) pay any
transfer or similar tax, if required. An exchange shall be deemed to have been
effected at 5:00 p.m., New York City time, on the Exchange Date. The delivery of
a Notice of Exchange or, in the case of book-entry, an agent's message
requesting exchange, shall be irrevocable. A Holder may exchange a portion of
its Debentures only if the portion is $1,000 Original Principal Amount or an
integral multiple thereof. Following the Exchange Date for an exchange of
Debentures, all rights of the Holder with respect to such Debentures shall
cease, except for the right of such Holder to receive the consideration
specified in Section 209(b) (but without interest thereon).
(d) By 10:00 a.m., New York City time, on each Trading Day following receipt by
the Exchange Agent of notification from DTC that DTC has received an agent's
message from a DTC participant electing to exercise its exchange option with
respect to its Debentures, and delivery of such Debentures into the Exchange
Agent's DTC participant account, or following receipt of a complete manually
signed Notice of Exchange and receipt of certificated Debentures from a Holder,
the Exchange Agent shall notify the Company of the principal amount of
Debentures which has been tendered. When the Exchange Market Value has been
determined, the Company shall deliver an Officers' Certificate to the Trustee
setting forth the exact amount to be paid or the amount of Reference Shares to
be delivered to the tendering Holder and shall deposit such amount with the
Exchange Agent (except that if the Company elects to deliver Reference Shares in
certificated form, the Company shall act as its own Paying Agent as to such
shares). Upon receipt of such payment or delivery from the Company, the Exchange
Agent shall pay DTC as soon as practicable or, in the cases of Debentures that
are held in certificated form, as directed by the tendering Holder. Where the
Company acts as its own Paying Agent with respect to certificated Reference
Shares, it shall deliver them (i) as directed by the relevant participants of
the Depositary, as identified by the Depositary, or (ii) to or at the direction
of tendering Holders of Debentures.
(e) In the case of any exchange made during the period from (but excluding) a
Regular Record Date for any Interest Payment Date to (but excluding) such
Interest Payment Date, the Holder shall tender funds equal to the interest and
any Additional Distribution payable on such Interest Payment Date.
(f) The right to exchange Debentures pursuant to this Section 209 shall
terminate at 5:00 p.m., New York City time, (i) in the case of Stated Maturity
of the principal amount of the Debentures, on the Trading Day immediately
preceding such Stated Maturity and (ii) in the case of an optional redemption,
on the Trading Day immediately preceding the Redemption Date. A Holder's right
to exchange Debentures under this Section 209 shall further be subject to
termination by the Company (i) in connection with the payment of the Debentures
at Stated
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Maturity, during the period set forth in the penultimate sentence of Section
206(b) and (ii) in connection with optional redemption, during the period
set forth in clause (i) of Section 208(a), provided, that any such
termination shall only apply to Debentures that have been called for redemption.
(g) If more than $1,000,000 aggregate Original Principal Amount of Debentures
are tendered for exchange on any given date, the Company shall give notice of
such event to the Trustee and the Trustee shall give notice thereof to DTC for
distribution through its broadcast facility.
Section 210. Distributions of Reference Shares or Other Securities.
(a) The Company will pay any and all documentary, stamp, transfer or similar
taxes that may be payable in respect of the transfer and delivery of Reference
Shares or in connection with an Extraordinary Additional Distribution pursuant
hereto; provided, however, that the Company shall not be required to pay any
such tax which may be payable in respect of any transfer involved in delivery of
such property to a name other than that in which the Debentures were registered,
and no such transfer or delivery shall be made unless and until the Person
requesting such transfer has paid to the Company the amount of any such tax, or
has established, to the satisfaction of the Company, that such tax has been
paid.
(b) The Company hereby warrants that upon delivery of any Reference Shares or
any securities in connection with any Extraordinary Additional Distribution
pursuant to this Supplemental Indenture, the Holder of a Debenture shall receive
all rights held by the Company in the securities to be delivered, free and clear
of any and all liens, claims, charges and encumbrances, other than any liens,
claims, charges and encumbrances which may have been placed thereon by the prior
owner thereof prior to the time acquired by the Company. In addition, the
Company further warrants that any securities to be delivered hereunder shall be
free of any transfer restrictions under federal or state securities laws (other
than such as are attributable to any Holder's status as an affiliate of the
issuer of such securities).
