UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

 

 

SCHEDULE 14A

Proxy Statement Pursuant to Section 14(a) of the

Securities Exchange Act of 1934

 

 

Filed by the Registrant  ☒                   Filed by a party other than the Registrant  ☐

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☐		Preliminary Proxy Statement
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☒		Definitive Proxy Statement
☐		Definitive Additional Materials
☐		Soliciting Material Under Rule 14a-12

CINCINNATI BELL INC.

(Name of Registrant as Specified In Its Charter)

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Dear Shareholder:

You are cordially invited to attend a virtual special meeting (the “special meeting”) of shareholders of Cincinnati Bell Inc., an Ohio corporation (the “Company”). The special meeting will be held online via live webcast on May 7, 2020, at 11:00 am, Eastern Daylight Time. There will not be a physical meeting location. The special meeting can be accessed by visiting www.virtualshareholdermeeting.com/CBB2020, where you will be able to participate in the meeting live and vote online. Please note that you will not be able to attend the special meeting in person. We have chosen to hold a virtual, rather than an in-person, meeting in light of public health concerns associated with the ongoing coronavirus (COVID-19) situation.

On March 13, 2020, the Company entered into an Agreement and Plan of Merger (the “merger agreement”) with Red Fiber Parent LLC, a Delaware limited liability company (“Parent”), and RF Merger Sub Inc., an Ohio corporation and a wholly owned subsidiary of Parent (“Merger Sub”), providing for, subject to the satisfaction or (to the extent permitted by law) waiver of specified conditions, the acquisition of the Company by Parent at a price of $15.50 per Company common share in cash. Subject to the terms and conditions of the merger agreement, Merger Sub will be merged with and into the Company (the “merger”), with the Company surviving the merger as a subsidiary of Parent (the “surviving corporation”).

At the special meeting, the holders of Company common shares and holders of 6 ³⁄₄% cumulative convertible preferred shares (“6 ³⁄₄% preferred shares”) of the Company (voting as a single class) will vote on the adoption of the merger agreement. At the special meeting, holders of depositary shares representing one-twentieth of a 6 ³⁄₄% preferred share (the “depositary shares”) will be entitled to vote the number of 6 ³⁄₄% preferred shares represented by such depositary shares.

If the merger is completed, you will be entitled to receive $15.50 in cash, without interest and less any applicable withholding taxes, for each Company common share you own at the effective time of the merger. Immediately following the consummation of the merger, the 6 ³⁄₄% preferred shares will remain outstanding and the depositary shares representing interests in such 6 ³⁄₄% preferred shares will remain outstanding and continue to be listed on the NYSE.

The proxy statement accompanying this letter provides you with more specific information concerning the special meeting, the merger agreement, the merger and the other transactions contemplated by the merger agreement. We encourage you to carefully read the accompanying proxy statement and the copy of the merger agreement attached as Annex A thereto.

The board of directors of the Company (the “Board”) carefully reviewed and considered the terms and conditions of the merger agreement, the merger and the other transactions contemplated by the merger agreement. The Board unanimously (i) approved the merger agreement, the merger and the other transactions contemplated by the merger agreement, (ii) determined that entering into the merger agreement, the merger and the other transactions contemplated by the merger agreement are fair to, and in the best interests of, the Company and its shareholders, (iii) declared the merger agreement, the merger and the other transactions contemplated by the merger agreement advisable and (iv) recommends that the holders of Company common shares and 6 ³⁄₄% preferred shares adopt the merger agreement. Accordingly, the Board recommends you vote “FOR” the proposal to adopt the merger agreement.

At the special meeting, shareholders will also be asked to vote (i) on a nonbinding, advisory proposal to approve the compensation that may be paid or become payable to the Company’s named executive officers in connection with, or following, the consummation of the merger, and (ii) to adjourn the special meeting to a later date or time, if necessary or appropriate, to solicit additional proxies in the event there are insufficient votes at the time of the special meeting or any adjournment or postponement thereof to adopt the merger agreement. The Board recommends that you vote “FOR” each of these proposals.

Whether or not you plan to attend the special meeting and regardless of the number of shares you own, your careful consideration of, and vote on, the merger agreement is important and we encourage you to vote promptly. The merger cannot be completed unless the proposal to adopt the merger agreement is approved by the affirmative vote of shareholders holding at least two-thirds of the outstanding Company common shares and the 6 ³⁄₄% preferred shares (voting as a single class) in each case entitled to vote thereon at the special meeting. The failure to vote will have the same effect as a vote against the proposal to adopt the merger agreement.

After reading the accompanying proxy statement, please make sure to vote your Company common shares and 6 ³/₄% preferred shares (or the depositary shares representing interests in such 6 ³⁄₄% preferred shares) by promptly voting electronically or telephonically as described in the accompanying proxy statement, or, if you received a paper copy of the proxy card, by completing, dating, signing and returning your proxy card, or attending our special shareholders’ meeting. Instructions regarding all four methods of voting are provided on the proxy card. If you hold shares through an account with a brokerage firm, bank or other nominee, please follow the instructions you receive from them to vote your Company common shares, 6 ³⁄₄% preferred shares and/or depositary shares representing interests in 6 ³⁄₄% preferred shares. If you have any questions or need assistance voting your shares, please contact our proxy solicitor, Innisfree M&A Incorporated, toll-free at 877-825-8971.

We appreciate your investment in the Company.

By Order of the Board of Directors

Lynn A. Wentworth

Chairman of the Board

March 24, 2020

The merger has not been approved or disapproved by the Securities and Exchange Commission or any state securities commission. Neither the Securities and Exchange Commission nor any state securities commission has passed upon the merits or fairness of the merger or upon the adequacy or accuracy of the information contained in this document or the accompanying proxy statement. Any representation to the contrary is a criminal offense.

The accompanying proxy statement is dated March 24, 2020 and is first being mailed to holders of Company common shares, 6 ³⁄₄% preferred shares and depositary shares on or about March 31, 2020.

Notice of Virtual Special Meeting

Cincinnati Bell Inc., an Ohio corporation (the “Company”), will hold a virtual special meeting (the “special meeting”) of shareholders online via live webcast on May 7, 2020, at 11:00 am, Eastern Daylight Time. There will not be a physical meeting location. The special meeting can be accessed by visiting www.virtualshareholdermeeting.com/CBB2020, where you will be able to participate in the meeting live and vote online. We encourage you to allow ample time for online check-in, which will open at 10:30 am, Eastern Daylight Time. Please note that you will not be able to attend the special meeting in person. We are holding the special meeting for the purposes indicated below:

 

Items of Business:		1.  To consider and vote on a proposal to adopt the Agreement and Plan of Merger, dated as of March 13, 2020 (the “merger agreement”), by and among the Company, Red Fiber Parent LLC, a Delaware limited liability company (“Parent”), and RF Merger Sub Inc., an Ohio corporation and a wholly owned subsidiary of Parent (“Merger Sub”).   2.  To consider and vote on a nonbinding, advisory proposal to approve the compensation that may be paid or become payable to the Company’s named executive officers in connection with, or following, the consummation of the merger (this nonbinding, advisory proposal (the “nonbinding compensation proposal”) relates only to contractual obligations of the Company in existence prior to consummation of the merger that may result in a payment to the Company’s named executive officers in connection with, or following, the consummation of the merger and does not relate to any new compensation or other arrangements between the Company’s named executive officers and Parent or, following the merger, the surviving corporation and its subsidiaries).   3.  To consider and vote on a proposal to adjourn the special meeting to a later date or time, if necessary or appropriate, to solicit additional proxies in the event there are insufficient votes at the time of the special meeting or any adjournment or postponement thereof to adopt the merger agreement (the “adjournment proposal”).
Record Date:		Holders of Company common shares and 6 3/4% preferred shares of record as of the close of business on March 23, 2020 are entitled to notice of the special meeting and any adjournments or postponements thereof. Only holders of Company common shares and 6 3/4% preferred shares (or depositary shares representing interests in such 6 3/4% preferred shares) of record as of the close of business on March 23, 2020 are entitled to vote at the special meeting and any adjournments or postponements thereof.
General:		For more information concerning the special meeting, the merger agreement, the merger and the other transactions contemplated by the merger agreement, please review the accompanying proxy statement and the copy of the merger agreement attached as Annex A thereto.   Under Ohio law, holders of Company common shares and holders of 6 3/4% preferred shares who do not vote in favor of the adoption of the merger agreement will have the right to seek appraisal of the fair cash value of their Company common shares or

		6 3/4% preferred shares, as applicable, as determined by the court of common pleas of the Ohio county in which the principal office of the Company is located if the merger is completed, but only if they submit a written demand for such an appraisal prior to the vote on the merger proposal and comply with the other Ohio law procedures explained in the accompanying proxy statement. Holders of Company common shares who do not vote in favor of the merger proposal and who submit a written demand for such an appraisal prior to the vote on merger proposal and comply with the other Ohio law procedures will not receive the merger consideration.   The board of directors of the Company (the “Board”) carefully reviewed and considered the terms and conditions of the merger agreement, the merger and the other transactions contemplated by the merger agreement. The Board unanimously (i) approved the merger agreement, the merger and the other transactions contemplated by the merger agreement, (ii) determined that entering into the merger agreement, the merger and the other transactions contemplated by the merger agreement are fair to, and in the best interests of, the Company and its shareholders, (iii) declared the merger agreement, the merger and the other transactions contemplated by the merger agreement advisable and (iv) recommends that the shareholders holding Company common shares and 6 3/4% preferred shares adopt the merger agreement.   Accordingly, the Board recommends a vote “FOR” the proposal to adopt the merger agreement, “FOR” the nonbinding compensation proposal and “FOR” the adjournment proposal.   Regardless of whether you plan to attend the special meeting, please vote telephonically or electronically for the matters before our shareholders as described in the accompanying proxy statement, or promptly fill in, date, sign and return the enclosed proxy card in the accompanying pre-paid envelope to ensure that your shares are represented at the meeting. You may revoke your proxy before it is voted. If you attend the special meeting, you may choose to vote at the special meeting even if you have previously sent in your proxy card. If you hold common shares, 6 3/4% preferred shares or depositary shares representing interests in the 6 3/4% preferred shares through an account with a brokerage firm, bank or other nominee, please follow the instructions you receive from them to vote your common shares, 6 3/4% preferred shares or depositary shares.

By Order of the Board of Directors

Lynn A. Wentworth

Chairman of the Board

TABLE OF CONTENTS

 

		Page
SUMMARY TERM SHEET			1
The Parties			1
The Merger			2
The Virtual Special Meeting			3
Shareholders Entitled to Vote; Vote Required to Adopt the Merger Agreement			3
Background of the Merger			3
Reasons for the Merger; Recommendation of the Board			3
Opinion of the Company’s Financial Advisors			4
Certain Effects of the Merger			5
Effects on the Company if the Merger Is Not Completed			5
Treatment of Equity and Equity-Based Awards			5
Interests of the Company’s Directors and Executive Officers in the Merger			6
Common Share Ownership of Directors and Executive Officers			7
Financing of the Merger			7
Limited Guarantee			7
Conditions of the Merger			8
Regulatory Approvals Required for the Merger			8
No Solicitation; Board Recommendation			9
Termination			9
Termination Fee			10
Dissenters’ Rights Available to Company Shareholders			10
Material U.S. Federal Income Tax Consequences of the Merger			12
Current Price of Common Shares			12
Additional Information			12
QUESTIONS AND ANSWERS ABOUT THE VIRTUAL SPECIAL MEETING AND THE MERGER			13
CAUTIONARY STATEMENT REGARDING FORWARD-LOOKING STATEMENTS			22
THE PARTIES			23
Cincinnati Bell Inc.			23
Red Fiber Parent LLC			23
RF Merger Sub Inc.			23
THE VIRTUAL SPECIAL MEETING			24
Date, Time and Place			24
Purpose of the Virtual Special Meeting			24
Recommendation of the Board			24
Record Date and Shareholders Entitled to Vote			25

		Page
Quorum			25
Vote Required			25
Voting Procedures			26
How Proxies Are Voted			27
Revocation of Proxies			27
Participating in the Virtual Special Meeting			27
Solicitation of Proxies			28
Adjournments and Postponements			28
Voting by Company Directors, Executive Officers and Principal Securityholders			28
Assistance			28
List of Shareholders			28
PROPOSAL 1: ADOPTION OF THE MERGER AGREEMENT			29
PROPOSAL 2: ADVISORY, NON-BINDING VOTE ON MERGER-RELATED EXECUTIVE COMPENSATION ARRANGEMENTS			30
PROPOSAL 3: VOTE ON POSSIBLE ADJOURNMENT TO SOLICIT ADDITIONAL PROXIES, IF NECESSARY			31
THE MERGER			32
Overview			32
Background of the Merger			32
Recommendation of the Board			51
Reasons for the Merger			51
Financial Forecasts			57
Opinion of the Company’s Financial Advisors			60
Certain Effects of the Merger			77
Effects on the Company if the Merger Is Not Completed			78
Financing of the Merger			79
Dissenters’ Rights Available to Company Shareholders			82
Interests of the Company’s Directors and Executive Officers in the Merger			86
Material U.S. Federal Income Tax Consequences of the Merger			91
Dividends			93
Regulatory Approvals Required for the Merger			93
Delisting and Deregistration of the Company Common Shares			94
THE MERGER AGREEMENT			94
Explanatory Note Regarding the Merger Agreement			94
Effects of the Merger			95

		Page
Closing and Effective Time of the Merger			95
Consideration To Be Received in the Merger			96
Appraisal Shares			96
Excluded Shares			96
Treatment of Equity and Equity-Based Awards			96
Payment for Shares			97
Representations and Warranties			98
Covenants Regarding Conduct of Business by the Company Pending the Effective Time			100
Reasonable Best Efforts			102
No Solicitation			104
Change in Board Recommendation			106
Efforts to Obtain the Company Shareholder Approval			107
Financing			107
2024 and 2025 Notes			109
Indemnification			109
Employee Benefits Matters			109
Additional Agreements			109
Conditions of the Merger			110
Termination			111
Fees and Expenses			112
Withholding Taxes			114
Amendment			114
Extension; Waiver			114
Governing Law			114
Specific Enforcement			114
SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT			116
MARKET PRICE AND DIVIDEND INFORMATION			119
HOUSEHOLDING			120
SHAREHOLDER PROPOSALS			121
WHERE YOU CAN FIND ADDITIONAL INFORMATION			122
Annex A Agreement and Plan of Merger, dated as of March 13, 2020			A-1
Annex B Opinion of Morgan Stanley & Co. LLC			B-1
Annex C Opinion of Moelis & Company LLC			C-1
Annex D Section 1701.84 and Section  1701.85 of the Ohio General Corporation Law			D-1

CINCINNATI BELL INC.

221 East Fourth Street

Cincinnati, Ohio 45202

 

 

VIRTUAL SPECIAL MEETING OF SHAREHOLDERS

TO BE HELD ON MAY 7, 2020

 

 

PROXY STATEMENT

This proxy statement contains information relating to a virtual special meeting (the “special meeting”) of shareholders of Cincinnati Bell Inc., an Ohio corporation (“Cincinnati Bell”, the “Company”, “we”, “us” or “our”). All references to “Parent” refer to Red Fiber Parent LLC, a Delaware limited liability company; all references to “Merger Sub” refer to RF Merger Sub Inc., an Ohio corporation; all references to “MIRA” refer to Macquarie Infrastructure and Real Assets; all references to “MIP” refer collectively to Macquarie Infrastructure Partners V, a fund managed by MIRA; all references to “Ares Management” refer to Ares Management Corporation or one or more of its subsidiaries or affiliated funds, investment vehicles or managed accounts; all references to the “Ares Funds” refer collectively to certain funds, investment vehicles and/or accounts managed or advised by the Private Equity Group of Ares Management Corporation; all references to “Investors/Guarantors” refer to MIP and the Ares Funds.

The special meeting will be held online via live webcast on May 7, 2020, at 11:00 am, Eastern Daylight Time. We are furnishing this proxy statement to holders of shares of common stock, par value $0.01 per share, of the Company (“Company common shares”), holders of 6 ³/₄% cumulative convertible preferred shares, without par value, of the Company (“6 ³/₄% preferred shares”) and holders of depositary shares representing one-twentieth of a 6 ³/₄% preferred share (the “depositary shares”), as part of the solicitation of proxies by the Company’s board of directors (the “Board”), for use at the special meeting and at any adjournments or postponements thereof. This proxy statement is dated March 24, 2020 and is first being mailed to holders of Company common shares on or about March 31, 2020.

SUMMARY TERM SHEET

This summary term sheet highlights selected information in this proxy statement and may not contain all of the information about the merger agreement, the merger or the other transactions contemplated by the merger agreement that is important to you. We have included page references in parentheses to direct you to more complete descriptions of the topics presented in this summary term sheet. You should carefully read this proxy statement in its entirety, including the annexes hereto and the other documents to which we have referred you, for a more complete understanding of the matters being considered at the special meeting. You may obtain, without charge, copies of documents incorporated by reference into this proxy statement by following the instructions under the section of this proxy statement entitled “Where You Can Find Additional Information” beginning on page 122.

The Parties

(page 23)

The Company, together with its wholly owned subsidiaries, delivers integrated communications solutions to residential and business customers over its fiber-optic and copper networks, including high-speed internet, video, voice and data. The Company provides service in areas of Ohio, Kentucky, Indiana and Hawaii. In addition,

 

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enterprise customers across the United States and Canada rely on CBTS and OnX, wholly owned subsidiaries of the Company, for efficient, scalable office communications systems and end-to-end IT solutions. Our common shares are traded on the New York Stock Exchange (the “NYSE”) under the trading symbol “CBB”. Our 6 ³/₄% preferred shares were deposited into a trust and the depositary shares were issued. The depositary shares are traded on the NYSE under the trading symbol “CBB.PB”. Our principal corporate office is located at 221 East Fourth Street, Cincinnati, Ohio 45202 with telephone number 513-397-9900.

Parent is a Delaware limited liability company that was formed solely for the purpose of entering into the merger agreement and related agreements and completing the transactions contemplated thereby. Parent has not conducted any business operations other than in connection with the transactions contemplated by the merger agreement and related agreements. Upon completion of the transactions contemplated thereby, the Company will be a direct subsidiary of Parent. Its principal executive office is located at 125 West 55th Street, New York, New York 10019.

Merger Sub is an Ohio corporation and a wholly owned subsidiary of Parent that was formed solely for the purpose of entering into the merger agreement and completing the transactions contemplated thereby. Merger Sub has not conducted any business operations other than in connection with the transactions contemplated by the merger agreement and related agreements. Upon completion of the merger, Merger Sub will merge with and into the Company, and Merger Sub will cease to exist. Merger Sub’s principal executive office is located at 125 West 55th Street, New York, New York 10019.

In connection with the merger and the other transactions contemplated by the merger agreement, MIP and the Ares Funds have committed to make available to Parent, at or prior to the closing of the merger, up to approximately $879 million in equity financing, subject to the terms and conditions of the (i) equity commitment letter from MIP, dated as of March 5, 2020 (the “MIP equity commitment letter”) and (ii) equity commitment letters from the Ares Funds, dated as of March 5, 2020 (the “Ares Funds equity commitment letters” and, together with the MIP equity commitment letter, the “equity commitment letters”).

MIP is a fund managed by MIRA, a global alternative asset manager with experience investing in the communications infrastructure industry. For more than two decades, MIRA has partnered with investors, governments and communities to manage, develop and enhance assets relied on by more than 100 million people each day. As of September 30, 2019, MIRA managed $135.6 billion in assets that are essential to the sustainable development of economies and communities, including 155 portfolio businesses, approximately 600 properties and 4.7 million hectares of farmland.

Ares Management is a global alternative investment manager operating three integrated businesses across Credit, Private Equity and Real Estate. Ares Management’s global platform had $149 billion of assets under management as of December 31, 2019 and employs approximately 1,200 employees in over 20 offices in more than 10 countries.

The Merger

(page 32)

The Company, Parent and Merger Sub entered into an Agreement and Plan of Merger (the “merger agreement”) on March 13, 2020. A copy of the merger agreement is included as Annex A to this proxy statement. Under the terms of the merger agreement, subject to the satisfaction or (to the extent permitted by applicable law) waiver of specified conditions, Merger Sub will be merged with and into the Company (the “merger”). The Company will survive the merger as a subsidiary of Parent (the “surviving corporation”).

Upon the consummation of the merger, each Company common share that is issued and outstanding immediately prior to the effective time of the merger, (other than (i) Company common shares owned by the Company as treasury shares, held by Parent or Merger Sub or owned by any subsidiary of the Company or Parent

 

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(collectively, the “excluded shares”) and (ii) Company common shares with respect to which appraisal rights are properly exercised and not withdrawn or otherwise lost (“dissenting shares”)), will be converted into the right to receive $15.50 in cash, without interest (the “merger consideration”), less any applicable withholding taxes. Each 6 ³/₄% preferred share issued and outstanding immediately prior to the effective time of the merger shall remain issued and outstanding immediately following the effective time of the merger as one 6 ³/₄% cumulative convertible preferred share, without par value, of the surviving corporation, and shall not be affected by the merger (except for the effects specifically set forth in the Amended and Restated Articles of Incorporation of the Company and amendments thereto (the “Articles”)). The depositary shares will remain listed on the NYSE and registered by the Company under the Securities Exchange Act of 1934, as amended (the “Exchange Act”) immediately following the merger.

The Virtual Special Meeting

(page 24)

The special meeting will be held online via live webcast on May 7, 2020, at 11:00 am, Eastern Daylight Time. The special meeting can be accessed by visiting www.virtualshareholdermeeting.com/CBB2020, where you will be able to participate in the meeting live and vote online. Please note that you will not be able to attend the special meeting in person.

At the special meeting, holders of Company common shares and 6 ³/₄% preferred shares (voting as a single class) will be asked to, among other things, vote for the adoption of the merger agreement. Please see the section of this proxy statement entitled “The Virtual Special Meeting” for additional information on the special meeting, including how to vote your Company common shares and 6 ³/₄% preferred shares (or depositary shares representing interests in such 6 ³/₄% preferred shares).

Shareholders Entitled to Vote; Vote Required to Adopt the Merger Agreement

(page 25)

You may vote the Company common shares and the 6 ³/₄% preferred shares (or the depositary shares representing interests in such 6 ³/₄% preferred shares) at the special meeting that you owned at the close of business on March 23, 2020, the record date for the special meeting. As of the close of business on the record date, there were 50,564,267 Company common shares and 155,250 6 ³/₄% preferred shares outstanding and entitled to vote. You may cast one vote for each Company common share and one vote for each 6 ³/₄% preferred share that you held on the record date. Holders of depositary shares may vote the 6 ³/₄% preferred shares represented by their depositary shares. The adoption of the merger agreement by the holders of Company common shares and 6 ³/₄% preferred shares requires the affirmative vote of shareholders holding at least two-thirds of the outstanding Company common shares and 6 ³/₄% preferred shares (voting as a single class) in each case entitled to vote thereon as of the close of business on the record date (the “Company shareholder approval”).

Background of the Merger

(page 32)

A description of the process we undertook that led to the proposed merger, including our discussions with MIP, is included in this proxy statement under “The Merger—Background of the Merger”.

Reasons for the Merger; Recommendation of the Board

(page 51)

After careful consideration, the Board determined to approve the merger agreement and recommend the adoption of the merger agreement by the holders of Company common shares and 6 ³/₄% preferred shares. Accordingly, the Board recommends a vote “FOR” the proposal to adopt the merger agreement. The Board also recommends a vote “FOR” the nonbinding compensation proposal and “FOR” the adjournment proposal (each, as described below under “Questions and Answers about the Special Meeting and the Merger—What proposals will be considered at the special meeting?”).

 

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The Board believes that the merger agreement, the merger and the other transactions contemplated by the merger agreement are advisable, fair to and in the best interests of the Company and its shareholders. For a discussion of the material factors that the Board considered in determining to recommend the adoption of the merger agreement, please see the section of this proxy statement entitled “The Merger—Reasons for the Merger” beginning on page 51.

Opinion of the Company’s Financial Advisors

(page 60)

Opinion of Morgan Stanley & Co. LLC (page 60)

Morgan Stanley & Co. LLC (“Morgan Stanley”) was retained by the Board to act as its financial advisor in connection with a potential sale of the Company. The Board selected Morgan Stanley to act as its financial advisor based on Morgan Stanley’s qualifications, expertise and reputation, its knowledge of and involvement in recent transactions in the Company’s industry and its knowledge and understanding of the business and affairs of the Company. On March 12, 2020, Morgan Stanley rendered its oral opinion, which was subsequently confirmed in writing, to the Board to the effect that, as of that date, and subject to the assumptions made, procedures followed, matters considered and qualifications and limitations on the scope of review undertaken by Morgan Stanley as set forth in Morgan Stanley’s written opinion, the merger consideration to be received by the holders of Company common shares, pursuant to the merger agreement was fair, from a financial point of view, to the holders of Company common shares (other than Parent and its affiliates).

The full text of the written opinion of Morgan Stanley delivered to the Board, dated March 12, 2020, is attached as Annex B and incorporated by reference into this proxy statement in its entirety. The opinion sets forth, among other things, the assumptions made, procedures followed, matters considered and qualifications and limitations on the scope of the review undertaken by Morgan Stanley in rendering its opinion. Shareholders of the Company are urged to, and should, read the opinion carefully and in its entirety. Morgan Stanley’s opinion is directed to the Board and addresses only the fairness, from a financial point of view, of the merger consideration to be paid to the holders of Company common shares (other than Parent and its affiliates), pursuant to the merger agreement. Morgan Stanley’s opinion did not address any other aspect of the transactions contemplated by the merger agreement and did not address any other aspects or implications of the merger. Morgan Stanley’s opinion was not intended to, and does not constitute advice or a recommendation as to, how shareholders of the Company should vote at the special meeting or to take any other action with respect to the merger. The summary of Morgan Stanley’s opinion set forth in this proxy statement is qualified in its entirety by reference to the full text of Morgan Stanley’s opinion.

For a description of the opinion that the Board received from Morgan Stanley, and for additional information, see the section entitled “The Merger—Opinion of Morgan Stanley & Co. LLC” beginning on page 60 and Annex B to this proxy statement.

Opinion of Moelis & Company LLC (page 68)

At the March 12, 2020 meeting of the Board, Moelis, financial advisor to the Company, rendered its oral opinion to the Board, confirmed by the delivery of a written opinion dated March 13, 2020, as to the fairness, from a financial point of view and as of the date of such opinion, of the merger consideration to be received in the merger by the holders of the Company common shares (other than MIRA and Ares Management and their respective affiliates (collectively, the “Excluded Holders”)).

The full text of Moelis’ written opinion dated March 13, 2020, which sets forth the assumptions made, procedures followed, matters considered and limitations on the review undertaken in connection with the opinion, is attached as Annex C to this proxy statement and is incorporated herein by reference. Moelis’

 

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opinion was provided for the use and benefit of the Board (solely in its capacity as such) in its evaluation of the merger. Moelis’ opinion is limited solely to the fairness, from a financial point of view, of the merger consideration to be received by the holders of the Company common shares (other than the Excluded Holders) and does not address the Company’s underlying business decision to effect the merger or the relative merits of the merger as compared to any alternative business strategies or transactions that might be available to the Company. Moelis’ opinion does not constitute a recommendation as to how any holder of securities should vote or act with respect to the merger or any other matter.

For additional information, see the section entitled “The Merger—Opinion of Moelis & Company LLC” beginning on page 68 and Annex C to this proxy statement.

Certain Effects of the Merger

(page 77)

Upon the consummation of the merger, Merger Sub will be merged with and into the Company, and the Company will continue to exist following the merger as a subsidiary of Parent.

Following the consummation of the merger, Company common shares will no longer be traded on the NYSE or any other public market, and the registration of Company common shares under the Exchange Act will be terminated. Immediately following the consummation of the merger, the 6 ³⁄₄% preferred shares will remain outstanding and the depositary shares representing interests in such 6 ³⁄₄% preferred shares will remain outstanding and continue to be listed on the NYSE.

