SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
Current Report Pursuant to Section 13 or 15(d) of the Securities Exchange Act
of 1934
Date of Report (Date of earliest event reported): April 19, 2000
Cox Communications, Inc.
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(Exact name of Registrant as specified in its charter)
Delaware
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(State or other jurisdiction of incorporation or organization)
1-6590 58-2112288
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(Commission File Number) (I.R.S. Employer Identification Number)
1400 Lake Hearn Drive
Atlanta, Georgia 30319
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(Address of principal executive offices) (Zip Code)
(404) 843-5000
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(Registrant's telephone number, including area code)
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Item 5. Other Events.
This Current Report on Form 8-K is being filed to incorporate by
reference certain documents into Cox's registration statement on Form S-3
(Registration No. 333-82575) in connection with the sale by Cox on April 19,
2000 of $1,643,617,000 aggregate original principal amount at maturity of
Exchangeable Subordinated Discount Debentures due 2020 ( the "Discount
Debentures"). A copy of Cox's press release announcing consummation of the
Discount Debenture offering is being filed as exhibit 99.1 to this report. For
information about the Discount Debentures and the offering of the Discount
Debentures, see Cox's final prospectus supplement, dated April 13, 2000, as
supplemented and filed with the SEC pursuant to Rule 424(b)(5) on April 18,
2000.
The Discount Debentures are listed on the New York Stock Exchange under
the trading symbol "COX DC20."
Item 7. Financial Statements and Exhibits
(a) Not applicable.
(b) Not applicable.
(c) Exhibits:
1.1 Purchase Agreement, dated as of April 13,
2000, among Cox Communications, Inc., Credit
Suisse First Boston Corporation and Merrill
Lynch & Co., Merrill Lynch, Pierce, Fenner &
Smith Incorporated relating to the issuance
and sale of the Discount Debentures.
4.1 Indenture, dated as of June 27, 1995,
between Cox Communications, Inc. and the
Bank of New York, as trustee (incorporated
by reference to Cox's registration statement
on Form S-1, file no. 33-99116).
4.2 Third Supplemental Indenture, dated as of
April 19, 2000, between Cox Communications,
Inc. and the Bank of New York, as trustee.
4.3 Form of Discount Debentures (included as an
exhibit to the Third Supplemental Indenture).
99.1 Press Release dated April 20, 2000.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
COX COMMUNICATIONS, INC.
Dated: April 24, 2000 By: /s/ Andrew A. Merdek
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Andrew A. Merdek
Secretary
Exhibit 1.1
COX COMMUNICATIONS, INC.
(a Delaware corporation)
Exchangeable Subordinated Discount Debentures due 2020
(Exchangeable for Shares of Sprint PCS Stock or Cash with an Equal Value)
PURCHASE AGREEMENT
Dated: April 13, 2000
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Table of Contents
SECTION 1. Representations and Warranties......................2
(a) Representations and Warranties by the Company....................2
(i) Compliance with Registration Requirements...........2
(ii) Incorporated Documents..............................3
(iii) Independent Accountants.............................4
(iv) Financial Statements................................4
(v) No Material Adverse Change in Business..............4
(vi) Good Standing of the Company........................5
(vii) Good Standing of Subsidiaries.......................5
(viii) Capitalization......................................5
(ix) Authorization of Agreement..........................5
(x) Authorization of the Indenture......................5
(xi) Authorization of Securities.........................6
(xii) Description of the Securities and the Indenture.....6
(xiii) Absence of Defaults and Conflicts...................6
(xiv) Absence of Labor Dispute............................7
(xv) Absence of Proceedings..............................7
(xvi) Accuracy of Exhibits................................7
(xvii) Possession of Intellectual Property.................7
(xviii) Absence of Further Requirements.....................8
(xix) Possession of Licenses and Permits..................8
(xx) Title to Property...................................8
(xxi) Investment Company Act..............................8
(xxii) Environmental Laws..................................9
(b) Officers' Certificates...........................................9
SECTION 2. Sale and Delivery to Underwriters; Closing..........9
(a) Securities. 9
(b) Payment. ....................................................9
(c) Denominations; Registration.....................................10
SECTION 3. Covenants of the Company...........................10
(a) Compliance with Securities Regulations and Commission
Requests................................................10
(b) Filing of Amendments....................................11
(c) Delivery of Registration Statements.....................11
(d) Delivery of Prospectus..................................11
(e) Continued Compliance with Securities Laws...............11
(f) Blue Sky Qualifications.................................12
(g) Rule 158................................................12
(h) Use of Proceeds.........................................12
(i) Listing.................................................12
(j) Restriction on Sale of Securities.......................12
(k) Reporting Requirements..................................13
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SECTION 4. Payment of Expenses................................13
(a) Expenses................................................13
(b) Termination of Agreement................................13
SECTION 5. Conditions of Underwriters' Obligations............13
(a) Effectiveness of Registration Statement.................13
(b) Opinion of Counsel for Company..........................14
(c) Opinion of Counsel for Underwriters.....................14
(d) Officers' Certificate...................................14
(e) Accountant's Comfort Letters............................14
(f) Bring-Down Comfort Letters..............................15
(g) Maintenance of Rating...................................15
(h) Conditions to Purchase of Option Securities.............15
(i) Additional Documents....................................16
(j) Termination of Agreement................................16
SECTION 6. Indemnification....................................16
(a) Indemnification of Underwriters.................................16
(b) Indemnification of Company, Directors and Officers..............17
(c) Actions against Parties; Notification...........................17
(d) Settlement without Consent if Failure to Reimburse..............18
SECTION 7. Contribution.......................................18
SECTION 8. Representations, Warranties and Agreements to Survive
Delivery...........................................19
SECTION 9. Termination of Agreement...........................20
(a) Termination; General............................................20
(b) Liabilities. ...................................................20
SECTION 10. Default by One of the Underwriters.................21
SECTION 11. Notices............................................21
SECTION 12. Parties............................................21
SECTION 13. Governing Law And Time.............................22
SECTION 14. Effect of Headings.................................22
SECTION 15. Counterparts.......................................22
SCHEDULES
Schedule A - List of Underwriters...............................Sch A-1
Schedule B - Pricing Information................................Sch B-1
Schedule C - List of Subsidiaries...............................Sch C-1
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EXHIBITS
Exhibit A - Form of Opinion of Company's Counsel....................A-1
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COX COMMUNICATIONS, INC.
(a Delaware corporation)
Exchangeable Subordinated Discount Debentures due 2020
(Exchangeable for Shares of Sprint PCS Stock or Cash with an Equal Value)
PURCHASE AGREEMENT
April 13, 2000
CREDIT SUISSE FIRST BOSTON CORPORATION
Eleven Madison Avenue
New York, New York 10010
MERRILL LYNCH & CO
Merrill Lynch, Pierce, Fenner & Smith Incorporated
Incorporated
North Tower
World Financial Center
New York, New York 10281
Ladies and Gentlemen:
Cox Communications, Inc., a Delaware corporation (the "Company"),
confirms its agreement with Credit Suisse First Boston Corporation and Merrill
Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated (the
"Underwriters"), with respect to the issue and sale by the Company and the
purchase by the Underwriters of $1,643,617,000 aggregate original principal
amount at maturity of the Company's Exchangeable Subordinated Discount
Debentures due 2020 (the "Initial Securities") and all or any part of the
$234,802,000 aggregate original principal amount at maturity of the Exchangeable
Subordinated Discount Debentures due 2020 subject to the option described in
Section 2(b) hereof (the "Option Securities"). The Initial Securities and the
Option Securities are collectively referred to as the "Securities." The
Securities are to be issued pursuant to an indenture, dated as of June 27, 1995,
between the Company and The Bank of New York, as trustee (the "Trustee"), as
supplemented by the Third Supplemental Indenture, dated as of April 19, 2000,
between the Company and the Trustee (the indenture, as so supplemented, the
"Indenture").
The Company understands that the Underwriters propose to make a public
offering of the Securities as soon as the Underwriters deem advisable after this
Agreement has been executed and delivered.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (Nos. 333-82575, 333-82575-01
and 333-82575-02) and pre-effective amendment nos. 1, 2 and 3 thereto for the
registration of certain securities, including the Securities, under the
Securities Act of 1933, as amended (the "1933
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Act"), including the related preliminary prospectus or prospectuses, and the
offering thereof from time to time in accordance with Rule 415 of the rules and
regulations of the Commission under the 1933 Act (the "1933 Act Regulations").
Such registration statement has been declared effective by the Commission, and
the Indenture has been duly qualified under the Trust Indenture Act of 1939, as
amended (the "1939 Act"). Such registration statement, including the exhibits
and schedules thereto, if any, in the form in which it became effective, is
herein called the "Registration Statement"; and the final base prospectus
contained in the Registration Statement and the final prospectus supplement
relating to the offering of the Securities, in the form first furnished to the
Underwriters by the Company for use in connection with the offering of the
Securities, are collectively referred to herein as the "Prospectus"; provided,
however, that all references to the "Registration Statement" and the
"Prospectus" shall also be deemed to include all documents incorporated therein
by reference pursuant to the Securities Exchange Act of 1934, as amended (the
"1934 Act"), prior to the execution and delivery of this Agreement; and
provided, further, that if the Company files a registration statement with the
Commission pursuant to Section 462(b) of the 1933 Act Regulations (the "Rule
462(b) Registration Statement"), then after such filing, all references to
"Registration Statement" shall also be deemed to include the Rule 462(b)
Registration Statement. A "preliminary prospectus" shall be deemed to refer to
any prospectus used in connection with the offer and sale of the Securities that
omitted information to be included upon pricing in a form of prospectus filed
with the Commission pursuant to Rule 424(b) of the 1933 Act Regulations and was
used after the Registration Statement became effective but prior to the
execution and delivery of this Agreement. For purposes of this Agreement, all
references to the Registration Statement, any preliminary prospectus, the
Prospectus or any amendment or supplement to any of the foregoing shall be
deemed to include the copy filed with the Commission pursuant to its Electronic
Data Gathering, Analysis and Retrieval system ("EDGAR").
All references in this Agreement to financial statements and schedules
and other information which is "contained," "included" or "stated" in the
Registration Statement, any preliminary prospectus or the Prospectus (or other
references of like import) shall be deemed to mean and include all such
financial statements and schedules and other information which is incorporated
by reference in the Registration Statement, any preliminary prospectus or the
Prospectus, as the case may be; and all references in this Agreement to
amendments or supplements to the Registration Statement, any preliminary
prospectus or the Prospectus shall be deemed to mean and include the filing of
any document under the 1934 Act which is incorporated by reference in the
Registration Statement, such preliminary prospectus or the Prospectus, as the
case may be.
SECTION 1.........Representations and Warranties.
(a) Representations and Warranties by the Company. The Company represents and
warrants to the Underwriters as of the date hereof and as of the Closing Time
(as defined in Section 2(b) hereof) (in each case, a "Representation Date"), and
agrees with the Underwriters, as follows:
(i) Compliance with Registration Requirements. The Company meets the
requirements for use of Form S-3 under the 1933 Act. Each of the
Registration Statement and any Rule 462(b) Registration Statement has
become effective under the 1933 Act and
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no stop order suspending the effectiveness of the Registration
Statement or any Rule 462(b) Registration Statement has been issued
under the 1933 Act and no proceedings for that purpose have been
instituted or are pending or, to the knowledge of the Company, are
contemplated by the Commission, and any request on the part of the
Commission for additional information has been complied with.
At the respective times the Registration Statement, any Rule
462(b) Registration Statement and any post-effective amendments thereto
became effective and at each Representation Date, the Registration
Statement, the Rule 462(b) Registration Statement and any amendments
thereto complied and will comply in all material respects with the
requirements of the 1933 Act and the 1933 Act Regulations and the 1939
Act and the rules and regulations of the Commission under the 1939 Act
(the "1939 Act Regulations"), and did not and will not contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading. Neither the Prospectus nor any amendments or
supplements thereto, at the time the Prospectus or any amendments or
supplements thereto were issued and at the Closing Time, included or
will include an untrue statement of a material fact or omitted or will
omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading. The representations and warranties in this subsection
shall not apply to statements in or omissions from the Registration
Statement (or any amendment thereto) or the Prospectus (or any
amendment or supplement thereto) made in reliance upon and in
conformity with information furnished to the Company in writing by any
Underwriter expressly for use in the Registration Statement (or such
amendment thereto) or the Prospectus (or such amendment or supplement
thereto).
Each preliminary prospectus and the prospectus filed as part
of the Registration Statement as originally filed or as part of any
amendment thereto, or filed pursuant to Rule 424 under the 1933 Act,
complied when so filed in all material respects with the 1933 Act
Regulations and each preliminary prospectus and the Prospectus
delivered to the Underwriters for use in connection with this offering
was identical in all material respects to the electronically
transmitted copies thereof filed with the Commission pursuant to EDGAR,
except to the extent permitted by Regulation S-T.
(ii) Incorporated Documents. The documents incorporated or deemed to be
incorporated by reference in the Registration Statement and the
Prospectus, when they became effective or at the time they were or
hereafter are filed with the Commission, complied and will comply in
all material respects with the requirements of the 1933 Act and the
1933 Act Regulations or the 1934 Act and the rules and regulations of
the Commission thereunder (the "1934 Act Regulations"), as applicable,
and, when read together with the other information in the Prospectus,
at the time the Registration Statement became effective, at the time
the Prospectus was issued and at Closing Time, did not and will not
contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading.
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(iii) Independent Accountants. The accountants who certified the financial
statements and supporting schedules of the Company and its
subsidiaries, of Cox Communications PCS, L.P. ("PCS") and its
subsidiaries and of TCA Cable TV, Inc. ("TCA") and its subsidiaries
included in the Registration Statement and the Prospectus are
independent public accountants with respect to the Company and its
subsidiaries as required by the 1933 Act and the 1933 Act Regulations.
(iv) Financial Statements. The financial statements of the Company
included in the Registration Statement and the Prospectus, together
with the related schedules and notes, present fairly the financial
position of the Company and its consolidated subsidiaries at the
dates indicated and the statement of operations, stockholders' equity
and cash flows of the Company and its consolidated subsidiaries for
the periods specified; said financial statements have been prepared
in conformity with generally accepted accounting principles ("GAAP")
applied on a consistent basis throughout the periods involved. The
financial statements of PCS included in the Registration Statement
and the Prospectus, together with the related schedules and notes,
present fairly the financial position of PCS and its consolidated
subsidiaries at the dates indicated and the statement of operations,
stockholders' equity and cash flows of PCS and its consolidated
subsidiaries for the periods specified; said financial statements
have been prepared in conformity with GAAP applied on a consistent
basis throughout the periods involved. The financial statements of
TCA included in the Registration Statement and the Prospectus,
together with the related schedules and notes, present fairly the
financial position of TCA and its consolidated subsidiaries at the
date indicated and the statement of operations, stockholders' equity
and cash flows of TCA and its subsidiaries for the period specified;
said financial statements have been prepared in conformity with GAAP.
The supporting schedules, if any, included in the Registration
Statement and the Prospectus present fairly in accordance with GAAP
the information required to be stated therein. The pro forma
financial statements of the Company and its consolidated subsidiaries
and the related notes thereto included in the Registration Statement
and the Prospectus present fairly the information shown therein, have
been prepared in accordance with the Commission's rules and guidelines
with respect to pro forma financial statements and have been properly
compiled on the bases described therein, and the assumptions used in
the preparation thereof are reasonable and the adjustments used
therein are appropriate to give effect to the transactions and
circumstances referred to therein.
(v) No Material Adverse Change in Business. Since the respective dates
as of which information is given in the Registration Statement and
the Prospectus, except as otherwise stated therein, (A) there has
been no material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business
(a "Material Adverse Effect"), (B) there have been no transactions
entered into by the Company or any of its subsidiaries, other than
those in the ordinary course of business, which are material with
respect to the Company and its subsidiaries considered as one
enterprise and (C) there has been no dividend or distribution of any
kind declared, paid or made by the Company on any class of its capital
stock.
