EXHIBIT 1(b)
______________________________________________________________________________
______________________________________________________________________________
COX COMMUNICATIONS, INC.
(a Delaware corporation)
REGISTRATION AGREEMENT
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Dated: May 22, 1996
______________________________________________________________________________
______________________________________________________________________________
TABLE OF CONTENTS
SECTION 1. Representations and Warranties.................................................... 3
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Representations and Warranties by the Company............................................ 3
Compliance with Registration Requirements......................................... 3
Incorporated Documents............................................................ 4
Independent Accountants........................................................... 4
Financial Statements.............................................................. 4
No Material Adverse Change in Business............................................ 5
Good Standing of the Company...................................................... 5
Good Standing of Subsidiaries..................................................... 5
Capitalization.................................................................... 6
Description of Common Stock....................................................... 6
Authorization of Agreement........................................................ 6
Absence of Defaults and Conflicts................................................. 6
Absence of Labor Dispute.......................................................... 6
Absence of Proceedings............................................................ 7
Accuracy of Exhibits.............................................................. 7
Possession of Intellectual Property............................................... 7
Absence of Further Requirements................................................... 7
Possession of Licenses and Permits................................................ 7
Title to Property................................................................. 8
Compliance with Cuba Act.......................................................... 8
Investment Company Act............................................................ 8
Environmental Laws................................................................ 8
Officer's Certificates................................................................... 9
SECTION 2. Covenants of the Company.......................................................... 9
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Compliance with Securities Regulations and Commission Requests........................... 9
Filing of Amendments..................................................................... 9
Delivery of Cox Registration Statements.................................................. 10
Delivery of Cox Prospectuses............................................................. 10
Continued Compliance with Securities Laws................................................ 10
Blue Sky Qualifications.................................................................. 10
Rule 158................................................................................. 11
Restriction on Sale of Securities........................................................ 11
Reporting Requirements................................................................... 11
SECTION 3. Payment of Expenses............................................................... 11
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Expenses................................................................................. 11
SECTION 4. Indemnification................................................................... 12
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Indemnification of Underwriter and ML&Co................................................. 12
Indemnification of Company, Directors, Officers.......................................... 13
Actions against Parties; Notification.................................................... 13
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Settlement without Consent if Failure to Reimburse..................................... 14
SECTION 5. Contribution.................................................................. 14
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SECTION 6. Representations, Warranties and Agreements to Survive Delivery................ 15
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SECTION 7. Termination................................................................... 15
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SECTION 8. Notices....................................................................... 15
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SECTION 9. Parties....................................................................... 16
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SECTION 10. GOVERNING LAW................................................................. 16
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SECTION 11. Effect of Headings............................................................ 16
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COX COMMUNICATIONS, INC.
(a Delaware corporation)
REGISTRATION AGREEMENT
----------------------
May 22, 1996
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
North Tower
World Financial Center
New York, New York 10281-1209
MERRILL LYNCH & CO., INC.
North Tower
World Financial Center
New York, New York 10281-1209
Ladies and Gentlemen:
Cox Communications, Inc., a Delaware corporation (the "Company"), and Cox
Enterprises, Inc., a Delaware corporation ("CEI"), confirm their respective
agreements with Merrill Lynch & Co., Inc., a Delaware corporation ("ML&Co."),
and with Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated
(the "Underwriter"), in connection with the proposed issue and sale by ML&Co. to
the Underwriter, pursuant to an underwriting agreement, dated the date hereof
(the "Underwriting Agreement"), among ML&Co., CEI and the Underwriter, of an
aggregate of 8,500,000 of ML&Co.'s Structured Yield Product Exchangeable for
Stock/SM/, 6% STRYPES/SM/ due June 1, 1999 (each, a "STRYPES"), payable at
maturity or upon redemption by delivery of shares of Class A Common Stock, par
value $1.00 per share (the "Cox Common Stock"), of the Company, and, at the
option of the Underwriter, all or any part of 1,275,000 additional STRYPES to
cover over-allotments, if any. The aforesaid 8,500,000 STRYPES (the "Initial
Securities") to be purchased by the Underwriter and all or any part of the
1,275,000 STRYPES subject to the option described in Section 2(b) of the
Underwriting Agreement (the "Option Securities") are hereinafter called,
collectively, the "Securities." Capitalized terms used herein and not otherwise
defined shall have the meanings ascribed to them in the Underwriting Agreement.