Effects on the Company if the Merger Is Not Completed

(page 78)

In the event that the proposal to adopt the merger agreement does not receive the Company shareholder approval, or if the merger is not completed for any other reason, the holders of Company common shares will not receive any payment for their Company common shares in connection with the merger. Instead, the Company will remain an independent public company and shareholders will continue to own their Company common shares. Under certain circumstances, if the merger agreement is terminated, the Company may be obligated to pay to Parent a termination fee and under certain other circumstances, if the merger agreement is terminated, Parent may be obligated to pay the Company a reverse termination fee. Please see the section of this proxy statement entitled “The Merger Agreement—Fees and Expenses” beginning on page 112.

Treatment of Equity and Equity-Based Awards

(page 96)

At the effective time of the merger, subject to all required withholding taxes:

 

•

each performance stock unit of the Company outstanding immediately prior to the effective time of the merger (a “Company PSU”), whether vested or unvested, will become fully vested and will be canceled and converted into the right to receive an amount in cash, without interest, equal to the product of (x) the number of Company common shares underlying such Company PSU, with the number of Company common shares determined based on the greater of target performance and actual performance as determined by the Board (or appropriate committee thereof) prior to the closing date of the merger, and (y) the merger consideration;

 

•

each restricted stock unit of the Company outstanding immediately prior to the effective time of the merger (a “Company RSU”), whether vested or unvested, will become fully vested and will be canceled and converted into the right to receive an amount in cash, without interest, equal to the product of (x) the number of Company common shares underlying such Company RSU and (y) the merger consideration;

 

5

•

each option to purchase Company common shares outstanding immediately prior to the effective time of the merger (a “Company Stock Option”), whether vested or unvested, will be deemed to be fully vested and will be canceled and converted into the right to receive an amount in cash, without interest, equal to the product of (x) the number of Company common shares underlying such Company Stock Option and (y) the excess (if any) of the merger consideration over the per share exercise price of such Company Stock Option, provided that each Company Stock Option that has an exercise price that is greater than or equal to the merger consideration will be canceled for no consideration;

 

•

each stock appreciation right relating to Company common shares outstanding immediately prior to the effective time of the merger (a “Company SAR”), whether vested or unvested, will be deemed to be fully vested and will be canceled and converted into the right to receive an amount in cash, without interest, equal to the product of (x) the number of Company common shares underlying such Company SAR and (y) the excess (if any) of the merger consideration over the per share base price of such Company SAR, provided that each Company SAR that has a base price that is greater than or equal to the merger consideration will be canceled for no consideration; and

 

•

each notional Company common share granted under the Company’s director deferred compensation plan outstanding immediately prior to the effective time of the merger (a “Company Phantom Share”), whether vested or unvested, will become fully vested and will be canceled and converted into the right to receive an amount in cash, without interest, equal to the product of (x) the number of Company common shares underlying such Company Phantom Share and (y) the merger consideration.

See “The Merger Agreement—Treatment of Equity and Equity-Based Awards” beginning on page 96.

Interests of the Company’s Directors and Executive Officers in the Merger

(page 86)

The Company’s directors and executive officers have financial interests in the merger that may be different from, or in addition to, the interests of the Company’s shareholders generally. The members of the Board were aware of and considered these interests in reaching the determination to approve the merger agreement and recommend that the holders of Company common shares and 6 ³/₄% preferred shares (voting as a single class) vote their Company common shares or 6 ³/₄% preferred shares, as applicable, to adopt the merger agreement. These interests may include:

 

•

each outstanding Company PSU, Company RSU, Company Stock Option, Company SAR and Company Phantom Share will fully vest and be cashed out upon the effective time of the merger (in each case as described below in “The Merger—Treatment of Equity and Equity-Based Awards”);

 

•

each of the Company’s executive officers is party to an individual employment agreement with the Company that provides severance and other benefits in the case of a “qualifying termination” following a change of control, which will include the completion of the merger (as described below in The Merger—Interests of the Company’s Directors and Executive Officers in the Merger—Severance Entitlements”);

 

•

all employees of the Company (including the executive officers) are eligible to receive cash-based long-term incentive awards, retention bonuses or completion bonuses, the aggregate amount of which may not exceed $17.5 million, including any such awards granted following December 21, 2019 and prior to the date of the merger agreement. As of the date of this proxy statement, although no determinations have been made as to whether any executive officer will receive any such bonuses, the estimated aggregate value of the cash-based long-term incentive awards the Company executive officers would be entitled to is $5,530,000;

 

•

all participants (including the executive officers) in the Company’s annual bonus plan will receive a pro rata bonus payment based on the portion of the plan year elapsed prior to the effective time of the merger and the Company’s determination of achievement of performance goals; and

 

6

•

the Company’s directors and executive officers are entitled to continued indemnification and insurance coverage under the merger agreement and the Company’s organizational documents.

Please see the section entitled “The Merger—Interests of the Company’s Directors and Executive Officers in the Merger” beginning on page 86 of this proxy statement for additional information about these financial interests.

Common Share Ownership of Directors and Executive Officers

(page 28)

As of March 23, 2020, the directors and executive officers of the Company beneficially owned in the aggregate 905,331 Company common shares, or approximately 1.79% of the outstanding Company common shares, and no 6 ³/₄% preferred shares. We currently expect that each of these individuals will vote all of his or her shares in favor of each of the proposals to be presented at the special meeting.

Financing of the Merger

(page 79)

Parent plans to fund the merger consideration with committed equity financing and debt financing, as described below.

Parent has obtained equity financing commitments and debt financing commitments (in each case, pursuant to the applicable equity commitment letters and the debt commitment letters) for the transactions contemplated by the merger agreement, the aggregate proceeds of which will be used to (i) pay the consideration for the merger, (ii) refinance any credit facility or other indebtedness of the Company or any subsidiary of the Company that will not continue after the consummation of the merger and (iii) pay any fees and expenses of or payable by Parent or Merger Sub in connection with the merger. MIP has committed to make available to Parent up to $572 million of equity financing and the Ares Funds have committed to make available to Parent up to $307.1 million of equity financing, each subject to the terms and conditions set forth in the equity commitment letters (the “equity financing”).

In addition, Parent has obtained a commitment letter, dated February 28, 2020 (as amended, the “Parent debt commitment letter”), from Goldman Sachs Bank USA, Regions Bank, Regions Capital Markets, a Division of Regions Bank, and Société Générale (collectively, the “Parent debt commitment parties”) to provide, severally but not jointly, upon the terms and subject to the conditions set forth in the Parent debt commitment letter, acquisition debt financing in an aggregate amount of $1.6 billion, consisting of a $250 million senior secured revolving credit facility and $1.35 billion in aggregate principal amount of senior secured term loans and (ii) Parent and one of its affiliates have obtained an amended and restated commitment letter, dated March 5, 2020 (the “bridge commitment letter” and, together with the Parent debt commitment letter, the “debt commitment letters”), from Goldman Sachs Bank USA (the “bridge commitment party” and, together with the Parent debt commitment parties, the “debt commitment parties”) to provide, upon the terms and subject to the conditions set forth in the bridge commitment letter, acquisition debt financing consisting of $493 million in aggregate principal amount of senior bridge loans.

Limited Guarantee

(see page 82)

Subject to the terms and conditions set forth in the limited guarantees by the Guarantors, each dated March 5, 2020 (the “limited guarantees”), the Guarantors have guaranteed the payment obligations of Parent with respect to (i) the obligation of Parent under the merger agreement to pay the reverse termination fee if the merger agreement is terminated by the Company under specified circumstances (see the section entitled “The Merger Agreement—Fees and Expenses”) and (ii) Parent’s obligation to pay, reimburse and/or indemnify certain interest and expenses pursuant to the merger agreement.

 

7

MIP’s obligations under its limited guarantee are subject to an aggregate cap of $40,479,618 and the obligations of each Ares Fund under its respective limited guarantee are subject to an aggregate cap of $5,060,191.

Conditions of the Merger

(page 110)

Each party’s obligation to consummate the merger is subject to the satisfaction or (to the extent permitted by law) waiver, on or prior to the closing date of the merger (the “closing date”), of the following conditions:

 

•

no applicable law and no judgment, preliminary, temporary or permanent, or other legal restraint and no binding order or determination by any governmental entity (collectively, “legal restraints”) shall be in effect that prevents, restrains, enjoins, makes illegal or otherwise prohibits the consummation of the merger;

 

•

the expiration or termination of any waiting period (including any extension thereof) applicable to the merger under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the “HSR Act”);

 

•

the receipt of CFIUS Approval (as defined under the section entitled “The Merger—Regulatory Approvals Required for the Merger”) ;

 

•

receipt of certain FCC consents and state regulatory consents required in connection with the merger, which consents are not subject to agency reconsideration or judicial review, and the time for any person to petition for agency reconsideration or judicial review shall have expired;

 

•

the receipt of the Company shareholder approval;

 

•

subject to certain materiality and other qualifiers, the accuracy of the representations and warranties of the other party; and

 

•

performance in all material respects by the other party of its obligations under the merger agreement.

In addition, Parent’s and Merger Sub’s obligation to consummate the merger is also subject to (i) the absence of any event or development that, individually or in the aggregate, has had or would reasonably be expected to have a Material Adverse Effect on the Company (as defined in the section entitled “The Merger Agreement—Representations and Warranties”) and (ii) the absence of a Burdensome Condition (as defined below in the section entitled “Regulatory Approvals Required for the Merger”).

The consummation of the merger is not conditioned upon Parent’s receipt of financing.

Before the closing, each of the Company and Parent may waive any of the conditions to its obligation to consummate the merger even though one or more of the conditions described above has not been met, except where waiver is not permitted by law.

Regulatory Approvals Required for the Merger

(page 93)

The consummation of the merger is subject to review under the HSR Act and the DPA. As described above in the section entitled “Conditions of the Merger”, the obligations of the Company and Parent to effect the merger are subject to, among other things, (i) termination or expiration of the waiting period (and any extension thereof) applicable to the merger under the HSR Act, (ii) the receipt of CFIUS Approval and (iii) the receipt of certain FCC consents and state regulatory consents.

 

8

The merger agreement includes covenants obligating each of the parties to use reasonable best efforts to cause the merger to be consummated as promptly as practicable and to take certain actions to resolve objections under any antitrust laws. In addition, Parent has agreed that its reasonable best efforts include taking all actions necessary to obtain the required approvals, including (i) contesting and resisting legal actions challenging the merger and the other transactions contemplated by the merger agreement as violative of any law, (ii) attempting to repeal laws and challenging any judgment, injunction or other restraint that would make the merger and the other transactions contemplated thereby illegal, (iii) entering into a consent decree, hold separate order, or otherwise committing to divest businesses, product lines, assets or operations, (iv) agreeing to operational restrictions and (v) otherwise taking actions that would limit its or its affiliates ability to retain any businesses, product lines, assets or operations of Parent or any of its affiliates or the Company or any of its subsidiaries. Parent is not, however, required to take any of the foregoing actions that, individually or in the aggregate, would be reasonably likely to have a material adverse effect on Parent and its affiliates (taken as a whole) or the Company and its subsidiaries (taken as a whole) (a “Burdensome Condition”).

No Solicitation; Board Recommendation

(page 104)

The merger agreement generally restricts the Company’s ability to directly or indirectly solicit takeover proposals (as defined below under “The Merger Agreement—No Solicitation”) from third parties (including by

furnishing non-public information), to participate in discussions or negotiations with third parties regarding any takeover proposal, or to waive, terminate, modify, amend, release or assign any provisions of any confidentiality or standstill agreement (or similar agreement) to which it is a party or fail to enforce the provisions of any such agreement. Under certain circumstances, however, and in compliance with certain obligations contained in the merger agreement, the Company is permitted to engage in negotiations with, and provide information to, third parties that have made an unsolicited takeover proposal if the Board determines in good faith, after consultation with its financial advisors and outside legal counsel, that the failure to take such actions would reasonably be expected to be inconsistent with its fiduciary duties and that such takeover proposal constitutes or is reasonably likely to lead to a superior proposal (as defined below under “The Merger Agreement—No Solicitation”).

Under certain circumstances, the Company is permitted to terminate the merger agreement prior to the receipt of the Company shareholder approval in connection with entering into a definitive agreement with respect to a superior proposal, subject to the prior or concurrent payment by the Company of a $7.5 million termination fee to Parent (the “company termination fee”).

Termination

(page 111)

The merger agreement may be terminated at any time prior to the effective time of the merger under the following circumstances:

 

•

by mutual written consent of the Company and Parent;

 

•

by either the Company or Parent:

 

•

if the merger is not completed by June 13, 2021, subject to a three-month extension under certain circumstances;

 

•

certain legal restraints regarding the merger become final and nonappealable;

 

•

if the Company’s shareholders fail to adopt the merger agreement at the special meeting; or

 

•

the other party breaches the merger agreement in a way that would entitle the party seeking to terminate the agreement not to complete the merger, subject to the right of the breaching party to take good faith efforts to cure the breach;

 

9

•

by Parent, prior to the receipt of the Company shareholder approval, in the event that a company adverse recommendation change (as defined in the section entitled “The Merger Agreement—No Solicitation”) occurs; or

 

•

by the Company:

 

•

prior to the receipt of the Company shareholder approval, to enter into a definitive agreement constituting a superior proposal (as defined in the section entitled “The Merger Agreement—No Solicitation”); or

 

•

if the marketing period (as defined in the section entitled “The Merger Agreement—Marketing Period”) has ended and all of Parent’s and Merger Sub’s conditions to closing have been satisfied or waived (other than those conditions that by their nature are to be satisfied at the closing) and Parent and Merger Sub fail to consummate the merger as required.

Termination Fee

(page 112)

With the exception of the company termination fee of $7.5 million to be paid by the Company to Parent under certain circumstances and the reverse termination fee of $45.6 million (the “reverse termination fee”) to be paid by Parent to the Company under certain circumstances, all fees and expenses incurred in connection with the merger and the other transactions contemplated by the merger agreement will be paid by the party incurring such fees and expenses, whether or not such transactions are completed. For a description of certain fees and expenses incurred by the parties in connection with this proxy statement, see the section of this proxy statement titled “The Virtual Special Meeting—Solicitation of Proxies” beginning on page 28.

The Company may be obligated to pay Parent the company termination fee of $7.5 million if prior to the receipt of the Company shareholder approval, the merger agreement is terminated under certain circumstances, such as (i) termination by Parent in the event that the Board makes a company adverse recommendation change (as defined in the section entitled “The Merger Agreement—Change in Board Recommendation” beginning on page 106) or (ii) termination by the Company to enter into a definitive agreement constituting a superior proposal.

Upon termination of the merger agreement, under certain specified circumstances, Parent may be required to pay the Company a reverse termination fee of $45.6 million pursuant to the terms and conditions of the merger agreement. See the section entitled “The Merger Agreement—Fees and Expenses” beginning on page 112 for a discussion of the circumstances under which either party will be required to pay a termination fee.

Dissenters’ Rights Available to Company Shareholders

(page 82)

If the merger agreement is adopted by the Company’s shareholders, Company shareholders who do not vote in favor of the adoption of the merger agreement and who properly demand payment of fair cash value of their shares are entitled to certain dissenters’ rights pursuant to Sections 1701.84 and 1701.85 of the Ohio General Corporation Law (the “OGCL”). Section 1701.85 generally provides that Company shareholders will not be entitled to such rights without strict compliance with the procedures set forth in Section 1701.85, and failure to timely take any one of the required steps may result in the termination or waiver of such rights. Specifically, any Company shareholder who is a record holder of Company common shares or 6 ³/₄% preferred shares on March 23, 2020, the record date for the special meeting, and whose shares are not voted in favor of the adoption of the merger agreement may be entitled to be paid the “fair cash value” of such shares after the completion of the merger in lieu of any applicable merger consideration.

To be entitled to such payment, a shareholder must, among other things, deliver to the Company a written demand for payment of the fair cash value of the shares held by such shareholder with the information provided

 

10

for in Section 1701.85(A)(4) of the OGCL before the vote to adopt the merger agreement is taken, not vote in favor of the adoption of the merger agreement, and otherwise comply with Section 1701.85. A shareholder’s failure to vote against the adoption of the merger agreement will not constitute a waiver of such shareholder’s dissenters’ rights as long as such shareholder does not vote in favor of the adoption of the merger agreement. However, a proxy submitted but not marked to specify voting instructions will be voted in favor of the adoption of the merger agreement and will be deemed a waiver of dissenters’ rights. Any written demand must specify the shareholder’s name and address, the number and class of shares held by him, her or it on the record date, and the amount claimed as the “fair cash value” of such shares of common stock.

Shareholders holding Company common shares considering seeking payment of fair cash value of their shares should be aware that the “fair cash value” of their shares as determined pursuant to Section 1701.85 of the OGCL could be more than, the same as, or less than the value of the consideration they would receive pursuant to the merger if they did not seek payment of fair cash value of their shares. For shares listed on a national securities exchange (such as the NYSE, on which the Company common shares are currently listed) immediately before the effective time of the merger, the fair cash value will be the closing sale price of the shares as of the close of trading on the day before the vote of the Company’s shareholders on the adoption of the merger agreement.

Please see the section of this proxy statement entitled “The Merger—Dissenters’ Rights Available to Company Shareholders” beginning on page 82 and the text of Sections 1701.84 and 1701.85, which is attached as Annex D to this proxy statement and incorporated herein by reference, for more specific information on the procedures to be followed in exercising dissenters’ rights. Shareholders who wish to seek appraisal of their shares are encouraged to seek the advice of legal counsel with respect to the exercise of dissenters’ rights due to the complexity of the appraisal process and because failure to follow fully and precisely the procedural requirements of the statute may result in termination or waiver of such rights.

Litigation Related to the Merger (page 85)

Between February 13, 2020, and February 28, 2020, three complaints were filed in the United States District Court for the Southern District of New York, one complaint was filed in the United States District Court for the Eastern District of New York and one complaint was filed in the United States District Court for the District of Delaware in connection with the now-terminated Agreement and Plan of Merger, dated as of December 21, 2019, among the Company, Charlie AcquireCo Inc. (“Brookfield Parent”) and Charlie Merger Sub Inc. (“Brookfield Merger Sub”) (the “original Brookfield merger agreement” and, as amended from time to time, the “Brookfield merger agreement”), and disclosures with respect thereto, which variously sought to enjoin the shareholder vote on and/or the consummation of the proposed merger with Brookfield Asset Management’s infrastructure investment division known as the Brookfield Infrastructure Group (“Brookfield Infrastructure”) (the “proposed Brookfield merger”), among other relief. On February 13, 2020, a complaint was filed in the United States District Court for the Southern District of New York by plaintiff Shiva Stein, a purported shareholder of the Company, against the Company and the members of the Board under the caption Stein v. Cincinnati Bell Inc., et al., Case No. 1:20-cv-01282 (S.D.N.Y.) (the “Stein complaint”). On February 20, 2020, a putative class action complaint was filed in the United States District Court for the District of Delaware by plaintiff Dennis Palkon, a purported shareholder of the Company, against the Company, the members of the Board, Brookfield Parent and Brookfield Merger Sub on behalf of the public shareholders of the Company under the caption Palkon v. Cincinnati Bell Inc., et al., Case No. 1:20-cv-00244-CFC (D. Del.) (the “first Palkon complaint”). On February 24, 2020, a putative class action complaint was filed in the United States District Court for the Southern District of New York by plaintiff Brian Katz, a purported shareholder of the Company, against the Company and the members of the Board on behalf of the public shareholders of the Company under the caption Katz v. Cincinnati Bell Inc., et al., Case No. 1:20-cv-1607 (S.D.N.Y.) (the “Katz complaint”). On February 25, 2020, a complaint was filed in the United States District Court for the Southern District of New York by plaintiff James Lin, a purported shareholder of the Company, against the Company and the members of the Board under the caption Lin v. Cincinnati Bell Inc., et al., Case No. 1:20-cv-01635 (S.D.N.Y.) (the “Lin complaint”). On February 28, 2020, a complaint was filed in the United States District Court for the Eastern District of New York by plaintiff Ralph

 

11

Vollweiler, a purported shareholder of the Company, against the Company and the members of the Board under the caption Vollweiler v. Cincinnati Bell Inc., et al., Case No. 1:20-cv-01120 (E.D.N.Y.) (the “Vollweiler complaint”, and together with the Stein complaint, Palkon complaint, Katz complaint and Lin complaint, the “Brookfield merger complaints”). The Brookfield merger complaints allege that the preliminary proxy statement filed in connection with the proposed Brookfield merger on February 4, 2020 omitted material information in violation of Sections 14(a) and 20(a) of the Exchange Act.

On March 23, 2020, the plaintiff in the putative class action captioned Palkon v. Cincinnati Bell Inc., et al., Case No. 1:20-cv-00244-CFC (D. Del.) voluntarily dismissed the first Palkon complaint without prejudice and filed a new putative class action complaint against the Company, the members of the Board, Parent and Merger Sub on behalf of the public shareholders of the Company under the caption Palkon v. Cincinnati Bell Inc., et al., Case No. 1:20-cv-00411 (D. Del.) (the “second Palkon complaint”, and together with the Brookfield merger complaints, the “complaints”), alleging that the preliminary proxy statement filed on March 19, 2020 in connection with the merger agreement omitted material information in violation of Sections 14(a) and 20(a) of the Exchange Act.

The defendants believe that the complaints were and are without merit.

Material U.S. Federal Income Tax Consequences of the Merger

(page 91)

The receipt of cash pursuant to the merger will be a taxable transaction for U.S. federal income tax purposes. Generally, for U.S. federal income tax purposes, if you are a holder of Company common shares who is a U.S. holder (as defined below in the section of this proxy statement entitled “The Merger—Material U.S.

Federal Income Tax Consequences of the Merger”), you will recognize capital gain or loss equal to the difference between the amount of cash you receive in the merger and your adjusted tax basis in the Company common shares converted into cash in the merger. If you are a holder of Company common shares who is a non-U.S. holder (as defined below in the section of this proxy statement entitled “The Merger—Material U.S. Federal Income Tax Consequences of the Merger”), the merger will generally not be taxable to you under U.S. federal income tax laws unless you have certain connections to the United States or we are a USRPHC (as defined below in the section of this proxy statement entitled “The Merger—Material U.S. Federal Income Tax Consequences of the Merger”) and certain other conditions are met.

Because we believe we may be, or may have been during the applicable period, a USRPHC, a non-U.S. holder may be subject to U.S. federal income tax on any gain recognized upon the receipt of cash pursuant to the merger. Whether or not a non-U.S. holder will be subject to U.S. federal income tax depends on the number of Company common shares such non-U.S. Holder holds and whether such shares are considered to be “regularly traded” on an established securities market within the meaning of applicable Treasury Regulations issued by the IRS. Because individual circumstances may differ, we recommend that you consult your own tax advisor to determine the particular tax effects to you.

You should read the section of this proxy statement entitled “The Merger—Material U.S. Federal Income Tax Consequences of the Merger” beginning on page 91 for a more complete discussion of the material U.S. federal income tax consequences of the merger.

Current Price of Common Shares

(page 119)

The closing sale price of Company common shares on the NYSE on March 23, 2020 was $13.54. You are encouraged to obtain current market quotations for Company common shares in connection with voting your Company common shares.

Additional Information

(page 122)

You can find more information about the Company in the periodic reports and other information we file with the U.S. Securities and Exchange Commission (the “SEC”). The information is available at the SEC’s public reference facilities and at the website maintained by the SEC at www.sec.gov.

 

12

QUESTIONS AND ANSWERS ABOUT THE VIRTUAL SPECIAL MEETING AND THE MERGER

The following questions and answers are intended to briefly address some commonly asked questions regarding the special meeting and the merger. These questions and answers may not address all questions that may be important to you as a holder of Company common shares or 6 ³/₄% preferred shares. You should read the more detailed information contained elsewhere in this proxy statement, the annexes to this proxy statement and the documents referred to or incorporated by reference in this proxy statement.

 

Q:	Why am I receiving this proxy statement?

 

A:	On March 13, 2020, the Company entered into the merger agreement with Parent and Merger Sub. Pursuant to the merger agreement, Merger Sub will be merged with and into the Company, with the Company surviving the merger as a subsidiary of Parent.

You are receiving this proxy statement in connection with the solicitation of proxies by the Board in favor of the proposal to adopt the merger agreement and the other matters to be voted on at the special meeting described below under “—What proposals will be considered at the special meeting?”

 

Q:	As a holder of Company common shares, what will I receive in the merger?

 

A:	If the merger is completed, you will be entitled to receive $15.50 in cash, without interest and less any applicable withholding taxes, for each Company common share that you own immediately prior to the effective time of the merger.

The receipt of cash pursuant to the merger will be a taxable transaction for U.S. federal income tax purposes. Please see the section of this proxy statement entitled “The Merger—Material U.S. Federal Income Tax Consequences of the Merger” beginning on page 91 for a more detailed description of the United States federal income tax consequences of the merger. You should consult your own tax advisor for a full understanding of how the merger will affect your federal, state, local and/or non-U.S. taxes.

 

Q:	What will happen to outstanding Company equity compensation awards in the merger?

At the effective time of the merger, subject to all required withholding taxes:

 

•

each Company PSU outstanding immediately prior to the effective time of the merger, whether vested or unvested, will become fully vested and will be canceled and converted into the right to receive an amount in cash, without interest, equal to the product of (x) the number of Company common shares underlying such Company PSU, with the number of Company common shares determined based on the greater of target performance and actual performance as determined by the Board (or appropriate committee thereof) prior to the closing date of the merger and (y) the merger consideration;

 

•

each Company RSU outstanding immediately prior to the effective time of the merger, whether vested or unvested, will become fully vested and will be canceled and converted into the right to receive an amount in cash, without interest, equal to the product of (x) the number of Company common shares underlying such Company RSU and (y) the merger consideration;

 

•

each Company Stock Option outstanding immediately prior to the effective time of the merger, whether vested or unvested, will be deemed to be fully vested and will be canceled and converted into the right to receive an amount in cash, without interest, equal to the product of (x) the number of Company common shares underlying such Company Stock Option and (y) the excess (if any) of the merger consideration over the per share exercise price of such Company Stock Option, provided that each Company Stock Option that has an exercise price that is greater than or equal to the merger consideration will be canceled for no consideration;

 

•

each Company SAR outstanding immediately prior to the effective time of the merger, whether vested or unvested, will be deemed to be fully vested and will be canceled and converted into the right to

 

13

receive an amount in cash, without interest, equal to the product of (x) the number of Company common shares underlying such Company SAR and (y) the excess (if any) of the merger consideration over the per share base price of such Company SAR, provided that each Company SAR that has a base price that is greater than or equal to the merger consideration will be canceled for no consideration; and

 

•

each Company Phantom Share outstanding immediately prior to the effective time of the merger, whether vested or unvested, will become fully vested and will be canceled and converted into the right to receive an amount in cash, without interest, equal to the product of (x) the number of Company common shares underlying such Company Phantom Share and (y) the merger consideration.

See “The Merger Agreement—Treatment of Equity and Equity-Based Awards” beginning on page 96.

 

Q:	What will happen to the 6 3/4% preferred shares and the depositary shares representing interests in such 6 3/4% preferred shares in the merger?

 

A:	If the merger is completed, each 6 3/4% preferred share and depositary share representing one-twentieth of a 6 3/4% preferred share issued and outstanding immediately prior to the effective time of the merger will remain issued and outstanding immediately following the effective time of the merger.

After the effective time of the merger, the Company will be required either to (i) offer to repurchase the 6 ³/₄% preferred shares on the date that is 75 days after the Company gives notice of the merger for their liquidation preference of $1,000 per share (or $50 per depositary share) plus any accrued and unpaid dividends or, if such offer is not made, (ii) modify the conversion ratio applicable to the 6 ³/₄% preferred shares so that upon conversion the holders of the 6 ³/₄% preferred shares will have the right to receive an amount in cash equal to the liquidation preference of $1,000 per share (or $50 per depositary share) plus any accrued and unpaid dividends.

 

Q:	When and where is the special meeting of our shareholders?