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(vi) Good Standing of the Company. The Company has been duly organized and
is validly existing as a corporation in good standing under the laws of
the State of Delaware and has corporate power and authority to own,
lease and operate its properties and to conduct its business as
described in the Prospectus and to enter into and perform its
obligations under this Agreement; and the Company is duly qualified as
a foreign corporation to transact business and is in good standing in
each other jurisdiction in which such qualification is required,
whether by reason of the ownership or leasing of property or the
conduct of business, except where the failure so to qualify or to be in
good standing would not result in a Material Adverse Effect.
(vii) Good Standing of Subsidiaries. Each "significant subsidiary" of
the Company (as such term is defined in Rule 1-02 of Regulation S-X)
(each a "Subsidiary" and, collectively, the "Subsidiaries") has been
duly organized and is validly existing as a corporation or limited
liability company in good standing under the laws of the jurisdiction
of its incorporation or organization, as the case may be, has
corporate or other power and authority to own, lease and operate its
properties and to conduct its business as described in the Prospectus
and is duly qualified as a foreign corporation to transact business
and is in good standing in each jurisdiction in which such
qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the
failure so to qualify or to be in good standing would not result in a
Material Adverse Effect; except as otherwise disclosed in the
Registration Statement, all of the issued and outstanding capital
stock of each such Subsidiary owned by the Company, directly or
through subsidiaries, has been duly authorized and validly issued,
is fully paid and non-assessable and is owned free and clear of any
security interest, mortgage, pledge, lien, encumbrance, claim or
equity; none of the outstanding shares of capital stock of any
Subsidiary was issued in violation of the preemptive or similar rights
of any securityholder or such Subsidiary. The only subsidiaries of
the Company are (a) the subsidiaries listed on Schedule C hereto and
(b) certain other subsidiaries which, considered in the aggregate as
a single Subsidiary, do not constitute a "significant subsidiary" as
defined in Rule 1-02 of Regulation S-X.
(viii) Capitalization. The shares of outstanding capital stock of the Company
have been duly authorized and validly issued and are fully paid and
non-assessable; none of the outstanding shares of capital stock of the
Company was issued in violation of the preemptive or other similar
rights of any securityholder of the Company.
(ix) Authorization of Agreement. This Agreement has been duly authorized,
executed and delivered by the Company.
(x) Authorization of the Indenture. The Indenture has been duly authorized,
executed and delivered by the Company and, assuming due authorization,
execution and delivery by the Trustee, constitutes a valid and binding
agreement of the Company, enforceable against the Company in accordance
with its terms, except as the enforcement thereof may be limited by
bankruptcy, insolvency (including, without limitation, all laws
relating to fraudulent transfers), reorganization, moratorium or
similar laws affecting enforcement of creditors' rights generally and
except as enforcement thereof is subject to general principles of
equity (regardless of whether enforcement is considered in a
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proceeding in equity or at law). The Indenture has been duly qualified
under the
1939 Act.
(xi) Authorization of Securities. The Securities have been duly
authorized by the Company for issuance and sale and, at the Closing
Time, will have been duly executed by the Company and, when
authenticated, issued and delivered in the manner provided for in
the Indenture and delivered against payment of the purchase price
therefor as provided in this Agreement, will constitute valid and
binding obligations of the Company, enforceable against the Company
in accordance with their terms, except as the enforcement thereof may
be limited by bankruptcy, insolvency (including, without limitation,
all laws relating to fraudulent transfers), reorganization,
moratorium or similar laws affecting enforcement of creditors' rights
generally and except as enforcement thereof is subject to general
principles of equity (regardless of whether enforcement is
considered in a proceeding in equity or at law). The Securities will
be in the form contemplated by, and each registered holder thereof
will be entitled to the benefits of, the Indenture.
(xii) Description of the Securities and the Indenture. The Securities and the
Indenture as of each Representation Date, conform and will conform, as
applicable, in all material respects to the respective statements
relating thereto contained in the Prospectus and will be in
substantially the respective forms filed or incorporated by reference,
as the case may be, as exhibits to the Registration Statement.
(xiii) Absence of Defaults and Conflicts. Neither the Company nor any of its
subsidiaries is in violation of its charter or by-laws or other constitutive
documents or in default in the performance or observance of any obligation,
agreement, covenant or condition contained in any contract, indenture, mortgage,
deed of trust, loan or credit agreement, note, lease or other agreement or
instrument to which the Company or any of its subsidiaries is a party or by
which it or any of them may be bound, or to which any of the property or assets
of the Company or any of its subsidiaries is subject (collectively, "Agreements
and Instruments") except for such defaults that would not result in a Material
Adverse Effect; and the execution, delivery and performance by the Company of
this Agreement, the Indenture and the Securities and the consummation of the
transactions contemplated in this Agreement and in the Registration Statement
(including the issuance and sale of the Securities and the use of the proceeds
from the sale of the Securities as described in the Prospectus under the caption
"Use of Proceeds") and compliance by the Company with its obligations under this
Agreement and under the Indenture and the Securities do not and will not,
whether with or without the giving of notice or passage of time or both,
conflict with or constitute a breach of, or default or Repayment Event (as
defined below) under, or result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of the Company or any of its
subsidiaries pursuant to, the Agreements and Instruments (except for such
conflicts, breaches or defaults or liens, charges or encumbrances that would not
result in a Material Adverse Effect), nor will such action result in any
violation of the provisions of the charter or by-laws or other constitutive
documents of the Company or any of its subsidiaries or any applicable law,
statute, rule, regulation, judgment, order, writ or decree of any government,
government instrumentality or court, domestic or foreign
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having jurisdiction over the Company or any of its subsidiaries or any of their
assets, properties or operations. As used herein, a "Repayment Event" means any
event or condition which gives the holder of any note, debenture or other
evidence of indebtedness (or any person acting on such holder's behalf) the
right to require the repurchase, redemption or repayment of all or a portion of
such indebtedness by the Company or any of its subsidiaries.
(xiv) Absence of Labor Dispute. No labor dispute with the employees of the
Company or any of its subsidiaries exists or, to the knowledge of the
Company, is imminent which, individually or in the aggregate, may
reasonably be expected to result in a Material Adverse Effect.
(xv) Absence of Proceedings. There is no action, suit, proceeding, inquiry or
investigation before or brought by any court or governmental agency or body,
domestic or foreign, now pending, or, to the knowledge of the Company,
threatened, against or affecting the Company or any of its subsidiaries, which
is required to be disclosed in the Registration Statement (other than as
disclosed therein), or which, individually or in the aggregate, might reasonably
be expected to result in a Material Adverse Effect, or which, individually or in
the aggregate, might reasonably be expected to materially and adversely affect
the properties or assets thereof or the consummation of the transactions
contemplated in this Agreement or the performance by the Company of its
obligations hereunder; the aggregate of all pending legal or governmental
proceedings to which the Company or any of its subsidiaries is a party or of
which any of their respective property or assets is the subject which are not
described in the Registration Statement, including ordinary routine litigation
incidental to the business, could not reasonably be expected to result in a
Material Adverse Effect.
(xvi) Accuracy of Exhibits. There are no contracts or documents which are
required to be described in the Registration Statement, the Prospectus
or the documents incorporated by reference therein or to be filed as
exhibits thereto which have not been so described and filed as
required.
(xvii) Possession of Intellectual Property. Except as disclosed in the
Prospectus, the Company and its subsidiaries own or possess, or can acquire on
reasonable terms, adequate patents, patent rights, licenses, inventions,
copyrights, know-how (including trade secrets and other unpatented and/or
unpatentable proprietary or confidential information, systems or procedures),
trademarks, service marks, trade names or other intellectual property
(collectively, "Intellectual Property") necessary to carry on the business now
operated by them, other than those the absence of which would not have a
Material Adverse Effect, and neither the Company nor any of its subsidiaries has
received any notice or is otherwise aware of any infringement of or conflict
with asserted rights of others with respect to any Intellectual Property or of
any facts or circumstances which would render any Intellectual Property invalid
or inadequate to protect the interest of the Company or any of its subsidiaries
therein, and which infringement or conflict (if the subject of any unfavorable
decision, ruling or finding) or invalidity or inadequacy, singly or in the
aggregate, would result in a Material Adverse Effect.
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(xviii) Absence of Further Requirements. No filing with, or authorization,
approval, consent, license, order, registration, qualification or
decree of, any court or governmental authority or agency is necessary
or required for the performance by the Company of its obligations
hereunder, in connection with the offering, issuance or sale of the
Securities under this Agreement or the consummation of the transactions
contemplated by this Agreement or for the due execution, delivery or
performance of the Indenture by the Company, except such as have been
already obtained or as may be required under the 1933 Act or the 1933
Act Regulations or state securities laws, the laws of a foreign
jurisdiction or the by-laws and rules of the NASD and except for the
qualification of the Indenture under the 1939 Act.
(xix) Possession of Licenses and Permits. The Company and its subsidiaries
possess such permits, licenses, approvals, consents and other authorizations
(collectively, "Governmental Licenses") issued by the appropriate federal,
state, local or foreign regulatory agencies or bodies necessary to conduct the
business now operated by them other than those the absence of which would not
have a Material Adverse Effect; the Company and its subsidiaries are in
compliance with the terms and conditions of all such Governmental Licenses,
except where the failure so to comply would not, singly or in the aggregate,
have a Material Adverse Effect; all of the Governmental Licenses are valid and
in full force and effect, except when the invalidity of such Governmental
Licenses or the failure of such Governmental Licenses to be in full force and
effect would not have a Material Adverse Effect; and neither the Company nor any
of its subsidiaries has received any notice of proceedings relating to the
revocation or modification of any such Governmental Licenses which, singly or in
the aggregate, if the subject of an unfavorable decision, ruling or finding,
would result in a Material Adverse Effect.
(xx) Title to Property. The Company and its subsidiaries have good and
marketable title to all material real property owned by the Company and its
subsidiaries and good title to all other properties owned by them, in each case,
free and clear of all mortgages, pledges, liens, security interests, claims,
restrictions or encumbrances of any kind except such as (a) are described in the
Prospectus or (b) do not, singly or in the aggregate, materially affect the
value of such property and do not interfere with the use made and proposed to be
made of such property by the Company or any of its subsidiaries; and all of the
leases and subleases material to the business of the Company and its
subsidiaries, considered as one enterprise, and under which the Company or any
of its subsidiaries holds properties described in the Prospectus, are in full
force and effect, and neither the Company nor any subsidiary has any notice of
any material claim of any sort that has been asserted by anyone adverse to the
rights of the Company or any subsidiary under any of the leases or subleases
mentioned above, or affecting or questioning the rights of the Company or such
subsidiary to the continued possession of the leased or subleased premises under
any such lease or sublease.
(xxi) Investment Company Act. The Company is not, and upon the issuance and
sale of the Securities as herein contemplated and the application of
the net proceeds therefrom as described in the Prospectus will not be,
an "investment company" as such term is defined in the Investment
Company Act of 1940, as amended (the "1940 Act").
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(xxii) Environmental Laws. Except as described in the Registration Statement and
except as would not, singly or in the aggregate, result in a Material Adverse
Effect, (A) neither the Company nor any of its subsidiaries is in violation of
any federal, state, local or foreign statute, law, rule, regulation, ordinance,
code, policy or rule of common law or any judicial or administrative
interpretation thereof, including any judicial or administrative order, consent,
decree or judgment, relating to pollution or protection of human health, the
environment (including, without limitation, ambient air, surface water,
groundwater, land surface or subsurface strata) or wildlife, including, without
limitation, laws and regulations relating to the release or threatened release
of chemicals, pollutants, contaminants, wastes, toxic substances, hazardous
substances, petroleum or petroleum products (collectively, "Hazardous
Materials") or to the manufacture, processing, distribution, use, treatment,
storage, disposal, transport or handling of Hazardous Materials (collectively,
"Environmental Laws"), (B) the Company and its subsidiaries have all permits,
authorizations and approvals required under any applicable Environmental Laws
and are each in compliance with their requirements, (C) there are no pending or
threatened administrative, regulatory or judicial actions, suits, demands,
demand letters, claims, liens, notices of noncompliance or violation,
investigation or proceedings relating to any Environmental Law against the
Company or any of its subsidiaries and (D) there are no events or circumstances
that might reasonably be expected to form the basis of an order for clean-up or
remediation, or an action, suit or proceeding by any private party or
governmental body or agency, against or affecting the Company or any of its
subsidiaries relating to Hazardous Materials or any Environmental Laws.
(b) Officer's Certificates. Any certificate signed by any officer of the Company
delivered to the Underwriters or to counsel for the Underwriters in connection
with the offering of the Securities shall be deemed a representation and
warranty by the Company to the Underwriters as to the matters covered thereby.
SECTION 2. Sale and Delivery to Underwriter; Closing.
(a) Securities. On the basis of the representations, warranties and agreements
herein contained and subject to the terms and conditions herein set forth, the
Company agrees to sell to the Underwriters, and the Underwriters agree to
purchase from the Company, at the price per Security set forth in Schedule B,
the number of Securities set forth in Schedule A opposite the name of such
Underwriter.
(b) Option Securities. In addition, on the basis of the representations,
warranties and agreements herein contained and subject to the terms and
conditions herein set forth, the Company hereby grants an option to the
Underwriters, severally and not jointly, to purchase from it any or all of the
Option Securities at the same price as is to be paid by the Underwriters for the
Initial Securities plus, in the case of the Option Securities, accrued original
issue discount and accrued cash interest, if any, from the Closing Time to the
Date of Delivery. The option hereby granted will expire 30 days after the date
hereof and may be exercised in whole or in part from time to time only for the
purpose of covering over-allotments which may be made in connection with the
offering and distribution of the Initial Securities upon notice by the
Underwriters to the Company setting forth the principal amount at maturity of
Option Securities
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<PAGE>
as to which the several Underwriters are then exercising the option and the time
and date of payment and delivery for such Option Securities. Any such time and
date of delivery for the Option Securities (a "Date of Delivery") shall be
determined by the Underwriters, but shall not be later than seven full business
days after the exercise of said option, nor in any event prior to the Closing
Time. If the option is exercised as to all or any portion of the Option
Securities, each of the Underwriters, acting severally and not jointly, will
purchase that proportion of the total principal amount at maturity of Option
Securities then being purchased which the principal amount at maturity of
Initial Securities set forth in Schedule A opposite the name of such Underwriter
bears to the total principal amount at maturity of Initial Securities, subject
in each case to such adjustments as Merrill Lynch & Co., Merrill Lynch, Pierce,
Fenner & Smith Incorporated in its discretion shall make to eliminate any sales
or purchases of fractional interests in the Securities.
(c) Payment. Payment of the purchase price for, and delivery of certificates
for, the Securities shall be made at the offices of Brown & Wood LLP, or at such
other place as shall be agreed upon by the Underwriters and the Company, at 9:00
A.M. (Eastern time) on the [fourth] business day after the date hereof, or such
other time not later than ten business days after such date as shall be agreed
upon by the Underwriters and the Company (such time and date of payment and
delivery being herein called "Closing Time").
Payment shall be made to the Company by wire transfer of immediately
available funds to a bank account designated by the Company, against delivery to
the Underwriters of certificates for the Securities to be purchased by it.
(d) Denominations; Registration. Certificates for the Securities shall be in
such denominations and registered in such names as the Underwriters may request
in writing at least one full business day before the Closing Time. The
Securities will be made available for examination and packaging by the
Underwriters in The City of New York not later than 10:00 A.M. (Eastern time) on
the business day prior to the Closing Time.
SECTION 3. Covenants of the Company. The Company covenants with the
Underwriters as follows:
(a) Compliance with Securities Regulations and Commission Requests. Subject to
Section 3(b), the Company will notify the Underwriters immediately, and confirm
the notice in writing, (i) when any post-effective amendment to the Registration
Statement shall become effective, or any supplement to the Prospectus or any
amended Prospectus shall have been filed, (ii) of the receipt of any comments
from the Commission, (iii) of any request by the Commission for any amendment to
the Registration Statement or any amendment or supplement to the Prospectus or
for additional information and (iv) of the issuance by the Commission of any
stop order suspending the effectiveness of the Registration Statement or of any
order preventing or suspending the use of any preliminary prospectus, or of the
suspension of the qualification of the Securities for offering or sale in any
jurisdiction, or of the initiation or threatening of any proceedings for any of
such purposes. The Company will promptly effect the filings necessary pursuant
to Rule 424(b) and will take such steps as it deems necessary to ascertain
promptly whether the form of prospectus transmitted for filing under Rule 424(b)
was
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received for filing by the Commission and, in the event that it was not, it will
promptly file such prospectus. The Company will use its reasonable best efforts
to prevent the issuance of any stop order and, if any stop order is issued, to
obtain the lifting thereof at the earliest possible moment.