1
The Company understands that the Underwriter proposes to make a public
offering of the Securities as soon as the Underwriter deems advisable after this
Agreement and the Underwriting Agreement have been executed and delivered. The
Company acknowledges that the execution and delivery of this Agreement is a
condition to the execution and delivery of the Underwriting Agreement by the
Underwriter and ML&Co. and that, in consideration of the execution and delivery
of the Underwriting Agreement by the Underwriter and ML&Co., the Company is
willing to make the representations, warranties and covenants herein contained.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 333-03351) covering the
registration of (i) the shares of Cox Common Stock deliverable at maturity or
upon redemption of the Securities and (ii) 4,225,000 shares of Cox Common Stock
(the "Pledged Shares") that may be pledged to and sold by or on behalf of the
ML&Co. Subsidiary (as defined below) under the Securities Act of 1933, as
amended (the "1933 Act"), including the related preliminary prospectus or
prospectuses. Each prospectus used before such registration statement became
effective is herein called a "Cox preliminary prospectus." Such registration
statement, including the exhibits thereto, the schedules thereto, if any, and
the documents incorporated by reference therein pursuant to Item 12 of Form S-3
under the 1933 Act, at the time it became effective, is herein called the "Cox
Registration Statement." Any registration statement filed pursuant to Rule
462(b) of the rules and regulations of the Commission under the 1933 Act (the
"1933 Act Regulations") is herein referred to as the "Cox Rule 462(b)
Registration Statement," and after such filing the term "Cox Registration
Statement" shall include the Cox Rule 462(b) Registration Statement. The final
prospectus, including the documents incorporated by reference therein pursuant
to Item 12 of Form S-3 under the 1933 Act, in the form first furnished to the
Underwriter for use in connection with the offering of the Securities is herein
called the "Cox Securities Prospectus." The prospectus, including the documents
incorporated by reference therein pursuant to Item 12 of Form S-3 under the 1933
Act, in the form furnished from time to time to the ML&Co. Subsidiary for use in
connection with the sale of the Pledged Shares is herein called the "Pledged
Share Prospectus" and, together with the Cox Securities Prospectus, the "Cox
Prospectus." For purposes of this Agreement, all references to the Cox
Registration Statement, any Cox preliminary prospectus, the Cox 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 Cox
Registration Statement, any Cox preliminary prospectus or the Cox 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 Cox Registration Statement, any Cox preliminary prospectus
or the Cox Prospectus, as the case may be; and all references in this Agreement
to amendments or supplements to the Cox Registration Statement, any Cox
preliminary prospectus or the Cox Prospectus shall be deemed to mean and include
the filing of any document under the Securities Exchange Act of 1934, as amended
(the "1934 Act"), which is incorporated by reference in the Cox Registration
Statement, such Cox preliminary prospectus or the Cox Prospectus, as the case
may be.
2
Prior to the closing under the Underwriting Agreement, ML&Co., Merrill
Lynch Capital Services, Inc., a wholly-owned subsidiary of ML&Co. (the "ML&Co.
Subsidiary"), and CEI will enter into a contract (the "STRYPES Agreement"),
pursuant to which CEI will be obligated to deliver to the ML&Co. Subsidiary,
immediately prior to the maturity date or date of redemption of the Securities,
a number of shares of Cox Common Stock equal to the number required by ML&Co. to
pay and discharge or redeem all of the Securities, subject to CEI's option,
exercisable in its sole discretion, to satisfy its obligation under the STRYPES
Agreement by delivering immediately prior to the maturity date a specified
amount of cash in lieu of such shares.
SECTION 1. Representations and Warranties.