 

A:

The special meeting will be held online via live webcast on May 7, 2020, at 11:00 am, Eastern Daylight Time. There will not be a physical meeting location. The special meeting can be accessed by visiting www.virtualshareholdermeeting.com/CBB2020, where you will be able to participate in the meeting live and vote online. We encourage you to allow ample time for online check-in, which will open at 10:30 am, Eastern Daylight Time. Please note that because there will not be a physical meeting location you will not be able to attend the special meeting in person.

 

Q:	Who may attend the special meeting? Are there procedures for attending?

 

A:

Only holders of record of Company common shares, 6 3/4% preferred shares or depositary shares representing interests in such 6 3/4% preferred shares as of March 23, 2020, the record date for the special meeting, or their legal proxy holders may attend the special meeting or any adjournments or postponements thereof.

 

Q:	What do I need in order to be able to attend the special meeting online?

 

A:

The special meeting will be held online via live webcast only. Any shareholder of record on the record date can attend the special meeting live online at www.virtualshareholdermeeting.com/CBB2020. The webcast will start at 11:00 am, Eastern Daylight Time, on May 7, 2020. Shareholders may vote while attending the special meeting online. In order to be able to enter the special meeting, you will need your 16-digit control number, which is included on your proxy card if you are a shareholder of record of Company common shares, 6 3/4% preferred shares or depositary shares representing interests in such 6 3/4% preferred shares as of March 23, 2020 or included with the form and voting instructions you received from your broker if you hold your shares in “street name.” Instructions on how to attend and participate online are also posted online at www.proxyvote.com.

 

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Q:	Who is entitled to vote at the special meeting?

 

A:

At the special meeting, holders of record of Company common shares or 6 3/4% preferred shares as of the close of business on March 23, 2020, the record date for the special meeting, will be entitled to vote the Company common shares or 6 3/4% preferred shares (voting as a single class) they held on the record date at the special meeting. As of the close of business on the record date, there were 50,564,267 Company common shares outstanding and entitled to vote and 155,250 6 3/4% preferred shares outstanding and entitled to vote. Each shareholder is entitled to one vote for each Company common share or 6 3/4% preferred share held by such shareholder on the record date on each of the proposals presented in this proxy statement. At the special meeting, holders of depositary shares representing one-twentieth of a 6 3/4% preferred share will be entitled to vote the number of 6 3/4% preferred shares represented by their depositary shares.

If on March 23, 2020, you were a “record” holder of Company common shares or 6 ³/₄% preferred shares (or depositary shares representing interests in such 6 ³/₄% preferred shares) (that is, if you held Company common shares or 6 ³/₄% preferred shares (or depositary shares representing interests in such 6 ³/₄% preferred shares) in your own name in the share transfer records maintained by our transfer agent, Computershare Investor Services, LLC (“Computershare”)), you may vote at the special meeting or by proxy. Whether or not you intend to attend the special meeting, we encourage you to vote now, online, by phone or proxy card to ensure that your vote is counted.

If on March 23, 2020, you were the beneficial owner of Company common shares or 6 ³/₄% preferred shares (or depositary shares representing interests in such 6 ³/₄% preferred shares) held in “street name” (that is, if you held Company common shares or 6 ³/₄% preferred shares (or depositary shares representing interests in such 6 ³/₄% preferred shares) through your broker) then these materials are being forwarded to you by your broker. You may direct your broker how to vote your Company common shares or 6 ³/₄% preferred shares (or depositary shares representing interests in such 6 ³/₄% preferred shares), as applicable, by following the voting instructions on the form provided by your broker. If you hold any Company common shares or 6 ³/₄% preferred shares (or depositary shares representing interests in such 6 ³/₄% preferred shares) through your broker and wish to attend the special meeting and vote at the special meeting, you may attend the special meeting but may not be able to vote at the special meeting unless you first obtain a legal proxy issued in your name from your broker or other nominee.

A list of Company shareholders of record as of the record date who are entitled to vote at the special meeting will be open for examination by any shareholder at the meeting.

 

Q:	What proposals will be considered at the special meeting?

 

A:	At the special meeting, holders of Company common shares and holders of 6 3/4% preferred shares (voting as a single class) will be asked to consider and vote on the following proposals:

 

•

a proposal to adopt the merger agreement;

 

•

a nonbinding, advisory proposal to approve the compensation that may be paid or become payable to the Company’s named executive officers in connection with, or following, the consummation of the merger (this nonbinding, advisory proposal (the “nonbinding compensation proposal”), relates only to contractual obligations of the Company in existence prior to consummation of the merger that may result in a payment to the Company’s named executive officers in connection with, or following, the consummation of the merger and does not relate to any new compensation or other arrangements between the Company’s named executive officers and Parent or, following the merger, the surviving corporation and its subsidiaries); and

 

•

a proposal to adjourn the special meeting to a later date or time, if necessary or appropriate, to solicit additional proxies in the event there are insufficient votes at the time of the special meeting or any adjournment or postponement thereof to adopt the merger agreement (the “adjournment proposal”).

 

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Q:	What constitutes a quorum for purposes of the special meeting?

 

A:

A majority of all of the issued and outstanding Company common shares and 6 3/4% preferred shares entitled to vote, represented by proxy, constitutes a quorum. Attendance at the virtual meeting does not count for purposes of determining a quorum. Abstentions will be counted for purposes of determining the presence of a quorum. “Broker non-votes” (as described under “The Virtual Special Meeting—Quorum”) will not be counted for purposes of determining the presence of a quorum unless your broker has been instructed to vote on at least one of the proposals presented in this proxy statement. If, however, less than a quorum is represented at the special meeting, the holders of Company common shares and 6 3/4% preferred shares representing a majority in interest represented and entitled to vote at the meeting may adjourn the meeting.

 

Q:	What vote of our shareholders is required to approve each of the proposals?

 

A:

The adoption of the merger agreement requires the affirmative vote of shareholders holding at least two-thirds of the outstanding Company common shares and 6 3/4% preferred shares (voting as a single class), in each case entitled to vote thereon as of the close of business on the record date. Abstentions, failures to vote and “broker non-votes” will have the same effect as a vote “AGAINST” the proposal to adopt the merger agreement. Note that you may vote to adopt the merger agreement and vote not to approve the nonbinding compensation proposal or adjournment proposal and vice versa.

The approval of the nonbinding compensation proposal requires the affirmative vote of a majority of the Company common shares and 6 ³/₄% preferred shares (voting as a single class) present and entitled to vote on that proposal at the special meeting. Assuming a quorum is present at the special meeting, failures to vote and “broker non-votes” will have no effect on the outcome of the nonbinding compensation proposal and abstentions will have the same effect as a vote “AGAINST” the proposal.

The approval of the adjournment proposal requires the affirmative vote of a majority of the votes cast by holders of Company common shares and 6 ³/₄% preferred shares (voting as a single class) on such proposal at the special meeting. Assuming a quorum is present at the special meeting, abstentions, failures to vote and “broker non-votes” will have no effect on the outcome of the adjournment proposal. If, however, less than a quorum is present or represented at the special meeting, the holders of Company common shares and 6 ³/₄% preferred shares representing a majority in interest present or represented and entitled to vote at the meeting may adjourn the meeting.

 

Q:	How does the Board recommend that I vote?

 

A:	The Board recommends a vote “FOR” the proposal to adopt the merger agreement, “FOR” the nonbinding compensation proposal and “FOR” the adjournment proposal.

For a discussion of the factors that the Board considered in determining to recommend the adoption of the merger agreement, please see the section of this proxy statement entitled “The Merger—Reasons for the Merger” beginning on page 51. In addition, in considering the recommendation of the Board with respect to the merger agreement, you should be aware that some of the Company’s directors and executive officers have interests that may be different from, or in addition to, the interests of the Company’s shareholders generally. Please see the section of this proxy statement entitled “The Merger—Interests of the Company’s Directors and Executive Officers in the Merger” beginning on page 86.

The Board also recommends a vote “FOR” the nonbinding compensation proposal and a vote “FOR” the adjournment proposal.

 

Q:	How do the Company’s directors and executive officers intend to vote?

 

A:

As of March 23, 2020, the directors and executive officers of the Company beneficially owned in the aggregate 905,331 Company common shares, or approximately 1.79% of the outstanding Company common shares, and no 6 3/4% preferred shares. Although none of the directors or executive officers is obligated to vote to adopt the merger agreement, we currently expect that each of these individuals will vote all of his or her shares in favor of each of the proposals to be presented at the special meeting.

 

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Q:	Do any of the Company’s directors or executive officers have any interests in the merger that are different from, or in addition to, my interests as a shareholder?

 

A:

In considering the proposals to be voted on at the special meeting, you should be aware that the Company’s directors and executive officers have financial interests in the merger that may be different from, or in addition to, your interests as a shareholder. The members of the Board were aware of and considered these interests in reaching the determination to adopt the merger agreement and recommend that the holders of Company common shares and 6 3/4% preferred shares (voting as a single class) vote their Company common shares or 6 3/4% preferred shares, as applicable, to adopt the merger agreement. These interests may include:

 

•

each outstanding Company PSU, Company RSU, Company Stock Option, Company SAR and Company Phantom Share will fully vest and will be cashed out upon the effective time of the merger (in each case as described below in “The Merger—Treatment of Equity and Equity-Based Awards”);

 

•

each of the Company’s executive officers is party to an individual employment agreement with the Company that provides severance and other benefits in the case of a “qualifying termination” following a change of control, which will include the completion of the merger (as described below in The Merger—Interests of the Company’s Directors and Executive Officers in the Merger—Severance Entitlements”);

 

•

all employees of the Company (including the executive officers) are eligible to receive cash-based long-term incentive awards, retention bonuses or completion bonuses, the aggregate amount of which may not exceed $17.5 million, including any such awards granted following December 21, 2019 and prior to the date of the merger agreement. As of the date of this proxy statement, although no determinations have been made as to whether any executive officer will receive any such bonuses, the estimated aggregate value of the cash-based long-term incentive awards the Company executive officers would be entitled to is $5,530,000;

 

•

all participants (including the executive officers) in the Company’s annual bonus plan will receive a pro rata bonus payment based on the portion of the plan year elapsed prior to the effective time of the merger and the Company’s determination of achievement of performance goals; and

 

•

the Company’s directors and executive officers are entitled to continued indemnification and insurance coverage under the merger agreement and the Company’s organizational documents.

For more information, please see the section of this proxy statement entitled “The Merger—Interests of the Company’s Directors and Executive Officers in the Merger” beginning on page 86.

 

Q:	What happens if I transfer my Company common shares before the special meeting?

 

A:

The record date for the special meeting is earlier than the date of the special meeting. If you own Company common shares on the record date but transfer your shares after the record date but prior to the special meeting, you will retain your right to vote such shares at the special meeting. However, the right to receive the merger consideration will pass to the person to whom you transferred your shares.

 

Q:	What happens if I transfer my 6 3/4% preferred shares (or depositary shares representing interests in such 6 3/4% preferred shares) before the special meeting?

 

A:

The record date for the special meeting is earlier than the date of the special meeting. If you own 6 3/4% preferred shares (or depositary shares representing interests in such 6 3/4% preferred shares) on the record date but transfer your shares after the record date but prior to the special meeting, you will retain your right to vote such shares at the special meeting.

 

17

Q:	How do I cast my vote if I am a shareholder of record?

 

A:	If you are a shareholder with Company common shares or 6 3/4% preferred shares (or depositary shares representing interests in such 6 3/4% preferred shares) registered in your name, you may vote such shares:

 

•

by submitting a proxy for the special meeting via the Internet, by telephone or by completing, signing, dating and mailing the enclosed proxy card in the envelope provided; or

 

•

by casting your vote at the special meeting via the special meeting website. There will not be a physical meeting location. Any shareholder can attend the special meeting by visiting www.virtualshareholdermeeting.com/CBB2020, where shareholders may vote during the special meeting. The special meeting starts at 11:00 am, Eastern Daylight Time. We encourage you to allow ample time for online check-in, which will open at 10:30 am, Eastern Daylight Time. Please have your 16-digit control number to join the special meeting. Instructions on who can attend and participate via the Internet, including how to demonstrate proof of stock ownership, are posted at www.proxyvote.com.

For more detailed instructions on how to vote using one of these methods, please see the section of this proxy statement entitled “The Virtual Special Meeting—Voting Procedures” beginning on page 26.

If you are a holder of record of Company common shares or 6 ³/₄% preferred shares (or depositary shares representing interests in such 6 ³/₄% preferred shares) and you submit a proxy card or voting instructions but do not direct how to vote on each item, the persons named as proxies will vote in favor of the proposal to adopt the merger agreement, the nonbinding compensation proposal and the adjournment proposal.

Whether or not you plan to attend the special meeting, we urge you to vote now to ensure your vote is counted. You may still attend the special meeting and vote at the special meeting if you have already voted by proxy.

 

Q:	How do I cast my vote if my Company common shares or 6 3/4% preferred shares (or depositary shares representing interests in such 6 3/4% preferred shares) are held in “street name” by my broker?

 

A:

If you hold your shares in “street name,” in other words your shares are held in the name of your broker, you should have received a proxy card and voting instructions with these proxy materials from that organization rather than from the Company. In order to vote, complete and mail the proxy card received from your broker to ensure that your vote is counted. Alternatively, you may vote by telephone or over the Internet as instructed by your broker. To vote at the special meeting, you must obtain a valid proxy from your broker, bank or other agent. Follow the instructions from your broker included with these proxy materials or contact your broker to request a proxy form.

Without following those instructions, your shares will not be voted, which will have the same effect as a vote “AGAINST” the proposal to adopt the merger agreement but will have no effect on either the nonbinding compensation proposal or the adjournment proposal.

 

Q:	What will happen if I abstain from voting or fail to vote on any of the proposals?

 

A:	If you abstain from voting, fail to cast your vote at the special meeting or by proxy or fail to give voting instructions to your broker, it will have the same effect as a vote “AGAINST” the proposal to adopt the merger agreement.

Assuming a quorum is present at the special meeting, failures to vote and “broker non-votes” will have no effect on the outcome of the nonbinding compensation proposal and abstentions will have the same effect as a vote “AGAINST” the proposal.

Assuming a quorum is present at the special meeting, abstentions, failures to vote and “broker non-votes” will have no effect on the outcome of the adjournment proposal.

 

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Q:	Can I change my vote after I have delivered my proxy?

 

A:	Yes. For shareholders of record, any time after you have submitted a proxy card and before it is voted at the special meeting, you may revoke or change your vote in one of three ways:

 

•

You may submit a new proxy card bearing a later date (which automatically revokes the earlier proxy or voting instructions) whether made on the Internet, by telephone or by mail.

 

•

You may submit a written notice of revocation to the Company’s Corporate Secretary at 221 East Fourth Street, Cincinnati, Ohio 45202.

 

•

You may attend the special meeting and vote at the special meeting (your attendance at the special meeting will not, by itself, revoke your proxy, so you must vote at the special meeting to revoke your proxy).

Please note that if you want to revoke your proxy by sending a new proxy card or a written notice of revocation to the Company, you should ensure that you send your new proxy card or written notice of revocation in sufficient time for it to be received by the Company prior to the special meeting.

If you hold your shares in “street name,” you will need to revoke or resubmit your proxy through your broker and in accordance with its procedures. If your broker allows you to submit a proxy via the Internet or by telephone, you may be able to change your vote by submitting a new proxy via the Internet or by telephone or by mail. In order to attend the special meeting and vote at the special meeting, you will need to obtain a proxy for your broker, the shareholder of record.

 

Q:	What should I do if I receive more than one set of voting materials?

 

A:

You may receive more than one set of voting materials, including multiple copies of this proxy statement or multiple proxy or voting instruction cards. For example, if you hold your Company common shares, 6 3/4% preferred shares and/or depositary shares in more than one brokerage account, you will receive a separate voting instruction card for each brokerage account in which you hold Company common shares, 6 3/4% preferred shares or depositary shares, as applicable. If you are a holder of record of Company common shares, 6 3/4% preferred shares or depositary shares and your shares are registered in more than one name, you will receive more than one proxy card. Please submit each proxy and voting instruction card that you receive to ensure that all your shares are voted.

 

Q:	If I hold my Company common shares in certificated form, should I send in my share certificates now?

 

A:

No. As promptly as practicable after the effective time of the merger, and not later than the third business day after the effective time of the merger, the paying agent will mail to each holder of record of Company common shares that have been converted into the right to receive the merger consideration a letter of transmittal and instructions describing the procedure for surrendering such shares in exchange for the merger consideration. If you hold your shares in certificated form, you will receive your cash payment after the paying agent receives your share certificates and any other documents requested in the instructions. You should not return your share certificates with the enclosed proxy card, and you should not forward your share certificates to the paying agent without a letter of transmittal. If you hold Company common shares in non-certificated book-entry form, you will not be required to deliver a share certificate, and you will receive your cash payment after the paying agent receives the documents requested in the instructions.

 

Q:	Am I entitled to exercise appraisal rights instead of receiving the merger consideration for my Company common shares or 6 3/4% preferred shares?

 

A:

Yes. Holders of Company common shares or 6 3/4% preferred shares are entitled to dissenters’ rights in connection with the merger. For additional information, please see the section of this proxy statement entitled “The Merger—Dissenters’ Rights Available to Company Shareholders” beginning on page 82.

 

19

Q:	When is the merger expected to be completed?

 

A:

We currently anticipate the merger to close in the first half of 2021, but we cannot be certain when or if the conditions of the merger will be satisfied or (if permissible under applicable law) waived. The merger cannot be completed until the conditions to closing are satisfied or (if permissible under applicable law) waived, including the adoption of the merger agreement by the holders of Company common shares and 6 3/4% preferred shares (voting as a single class) at the special meeting and the receipt of certain regulatory approvals.

 

Q:	What effect will the merger have on the Company?

 

A:

If the merger is consummated, Merger Sub will be merged with and into the Company, and the Company will continue to exist following the merger as a subsidiary of Parent. Following such consummation of the merger, Company common shares will no longer be traded on the NYSE or any other public market, and the registration of Company common shares under the Exchange Act will be terminated.

Immediately following the consummation of the merger, the 6 ³/₄% preferred shares will remain outstanding and the depositary shares representing interests in such 6 ³/₄% preferred shares will remain outstanding and continue to be listed on the NYSE.

After the effective time of the merger, the Company will be required either to (i) offer to repurchase the 6 ³/₄% preferred shares on the date that is 75 days after the Company gives notice of the merger for their liquidation preference of $1,000 per share (or $50 per depositary share) plus any accrued and unpaid dividends or, if such offer is not made, (ii) modify the conversion ratio applicable to the 6 ³/₄% preferred shares so that upon conversion the holders of the 6 ³/₄% preferred shares will have the right to receive an amount in cash equal to the liquidation preference of $1,000 per share (or $50 per depositary share) plus any accrued and unpaid dividends.

 

Q:	What happens if the merger is not completed?

 

A:

In the event that the proposal to adopt the merger agreement does not receive the required approval by the affirmative vote of shareholders holding at least two-thirds of the outstanding Company common shares and 6 3/4% preferred shares (voting as a single class), or if the merger is not completed for any other reason, the holders of Company common shares will not receive any payment for their Company common shares in connection with the merger. Instead, the Company will remain an independent public company and shareholders will continue to own their Company common shares. The Company common shares will continue to be registered under the Exchange Act and listed and traded on the NYSE. Under certain circumstances, if the merger is not completed, the Company may be obligated to pay to Parent the company termination fee and, under certain circumstances, Parent may be required to pay the Company the reverse termination fee. Please see the section of this proxy statement entitled “The Merger Agreement—Fees and Expenses” beginning on page 112.

 

Q:	What is householding and how does it affect me?

 

A:

The SEC has adopted rules that permit companies and intermediaries (e.g., brokers) to satisfy the delivery requirements for proxy statements and annual reports with respect to two or more shareholders sharing the same address by delivering a single proxy statement addressed to those shareholders. This process, which is commonly referred to as “householding,” potentially means extra convenience for shareholders and cost savings for companies.

Brokers with account holders who are Company shareholders may be “householding” our proxy materials. A single proxy statement will be delivered to multiple shareholders sharing an address unless contrary instructions have been received from the affected shareholders. Once you have received notice from your broker that they will be “householding” communications to your address, “householding” will continue until

 

20

you are notified otherwise or until you revoke your consent. If, at any time, you no longer wish to participate in “householding” and would prefer to receive a separate proxy statement and annual report, please notify your broker and direct your written request to Cincinnati Bell Inc., Attention: Investor Relations, 221 East Fourth Street, Cincinnati, Ohio 45202 or call 1-800-345-6301. Shareholders who currently receive multiple copies of the proxy statement at their address and would like to request “householding” of their communications should contact their broker.

 

Q:	Who can help answer my questions?

 

A:

If you need assistance in completing your proxy card or have questions regarding the special meeting, please contact Innisfree M&A Incorporated (“Innisfree”), which is acting as the Company’s proxy solicitation agent in connection with the merger, toll free at 877-825-8971. Brokers may call collect at 212-750-5833.

 

Innisfree M&A Incorporated

501 Madison Avenue, 20th Floor

New York, New York 10022

Shareholders Call Toll-Free: 877-825-8971

Brokers Call Collect: 212-750-5833

 

21

CAUTIONARY STATEMENT REGARDING FORWARD-LOOKING STATEMENTS

Certain of the statements in this proxy statement contain forward-looking statements regarding future events and results that are subject to the “safe harbor” provisions of the Private Securities Litigation Reform Act of 1995. All statements, other than statements of historical facts, including, among other things, statements regarding the proposed merger and the expected timetable for completing the proposed merger, are statements that could be deemed forward-looking statements. These statements are based on current expectations, estimates, forecasts, and projections about the industries in which we operate and the beliefs and assumptions of our management. Words such as “expects,” “anticipates,” “predicts,” “projects,” “intends,” “plans,” “believes,” “seeks,” “estimates,” “continues,” “endeavors,” “strives,” “will,” “may,” “proposes,” “potential,” “could,” “should,” “outlook,” or variations of such words and similar expressions are intended to identify such forward-looking statements. In addition, any statements that refer to projections of future financial performance, anticipated growth and trends in businesses, and other characterizations of future events or circumstances are forward-looking statements. Readers are cautioned that these forward-looking statements are based on current expectations and assumptions that are subject to risks and uncertainties, which could cause actual results to differ materially and adversely from those reflected in the forward-looking statements. Factors that could cause or contribute to such differences include, but are not limited to: (i) the risk that the proposed merger with Parent may not be completed in a timely manner or at all; (ii) the failure to receive, on a timely basis or otherwise, the Company shareholder approval; (iii) the possibility that competing offers or acquisition proposals for the Company will be made; (iv) the possibility that any or all of the various conditions to the consummation of the merger may not be satisfied or waived, including the failure to receive any required regulatory approvals from any applicable governmental entities (or any conditions, limitations or restrictions placed on such approvals); (v) the occurrence of any event, change or other circumstance that could give rise to the termination of the transaction, including in circumstances which would require the Company to pay a termination fee or other expenses; (vi) the effect of the announcement or pendency of the transaction on the Company’s ability to retain and hire key personnel, its ability to maintain relationships with its customers, suppliers and others with whom it does business, or its operating results and business generally; (vii) risks related to diverting management’s attention from the Company’s ongoing business operations; (viii) the risk that shareholder litigation in connection with the transaction may result in significant costs of defense, indemnification and liability (ix) risks related to the recent outbreak of COVID-19 (more commonly known as the Coronavirus), including the risk that the receipt of certain approvals required to consummate the merger may be delayed and (x) (A) those discussed in our Annual Report on Form 10-K for the fiscal year ended December 31, 2019 and, in particular, the risks discussed under the caption “Risk Factors” in Item 1A, and (B) those discussed in other documents the Company filed with the SEC. Actual results may differ materially and adversely from those expressed in any forward-looking statements. The Company undertakes no, and expressly disclaims any, obligation to revise or update any forward-looking statements for any reason, except as required by applicable law.

 

22

THE PARTIES

Cincinnati Bell Inc.

The Company, together with its wholly owned subsidiaries, delivers integrated communications solutions to residential and business customers over its fiber-optic and copper networks including high-speed internet, video, voice and data. The Company provides service in areas of Ohio, Kentucky, Indiana and Hawaii. In addition, enterprise customers across the United States and Canada rely on CBTS and OnX, wholly owned subsidiaries, for efficient, scalable office communications systems and end-to-end IT solutions. Our common shares are traded on the NYSE under the trading symbol “CBB”. The depositary shares are traded on the NYSE under the trading symbol “CBB.PB”. Our principal corporate office is located at 221 East Fourth Street, Cincinnati, Ohio 45202 with telephone number 513-397-9900.

Red Fiber Parent LLC

Parent is a Delaware limited liability company that was formed solely for the purpose of entering into the merger agreement and related agreements and completing the transactions contemplated thereby. Parent has not conducted any business operations other than in connection with the transactions contemplated by the merger agreement and related agreements. Upon completion of the transactions contemplated thereby, the Company will be a direct subsidiary of Parent. Its principal executive office is located at 125 West 55th Street, New York, New York 10019.

RF Merger Sub Inc.

Merger Sub is an Ohio corporation and a wholly owned subsidiary of Parent that was formed solely for the purpose of entering into the merger agreement and completing the transactions contemplated thereby. Merger Sub has not conducted any business operations other than in connection with the transactions contemplated by the merger agreement and related agreements. Upon completion of the merger, Merger Sub will merge with and into the Company, and Merger Sub will cease to exist. Merger Sub’s principal executive office is located at 125 West 55th Street, New York, New York 10019.

In connection with the merger and the other transactions contemplated by the merger agreement, MIP and Ares Funds have committed to make available to Parent, at or prior to the closing of the merger, up to approximately $879 million in equity financing, subject to the terms and conditions of the equity commitment letters.

MIP is a fund managed by MIRA, a global alternative asset manager with experience investing in the communications infrastructure industry. For more than two decades, MIRA has partnered with investors, governments and communities to manage, develop and enhance assets relied on by more than 100 million people each day. As of September 30, 2019, MIRA managed $135.6 billion in assets that are essential to the sustainable development of economies and communities, including 155 portfolio businesses, approximately 600 properties and 4.7 million hectares of farmland.

Ares Management is a global alternative investment manager operating three integrated businesses across Credit, Private Equity and Real Estate. Ares Management’s global platform had $149 billion of assets under management as of December 31, 2019 and employs approximately 1,200 employees in over 20 offices in more than 10 countries.

 

23

THE VIRTUAL SPECIAL MEETING

We are furnishing this proxy statement to the holders of Company common shares, 6 ³/₄% preferred shares and depositary shares representing interests in such 6 ³/₄% preferred shares as part of the solicitation of proxies by the Board for use at the special meeting and at any adjournments or postponements thereof.

Date, Time and Place

The special meeting will be held online via live webcast on May 7, 2020, at 11:00 am, Eastern Daylight Time. The special meeting can be accessed by visiting www.virtualshareholdermeeting.com/CBB2020, where you will be able to participate in the meeting live and vote online. We encourage you to allow ample time for online check-in, which will open at 10:30 am, Eastern Daylight Time. Please note that because there will not be a physical meeting location, you will not be able to attend the special meeting in person.

Purpose of the Special Meeting

The special meeting is being held for the purposes indicated below:

 

•

to consider and vote on a proposal to adopt the merger agreement (see the section of this proxy statement entitled “The Merger Agreement” beginning on page 94);

 

•

to consider and vote on a nonbinding, advisory proposal to approve the compensation that may be paid or become payable to the Company’s named executive officers in connection with, or following, the consummation of the merger (this nonbinding compensation proposal relates only to contractual obligations of the Company in existence prior to consummation of the merger that may result in a payment to the Company’s named executive officers in connection with, or following, the consummation of the merger and does not relate to any new compensation or other arrangements between the Company’s named executive officers and Parent or, following the merger, the surviving corporation and its subsidiaries) (see the section of this proxy statement entitled “The Merger—Interests of the Company’s Directors and Executive Officers in the Merger” beginning on page 86); and

 

•

to consider and vote on the adjournment proposal to adjourn the special meeting to a later date or time, if necessary or appropriate, to solicit additional proxies in the event there are insufficient votes at the time of the special meeting or any adjournment or postponement thereof to adopt the merger agreement.