(b) Filing of Amendments. The Company will give the Underwriters notice of
its intention to file or prepare any amendment to the Registration
Statement (including any filing under Rule 462(b)) or any amendment,
supplement or revision to either the prospectus included in the
Registration Statement at the time it became effective or to the
Prospectus, whether pursuant to the 1933 Act, the 1934 Act or
otherwise, will furnish the Underwriters with copies of any such
documents a reasonable amount of time prior to such proposed filing or
use, as the case may be, and will not file or use any such document to
which the Underwriters or counsel for the Underwriters shall object in
writing within three business days of receipt.
(c) Delivery of Registration Statements. The Company has furnished or will
deliver to the Underwriters and counsel for the Underwriters, without charge,
signed copies of the Registration Statement as originally filed and of each
amendment thereto (including exhibits filed therewith or incorporated by
reference therein and documents incorporated or deemed to be incorporated by
reference therein) and signed copies of all consents and certificates of
experts, and will also deliver to the Underwriters, without charge, a conformed
copy of the Registration Statement as originally filed and of each amendment
thereto (without exhibits). The copies of the Registration Statement and each
amendment thereto furnished to the Underwriters will be identical in all
material respects to the electronically transmitted copies thereof filed with
the Commission pursuant to EDGAR, except to the extent permitted by Regulation
S-T.
(d) Delivery of Prospectus. The Company will furnish to the Underwriters,
without charge, during the period when the Prospectus is required to be
delivered under the 1933 Act or the 1934 Act, such number of copies of
the Prospectus (as amended or supplemented) as the Underwriters may
reasonably request. The Prospectus and any amendments or supplements
thereto furnished to the Underwriters will be identical in all material
respects to the electronically transmitted copies thereof filed with
the Commission pursuant to EDGAR, except to the extent permitted by
Regulation S-T.
(e) Continued Compliance with Securities Laws. The Company will comply with the
1933 Act and the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations
and the 1939 Act and the 1939 Act Regulations so as to permit the completion of
the distribution of the Securities as contemplated in this Agreement and in the
Prospectus. If at any time when a prospectus is required by the 1933 Act to be
delivered in connection with sales of the Securities any event shall occur or
condition shall exist as a result of which it is necessary, in the opinion of
counsel for the Underwriters or counsel for the Company, to amend the
Registration Statement or amend or supplement the Prospectus in order that the
Prospectus will not include any untrue statements of a material fact or omit to
state a material fact necessary in order to make the statements therein not
misleading in the light of the circumstances existing at the time it is
delivered to a purchaser, or if it shall be necessary, in the opinion of any
such counsel, at any such time to amend
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<PAGE>
the Registration Statement or amend or supplement the Prospectus in order to
comply with the requirements of the 1933 Act or the 1933 Act Regulations, the
Company will promptly prepare and file with the Commission, subject to Section
3(b), such amendment or supplement as may be necessary to correct such statement
or omission or to make the Registration Statement or the Prospectus comply with
such requirements, and the Company will furnish to the Underwriters, without
charge, such number of copies of such amendment or supplement as the
Underwriters may reasonably request.
(f) Blue Sky Qualifications. The Company will use its reasonable best efforts,
in cooperation with the Underwriters, to qualify the Securities for offering and
sale under the applicable securities laws of such states and other jurisdictions
as the Underwriters may designate and to maintain such qualifications in effect
for a period of not less than one year from the date of this Agreement;
provided, however, that the Company shall not be obligated to file any general
consent to service of process or to qualify as a foreign corporation or as a
dealer in securities in any jurisdiction in which it is not so qualified or to
subject itself to taxation in respect of doing business in any jurisdiction in
which it is not otherwise so subject. In each jurisdiction in which the
Securities have been so qualified, the Company will file such statements and
reports as may be required by the laws of such jurisdiction to continue such
qualification in effect for a period of not less than one year from the date of
this Agreement. The Company will also supply the Underwriters with such
information as is necessary for the determination of the legality of the
Securities for investment under the laws of such jurisdictions as the
Underwriters may request.
(g) Rule 158. The Company will timely file such reports pursuant to the
1934 Act as are necessary in order to make generally available to its
securityholders as soon as practicable an earnings statement for the
purposes of, and to provide the benefits contemplated by, the last
paragraph of Section 11(a) of the 1933 Act.
(h) Use of Proceeds. The Company will use the net proceeds received by it
from the sale of the Securities in the manner specified in the
Prospectus under "Use of Proceeds."
(i) Listing. The Company will use its commercially reasonable efforts to
have the Securities approved for listing, subject only to official
notice of issuance, on the New York Stock Exchange and to cause the
Securities to be registered under the 1934 Act.
(j) Restriction on Sale of Securities. Through the 45th day after the date of
this Agreement, the Company will not, without the consent of the Underwriters,
directly or indirectly, offer, sell, offer to sell, grant an option for the sale
of or otherwise dispose of any securities convertible into, exchangeable for or
repayable with shares of Sprint's PCS Common Stock - Series 1, par value $1.00
per share (the "Sprint PCS Stock"), of Sprint Corporation ("Sprint"); provided,
however, that the foregoing shall not prohibit the Company from satisfying its
obligations under the Top Up Right Agreement, dated May 26, 1998, among the
Company, France Telecom S.A., Deutsche Telekom AG, Tele-Communications, Inc. and
Comcast Corporation or from taking any of the foregoing actions in connection
with any exchange, redemption or repurchase of the Company's
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<PAGE>
14,375,000
Exchangeable Subordinated Debentures due 2029, the Company's 3%
Exchangeable Subordinated Debentures due 2030 or the Securities or in connection
with any tender offer or exchange offer for all or a portion of the outstanding
shares of Sprint's PCS Common Stock Series 2 or with respect to such securities.
(k) Reporting Requirements. The Company, during the period when the
Prospectus is required to be delivered under the 1933 Act or the 1934
Act, will file all documents required to be filed with the Commission
pursuant to the 1934 Act within the time periods required by the 1934
Act and the 1934 Act Regulations.
SECTION 4. Payment of Expenses.
(a) Expenses. The Company will pay all expenses incident to the performance of
its obligations under this Agreement, including (i) the preparation, printing
and filing of the Registration Statement (including financial statements and
exhibits) as originally filed and of each amendment thereto, (ii) the
preparation, printing and delivery to the Underwriters of this Agreement, the
Indenture and such other documents as may be required in connection with the
offering, purchase, sale, issuance or delivery of the Securities, (iii) the
preparation, issuance and delivery of the Securities to the Underwriters, (iv)
the fees and disbursements of the Company's counsel, accountants and other
advisors, (v) the qualification of the Securities under securities laws in
accordance with the provisions of Section 3(f) hereof, including filing fees and
the reasonable fees and disbursements of counsel for the Underwriters in
connection therewith and in connection with the preparation of the Blue Sky
Survey and any supplement thereto, (vi) the printing and delivery to the
Underwriters of copies of the Prospectus and any amendments or supplements
thereto, (vii) the preparation, printing and delivery to the Underwriters of
copies of the Blue Sky Survey and any supplement thereto, (viii) the fees and
expenses of the Trustee, including the fees and disbursements of counsel for the
Trustee in connection with the Indenture and the Securities, (ix) any fees
payable in connection with the rating of the Securities, and (x) the listing
fees and related expenses incurred with respect to the listing of the Securities
on the New York Stock Exchange.
(b) Termination of Agreement. If this Agreement is terminated by the
Underwriters in accordance with the provisions of Section 5 or Section
9(a)(i) hereof, the Company shall reimburse the Underwriters for all of
their out-of-pocket expenses, including the reasonable fees and
disbursements of counsel for the Underwriters.
SECTION 5. Conditions of Underwriter's Obligations. The obligations of the
Underwriters to purchase and pay for the Securities pursuant to this Agreement
are subject to the accuracy of the representations and warranties of the Company
contained in Section 1 hereof or in certificates of any officer of the Company
or any subsidiary of the Company delivered pursuant to the provisions hereof, to
the performance by the Company of its covenants and other obligations hereunder,
and to the following further conditions:
(a) Effectiveness of Registration Statement. The Registration Statement,
including any Rule 462(b) Registration Statement, has become effective and at
Closing Time no stop order suspending the effectiveness of the Registration
Statement shall have
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<PAGE>
been issued under the 1933 Act or proceedings therefor initiated or threatened
by the Commission, and any request on the part of the Commission for additional
information shall have been complied with to the reasonable satisfaction of
counsel to the Underwriters. A prospectus containing information relating to the
description of the Securities, the specific method of distribution and similar
matters shall have been filed with the Commission in accordance with Rule 424(b)
(or a post-effective amendment providing such information shall have been filed
and declared effective in accordance with the requirements of Rule 430A).
(b) Opinion of Counsel for Company. At Closing Time, the Underwriters shall
have received the favorable opinion, dated as of Closing Time, of Dow,
Lohnes & Albertson, PLLC, counsel for the Company, in form and
substance satisfactory to counsel for the Underwriters, to the effect
set forth in Exhibit A hereto.
(c) Opinion of Counsel for Underwriters. At Closing Time, the Underwriters
shall have received the favorable opinion, dated as of Closing Time, of
Brown & Wood LLP, counsel for the Underwriters, in form and substance
satisfactory to the Underwriters with respect to the issuance and sale
of the Securities and other related matters as the Underwriters may
reasonably require. Such counsel may state that, insofar as such
opinion involves factual matters, they have relied, to the extent they
deem proper, upon certificates of officers of the Company and its
subsidiaries and certificates of public officials.
(d) Officers' Certificate. At Closing Time, there shall not have been, since the
date hereof or since the respective dates as of which information is given in
the Prospectus, any material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business prospects of the
Company and its subsidiaries considered as one enterprise, whether or not
arising in the ordinary course of business, and the Underwriters shall have
received a certificate of the President or a Vice President of the Company and
of the chief financial officer, chief accounting officer or the Treasurer of the
Company, dated as of Closing Time, to the effect that (i) there has been no such
material adverse change, (ii) the representations and warranties in Section 1(a)
hereof are true and correct with the same force and effect as though expressly
made at and as of Closing Time, (iii) the Company has complied with all
agreements and satisfied all conditions on its part to be performed or satisfied
at or prior to Closing Time, and (iv) no stop order suspending the effectiveness
of the Registration Statement has been issued and no proceedings for that
purpose have been instituted or are pending or are contemplated by the
Commission.
(e) Accountant's Comfort Letters. At the date hereof, the Underwriters
shall have received letters from Deloitte & Touche LLP, in relation to
the Company, and KPMG LLP, in relation to TCA, each dated such date, in
form and substance satisfactory to the Underwriters, containing
statements and information of the type ordinarily included in
accountants' "comfort letters" to underwriters with respect to the
financial statements and certain financial information contained in the
Registration Statement and the Prospectus.
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(f) Bring-down Comfort Letters. At Closing Time, the Underwriters shall
have received from Deloitte & Touche LLP and KPMG LLP letters, each
dated as of Closing Time, to the effect that they reaffirm the
statements made in the letter furnished pursuant to subsection (e) of
this Section, except that the "specified date" referred to shall be a
date not more than three business days prior to Closing Time.
(g) Maintenance of Rating. At Closing Time the Securities shall be rated at
least Baa3 by Moody's Investors Service Inc. and BBB by Standard & Poor's
Ratings Service, and the Company shall have delivered to the Underwriters a
letter, dated the Closing Time, from each such rating agency, or other evidence
satisfactory to the Underwriters, confirming that the Securities have such
ratings; and since the date of this Agreement, there shall not have occurred a
downgrading in the rating assigned to the Securities or any of the Company's
other debt securities by any "nationally recognized statistical rating agency,"
as that term is defined by the Commission for purposes of Rule 436(g)(2) under
the 1933 Act, and no such organization shall have publicly announced that it has
under surveillance or review, with possible negative implications, its rating of
the Securities or any of the Company's other debt securities.
(h) Conditions to Purchase of Option Securities. In the event that the
Underwriters exercise their option provided in Section 2(b) hereof to
purchase all or any portion of the Option Securities, the
representations and warranties of the Company contained herein and the
statements in any certificates furnished by the Company or any
subsidiary of the Company hereunder shall be true and correct as of
each Date of Delivery and, at the relevant Date of Delivery, the
Underwriters shall have received:
(i) Officers' Certificate. A certificate, dated such Date of
Delivery, of the President or a Vice President of the Company
and of the chief financial, chief accounting officer or the
Treasurer of the Company confirming that the certificate
delivered at Closing Time pursuant to Section 5(d) hereof
remains true and correct as of such Date of Delivery;
(ii) Opinion of Counsel for Company. The favorable opinion of
Dow, Lohnes & Albertson, PLLC, counsel for the Company, in
form and substance satisfactory to counsel for the
Underwriters, dated such Date of Delivery, relating to the
Option Securities to be purchased on such Date of Delivery and
otherwise to the same effect as the opinion required by
Section 5(b) hereof;
(iii) Opinion of Counsel for Underwriters. The favorable
opinion of Brown & Wood LLP, counsel for the Underwriters,
dated such Date of Delivery, relating to the Option Securities
to be purchased on such Date of Delivery and otherwise to the
same effect as the opinion required by Section 5(c) hereof;
and
(iv) Bring-down Comfort Letters. Letters from Deloitte &
Touche LLP and KPMG LLP, in form and substance satisfactory to
the Underwriters and dated such Date of Delivery,
substantially the same in form and substance as the letters
furnished to the Underwriters pursuant to Section 5(f) hereof,
except that the
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"specified date" in the letter furnished pursuant to this paragraph shall be a
date not more than three business days prior to such Date of Delivery.
(i) Additional Documents. At Closing Time counsel for the Underwriters
shall have been furnished with such documents and opinions as they may
require for the purpose of enabling them to pass upon the issuance and
sale of the Securities as herein contemplated, or in order to evidence
the accuracy of any of the representations or warranties, or the
fulfillment of any of the conditions, herein contained; and all
proceedings taken by the Company in connection with the issuance and
sale of the Securities as herein contemplated shall be satisfactory in
form and substance to the Underwriters and counsel for the
Underwriters.
(j) Termination of Agreement. If any condition specified in this Section
shall not have been fulfilled when and as required to be fulfilled at
the Closing Time (or, with respect to the Underwriters' exercise of the
over-allotment option for the purchase of Option Securities on a Date
of Delivery after the Closing Time, the obligations of the Underwriters
to purchase the Option Securities on such Date of Delivery), this
Agreement may be terminated by the Underwriters by notice to the
Company at any time at or prior to Closing Time (or such Date of
Delivery, as applicable), and such termination shall be without
liability of any party to any other party except as provided in Section
4 and except that Sections 6, 7 and 8 shall survive any such
termination and remain in full force and effect.
SECTION 6. Indemnification.
(a) Indemnification of Underwriter. The Company agrees to indemnify and hold
harmless each Underwriter and each person, if any, who controls any such
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement or
alleged untrue statement of a material fact contained in the
Registration Statement (or any amendment thereto), including the Rule
434 Information, if applicable, or the omission or alleged omission
therefrom of a material fact required to be stated therein or necessary
to make the statements therein not misleading or arising out of any
untrue statement or alleged untrue statement of a material fact
included in any preliminary prospectus or the Prospectus (or any
amendment or supplement thereto), or the omission or alleged omission
therefrom of a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened,
or of any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission referred to
under (i) above; provided that (subject to Section 6(d) below) any such
settlement is effected with the written consent of the Company; and
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(iii) against any and all expense whatsoever, as incurred
(including the fees and disbursements of counsel chosen by the
Underwriters), reasonably incurred in investigating, preparing or
defending against any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or any
such alleged untrue statement or omission, referred to under (i) above,
to the extent that any such expense is not paid under (i) or (ii)
above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by such
Underwriter expressly for use in the Registration Statement (or any amendment
thereto), or any preliminary prospectus or the Prospectus (or any amendment or
supplement thereto) and provided, further, that this indemnity agreement shall
not inure to the benefit of such Underwriter or any person controlling such
Underwriter on account of any loss, claim, damage, liability or action arising
from the sale of Securities to any person by such Underwriter if such
Underwriter failed to send or give a copy of an amendment or supplement to the
Prospectus to that person and the untrue statement or alleged untrue statement
of a material fact or omission or alleged omission to state a material fact in
the Prospectus was corrected in said amendment or supplement and the delivery
thereof was required by law and would have constituted a complete defense to the
claim of that person, unless such failure resulted from non-compliance by the
Company with Section 3(a) or (b). For purposes of the second proviso to the
immediately preceding sentence, the term Prospectus shall not be deemed to
include the documents incorporated by reference therein, and no Underwriter
shall be obligated to send or give any supplement or amendment to any document
incorporated by reference in a preliminary prospectus or supplement thereto or
the Prospectus to any person.