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(a) Representations and Warranties by the Company. The Company represents
and warrants to each of the Underwriter and to ML&Co. as of the date hereof, as
of the Closing Time referred to in Section 2(c) of the Underwriting Agreement,
and as of each Date of Delivery (if any) referred to in Section 2(b) of the
Underwriting Agreement, and agrees with each of the Underwriter and ML&Co. as
follows:
(i) Compliance with Registration Requirements. The Company meets
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the requirements for the use of Form S-3 under the 1933 Act. Each of the
Cox Registration Statement and any Cox Rule 462(b) Registration Statement
has become effective under the 1933 Act and no stop order suspending the
effectiveness of the Cox Registration Statement or any Cox 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 Cox Registration Statement, any Cox Rule
462(b) Registration Statement and any post-effective amendments thereto
became effective and at the Closing Time (and at the Date of Delivery if
any Option Securities are purchased and at the date of delivery of the
Pledged Share Prospectus to the ML&Co. Subsidiary if any Pledged Shares are
sold), the Cox Registration Statement, the Cox Rule 462(b) Registration
Statement and any amendments and supplements thereto complied and will
comply in all material respects with the requirements of the 1933 Act and
the 1933 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 Cox Prospectus nor any amendments or supplements
thereto, at the time the Cox Prospectus or any such amendment or supplement
was issued and at the Closing Time (and at the Date of Delivery if any
Option Securities are purchased and at the date of delivery of the Pledged
Share Prospectus to the ML&Co. Subsidiary if any Pledged Shares are sold),
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 Cox
Registration Statement or Cox Prospectus made in reliance upon and in
conformity with (x) information furnished to the Company in writing by the
Underwriter expressly for use in the Cox Registration
3
Statement or Cox Prospectus and (y) information furnished to the Company in
writing by ML&Co. expressly for use in the Cox Registration Statement or
Cox Prospectus.
Each Cox preliminary prospectus and the Cox Prospectus filed as part
of the Cox 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, if applicable, each Cox preliminary prospectus and the Cox
Prospectus delivered to the Underwriter for use in connection with the
offering of the Securities was identical 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
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to be incorporated by reference in the Cox Registration Statement and the
Cox 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 Cox Prospectus, at the time the
Cox Registration Statement became effective, at the time the Cox Prospectus
was issued and at the Closing Time (and at the Date of Delivery if any
Option Securities are purchased and at the date of delivery of the Pledged
Share Prospectus to the ML&Co. Subsidiary if any Pledged Shares are sold),
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.
(iii) Independent Accountants. The accountants who certified the
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financial statements and supporting schedules of the Company and its
subsidiaries, and of Times Mirror Cable Television, Inc. and its
subsidiaries ("Times Mirror"), included in the Cox Registration Statement
are independent public accountants as required by the 1933 Act and the 1933
Act Regulations.
(iv) Financial Statements. The financial statements of the Company
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included in the Cox Registration Statement and the Cox 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 Times Mirror
included in the Cox Registration Statement and the Cox Prospectus, together
with the related notes, present fairly the financial position of Times
Mirror and its consolidated subsidiaries at the dates indicated and the
statement of operations, stockholders' equity and cash flows of Times
Mirror 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 supporting
schedules, if any, included in the Cox
4
Registration Statement present fairly in accordance with GAAP the
information required to be stated therein. The selected financial data and
the summary financial information included in the Cox Prospectus present
fairly the information shown therein and have been compiled on a basis
consistent with that of the audited financial statements of the Company and
its subsidiaries included in the Cox Registration Statement. The selected
pro forma financial data included in the Cox Prospectus present fairly the
information shown therein and have been compiled from pro forma financial
statements prepared in accordance with the Commission's rules and
guidelines with respect to pro forma financial statements.
(v) No Material Adverse Change in Business. Since the respective
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dates as of which information is given in the Cox Registration Statement
and the Cox 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.