A copy of the merger agreement is attached as Annex A to this proxy statement.

Recommendation of the Board

The Board carefully reviewed and considered the terms and conditions of the merger agreement, the merger and the other transactions contemplated by the merger agreement. The Board unanimously (i) approved the merger agreement, the merger and the other transactions contemplated by the merger agreement, (ii) determined that entering into the merger agreement, the merger and the other transactions contemplated by the merger agreement are fair to, and in the best interests of the Company and the Company’s shareholders, (iii) declared the merger agreement, the merger and the other transactions contemplated by the merger agreement advisable and (iv) recommends that the holders of Company common shares and 6 ³/₄% preferred shares adopt the merger agreement. Accordingly, the Board recommends a vote “FOR” the proposal to adopt the merger agreement. For a discussion of the factors that the Board considered in determining to recommend the adoption of the merger agreement, please see the section of this proxy statement entitled “The Merger—Reasons for the Merger” beginning on page 51.

The Board also recommends a vote “FOR” the nonbinding compensation proposal and a vote “FOR” the adjournment proposal.

 

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Record Date and Shareholders Entitled to Vote

Shareholders of record as of the close of business on March 23, 2020, the record date for the special meeting, or their legal proxy holders, will be entitled to vote the Company common shares and 6 ³/₄% preferred shares they held on the record date at the special meeting. Holders of depositary shares representing interests in the 6 ³/₄% preferred shares as of the close of business on the record date will be entitled to vote the number of 6 ³/₄% preferred shares represented by their depositary shares. As of the close of business on the record date, there were 50,564,267 Company common shares and 155,250 6 ³/₄% preferred shares outstanding and entitled to vote. Each shareholder is entitled to one vote for each Company common share and one vote for each 6 ³/₄% preferred share held by such shareholder on the record date on each of the proposals presented in this proxy statement.

Quorum

A majority of all of the issued and outstanding Company common shares and 6 ³/₄% preferred shares entitled to vote, represented by proxy, constitutes a quorum for the transaction of business at any meeting of the holders of Company common shares and 6 ³/₄% preferred shares. Attendance at the virtual meeting does not count for purposes of determining a quorum. Abstentions will be counted for purposes of determining the presence of a quorum. “Broker non-votes” will not be counted for purposes of determining the presence of a quorum unless your broker has been instructed to vote on at least one of the proposals presented in this proxy statement.

A “broker non-vote” occurs when (i) your Company common shares or 6 ³/₄% preferred shares are held by a broker, in nominee name or otherwise, exercising fiduciary powers (typically referred to as being held in “street name”) and (ii) a broker submits a proxy card for your Company common shares or 6 ³/₄% preferred shares held in “street name”, but does not vote on a particular proposal because your broker has not received voting instructions from you and does not have the authority to vote on that matter without instructions. You must follow instructions from your broker to authorize it to vote with respect to the proposal to adopt the merger agreement, the nonbinding compensation proposal or the adjournment proposal.

If, however, less than a quorum is present or represented at the special meeting, shareholders holding a majority of the Company common shares and 6 ³/₄% preferred shares (voting as a single class) represented at the special meeting may adjourn the meeting.

In the event that a quorum is not present at the special meeting, or if there are insufficient votes to adopt the merger agreement at the time of the special meeting, we expect that the special meeting will be adjourned or postponed to solicit additional proxies.

Vote Required

Adoption of the Merger Agreement

The adoption of the merger agreement by the Company’s shareholders requires the affirmative vote of shareholders holding at least two-thirds of the outstanding Company common shares and 6 ³/₄% preferred shares (voting as a single class), in each case entitled to vote thereon as of the close of business on the record date. Under the merger agreement, the receipt of such required vote is a condition to the consummation of the merger. Note that you may vote to adopt the merger agreement and vote not to approve the nonbinding compensation proposal or adjournment proposal and vice versa.

Abstentions, failures to vote and “broker non-votes” will have the same effect as a vote “AGAINST” the proposal to adopt the merger agreement.

Approval of the Nonbinding Compensation Proposal

The approval of the nonbinding compensation proposal requires the affirmative vote of at least a majority of the outstanding Company common shares and 6 ³/₄% preferred shares (voting as a single class) present and

 

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entitled to vote on such proposal at the special meeting. Assuming a quorum is present at the special meeting, failures to vote and “broker non-votes” will have no effect on the outcome of the nonbinding compensation proposal and abstentions will have the same effect as a vote “AGAINST” the proposal.

The vote on the nonbinding compensation proposal is a vote separate and apart from the vote to adopt the merger agreement. Because the vote on the nonbinding compensation proposal is advisory only, it will not be binding on the Company, the Board, Parent or the surviving corporation. Accordingly, because the Company is contractually obligated to pay the compensation, if the merger agreement is adopted by the holders of Company common shares and 6 ³/₄% preferred shares (voting as a single class) and the merger is completed, the compensation will be payable, subject only to the conditions applicable thereto, regardless of the outcome of the nonbinding advisory vote.

Approval of the Adjournment Proposal

The approval of the adjournment proposal requires the affirmative vote of at least a majority of the votes cast by the holders of the outstanding Company common shares and 6 ³/₄% preferred shares (voting as a single class) on such proposal at the special meeting. Assuming a quorum is present at the special meeting, abstentions, failures to vote and “broker non-votes” will have no effect on the outcome of the adjournment proposal. If less than a majority of the outstanding shares entitled to vote are present in person or represented by proxy at the special meeting, shareholders holding a majority of the Company common shares and 6 ³/₄% preferred shares (voting as a single class) represented at the meeting may also adjourn the special meeting. The Company does not intend to call a vote on this proposal if the proposal to adopt the merger agreement is approved at the special meeting.

The vote on the adjournment proposal is a vote separate and apart from the vote to adopt the merger agreement. Accordingly, you may vote to adopt the merger agreement and vote not to approve the adjournment proposal and vice versa.

Voting Procedures

Whether or not you plan to attend the special meeting and regardless of the number of Company common shares or 6 ³/₄% preferred shares (or depositary shares representing interests in such 6 ³/₄% preferred shares) you own, your careful consideration of, and vote on, the merger agreement is important and we encourage you to vote promptly.

To ensure that your Company common shares or 6 ³/₄% preferred shares (or depositary shares representing interests in such 6 ³/₄% preferred shares) are voted at the special meeting, we recommend that you provide voting instructions promptly by proxy, even if you plan to attend the special meeting, using one of the following three methods:

 

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Vote via the Internet. Follow the instructions for internet voting shown on the proxy card mailed to you.

 

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Vote by Telephone. Follow the instructions for telephone voting shown on the proxy card mailed to you.

 

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Vote by Proxy Card. If you do not wish to vote by the Internet or by telephone, please complete, sign, date and mail the enclosed proxy card in the envelope provided.

If you hold your shares in “street name,” in other words your shares are held in the name of your broker, you should have received a proxy card and voting instructions with these proxy materials from that organization rather than from the Company. In order to vote, complete and mail the proxy card received from your broker to ensure that your vote is counted. Alternatively, you may vote by telephone or over the Internet as instructed by your broker. To vote at the special meeting, you must obtain a valid proxy from your broker, bank or other agent.

 

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Follow the instructions from your broker included with these proxy materials or contact your broker to request a proxy form. The timing described in the instructions from your broker may differ from the timing described above. Without following those instructions, your shares held in “street name” will not be voted, which will have the same effect as a vote “AGAINST” the proposal to adopt the merger agreement.

For additional questions about the merger, assistance in submitting proxies or voting Company common shares, 6 ³/₄% preferred shares or depositary shares representing interests in such 6 ³/₄% preferred shares or to request additional copies of this proxy statement or the enclosed proxy card, please contact Innisfree M&A Incorporated, which is acting as the Company’s proxy solicitation agent in connection with the merger, toll free at 877-825-8971.

How Proxies Are Voted

If you complete and submit your proxy card or voting instructions, the persons named as proxies will follow your instructions. If you are a holder of record of Company common shares, 6 ³/₄% preferred shares or depositary shares representing interests in such 6 ³/₄% preferred shares and you submit a proxy card or voting instructions but do not direct how to vote on each item, the persons named as proxies will vote in favor of the proposal to adopt the merger agreement, the nonbinding compensation proposal and the adjournment proposal.

Revocation of Proxies

For shareholders of record, any time after you have submitted a proxy card and before the proxy card is exercised, you may revoke or change your vote in one of three ways:

 

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You may submit a new proxy card bearing a later date (which automatically revokes the earlier proxy or voting instructions) whether made on the Internet, by telephone or by mail.

 

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You may submit a written notice of revocation to the Company’s Corporate Secretary at 221 East Fourth Street, Cincinnati, Ohio 45202.

 

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You may attend the special meeting and vote at the special meeting (your attendance at the special meeting will not, by itself, revoke your proxy, so you must vote at the special meeting to revoke your proxy).

Please note that if you want to revoke your proxy by sending a new proxy card or a written notice of revocation to the Company, you should ensure that you send your new proxy card or written notice of revocation in sufficient time for it to be received by the Company prior to the special meeting.

If you hold your shares in “street name,” you will need to revoke or resubmit your proxy through your broker and in accordance with its procedures. If your broker allows you to submit a proxy via the Internet or by telephone, you may be able to change your vote by submitting a new proxy via the Internet or by telephone or by mail. In order to attend the special meeting and vote, you will need to obtain a proxy for your broker, the shareholder of record.

Participating in the Virtual Special Meeting

To attend the special meeting, visit www.virtualshareholdermeeting.com/CBB2020 and enter the 16-digit control number included on your proxy card or on the instructions that accompanied your proxy materials.

If you wish to submit a question during the special meeting, log into the virtual meeting platform at www.virtualshareholdermeeting.com/CBB2020, type your question into the “Ask a Question” field, and click “Submit.” During the Q&A session of the special meeting, we will answer questions as they come in, as time permits. The total time allowed for the Q&A session is 20 minutes. If we do not receive any relevant questions, we will conclude the Q&A session earlier.

To ensure the special meeting is conducted in a manner that is fair to all shareholders, we may exercise discretion in determining the order in which questions are answered and the amount of time devoted to any one question. We reserve the right to edit or reject questions we deem profane or otherwise inappropriate. The agenda for the special meeting and guidelines for submitting written questions during the special meeting will be available at www.virtualshareholdermeeting.com/CBB2020.

 

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If we experience technical difficulties during the special meeting (e.g., a temporary or prolonged power outage), we will determine whether the meeting can be promptly reconvened (if the technical difficulty is temporary) or whether the meeting will need to be reconvened on a later day (if the technical difficulty is more prolonged). In any situation, we will promptly notify shareholders of the decision via www.virtualshareholdermeeting.com/CBB2020. If you encounter technical difficulties accessing our meeting, a support line will be available on the login page of the special meeting website.

Solicitation of Proxies

The Company will bear the cost of soliciting proxies, including the expense of preparing, printing and distributing this proxy statement. In addition to soliciting proxies by mail, telephone or electronic means, we may request brokers to solicit their customers who have Company common shares, 6 ³/₄% preferred shares or depositary shares representing interests in such 6 ³/₄% preferred shares registered in their names and will, upon request, reimburse them for the reasonable, out-of-pocket costs of forwarding proxy materials in accordance with customary practice. We may also use the services of our directors, officers and other employees to solicit proxies, personally or by telephone, without additional compensation. In addition, the Company has retained Innisfree M&A Incorporated to solicit shareholder proxies at a total cost to the Company of approximately $25,000, plus reimbursement of customary expenses.

Adjournments and Postponements

Although it is not currently expected, the special meeting may be adjourned, recessed or postponed for the purpose of soliciting additional proxies. An adjournment of the special meeting may be made by holders of Company common shares and 6 ³/₄% preferred shares representing a majority in interest represented and entitled to vote at the meeting.

At any subsequent reconvening of the special meeting at which a quorum is represented by proxy, any business may be transacted that might have been transacted at the original meeting, and all proxies will be voted in the same manner as they would have been voted at the original convening of the special meeting, except for any proxies that have been validly revoked or withdrawn prior to the reconvened meeting.

Voting by Company Directors, Executive Officers and Principal Securityholders

As of March 23, 2020, the directors and executive officers of the Company beneficially owned in the aggregate 905,331 Company common shares, or approximately 1.79% of the outstanding Company common shares, and no 6 ³/₄% preferred shares. Although none of the directors or executive officers is obligated to vote to adopt the merger agreement, we currently expect that each of these individuals will vote all of his or her shares in favor of each of the proposals to be presented at the special meeting.

The Company’s directors and executive officers have interests in the merger that may be different from, or in addition to, the interests of the Company’s shareholders generally. For more information, please see the section of this proxy statement entitled “The Merger—Interests of the Company’s Directors and Executive Officers in the Merger” beginning on page 86.

Assistance

If you need assistance in completing your proxy card or have questions regarding the special meeting, please contact Innisfree M&A Incorporated, which is acting as the Company’s proxy solicitation agent in connection with the merger, toll free at 877-825-8971. Brokers may call collect at 212-750-5833.

List of Shareholders

A list of Company shareholders of record as of the record date who are entitled to vote at the special meeting will be open for examination by any shareholder at the meeting.

 

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PROPOSAL 1: ADOPTION OF THE MERGER AGREEMENT

As discussed elsewhere in this proxy statement, holders of Company common shares and 6 ³/₄% preferred shares (voting as a single class) will consider and vote on a proposal to adopt the merger agreement. You are urged to carefully read this proxy statement in its entirety for more detailed information concerning the merger agreement and the merger, including the information set forth under the sections of this proxy statement captioned “The Merger” and “The Merger Agreement”. A copy of the merger agreement is attached as Annex A to this proxy statement. You are urged to read the merger agreement carefully and in its entirety.

The adoption of the merger agreement by the Company’s shareholders requires the affirmative vote of shareholders holding at least two-thirds of the outstanding Company common shares and 6 ³⁄₄% preferred shares (voting as a single class), in each case entitled to vote thereon as of the close of business on the record date. Abstentions, failures to vote and “broker non-votes” will have the same effect as a vote “AGAINST” the proposal to adopt the merger agreement.

The Board recommends a vote “FOR” the adoption of the merger agreement.

 

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PROPOSAL 2: ADVISORY, NON-BINDING VOTE ON MERGER-RELATED EXECUTIVE

COMPENSATION ARRANGEMENTS

In accordance with Section 14A of the Exchange Act, the Company is providing holders of Company common shares and 6 ³/₄% preferred shares (voting as a single class) with the opportunity to cast a nonbinding advisory vote on the compensation that may be paid or become payable to the Company’s named executive officers in connection with the merger. As required by those rules, the Company is asking holders of Company common shares to vote on the approval of the following resolution:

“RESOLVED, that the compensation that may be paid or become payable to the Company’s named executive officers in connection with the merger, as disclosed in the table entitled “Potential Payments to Named Executive Officers”, including the associated narrative discussion, and the agreements or understandings pursuant to which such compensation may be paid or become payable, are hereby APPROVED.”

The vote on executive compensation payable in connection with the merger is a vote separate and apart from the vote to adopt the merger agreement. Accordingly, you may vote to adopt the merger agreement and vote not to approve the executive compensation and vice versa. Because the vote is advisory in nature only, it will not be binding on the Company or the Board. Accordingly, because the Company is contractually obligated to pay the compensation, such compensation will be paid or become payable, subject only to the conditions applicable thereto, if the merger is consummated and regardless of the outcome of the advisory vote.

The approval of the nonbinding compensation proposal requires the affirmative vote of at least a majority of the outstanding Company common shares and 6 ³/₄% preferred shares (voting as a single class) present and entitled to vote on that proposal at the special meeting. Assuming a quorum is present at the special meeting, failures to vote and “broker non-votes” will have no effect on the outcome of the nonbinding compensation proposal and abstentions will have the same effect as a vote “AGAINST” the proposal.

The Board recommends a vote “FOR” the approval of the nonbinding compensation proposal.

 

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PROPOSAL 3: VOTE ON POSSIBLE ADJOURNMENT TO SOLICIT ADDITIONAL PROXIES, IF

NECESSARY

The special meeting may be adjourned to another time and place to permit further solicitation of proxies, if necessary, to obtain additional votes to approve the proposal to adopt the merger agreement. The Company currently does not intend to propose adjournment of the special meeting if there are sufficient votes to approve the proposal to adopt the merger agreement.

The Company is asking you to authorize the holder of any proxy solicited by the Board to vote in favor of any adjournment of the special meeting, if necessary, to solicit additional proxies if there are not sufficient votes to approve the proposal to adopt the merger agreement at the time of the special meeting.

The approval of the adjournment proposal requires the affirmative vote of at least a majority of the votes cast by the holders of the outstanding Company common shares and 6 ³⁄₄% preferred shares (voting as a single class) on such proposal at the special meeting. Assuming a quorum is present at the special meeting, abstentions, failures to vote and “broker non-votes” will have no effect on the outcome of the adjournment proposal. If less than a majority of the outstanding shares entitled to vote are present in person or represented by proxy at the special meeting, shareholders holding a majority of the Company common shares and 6 ³⁄₄% preferred shares (voting as a single class) represented at the meeting may also adjourn the special meeting.

The Board recommends a vote “FOR” the approval of the adjournment proposal.

 

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THE MERGER

Overview

The Company is seeking the adoption by the holders of Company common shares and 6 ³⁄₄% preferred shares (voting as a single class) of the merger agreement the Company entered into on March 13, 2020, with Parent and Merger Sub. Under the terms of the merger agreement, subject to the satisfaction or (if permissible under applicable law) waiver of specified conditions, Merger Sub will be merged with and into the Company, with the Company surviving the merger as a subsidiary of Parent. The Board has unanimously approved the merger agreement, the merger and the other transactions contemplated by the merger agreement and recommends that the holders of Company common shares and 6 ³⁄₄% preferred shares (voting as a single class) vote to adopt the merger agreement.

Upon the consummation of the merger, each Company common share issued and outstanding immediately prior to the effective time of the merger (other than the excluded shares and dissenting shares) will be canceled and converted into the right to receive $15.50 in cash, without interest and less any applicable withholding taxes. Immediately following the consummation of the merger, the 6 ³⁄₄% preferred shares will remain outstanding and the depositary shares representing interests in such 6 ³⁄₄% preferred shares will remain outstanding and continue to be listed on the NYSE.

Background of the Merger

The following chronology summarizes the key meetings and events that led to the signing of the merger agreement. This chronology does not purport to catalogue every conversation of or among members of the Board, the Company’s management, the Company’s advisors, MIRA, the MIRA Funds, MIP Ares Management or any other person.

The Board, together with the Company’s management and with the assistance of the Company’s advisors, regularly evaluates the Company’s historical performance, future growth prospects and long-term strategic plan and considers various strategic opportunities available to the Company as well as ways to enhance shareholder value and the Company’s performance and prospects, including in light of the business, competitive, regulatory, financing and economic environment and developments in the Company’s industry. These reviews have included discussions as to whether the Company should continue to execute on its strategy as a stand-alone company, pursue various acquisitions, seek to improve its capital structure or pursue a sale of the entire Company or one or more of its business units. As part of these reviews, the Board, together with the Company’s management and with the assistance of the Company’s advisors, has considered from time to time what would offer the best avenue to enhance shareholder value along with the potential benefits and risks of any potential alternative.

From time to time, representatives of the Company and its financial advisors have had various conversations with representatives of other companies in, or interested in, the telecommunications industry, and infrastructure funds and other financial sponsors, including Brookfield Infrastructure and MIRA acting on behalf of its managed vehicles (the “MIRA Funds”). The topics of these conversations have included, among other things, developments in the industry generally, potential opportunities in the industry and the potential for the Company to engage in business combinations, strategic transactions or financing transactions with third parties.

In late August 2018, Phillip R. Cox, then Chairman of the Board, met with representatives of Brookfield Infrastructure, at its request, during which meeting Brookfield Infrastructure expressed its interest in potentially pursuing an acquisition of the Company. Also in late August 2018, Mr. Cox met with representatives of Party A, an infrastructure fund, at its request, during which meeting Party A expressed its interest in potentially pursuing an acquisition of the Company. Neither Brookfield Infrastructure nor Party A made any proposal during these meetings. Mr. Cox indicated to each of Brookfield Infrastructure and Party A that the Board would consider any transaction proposal it might make.

 

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On August 31, 2018, Brookfield Infrastructure submitted a preliminary, non-binding expression of interest proposing to acquire the Company.

On September 1, 2018, the Company formally engaged Morgan Stanley to act as its financial advisor in connection with the review of the Company’s strategic alternatives and the potential execution of one or more transactions in connection with such strategic review. The Company also subsequently formally engaged Moelis to act as its financial advisor in the same role.

On September 19, 2018, Party A submitted a preliminary, non-binding expression of interest to acquire the Company.

On October 10, 2018, the Board, after receiving advice from each of Morgan Stanley and Moelis and conscious of the risks of leaks to the Company’s business and its relationships with its regulators, determined to commence an exploratory process involving a maximum of five potential counterparties, including Brookfield Infrastructure and Party A, for a potential transaction (the “2018 Process”). During the 2018 Process, the Board reviewed disclosure statements provided by each of Morgan Stanley and Moelis, which identified prior or current engagements or relationships between Morgan Stanley or Moelis, as applicable, and the potential counterparties to a transaction.

During the remainder of October 2018, representatives of Morgan Stanley and Moelis initiated contact with five potential counterparties to a strategic transaction and the Company entered into confidentiality agreements, which contained customary standstill provisions that would automatically terminate upon the entry by the Company into a definitive acquisition agreement with a third party, with each of Brookfield Infrastructure, Party A and Party B, another infrastructure fund. Following the execution of confidentiality agreements, members of the Company’s management and representatives of Morgan Stanley, Moelis and Cravath, Swaine & Moore LLP, outside legal counsel to the Company (“Cravath”), facilitated due diligence and engaged in discussions with each of Brookfield Infrastructure, Party A and Party B, and the Board regularly held meetings to discuss the status of the 2018 Process and any feedback received from the potentially interested parties. The Company also exchanged various drafts of a merger agreement with each of Brookfield Infrastructure and Party A. Other than Brookfield Infrastructure and Party A, no other party, including Party B, submitted a preliminary expression of interest to acquire the Company.

Concurrently with the 2018 Process, the Board also reviewed and assessed other potential strategic alternatives, including, among others, a potential sale of Cincinnati Bell Technology Solutions LLC (“CBTS”) and potential financing alternatives, such as incurring additional debt, engaging in sale leaseback transactions, issuing common equity and issuing preferred equity. The Board determined that none of these were a viable option at that time given, among other things, covenant constraints in the Company’s existing indebtedness, the limited size of any potential equity issuance and the high cost of capital for any preferred equity issuance.

On October 25, 2018, Lynn A. Wentworth was elected to succeed Mr. Cox as Chairman of the Board, effective May 2, 2019.

In November and December 2018, the equity and debt markets applicable to the Company experienced downturns, resulting in widened credit spreads in the telecommunications industry and a sharp decline in the stock prices of the Company and its industry peers. Representatives of each of Brookfield Infrastructure and Party A informed representatives of Morgan Stanley and Moelis that the recent downturns in such equity and debt markets would negatively impact the valuation levels at which they would potentially be willing to acquire the Company.

Also in December 2018, Party C, a financial sponsor, informed representatives of Moelis that it was interested in exploring a potential transaction with the Company but did not submit a proposal. Representatives of Moelis, at the direction of the Company, informed Party C that the Company would only entertain exploring a

 

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potential transaction with Party C if it were willing to make an offer materially higher than the Company’s current trading price. Party C declined to pursue a transaction at those levels.

In mid-December 2018, the Board engaged another global investment bank to act as its financial advisor in connection with a potential sale of the Company or other similar transaction and met with such investment bank to discuss the Company’s current situation. The Company did not consult with such investment bank after December 2018.

On January 4, 2019, the Board met telephonically with members of the Company’s management and representatives of each of Morgan Stanley, Moelis and Cravath in attendance, to discuss, among other things, the status of the 2018 Process. During the meeting, Leigh R. Fox, President and Chief Executive Officer of the Company, explained to the Board that based on recent downturns in the equity and debt markets and conversations with each of Brookfield Infrastructure and Party A, members of the Company’s management and representatives of Morgan Stanley and Moelis discussed that any final bids would be significantly lower than the levels indicated in the non-binding proposals the Company had previously received and would be subject to material financing contingencies. Representatives of Morgan Stanley explained that recent downturns in the debt markets had resulted in an increase in the rates at which lenders were willing to lend and a sharp decline in the availability of high-yield financing, which would have material impacts on the model-driven valuations of the financial sponsors participating in the 2018 Process. The Board concluded that, in light of the changed circumstances, stopping the 2018 Process would be in the best interests of the Company and its shareholders and directed Morgan Stanley and Moelis to communicate the Board’s decision to Brookfield Infrastructure and Party A.

During the spring and summer of 2019, representatives of the Company and its advisors continued to meet from time to time with representatives of each of Brookfield Infrastructure and Party A as well as with representatives of other companies in, or interested in, the telecommunications industry, and infrastructure funds and other financial sponsors to generally discuss the Company and its business and the telecommunications industry. During this time, none of Brookfield Infrastructure, Party A or Party B nor any other party made any proposals for an acquisition of the Company.

In June 2019, Party D, a financial sponsor, contacted members of the Company’s management, during which time it expressed its interest in potentially acquiring certain assets of the Company but did not submit a proposal. On June 20, 2019, the Company and Party D entered into a confidentiality agreement, which contained customary standstill provisions that would automatically terminate upon the entry by the Company into a definitive acquisition agreement with a third party. Thereafter, Party D conducted preliminary due diligence and discussed certain due diligence matters with members of the Company’s management. During the course of discussions between the Company and Party D, Party D indicated that it was not interested in pursuing an acquisition of the entire Company. Party D never submitted a proposal for acquiring any assets or businesses of the Company or the entire Company.

Also in June 2019, Ares Management, a financial sponsor, submitted to the Company a non-binding proposal in respect of a joint venture involving CBTS. The Board reviewed the terms of the proposal and concluded that it was not compelling enough to pursue further discussions. During the course of discussions between the Company and Ares Management, Ares Management indicated that it was not interested in pursuing an acquisition of the entire Company.

On July 17, 2019, members of the Company’s management and representatives of Moelis held an update call with representatives of Brookfield Infrastructure, during which call the participants discussed the state of the telecommunications industry and the Company’s recent performance.

Also on July 17, 2019, representatives of Moelis, at the direction of the Company, contacted Party A to discuss whether it would be interested in having an update call with members of the Company’s management to

 

34

discuss the state of the telecommunications industry and the Company’s recent performance. Party A indicated that it was interested in having such a call.

On July 29, 2019, representatives of Party F, a financial sponsor, met, at Party F’s request, with members of the Company’s management in Cincinnati, Ohio, at which meeting the representatives of Party F expressed preliminary interest in exploring a potential transaction with the Company and conducting preliminary due diligence in connection therewith. Members of the Company’s management directed Party F to contact Moelis to engage in further discussions, and representatives of Party F contacted representatives of Moelis on August 1, 2019.

On July 31 and August 1, 2019, the Board met for its regularly scheduled quarterly meetings, with members of the Company’s management and representatives of Moelis present for portions of the meetings. The discussions covered a wide range of topics and addressed, among other things, the Company’s second quarter results, operations and strategy. The Board analyzed with members of the Company’s management and representatives of Moelis the state of and trends in the telecommunications industry. Among other things, they discussed how recent events in the local exchange carrier (“LEC”) sector such as bankruptcies, dividend cuts, dividend eliminations and liquidity concerns among the Company’s industry peers had resulted in an intense focus on debt levels and significant increases in the cost of borrowing, making it difficult for the Company to make new fiber investments in accordance with its strategic plan. They also discussed how the market had re-rated the LEC sector resulting in the Company and its industry peers trading at or near all-time lows.