(b) Indemnification of Company, Directors and Officers. Each Underwriter
severally agrees to indemnify and hold harmless the Company, its directors, each
of its officers who signed the Registration Statement and each person, if any,
who controls the Company within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act against any and all loss, liability, claim, damage
and expense described in the indemnity contained in subsection (a) of this
Section, as incurred, but only with respect to untrue statements or omissions,
or alleged untrue statements or omissions, made in the Registration Statement
(or any amendment thereto), or any preliminary prospectus or the Prospectus (or
any amendment or supplement thereto) in reliance upon and in conformity with
written information furnished to the Company by such Underwriter expressly for
use in the Registration Statement (or any amendment thereto) or such preliminary
prospectus or the Prospectus (or any amendment or supplement thereto).
(c) Actions against Parties; Notification. Each indemnified party shall give
notice as promptly as reasonably practicable to each indemnifying party of any
action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve it
from any liability which it may have otherwise than on account of this indemnity
agreement. In the case of parties indemnified pursuant to Section 6(a) above,
counsel to the indemnified parties shall be selected by the Underwriters, and,
in the case of parties indemnified pursuant to Section
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6(b) above, counsel to the indemnified parties shall be selected by the Company.
An indemnifying party may participate at its own expense in the defense of any
such action. If it so elects within a reasonable time after receipt of notice,
an indemnifying party, jointly with any other indemnifying parties receiving
such notice, may assume the defense of such action with counsel chosen by it and
approved by the indemnified parties defendant in such action, unless such
indemnified parties reasonably object to such assumption on the ground that
there may be legal defenses available to them which are different from or in
addition to those available to such indemnifying party. If an indemnifying party
assumes the defense of such action, the indemnifying parties shall not be liable
for any fees and expenses of counsel for the indemnified parties thereafter in
connection with such action. In no event shall the indemnifying parties be
liable for fees and expenses of more than one counsel (in addition to any local
counsel) separate from their own counsel for all indemnified parties in
connection with any one action or separate but similar or related actions in the
same jurisdiction arising out of the same general allegations or circumstances.
No indemnifying party shall, without the prior written consent of the
indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever in respect of which indemnification or contribution could be sought
under this Section 6 or Section 7 hereof (whether or not the indemnified parties
are actual or potential parties thereto), unless such settlement, compromise or
consent (i) includes an unconditional release of each indemnified party from all
liability arising out of such litigation, investigation, proceeding or claim and
(ii) does not include a statement as to or an admission of fault, culpability or
a failure to act by or on behalf of any indemnified party.
(d) Settlement without Consent if Failure to Reimburse. If at any time an
indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel, such indemnifying party
agrees that it shall be liable for any settlement of the nature contemplated by
Section 6(a)(ii) effected without its written consent if (i) such settlement is
entered into more than 90 days after receipt by such indemnifying party of the
aforesaid request, (ii) such indemnifying party shall have received notice of
the terms of such settlement at least 45 days prior to such settlement being
entered into and (iii) such indemnifying party shall not have reimbursed such
indemnified party in accordance with such request prior to the date of such
settlement.
SECTION 7. Contribution. If the indemnification provided for in Section 6 hereof
is for any reason unavailable to or insufficient to hold harmless an indemnified
party in respect of any losses, liabilities, claims, damages or expenses
referred to therein, then the Company and the Underwriters shall contribute to
the aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company on the one
hand and the Underwriters on the other hand from the offering of the Securities
pursuant to this Agreement or (ii) if the allocation provided by clause (i) is
not permitted by applicable law, in such proportion as is appropriate to reflect
not only the relative benefits referred to in clause (i) above but also the
relative fault of the Company on the one hand and of the Underwriters on the
other hand in connection with the statements or omissions which resulted in such
losses, liabilities, claims, damages or expenses, as well as any other relevant
equitable considerations.
18
<PAGE>
The relative benefits received by the Company on the one hand and the
Underwriters on the other hand in connection with the offering of the Securities
pursuant to this Agreement shall be deemed to be in the same respective
proportions as the total net proceeds from the offering of the Securities
pursuant to this Agreement (before deducting expenses) received by the Company
and the total underwriting discount or commission received by the Underwriters,
in each case as set forth on the cover of the Prospectus, bear to the aggregate
initial public offering price of the Securities as set forth on such cover.
The relative fault of the Company on the one hand and the Underwriters
on the other hand shall be determined by reference to, among other things,
whether any such untrue or alleged untrue statement of a material fact or
omission or alleged omission to state a material fact relates to information
supplied by the Company or by such Underwriter and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 7 were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to above in this Section 7. The aggregate
amount of losses, liabilities, claims, damages and expenses incurred by an
indemnified party and referred to above in this Section 7 shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, no Underwriter shall
be required to contribute any amount in excess of the amount by which the total
price at which the Securities underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of any such untrue or
alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the 1933 Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as such Underwriter, and
each director of the Company, each officer of the Company who signed the
Registration Statement and each person, if any, who controls the Company within
the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall
have the same rights to contribution as the Company. The Underwriters'
respective obligations to contribute pursuant to this Section 7 are several in
proportion to the aggregate original principal amount at maturity of Securities
set forth opposite their respective names in Schedule A hereto and not joint.
SECTION 8. Representations, Warranties and Agreements to Survive Delivery. All
representations, warranties and agreements contained in this Agreement or in
certificates of
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<PAGE>
officers of the Company or any of its subsidiaries submitted pursuant hereto,
shall remain operative and in full force and effect, regardless of any
investigation made by or on behalf of the Underwriters or controlling person, or
by or on behalf of the Company, and shall survive delivery of the Securities to
the Underwriters.
SECTION 9. Termination of Agreement.
(a) Termination; General. The Underwriters may terminate this Agreement, by
notice to the Company, at any time at or prior to Closing Time (i) if there has
been, since the time of execution of this Agreement or since the respective
dates as of which information is given in the Prospectus, any material adverse
change in the condition, financial or otherwise, or in the earnings, business
affairs or business prospects of the Company and its subsidiaries considered as
one enterprise or of Sprint and its subsidiaries considered as one enterprise,
in each case whether or not arising in the ordinary course of business, (ii) if
there has occurred any material adverse change in the financial markets in the
United States or the international financial markets, any outbreak of
hostilities or escalation thereof or other calamity or crisis or any change or
development involving a prospective change in national or international
political, financial or economic conditions, in each case the effect of which is
such as to make it, in the judgment of the Underwriters, impracticable to market
the Securities or to enforce contracts for the sale of the Securities, (iii) if
trading in any securities of the Company or in the Sprint PCS Stock has been
suspended or limited by the Commission or the New York Stock Exchange, or if
trading generally on the American Stock Exchange or the New York Stock Exchange
or in the Nasdaq National Market has been suspended or limited, or minimum or
maximum prices for trading have been fixed, or maximum ranges for prices have
been required, by any of said exchanges or by such system or by order of the
Commission, the National Association of Securities Dealers, Inc. or any other
governmental authority or (iv) if a banking moratorium has been declared by
either federal or New York authorities.
(b) Liabilities. If this Agreement is terminated pursuant to this Section, such
termination shall be without liability of any party to any other party except as
provided in Section 4 hereof, and provided further that Sections 6, 7 and 8
shall survive such termination and remain in full force and effect.
20
<PAGE>
SECTION 10. Default by One of the Underwriters. If one of the Underwriters shall
fail at Closing Time or the relevant Date of Delivery, as the case may be, to
purchase the Securities which it is obligated to purchase under this Agreement
(the "Defaulted Securities"), then the non-defaulting Underwriter shall have the
right, within 24 hours thereafter, to make arrangements for it, or any other
underwriters, to purchase all, but not less than all, of the Defaulted
Securities in such amounts as may be agreed upon and upon the terms herein set
forth; if, however, the non-defaulting Underwriter shall not have completed such
arrangements within such 24-hour period, then this Agreement (or, with respect
to the Underwriters' exercise of the over-allotment option for the purchase of
Option Securities on a Date of Delivery after the Closing Time, the obligations
of the Underwriters to purchase, and the Company to sell, such Option Securities
on such Date of Delivery) shall terminate without liability on the part of such
non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve the defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in (i) a
termination of this Agreement or (ii) in the case of a Date of Delivery after
the Closing Time, a termination of the obligations of the Underwriters and the
Company with respect to the related Option Securities, as the case may be,
either the non-defaulting Underwriter or the Company shall have the right to
postpone the Closing Time or the relevant Date of Delivery, as the case may be,
for a period not exceeding seven days in order to effect any required changes in
the Registration Statement or the Prospectus or in any other documents or
arrangements.
SECTION 11. Notices. All notices and other communications hereunder shall be in
writing and shall be deemed to have been duly given if mailed or transmitted by
any standard form of telecommunication. Notices to the Underwriters shall be
directed to Credit Suisse First Boston Corporation, Eleven Madison Avenue, New
York, New York 10010, attention of Investment Banking Department-Transaction
Advisory Group and to Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith
Incorporated, North Tower, World Financial Center, New York, New York 10281,
attention of Daniel Richards, Managing Director; and notices to the Company
shall be directed to it at 1400 Lake Hearn Drive, Atlanta, Georgia 30319,
attention of Andrew A. Merdek.
SECTION 12. Parties. This Agreement shall inure to the benefit of and be binding
upon the Underwriters and the Company and their respective successors. Nothing
expressed or mentioned in this Agreement is intended or shall be construed to
give any person, firm or corporation, other than the Underwriters and the
Company and their respective successors and the controlling persons and officers
and directors referred to in Sections 6 and 7 and their heirs and legal
representatives, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision herein contained. This Agreement and
all conditions and provisions hereof are intended to be for the sole and
exclusive benefit of the Underwriters and the Company and their respective
successors, and said controlling persons and officers and directors and their
heirs and legal representatives, and for the benefit of no other person, firm or
corporation. No purchaser of Securities from any Underwriter shall be deemed to
be a successor by reason merely of such purchase.
21
<PAGE>
SECTION 13. Governing Law and Time. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE
TO AGREEMENTS MADE AND TO BE PERFORMED WHOLLY IN SUCH STATE. SPECIFIED TIMES
OF DAY REFER TO NEW YORK CITY TIME.
SECTION 14. Effect of Headings. The Article and Section headings herein
and the Table of Contents are for convenience only and shall not affect the
construction hereof.
SECTION 15. Counterparts. This Agreement may be executed in one or
more counterparts and, if executed in more than one counterpart, the
executed counterparts hereof shall constitute a single instrument.
22
<PAGE>
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this instrument, along with all counterparts, will become a binding agreement
between the Underwriters and the Company in accordance with its terms.
Very truly yours,
COX COMMUNICATIONS, INC.
By: /s/ Dallas S. Clement /s/Dallas S. Clement
-----------------------
Name: Dallas S. Clement
Title: Vice President and
Treasurer
CONFIRMED AND ACCEPTED, as of the date first above written:
CREDIT SUISSE FIRST BOSTON CORPORATION
By: /s/John G. Chachas
--------------------------------
Name:John G. Chachas
Title:Managing Director
MERRILL LYNCH & CO
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
By: /s/Tristram Collins
-------------------------------
Name:Tristram Collins
Title:Vice President
<PAGE>
Sch A-1
SCHEDULE A
Original Principal Amount
at Maturity of Initial
Name of Underwriter Securities
------------------- -------------------------
Credit Suisse First Boston Corporation.............................$821,808,000
Merrill Lynch, Pierce Fenner & Smith
Incorporated............................ $821,809,000
--------------
Total.............................................................$1,643,617,000
=============
<PAGE>
Sch A-1
SCHEDULE B
Pricing Information
COX COMMUNICATIONS, INC.
Exchangeable Subordinated Discount Debentures due 2020
1. The initial public offering price per Security shall be
$425.89.
2. The purchase price per Security to be paid by the Underwriters
shall be $415.23, being an amount equal to the initial public
offering price set forth above less a $10.647 underwriting
discount per Security; provided that the purchase price per
Security for any Option Securities purchased upon the exercise
of the over-allotment option described in Section 2(b) shall
be increased by an amount per Security equal to accrued
original issue discount and accrued cash interest, if any, on
each Security from the Closing Time to the Date of Delivery.
3. The cash interest rate on the Securities shall be 1.0% per
annum.
4. The Securities shall be redeemable at the option of the
Company, subject to purchase by the Company and exchangeable
at the option of the holder thereof, as set forth in the terms
of the Securities.
<PAGE>
Sch B-1
SCHEDULE C
List of Subsidiaries
Cox Communications Hampton Roads, Inc.
Cox Communications Las Vegas, Inc.
Cox Classic Cable, Inc.
CoxCom, Inc.
Cox Teleport Partners, Inc.
Sch B-1
Exhibit 4.1
COX COMMUNICATIONS, INC.
AND
THE BANK OF NEW YORK,
as Trustee
---------------------
THIRD SUPPLEMENTAL INDENTURE
Dated as of April 19, 2000
---------------------
Supplementing the Indenture
Dated as of June 27, 1995
--------------------
Creating a series of Debt Securities designated
Exchangeable Subordinated Discount Debentures due 2020
<PAGE>
THIRD SUPPLEMENTAL INDENTURE, dated the 19th day of April, 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 Third 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 "Exchangeable Subordinated Discount Debentures due 2020" under the
Original Indenture in an aggregate original principal amount at maturity of up
to $2,290,755,000 (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 Debentures, 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 Third Supplemental Indenture a valid, binding and legal
agreement of the Company, have been duly authorized.
NOW, THEREFORE, THIS THIRD SUPPLEMENTAL INDENTURE WITNESSETH that, in
order to establish the terms of the series of Securities designated as the
"Exchangeable Subordinated Discount Debentures due 2020," and for and in
consideration of the premises and of the covenants contained in the Original
Indenture and in this Third 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:
<PAGE>
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.
"Adjusted Principal Amount" shall mean, for each $1,000 Original
Principal Amount at Maturity of the Debentures, (i) on the Issue Date, the Issue
Price and (ii) thereafter, for any date of determination, the Issue Price, plus
any previous accrual of Original Issue Discount to but excluding such date of
determination and minus any and all Special Cash Payments and any Cash
Reorganization Event Distributions made in respect of such Debentures through
and including such date of determination. Notwithstanding the foregoing, the
Adjusted Principal Amount shall never be less than zero.
"Adjusted Principal Amount Reduction" shall mean any reduction in the
Adjusted Principal Amount as a result of the application of any Special Cash
Payment or Cash Reorganization Event Distribution.
"Aggregate Number" shall have the meaning set forth in Section 211(b).
"Average Transaction Consideration" shall mean, with respect to a
holder of one Reference Security in a Reference Share Offer, (a) the aggregate
consideration actually paid or distributed in respect of all Reference
Securities accepted in such Reference Share Offer, divided by (b) the total
number of Reference Securities 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.
"Cash Reorganization Event" means any event with respect to any
Reference Company that results in the Reference Property consisting of 80% or
more of cash.
"Cash Reorganization Event Distribution" shall have the meaning set
forth in Section 213 hereof.