Section 211. Balance of Final Period Distribution Payment.
(a) In the case of a Final Period Distribution within the meaning of clause (b)
of the definition of "Final Period Distribution," the Company shall pay such
Final Period Distribution to the Holders of Debentures that have been repaid in
accordance with the first sentence of Section 204(b) or redeemed in accordance
with Section 208(a)(ii), (b), (c) or (d) as of a special record date which shall
be the 10th Business Day after the date of the payment of the relevant
Extraordinary Distribution by the applicable Reference Company; and such payment
shall be distributed on the 10th Business Day following such special record
date. The Company shall give notice regarding such distribution to the Trustee
in accordance with the provisions of Section 206(f).
(b) In the event that the applicable Reference Company fails to make the
Extraordinary Distribution referred to in subsection (a) above at the time or in
the amount expected, the Company shall pursue any claim it has against such
Reference Company, whether as a securityholder or otherwise, on behalf of the
Holders of Debentures. Reasonable costs of
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such actions by the Company may be deducted from the amount of any
Extraordinary Distribution before any distribution is made to Holders of
Debentures pursuant to Section 211(a).
Section 212. Denominations.
The Debentures shall be issued in denominations of $1,000 and integral
multiples in excess thereof.
Section 213. Applicability of Certain Original Indenture Provisions.
(a) Sections 11.01, 11.02 and 11.03 of the Original Indenture, relating to
defeasance and covenant defeasance, shall not be applicable to the Debentures.
(b) Sections 4.08 and 4.09 of the Original Indenture shall not be
applicable to the Debentures.
Section 214. Security Registrar and Paying Agent.
The Trustee shall be the initial Paying Agent and initial transfer
agent for the Debentures (subject to the Company's right (subject to Section
4.02 of the Original Indenture) to remove the Trustee as such Paying Agent
and/or transfer agent and, from time to time, to designate one or more
co-registrars and one or more other Paying Agents and transfer agents and to
rescind from time to time any such designations), and The City of New York is
designated as a Place of Payment for the Debentures.
Section 215. Global Debentures.
(a) The Debentures shall be issued in the form of one or more temporary or
global Debentures. The initial Depository for the global Debentures shall be
DTC, and the depositary arrangements shall be those employed by whoever shall be
the Depositary with respect to the Debentures from time to time.
(b) The Debentures shall be issued in the form of permanent global Debentures in
definitive fully registered form without interest coupons, substantially in the
form of Exhibit A. Each global Debenture shall be deposited on behalf of the
purchasers of the Debentures represented thereby with the custodian for the
Depositary, and registered in the name of a nominee of the Depositary, duly
executed by the Company and authenticated by the Trustee as provided in the
Original Indenture. The aggregate principal amount of a Debenture may from time
to time be increased or decreased by adjustments made on the records of the
custodian for the Depositary or the Depositary or its nominee, as the case may
be.
(c) The global Debentures will be exchangeable for certificated Debentures of
like tenor and terms and of differing authorized denominations aggregating a
like principal amount, only if (i) the Depository notifies the Company that it
is unwilling or unable to continue as Depository for the global Debentures (ii)
the Depository ceases to be a clearing agency under the Securities Exchange Act,
(iii) the Company in its sole discretion determines that the global Debentures
shall be exchangeable for certificated Debentures or (iv) there shall have
occurred and be continuing an Event of Default under the Indenture with respect
to the Debentures. Upon
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such exchange, the certificated Debentures shall be registered in the names
of the beneficial owners of the global Debentures which they have replaced;
such names shall be provided to the Trustee by the relevant participants of the
Depository, as identified by the Depository.
Section 216. Sinking Fund.
The Debentures shall not be subject to any sinking fund or similar
provision and shall not be redeemable at the option of the holder thereof.