The Board also analyzed with members of the Company’s management and representatives of Moelis a full range of the Company’s strategic alternatives, including, among others, potentially accelerating the Company’s investment in fiber assets, potential equity and debt repurchases, potential divestitures, including potential divestitures of CBTS and the Hawaiian Telcom business, a potential merger with another company in the telecommunications industry, potential joint ventures, potential partnerships and potential alternative investments and other transactions involving financial sponsors. With respect to a potential divestiture of CBTS, the Board concluded that the Company would be unlikely to receive a premium valuation in a sale of CBTS in the short term but should preserve the option to sell CBTS in the future. With respect to a potential sale of the Hawaiian Telcom business, after preliminary dialogue with a potential strategic buyer, the Board concluded that there was limited interest and qualified buyers due to current LEC sector issues and that a sale of the Hawaiian Telcom business would have a limited impact on the Company’s debt levels, resulting in a smaller company with high leverage and less short-term growth potential. Following the review of strategic alternatives, the Board concluded that the Company should continue to execute its current strategic plan while preserving its rights to sell CBTS and that the Company’s management should continue to have dialogue with third parties potentially interested in a transaction with the Company and advise the Board of any meaningful discussions.

On August 5, 2019, members of the Company’s management and representatives of Moelis met with representatives of Party G, a private equity firm, at Party G’s request, to discuss potential partnership opportunities between the Company and certain portfolio companies of Party G. Party G never submitted a proposal for acquiring any assets or businesses of the Company or the entire Company.

Also on August 5, 2019, following discussions with representatives of Moelis, members of the Company’s management determined to provide Party F with preliminary due diligence information regarding the Company’s business and operations so that Party F could evaluate a potential transaction with the Company, subject to Party F entering into a suitable confidentiality agreement.

On August 8, 2019, the Company and Party F entered into a confidentiality agreement, which contained customary standstill provisions that would automatically terminate upon the entry by the Company into a definitive acquisition agreement with a third party. Following the execution of the confidentiality agreement, Party F was provided access to the electronic data room containing information regarding the Company’s business and operations. Following discussions with representatives of Moelis, members of the Company’s

 

35

management determined to provide Brookfield Infrastructure and Party A with access to the electronic data room given the fact that each such party had indicated a potential interest in evaluating a transaction with the Company.

On August 9, 2019, each of Brookfield Infrastructure and Party A was provided access to the electronic data room. Throughout the remainder of August 2019 and September 2019, members of the Company’s management responded to due diligence requests from and engaged in discussions and meetings with each of Brookfield Infrastructure, Party A and Party F. During this time, members of the Company’s management and representatives of Morgan Stanley and Moelis regularly updated the Board regarding interactions with each of Brookfield Infrastructure, Party A and Party F.

On September 16, 2019, representatives of Party F sent the Company a non-binding indication of interest proposing to acquire the Company at a price of $7.50 per Company common share in cash, subject to completion of due diligence and other conditions. Party F also requested that the Company enter into exclusive negotiations with Party F. Party F did not have committed debt financing at the time but indicated that it was confident in its ability to secure debt financing. The closing price per Company common share as of the close of trading on September 16, 2019 was $6.22.

Following the receipt of Party F’s proposal, on September 16, 2019, the Board met telephonically with members of the Company’s management and representatives of each of Morgan Stanley, Moelis and Cravath in attendance to review, among other things, Party F’s proposal and discuss potential next steps. Representatives of Cravath reviewed with the Board its fiduciary duties and other legal matters in the context of a review of a potential sale transaction. The Board discussed the status of the updated financial forecasts the Company’s management was preparing and agreed that reviewing such forecasts and the financial analyses of Morgan Stanley and Moelis would be important for making an informed decision regarding whether to proceed further with any offer or to commence a sale process. The Board also concluded that Party F’s proposal was not compelling enough to move forward with Party F on an exclusive basis but decided to encourage Party F to continue to work to improve the value of its offer. At the conclusion of the meeting, the Board authorized the Company’s management and its financial advisors to inform Party F of the Board’s conclusion and to continue engaging with each Brookfield Infrastructure and Party A. The Board also decided that it would consider which other potential counterparties to reach out to following preparation and review of the financial forecasts being prepared by the Company’s management.

On September 19, 2019, Party A informed representatives of Morgan Stanley and Moelis that it was not interested in pursuing an acquisition of the Company due to heightened concentration of fiber assets in its current fund as a result of recent acquisitions.

On September 20, 2019, representatives of Ares Management submitted to the Company a non-binding proposal contemplating the issuance of unsecured debt to Ares Management as part of a refinancing of the Company’s capital structure. The Company’s management reviewed the terms of the proposal and concluded that it was not compelling enough to pursue further discussions. During the course of discussions between the Company and Ares Management, Ares Management reiterated that it was not interested in pursuing an acquisition of the Company.

On September 25, 2019, Brookfield Infrastructure informed representatives of Morgan Stanley that members of its investment committee were supportive of its decision to submit an updated proposal to acquire the Company, but that its ability to submit an updated proposal was subject to ongoing work with potential debt financing sources.

On October 3, 2019, the Board reviewed updated disclosure statements provided by Morgan Stanley, which identified prior or current engagements or relationships between Morgan Stanley and the potential counterparties to a transaction. Morgan Stanley provided the Board with updated disclosure statements throughout the process.

 

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The Board concluded that, based upon the information provided by Morgan Stanley in such disclosure statements, Morgan Stanley did not have any relationships that would be likely to impair its ability to provide independent advice to the Board.

Also on October 3, 2019, the Board met telephonically with members of the Company’s management and representatives of each of Morgan Stanley, Moelis and Cravath in attendance. At the meeting, representatives of Moelis reviewed the interactions the Company had with potential counterparties to a transaction during the 2018 Process and recent interactions with each of Brookfield Infrastructure, Party A and Party F. Members of the Company’s management and representatives of Morgan Stanley and Moelis reviewed with the Board the state of the telecommunications industry generally, the impact that financial distress among the Company’s industry peers and macroeconomic uncertainty might have on the industry and the performance and outlook of the Company and its industry peers. The Board reviewed the financial forecasts that had been prepared by the Company’s management (the September Forecasts, as described further in the section entitled “—Financial Forecasts ” beginning on page 57) and representatives of each of Morgan Stanley and Moelis presented their respective preliminary financial analyses based on the September Forecasts.

The Board discussed whether to engage in further discussions with Brookfield Infrastructure and Party F and whether to have its financial advisors contact other parties to determine whether they would be interested in exploring a potential transaction with the Company. As part of this discussion, Morgan Stanley and Moelis provided the Board with their respective views as to the potential counterparties that would likely have both the interest and financial capability to acquire the Company. They noted that infrastructure funds, which had lower return thresholds and longer investment horizons than traditional private equity firms, were the most likely counterparties to a potential transaction. They also noted that the universe of strategic buyers lacked the financial capability to complete an all cash transaction, were focused on managing other balance sheet goals (such as reducing leverage), had limited overlap with the strategic focus and priorities of the Company, were focused on integrating recent acquisitions or already competed in the geographies in which the Company conducted business. Morgan Stanley and Moelis identified four infrastructure funds, including the MIRA Funds and Party B, that they believed to be the parties most able and willing to pay the highest price for the Company. For reference, other than the MIRA Funds and Party B, the infrastructure funds identified by Morgan Stanley and Moelis are hereinafter referred to as “Party I” and “Party J”.

At the conclusion of the meeting, the Board authorized the Company’s management, Morgan Stanley and Moelis to continue discussions with Brookfield Infrastructure and Party F and initiate contact with the MIRA Funds, Party B, Party I and Party J.

Following the October 3, 2019 meeting, Morgan Stanley and Moelis, at the direction of the Company, informed Party F that its offer to acquire the Company at a price of $7.50 per Company common share did not represent a value at which the Company would be willing to transact, but that the Company would allow Party F to perform additional due diligence to support a higher offer. Representatives of Morgan Stanley and Moelis proceeded to contact each of the MIRA Funds, Party B, Party I and Party J, and each expressed interest in exploring a potential transaction. Over the course of October 2019, Party B entered into an amendment to the confidentiality agreement it had entered into in connection with the 2018 Process, which extended the term of the confidentiality agreement and the standstill provisions by one year, and each of the MIRA Funds, Party I and Party J entered into confidentiality agreements, which contained customary standstill provisions that would automatically terminate upon the entry by the Company into a definitive acquisition agreement with a third party. Following the extension of existing confidentiality agreements or execution of new confidentiality agreements, the MIRA Funds, Party B, Party I and Party J were provided access to the electronic data room.

Until the execution of the original Brookfield merger agreement (or, if earlier, the date on which a potential counterparty ceased to pursue a potential transaction with the Company), each of the MIRA Funds, Party B, Party F, Party I and Party J conducted due diligence, and members of the Company’s management, with the assistance of the Company’s advisors, engaged in diligence calls and in-person meetings with, and responded to written due diligence requests from, such parties.

 

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On October 14, 2019, the Board met telephonically with members of the Company’s management and representatives of each of Morgan Stanley, Moelis and Cravath in attendance. Mr. Fox provided the Board with an overview of interactions with each of the potential acquirors and explained that members of the Company’s management had held due diligence sessions with each of the MIRA Funds, Party B and Party F. Representatives of Morgan Stanley and Moelis noted that Brookfield Infrastructure continued to evaluate the Company and have discussions with potential debt financing sources. Mr. Fox and representatives of Morgan Stanley and Moelis also discussed with the Board the state of the debt markets and potential near-term catalysts for revaluation of companies in the telecommunications industry.

On October 18, 2019, representatives of Morgan Stanley and Moelis, at the direction of the Company, communicated to each of the potentially interested parties the procedures for the potential sale process and requesting each such party submit preliminary indications of interest, draft financing commitments and details of such party’s financing structure by Friday, November 15, 2019.

On October 23 and 24, 2019, the Board met for its regularly scheduled quarterly Board meetings, with members of the Company’s management present for portions of the meetings. The discussions covered a wide range of topics and addressed, among other things, the Company’s third quarter results, preliminary updates to the September Forecasts and strategic alternatives, including potential acquisitions and a potential sale of CBTS. During the meetings, the Board met in executive session with representatives of Moelis and Cravath participating to discuss the status of the ongoing sale process. Among other things, the Board discussed with representatives of Moelis potential near-term catalysts for revaluation of companies in the telecommunications industry, and the implication any such catalysts might have on the Company’s strategic outlook, including in the context of the current process. Representatives of Moelis discussed with the Board near-term events that could positively impact equity valuations and events that could negatively impact equity valuations in the sector, including financial distress among the Company’s industry peers. The Board discussed the strategic approach of other telecommunications companies in light of the sector-wide challenges. The Board also discussed a potential sale of CBTS and the implications such a sale would have on the Company’s overall debt capacity and markets’ perceptions of the Company’s ability to grow year to year.

On October 25, 2019, Party I informed representatives of Morgan Stanley and Moelis that it would not submit a proposal to acquire the Company because it lacked the resources to conduct due diligence and consider an acquisition of the Company at the time.

On October 28, 2019, the Board met telephonically with members of the Company’s management and representatives of each of Morgan Stanley, Moelis and Cravath in attendance. During the meeting, representatives of Morgan Stanley and Moelis provided an overview of recent interactions with the potential counterparties to a transaction and explained that members of the Company’s management and the Company’s advisors were in the midst of holding due diligence sessions with each of the potential counterparties.

On October 31, 2019, representatives of Morgan Stanley received a call from Party K, a private equity firm, which expressed a potential interest in acquiring the Company. Party K did not make a proposal at this time.

Later on October 31, 2019, representatives of Morgan Stanley, at the direction of, and after discussion with, the Company, explained to Party K that if it was interested in evaluating an acquisition of the Company, it would need to submit a proposal by the Friday, November 15, 2019 bid deadline.

At various times in October 2019, representatives of Brookfield Infrastructure informed representatives of Morgan Stanley that Brookfield Infrastructure continued to work with potential debt financing sources regarding a financing package.

On November 4, 2019, the Board met telephonically with members of the Company’s management and representatives of each of Morgan Stanley, Moelis and Cravath in attendance. Representatives of Morgan Stanley

 

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and Moelis provided an overview of recent interactions with potential counterparties to a transaction, including recently held due diligence sessions with each of the MIRA Funds, Party B and Party F. The Board also discussed the status of each of the potential counterparties and the overall timing of the process.

On November 5, 2019, the Company entered into a confidentiality agreement with Party K, which contained customary standstill provisions that would automatically terminate upon the entry by the Company into a definitive acquisition agreement with a third party. Following the execution of the confidentiality agreement, Party K was provided with access to the electronic data room and provided the opportunity to submit diligence requests and conduct diligence sessions.

On November 7, 2019, representatives of Party B informed representatives of Morgan Stanley that it had received preliminary debt financing terms from potential debt financing sources but that it may not be able to meet the Friday, November 15, 2019 bid deadline due to internal logistical issues.

On November 11, 2019, the Board met telephonically with members of the Company’s management and representatives of each of Morgan Stanley, Moelis and Cravath in attendance. Representatives of Morgan Stanley and Moelis provided an overview of recent interactions with the potential counterparties to a transaction. Representatives of Morgan Stanley and Moelis also provided an overview of recent trends in the telecommunications industry and the market’s reaction to the recent earnings releases of the Company and certain of its industry peers.

On November 12, 2019, representatives of Party J informed representatives of Morgan Stanley and Moelis that it would not submit a proposal to acquire the Company because, among other reasons, the cost of debt financing was too high, making it difficult for Party J to achieve its target internal rate of return, the amount of equity Party J would need to contribute was too large for its fund in light of the amount of debt financing potential debt financing sources were willing to provide and the execution of Party J’s strategic plan following the consummation of a potential transaction was too complex to bring in additional limited partners.

On November 15, 2019, the MIRA Funds submitted a non-binding preliminary proposal to acquire the Company at a range of $9.00 to $11.00 per Company common share along with draft financing commitment letters from two banks and a highly confident letter from another. The MIRA Funds had indicated in their initial proposal that the submission of a final, binding offer would be subject to the completion of due diligence, the negotiation of definitive transaction agreements and an approval process which would include approvals from the relevant fund and investor investment committees. The MIRA Funds had indicated in their initial proposal that it expected to be able to complete its due diligence investigation of the Company within eight weeks of selection to participate in the next round of the process. The closing price per Company common share as of the close of trading on November 15, 2019 was $5.47.

On November 18, 2019, the Board reviewed updated disclosure statements provided by Moelis, which identified prior or current engagements or relationships between Moelis and the potential counterparties. Moelis provided the Board with updated disclosure statements throughout the process. The Board concluded that, based upon the information provided by Moelis in such disclosure statements, Moelis did not have any relationships that would be likely to impair its ability to provide independent advice to the Board.

On November 20, 2019, representatives of Party K informed representatives of Morgan Stanley and Moelis that it would not submit a proposal to acquire the Company, noting that it felt that it did not have the resources to devote to submit a proposal on the Company’s expected timeframe.

On November 22, 2019, representatives of Morgan Stanley and Moelis held a call with Party F, during which call Party F reiterated their initial proposal of $7.50 per share of Company common stock and explained that they anticipated being able to send a revised proposal by the week of December 16, 2019.

 

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Also on November 22, 2019, representatives of Morgan Stanley and Moelis held a call with Party B, during which call Party B communicated that they remained interested in evaluating an acquisition of the Company and that they expected to be in a position to consider a potential proposal during the week of November 25, 2019.

On November 25, 2019, the Board met telephonically with members of the Company’s management and representatives of each of Morgan Stanley, Moelis and Cravath in attendance. Representatives of Morgan Stanley and Moelis reviewed the non-binding proposals from the MIRA Funds and Party F and presented the updated financial analyses of the Company that their respective organizations had prepared. Representatives of Morgan Stanley and Moelis also explained that Cravath had updated the auction draft merger agreement and disclosure letter that the Board had approved during the 2018 Process and that the updated auction drafts could be shared with potential counterparties following the Board’s approval. The Board discussed with members of the Company’s management and representatives of Morgan Stanley, Moelis and Cravath whether to continue the sale process and the Board determined to continue engaging with each of Brookfield Infrastructure, the MIRA Funds, Party B and Party F.

Later on November 25, 2019, the Company’s advisors, at the direction of the Board, shared the auction draft of the merger agreement and the related disclosure letter with each of Brookfield Infrastructure, the MIRA Funds and Party B. The Board determined not to share the auction draft with Party F at this time given the relatively low level of its initial expression of interest, the lack of financing support for its proposal and the fact that it had indicated it anticipated providing an updated proposal by mid-December 2019.

On November 27, 2019, representatives of Party B informed representatives of Morgan Stanley and Moelis that it would not submit a proposal to acquire the Company. Party B expressed that it had other opportunities it was working on that it believed had a better return potential.

On November 29, 2019, representatives of Moelis received an inquiry from Ares Management, requesting to participate in the potential sale process. Ares Management indicated that while an acquisition of the Company was not Ares Management’s preferred transaction, if the Company was exploring a potential sale and it was not interested in other alternatives, then Ares Management would be potentially interested in exploring a potential acquisition of the Company.

At various times in November 2019, representatives of Brookfield Infrastructure informed representatives of Morgan Stanley that Brookfield Infrastructure continued to work with potential debt financing sources regarding a financing package.

On December 2, 2019, the Board met telephonically with members of the Company’s management and representatives of each of Morgan Stanley, Moelis and Cravath in attendance. During the meeting, representatives of Morgan Stanley and Moelis provided an overview of recent interactions with potentially interested parties, including Ares Management’s inquiry. Following discussion with members of the Company’s management and the Company’s advisors, the Board authorized the Company’s advisors to engage in further discussions with Ares Management.

On December 4, 2019, Moelis, at the direction of the Company, sent the MIRA Funds the Company’s mark-up of the draft financing commitment papers included in the MIRA Funds’ November 15, 2019 indication of interest.

On December 9, 2019, representatives of Morgan Stanley spoke to representatives of Brookfield Infrastructure, during which time the representatives of Brookfield Infrastructure indicated that they continued to work with potential debt financing sources regarding a financing package.

Also on December 9, 2019, the Board met telephonically with members of the Company’s management and representatives of each of Morgan Stanley, Moelis and Cravath in attendance. During the meeting,

 

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representatives of Morgan Stanley and Moelis provided an overview of recent interactions with potential counterparties to a transaction. Representatives of Morgan Stanley and Moelis then presented to the Board an illustrative timeline for the final round of the sale process. Following discussion with members of the Company’s management and representatives from Morgan Stanley, Moelis and Cravath, the Board approved the timeline and directed the Company’s advisors to send a process letter to each of Brookfield Infrastructure and the MIRA Funds setting forth the procedures for the final round of the process and the submission of final binding offers, which contemplated a deadline for final bids (with committed financing) of January 16, 2020. The Board determined not to send Party F a process letter at this time, given the relatively low level of their initial expression of interest and the fact that it had indicated it anticipated providing an updated proposal in the near future.

Later on December 9, 2019, representatives of Morgan Stanley and Moelis held a call with representatives of the MIRA Funds, during which call the MIRA Funds requested the Company’s consent to partner with Ares Management. Representatives of Morgan Stanley and Moelis informed Mr. Fox and Ms. Wentworth of the MIRA Funds’ request.

On December 10, 2019, Mr. Fox and Ms. Wentworth discussed with members of the Company’s management and representatives of Morgan Stanley, Moelis and Cravath the MIRA Funds’ request to partner with Ares Management, including the benefits of keeping Ares Management as an independent bidder or allowing Ares Management to partner with the MIRA Funds. Morgan Stanley, Moelis and Mr. Fox expressed their view that, based on prior discussions with Ares Management, during which Ares Management expressed little to no interest in acquiring the Company, it was unlikely that Ares Management would submit a proposal to acquire the Company on its own, if at all, and that allowing Ares Management to partner with the MIRA Funds had the potential to provide the most value to the process. Ms. Wentworth directed the representatives of Morgan Stanley and Moelis to indicate a willingness to allow the MIRA Funds and Ares Management to partner, subject to Ares Management’s entry into a suitable confidentiality agreement.

On December 12, 2019, Brookfield Infrastructure submitted an updated proposal to acquire the Company at a price of $8.40 per Company common share in cash, which was scheduled to expire at 12:00 noon Eastern Time on December 16, 2019, a draft equity funding letter which would provide equity financing for the full amount in cash necessary to fund the aggregate merger consideration from certain controlled investment vehicles through which Brookfield Infrastructure carries out its investment activities.(the “Brookfield Funds”) and a mark-up of the last draft of the merger agreement the Company had sent to Brookfield Infrastructure during the 2018 Process, which was substantially similar to the auction draft previously circulated. The closing price per Company common share as of the close of trading on December 12, 2019 was $7.48.

Shortly after the receipt of the December 12 proposal, Mr. Fox and Ms. Wentworth discussed with members of the Company’s management and representatives of Morgan Stanley, Moelis and Cravath the terms of the proposal and how to respond to Brookfield Infrastructure. Following discussions, representatives of Morgan Stanley, at the direction of the Company, informed Brookfield Infrastructure that the December 12 proposal did not represent a basis for the Company to consider shortening its existing sale process.

Also on December 12, 2019, Morgan Stanley and Moelis informed the MIRA Funds that the Company approved their request to partner with Ares Management, subject to Ares Management entering into a confidentiality agreement.

Also on December 12, 2019, representatives of Morgan Stanley and Moelis sent to each of Brookfield Infrastructure and the MIRA Funds a process letter setting forth the procedures for the final round of the process and the submission of final binding offers with committed financing by mid January 2020.

On December 13, 2019, representatives of Morgan Stanley received a call from representatives of Brookfield Infrastructure, during which call Brookfield Infrastructure communicated an updated proposal to

 

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acquire the Company for $9.50 per Company common share and requested that the Company enter into an exclusivity agreement through a targeted signing date of December 19, 2019. Representatives of Brookfield Infrastructure noted that Brookfield Infrastructure’s debt financing commitments were scheduled to expire prior to Christmas and that Brookfield Infrastructure would not be interested in pursuing further discussions if a definitive agreement in respect of a transaction was not executed prior to the expiration of its debt financing commitments. The closing price per Company common share as of the close of trading on December 13, 2019 was $7.52.

Also on December 13, 2019, representatives of Morgan Stanley and Moelis called representatives of the MIRA Funds to discuss their ability to accelerate their due diligence timeline and to narrow their November 15 preliminary valuation range of $9.00 to $11.00 per Company common share included in the MIRA Funds’ initial proposal. Representatives of the MIRA Funds informed representatives of Morgan Stanley and Moelis that they would provide a valuation update following due diligence sessions scheduled for December 17, 2019 and December 18, 2019. They indicated, however, that they would not be able to accelerate finalizing an offer earlier than mid January 2020, and indicated it could slip by a week or so. They also indicated that they still needed to have conversations with their various limited partners in order to finalize a bid.

Also on December 13, 2019, representatives of Morgan Stanley and Moelis called Party F during which call representatives of Party F noted they anticipated being able to provide an update on valuation by Friday, December 20, 2019.

On December 14, 2019, Brookfield Infrastructure submitted a proposal to acquire the Company at a price of $9.50 per Company common share in cash, which was conditioned on the Company agreeing to exclusivity with Brookfield Infrastructure and which was scheduled to expire at 12:00 noon, Eastern Time, on December 16, 2019. The closing price per Company common share as of the close of trading on December 13, 2019, the last full trading day prior to the December 14 proposal, was $7.52.

Shortly after the receipt of the December 14 proposal, Ms. Wentworth, members of the Company’s management and representatives of Morgan Stanley, Moelis and Cravath discussed the terms of the proposal and Brookfield Infrastructure’s request for exclusivity. Following discussions, representatives of Morgan Stanley, at the direction of the Company, informed Brookfield Infrastructure that the Board would review Brookfield Infrastructure’s revised proposal but would be unable to respond prior to the expiration of the offer at 12:00 noon, Eastern Time, on December 16, 2019.

Also on December 14, 2019, representatives of Morgan Stanley and Moelis received a call from the MIRA Funds, during which call the MIRA Funds requested that the Company enter into an agreement pursuant to which the Company would reimburse expenses incurred by the MIRA Funds in connection with their due diligence review of the Company.

On December 15, 2019, the Company entered into a confidentiality agreement with Ares Management and the Company subsequently officially approved the MIRA Funds’ request to partner with Ares Management.

On December 16, 2019, the Board met telephonically with members of the Company’s management and representatives of each of Morgan Stanley, Moelis and Cravath in attendance. Representatives of Morgan Stanley and Moelis reviewed the proposals received from each of Brookfield Infrastructure, the MIRA Funds and Party F and each presented to the Board their respective updated preliminary financial analyses.

The Board then met in executive session, with representatives of Morgan Stanley, Moelis and Cravath participating. The Board evaluated the proposals from each of Brookfield Infrastructure, the MIRA Funds, and Party F and discussed considerations in determining how to engage with Brookfield Infrastructure and the MIRA Funds moving forward in light of the deal certainty Brookfield Infrastructure offered due to its proposed backstop of the full amount in cash necessary to fund the aggregate merger consideration with equity

 

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commitments from the Brookfield Funds and the fact that the Company’s management and Cravath believed that the draft definitive agreements proposed by Brookfield Infrastructure could be finalized in short order (and that no contract markup or any of the feedback on the draft merger agreement had been received from the MIRA Funds), that the MIRA Funds continued to require due diligence and did not have committed financing (which would expose the Company to market uncertainties as were experienced by the Company in the 2018 Process) and the incremental value a transaction with the MIRA Funds could provide if it were to submit a proposal at the top end of its valuation range. The Board also considered the circumstances under which the Board would be comfortable accelerating the process with Brookfield Infrastructure. The Board discussed taking steps to seek increased value indications from each party, and further evaluating next steps. The Board agreed that if Brookfield Infrastructure were to submit a proposal to acquire the Company at a price of $10.50 per Company common share, it would consider accelerating the process, but that any decision to accelerate the process would be impacted by any revised proposals received from the MIRA Funds and Party F. The Board also considered the MIRA Funds’ request for expense reimbursement and determined to delay consideration of the MIRA Funds’ request until the MIRA Funds had provided a clearer sense of what price it would be willing to offer to acquire the Company.

On December 17 and 18, 2019, members of the Company’s management and representatives of Morgan Stanley and Moelis held in-person due diligence sessions with representatives of the MIRA Funds and Ares Management. Representatives of Morgan Stanley and Moelis reminded the MIRA Funds of the need to receive an updated valuation indication.

On December 17, 2019, representatives of Morgan Stanley, at the direction of the Company, provided feedback on the December 14 proposal to representatives of Brookfield Infrastructure, noting that the Board was interested in evaluating a potential transaction with Brookfield Infrastructure given the deal certainty they offered but that the December 14 proposal was inadequate relative to the other bids the Company had received and did not form the basis to shorten the Company’s existing sale process.

Later on December 17, 2019, a representative of Brookfield Infrastructure contacted a representative of Morgan Stanley to indicate that it was not prepared to participate in a process that extended beyond its expiring debt commitments. Furthermore, the representatives of Brookfield Infrastructure informed Morgan Stanley that Brookfield Infrastructure was not prepared to continue to bid against itself without some guidance as to a price level at which the Board would be willing to accelerate the sale process. Following the call, Ms. Wentworth and Mr. Fox met telephonically with representatives of Morgan Stanley, Moelis and Cravath to discuss Brookfield Infrastructure’s inquiry.

Early on December 18, 2019, representatives of Morgan Stanley, at the direction of the Company and consistent with the direction of the Board, informed Brookfield Infrastructure that the Company would only be willing to consider accelerating the process at a proposed price of at least $10.50 per Company common share. Shortly thereafter, representatives of Brookfield Infrastructure informed representatives of Morgan Stanley that it would need to review certain documentation, including the revised drafts of the original Brookfield merger agreement and equity funding letter contemplated thereby, and certain confirmatory due diligence items before proceeding at the valuation guidance Morgan Stanley provided at the direction of the Company. Shortly thereafter, Mr. Fox and Ms. Wentworth discussed with representatives of Morgan Stanley, Moelis and Cravath Brookfield Infrastructure’s feedback and Ms. Wentworth directed Morgan Stanley, Moelis and Cravath to provide Brookfield Infrastructure with the requested documentation and due diligence information.