"Closing Price" shall mean, with respect to any Reference Security on
any date of determination, the closing sale price (or, if no closing sale price
is reported, the last reported sale price) of such Reference Security (regular
way) on the New York Stock Exchange on that date or, if the Reference 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 such Reference Security is so listed,
or if such Reference Security is not so listed on a United States national or
regional securities exchange, as reported by the
2
<PAGE>
Nasdaq National Market or, if such Reference Security is not so reported, the
last quoted bid price for such Reference 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 any day, the Company's Board of
Directors shall determine the Closing Price on the basis of those quotations
that it in good faith considers appropriate. 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 or automated quotation system on
which the Reference Securities are then traded or quoted.
"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.
"Company Notice" shall have the meaning set forth in Section 208(e).
"Company Notice Date" shall have the meaning set forth in Section
208(e).
"Debenture" shall mean $1,000 Original Principal Amount at Maturity of
the Debentures.
"Debentures" shall mean the Company's Exchangeable Subordinated
Discount Debentures due 2020.
"Depositary" shall have the meaning set forth in the Original Indenture
"Distributed Assets" shall have the meaning set forth in Section 211(c)
"DTC" shall mean The Depository Trust Company or any successor
Depositary.
"Exchange Agent" shall mean any Person authorized by the Company to act
as Exchange Agent for the Debentures. 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.
"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.
"Extraordinary Cash Dividend" means, with respect to any consecutive
12-month period, the amount, if any, by which the aggregate amount of all cash
dividends on any Reference Security consisting of capital stock occurring in
such 12-month period (or, if that reference security was not outstanding at the
commencement of such 12-month period, occurring in such shorter period during
which that Reference Security was outstanding) exceeds on a per share basis 10%
of the average of the Closing Prices per share of that Reference Security over
such 12-
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<PAGE>
month period (or such shorter period during which that Reference Security was
outstanding); provided that, for purposes of the foregoing definition, the
amount of cash dividends paid on a per share basis will be appropriately
adjusted to reflect the occurrence during such period of any stock dividend or
distribution of shares of capital stock of the issuer of such Reference Security
or any subdivision, split, combination or reclassification of shares of that
Reference Security.
"Interest Increase Date" shall have the meaning set forth in Section
205(c)(i).
"Interest Payment Date" shall have the meaning set forth in Section
205.
"Interest Period" shall mean (i) the period from the Issue Date to but
excluding the initial Interest Payment Date and (ii) thereafter, the period from
and including any Interest Payment Date to but excluding the immediately
succeeding Interest Payment Date or, if applicable, Stated Maturity, any
Purchase Date, any Redemption Date or any Exchange Date.
"Issue Date" shall mean April 19, 2000.
"Issue Price" shall mean $425.89 per Debenture.
"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 207(a).
"Original Issue Discount" shall mean, as of any date of determination,
for each Debenture, the excess, if any, of the Adjusted Principal Amount for
such Debenture over the Issue Price.
"Original Principal Amount at Maturity" shall mean $1,000 original
principal amount at maturity per Debenture, without regard to any adjustments to
the Adjusted Principal Amount.
"Purchase Date" shall mean April 19, 2005, April 19, 2010 and April 19,
2015.
"Purchase Notice" shall have the meaning set forth in Section 208(a)(i)
"Purchase Price" shall have the meaning set forth in Section 208(a).
"Receipt Date" shall have the meaning set forth in Section 211(b).
"Redemption Date" shall have the meaning set forth in Section 207(a).
"Redemption Price" shall have the meaning set forth in Section 207(a).
"Reference Company" shall mean Sprint Corporation, for so long as any
Reference Securities are Sprint PCS Stock, and shall also mean any other issuer
of a Reference Security.
"Reference Property" shall initially only consist of Reference
Securities and shall be subject to adjustment from time to time prior to Stated
Maturity to reflect the addition or
4
<PAGE>
substitution of any cash, securities and/or other property resulting from the
application of the provisions of Section 211 hereof.
"Reference Property Value" shall mean, for the Reference Property
attributable to the Debentures at any date of determination, subject to
adjustment in accordance with Section 211, the sum of (a) for any portion of the
Reference Property consisting of cash, the amount of such cash, (b) for any
portion of the Reference Property consisting of property other than cash or
Reference Securities, the fair market value of such property (as determined by a
nationally recognized independent investment banking firm retained for this
purpose by the Company) as of the Trading Day immediately succeeding the related
Exchange Date, and (c) for any portion of the Reference Property consisting of a
Reference Security (including Sprint PCS Stock): (1) in the case of a Notice of
Exchange delivered to the Exchange Agent for exchange prior to the Reference
Securities Eligibility Date, the Closing Price for such Reference Security on
the Trading Day immediately succeeding the Exchange Date (unless more than
$5,000,000 aggregate Original Principal Amount at Maturity of Debentures have
been validly tendered for exchange on such date, in which case Reference
Property Value shall equal the mean of the Closing Prices for such Reference
Security over the five Trading Day period ending on the fifth Trading Day
immediately succeeding the Exchange Date); (2) in the case of a Notice of
Exchange delivered to the Exchange Agent on or after the Reference Securities
Eligibility Date, the Closing Price for such Reference Security on the third
Trading Day immediately succeeding the Exchange Date (unless more than
$5,000,000 aggregate Original Principal Amount at Maturity of Debentures have
been validly tendered for exchange on such date, in which case the Reference
Property Value shall equal the mean of the Closing Prices for such Reference
Security during the five Trading Day period beginning on the third Trading Day
immediately succeeding the Exchange Date and ending on the seventh Trading Day
immediately succeeding the Exchange Date) and (3) in the case of a purchase by
the Company of any Debentures and payment of the related Purchase Price by
delivery of Reference Property in accordance with Section 208(d), the mean of
the Closing Prices for such Reference Security during the three Trading Day
period ending on the second Trading Day immediately preceding the Purchase Date;
provided, however, if Closing Prices for a Reference Security cannot be
determined, the Reference Property Value of such Reference Security shall be the
fair market value of such Reference Security (as determined by a nationally
recognized independent investment banking firm retained for this purpose by the
Company). The aggregate Reference Property Value of the Reference Securities
attributable to any Debenture for which a Notice of Exchange is delivered to the
Exchange Agent or which is subject to purchase by the Company in accordance with
Section 208 shall equal the sum of the Reference Property Values of the
Reference Property attributable to such Debenture.
"Reference Securities" shall initially mean 7.5908 shares of Sprint PCS
Stock per Debenture, and after the date hereof shall be subject to adjustment in
accordance with Section 211.
"Reference Securities Eligibility Date" shall mean April 19, 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
Securities constituting capital stock of a Reference Company or any
consolidation, merger or statutory exchange involving a
5
<PAGE>
class or series of Reference Securities of a Reference Company in which an
election is given to holders of such Reference Securities 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 Property attributable to each Debenture to include the portion of the
Average Transaction Consideration received in a Reference Share Offer and (b) a
reduction in the number of Reference Securities attributable to each Debenture
immediately prior to the expiration of such Reference Share Offer by the
Reference Share Proportionate Reduction.
"Reference Share Proportionate Reduction" shall mean a proportionate
reduction in the number of Reference Securities of the class or series of
Reference Securities which are the subject of the applicable Reference Share
Offer and included in the Reference Property attributable to each Debenture,
calculated in accordance with the following formula:
[OBJECT OMITTED]
where:
R = the fraction by which the number of Reference Securities of
the class or series of Reference Securities subject to the
Reference Share Offer and attributable to each Debenture will
be reduced;
X = the aggregate number of Reference Securities of the class or
series of Reference Securities subject to the Reference Share
Offer accepted in the Reference Share Offer; and
N = the aggregate number of Reference Securities of the class or
series of Reference Securities subject to the Reference Share
Offer outstanding immediately prior to the expiration of the
Reference Share Offer.
"Regular Record Date" shall have the meaning set forth in Section
205(a).
"Reorganization Event" shall have the meaning set forth in Section
211(d).
"Securities Act" shall mean the United States Securities Act of 1933,
as amended.
"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:
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<PAGE>
(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 guarantees 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;
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;
7
<PAGE>
(e) debt securities issued under the Original Indenture
and designated pursuant to the Original Indenture as
subordinated to Senior Indebtedness (including, at
the date of this Third Supplemental Indenture, the
Company's Exchangeable Subordinated Debentures due
2029 (the "PRIZES"), and the Company's 3%
Exchangeable Subordinated Debentures due 2030 (the
"Premium PHONES"), each of which rank pari passu with
the Debentures).
"Special Cash Payment" shall have the meaning set forth in Section 212.
"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.
"Stated Maturity" shall have the meaning set forth in Section 204(a).
"Trading Day" shall mean a day on which a Reference Security, the
Closing Price of which is being determined, (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; provided that, if such Reference
Security is not traded or quoted, then Business Day shall be used in place of
Trading Day for such determination.
Section 102. Section References.
Each reference to a particular section set forth in this Third
Supplemental Indenture shall, unless the context otherwise requires, refer to
this Third Supplemental Indenture.
Section 103. Conflict with Original Indenture.
To the extent that any of the terms set forth in this Third
Supplemental Indenture or the certificates representing the Debentures shall
conflict with any of the terms of the Original Indenture, the terms of this
Third 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
"Exchangeable Subordinated Discount Debentures due 2020."
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Section 202. Amount.
The aggregate Original Principal Amount at Maturity of the Debentures
which may be authenticated and delivered under the Indenture is initially
limited to $2,290,755,000 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 form attached hereto as Exhibit A, and shall bear
the legends as are inscribed thereon.
Section 204. Stated Maturity; Payment at Maturity; Notices; Changes to
Adjusted Principal Amount.
(a) The Stated Maturity shall be April 19, 2020.
(b) The principal amount payable at Stated Maturity of each Debenture shall
equal the Adjusted Principal Amount of such Debenture on such date. Upon Stated
Maturity, the Adjusted Principal Amount of each Debenture, plus accrued cash
interest payable in accordance with Section 205(a) to but excluding the Stated
Maturity shall be due and payable.
(c) In calculating the Adjusted Principal Amount as of any date of
determination, the Adjusted Principal Amount on such date shall be equal to the
Issue Price (i) plus the amount of any previous accrual of Original Issue
Discount, to but excluding such date of determination, and (ii) minus the amount
of any Special Cash Payment and Cash Reorganization Event Distribution made, to
and including such date of determination. In no event shall the Adjusted
Principal Amount be less than zero.
(d) At least five Business Days prior to Stated Maturity, 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 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 Depositary to adjust its records
accordingly. At or prior to 10:00 a.m., New York City time, at Stated Maturity,
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 219 hereof),
there shall become immediately due and payable:
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(i) in the case of an Event of Default specified in Section 6.01(a), (b) or
(h), an amount equal to the sum of the Adjusted Principal Amount as of
the date of such default and accrued but unpaid cash interest to but
excluding the date of such default;
(ii) in the case of an Event of Default specified in Section 6.01(c), the
greater of (A) the Adjusted Principal Amount as of the date of such
default plus accrued and unpaid cash interest to but excluding the date
of such default and (B) the Reference Property Value of the Reference
Property to be delivered upon exchange as if the Exchange Date were the
date of such default;
(iii) in the case of an Event of Default specified in Section 6.01(d) or (e),
an amount equal to the sum of the Adjusted Principal Amount as of the
date of such declaration and accrued but unpaid cash interest to but
excluding the date of such declaration; and
(iv) in the case of an Event of Default specified in Section 6.01(f) or (g),
an amount equal to the sum of the Adjusted Principal Amount as of the
date of occurrence of such event and accrued but unpaid cash interest
to but excluding the date of the occurrence of such event.
Section 205. Cash Interest and Original Issue Discount; Option to Increase
Cash Interest Payments.
(a) Cash Interest.
The Debentures shall bear interest in cash on each Debenture at the
rate of 1.0% of the Issue Price per Debenture per annum so long as the
Debentures are Outstanding. Such cash interest shall accrue from April 19, 2000
or from the most recent Interest Payment Date to which interest has been paid or
provided for, and shall be payable semiannually on April 19 and October 19 of
each year (each, an "Interest Payment Date"), commencing October 19, 2000, to
the Persons in whose names the Debentures (or one or more Predecessor
Securities) are registered at the close of business on the Business Day
immediately preceding such Interest Payment Date ("Regular Record Date").
Accrual of cash interest payable on each Debenture in accordance with this
Section 205(a) shall be calculated on the basis of a 360-day year composed of
twelve 30-day months and shall be calculated without regard to changes in the
Adjusted Principal Amount. Cash interest payments may be increased in accordance
with Section 205(c) hereof.
(b) Original Issue Discount.
(i) For any Interest Period (or portion thereof), Original Issue Discount
shall accrue on the Adjusted Principal Amount of each Debenture, as
determined in accordance with Section 208(b)(iii) and (iv) below, in an
amount equal to the excess (if an amount greater than zero) of (A) the
amount of interest accrued on such Debenture during such Interest
Period (or portion thereof) that represents an annualized yield of 5.0%
on the applicable Adjusted Principal Amount of such Debenture over (B)
the amount of accrued cash interest for such Interest Period (or
portion thereof) payable on each Debenture in accordance with Section
205(a).
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(ii) Accrual of Original Issue Discount shall be calculated on the basis of
a 360-day year composed of twelve 30-day months and shall commence on
the Issue Date, and shall cease to accrue on the earliest of: (A) the
date on which such Debenture is no longer Outstanding; (B) the
effective date of the Company's election to increase semiannual cash
interest payments as provided in Section 205(c) hereof; and (C) the
date on which cash interest payable in accordance with Section 205(a)
represents an annualized yield of 5.0% or more on the Adjusted
Principal Amount of such Debenture for the related Interest Period.
(iii) As of any date of determination, the applicable Adjusted Principal
Amount for calculating the amount of Original Issue Discount accruing
daily on each Debenture during the related Interest Period (or any
portion thereof), so long as no Adjusted Principal Amount Reduction has
occurred during such Interest Period, will equal:
(A) for any date of determination occurring during the initial Interest
Period, the Issue Price; or
(B) for any date of determination occurring during any subsequent
Interest Period, the Adjusted Principal Amount on the Interest
Payment Date on which such Interest Period begins.
(iv) As of any date of determination, the applicable Adjusted Principal
Amount for calculating the amount of Original Issue Discount accruing
daily on each Debenture during the related Interest Period (or any
portion thereof) in which an Adjusted Principal Amount Reduction has
occurred, will equal:
(A) if such Interest Period (or a portion thereof) is the initial
Interest Period, for any date of determination occurring prior
to such Adjusted Principal Amount Reduction, the Issue Price;
(B) for any date of determination in any subsequent Interest
Period (or a portion thereof) occurring prior to such Adjusted
Principal Amount Reduction, the Adjusted Principal Amount on
the Interest Payment Date on which such Interest Period
begins; and
(C) for any date of determination in the initial or any subsequent
Interest Period (or a portion thereof) occurring on or after
such Adjusted Principal Amount Reduction, the Adjusted
Principal Amount on the date of such Adjusted Principal Amount
Reduction, after giving effect to such Adjusted Principal
Amount Reduction.
(c) Option to Increase Cash Interest Payments.
(i) Increase in Semiannual Cash Interest. On and after April 19, 2005, the
Company may elect, by delivery to the Trustee of a written notice on a date that
is no less than 20 calendar days prior to the effective date of such election
(the effective date of such election, the "Interest Increase Date"), which
Interest Increase Date shall be an
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Interest Payment Date, to pay cash interest in lieu of future accrual of
Original Issue Discount in accordance with Section 205(b). Such cash interest
shall accrue at a rate per annum on the Adjusted Principal Amount per Debenture
(initially, the Adjusted Principal Amount on the Interest Increase Date) equal
to an amount representing an annualized yield of 5.0% on such Adjusted Principal
Amount. Such cash interest shall accrue from the Interest Increase Date or from
the most recent Interest Payment Date thereafter to which interest has been paid
or duly provided for and shall be payable semiannually on each Interest Payment
Date after such Interest Increase Date to Holders of record at the Regular
Record Date immediately preceding such Interest Payment Date. In the event the
Company exercises such option, interest will be computed on the basis of a
360-day year composed of twelve 30-day months, commencing on the Interest
Increase Date.