(vi) Good Standing of the Company. The Company has been duly
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organized and is validly existing as a corporation in good standing under
the laws of the State of Delaware and has the corporate power and authority
to own, lease and operate its properties and to conduct its business as
described in the Cox 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"
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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 in good standing under
the laws of the jurisdiction of its incorporation, has corporate power and
authority to own, lease and operate its properties and to conduct its
business as described in the Cox 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 Cox
Registration Statement, all of the 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. The only subsidiaries of the
5
Company are (A) the subsidiaries listed on Exhibit 21 to the Annual Report
on Form 10-K of the Company filed with the Commission under Section 13 of
the 1934 Act 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
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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) Description of Common Stock. The Cox Common Stock conforms to
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all statements relating thereto contained in the Cox Prospectus and such
description conforms to the rights set forth in the instruments defining
the same.
(x) Authorization of Agreement. This Agreement has been duly
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authorized, executed and delivered by the Company.
(xi) Absence of Defaults and Conflicts. Neither the Company nor
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any of its subsidiaries is in violation of its charter or bylaws 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 subsidiary 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 of this Agreement and the consummation of the transactions
contemplated herein and compliance by the Company with its obligations
hereunder 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 subsidiary 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 bylaws of the Company or any subsidiary or any applicable
law, statute, rule, regulation, judgment, order, writ or decree of any
government, government instrumentality or court, domestic or foreign,
having jurisdiction over the Company or any subsidiary 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 of the Company or any subsidiary (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 subsidiary.
(xii) Absence of Labor Dispute. No labor dispute with the
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employees of the Company or any subsidiary exists or, to the knowledge of
the Company, is imminent,
6
that, individually or in the aggregate, may reasonably be expected to
result in a Material Adverse Effect.
(xiii) 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 subsidiary, which is required to be disclosed in the Cox 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 performance by the Company of its obligations hereunder; the
aggregate of all pending legal or governmental proceedings to which the
Company or any subsidiary is a party or of which any of their respective
property or assets is the subject which are not described in the Cox
Registration Statement, including ordinary routine litigation incidental to
the business, could not reasonably be expected to result in a Material
Adverse Effect.
(xiv) Accuracy of Exhibits. There are no contracts or documents
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which are required to be described in the Cox Registration Statement, the
Cox Prospectus or the documents incorporated by reference therein or to be
filed as exhibits thereto which have not been so described or filed as
required.
(xv) Possession of Intellectual Property. Except as disclosed in
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the Cox 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.
(xvi) Absence of Further Requirements. No filing with, or
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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, except such as has been already obtained or as may
be required under the 1933 Act or the 1933 Act Regulations or state
securities laws.
(xvii) Possession of Licenses and Permits. The Company and its
----------------------------------
subsidiaries own or possess such permits, licenses, approvals, consents and
other authorizations (collectively, "Governmental Licenses") issued by the
appropriate federal, state, local or
7
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.
(xviii) Title to Property. The Company and its subsidiaries have
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good and marketable title to all material real properties 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 Cox 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 Cox 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.
(xix) Compliance with Cuba Act. The Company has complied with, and
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is and will be in compliance with, the provisions of that certain Florida
act relating to disclosure of doing business with Cuba, codified as Section
517.075 of the Florida statutes, and the rules and regulations thereunder
(collectively, the "Cuba Act") or is exempt therefrom.
(xx) Investment Company Act. The Company is not an "investment
----------------------
company" or an entity "controlled" by an "investment company" as such terms
are defined in the Investment Company Act of 1940, as amended.
(xxi) Environmental Laws. Except as described in the Cox
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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
8
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 and delivered to the Underwriter or counsel for the Underwriter or to
ML&Co. or counsel for ML&Co. in connection with the offering of the Securities
shall be deemed a representation and warranty by the Company to the Underwriter
and to ML&Co., as the case may be, as to the matters covered thereby.