Later on December 18, 2019, Cravath, at the direction of the Company, sent Brookfield Infrastructure revised drafts of the original Brookfield merger agreement and equity funding letter contemplated thereby. From this time until the execution of the original Brookfield merger agreement, the Company and Brookfield Infrastructure held various discussions on, and exchanged multiple drafts of, the original Brookfield merger agreement and related documents.

 

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On December 19, 2019, representatives of Morgan Stanley and Moelis informed each of Brookfield Infrastructure, the MIRA Funds and Party F that a Board call was scheduled for the upcoming weekend to review where each potential counterparty to a transaction stood and that they should each submit updated valuations by the close of business on December 20, 2019.

Also on December 19, 2019, representatives of Brookfield Infrastructure informed representatives of Morgan Stanley that it was willing to proceed at $10.50 per Company common share, predicated on the execution of definitive documentation in respect of a transaction by December 23, 2019, and would submit a formal proposal, including a request for exclusivity, later that evening or the following morning.

Also on December 19, 2019, the Board met telephonically with members of the Company’s management and representatives of each of Morgan Stanley, Moelis and Cravath in attendance. Representatives of Moelis provided the Board with an overview of recent interactions with each of Brookfield Infrastructure, the MIRA Funds and Party F. The Board discussed considerations in respect of evaluating any updated value indications the Company received in light of the deal certainty that Brookfield Infrastructure offered. The Board also discussed how to respond to Brookfield Infrastructure’s request for exclusivity and the importance of receiving a revised valuation range from the MIRA Funds in order to better assess any Brookfield Infrastructure offer and agreed not to grant exclusivity prior to receiving the MIRA Funds’ revised proposal.

Later on December 19, 2019, representatives of the MIRA Funds sent representatives of Morgan Stanley and Moelis an updated non-binding preliminary value indication at a tightened range of $9.50 to $10.50 per Company common share. The MIRA Funds’ updated value indication indicated that in order for the MIRA Funds to submit a final, binding offer, it would need additional time to complete its due diligence and would be subject to the receipt of internal approvals. The updated value indication also noted that in order for the MIRA Funds to continue their due diligence review of the Company and negotiate definitive transaction documentation, it would require full cost reimbursement in the event that the Company and the MIRA Funds did not execute definitive transaction documentation.

Later on December 19, 2019, Brookfield Infrastructure submitted an updated proposal to acquire the Company at a price of $10.50 per Company common share in cash, which was described as Brookfield Infrastructure’s best and final offer (the “Final Offer”), a revised draft of the original Brookfield merger agreement, and a requirement to enter into exclusive negotiations. The Final Offer was scheduled to expire by 11:59 p.m., Eastern Time unless the Company agreed to enter into an exclusivity agreement with Brookfield Infrastructure. Brookfield Infrastructure also confirmed that it had financing commitments in hand from its debt financing sources. Brookfield Infrastructure reiterated to representatives of Morgan Stanley and Moelis that it would not participate in a process that continued into January. The closing price per Company common share as of the close of trading on December 19, 2019 was $7.49.

Later on December 19, 2019, Ms. Wentworth, members of the Company’s management and representatives of Morgan Stanley, Moelis and Cravath discussed the Final Offer, Brookfield Infrastructure’s request for exclusivity, the MIRA Funds’ updated value indication and the MIRA Funds’ request for expense reimbursement. They believed that the Final Offer was Brookfield Infrastructure’s best and final offer, that Brookfield Infrastructure would not increase the Final Offer price and that there was a material risk that Brookfield Infrastructure would drop out of the process if the Company did not proceed with their offer. Ms. Wentworth and members of the Company’s management also concluded that the Final Offer was more favorable to the Company’s shareholders than the MIRA Funds’ updated value indication both in terms of value and deal certainty given the fact that the MIRA Funds had indicated they would need additional time to conduct due diligence before submitting a final offer and that proceeding to engage in exclusive negotiations with Brookfield Infrastructure was in the best interests of the Company and its shareholders. After consultation with members of the Board, the Company agreed to grant Brookfield Infrastructure’s request for exclusivity until 11:59 p.m. Eastern time on December 22, 2019. Later on December 19, 2019, the Company and Brookfield Infrastructure entered into the exclusivity agreement. Party F did not submit a revised proposal prior to the execution of the original Brookfield merger agreement.

 

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On December 21, 2019, the Board met telephonically with members of the Company’s management and representatives of each of Morgan Stanley, Moelis and Cravath in attendance. Representatives of Cravath reviewed with the Board its fiduciary duties in the context of a review of a potential sale transaction. Representatives of Morgan Stanley and Moelis reviewed for the Board the terms of the Final Offer and compared the Final Offer with the non-binding proposals from each of the MIRA Funds and Party F. Members of the Company’s management presented to the Board updates to the September Forecasts in line with the preliminary updates presented to the Board in October 2019 reflecting changes and developments since the preparation of the September Forecasts (the December Forecasts, as described further in the section entitled “—Financial Forecasts” beginning on page 57). The Board reviewed and approved the December Forecasts.

Following the Board’s approval of the December Forecasts, representatives of Morgan Stanley reviewed with the Board its financial analyses of the merger consideration contemplated by the original Brookfield merger agreement and rendered the oral opinion of Morgan Stanley, which was subsequently confirmed by delivery of a written opinion, dated December 21, 2019, to the Board that, based on and subject to the factors and assumptions outlined therein, it was their opinion that, on December 21, 2019, the consideration to be received by the holders of Company common shares pursuant to the original Brookfield merger agreement is fair from a financial point of view to the holders of Company common shares (other than Brookfield Infrastructure and its affiliates). Next, representatives of Moelis reviewed with the Board Moelis’ financial analyses of the merger consideration contemplated by the original Brookfield merger agreement and rendered the oral opinion of Moelis, which was subsequently confirmed by delivery of a written opinion, dated December 21, 2019, to the Board that, based on and subject to the factors and assumptions outlined therein, it was their opinion that, as of December 21, 2019, the consideration to be received by holders of Company common shares in the proposed Brookfield merger is fair from a financial point of view to such holders. Representatives of Cravath reviewed the terms of the near final draft of the original Brookfield merger agreement and described the resolutions before the Board. After discussion and consideration of a variety of factors, the Board unanimously (i) approved the original Brookfield merger agreement, the proposed Brookfield merger and the other transactions contemplated by the original Brookfield merger agreement, (ii) determined that entering into the original Brookfield merger agreement, the proposed Brookfield merger and the other transactions contemplated by the original Brookfield merger agreement are fair to, and in the best interests of, the Company and its shareholders, (iii) declared the original Brookfield merger agreement, the proposed Brookfield merger and the other transactions contemplated by the original Brookfield merger agreement advisable and (iv) recommended that the holders of Company common shares and 6 ³/₄% preferred shares (voting as a single class) adopt the original Brookfield merger agreement.

Following the meeting of the Board, the parties executed the original Brookfield merger agreement, the equity funding letter contemplated thereby and the other transaction documentation related to the proposed Brookfield merger.

On December 23, 2019, the Company and Brookfield Infrastructure issued a joint press release announcing the proposed Brookfield merger and their execution of the original Brookfield merger agreement.

On January 22, 2020, the MIRA Funds sent representatives of Morgan Stanley and Moelis an unsolicited, non-binding proposal to acquire the Company at a price of $12.00 per Company common share in cash. The MIRA Funds indicated in its proposal that: it believed it would be able to submit a binding offer with financing commitments within three weeks of gaining renewed access to due diligence information and meeting with management, it was willing to proceed on substantially similar terms as provided in the original Brookfield merger agreement, it did not believe a transaction with the MIRA Funds would require any regulatory approvals beyond what are required for a transaction with Brookfield Infrastructure and a transaction with the MIRA Funds would not be subject to any financing conditions. The closing price per Company common share as of the close of trading on January 22, 2020 was $11.41.

On January 23, 2020, the Board met telephonically with members of the Company’s management and representatives of each of Morgan Stanley, Moelis and Cravath in attendance to discuss the MIRA Funds’

 

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January 22 proposal. After discussion and consultation with representatives of Morgan Stanley, Moelis and Cravath, the Board made the required determinations under the original Brookfield merger agreement to allow the Company to commence discussions with the MIRA Funds regarding its proposal. The Board also reaffirmed its existing recommendation in support of the transaction with Brookfield Infrastructure.

Later on January 23, 2020, a representative of Cravath informed Brookfield Infrastructure of the Board’s determinations and the Company and its advisors commenced discussions with the MIRA Funds and its advisors.

On January 25, 2020, the MIRA Funds were provided with access to the electronic data room that had previously been populated in connection with the Company’s sale process. From this time until the execution of the amendment, the MIRA Funds conducted due diligence on the Company. Pursuant to the terms of the original Brookfield merger agreement, during this time, the Company (i) provided to Brookfield Infrastructure any information regarding the Company that was furnished to the MIRA Funds and not previously provided to Brookfield Infrastructure and (ii) kept Brookfield Infrastructure informed in all material respects on a reasonably current basis of the status and details of the MIRA Funds’ proposal (including providing copies of versions of a merger agreement with the MIRA Funds), in each case, pursuant to the original Brookfield merger agreement.

On February 10, 2020, representatives of Morgan Stanley and Moelis, at the direction of the Company, called the MIRA Funds to discuss the status of the MIRA Funds’ due diligence review and the timing of the MIRA Funds’ binding offer and to encourage the MIRA Funds to submit a binding offer as soon as possible. The MIRA Funds informed representatives of Morgan Stanley and Moelis that it intended to submit a binding offer with fully committed financing during the week of February 24, 2020.

On February 13, 2020, in a discussion with representatives of Morgan Stanley and Moelis, the MIRA Funds reaffirmed that it intended to submit a binding offer with fully committed financing the week of February 24, 2020.

On February 18, 2020, Brookfield Infrastructure sent a letter to the Board. In the letter, Brookfield Infrastructure expressed concern that the MIRA Funds continued to conduct due diligence without giving further indication that it would make a binding offer at a higher value than its January 22 proposal. Brookfield Infrastructure requested that the Company not engage with the MIRA Funds beyond the week of February 24, 2020 in the absence of committed financing and a submitted merger agreement.

Also on February 18, 2020, the Board met telephonically with members of the Company’s management and representatives of each of Morgan Stanley, Moelis and Cravath. During the meeting, Mr. Fox reviewed the letter the Company received from Brookfield Infrastructure earlier that day and the Board discussed with members of management and the Company’s advisors recent interactions with each of Brookfield Infrastructure and the MIRA Funds, the status of the MIRA Funds’ due diligence review and the fact that the MIRA Funds had indicated to the Company’s advisors that it would submit a binding offer with fully committed financing during the week of February 24, 2020. Among other things, the Board discussed whether the MIRA Funds’ updated timing was credible, noting that the MIRA Funds had previously indicated that it would submit a binding offer within three weeks of submitting its January 22 proposal, as well as the fact that continuing to participate in discussions with, and provide due diligence information to, the MIRA Funds could prove a distraction for management and its ability to operate the business. Based on these considerations and following discussions with its advisors, the Board decided to re-emphasize to the MIRA Funds that it needed to provide a binding offer with fully committed financing as early as possible during the week of February 24, 2020. Following the meeting, representatives of Morgan Stanley and Moelis communicated such message to the MIRA Funds.

On February 20, 2020, the MIRA Funds sent representatives of Morgan Stanley and Moelis a draft merger agreement, which contemplated that (i) the merger consideration would be financed through a combination of debt and equity financing and (ii) if the debt financing was not available at the time of closing, the Company’s sole remedy would be a $35.94 million reverse termination fee.

 

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On February 24, 2020, representatives of Cravath, at the direction of the Company, sent a revised draft of the merger agreement to the MIRA Funds and a form of binding offer letter.

On February 27, 2020, the Company received a binding offer from MIP, a MIRA-managed fund, with fully committed financing to acquire the Company at a price of $12.50 per Company common share along with a revised merger agreement containing the same financing structure as in MIP’s February 20, 2020 draft merger agreement, but with an increase in the proposed reverse termination fee from $35.94 million to $45.60 million and signed debt and equity financing commitments. In connection with MIP’s February 27 offer and each of its subsequent offers, Ares Management and certain of its affiliates committed to provide equity financing pursuant to an equity funding letter.

Shortly after the receipt of MIP’s February 27 offer, representatives of Cravath forwarded MIP’s February 27 offer and the related documentation to Brookfield Infrastructure pursuant to the original Brookfield merger agreement.

Later on February 27, 2020, representatives of Cravath discussed certain proposed modifications to the financing commitment documentation with representatives of MIP.

Later on February 27, 2020, Brookfield Infrastructure informed Mr. Fox that it intended to match MIP’s February 27 offer and would send an executed amendment to the original Brookfield merger agreement that would increase the consideration payable to holders of Company common shares to $12.50 per share in cash from $10.50 per share in cash and increase the termination fee payable by the Company to Brookfield Parent to $21,390,000 from $17,970,000 (which represented approximately the same percentage of the equity value of the transaction at the increased merger consideration as the original termination fee at the original merger consideration).

Later on February 27, 2020, the Board met telephonically with members of the Company’s management and representatives of each of Morgan Stanley, Moelis, Cravath and Morgan, Lewis and Bockius LLP, regulatory counsel to the Company, in attendance to discuss MIP’s February 27 offer and Brookfield Infrastructure’s proposed changes to the original Brookfield merger agreement. Representatives of Cravath reviewed the terms of MIP’s February 27 offer, Brookfield Infrastructure’s proposed amendment to the original Brookfield merger agreement and the financing structures of both transactions, including the fact that Brookfield Infrastructure’s proposed changes to the original Brookfield merger agreement would keep intact both its commitment to make available and provide, pursuant to the equity funding letter, the full amount in cash necessary to fund the aggregate merger consideration and the Company’s ability to seek specific performance to cause Brookfield Infrastructure to draw down the full proceeds of the equity funding letter in connection with the consummation of the merger.

During the Board meeting, the Company received an offer from Brookfield Infrastructure, which included an executed first amendment to the original Brookfield merger agreement with terms consistent with those communicated to Mr. Fox earlier that day. After discussion and consideration of a variety of factors, the Board (i) approved the Brookfield merger agreement and the proposed Brookfield merger, (ii) determined that entering into the Brookfield merger agreement is fair to, and in the best interests of, the Company and its shareholders, (iii) declared the Brookfield merger agreement and the proposed Brookfield merger advisable and (iv) recommended that the holders of Company common shares and 6 ³⁄₄% preferred shares (voting as a single class) adopt the Brookfield merger agreement.

Following the meeting of the Board, the Company countersigned the first amendment.

On February 28, 2020, the Company issued a press release announcing that it had entered into the first amendment.

 

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On March 2, 2020, the Company received a binding offer from MIP with fully committed financing to acquire the Company at a price of $13.50 per Company common share along with a signed merger agreement containing substantially the same terms as the merger agreement submitted with MIP’s February 27 offer. Shortly after the receipt of MIP’s March 2 offer, representatives of Cravath forwarded MIP’s March 2 offer and the related documentation to Brookfield Infrastructure pursuant to the Brookfield merger agreement.

Later on March 2, 2020, the Company issued a press release announcing that it had received MIP’s March 2 offer and that the Board would carefully review and evaluate MIP’s March 2 offer to determine the course of action in the best interests of the Company and its shareholders.

Later on March 2, 2020, Brookfield Infrastructure sent a letter to the Board. In the letter, Brookfield Infrastructure outlined the following three potential alternative proposals Brookfield Infrastructure was prepared to pursue in response to MIP’s March 2 offer: (i) increasing the merger consideration to $13.50 per Company common share but adopting the same debt and equity financing structure contemplated by MIP’s March 2 offer and related changes to the transaction documents, including the adoption of a $45.60 million reverse termination fee that would be the Company’s sole remedy if the debt financing was not available at closing, (ii) increasing the merger consideration to $13.00 per Company common share while keeping intact its commitment to make available and provide, pursuant to the equity funding letter, the full amount in cash necessary to fund the aggregate merger consideration and the Company’s ability to seek specific performance to cause Brookfield Infrastructure to draw down the full proceeds of the equity funding letter in connection with the consummation of the proposed Brookfield merger or (iii) increasing the merger consideration to $13.50 per Company common share while keeping intact the financing structure outlined in option (ii) but increasing the termination fee payable by the Company to Brookfield Parent by approximately $26 million.

Later on March 2, 2020, the Board met telephonically with members of the Company’s management and representatives of each of Morgan Stanley, Moelis and Cravath in attendance. During the meeting, the Board discussed with members of the Company’s management and representatives of each of Morgan Stanley, Moelis and Cravath in attendance MIP’s March 2 offer and the alternative proposals outlined in Brookfield Infrastructure’s March 2 letter. After discussion and consultation with representatives of Morgan Stanley, Moelis and Cravath, the Board made the required determinations under the Brookfield merger agreement to allow the Company to commence discussions with MIP regarding its March 2 offer. The Board also reaffirmed its existing recommendation in support of the transaction with Brookfield Infrastructure.

Also on March 2, 2020, Ares Management filed an amendment to Schedule 13D, disclosing, among other things, that, in connection with MIP’s March 2 offer, Ares Management had agreed to provide equity financing and enter into limited guarantees guaranteeing certain obligations of Parent under the merger agreement.

On March 3, 2020, representatives of Cravath discussed certain technical modifications to the documentation submitted with MIP’s March 2 offer with representatives of MIP.

Later on March 3, 2020, the Company received a modified binding offer from MIP with fully committed financing to acquire the Company at a price of $13.50 per Company common share, which reflected the technical modifications representatives of Cravath discussed with representatives of MIP earlier in the day and also a decrease in the termination fee that would be payable by the Company to MIP to $7,500,000 from $17,970,000. Shortly after the receipt of MIP’s March 3 offer, representatives of Cravath forwarded MIP’s March 3 offer and the related documentation to Brookfield Infrastructure pursuant to the Brookfield merger agreement.

Later on March 3, 2020, Brookfield Infrastructure informed Mr. Fox that it intended to match MIP’s March 3 offer and would send (i) an executed amendment to the Brookfield merger agreement that would increase the consideration payable to holders of Company common shares to $13.50 per share in cash from $12.50 per share in cash and increase the termination fee payable by the Company to Brookfield Parent to $23,100,000 from $21,390,000 (which represented approximately the same percentage of the equity value of the

 

48

transaction at the increased merger consideration as the original termination fee at the original merger consideration) and (ii) an executed amendment to the equity funding letter that would increase the aggregate cap on the Brookfield Funds’ obligations under its guaranty to $736,022,104 from $578,017,192.

Later on March 3, 2020, the Company received an offer from Brookfield Infrastructure, which included an executed amendment to the Brookfield merger agreement and an executed amendment to the equity funding letter with terms consistent with those communicated to Mr. Fox earlier that day.

Later on March 3, 2020, the Board met telephonically with members of the Company’s management and representatives of each of Morgan Stanley, Moelis and Cravath in attendance to discuss MIP’s March 3 offer and Brookfield Infrastructure’s proposed changes to the Brookfield merger agreement. Representatives of Cravath reviewed the terms of MIP’s March 3 offer and Brookfield Infrastructure’s proposed amendment to the Brookfield merger agreement. After discussion and consideration of a variety of factors, the Board (i) approved the Brookfield merger agreement and the proposed Brookfield merger, (ii) determined that entering into the Brookfield merger agreement is fair to, and in the best interests of the Company and its shareholders, (iii) declared the Brookfield merger agreement and the proposed Brookfield merger advisable and (iv) recommended that the holders of Company common shares and 6 ³⁄₄% preferred shares (voting as a single class) adopt the Brookfield merger agreement.

Following the meeting of the Board, the Company countersigned the second amendment and the amendment to the equity funding letter.

On March 4, 2020, the Company issued a press release announcing that it had entered into the second amendment.

Later on March 4, 2020, the Company received a binding offer from MIP with fully committed financing to acquire the Company at a price of $14.50 per Company common share. Other than the acquisition price, all of the other material terms in MIP’s March 4 offer were the same as those in its March 3 offer. Shortly after the receipt of MIP’s March 4 offer, representatives of Cravath forwarded MIP’s March 4 offer and the related documentation to Brookfield Infrastructure pursuant to the Brookfield merger agreement.

Later on March 4, 2020, Brookfield Infrastructure informed Mr. Fox that it intended to match MIP’s March 4 offer and would send (i) an executed amendment to the Brookfield merger agreement that would increase the consideration payable to holders of Company common shares to $14.50 per share in cash from $13.50 per share in cash and increase the termination fee payable by the Company to Brookfield Parent to $24,800,000 from $23,100,000 (which represented approximately the same percentage of the equity value of the transaction at the increased merger consideration as the original termination fee at the original merger consideration) and (ii) an executed amendment to the equity funding letter that would increase the aggregate cap on the Brookfield Funds’ obligations under its guaranty to $788,690,408 from $736,022,104.

Later on March 4, 2020, the Company received an offer from Brookfield Infrastructure, which included an executed amendment to the Brookfield merger agreement and an executed amendment to the equity funding letter with terms consistent with those communicated to Mr. Fox earlier that day.

Later on March 4, 2020, the Board met telephonically with members of the Company’s management and representatives of each of Morgan Stanley, Moelis and Cravath in attendance to discuss MIP’s March 4 offer and Brookfield Infrastructure’s proposed changes to the Brookfield merger agreement. Representatives of Cravath reviewed the terms of MIP’s March 4 offer and Brookfield Infrastructure’s proposed amendment to the Brookfield merger agreement. After discussion and consideration of a variety of factors, the Board (i) approved the Brookfield merger agreement and the proposed Brookfield merger, (ii) determined that entering into the Brookfield merger agreement is fair to, and in the best interests of the Company and its shareholders, (iii) declared the Brookfield merger agreement and the proposed Brookfield merger advisable and (iv) recommended that the holders of

 

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Company common shares and 6 ³⁄₄% preferred shares (voting as a single class) adopt the Brookfield merger agreement.

Following the meeting of the Board, the Company countersigned the third amendment and the second amendment to the equity funding letter.

On March 5, 2020, the Company issued a press release announcing that it had entered into the third amendment.

Later on March 5, 2020, the Company received a binding offer from MIP with fully committed financing to acquire the Company at a price of $15.50 per Company common share. Other than the acquisition price, all of the other material terms in MIP’s March 5 offer were the same as those in its March 4 offer. Shortly after the receipt of MIP’s March 5 offer, representatives of Cravath forwarded MIP’s March 5 offer and the related documentation to Brookfield Infrastructure pursuant to the Brookfield merger agreement.

Later on March 5, 2020, the Board met telephonically with members of the Company’s management and representatives of each of Morgan Stanley, Moelis and Cravath in attendance. During the meeting, the Board discussed MIP’s March 5 offer. After discussion and consultation with representatives of Morgan Stanley, Moelis and Cravath, the Board determined that MIP’s March 5 offer constituted a “Superior Company Proposal” (as defined in the Brookfield merger agreement).

Also on March 5, 2020, Ares Management filed an amendment to Schedule 13D, disclosing, among other things, that, in connection with MIP’s March 4 offer, Ares Management had agreed to provide equity financing and enter into limited guarantees guaranteeing certain obligations of Parent under the merger agreement.

On March 6, 2020, the Company issued a press release announcing its determination and related matters, including its intention to terminate the Brookfield merger agreement in order to enter into a definitive agreement with affiliates of MIP, subject to Brookfield Infrastructure’s right to negotiate revisions to the Brookfield merger agreement during the five business days ending March 12, 2020.

Later on March 6, 2020, the Company received a letter from Brookfield Infrastructure notifying the Company that Brookfield Infrastructure would not exercise its right to propose any further revisions to the Brookfield merger agreement and would let its negotiation period lapse.

Later on March 6, 2020, the Company issued a press release announcing the receipt of Brookfield Infrastructure’s March 6 letter and that it intended to terminate the Brookfield merger agreement and enter into a definitive agreement with affiliates of MIP on March 13, 2020, the earliest the Company could do so pursuant to the terms of the Brookfield merger agreement.

Also on March 6, 2020, Ares Management filed an amendment to Schedule 13D, disclosing, among other things, that, in connection with MIP’s March 5 offer, Ares Management had agreed to provide equity financing, increasing the available cash equity financing to $307.1 million from $300 million, and enter into limited guarantees guaranteeing certain obligations of Parent under the merger agreement.

On March 12, 2020, the Board met telephonically with members of the Company’s management and representatives of each of Morgan Stanley, Moelis and Cravath in attendance. Representatives of Cravath reviewed with the Board its fiduciary duties in the context of a review of a potential sale transaction. Representatives of Morgan Stanley and Moelis reviewed for the Board the terms of MIP’s March 5 offer. Representatives of Morgan Stanley reviewed with the Board its financial analyses of the merger consideration contemplated by the merger agreement and rendered the oral opinion of Morgan Stanley, which was subsequently confirmed by delivery of a written opinion, dated March 12, 2020, to the Board, and attached to this proxy statement as Annex B, that, based on and subject to the factors and assumptions outlined therein, it was

 

50

their opinion that, on March 12, 2020, the consideration to be received by the holders of Company common shares pursuant to the merger agreement is fair from a financial point of view to the holders of Company common shares (other than Parent and its affiliates). Next, representatives of Moelis reviewed with the Board Moelis’ financial analyses of the merger consideration contemplated by the merger agreement and rendered the oral opinion of Moelis, which was subsequently confirmed by delivery of a written opinion, dated March 13, 2020, to the Board, and attached to this proxy statement as Annex C, that, based on and subject to the factors and assumptions outlined therein, it was their opinion that, as of March 13, 2020, the consideration to be received by holders of Company common shares in the merger is fair from a financial point of view to such holders (other than MIP and Ares Management and their respective affiliates). Representatives of Cravath reviewed the resolutions before the Board. After discussion and consideration of a variety of factors, including those described in “—Reasons for the Merger” beginning on page 51, the Board unanimously (i) declared it in the best interests of the Company and its shareholders that the Company terminate the Brookfield merger agreement, (ii) approved the merger agreement, the merger and the other transactions contemplated by the merger agreement, (iii) determined that entering into the merger agreement, the merger and the other transactions contemplated by the merger agreement are fair to, and in the best interests of, the Company and its shareholders, (iv) declared the merger agreement, the merger and the other transactions contemplated by the merger agreement advisable and (v) recommended that the holders of Company common shares and 6 ³/₄% preferred shares (voting as a single class) adopt the merger agreement.

On March 13, 2020, the Company paid Brookfield Infrastructure the $24.8 million termination fee and terminated the Brookfield merger agreement, and the Company, Parent and Merger Sub executed the merger agreement, the equity commitment letters and the other transaction documentation related to the merger.

Later on March 13, 2020, the Company issued a press release announcing the merger and the execution of the merger agreement.

Recommendation of the Board

At the special meeting of the Board on March 12, 2020, after careful consideration, including detailed discussions with the Company’s management and its legal and financial advisors, the Board unanimously:

 

•

approved the merger agreement, the merger and the other transactions contemplated by the merger agreement;

 

•

determined that entering into the merger agreement, the merger and the other transactions contemplated by the merger agreement are fair to, and in the best interests of, the Company and its shareholders;

 

•

declared the merger agreement, the merger and the other transactions contemplated by the merger agreement advisable; and

 

•

recommended that the holders of Company common shares and 6 3/4% preferred shares (voting as a single class) adopt the merger agreement.