(ii) Interest Accrual to Cease. The Company's election to increase
semiannual cash interest payments in accordance with this Section
205(c) shall be irrevocable. In the event the Company elects to
exercise such option, future accrual of Original Issue Discount shall
cease on and after the Interest Increase Date.
(iii) Adjustments to Accrual. In the event of an Adjusted Principal Amount
Reduction occurring after the Interest Increase Date, the applicable
Adjusted Principal Amount for calculating cash interest payable in
accordance with this Section 205(c) shall be determined in the manner
described in Section 205(b)(iv); provided, however, that cash interest
shall not be reduced at any time to an amount less than 1.0% of the
Issue Price per Debenture per annum so long as such Debenture is
Outstanding.
(iv) Notice. Not less than 20 calendar days prior to the Interest Increase
Date, the Company shall deliver notice to the Trustee in the manner
provided for in the Original Indenture and provide such notice through
the Trustee to DTC for dissemination through the DTC broadcast facility
in the Company's name and at the Company's expense, as to the Company's
election to pay such cash interest in accordance with this Section
208(c). Such notice shall specify:
(A) the interest rate per annum on the Debentures;
(B) the Interest Payment Dates;
(C) the related Regular Record Dates; and
(D) the Adjusted Principal Amount of each Debenture as of the Interest Increase
Date.
(d) Default Interest
If (i) any accrued cash interest payable on each Debenture in
accordance with Section 205(a) or (c) or (ii) the Adjusted Principal
Amount of any Debenture or any portion of such Adjusted Principal
Amount on any Debenture, is not paid when due (whether upon
acceleration pursuant to Section 6.01 of the Original Indenture, upon
any date set for payment of the Redemption Price pursuant to Section
207, upon any date set for payment of the Purchase Price pursuant to
Section 208, upon the date set for payment
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of the applicable Adjusted Principal Amount plus accrued cash interest
payable upon Stated Maturity or if the Reference Property (and cash in
lieu of fractional shares or units) or cash in lieu thereof in respect
of any exchange is not delivered or paid when due), then in each such
case, the overdue amount shall bear interest at the rate of 5.0% per
annum, which interest shall accrue from the date such overdue amount
was due to the date payment of such amount, including interest thereon,
has been made or duly provided for. All such interest shall be payable
upon demand.
Section 206. Registration of Transfer and Exchange.
The Debentures may be surrendered for registration of transfer or
exchange 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 principal corporate trust office in The City of New
York designated from time to time for such purpose, as its agent for the
foregoing purposes; provided, however, 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 207. Redemption of the Debentures.
(a) Optional Redemption. No sinking fund is provided for the Debentures. The
Debentures will be redeemable for cash at the option of the Company, in whole or
in part at any time or from time to time after April 19, 2005, on at least 20
calendar days (but not more than 60 calendar days) prior notice to Holders of
the Debentures at a price per Debenture equal to the Adjusted Principal Amount
as of the date of redemption specified in such notice (the "Redemption Date")
plus accrued and unpaid cash interest to but excluding such Redemption Date (the
"Redemption Price"). Upon not less than 20 calendar days (but not more than 60
calendar days) prior to any Redemption Date, the Company shall deliver notice to
the Trustee in the manner provided for in the Original Indenture and provide
such notice through the Trustee to DTC for dissemination through the DTC
broadcast facility in the Company's name and at the Company's expense, as to the
Company's election to redeem the Debentures in whole or in part. Such notice
shall specify:
(i) the related Redemption Date;
(ii) the related Redemption Price;
(iii) the consideration to be delivered upon any exchange of Debentures
occurring between the date of such notice and the related Redemption
Date;
(iv) the CUSIP number of any Debentures subject to redemption; and
(v) such other applicable information specified in Section 3.03 of the Original
Indenture.
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(b) Interest Accrual to Cease. Once notice of redemption has been given and
funds are irrevocably deposited with the Trustee, cash interest and, if
applicable, Original Issue Discount, 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).
(c) 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.
Such notice shall be accompanied by an additional Officers' Certificate and an
Opinion of Counsel to the effect that such redemption will comply with the
conditions set forth in the Original Indenture and this Third Supplemental
Indenture.
Section 208. Purchase of the Debentures at Option of Holder.
(a) The Debentures shall be purchased by the Company in accordance with this
Section 208 at a price equal to the Adjusted Principal Amount per Debenture as
of any Purchase Date, plus any accrued and unpaid cash interest thereon to but
excluding such Purchase Date (the "Purchase Price"), at the option of the Holder
thereof, upon:
(i) delivery to the Trustee by the Holder of a written notice of purchase
(a "Purchase Notice") at any time from the opening of business on the
date that is 20 Business Days prior to a Purchase Date until the close
of business on such Purchase Date stating:
(A) the CUSIP number and certificate number(s) of the Debenture(s) that the
Holder will deliver to be purchased;
(B) the portion of the aggregate Original Principal Amount at
Maturity of the Debentures which the Holder will deliver to be
purchased, which portion must be $1,000 or an integral
multiple thereof;
(C) that such Debentures shall be purchased on the Purchase Date
pursuant to the terms and conditions specified in this Third
Supplemental Indenture and in the Debentures; and
(D) if the Company elects pursuant to Section 208(b) to pay the
Purchase Price on such Purchase Date, in whole or in part, in
Reference Property, but such portion of the Purchase Price to
be paid in Reference Property is ultimately to be paid in cash
because any condition in Section 210(a) is not satisfied, such
Holder elects (1) to withdraw such Purchase Notice as to some
or all of the Debentures to which it relates (stating the
aggregate Original Principal Amount at Maturity and
certificate numbers of the Debentures as to which such
withdrawal shall relate) or (2) to receive cash in respect of
the Purchase Price for all Debentures subject to such Purchase
Notice; and
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(ii) delivery of such Debentures prior to, on or after the Purchase Date
(together with all necessary endorsements) to the Paying Agent at the
offices of the Paying Agent, such delivery being a condition to receipt
by the Holder of the Purchase Price therefor; provided, however, that
such Purchase Price shall be so paid pursuant to this Section 208 only
if the Debentures so delivered conform in all respects to the
description thereof in the related Purchase Notice.
If a Holder, in such Holder's Purchase Notice and in any written notice
of withdrawal delivered by such Holder pursuant to the terms of Section 208(g),
fails to indicate such Holder's choice with respect to the election set forth in
clause (D) of Section 208(a)(i) above, such Holder shall be deemed to have
elected to receive cash in respect of the Purchase Price otherwise payable in
Reference Property.
The Company shall purchase from the Holder thereof, pursuant to this
Section 208, a portion of a Debenture if the Original Principal Amount at
Maturity of such portion is $1,000 or an integral multiple of $1,000. Provisions
of the Original Indenture and this Third Supplemental Indenture that apply to
the purchase of all of a Debenture also apply to the purchase of such portion of
such Debenture.
Notwithstanding anything herein to the contrary, any Holder delivering
to the Trustee the Purchase Notice contemplated by this Section 208(a) shall
have the right to withdraw at any time prior to the close of business on the
Purchase Date such Purchase Notice by delivery of a written notice of withdrawal
to the Trustee in accordance with Section 208(g).
The Trustee shall promptly notify the Company of the receipt by it of
any Purchase Notice or written notice of withdrawal thereof.
(b) Company's Right to Elect Manner of Payment of Purchase Price. The Debentures
to be purchased pursuant to Section 208(a) may be paid for, at the election of
the Company, in cash or Reference Property, or in any combination of cash and
Reference Property, subject to the conditions set forth in this Section 208. The
Company shall designate, in the Company Notice, whether the Company will
purchase the Debentures for cash or Reference Property, and, if a combination
thereof, the percentages of the Purchase Price of Debentures in respect of which
it will pay in cash or Reference Property; provided that the Company will pay
cash for fractional units or interests of Reference Property. For purposes of
determining the existence of potential fractional units or interests, all
Debentures subject to purchase by the Company held by a Holder shall be
considered together (no matter how many separate certificates are to be
presented). Each Holder whose Debentures are purchased pursuant to this Section
208 shall receive the same percentage of cash or Reference Property in payment
of the Purchase Price for such Debentures, except (i) as provided in Section
208(d) with regard to the payment of cash in lieu of fractional units or
interests of Reference Property and (ii) in the event that the Company is unable
to purchase the Debentures of a Holder or Holders for Reference Property because
any condition in Section 210(a) is not satisfied, the Company shall purchase the
Debentures of such Holder or Holders for cash. The Company may not change its
election with respect to the consideration (or components or percentages of
components thereof) to be paid once the Company has given notice thereof to
Holders except pursuant to Section 208(d).
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At least five Business Days before the Company Notice Date (as defined
below), the Company shall deliver an Officers' Certificate to the Trustee
specifying:
(i) the manner of payment selected by the Company;
(ii) the information required by Section 208(e);
(iii) that the conditions to such manner of payment set forth in Section 210 (a)
have or will be complied with; and
(iv) whether the Company desires the Trustee to give the notice required by
Section 208(e).
(c) Purchase with Cash. On the Purchase Date, at the option of the Company, the
Original Principal Amount at Maturity of the Debentures in respect of which a
Purchase Notice pursuant to Section 208(a) has been given, or a specified
percentage thereof, may be purchased by the Company with cash equal to the
aggregate Purchase Price of such Debentures.
(d) Payment by Reference Property. On each Purchase Date, at the option of the
Company, the Original Principal Amount at Maturity of the Debentures in respect
of which a Purchase Notice pursuant to Section 208(a) has been given, or a
specified percentage thereof, may be purchased by the Company by the delivery of
a fraction of the Reference Property then attributable to the Debentures equal
to the quotient obtained by dividing (i) the amount of cash to which the Holders
would have been entitled had the Company elected to pay all or such specified
percentage, as the case may be, of the Purchase Price of such Debentures in cash
by (ii) the Reference Property Value of such Reference Property, subject to the
next succeeding paragraph.
The Company will not issue fractional units or interests of Reference
Property in payment of the Purchase Price. Instead the Company will pay cash in
an amount equal to the Reference Property Value of any such fractional units or
interests. The Reference Property Value of a fraction of such units or interests
shall be determined by multiplying the Reference Property Value for purposes of
Section 208(d)(ii) by such fraction and rounding the product to the nearest
whole cent, with one-half cent being rounded upward. It is understood that if a
Holder elects to have more than one Debenture purchased, the Reference Property
to be delivered shall be based on the aggregate Original Principal Amount at
Maturity of Debentures to be purchased. Upon a payment by Reference Property
pursuant to the terms hereof, that portion of accrued Original Issue Discount
attributable to the period from the Issue Date to the Purchase Date with respect
to any purchased Debenture shall not be cancelled, extinguished or forfeited but
rather shall be deemed paid in full to the Holder through the delivery of the
Reference Property in exchange for the Debenture being purchased pursuant to the
terms hereof, and the Reference Property Value of such Reference Property
(together with any cash payments in lieu of fractional units or interests of
Reference Property) shall be treated as issued, to the extent thereof, first in
exchange for the Original Issue Discount accrued through the Purchase Date, and
the balance, if any, of the Reference Property Value of such Reference Property
shall be treated as issued in exchange for the Issue Price of the Debenture
being purchased pursuant to the provisions hereof.
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(e) Notice of Election. The Company shall deliver notices of its election (the
"Company Notice") to purchase with cash or Reference Property or any combination
thereof to the Holders (and to beneficial owners as required by applicable law).
The Company shall deliver notice to the Trustee in the manner provided for in
the Original Indenture and provide such notice through the Trustee to DTC for
dissemination through the DTC broadcast facility in the Company's name and at
the Company's expense; provided, however, that in all cases the text of such
notice shall be prepared by the Company.
The Company Notice shall be sent to Holders (and to beneficial owners
as required by applicable law) on a date not less than 20 Business Days prior to
the Purchase Date (such date not less than 20 Business Days prior to the
Purchase Date being herein referred to as the "Company Notice Date"). Such
notices shall state the manner of payment elected and shall contain the
following information:
(i) In the event the Company has elected to pay the Purchase Price (or any
specified percentage thereof) with Reference Property, the notice shall
state that each Holder will receive Reference Property with a Reference
Property Value determined as of a specified date prior to the Purchase
Date equal to such specified percentage of the Purchase Price of the
Debentures held by such Holder (except for any cash amount to be paid
in lieu of fractional units or interests);
(ii) In any case, each notice shall include a form of Purchase Notice to be
completed by the Holder and shall state:
(A) the Purchase Price;
(B) the name and address of the Trustee and the Paying Agent;
(C) that Debentures as to which a Purchase Notice has been given
may be exchanged into Reference Property at any time prior to
the close of business on the applicable Purchase Date only if
the applicable Purchase Notice has been withdrawn in
accordance with the terms of this Third Supplemental
Indenture;
(D) that the Debentures must be surrendered to the Paying Agent to collect
payment;
(E) that the Purchase Price for any Debenture as to which a
Purchase Notice has been given and not withdrawn will be paid
no later than the tenth Business Day immediately succeeding
the Purchase Date;
(F) the procedures the Holder must follow to exercise rights under this Section
208 and a brief description of those rights;
(G) briefly, the exchange rights of the Holders of the Debentures
and that Holders who want to exchange Debentures must satisfy
the requirements set forth in Section 209 hereof; and
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(H) the procedures for withdrawing a Purchase Notice (including,
without limitation, for a conditional withdrawal pursuant to
the terms of Section 208(a)(i)(D)).
Upon determination of the Reference Property, if applicable, to be
delivered in respect of the Purchase Price for each $1,000 Original Principal
Amount at Maturity of Debentures, the Company will publish notice of such
determination and the related Reference Property Value in The Wall Street
Journal or another daily newspaper of national circulation.
(f) Procedure Upon Purchase. The Company shall deposit cash (in respect of a
cash purchase under Section 208(c) or for fractional units or interests, as
applicable) or Reference Property, or any combination thereof, as applicable,
with the Trustee or Paying Agent prior to 12:00 p.m., New York City time, on the
fifth Business Day following the Purchase Date, sufficient to pay the aggregate
Purchase Price of all Debentures to be purchased pursuant to this Section 208.
As soon as practicable after the later of the Purchase Date and the date such
Debentures are surrendered to the Paying Agent, the Company shall deliver to
each Holder entitled to receive Reference Property through the Paying Agent such
Reference Property and cash in lieu of any fractional units or interests.
(g) Payment of Purchase Price; Withdrawal of Purchase Notice. Upon receipt by
the Paying Agent of the Purchase Notice, the Holder of the Debentures in respect
of which such Purchase Notice was given shall (unless such Purchase Notice is
withdrawn as specified in the following two paragraphs) thereafter be entitled
to receive solely the Purchase Price with respect to such Debentures. Such
Purchase Price shall be paid to such Holder no later than the tenth Business Day
following the Purchase Date with respect to such Debenture (provided the
conditions in Section 210(a), have been satisfied). If the Paying Agent holds
cash or Reference Property sufficient to pay the Purchase Price of such
Debentures, plus accrued cash interest, if any, on the tenth Business Day
immediately succeeding the Purchase Date, such Debentures will cease to be
Outstanding and cash interest and Original Issue Discount will cease to accrue
and will be deemed paid, whether or not such Debentures are delivered to the
Paying Agent, and all other rights of the related Holders shall terminate (other
than the right to receive the Purchase Price, plus accrued cash interest, if
any, upon delivery of such Debentures). Debentures in respect of which a
Purchase Notice has been given by the Holder thereof may not be exchanged into
Reference Property on or after the date of the delivery of such Purchase Notice
unless such Purchase Notice has first been validly withdrawn as specified in the
following two paragraphs.
A Purchase Notice may be withdrawn by means of a written notice of
withdrawal delivered to the office of the Paying Agent at any time on or prior
to the Purchase Date specifying:
(i) the CUSIP number and the certificate number(s) of the Debenture(s) in
respect of which such notice of withdrawal is being
submitted;
(ii) the aggregate Original Principal Amount at Maturity of the Debentures
with respect to which such notice of withdrawal is being submitted; and
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(iii) the aggregate Original Principal Amount at Maturity, if any, of such
Debentures which remain subject to the original Purchase Notice and
which has been or will be delivered for purchase by the Company.