SECTION 2. Covenants of the Company. The Company covenants with the
------------------------
Underwriter and with ML&Co. as follows:
(a) Compliance with Securities Regulations and Commission Requests. The
Company, subject to Section 2(b), will notify the Underwriter and ML&Co.
immediately, and confirm the notice in writing, (i) when any post-effective
amendment to the Cox Registration Statement shall become effective, or any
supplement to the Cox Prospectus or any amended Cox 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 Cox Registration Statement or
any amendment or supplement to the Cox Prospectus or for additional information,
and (iv) of the issuance by the Commission of any stop order suspending the
effectiveness of the Cox Registration Statement or of any order preventing or
suspending the use of any Cox preliminary prospectus, or of the suspension of
the qualification of the shares of Cox Common Stock deliverable at maturity or
upon redemption 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 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 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 Underwriter and ML&Co.
notice of its intention to file or prepare any amendment to the Cox Registration
Statement (including any filing under Rule 462(b)) or any amendment, supplement
or revision to either the
9
prospectus included in the Cox Registration Statement at the time it became
effective or to the Cox Prospectus, whether pursuant to the 1933 Act, the 1934
Act or otherwise, will furnish the Underwriter and ML&Co. 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
Underwriter or counsel for the Underwriter or ML&Co. or counsel for ML&Co. shall
reasonably object.
(c) Delivery of Cox Registration Statements. The Company has furnished or
will deliver to the Underwriter, counsel for the Underwriter, ML&Co. and counsel
for ML&Co., without charge, signed copies of the Cox 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. If applicable, the copies of the Cox
Registration Statement and each amendment thereto furnished to the Underwriter
and ML&Co. will be identical 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 Cox Prospectuses. The Company has delivered to the
Underwriter, without charge, as many copies of each Cox preliminary prospectus
as the Underwriter reasonably requested, and the Company hereby consents to the
use of such copies for purposes permitted by the 1933 Act. The Company will
furnish to the Underwriter, without charge, during the period when the Cox
Prospectus is required to be delivered under the 1933 Act or the 1934 Act, such
number of copies of the Cox Prospectus (as amended or supplemented) as the
Underwriter may reasonably request. If applicable, the Cox Prospectus and any
amendments or supplements thereto furnished to the Underwriter and ML&Co. will
be identical 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 so as to permit the completion of
the distribution of the Securities as contemplated in the Underwriting Agreement
and to permit the sale of the Pledged Shares. If at any time when a prospectus
is required by the 1933 Act to be delivered in connection with sales of the
Securities or the Pledged Shares, any event shall occur or condition shall exist
as a result of which it is necessary, in the reasonable opinion of counsel for
the Underwriter, counsel for ML&Co. or counsel for the Company, to amend the Cox
Registration Statement or amend or supplement the Cox Prospectus in order that
the Cox 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 reasonable opinion
of any such counsel, at any such time to amend the Cox Registration Statement or
amend or supplement the Cox 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 2(b), such amendment or
supplement as may be necessary to correct such statement or omission or to make
the Cox Registration Statement or the Cox Prospectus comply with such
requirements, and the Company will furnish to the Underwriter and ML&Co. such
number of copies of such amendment or supplement as the Underwriter and ML&Co.
may reasonably request.
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(f) Blue Sky Qualifications. The Company will use its best efforts, in
cooperation with the Underwriter, to qualify the shares of Cox Common Stock
deliverable at maturity or upon redemption of the Securities and the Pledged
Shares for offering and sale under the applicable securities laws of such states
and other jurisdictions of the United States as the Underwriter may designate
and to maintain such qualifications in effect through the maturity date of the
Securities; 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 shares of Cox Common Stock deliverable at maturity or upon redemption
of 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 through the maturity date of the Securities.
(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) Restriction on Sale of Securities. During a period of 120 days from
the date of this Agreement, the Company will not, without the prior written
consent of the Underwriter, (x) offer, sell, contract to sell or otherwise
dispose of, directly or indirectly, any shares of Cox Common Stock, securities
convertible into, exchangeable for or repayable with shares of Cox Common Stock,
or rights or warrants to acquire shares of Cox Common Stock or (y) file any
registration statement under the 1933 Act with respect to any shares of Cox
Common Stock, securities convertible into, exchangeable for or repayable with
shares of Cox Common Stock, or rights or warrants to acquire shares of Cox
Common Stock. The foregoing sentence shall not apply to (A) restricted shares
or options to purchase shares of Cox Common Stock granted pursuant to employee
benefit or director plans of the Company existing at the date of this Agreement;
or (B) shares of Cox Common Stock issued upon exercise of options outstanding at
the date of this Agreement; or (C) any transfer of shares of Cox Common Stock to
an affiliate (as such term is defined in Rule 405 promulgated under the 1933
Act) or affiliates of the Company, provided, however, that in any such case it
shall be a condition to the transfer that the transferee execute an agreement
stating that the transferee is receiving and holding such shares of Cox Common
Stock subject to the foregoing restrictions and that there shall be no further
transfer of such securities except in accordance therewith.