Section 217. Amendments to Certain Sections of the Original Indenture.
(a) The amendments to the Original Indenture contained in this Section 217 shall
apply only to the series of Debentures established pursuant to this Second
Supplemental Indenture.
(b) Clause (a) of Section 6.01 of the Original Indenture is hereby amended by
adding the words "or distributions" following the word "interest" on the second
line thereof.
(c) A new clause (c) is hereby added to Section 6.01 of the Original
Indenture and supercedes and replaces clause (c) of the Original Indenture. New
clause (c) shall read as follows:
(c) failure of the Company to comply with its obligations to
deliver cash or Reference Shares or any combination thereof in
exchange for Debentures pursuant to Section 209 of the Second
Supplemental Indenture;
(d) The seventh line of the fourth paragraph of Section 6.01 of the Original
Indenture are hereby amended by adding the words "and distributions" following
the word "interest" in such line.
(e) Section 9.02 of the Original Indenture is hereby further amended by
adding a new clause (x), to read as follows:
(x) reduce the amount of cash or Reference Shares
deliverable upon exchange of the Debentures.
(f) Unless the context otherwise requires, all references to payment of
principal in the Original Indenture shall include the payment of the Maturity
Repayment Amount, and all references to payment of interest shall include
Additional Distributions.
Section 218. Ranking.
The Debentures are, to the extent provided herein and in the Original
Indenture, subordinate and subject in right of payment to the prior payment in
full of all Senior Indebtedness. The Debenture shall rank pari passu with the
PRIZES.
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ARTICLE THREE
MISCELLANEOUS PROVISIONS
The Trustee makes no undertaking or representations in respect of, and
shall not be responsible in any manner whatsoever for and in respect of, the
validity or sufficiency of this Second Supplemental Indenture or the proper
authorization or the due execution hereof by the Company or for or in respect of
the recitals and statements contained herein, all of which recitals and
statements are made solely by the Company.
Except as expressly amended hereby, the Original Indenture shall
continue in full force and effect in accordance with the provisions thereof and
the Original Indenture is in all respects hereby ratified and confirmed. This
Second Supplemental Indenture and all its provisions shall be deemed a part of
the Original Indenture in the manner and to the extent herein and therein
provided.
This Second Supplemental Indenture shall be governed by, and construed
in accordance with, the laws of the State of New York, without regard to
conflicts of laws principles thereof.
This Second Supplemental Indenture may be executed in any number of
counterparts, each of which so executed shall be deemed to be an original, but
all such counterparts shall together constitute but one and the same instrument.
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Exhibit 4.3
THE SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITARY OR A
NOMINEE OF THE DEPOSITARY. UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART
FOR THE INDIVIDUAL DEBT SECURITIES REPRESENTED HEREBY, THIS GLOBAL SECURITY MAY
NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE
DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER
NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A
SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.
UNLESS THIS SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO COX COMMUNICATIONS,
INC. OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL, INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
No. R-1 $275,000,000
CUSIP No. 224044 AW7
Cox Communications, Inc.
Premium PHONES - 3% Exchangeable Subordinated Debentures due 2030
Cox Communications, Inc., a Delaware corporation (hereinafter called
the "Company," which term includes any successor corporation under the Indenture
referred to below), for value received, hereby promises to pay to Cede & Co., or
registered assigns, the amount provided in Section 204 of the Second
Supplemental Indenture referred to herein (such amount being referred to herein
as the Maturity Repayment Amount) on March 14, 2030, and to pay interest on the
Original Principal Amount of this Debenture from March 14, 2000, or from the
most recent date to which interest has been paid or provided for, semiannually
on March 14 and September 14 in each year (each, an "Interest Payment Date"),
commencing September 14, 2000, at the rate of 3% per annum, until the Maturity
Repayment Amount is paid or made available for payment. Interest on this
Debenture shall be calculated on the basis of a 360-day year consisting of
twelve 30-day months. The interest so payable and paid or provided for on any
Interest Payment Date will, as provided in such Indenture, be paid to the Person
in whose name this Debenture (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest, which shall be the March 1 or September 1 (whether or not a Business
Day), as the case may be, immediately preceding such Interest Payment Date. Any
such interest which is payable, but is not paid or provided for, on any Interest
Payment Date shall forthwith cease to be payable to the registered Holder hereof
on the relevant Regular Record Date by virtue of having been such Holder, and
may be paid to the Person in whose name this Debenture (or one or more
Predecessor Securities) is registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest to be fixed by the
Company, notice whereof shall be given to
<PAGE>
the Holders of Debentures not less than 10 days prior to such Special Record
Date, or may be paid at any time in any other lawful manner not inconsistent
with the requirements of any securities exchange on which the Debentures may be
listed, and upon such notice as may be required by such exchange, all as more
fully provided in such Indenture.