A written notice of withdrawal of a Purchase Notice may be in the form
set forth in the preceding paragraph or may be in the form of (i) a conditional
withdrawal contained in a Purchase Notice pursuant to the terms of Section
208(a)(i)(D) or (ii) a conditional withdrawal containing the information set
forth in Section 208(a)(i)(D) and the preceding paragraph and contained in a
written notice of withdrawal delivered to the Paying Agent as set forth in the
preceding paragraph.
There shall be no purchase of any Securities pursuant to this Section
208 (other than through the issuance of Reference Property in payment of the
Purchase Price, including cash in lieu of fractional units or interests of
Reference Property) if there has occurred (prior to, on or after, as the case
may be, the giving, by the Holders of such Debentures, of the required Purchase
Notice) and is continuing an Event of Default (other than a default in the
payment of the Purchase Price with respect to such Debentures). The Paying Agent
will promptly return to the respective Holders thereof any Debentures (x) with
respect to which a Purchase Notice has been withdrawn in compliance with this
Indenture or (y) held by it during the continuance of an Event of Default (other
than a default in the payment of the Purchase Price with respect to such
Debentures) in which case, upon such return, the Purchase Notice with respect
thereto shall be deemed to have been withdrawn.
(h) Covenant to comply with Securities Laws upon Purchase of Debentures. In
connection with any offer to purchase or purchase of Debentures under this
Section 208, the Company shall (i) comply with Rule 13e-4 and Rule 14e-1 under
the Exchange Act, if applicable, (ii) file the related Schedule 13E-4 (or any
successor schedule, form or report) under the Exchange Act, if applicable, and
(iii) otherwise comply with all Federal and state securities laws regulating the
offer and delivery of Reference Securities upon purchase of the Debentures
(including positions of the United States Securities and Exchange Commission
under applicable no-action letters) so as to permit the rights and obligations
under this Section 208 to be exercised in the time and in the manner specified
herein.
(i) Repayment to the Company. The Trustee and the Paying Agent shall return to
the Company, upon written request, any cash or Reference Property, together with
interest on such cash as hereinafter provided and dividends and distributions on
such Reference Property, if any, held by them for the payment of a Purchase
Price of the Debentures that remain unclaimed as provided in the Original
Indenture; provided, however, that to the extent that the aggregate amount of
cash or Reference Property deposited by the Company in respect of any such
Purchase Price exceeds the aggregate Purchase Price of the Debentures or
portions thereof to be purchased, then promptly after the Business Day following
the payment of such Purchase Price to the applicable Holders, the Trustee shall
return any such excess to the Company together with interest as hereinafter
provided or dividends, if any, thereon. Any cash deposited with the Trustee or
with the Paying Agent pursuant to this Section 208 hereof, shall be invested by
the Trustee or Paying Agent, as applicable, in short term obligations of, or
fully guaranteed by, the United States of America, or commercial paper rated A-1
or better by Standard and Poor's Corporation or P-1 or better by Moody's
Investors Service, Inc. as specifically directed in
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writing by the Company. If the Company fails to so direct Trustee in writing,
Trustee may invest any cash deposited with it in money market funds (including
funds of the Trustee and its affiliates for which they may receive
compensation). Interest earned on such investments shall be repaid to the
Company pursuant to this Section 208(i). Except as provided for in this Section
208(i), the Trustee shall be under no liability for interest on any money
received by it pursuant hereto.
Section 209. Exchange of the Debentures.
(a) As specified below, each Debenture will be exchangeable at the option of the
Holder at any time (except as otherwise provided in subsection (f) below) for
the Reference Property attributable to that Debenture.
(b) The Company shall pay 100% of the Reference Property attributable to each
Debenture, only in cash, for all exchanges made prior to the Reference Shares
Eligibility Date. On and after the Reference Shares Eligibility Date, the
Company may, at its option, (i) pay 100% of the Reference Property Value of the
Reference Property attributable to each Debenture in cash, (ii) deliver the
Reference Property attributable to such Debenture or (iii) deliver a combination
of Reference Property and cash. Such payment or delivery will be made as
promptly as practicable, but in any event within ten Business Days after the
relevant Exchange Date. The Company shall notify the Exchange Agent of its
election to pay cash or deliver Reference Property, or a combination of the
foregoing, by no later than 9:30 a.m., New York City time, on the Trading Day
immediately succeeding 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 second Trading Day immediately
succeeding the applicable Exchange Date.
(c) To exchange a Debenture a Holder must (i) in the case of a Debenture held
through the Depositary, 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 Depositary
as may be applicable in the case of an exchange and (ii) in the case of a
Debenture held in certificated form, (A) complete and manually sign the Notice
of Exchange attached to the Debenture (or complete and sign a facsimile of the
Notice of Exchange) and deliver such Notice of Exchange to the Exchange Agent,
(B) surrender the Debenture to the Exchange Agent, (C) furnish appropriate
endorsements and transfer documents, if required by the Exchange Agent, the
Company or the Trustee and (D) 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 at Maturity or an integral multiple thereof. Following
the Exchange Date for an exchange of Debentures, the accrual of cash interest
and Original Issue Discount shall cease and 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).
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(d) As soon as practicable 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 aggregate Original Principal Amount at
Maturity of Debentures which has been tendered. When the Reference Property
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
Property to be delivered to the tendering Holder and shall deposit such amount
with the Exchange Agent. 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 in writing
by the tendering Holder.
(e) On exchange of a Debenture, that portion of accrued and unpaid cash interest
and Original Issue Discount attributable to the period from the Issue Date (or,
in the case of cash interest, the date on which interest was last paid or duly
provided for) to the Exchange Date with respect to the exchanged Debenture shall
not be cancelled, extinguished or forfeited, but rather shall be deemed to be
paid in full to the Holder thereof through delivery of the Reference Property in
exchange for the Debenture being exchanged pursuant to the terms hereof, and the
Reference Property (together with any cash payment in lieu of any fractional
units or interests of such Reference Property) shall be treated as a repayment,
to the extent thereof, first in exchange for the cash interest and Original
Issue Discount accrued through the Exchange Date, and the balance, if any, of
such Reference Property (and any such cash payment) shall be treated as issued
in exchange for the Issue Price of the Debenture being exchanged pursuant to the
provisions hereof.
(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,
on the Trading Day immediately preceding Stated Maturity; (ii) in the case of an
optional redemption in accordance with Section 207, at the close of business on
the Redemption Date, provided, that any such termination shall only apply to
Debentures that have been called for redemption; and (iii) in the case of
purchase by Company in accordance with Section 208, at the close of business on
the related Purchase Date, provided, that any such termination shall only apply
to Debentures that have been tendered for purchase as of such Purchase Date and
not withdrawn.
(g) If more than $5,000,000 aggregate Original Principal Amount at Maturity 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 dissemination through the DTC broadcast facility in the Company's name
and at the Company's expense.
Section 210. Distributions of Reference Securities.
(a) The Company's right to deliver Reference Securities shall be conditioned
upon:
(i) the registration of the Reference Securities to be delivered under the
Securities Act and the Securities Exchange Act, in each case, if
required; and
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(ii) any necessary qualification or registration under applicable state
securities laws or the availability of an exemption from such
qualification and registration.
If such conditions are not satisfied prior to or on any date of payment and the
Company elected to satisfy its obligations under the Debentures through the
delivery of Reference Securities in respect of any Reference Property, the
Company shall pay, without further notice, the applicable amount due in cash.
(b) The Company will not issue a fractional units or interests of Reference
Property upon exchange or purchase by the Company of a Debenture. Instead, the
Company will deliver cash for the Reference Property Value of such fractional
unit or interest.
(c) 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
Securities or any securities delivered in connection with the delivery of
Reference Property 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.
(d) The Company hereby warrants that upon delivery of any Reference Securities
or any securities delivered in connection with the delivery of Reference
Property pursuant hereto, the Holder of a Debenture shall receive all rights
held by the Company in the Reference Securities or 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 Reference Securities or
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 Reference Securities
or securities).
Section 211. Adjustment of Reference Property.
(a) Adjustment for Subdivisions, Splits, Combinations or Reclassifications.
If an issuer of a Reference Security shall:
(i) subdivide or split the outstanding units of such Reference Security
into a greater number of units;
(ii) combine the outstanding units of such Reference Security into a smaller
number of units; or
(iii) issue by reclassification of units of such Reference Security any units of
another security of such issuer;
then, in any such event, the Reference Property shall be adjusted to add or
substitute the number of units of
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such Reference Security and/or other security of such issuer which a holder of
units of such Reference Security would have owned or been entitled to receive
immediately following any event described above had such holder held,
immediately prior to such event, the number of units of such Reference Security
constituting part of the Reference Property immediately prior to such event.
Each such adjustment shall become effective immediately after the effective date
for such subdivision, split, combination or reclassification, as the case may
be. Each such adjustment shall be made successively.
(b) Adjustment for Issuance of Certain Rights or Warrants. If an issuer of a
Reference Security shall issue rights or warrants to all holders of such
Reference Security entitling them, for a period expiring prior to the fifteenth
calendar day following the Stated Maturity, to subscribe for or purchase any of
its securities or other property (other than rights to purchase units of such
Reference Security pursuant to a plan for the reinvestment of dividends or
interest), then in each such case, the Reference Property shall be adjusted to
include an amount in cash equal to the fair market value (determined as
described below), as of the fifth Business Day (except as provided below)
following the date on which such rights or warrants are received by
securityholders entitled thereto (the "Receipt Date"), of each such right or
warrant multiplied by the product of (A) the number of such rights or warrants
issued for each unit of such Reference Security and (B) the number of units of
such Reference Security constituting part of the Reference Property on the date
of issuance of such rights or warrants, immediately prior to such issuance,
without interest thereon. For purposes of this subsection (b), the fair market
value of each such right or warrant shall be determined by the Company and shall
be the quotient of (x) the highest net bid, as of approximately 10:00 A.M., New
York City time, on the fifth Business Day following the Receipt Date (for
settlement three Business Days later), by a recognized securities dealer in The
City of New York selected by or on behalf of the Company (from three (or such
fewer number of dealers as may be providing such bids) such recognized dealers
selected by or on behalf of the Company), for the purchase by such quoting
dealer of the number of rights or warrants (the "Aggregate Number") that a
holder of such Reference Security would receive if such holder held, as of the
record date for determination of stockholders entitled to receive such rights or
warrants, a number of units of such Reference Security equal to the product of
(1) the aggregate number of Debentures then Outstanding as of such record date
and (2) the number of units of such Reference Security constituting part of the
Reference Property, divided by (y) the Aggregate Number. Each such adjustment
shall become effective on the fifth Business Day following the Receipt Date of
such rights or warrants. If for any reason the Company is unable to obtain the
required bid on the fifth Business Day following the Receipt Date, it shall
attempt to obtain such bid at successive intervals of three months thereafter
and on the third Trading Day prior to the Exchange Date until it is able to
obtain the required bid. From the date of issuance of such rights or warrants
until the required bid is obtained, the Reference Property shall include the
number of such rights or warrants issued for each unit of such Reference
Security multiplied by the number of units of such Reference Security
constituting part of the Reference Property on the date of issuance of such
rights or warrants, immediately prior to such issuance, and such rights or
warrants constituting part of the Reference Property shall be deemed for
purposes of the definition of Reference Property Value and this Section 211 to
have a fair market value of zero.
(c) Adjustment for Distributions. If an issuer of a Reference Security shall pay
a dividend or make a distribution to all holders of such Reference Security of
cash, securities or other property (excluding any cash dividend on any Reference
Security consisting of capital
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stock that does not constitute an Extraordinary Cash Dividend, excluding any
payment of interest on any Reference Security consisting of an evidence of
indebtedness and excluding any dividend or distribution described in subsection
(a) or (b) above) or shall issue to all holders of such Reference Security
rights or warrants to subscribe for or purchase any of its securities or other
property (excluding any rights or warrants referred to in subsection (b) above)
(any of the foregoing being referred to herein as "Distributed Assets"), then in
each such case, the Reference Property shall be adjusted to include, from and
after such dividend, distribution or issuance, (x) in respect of that portion,
if any, of the Distributed Assets consisting of cash, the amount of such
Distributed Assets consisting of cash received for each unit of such Reference
Security multiplied by the number of units of such Reference Security
constituting part of the Reference Property on the date of such dividend,
distribution or issuance, immediately prior to such dividend, distribution or
issuance, without interest thereon, plus (y) in respect of that portion, if any,
of the Distributed Assets which are other than cash, the number or amount of
each type of Distributed Assets other than cash received with respect to each
unit of such Reference Security multiplied by the number of units of such
Reference Security constituting part of the Reference Property on the date of
such dividend, distribution or issuance, immediately prior to such dividend,
distribution or issuance.
(d) Adjustment for Consolidation, Merger or Other Reorganization Event. In the
event of (i) any consolidation or merger of a Reference Company with or into
another entity (other than a merger or consolidation in which such issuer is the
continuing corporation and in which the Reference Security outstanding
immediately prior to the merger or consolidation is not exchanged for cash,
securities or other property of such Reference Company or another entity), (ii)
any statutory exchange of securities of a Reference Company with another entity
(other than in connection with a merger or acquisition) or (iii) any
liquidation, dissolution, winding up or bankruptcy of a Reference Company
(excluding any distribution in such event referred to in subsection (c) above)
(any such event described in clause (i), (ii) or (iii), a "Reorganization
Event"), the Reference Property shall be adjusted to include, from and after the
effective date for such Reorganization Event, in lieu of the number of units of
such Reference Security constituting part of the Reference Property immediately
prior to the effective date for such Reorganization Event, the amount or number
of any cash, securities and/or other property owned or received in such
Reorganization Event with respect to each unit of such Reference Security
multiplied by the number of units of such Reference Security constituting part
of the Reference Property immediately prior to the effective date for such
Reorganization Event.
For purposes of this Section 211(d), (i) a conversion or redemption by
Sprint 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.
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(e) Adjustment for Reference Share Offers. In the event of a Reference Share
Offer with respect to the Reference Property is made, the Reference Property
shall be adjusted by the Reference Share Offer Adjustment.
(f) Adjustment for Cash Reorganization Event Distributions. In the event of a
Cash Reorganization Event, the Reference Property attributable to each Debenture
shall be reduced by the amount of the related Cash Reorganization Event
Distribution to be paid in respect of each Debenture effective on the date such
Cash Reorganization Event Distribution is made.
Section 212. Special Cash Payments.
(a) At any time, the Company may elect on any Interest Payment Date, upon not
less than 20 calendar days prior written notice in the manner provided below, to
make one or more payments in cash ("Special Cash Payments"), pro rata to Holders
of record on the fifteenth day (whether or not a Business Day) immediately
preceding the effective date of an election (which effective date shall be such
payment date), of all or part of the Adjusted Principal Amount of the Debentures
as of the date immediately preceding the effective date of such election. Any
such election shall be irrevocable.
(b) Any Special Cash Payment made with respect to the Debentures shall not
constitute a redemption of the Debentures, in whole or in part, but shall
represent payment of accrued Original Issue Discount and, to the extent any
Special Cash Payment amount exceeds the amount of accrued Original Issue
Discount on the Debentures, such amount shall represent a repayment of the Issue
Price in whole or in part.
(c) Any Special Cash Payment made with respect to the Debentures shall not
impair a Holder's rights to exchange such Holder's Debenture pursuant to Section
209 hereof nor shall any Special Cash Payment adjust the Reference Property
attributable to the Debentures.
(d) Not less than 20 calendar days prior to the date of any Special Cash
Payment, the Company shall deliver notice to the Trustee in the manner provided
for in the Original Indenture and provide such notice through the Trustee to DTC
for dissemination through the DTC broadcast facility in the Company's name and
at the Company's expense, as to the Company's election to make such Special Cash
Payment. Such notice shall specify:
(i) the amount of the related Special Cash Payment;
(ii) the related payment date (which must be a Business Day);
(iii) the related record date; and
(iv) the Adjusted Principal Amount of each Debenture as of the effective
date of the election, after giving effect to the Adjusted Principal
Amount Reduction as a result of the application of such Special Cash
Payment.
(e) The Company shall deposit cash in respect of any such Special Cash Payment
with the Trustee or Paying Agent prior to 12:00 p.m., New York City time, on the
Business Day immediately preceding the Interest Payment Date on which Special
Cash Payment will be made.