(i) Reporting Requirements. The Company, during the period when the Cox
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 rules and
regulations of the Commission thereunder.
SECTION 3. Payment of Expenses. (a) Expenses. CEI will pay all expenses
-------------------
incident to the performance of the Company's obligations under this Agreement,
including (i) the preparation, printing and filing of the Cox Registration
Statement (including financial statements and exhibits) as originally filed and
of each amendment thereto, (ii) the preparation, printing and
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delivery to the Underwriter and ML&Co. of this Agreement, (iii) the fees and
disbursements of the Company's counsel, accountants and other advisors, (iv) the
qualification of the shares of Cox Common Stock deliverable at maturity or upon
redemption of the Securities under securities laws in accordance with the
provisions of Section 2(f) hereof, including filing fees and the reasonable fees
and disbursements of counsel for ML&Co. in connection therewith and in
connection with the preparation of the Blue Sky Survey and any supplement
thereto, (v) the printing and delivery to the Underwriter of copies of each Cox
Preliminary Prospectus and of the Cox Prospectus and any amendments or
supplements thereto, (vi) the preparation, printing and delivery to the
Underwriter of copies of the Blue Sky Survey and any supplement thereto and
(vii) the filing fees incident to, and the reasonable fees and disbursements of
counsel to the Underwriter in connection with, the review by the National
Association of Securities Dealers, Inc. of the terms of the offering and sale of
the shares of Cox Common Stock deliverable at maturity or upon redemption of the
Securities. The Company shall have no obligation whatsoever to pay the expenses
described in this Section 3(a).
SECTION 4. Indemnification.
---------------
(a) Indemnification of Underwriter and ML&Co. The Company agrees to
indemnify and hold harmless (1) the Underwriter and each person, if any, who
controls the Underwriter within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act and (2) ML&Co. and each person, if any, who controls
ML&Co. 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 Cox Registration
Statement (or any amendment thereto) 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 contained in any
Cox preliminary prospectus or the Cox 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 4(d) below) any such settlement is effected with
the written consent of the Company; and
(iii) against any and all expense whatsoever, as incurred
(including the fees and disbursements of counsel chosen by the Underwriter
or ML&Co., as the case may be), reasonably incurred in investigating,
preparing or defending against any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or
12
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 (A) 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 the Underwriter expressly for use in the Cox Registration Statement
(or any amendment thereto), or any Cox preliminary prospectus or the Cox
Prospectus (or any amendment or supplement thereto) or (B) 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 ML&Co.
expressly for use in the Cox Registration Statement (or any amendment thereto),
or any Cox preliminary prospectus or the Cox Prospectus (or any amendment or
supplement thereto).
(b) Indemnification of Company, Directors, Officers. The Underwriter
agrees to indemnify and hold harmless the Company, its directors, each of its
officers who signed the Cox 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 Cox Registration Statement (or any
amendment thereto), or any Cox preliminary prospectus or the Cox Prospectus (or
any amendment or supplement thereto) in reliance upon and in conformity with
written information furnished to the Company by the Underwriter expressly for
use in the Cox Registration Statement (or any amendment thereto) or such Cox
preliminary prospectus or the Cox 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. 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 such 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 incurred 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
13
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 4 or Section 5 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 4(a)(ii) effected without its written consent if (i) such settlement is
entered into more than 60 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 30 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 5. Contribution. If the indemnification provided for in Section 4
------------
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 on the one hand and the
Underwriter and ML&Co. on the other hand 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
Underwriter and ML&Co. on the other hand from the offering of the Securities
pursuant to the Underwriting 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
Underwriter and ML&Co. 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.