Reasons for the Merger

As described above in the section entitled “—Background of the Merger”, prior to and in reaching its determination, the Board consulted with and received the advice of its financial advisors and outside counsels, discussed certain issues with the Company’s management and considered a variety of factors weighing positively in favor of the merger, including the following material factors:

 

•

the fact that the negotiations between the Company and MIP resulted in an increase in the merger consideration to $15.50 per Company common share in cash, a significant increase from MIP’s previous offers and an increase of 48% per share above the merger consideration contemplated by the original Brookfield merger agreement of $10.50 per share, as described above in the section entitled “—Background of the Merger”;

 

51

•

the $15.50 per share price to be paid in cash for each Company common share, which represented a premium of approximately:

 

•

7% over the $14.50 per share contemplated by the Brookfield merger agreement, as amended;

 

•

101% over the closing price of the Company common shares on December 20, 2019, the last trading day prior to the date when the original Brookfield merger agreement was executed;

 

•

137% over the 30-trading-day volume weighted average price of the Company common shares up to and including December 20, 2019; and

 

•

172% over the 60-trading-day volume weighted average price of the Company common shares up to and including December 20, 2019;

 

•

the fact that the Board determined that entering into the merger agreement provided a more attractive alternative for creating shareholder value when compared to continuing to pursue its previously agreed transaction with Brookfield Infrastructure in light of the substantially higher price offered by the MIP transaction relative to the Brookfield Infrastructure transaction;

 

•

the fact that Brookfield Infrastructure did not propose any further adjustments to the terms and conditions of the Brookfield merger agreement after MIP made a binding offer to acquire the Company at $15.50 per share;

 

•

the Board’s understanding of the Company’s business, operations, financial condition, earnings, prospects, competitive position and the nature of the industry in which the Company competes;

 

•

the Board’s understanding of the risks, uncertainties and challenges facing the Company and the industry in which the Company competes, including the risks that the Company would face if it continued to operate on a stand-alone basis. These risks, uncertainties and challenges included:

 

•

risks relating to the Company’s ability to grow its revenues and cash flows, continue to make new fiber investments in accordance with its strategic plan, refinance its existing indebtedness on favorable terms and keep pace with technological advances, including potential competition from 5G wireless networks, and changing consumer preferences;

 

•

the Board’s belief that the Company’s stand-alone strategic plan involved significant risks in light of the industry and competitive and financial leverage pressures the Company was facing and the Board’s concerns with respect to the risks relating to the Company’s ability to execute on its strategic plan, including the possibility that the strategic plan may not produce the intended results on the targeted timing or at all;

 

•

the continued decline in earnings multiples and equity valuations among telecommunications companies and volatile market conditions;

 

•

the impact of high levels of leverage and financial distress amongst certain of the Company’s industry peers, including Windstream Holdings Inc.’s bankruptcy, on equity valuations in the sector and on the availability and terms of future financing and leverage levels;

 

•

the risk that the Company will no longer have access to capital sufficient to fund necessary capital investments essential to keep the Company competitive and to avoid revenue and cash flow declines; and

 

•

other risks and uncertainties, including the risk factors set forth in the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2019;

 

•

the Board’s belief that other alternatives to a sale of the entire company, including divesting certain assets or business units, such as CBTS or the Company’s Hawaii assets, and entering into financing transactions, which alternatives the Board evaluated with the assistance of the Company’s financial advisors and outside legal counsel, did not represent a more attractive alternative to a sale in light of, among other factors, the potential risks, rewards and uncertainties associated with those alternatives;

 

52

•

the financial analysis reviewed and discussed with the Board by representatives of Morgan Stanley as well as the oral opinion of Morgan Stanley rendered to the Board on March 12, 2020 (which was subsequently confirmed in writing by delivery of Morgan Stanley’s written opinion dated March 12, 2020) that, based on and subject to the factors and assumptions outlined therein, it was their opinion that, on such date, the consideration to be received by the holders of Company common shares pursuant to the merger agreement was fair from a financial point of view to the holders of Company common shares (other than Parent and its affiliates). The foregoing is more fully described below in the section entitled “—Opinion of the Company’s Financial Advisors”;

 

•

the financial analysis reviewed and discussed with the Board by representatives of Moelis as well as the oral opinion of Moelis rendered to the Board on March 12, 2020 (which was subsequently confirmed in writing by delivery of Moelis’ written opinion dated March 13, 2020) that, based on and subject to the factors and assumptions outlined therein, it was their opinion that, as of such date, the consideration to be received by holders of Company common shares in the merger pursuant to the merger agreement was fair from a financial point of view to such holders (other than MIRA and Ares Management and their respective affiliates). The foregoing is more fully described below in the section entitled “—Opinion of the Company’s Financial Advisors”;

 

•

the Board’s assessment, taking into account the foregoing factors, of the Company’s value on a stand-alone basis relative to the $10.50 per Company common share to be paid in cash pursuant to the original Brookfield merger agreement and the fact the Board determined that the merger agreement provided a more attractive alternative for creating shareholder value than the transaction with Brookfield Infrastructure;

 

•

the possibility that the trading price of the Company common shares would not reach and sustain at least the $15.50 per Company common share to be paid in cash pursuant to the merger agreement;

 

•

the Board’s process, prior to the execution of the original Brookfield merger agreement, for soliciting offers from the third parties that were believed to be the most able and willing to pay the highest price for the Company, which included providing such parties with an opportunity to conduct due diligence and conduct meetings with members of the Company’s management, as described above in the section entitled “—Background of the Merger”;

 

•

the fact that the Company engaged in, or attempted to initiate, discussions regarding a potential sale transaction with numerous third parties, none of which had expressed a willingness, as of December 21, 2019, the date the Company entered into the original Brookfield merger agreement, to pay the Company’s shareholders more than the $10.50 per Company common share offer from Brookfield Infrastructure and the fact that no party other than MIP made a proposal to acquire the Company during the more than 11-week period that elapsed between the execution of the original Brookfield merger agreement and execution of the MIP merger agreement;

 

•

the fact that the consideration to be paid by MIP is all cash, which provides certainty, immediate value and liquidity to holders of Company common shares, while avoiding long-term business risk, including the risks and uncertainties relating to the Company’s prospects (including the prospects described in the management’s forecasts summarized in the section below entitled “—Financial Forecasts”), immediately upon the closing of the merger;

 

•

the fact that the financial, management, and other resources made available to the Company through the merger will enhance the Company’s networks and services to the benefit of its customers in Hawaii, Ohio, Kentucky, and Indiana, and across the nation;

 

•

MIP’s track record in successfully acquiring other companies, consolidated financial strength, industry expertise and track record of investment in critical data service and infrastructure;

 

•

the fact that MIP obtained committed debt financing from reputable financing sources and that Parent has obtained committed equity financing from MIP and the Ares Funds, as well as the fact that Parent

 

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must use commercially reasonable efforts to obtain the debt financing and the equity financing and that such funding provides an amount sufficient to fund the aggregate merger consideration, refinance any credit facility or other indebtedness of the Company that not will continue after the consummation of the merger and the payment of any fees and expenses of or payable by Parent, and any other amounts required to be paid by Parent in connection with the consummation of the transactions contemplated by the merger agreement;

 

•

the fact that the Company is entitled to seek specific performance to enforce Parent’s right to cause the Investors to draw down the full proceeds of the equity commitment letters if the debt financing has been funded or will be funded substantially concurrently with the equity financing and consummation of the merger, as described below in the section entitled “—Financing of the Merger”;

 

•

the fact that the merger agreement provides that, if the merger is not consummated under certain specified circumstances, Parent will pay the Company the reverse termination fee of $45.6 million, as described below in the section entitled “The Merger—Fees and Expenses”;

 

•

the fact that MIP and the Ares Funds have provided limited guarantees in favor of the Company, covering the payment of certain obligations of Parent, including the reverse termination fee, subject to an aggregate cap of $50.6 million, as described below in the section entitled “—Financing of the Merger”;

 

•

the provisions of the merger agreement that permit the Company to explore an unsolicited superior proposal, including:

 

•

the Company’s ability to, subject to certain conditions, furnish information to and engage in negotiations with third parties that have made an unsolicited takeover proposal if the Board determines in good faith (after consultation with its outside counsel and financial advisor) that the failure to do so would reasonably be expected to be inconsistent with its fiduciary duties under applicable law, and that such takeover proposal constitutes or is reasonably likely to lead to a superior proposal, as more fully described in “The Merger Agreement—No Solicitation” beginning on page 104;

 

•

the Board’s ability to consider, and under certain conditions, to accept, a superior proposal in order to comply with the Board’s fiduciary duties, and the Company’s corresponding right to terminate the merger agreement upon the payment of the company termination fee of $7.5 million to Parent in order to enter into a definitive agreement providing for such superior proposal; and

 

•

the $7.5 million company termination fee, which the Board believed, after consultation with the Company’s advisors, was reasonable and not likely to preclude a superior proposal for a business combination with the Company;

 

•

the Board’s ability, under certain circumstances, to withhold or withdraw the Board’s recommendation to holders of Company common shares and 6 3/4% preferred shares (voting as a single class) that they vote in favor of the adoption of the merger agreement;

 

•

the belief that the terms of the merger agreement, taken as a whole, provide protection against the risk that the consummation of the merger is delayed or that the merger cannot be completed, including due to required regulatory approvals, based on, among other things:

 

•

the covenants contained in the merger agreement obligating each of the parties to use reasonable best efforts to cause the merger to be consummated;

 

•

the covenant in the merger agreement pursuant to which Parent has agreed to promptly take any and all actions necessary to obtain all required governmental consents or approvals, including (i) contesting and resisting legal actions challenging the merger agreement and the transactions contemplated by the merger agreement as violative of any law, (ii) attempting to repeal laws and challenging any judgment, injunction or other restraint, (iii) entering into a consent decree, hold

 

54

separate order, or otherwise committing to divest businesses, product lines, assets or operations, (iv) agreeing to operational restrictions and (v) otherwise taking actions that would limit its or its affiliates’ ability to retain any businesses, product lines, assets or operations of Parent or any of its affiliates or the Company or any of its subsidiaries, in each case, subject to a limit on taking or refraining from taking certain actions that individually or in the aggregate, would be reasonably likely to have a material adverse effect on Parent and its affiliates (taken as a whole) or the Company and its subsidiaries (taken as a whole);

 

•

the provision of the merger agreement that allows the end date for completing the merger to be extended from June 13, 2021 to September 13, 2021 if the merger has not been completed by the initial end date because the required regulatory approvals have not been obtained;

 

•

the Board’s belief that the end date for completing the merger under the merger agreement on which either party, subject to certain exceptions, can terminate the merger agreement allows for sufficient time to consummate the merger and consummate the transactions contemplated by the merger agreement;

 

•

the likelihood and anticipated timing of consummating the merger in light of the scope of the conditions to closing; and

 

•

the Company’s ability to seek specific performance to prevent breaches of the merger agreement and to enforce specifically the terms of the merger agreement;

 

•

the fact that resolutions approving the merger agreement were unanimously approved by the Board, which is comprised of a majority of independent directors who are not affiliated with the Company and are not employees of the Company or any of its subsidiaries;

 

•

the fact that the merger is not conditioned upon any member of the Company’s management or Board entering into any employment, equity contribution or other agreement or arrangement with the Company or MIP, and that no such agreement or arrangement existed as of the date of the merger agreement;

 

•

the belief that the terms of the merger agreement, taken as a whole, including the parties’ representations, warranties and covenants, and the conditions to the parties’ respective obligations, are reasonable;

 

•

the fact that the merger is subject to the vote of shareholders holding at least two-thirds of the outstanding Company common shares and 6 3/4% preferred shares (voting as a single class), enabling the Company’s shareholders to evaluate the merger and ultimately decide whether the merger is consummated;

 

•

the availability of appraisal rights and payment of fair value under Ohio law to record holders of Company common shares and 6 3/4% preferred shares who follow the required statutory procedures and who do not vote in favor of the proposal to adopt the merger agreement, as described further in the section entitled “The Merger—Dissenters’ Rights Available to Company Shareholders” beginning on page 82;

 

•

the risk that pursuing other potential alternatives, including continuing to operate on a stand-alone basis, could have resulted in the loss of an opportunity to consummate a transaction, particularly if the markets for debt fluctuated in a manner that made it more difficult to finance the acquisition; and

 

•

the concern regarding the potential impact of any potential economic downturn on the price of Company common shares and the terms of and availability of financing.

In the course of its deliberations, the Board also considered a variety of risks and other countervailing factors related to the merger agreement and the merger, including the following material factors:

 

•

the potential upside in the Company’s stand-alone strategic plan;

 

55

•

the possibility that the merger might not be consummated in a timely manner or at all due to a failure of certain conditions, including with respect to the required approval of the transaction by the required regulatory authorities;

 

•

the limitations on Parent’s commitments under the merger agreement to take certain actions necessary to obtain the required governmental consents or approvals if such commitments would be reasonably likely to have a material adverse effect on Parent and its affiliates (taken as a whole) or the Company and its subsidiaries (taken as a whole);

 

•

the risk that, while the merger agreement is not subject to any financing condition, if Parent fails to obtain debt financing, the merger is unlikely to be consummated;

 

•

the fact that the Company would be required to pay to Brookfield Infrastructure a termination fee of $24.8 million in order to terminate the Brookfield merger agreement and enter into the merger agreement;

 

•

the risks and costs to the Company if the merger does not close in a timely manner or at all, including the potential negative impact on the Company’s ability to retain key employees, the diversion of management and employee attention and the potential disruptive effect on the Company’s day-to-day operations and the Company’s relationships with customers, suppliers and other third parties;

 

•

the fact that the holders of Company common shares will have no ongoing equity interest in the surviving corporation following the merger, meaning that the holders of Company common shares will not (by virtue of their holding Company common shares) participate in Parent’s or the Company’s potential future earnings or growth;

 

•

the restrictions on the conduct of the Company’s business prior to the consummation of the merger, which may delay or prevent the Company from undertaking business opportunities that may arise or any other action that it might otherwise take with respect to the operations and strategy of the Company;

 

•

the risk that the parties may incur significant costs and delays resulting from seeking governmental consents and approvals necessary for completion of the merger;

 

•

the provisions of the merger agreement that restrict the Company’s ability to solicit or participate in discussions or negotiations regarding alternative business combination transactions, subject to specified exceptions, and that require the Company to negotiate with MIP (if MIP desires to negotiate) prior to the Company being able to terminate the merger agreement to accept a superior proposal;

 

•

the possibility that the Company’s obligation to pay Parent the company termination fee of $7.5 million upon the termination of the merger agreement under certain circumstances could discourage other potential acquirors from making an alternative proposal to acquire the Company;

 

•

the significant costs involved in connection with negotiating the merger agreement and completing the merger, including in connection with any litigation that may result from the announcement or pendency of the merger, and the fact that if the merger is not consummated, the Company may be required to bear such costs;

 

•

the risk of litigation in connection with the execution of the merger agreement and the completion of the merger; and

 

•

the fact that an all-cash transaction would be taxable to the holders of Company common shares that are U.S. holders for U.S. federal income tax purposes.

In addition, the Board was aware of and considered the fact that the Company’s executive officers have financial interests in the merger that may be different from, or in addition to, those of the Company’s shareholders generally, including those interests that are a result of employment and compensation arrangements with the Company, as described more fully below in the section entitled “—Interests of the Company’s Directors and Executive Officers in the Merger”.

 

56

The foregoing discussion of the factors considered by the Board is not intended to be exhaustive, but rather includes the material factors considered by the Board. The Board collectively reached the conclusion to adopt the merger agreement and recommend that the shareholders holding Company common shares and 6 ³/₄% preferred shares (voting as a single class) vote to approve the proposal to adopt the merger agreement, in light of the various factors described above and other factors that the members of the Board believed were appropriate. In view of the wide variety of factors considered by the Board in connection with its evaluation of the merger and the complexity of these matters, the Board did not consider it practical, and did not attempt, to quantify, rank or otherwise assign relative weights to the specific factors it considered in reaching its decision and did not undertake to make any specific determination as to whether any particular factor, or any aspect of any particular factor, was favorable or unfavorable to the ultimate determination of the Board. Rather, the Board made its recommendation based on the totality of the information available to the Board, including discussions with, and questioning of, the Company’s management and its financial and legal advisors. In considering the factors discussed above, individual members of the Board may have given different weights to different factors.

This explanation of the Board’s reasons for recommending the approval of the merger agreement and other information presented in this section is forward-looking in nature and, therefore, should be read in light of the factors described in the section of this proxy statement entitled “Cautionary Statement Regarding Forward-Looking Statements” beginning on page 22.

Financial Forecasts

Other than annual guidance—including the guidance included in the Company’s earnings release dated February 14, 2019 and the reaffirmation of such guidance in the Company’s earnings releases dated May 8, 2019, August 8, 2019 and November 7, 2019 (the “2019 earnings guidance”), with respect to consolidated revenues and certain other performance measures, which guidance the Company presents as a range—the Company does not, as a matter of course, publicly disclose forecasts as to future performance, earnings or other results due to the unpredictability of the underlying assumptions and estimates. However, the Company has included below certain financial forecasts of the Company that, to the extent described below, were furnished to the Board, the Company’s financial advisors, MIP and certain other parties potentially interested in a transaction with the Company, in connection with the discussions concerning the proposed merger.

These Financial Forecasts (as defined below) were not prepared with a view toward public disclosure or with a view toward complying with the guidelines established by the American Institute of Certified Public Accountants for preparation and presentation of prospective financial data, published guidelines of the SEC regarding forward-looking statements or generally accepted accounting principles in the United States (“GAAP”). A summary of this information is presented below.

No assurances can be made regarding future events and the estimates and assumptions underlying these financial forecasts involve judgments with respect to, among other things, future economic, competitive, regulatory and financial market conditions and future business decisions that may not be realized and that are inherently subject to significant business, economic, competitive and regulatory uncertainties and contingencies, including, among other things, the inherent uncertainty of the business and economic conditions affecting the industries in which the Company operates, and the risk and uncertainties described under “Cautionary Statement Regarding Forward-Looking Statements” beginning on page 22, all of which are difficult to predict and many of which are outside the control of the Company and, upon consummation of the merger, will be beyond the control of MIP and the surviving corporation. The Company’s shareholders are urged to review the Company’s SEC filings for a description of risk factors with respect to the Company’s business. There can be no assurance that the underlying assumptions will prove to be accurate or that the projected results will be realized. Actual results likely will differ, and may differ materially, from those reflected in the Financial Forecasts, whether or not the merger is completed. The inclusion in this proxy statement of the Financial Forecasts below should not be regarded as an indication that the Company, MIP, their respective boards of directors or their respective financial advisors considered, or now considers, these forecasts to be a reliable predictor of future results. Neither the

 

57

Financial Forecasts nor any of the assumptions on which they are based are fact. They should not be relied upon as being necessarily indicative of future results, and readers of this proxy statement are cautioned not to place undue, if any, reliance on this information. The Financial Forecasts assume that the Company would continue to operate as a stand-alone company and do not reflect any impact of the merger.

The Financial Forecasts include certain non-GAAP financial measures, including Adjusted EBITDA and unlevered free cash flow (in each case, as defined below). The Company’s management included forecasts of Adjusted EBITDA in the Financial Forecasts because the Company’s management believes that Adjusted EBITDA could be useful in evaluating the business, potential operating performance and cash flow of the Company and because it is commonly used by investors to assess financial performance and operating results of ongoing business operations. The Company’s management included forecasts of unlevered free cash flow in the Financial Forecasts because the Company’s management believes that unlevered free cash flow could be useful in evaluating the future cash flows generated by the Company without including in such calculation any debt servicing costs.

Investors should also note that these non-GAAP financial measures presented in this proxy statement are not prepared under any comprehensive set of accounting rules or principles and do not reflect all of the amounts associated with the Company’s results of operations as determined in accordance with GAAP. Investors should also note that these non-GAAP financial measures presented in this proxy statement have no standardized meaning prescribed by GAAP and, therefore, have limits in their usefulness to investors. Because of the non-standardized definitions, the non-GAAP financial measures as used by the Company in this proxy statement and the accompanying footnotes may be calculated differently from, and therefore may not be directly comparable to, similarly titled measures used by the Company’s competitors and other companies, or any similarly titled measures used by MIP, which prepares and publishes its financial statements in accordance with International Financial Reporting Standards as issued by the International Accounting Standards Board.

Due to the inherent limitations of non-GAAP financial measures, investors should consider non-GAAP measures only as a supplement to, not as a substitute for or as a superior measure to, measures of financial performance prepared in accordance with GAAP. The footnotes to the tables below provide certain supplemental information with respect to the calculation of these non-GAAP financial measures. All of the financial forecasts summarized in this section were prepared by the Company’s management. Neither Deloitte & Touche LLP (the Company’s independent registered public accounting firm) (“Deloitte”) nor any other independent registered public accounting firm has examined, compiled or otherwise performed any procedures with respect to the prospective financial information contained in these financial forecasts and, accordingly, neither Deloitte nor any other independent registered public accounting firm has expressed any opinion or given any other form of assurance with respect thereto and no independent registered public accounting firm assumes any responsibility for the prospective financial information. The Deloitte reports incorporated by reference in this proxy statement relate to the historical financial information of the Company. Those reports do not extend to the Financial Forecasts and should not be read to do so.

At the direction of the Board, the non-GAAP financial measures included in the Financial Forecasts were relied upon by Morgan Stanley and Moelis for purposes of their respective financial analyses and opinions. These non-GAAP financial measures were also relied on by the Board in connection with its consideration of the merger. Financial measures provided to a financial advisor in connection with a business combination transaction are not subject to SEC rules regarding disclosures of non-GAAP financial measures, which would otherwise require a reconciliation of a non-GAAP financial measure to a GAAP financial measure. Reconciliations of non-GAAP financial measures were not provided to and were not relied upon by Morgan Stanley and Moelis for purposes of their respective financial analyses and opinions or by the Board in connection with its consideration of the merger. In addition, MIP and the other potentially interested parties that received the Financial Forecasts were not provided with any such reconciliation. Accordingly, we have not provided a reconciliation of the financial measures.

 

58

By including in this proxy statement the Financial Forecasts below, neither the Company nor MIP nor any of their respective representatives has made or makes any representation to any person regarding the ultimate performance of the Company compared to the information contained in the Financial Forecasts. Accordingly, the Financial Forecasts should not be construed as financial guidance, nor relied upon as such, and the Financial Forecasts may differ in important respects from the 2019 earnings guidance, which are presented as a range and which the Company’s management prepared based on a more conservative set of assumptions. Further, the inclusion of the Financial Forecasts in this proxy statement does not constitute an admission or representation by the Company that this information is material. The Financial Forecasts summarized in this section reflected the opinions, estimates and judgments of the Company’s management at the time they were prepared and have not been updated to reflect any changes since such financial forecasts were prepared. Neither the Company, MIP nor, after completion of the merger, the surviving corporation undertakes any obligation, except as required by law, to update or otherwise revise the Financial Forecasts to reflect circumstances existing since their preparation, changes in general economic or industry conditions or the occurrence of unanticipated events, even in the event that any or all of the underlying assumptions are shown to be in error.

The summary of the Financial Forecasts is not included in this proxy statement to induce any shareholder to vote in favor of the adoption of the merger agreement or any other proposals to be voted on at the special meeting, but because the Financial Forecasts were made available to the Board, the Company’s financial advisors and certain parties potentially interested in a transaction with the Company, including MIP.

As described further in “The Merger—Background of the Merger” beginning on page 32, as part of the development of the Company’s long term plan and in connection with the Company’s review of strategic alternatives, including a potential sale of the Company, in September 2019 the Company’s management prepared certain financial projections for the fiscal years 2020 through 2023 (the “September Forecasts”). The September Forecasts were presented to the Board at the October 3, 2019 meeting, and were made available to MIP and certain other third parties that participated in the sale process in the course of their due diligence review of the Company.

The following table sets forth a summary of the September Forecasts:

Fiscal Year ending December 31,

 

		2020E				2021E				2022E				2023E
($ millions)
Revenue		$	1,580			$	1,598			$	1,631			$	1,674
Adjusted EBITDA(1)			418				431				453				474
Capital Expenditures			246				238				236				236
Unlevered Free Cash Flow(2)		$	172			$	193			$	217			$	237

 

(1)	“Adjusted EBITDA” is defined as operating income plus depreciation, amortization, stock based compensation, restructuring and severance related charges, any gains or losses on the sale or disposal of assets, transaction and integration costs, asset impairments and other special items.

(2)	“Unlevered Free Cash Flow” is defined as Adjusted EBITDA less capital expenditures.

In December 2019, the Company’s management performed its annual, normal course five year planning process. As a result of this process, the Company’s management made certain updates to the September Forecasts to reflect the actual business results for the fiscal quarter ended September 30, 2019, the competitive landscape and the business opportunities available to the Company (such updated forecasts, the “December Forecasts”, and together with the September Forecasts, the “Financial Forecasts”). Consistent with the new five-year plan, the December Forecasts also included projections for the 2024 fiscal year. The December Forecasts were made available to MIP and certain other third parties that participated in the sale process in the course of their diligence review. The Board reviewed the assumptions underlying the December Forecasts and the differences between the

 

59

December Forecasts and the September Forecasts with management and approved the December Forecasts for Morgan Stanley and Moelis’ use for purposes of its financial analysis summarized in the section entitled “The Merger—Opinion of the Company’s Financial Advisors” beginning on page 60.

The following table sets forth a summary of the December Forecasts:

Fiscal Year ending December 31,

 

		2020E				2021E				2022E				2023E				2024E
($ millions)
Revenue		$	1,562			$	1,591			$	1,646			$	1,707			$	1,775
Adjusted EBITDA(1)			411				430				446				463				479
Capital Expenditures			245				236				234				234				237
Unlevered Free Cash Flow(2)(3)		$	166			$	194			$	212			$	229			$	242

 

(1)	“Adjusted EBITDA” is defined as operating income plus depreciation, amortization, stock based compensation, restructuring and severance related charges, any gains or losses on the sale or disposal of assets, transaction and integration costs, asset impairments and other special items.

(2)	“Unlevered Free Cash Flow” is defined as Adjusted EBITDA less capital expenditures.

(3)

For purposes of their respective discounted cash flow analyses the Company’s financial advisors, using the Financial Forecasts, calculated Unlevered Free Cash Flow as: Adjusted EBITDA less stock based compensation and less depreciation and amortization, then subtracting for taxes, plus depreciation and amortization, less capital expenditures, less pension and OPEB payments, less changes in working capital, less restructuring and severance costs, less integration costs. This resulted in the following calculations of Unlevered Free Cash Flow: $103 for 2020E, $108 for 2021E, $135 2022E, $147 for 2023E and $159 for 2024E.

Opinion of the Company’s Financial Advisors

Opinion of Morgan Stanley & Co. LLC

Morgan Stanley was retained by the Board to act as its financial advisor in connection with a potential sale of the Company. The Board selected Morgan Stanley to act as its financial advisor based on Morgan Stanley’s qualifications, expertise and reputation, its knowledge of and involvement in recent transactions in the Company’s industry and its knowledge and understanding of the business and affairs of the Company. On March 12, 2020, Morgan Stanley rendered its oral opinion, which was subsequently confirmed in writing, to the Board to the effect that, as of that date, and subject to the assumptions made, procedures followed, matters considered and qualifications and limitations on the scope of review undertaken by Morgan Stanley as set forth in Morgan Stanley’s written opinion, the merger consideration to be received by the holders of Company common shares, pursuant to the merger agreement, was fair, from a financial point of view, to the holders of Company common shares (other than Parent and its affiliates).

The full text of the written opinion of Morgan Stanley delivered to the Board, dated March 12, 2020, is attached as Annex B and incorporated by reference into this proxy statement in its entirety. The opinion sets forth, among other things, the assumptions made, procedures followed, matters considered and qualifications and limitations on the scope of the review undertaken by Morgan Stanley in rendering its opinion. Shareholders of the Company are urged to, and should, read the opinion carefully and in its entirety. Morgan Stanley’s opinion is directed to the Board and addresses only the fairness, from a financial point of view, as of the date of such opinion, of the merger consideration to be paid to the holders of Company common shares (other than Parent and its affiliates), pursuant to the merger agreement. Morgan Stanley’s opinion did not address any other aspect of the transactions contemplated by the merger agreement and did not address any other aspects or implications of the merger. Morgan Stanley’s opinion

 

60

was not intended to, and does not constitute advice or a recommendation as to how shareholders of the Company should vote at the special meeting or to take any other action with respect to the merger. The summary of Morgan Stanley’s opinion set forth in this proxy statement is qualified in its entirety by reference to the full text of Morgan Stanley’s opinion.