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Section 213. Cash Reorganization Event Distributions.
(a) As soon as practicable, and in any event not later than 20 Business Days,
following the date of any Cash Reorganization Event, the Company shall
distribute all of the Reference Property consisting of cash (a "Cash
Reorganization Event Distribution") to Holders of the Debentures. Any
distribution pursuant to this Section 213 shall be made by the Company to
Holders of Debentures as of a special record date which shall be the tenth
Business Day prior to the date of payment of such Cash Reorganization Event
Distribution, and shall be distributed pro rata to such Holders on the tenth
Business Day following such special record date, without interest thereon.
(b) Any Cash Reorganization Event Distribution made with respect to the
Debentures shall not constitute a redemption of the Debentures, in whole or in
part, but shall represent payment of accrued Original Issue Discount and, to the
extent the amount of any Cash Reorganization Event Distribution exceeds the
amount of accrued Original Issue Discount on the Debentures, such amount shall
represent a repayment of the Issue Price in whole or in part.
(c) Prior to the date of such Cash Reorganization Event to the extent
practicable, and in any event not later than five Business Days thereafter, the
Company shall deliver notice to the Trustee in the manner provided for in the
Original Indenture and provide such notice through the Trustee to DTC for
dissemination through the DTC broadcast facility in the Company's name and at
the Company's expense, as to the related Cash Reorganization Event Distribution.
Such notice shall specify:
(i) the description of such cash reorganization event and, briefly, the events
causing such Cash Reorganization Event;
(ii) the amount of the related Cash Reorganization Event Distribution;
(iii) a brief description of the remaining Reference Property and the
Adjusted Principal Amount of the Debentures after giving effect to the
reduction caused by application of such Cash Reorganization Event
Distribution;
(iv) the related payment date; and
(v) the related record date.
(d) The Company shall deposit cash in respect of any such Cash Reorganization
Event Distribution with the Trustee or Paying Agent prior to 12:00 p.m., New
York City time, on the Business Day immediately preceding the date of payment of
such Cash Reorganization Event Distribution.
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Section 214. Denominations.
The Debentures shall be issued in denominations of $1,000 Original
Principal Amount at Maturity and integral multiples thereof.
Section 215. 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 216. Security Registrar, Paying Agent and Exchange Agent.
The Trustee shall be the initial Paying Agent, initial Exchange 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, Exchange Agent and/or transfer agent and, from time to time,
to designate one or more co-registrars and one or more other Paying Agents,
Exchange 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. The rights, privileges, protections, immunities and benefits
given to the Trustee under the Original Indenture, including, without
limitation, its right to be indemnified, are extended to, and shall be
enforceable by, the Trustee in each of its capacities hereunder, and to each
agent, custodian and other Person employed to act hereunder.
Section 217. Global Debentures.
(a) The Debentures shall be issued in the form of one or more temporary or
global Debentures. The initial Depositary 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 Depositary notifies the Company that it
is unwilling or unable to continue as Depositary for the global Debentures, (ii)
the Depositary ceases to be a clearing agency under the Securities Exchange Act
and a successor Depositary is not appointed by the Company within 90 calendar
days, (iii) the Company in its sole discretion determines that the global
Debentures shall
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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 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 Depositary, as identified by the Depositary.
Section 218. Sinking Fund.
The Debentures shall not be subject to any sinking fund or similar
provision.
Section 219. Amendments to Certain Sections of the Original Indenture.
(a) The amendments to the Original Indenture contained in this Section 219 shall
apply only to the series of Debentures established pursuant to this Third
Supplemental Indenture.
(b) Clause (a) of Section 6.01 of the Original Indenture is hereby amended by
adding the word "cash" immediately preceding the word "interest" on the second
line thereof.
(c) Clause (b) of Section 6.01 of the Original Indenture is hereby amended by
adding the words "Adjusted Principal Amount, Issue Price, accrued Original Issue
Discount, Redemption Price, Purchase Price or any Cash Reorganization
Distribution" immediately following the words "if any," on the second line
thereof.
(d) 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 Reference Property (or cash in lieu of
any portion thereof) when such Reference Property is required
to be delivered (or such cash is required to be paid)
following an exchange of a Debenture in accordance with
Section 209 of the Third Supplemental Indenture, or to pay
cash in lieu of any fractional unit or interest, and
continuance of such default for 10 Business Days;"
(e) The seventh line of the fourth paragraph of Section 6.01 of the Original
Indenture is hereby amended by adding the word "cash" immediately preceding the
word "interest" in such line.
(f) Clause (i) of Section 9.02 of the Original Indenture is hereby amended by
adding the word "original" immediately preceding the words "principal amount" in
such clause and adding the words "at maturity" immediately succeeding the words
"principal amount" such clause.
(g) Clause (ii) of Section 9.02 of the Original Indenture is hereby amended by
adding the words "or alter the manner or rate of accrual of Original Issue
Discount, except as provided in the Third Supplemental Indenture" after the
words "any Coupon" in such clause.
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(h) Clause (iii) of Section 9.02 of the Original Indenture is hereby amended by
replacing the word "principal" and adding the words "the Adjusted Principal
Amount, the Redemption Price or the Purchase Price" in its place in such clause
and adding the words "except as provided in the Third Supplemental Indenture"
after the words "any Debt Security" in such clause.
(i) 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
Property deliverable upon exchange of the Debentures."
(j) Unless the context otherwise requires, all references to payment of
principal in the Original Indenture shall include the payment of the Adjusted
Principal Amount.
Section 220. 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 Debentures shall rank pari passu with the
PRIZES and the Premium PHONES.
Section 221. Tax Matters
The Company, the Trustee and each Holder of the Debentures, by virtue
of purchasing the Debentures, agree (a) to treat the Debentures, for United
States federal, state and local income tax purposes, as debt instruments that
are subject to the treasury regulations governing contingent payment debt
instruments that are contained in U.S. Treasury Regulation Section 1.1275-4 and
(b) to file all United States federal, state and local income, franchise and
estate tax returns consistent with the treatment set forth in clause (a) above
(in the absence of any change or clarification in applicable law, by regulation
or otherwise, requiring a different characterization or treatment thereof).
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 Third 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
Third Supplemental Indenture and all its provisions shall be
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deemed a part of the Original Indenture in the manner and to the extent
herein and therein provided.
This Third 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 Third 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.
30
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Third
Supplemental Indenture to be duly executed as of the day and year first above
written.
COX COMMUNICATIONS, INC.
By: /s/ Dallas S. Clement
------------------------------------------
Name: Dallas S. Clement
Title: Vice President and Treasurer
THE BANK OF NEW YORK, as Trustee
By:/s/ Annette Kos
------------------------------------------
Name: Annette Kos
Title: Assistant Vice President
<PAGE>
EXHIBIT A
Form of Exchangeable Subordinated Discount Debentures due 2020
THIS 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 CUSIP No. 224044 AX 5
Original Principal Amount at Maturity: $
Issue Price per $1,000 Original Principal Amount at Maturity: $425.89
Cox Communications, Inc.
Exchangeable Subordinated Discount Debentures due 2020
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 Adjusted Principal Amount of this Debenture on April 19,
2020 determined as provided in Section 204 of the Third Supplemental Indenture
referred to herein on April 19, 2020, and to pay interest as described below.
The Debentures shall bear interest in cash on each Debenture at the
rate of 1.0% of the Issue Price per Debenture per annum so long as the
Debentures are Outstanding. Such cash interest shall accrue from April 19, 2000
or from the most recent Interest Payment Date to which interest has been paid or
provided for, and shall be payable semiannually on April 19 and October 19 of
each year (each, an "Interest Payment Date"), commencing October 19, 2000, to
the Persons in whose names the Debentures (or one or more Predecessor
Securities) are registered at the close of business on the Business Day
immediately preceding such Interest
A-1-1
<PAGE>
Payment Date ("Regular Record Date"). Accrual of cash interest payable on each
Debenture shall be calculated on the basis of a 360-day year composed of twelve
30-day months, and such cash interest shall be calculated without regard to
changes in the Adjusted Principal Amount. Cash interest payments may be
increased in accordance with Section 205(c) of the Third Supplemental Indenture.
For any Interest Period (or portion thereof), Original Issue Discount
shall accrue on the applicable Adjusted Principal Amount of each Debenture as
determined in accordance with Section 208(b)(iii) and (iv) of the Third
Supplemental Indenture, in an amount equal to the excess (if an amount greater
than zero) of (A) the amount of interest accrued on such Debenture during such
Interest Period (or portion thereof) that represents an annualized yield of 5.0%
on the Adjusted Principal Amount of such Debenture over (B) the amount of
accrued cash interest for such Interest Period (or portion thereof) payable on
each Debenture in accordance with Section 205(a) of the Third Supplemental
Indenture.
Accrual of Original Issue Discount on each Debenture shall be
calculated on the basis of a 360-day year composed of twelve 30-day months and
shall commence on the Issue Date, and shall cease to accrue on the earliest of:
(A) the date on which such Debenture is no longer Outstanding; (B) the effective
date of the Company's election to increase semiannual cash interest payments as
provided in Section 205(c) of the Third Supplemental Indenture; and (C) the date
on which cash interest payable in accordance with Section 205(a) thereof
represents an annualized yield of 5.0% or more on the Adjusted Principal Amount
of such Debenture for the related Interest Period.
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 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 Adjusted Principal Amount, interest and any other cash
amounts in respect of this Debenture at Stated Maturity or any Redemption Date
or Purchase Date will be made in immediately available funds upon presentation
and surrender of this Debenture (and with respect to any purchase by the Company
of this Debenture in certified form, upon delivery of a duly completed election
form as contemplated on the reverse hereof) at the corporate trust office of the
Trustee maintained for that purpose in the Borough of Manhattan, The City of New
York, currently located at 101 Barclay Street, Floor 21 West, New York, New York
10286, or at such other paying agency in the Borough of Manhattan, The City of
New York, as the Company may determine. Payment of interest or other cash
amounts due on any Interest Payment Date or other payment date other than at
Stated Maturity or any Redemption Date or Purchase Date will be made at the
aforementioned office or agency maintained by the Company, provided, however,
that, at the option of the Company, interest or such other payments may be paid
by check mailed
A-1-2
<PAGE>
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
Depositary may be made by wire transfer to the account designated by DTC or such
successor Depositary 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 Third 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
at Stated Maturity specified in the Third Supplemental Indenture between the
Company and the Trustee, dated as of April 19, 2000, establishing the terms of
the Debentures pursuant to the Indenture (the "Third Supplemental Indenture").
The Debentures are, to the extent provided herein, in the Indenture and
in the Third Supplemental Indenture, subordinate and subject in right of payment
to the prior payment in full of all Senior Indebtedness (as defined in the Third
Supplemental Indenture), and each Holder of this Debenture by accepting the
same, agrees to and shall be bound by the provisions hereof, of the Third
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 April 19, 2005, on the
terms set forth in Section 207(a) of the Third Supplemental Indenture.
The Debentures are subject to purchase by the Company, at the option of
the Holder thereof, on the terms set forth in Section 208 of the Third
Supplemental Indenture.
The Debentures are exchangeable at the option of the Holders thereof,
on the terms set forth in Section 209 of the Third Supplemental Indenture.
In accordance with the Third Supplemental Indenture, Special Cash
Payments and Cash Reorganization Event Distributions may be made on the
Debentures.
If an Event of Default (as defined in the Indenture, including the
amendments thereto in the Third 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.
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
Original Principal Amount at Stated Maturity of the Securities at the time
Outstanding of each
A-1-3
<PAGE>
series affected thereby. The Original Indenture also contains provisions
permitting the Holders of specified percentages in aggregate Original Principal
Amount at Stated Maturity 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 Adjusted Principal 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 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 Adjusted Principal Amount, interest and any
other cash amounts 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 at Stated Maturity, 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 Third 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 at Stated Maturity 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.
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
A-1-4
<PAGE>
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 (without regard to principles of conflicts of
law).
All terms used in this Debenture which are defined in the Original
Indenture or the Third Supplemental Indenture shall have the meanings assigned
to them in the Original Indenture or the Third 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.
A-1-5
<PAGE>
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
COX COMMUNICATIONS, INC.
By:
-----------------------------------
Name: Dallas S. Clement
Title: Vice President and Treasurer
By:
-----------------------------------
Name: Jimmy W. Hayes
Title: Executive Vice President
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Debentures of the series designated herein referred
to in the within-mentioned Indenture.
Dated: April 19, 2000 THE BANK OF NEW YORK,
as Trustee
By:
-------------------------
Authorized Signatory
A-1-6
<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:
<TABLE>
<S> <C> <C> <C> <C>
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Change in Original Original Principal
Original Principal Principal Amount at Amount at Maturity
Amount at Maturity of Maturity of this of this Debenture
this Debenture as of Date Exchange Debenture due to following such
April 19, 2000 Made Exchange exchange Notation made by
- ------------------------- ---------------------- ----------------------- ---------------------- ======================
- ------------------------- ---------------------- ----------------------- ---------------------- ======================
$400,000,000
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</TABLE>
<PAGE>
ANNEX A
NOTICE OF EXCHANGE
The Bank of New York
101 Barclay Street
New York, NY 10286
Re: Exchangeable Subordinated Discount Debentures
due 2020 (the "Debentures")
Gentlemen:
The undersigned Holder of Debentures hereby gives notice of its
intention to exchange $______________ aggregate original principal amount at
maturity 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:
<PAGE>
ANNEX B
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Debenture purchased by the Company
pursuant to Section 208 of the Third Supplemental Indenture, check this box:
[ ]
If you want to elect to have only part of this Debenture purchased by
the Company pursuant to Section 208 of the Third Supplemental Indenture, state
the amount you elect to have purchased in a denomination of $1,000 original
principal amount at maturity or an integral multiple thereof:
$
Date: Your Signature:
---------------------- ----------------
- -------------------------------------------------------------------------------
(Sign exactly as your name appears on the other side of this Debenture)
* Your signature must be guaranteed by an "eligible guarantor institution"
meeting the requirements of the Registrar, which requirements include membership
or participation in the Security Transfer Agent Medallion Program ("STAMP") or
such other "signature guarantee program" as may be determined by the Registrar
in addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.
Exhibit 99.1
FOR IMMEDIATE RELEASE APRIL 20, 2000
COX COMMUNICATIONS ANNOUNCES CLOSING OF
EXCHANGEABLE SUBORDINATED DISCOUNT DEBENTURES
ATLANTA -- Cox Communications, Inc. (NYSE:COX) today announced
consummation of the offering of Exchangeable Subordinated Discount Debentures
due 2020 resulting in net proceeds of approximately $682.5 million ("Discount
Debentures"). The aggregate principal amount at maturity of the Discount
Debentures amounts to approximately $1.6 billion. Credit Suisse First Boston and
Merrill Lynch & Co. acted as joint book-running managers for the offering.
Prior to April 19, 2002, the Discount Debentures are exchangeable at
the option of the holder for cash in an amount based on the value of the
underlying reference property, which are initially shares of Sprint PCS stock.
On or after that date, the Discount Debentures can be exchanged by the holders
for, at Cox's option, cash, the underlying reference property or a combination
of both. A more detailed description of the terms of the Discount Debentures and
the offering is available in the final prospectus supplement, dated April 13,
2000, as supplemented and filed with the SEC on April 18, 2000. The Discount
Debentures are listed and traded on the New York Stock Exchange (NYSE) under the
trading symbol "COX DC20".
Cox Communications, Inc. serves approximately 6 million customers
nationwide, making it the nation's fifth largest cable television company. A
full-service provider of telecommunications products, Cox offers an array of
services, including cable television under the Cox Cable brand; local and long
distance telephone services under the Cox Digital Telephone brand; high-speed
Internet access under the brands Cox@Home, Road Runner and Cox Express; advanced
digital video programming services under the Cox Digital Cable brand; and
commercial voice and data services via Cox Business Services. Cox is an investor
in telecommunications companies including Sprint PCS and Excite@Home, as well as
programming networks including Discovery Channel, The Learning Channel, Outdoor
Life and Speedvision. More information about Cox Communications can be accessed
on the Internet at www.cox.com.
# # #
Contact: Amy Cohn
404/843-5769