The relative benefits received by the offering of the Securities pursuant
to the Underwriting Agreement shall be deemed to be such that the Underwriter
and ML&Co. shall be responsible for that portion of the aggregate amount of such
losses, liabilities, claims, damages and expenses represented by the percentage
that the total underwriting discount received by the Underwriter, as set forth
on the cover of the ML&Co. Prospectus, or, if Rule 434 is used, the
corresponding location on the ML&Co. Term Sheet, bears to the aggregate initial
public offering price of the Securities as set forth on such cover and the
Company shall be responsible for the balance.
The relative fault of the Company on the one hand and the Underwriter and
ML&Co. on the other hand shall be determined by reference to, among other
things, whether any such untrue
14
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 CEI
on the one hand or by the Underwriter or ML&Co. on the other hand and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
Notwithstanding the provisions of this Section 5, the Underwriter and
ML&Co. shall not be required to contribute any amount in excess of the amount by
which the total price at which the Securities underwritten by the Underwriter
and distributed to the public were offered to the public exceeds the amount of
any damages which the Underwriter and ML&Co. have otherwise been required to pay
by reason of any such untrue or alleged untrue statement or omission or alleged
omission.
The Company, the Underwriter and ML&Co. agree that it would not be just and
equitable if contribution pursuant to this Section 5 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 5. The aggregate
amount of losses, liabilities, claims, damages and expenses incurred by an
indemnified party and referred to above in this Section 5 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.
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 5, 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 the Underwriter; each
person, if any, who controls ML&Co. within the meaning of Section 15 of the 1933
Act shall have the same rights to contribution as ML&Co.; and each director of
the Company, each officer of the Company who signed the Cox 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.
SECTION 6. Representations, Warranties and Agreements to Survive Delivery.
--------------------------------------------------------------
All representations, warranties and agreements contained in this Agreement or in
certificates of officers of the Company submitted pursuant to the Underwriting
Agreement, shall remain operative and in full force and effect, regardless of
any investigation made by or on behalf of the Underwriter or controlling person
thereof, or by or on behalf of ML&Co. or controlling person thereof or by or on
behalf of the Company, and shall survive delivery of the Securities to the
Underwriter pursuant to the Underwriting Agreement and any sale of the Pledged
Shares.
SECTION 7. Termination. In the event that the Underwriter terminates the
-----------
Underwriting Agreement as provided in Section 9 thereof, this Agreement shall
simultaneously terminate, except that the provisions of Section 3, the indemnity
agreements set forth in Section
15
4, the contribution provisions set forth in Section 5, and the provisions of
Section 6 shall remain in effect.
SECTION 8. 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
Underwriter shall be directed to it at North Tower, World Financial Center, New
York, New York 10281-1328, attention of Douglas W. Squires, Managing Director;
notices to ML&Co. shall be directed to it at 100 Church St., 12th Floor, New
York, New York 10007, attention of the Secretary, with a copy to the Treasurer
at World Financial Center, South Tower, New York, New York 10080-6105; notices
to the Company or CEI shall be directed to it at 1400 Lake Hearn Drive, Atlanta,
Georgia 30319, attention of Andrew A. Merdek.
SECTION 9. Parties. This Agreement shall inure to the benefit of and be
-------
binding upon each of the Underwriter, ML&Co., the Company and CEI 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 Underwriter, ML&Co., the Company and CEI and their respective
successors and the controlling persons and officers and directors referred to in
Sections 4 and 5 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 Underwriter,
ML&Co., the Company and CEI 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 the Underwriter shall be deemed to be a
successor by reason merely of such purchase.
SECTION 10. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
-------------
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 11. 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.
16
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 among
the Underwriter, ML&Co., CEI and the Company in accordance with its terms.
Very truly yours,
COX COMMUNICATIONS, INC.
By__________________________________________
Name:
Title:
COX ENTERPRISES, INC.
By__________________________________________
Name:
Title:
CONFIRMED AND ACCEPTED,
as of the date first above written:
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By _____________________________________
Authorized Signatory
MERRILL LYNCH & CO., INC.
By _____________________________________
Name:
Title:
17