For purposes of rendering its opinion, Morgan Stanley, among other things:

 

•

reviewed certain publicly available financial statements and other business and financial information of the Company;

 

•

reviewed certain internal financial statements and other financial and operating data concerning the Company;

 

•

reviewed certain financial projections prepared by the management of the Company as further described in the section of this proxy statement entitled “The Merger—Financial Forecasts” beginning on page 57;

 

•

discussed the past and current operations and financial condition and the prospects of the Company with senior executives of the Company;

 

•

reviewed the reported prices and trading activity for the Company common shares;

 

•

compared the financial performance of the Company and the prices and trading activity of the Company common shares with that of certain other publicly traded companies comparable with the Company, and their securities;

 

•

reviewed the financial terms, to the extent publicly available, of certain comparable acquisition transactions;

 

•

participated in certain discussions and negotiations among representatives of the Company and Parent and certain parties and their financial and legal advisors;

 

•

reviewed the merger agreement; the equity commitment letters; the debt commitment letters; and certain related documents; and

 

•

performed such other analyses, reviewed such other information and considered such other factors as Morgan Stanley deemed appropriate.

In arriving at its opinion, Morgan Stanley assumed and relied upon, without independent verification, the accuracy and completeness of the information that was publicly available or supplied or otherwise made available to Morgan Stanley by the Company, and formed a substantial basis for Morgan Stanley’s opinion. With respect to the December Forecasts, Morgan Stanley assumed that they had been reasonably prepared on bases reflecting the then best currently available estimates and judgments of the management of the Company of the future financial performance of the Company. In addition, Morgan Stanley assumed that the merger will be consummated in accordance with the terms set forth in the merger agreement without any waiver, amendment or delay of any terms or conditions, including, among other things, that Parent and Merger Sub will obtain financing in accordance with the terms set forth in the commitment letters and that the merger agreement would not differ in any material respects from the draft thereof furnished to Morgan Stanley. Morgan Stanley assumed that in connection with the receipt of all the necessary governmental, regulatory or other approvals and consents required for the merger, no delays, limitations, conditions or restrictions will be imposed that would have a material adverse effect on the contemplated benefits expected to be derived in the merger. Morgan Stanley is not a legal, tax or regulatory advisor. Morgan Stanley is a financial advisor only and relied upon, without independent verification, the assessment of the Company and its legal, tax and regulatory advisors with respect to legal, tax and regulatory matters. Morgan Stanley expressed no opinion with respect to the fairness of the amount or nature of the compensation to any of the Company’s officers, directors or employees, or any class of such persons, relative to the merger consideration to be received by the holders of Company common shares in the merger. Morgan Stanley also expressed no opinion as to the fairness of any consideration payable to holders of

 

61

any class of securities of the Company other than the Company common shares as of the date of its opinion (including, without limitation, any series of preferred stock of the Company). Morgan Stanley did not make any independent valuation or appraisal of the assets or liabilities of the Company, nor was Morgan Stanley furnished with any such valuations or appraisals. Morgan Stanley’s opinion was necessarily based on financial, economic, market and other conditions as in effect on, and the information made available to Morgan Stanley as of, March 12, 2020. Events occurring after such date may affect Morgan Stanley’s opinion and the assumptions used in preparing it, and Morgan Stanley did not assume any obligation to update, revise or reaffirm its opinion.

Summary of Financial Analyses

The following is a summary of the material financial analyses performed by Morgan Stanley in connection with its oral opinion delivered on March 12, 2020 and the preparation of its written opinion letter dated March 12, 2020 to the Board. The following summary is not a complete description of Morgan Stanley’s opinion or the financial analyses performed and factors considered by Morgan Stanley in connection with its opinion, nor does the order of analyses described represent the relative importance or weight given to those analyses. The financial analyses summarized below include information presented in tabular format. In order to fully understand the financial analyses used by Morgan Stanley, the tables must be read together with the text of each summary. The tables alone do not constitute a complete description of the financial analyses. The analyses listed in the tables and described below must be considered as a whole; considering any portion of such analyses and of the factors, without considering all analyses and factors, could create a misleading or incomplete view of the process underlying Morgan Stanley’s opinion. Except as otherwise noted, the following quantitative information, to the extent that it is based on market data, is based on market data as it existed on or before March 11, 2020, which was the last full trading day prior to the meeting of the Board to approve the merger agreement, the merger and the other transactions contemplated by the merger agreement and is not necessarily indicative of current market conditions.

In performing the financial analysis summarized below and arriving at its opinion, Morgan Stanley used and relied upon the December Forecasts, which are more fully described above under the section of this proxy statement entitled “The Merger—Financial Forecasts.”

Public Trading Comparable Companies Analysis

Morgan Stanley performed a public trading comparable companies analysis, which attempts to provide an implied value of a company by comparing it to similar companies that are publicly traded. Morgan Stanley reviewed and compared certain financial estimates for the Company with comparable publicly available consensus equity analyst research estimates for certain selected companies (the “Comparable Companies”) that Morgan Stanley determined, upon the application of its professional judgment and experience with companies in the wireline, cable and information technology services industries, to be similar to the Company’s current and anticipated operations for purposes of this analysis. The following list sets forth the Comparable Companies that were reviewed in connection with this analysis:

Entertainment & Communications (“E&C”) Comparable Companies

 

•

Altice USA, Inc.

 

•

Cable One, Inc. (pro forma financial information adjusted to reflect acquisition of Fidelity Communications Co.)

 

•

CenturyLink, Inc.

 

•

Charter Communications, Inc.

 

•

Consolidated Communications Holdings, Inc.

 

•

Frontier Communications Corporation

 

•

WideOpenWest, Inc.

 

62

Information Technology Services (“ITS”) Comparable Companies

 

•

CDW Corporation

 

•

ePlus inc.

 

•

Insight Enterprises, Inc.

For purposes of this analysis, Morgan Stanley analyzed the ratio of aggregate value (“AV”) (calculated as fully diluted market capitalization unadjusted for net operating losses and pension liabilities plus debt, preferred equity and non-controlling interest (as applicable) less cash, cash equivalents and marketable securities) to EBITDA (calculated as earnings before interest, tax, depreciation and amortization) (the “AV / EBITDA Ratio”) for calendar year 2020 for each of the Comparable Companies based on publicly available financial information for comparison purposes. For purposes of this analysis of the Comparable Companies, Morgan Stanley utilized publicly available estimates of EBITDA as compiled by Capital IQ, prepared by equity research analysts, available as of March 11, 2020 (the last full trading day prior to the date on which Morgan Stanley rendered its opinion).

The Comparable Companies and their applicable ratios were the following:

 

Comparable Company (E&C)		Market Cap ($ in millions)				Enterprise Value ($ in millions)				2020 AV/ EBITDA
CenturyLink, Inc.		$	11,454			$	44,795				5.0x
Consolidated Communications Holdings, Inc.		$	436			$	2,611				5.0x
Frontier Communications Corporation		$	34			$	15,519				5.3x
Altice USA, Inc.		$	14,299			$	38,423				8.8x
Cable One, Inc.		$	8,670			$	10,304				16.0x	1
Charter Communications, Inc.		$	109,220			$	191,251				10.5x
WideOpenWest, Inc.		$	344			$	2,630				6.1x
Comparable Company (ITS)		Market Cap ($ in millions)				Enterprise Value ($ in millions)				2020 AV/ EBITDA
CDW Corporation		$	14,928			$	18,112				11.0x
ePlus inc.		$	873			$	1,038				8.6x
Insight Enterprises, Inc.		$	1,660			$	2,658				6.8x

Based on its analysis of the relevant metrics for each of the Comparable Companies and upon the application of its professional judgment and experience, Morgan Stanley selected a representative range of the AV / EBITDA Ratio for the calendar year 2020 as noted below based on the multiples for CenturyLink, Inc., Consolidated Communications Holdings, Inc. and WideOpenWest, Inc. and applied this range of multiples to the Company’s 2020 Adjusted EBITDA as set forth in the December Forecasts. Morgan Stanley focused on these three Comparable Companies because Morgan Stanley determined that each such company had a business model, asset base and financial performance history most similar to that of the Company.

Based on the outstanding Company common shares on a fully diluted basis of 52.5 million shares as of March 6, 2020 (calculated using the treasury stock method), net debt of $1,934 million and preferred equity

of $155 million as of December 31, 2019, Morgan Stanley calculated an estimated implied value per Company common share, rounded to the nearest $0.25, as follows:

 

		Selected Comparable Companies Multiples Range		Implied Value Per Share
2020 AV / EBITDA		5.25x - 6.0x		$1.25 - $7.25

 

1	Pro forma for acquisition of Fidelity Communications.

 

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No company utilized in the public trading comparable companies analysis is identical to the Company and hence the foregoing summary and underlying financial analyses involved complex considerations and judgments concerning differences in financial and operating characteristics and other factors that could affect the public trading or other values of the companies to which the Company was compared. In evaluating comparable companies, Morgan Stanley made judgments and assumptions with regard to industry performance, general business, economic, market and financial conditions and other matters, many of which are beyond the control of the Company. These include, among other things, the impact of competition on the business of the Company and the industry generally, industry growth and the absence of any adverse material change in the financial condition and prospects of the Company or the industry or in the financial markets in general. Mathematical analysis is not in itself a meaningful method of using selected company data.

Discounted Future Equity Value Analysis

Morgan Stanley performed a discounted equity value analysis, which is designed to provide insight into the potential future equity value of a company as a function of that company’s EBITDA. The resulting equity value is subsequently discounted to arrive at an estimate of the implied present value. In connection with this analysis, Morgan Stanley calculated a range of implied present equity values per Company common share on a standalone basis.

To calculate the discounted equity value using the Company’s Adjusted EBITDA, Morgan Stanley used Adjusted EBITDA from the December Forecasts for 2023. Based upon the application of its professional judgment and experience, Morgan Stanley applied a range of AV / EBITDA Ratios (based on the range of AV / EBITDA Ratios for the Comparable Companies) to this estimate. Morgan Stanley then subtracted the future amount of net debt and preferred equity as provided by Company management in order to calculate the implied future equity value. Morgan Stanley’s calculations did not account for any potential refinancings over the course of the projection period. Morgan Stanley then applied a range of discount rates between 10.6% and 11.8%, which range was selected based on the estimated cost of equity to calculate the discounted equity value and upon the application of Morgan Stanley’s professional judgment and experience, to calculate the discounted share price rounded to the nearest $0.25.

Morgan Stanley calculated an implied present value per share range of $6.50—$11.25.

Sum-of-the-Parts Analysis

Morgan Stanley performed a sum-of-the-parts valuation analysis on the Company. A sum-of-the-parts analysis involves a valuation of a company on a segment-by-segment basis to determine an implied value for the enterprise as a whole. Morgan Stanley performed the sum-of-the-parts valuation analysis for the following business segments of the Company based on the Company’s estimated 2020 Adjusted EBITDA: E&C, ITS and corporate overhead. Based on its review and professional judgment, Morgan Stanley selected reference ranges of AV / EBITDA Ratio for the Company’s E&C, ITS and corporate overhead segments as noted below and applied these ranges to the estimated Adjusted EBITDA of the respective business segments of the Company for 2020.

 

						Selected Multiple Reference Range								Implied Value ($ in millions)
Segment		2020 Adjusted EBITDA ($ in millions)				Low				High				Low				High
E&C			369				5.25x				6.00x				1,937				2,214
ITS			62				7.00x				9.00x				436				561
Corporate			(20	)			5.50x				6.43x				(112	)			(131	)

Morgan Stanley then aggregated the implied values for each business segment based on the analysis above and deducted the net debt of the Company as of year end 2019 (which was $1,934 million) and value of preferred

 

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equity (which was $155 million) to derive an implied equity value reference range per Company common share on a fully diluted basis, rounded to the nearest $0.25, of $3.25 to $10.50. Morgan Stanley noted that the closing price per Company common share on December 20, 2019 was $7.72.

Discounted Cash Flow Analysis

Morgan Stanley performed a discounted cash flow analysis, which is designed to provide an implied value of a company by calculating the present value of future unlevered free cash flows and terminal value of that company. The “unlevered free cash flows” refers to a calculation of the future cash flows generated by a company without including in such calculation any debt servicing costs. The present value of a terminal value, representing the value of unlevered free cash flows beyond the end of the forecast period, is added to arrive at a total aggregate value. Outstanding debt and preferred equity is subtracted to arrive at an equity value. For purposes of the DCF analysis, net debt of $1,934 million and preferred equity of $155 million, each as of December 31, 2019, was utilized. The equity value was then divided by the fully diluted share count as of March 6, 2020 in order to arrive at an implied value per Company common share.

Morgan Stanley used estimates from the December Forecasts for purposes of the discounted cash flow analysis, as more fully described below. Morgan Stanley first calculated the estimated unlevered free cash flows, which it defined as Adjusted EBITDA less stock-based compensation and less depreciation and amortization, then subtracting for taxes, plus depreciation and amortization, less capital expenditures, less pension and OPEB payments, less changes in working capital, less restructuring and severance costs, less integration costs. The estimated unlevered free cash flows were then discounted to present values as of December 31, 2019 using a range of discount rates from 7.0% to 7.4%, which range of discount rates were selected, upon the application of Morgan Stanley’s professional judgment and experience, to reflect an estimate of the Company’s weighted average cost of capital (“WACC”). Morgan Stanley then calculated a range of implied terminal values for the Company by applying a range of exit multiples from 5.25x to 6.0x to the Company’s terminal year estimated Adjusted EBITDA.

This analysis reflected a range of implied equity value per Company common share, rounded to the nearest $0.25, of $4.75 to $10.50. In addition, Morgan Stanley conducted an illustrative calculation of the cash flow impact from the Company’s utilization of net operating losses (“NOLs”) for such period, as provided by Company management, discounted at the Company’s estimated WACC. In calculating the cash flow impact of NOLs, Morgan Stanley noted that the value of NOLs was subject to substantial revision based on further input from Company management. At the Company’s direction, Morgan Stanley assumed that NOL usage would be kept constant until the NOL balance was fully depleted. Morgan Stanley noted for the reference of the Board, and not as part of Morgan Stanley’s financial analysis at arriving at its opinion, that the illustrative calculation of NOLs indicated a range of implied equity value per Company common share, rounded to the nearest $0.25, of $4.75 to $13.00.

Other Information

Morgan Stanley observed additional factors that were not considered part of Morgan Stanley’s financial analysis with respect to its opinion, but which were noted as reference data for the Board, including the following.

Historical Trading Range

For reference only, and not as a component of its fairness analysis, Morgan Stanley reviewed the historical trading range of the Company common shares for the period commencing on December 20, 2018, and ending on December 20, 2019 (the last trading day prior to the public announcement of the Company’s entry into the original Brookfield merger agreement). Morgan Stanley observed that, during this period, the high and low intraday prices of the Company common shares, rounded to the nearest $0.25, were $11.00 (on February 20, 2019) and $3.25 (on August 7, 2019) per share, respectively.

 

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Equity Research Analysts’ Price Targets

For reference only, and not as a component of its fairness analysis, Morgan Stanley reviewed and analyzed the future public market trading price targets for the Company common shares prepared and published by three equity research analysts as of November 7, 2019 and by one equity research analyst as of November 11, 2019. These targets reflected each analyst’s estimate of the future public market trading price of the Company common shares. The range of undiscounted analyst price targets for the Company common shares, rounded to the nearest $0.25, was $4.00 to $8.00. Morgan Stanley then discounted the range of analyst price targets for Company common shares to present value by applying, for a one year discount period, a discount rate of 10.6%, selected by Morgan Stanley based on the application of its professional judgment and experience to reflect the Company’s cost of equity. This analysis resulted in a discounted analyst price target range for the Company common shares, rounded to the nearest $0.25, of $3.75 to $7.25.

The public market trading price targets published by equity research analysts do not necessarily reflect current market trading prices for the Company common shares, and these estimates are subject to uncertainties, including the future financial performance of the Company and future financial market conditions.

Precedent Transactions Analysis

For reference only, and not as a component of its fairness analysis, Morgan Stanley performed a precedent transactions analysis, which is designed to imply a value of a company based on publicly available financial terms that share some characteristics with the merger. Morgan Stanley compared publicly available statistics for the following transactions involving businesses that Morgan Stanley judged to be similar in certain respects to the Company’s business or aspects thereof based on Morgan Stanley’s professional judgment and experience:

 

Date Announced		Acquirer		Target		Enterprise Value (in billions)
December 2016		Consolidated Communications, Inc.		FairPoint Communications, Inc.		$	1.5
July 2017		Cincinnati Bell Inc.		Hawaiian Telcom Holdco Inc.		$	0.7
May 2019		Searchlight Capital Partners, LLC		Frontier Communications Corp. (northwest operations)		$	1.4

For each transaction, Morgan Stanley noted the ratio of the AV of the transaction to each of the target company’s EBITDA for the 12-month period prior to the announcement date of the applicable transaction (“LTM EBITDA,” and the ratio of AV to LTM EBITDA, the “AV / LTM EBITDA Ratio”). Based on its analysis of the relevant metrics for the comparable transactions and upon the application of its professional judgment, Morgan Stanley then applied AV / LTM EBITDA Ratios of 5.0x, 5.6x and 5.9x, representing the AV / LTM EBITDA Ratios for the three recent transactions in the local exchange carrier industry noted above that Morgan Stanley determined to be most relevant, to the Company’s actual LTM EBITDA. Based on the outstanding Company common shares on a fully diluted basis of 52.5 million shares as of March 6, 2020 (calculated using the treasury stock method), net debt of $1,934 million and preferred equity of $155 million, each as of December 31, 2019, Morgan Stanley calculated an estimated implied present value per Company common share, rounded to the nearest $0.25, of ($1.50), $3.50 and $5.75.

No company or transaction utilized in the precedent transactions analysis is identical to the Company or the merger. In evaluating the precedent transactions, Morgan Stanley made numerous assumptions with respect to industry performance, general business, regulatory, economic, market and financial conditions and other matters, many of which are beyond the control of the Company. These include, among other things, the impact of competition on the Company’s business and the industry generally, industry growth, and the absence of any adverse material change in the financial condition and prospects of the Company and the industry, and in the financial markets in general, which could affect the public trading value of the companies and the aggregate value and equity value of the transactions to which they are being compared.

 

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General

In connection with the review of the merger by the Board, Morgan Stanley performed a variety of financial and comparative analyses for purposes of rendering its opinion. The preparation of a financial opinion is a complex process and is not necessarily susceptible to a partial analysis or summary description. In arriving at its opinion, Morgan Stanley considered the results of all of its analyses as a whole and did not attribute any particular weight to any analysis or factor it considered. Morgan Stanley believes that selecting any portion of its analyses, without considering all analyses as a whole, would create an incomplete view of the process underlying its analyses and opinion. In addition, Morgan Stanley may have given various analyses and factors more or less weight than other analyses and factors, and may have deemed various assumptions more or less probable than other assumptions. As a result, the ranges of valuations resulting from any particular analysis described above should not be taken to be Morgan Stanley’s view of the actual value of the Company.

In performing its analyses, Morgan Stanley made numerous assumptions with regard to industry performance, general business, regulatory, economic, market and financial conditions and other matters, which are beyond the control of the Company. These include, among other things, the impact of competition on the business of the Company and the industry generally, industry growth, and the absence of any adverse material change in the financial condition and prospects of the Company and the industry, and in the financial markets in general. Any estimates contained in Morgan Stanley’s analyses are not necessarily indicative of future results or actual values, which may be significantly more or less favorable than those suggested by such estimates.

Morgan Stanley conducted the analyses described above solely as part of its analysis of the fairness, from a financial point of view, of the merger consideration to be received by the holders of Company common shares (other than Parent and its affiliates) pursuant to the merger agreement and in connection with the delivery of its oral opinion on March 12, 2020 to the Board (and subsequently delivered written opinion dated March 12, 2020). These analyses do not purport to be appraisals or to reflect the prices at which the Company common shares might actually trade.

The merger consideration was determined through arm’s-length negotiations between the Company and Parent and was approved by the Board. Morgan Stanley acted as financial advisor to the Board during these negotiations but did not, however, recommend any specific form or amount of consideration to the Company or the Board, nor did Morgan Stanley opine that any specific form or amount of consideration constituted the only appropriate consideration for the merger. Morgan Stanley’s opinion was not intended to, and does not, constitute advice or a recommendation as to how shareholders should vote at the special meeting, or whether shareholders should take any other action in connection with the merger. In addition, Morgan Stanley’s opinion did not in any manner address the prices at which the Company common shares will trade at any time.

Morgan Stanley’s opinion and its presentation to the Board was one of many factors taken into consideration by the Board in deciding to approve the original merger agreement, the merger and the other transactions contemplated by the original merger agreement and to declare the advisability of the merger and the other transactions contemplated by the original merger agreement. Consequently, the analyses as described above should not be viewed as determinative of the opinion of the Board with respect to the consideration pursuant to the merger agreement or of whether the Board would have been willing to agree to different consideration. Morgan Stanley’s opinion was approved by a committee of Morgan Stanley investment banking and other professionals in accordance with Morgan Stanley’s customary practice.

Morgan Stanley, together with its affiliates, is a global financial services firm engaged in the securities, investment management and individual wealth management businesses. Its securities business is engaged in securities underwriting, trading and brokerage activities, foreign exchange, commodities and derivatives trading, prime brokerage, as well as providing investment banking, financing and financial advisory services. Morgan Stanley, its affiliates, directors and officers may at any time invest on a principal basis or manage funds that invest, hold long or short positions, finance positions, and may trade or otherwise structure and effect

 

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transactions, for their own account or the accounts of its customers, in debt or equity securities or loans of Parent or any of its affiliates, the Company, or any other company, or any currency or commodity, that may be involved in the merger, or any related derivative instrument.

Under the terms of its engagement letter, Morgan Stanley provided the Company financial advisory services and a financial opinion, described in this section and attached to this proxy statement as Annex B, in connection with the merger, and the Company has agreed to pay Morgan Stanley a fee of approximately $25 million for its financial advisory services, $5 million of which was payable in connection with the delivery of the financial opinion as of December 21, 2019 with respect to the proposed Brookfield merger pursuant to the original Brookfield merger agreement and approximately $20 million of which is contingent upon consummation of the merger. The Company has also agreed to reimburse Morgan Stanley for its reasonable and documented expenses incurred from time to time in connection with this engagement. In addition, the Company has agreed to indemnify Morgan Stanley and its affiliates, its and their respective directors, officers, employees and agents and each other person, if any, controlling Morgan Stanley or any of its affiliates, against any losses, claims, damages or liabilities, relating to, arising out of or in connection with Morgan Stanley’s engagement and to reimburse certain expenses relating to such indemnity.

In the two years prior to the date of its opinion, Morgan Stanley has provided financial advisory and financing services for the Company and has received aggregate fees in connection with such services of approximately $15 million ($5 million of which was the fee paid upon the delivery of the fairness opinion in connection with the entry into the original Brookfield merger agreement). In the two years prior to the date of its opinion, Morgan Stanley has provided financial advisory services for MIRA and its affiliates and has received aggregate fees in connection with such services of approximately $9 million. In the two years prior to the date of its opinion, Morgan Stanley has provided financial advisory and financing services for Ares Management and its affiliates and has received aggregate fees in connection with such services of approximately $22 million. In the two years prior to the date of its opinion, Morgan Stanley has provided financial advisory and financing services for Brookfield Infrastructure and its affiliates and has received aggregate fees in connection with such services of approximately $61 million. In addition, Morgan Stanley, its affiliates, directors or officers, including individuals working with the Company in connection with this transaction, may have committed and may commit in the future to invest in private equity funds managed by affiliates of MIRA or Ares Management.

Opinion of Moelis & Company LLC

At a meeting of the Board held on March 12, 2020 to evaluate and approve the merger, Moelis rendered its oral opinion to the Board, confirmed by the delivery of a written opinion dated March 13, 2020, addressed to the Board to the effect that, as of the date of such opinion and based upon and subject to the conditions and limitations set forth in the opinion, the merger consideration to be received in the merger by the holders of the Company common shares (other than the Excluded Holders) was fair, from a financial point of view, to such holders.

The full text of Moelis’ written opinion dated March 13, 2020, which sets forth the assumptions made, procedures followed, matters considered and limitations on the review undertaken in connection with the opinion, is attached as Annex C to this proxy statement and is incorporated herein by reference. Moelis’ opinion was provided for the use and benefit of the Board (solely in its capacity as such) in its evaluation of the merger. Moelis’ opinion is limited solely to the fairness, from a financial point of view, of the merger consideration to be received by the holders of the Company common shares (other than Excluded Holders) and does not address the Company’s underlying business decision to effect the merger or the relative merits of the merger as compared to any alternative business strategies or transactions that might be available to the Company. Moelis’ opinion does not constitute a recommendation as to how any holder of securities should vote or act with respect to the merger or any other matter. Moelis’ opinion was approved by a Moelis fairness opinion committee.

 

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In arriving at its opinion, Moelis, among other things:

 

•

reviewed certain publicly available business and financial information relating to the Company;

 

•

reviewed certain internal information relating to the business, earnings, cash flow, assets, liabilities and prospects of the Company furnished to Moelis by the Company, including the December Forecasts;

 

•

reviewed capitalization information for the Company provided by the Company;

 

•

conducted discussions with members of the senior management and representatives of the Company concerning the information described in the three immediately preceding bullets, as well as the business and prospects of the Company generally;

 

•

reviewed publicly available financial and stock market data of certain other companies in lines of business that Moelis deemed relevant;

 

•

reviewed the financial terms of certain other transactions that Moelis deemed relevant;

 

•

reviewed the draft merger agreement submitted by Parent on March 5, 2020;

 

•

participated in certain discussions and negotiations among representatives of the Company and Parent and their advisors; and

 

•

conducted such other financial studies and analyses and took into account such other information as Moelis deemed appropriate.

In connection with its review, with the consent of the Board, Moelis relied on the information supplied to, discussed with or reviewed by it for purposes of its opinion being complete and accurate in all material respects. Moelis did not assume any responsibility for independent verification of, and did not independently verify, any of such information. With the consent of the Board, Moelis relied upon, without independent verification, the assessment of the Company and its legal, tax, regulatory and accounting advisors with respect to legal, tax, regulatory and accounting matters. With respect to the December Forecasts referred to above Moelis assumed, at the direction of the Board, that they were reasonably prepared on a basis reflecting the best currently available estimates and judgments of the Company’s management as to the future performance of the Company. Moelis expressed no views as to the reasonableness of the December Forecasts or the assumptions on which they were based. In addition, with the consent of the Board, Moelis did not make any independent evaluation or appraisal of any of the assets or liabilities (contingent, derivative, off-balance-sheet, or otherwise) of the Company, nor was Moelis furnished with any such evaluation or appraisal.

Moelis’ opinion did not address the Company’s underlying business decision to effect the merger or the relative merits of the merger as compared to any alternative business strategies or transactions that might be available to the Company. Moelis’ opinion did not address the terms of any financing of the merger, including the likelihood of completion of any such financing, or any financing of alternative transactions that might be available to the Company. Moelis’ opinion did not address any legal, regulatory, tax or accounting matters. At the direction of the Board, Moelis was not asked to, nor did it, offer any opinion as to any terms of the merger agreement or any aspect or implication of the merger (including, without limitation, the timing of the merger as compared to the timing of any alternative transactions that might be available to the Company), except for the fairness of the merger consideration from a financial point of view to the holders of the Company common shares (other than the Excluded Holders). Moelis did not express any opinion as to the fair value or solvency of the Company following the closing of the merger. In addition, Moelis noted that pursuant to the merger agreement, Company common shares owned by the Company, Parent, Merger Sub or any of their wholly-owned subsidiaries and dissenting shares will not be converted into the right to receive the merger consideration and Moelis expressed no opinion with respect to such shares or as to the fairness of the merger consideration to holders thereof. In addition, Moelis noted that the 6¾% preferred shares will remain outstanding immediately following the merger and Moelis expressed no opinion with respect to such shares, the treatment thereof in the merger, or the fairness of the merger consideration relative to the treatment of such shares. In rendering its

 

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