Payment of the Maturity Repayment Amount and the interest on this
Debenture will be made at the office or agency of the Company maintained for
that purpose in The City of New York, in such coin or currency of the United
States of America as at the time of payment is legal tender for payment of
public and private debts; provided, however, that, at the option of the Company,
interest may be paid by check mailed to the address of the Person entitled
thereto as such address shall appear in the Security Register; provided,
further, that payment to DTC or any successor Depository may be made by wire
transfer to the account designated by DTC or such successor Depository in
writing.
This Debenture is one of a duly authorized issue of securities of the
Company (herein called the "Debentures") issued and to be issued in one or more
series under an Indenture dated as of June 27, 1995 (the "Original Indenture,"
and together with the Second Supplemental Indenture referred to below and all
other indentures supplemental thereto, the "Indenture") between the Company and
The Bank of New York, as Trustee (the "Trustee", which term includes any
successor trustee under the Indenture), to which Indenture and all indentures
supplemental thereto reference is hereby made for a statement of the respective
rights, limitations of rights, duties and immunities thereunder of the Company,
the Trustee and the Holders of the Debentures, and of the terms upon which the
Debentures are, and are to be, authenticated and delivered. This Debenture is
one of the series designated on the face hereof, initially limited (subject to
exceptions provided in the Indenture) to the aggregate Original Principal Amount
specified in the Second Supplemental Indenture between the Company and the
Trustee, dated as of March 14, 2000, establishing the terms of the Debentures
pursuant to the Indenture (the "Second Supplemental Indenture").
The Debentures are, to the extent provided herein, in the Indenture and
in the Second Supplemental Indenture, subordinate and subject in right of
payment to the prior payment in full of all Senior Indebtedness (as defined in
the Second Supplemental Indenture), and each Holder of this Debenture by
accepting the same, agrees to and shall be bound by the provisions hereof, of
the Second Supplemental Indenture and of Article XII of the Original Indenture.
The Debentures are redeemable at the option of the Company, in whole or
in part at any time or from time to time on or after March 17, 2004, on the
terms set forth in Section 208(a) of the Second Supplemental Indenture.
The Debentures are exchangeable at the option of the Holders thereof,
on the terms set forth in Section 209 of the Second Supplemental Indenture.
If an Event of Default (as defined in the Indenture, including the
amendments thereto in the Second Supplemental Indenture) with respect to the
Debentures shall occur and be continuing, the principal of the Debentures may be
declared due and payable in the manner and with the effect provided in the
Indenture.
<PAGE>
The Original Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Company and the rights of the Holders of the Securities of
each series issued under the Indenture at any time by the Company and the
Trustee with the consent of the Holders of not less than a majority in aggregate
principal amount of the Securities at the time Outstanding of each series
affected thereby. The Original Indenture also contains provisions permitting the
Holders of specified percentages in aggregate principal amount of the Securities
of any series at the time Outstanding, on behalf of the Holders of all
Securities of such series, to waive compliance by the Company with certain
provisions of the Indenture and certain past defaults under the Indenture and
their consequences. Any such consent or waiver by the Holder of this Debenture
shall be conclusive and binding upon such Holder and upon all future Holders of
this Debenture and of any Debentures issued upon the registration of transfer
hereof or in exchange herefor or in lieu hereof, whether or not notation of such
consent or waiver is made upon this Debenture or such Debentures.
No reference herein to the Indenture and no provision of this Debenture
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the Maturity Repayment Amount and interest
on this Debenture, at the times, place and rate, and in the coin or currency,
herein and in the Indenture prescribed.
The Original Indenture contains provisions for defeasance of (i) the
entire indebtedness of the Debentures and (ii) certain covenants and Events of
Default with respect to the Debentures, in each case upon compliance with
certain conditions set forth therein, which provisions shall not apply to the
Debentures. In addition, provisions for certain covenants specified in Sections
4.08 and 4.09 of the Original Indenture shall not be applicable to the
Debentures.
As provided in the Indenture and subject to certain limitations set
forth therein and in this Debenture, the transfer of this Debenture may be
registered on the Security Register upon surrender of this Debenture for
registration of transfer at the office or agency of the Company maintained for
the purpose in any place where the Maturity Repayment Amount and interest on
this Debenture are payable, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Company and the Security
Registrar duly executed by, the Holder hereof or by his attorney duly authorized
in writing, and thereupon one or more new Debentures of this series and of like
tenor, of authorized denominations and for the same aggregate Original Principal
Amount, will be issued to the designated transferee or transferees.
The Debentures are issuable only in registered form without coupons in
the denominations specified in the Second Supplemental Indenture establishing
the terms of the Debentures, all as more fully provided in the Indenture. As
provided in the Indenture, and subject to certain limitations set forth in the
Indenture and in this Debenture, the Debentures are exchangeable for a like
aggregate Original Principal Amount of Debentures of this series in different
authorized denominations, as requested by the Holders surrendering the same.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith, other than
in certain cases provided in the Indenture.
<PAGE>
Prior to due presentment of this Debenture for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this Debenture is registered as the owner
hereof for all purposes, whether or not this Debenture be overdue, and neither
the Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
This Debenture shall be governed by and construed in accordance with
the laws of the State of New York.
All terms used in this Debenture which are defined in the Original
Indenture or the Second Supplemental Indenture shall have the meanings assigned
to them in the Original Indenture or the Second Supplemental Indenture, as
applicable.
Unless the certificate of authentication hereon has been executed by or
on behalf of the Trustee under the Indenture by the manual signature of one of
its authorized signatories, this Debenture shall not be entitled to any benefits
under the Indenture or be valid or obligatory for any purpose.
<PAGE>
CERTIFICATE OF TRANSFER
To transfer or assign this Debenture, fill in the form below:
I or we transfer and assign this Debenture to
- --------------------------------------------------------------------------------
(Insert assignee's tax I.D. number)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Print or Type assignee's name, address and zip code)
and irrevocably appoint ________________ agent to transfer this Debenture on the
books of the Company. The agent may substitute another to act for him.
Date: Your signature:
------------------------ --------------------
<PAGE>
SCHEDULE A
SCHEDULE OF EXCHANGES
The following exchanges of Debentures represented by this Debenture have been
made:
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Original Principal Change in Original
Amount of this Principal Amount of
Debenture as of March Date exchange this Debenture due to
14, 2000 Made Exchange
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$---------
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Original Principal
Amount of this
Debenture following
such exchange Notation made by
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<PAGE>
NOTICE OF EXCHANGE
ANNEX A
The Bank of New York
101 Barclay Street
New York, NY 10286
Re: Premium PHONES - 3% Exchangeable Subordinated
Debentures due 2030 (the "Debentures")
-----------------------------------------------------
Gentlemen:
The undersigned Holder of Debentures hereby gives notice of its
intention to exchange $______________ aggregate Original Principal Amount of
Debentures. This notice, once delivered to the Exchange Agent, is irrevocable.
If Reference Shares or any other securities are to be delivered as part
of this exchange, they should be delivered to:
If cash is to be paid as part of this exchange, it should be sent to:
Any communication to the Holder in connection with this exchange should
be directed to:
[Holder's address]
Very truly yours,
[Name of Holder]
By:
------------------------------
Name:
Title:
Date of Notice of Exchange:
B-1
