UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

SCHEDULE 13D/A

 

Under the Securities Exchange Act of 1934

(Amendment No. 7)*

 

(Name of Issuer)

 

(Title of Class of Securities)

 

(CUSIP Number)

 

(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)

 

(Date of Event Which Requires Filing of this Statement)

 

If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of §§240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box. o

 

Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See §240.13d-7 for other parties to whom copies are to be sent.

 

* The remainder of this cover page shall be filled out for a reporting person’s initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page.

 

The information required on the remainder of this cover page shall not be deemed to be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934 (“Act”) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).

 

Persons who respond to the collection of information contained in this form are not required to respond unless the form displays a currently valid OMB control number.

 

 

 

* The calculation of the percentage of outstanding shares is based on 50,529,765 shares of Common Shares (as defined herein) outstanding as of January 31, 2020 as disclosed by the Issuer (as defined herein) in its annual report on Form 10-K, filed with the Securities and Exchange Commission on February 24, 2020 (the “10-K”).

 

2

 

 

* The calculation of the percentage of outstanding shares is based on 50,529,765 shares of Common Shares outstanding as of January 31, 2020 as disclosed by the Issuer in the 10-K.

 

3

 

 

* The calculation of the percentage of outstanding shares is based on 50,529,765 shares of Common Shares outstanding as of January 31, 2020 as disclosed by the Issuer in the 10-K.

 

4

 

 

* The calculation of the percentage of outstanding shares is based on 50,529,765 shares of Common Shares outstanding as of January 31, 2020 as disclosed by the Issuer in the 10-K.

 

5

 

 

* The calculation of the percentage of outstanding shares is based on 50,529,765 shares of Common Shares outstanding as of January 31, 2020 as disclosed by the Issuer in the 10-K.

 

6

 

 

**  Denotes less than.

*  The calculation of the percentage of outstanding shares is based on 50,529,765 shares of Common Shares outstanding as of January 31, 2020 as disclosed by the Issuer in the 10-K.

 

7

 

 

**  Denotes less than.

*  The calculation of the percentage of outstanding shares is based on 50,529,765 shares of Common Shares outstanding as of January 31, 2020 as disclosed by the Issuer in the 10-K.

 

8

 

 

*  The calculation of the percentage of outstanding shares is based on 50,529,765 shares of Common Shares outstanding as of January 31, 2020 as disclosed by the Issuer in the 10-K.

 

9

 

 

*  The calculation of the percentage of outstanding shares is based on 50,529,765 shares of Common Shares outstanding as of January 31, 2020 as disclosed by the Issuer in the 10-K.

 

10

 

 

*  The calculation of the percentage of outstanding shares is based on 50,529,765 shares of Common Shares outstanding as of January 31, 2020 as disclosed by the Issuer in the 10-K.

 

11

 

 

*  The calculation of the percentage of outstanding shares is based on 50,529,765 shares of Common Shares outstanding as of January 31, 2020 as disclosed by the Issuer in the 10-K.

 

12

 

 

*  The calculation of the percentage of outstanding shares is based on 50,529,765 shares of Common Shares outstanding as of January 31, 2020 as disclosed by the Issuer in the 10-K.

 

13

 

 

*  The calculation of the percentage of outstanding shares is based on 50,529,765 shares of Common Shares outstanding as of January 31, 2020 as disclosed by the Issuer in the 10-K.

 

14

 

 

*  The calculation of the percentage of outstanding shares is based on 50,529,765 shares of Common Shares outstanding as of January 31, 2020 as disclosed by the Issuer in the 10-K.

 

15

 

 

*  The calculation of the percentage of outstanding shares is based on 50,529,765 shares of Common Shares outstanding as of January 31, 2020 as disclosed by the Issuer in the 10-K.

 

16

 

Explanatory Note

 

This Amendment No. 7 (this “Amendment No. 7”) to the statement on Schedule 13D amends and supplements the statement on Schedule 13D filed by certain of the Reporting Persons on September 7, 2018 (the “Original Schedule 13D”), as amended by Amendment No. 1 to the Original Schedule 13D filed by certain of the Reporting Persons on November 9, 2018, Amendment No. 2 to the Original Schedule 13D filed by certain of the Reporting Persons on November 21, 2018, Amendment No. 3 to the Original Schedule 13D filed by certain of the Reporting Persons on December 11, 2018, Amendment No. 4 to the Original Schedule 13D filed by certain of the Reporting Persons on April 10, 2019, Amendment No. 5 to the Original Schedule 13D filed by the Reporting Persons on March 2, 2020 and Amendment No. 6 to the Original Schedule 13D filed by the Reporting Persons on March 5, 2020 (as so amended, the “13D Filing”, and together with this Amendment No. 7, the “Schedule 13D”). Except as amended in this Amendment No. 7, the 13D Filing remains in full force and effect. Terms defined in the 13D Filing are used in this Amendment No. 7 as so defined in the 13D Filing, unless otherwise defined in this Amendment No. 7.

 

Item 2. Identity and Background

 

The last sentence of Item 2(a) is amended and restated as follows:

 

The Reporting Persons have entered into a joint filing agreement, dated as of March 6, 2020, a copy of which is attached to this Schedule 13D as Exhibit 99.25.

 

Item 3. Source and Amount of Funds or Other Consideration

 

Item 3 of the 13D Filing is amended and restated in its entirety as follows:

 

The disclosures under the heading “The Equity Funding Letters and Updated Equity Funding Letters” under Item 4 are incorporated by reference into this Item 3.

 

Item 4. Purpose of Transaction

 

Item 4 of the 13D Filing is hereby amended by adding the following disclosure after the last paragraph under the heading “Binding Offer Letter”:

 

On March 5, 2020, the Issuer issued a press release announcing that it had entered into a third amendment (the “Third Brookfield Amendment”) to the Brookfield Merger Agreement, which increased the merger consideration payable to each holder of Common Shares to $14.50 per Common Share in cash, from $13.50 in cash, and increased the termination fee payable by the Issuer in certain circumstances to $24.8 million from $23.1 million.

 

Subsequently on March 5, 2020, the MIP V Affiliates submitted a letter to the Board amending the March 4th Amended Offer (the “March 5th Amended Proposal”) to increase the merger consideration payable to each holder of Common Shares to $15.50 per Common Share in cash, from $14.50 in cash (the “March 5th Amended Offer”). The terms and conditions of the March 5th Amended Offer were set forth in the March 5th Amended Proposal and the documents attached to the March 5th Amended Proposal, including, among other documents (i) a further updated Merger Agreement (the “March 5th Merger Agreement”), (ii) further updated equity funding letters (the “March 5th Equity Funding Letters”); and (iii) further amended Limited Guarantees (the “March 5th Limited Guarantees” and together with the March 5th Merger Agreement and the March 5th Equity Funding Letters, the “March 5th Offer Transaction Documents”). The March 5th Amended Proposal provided that the March 5th Amended Offer would be automatically withdrawn and revoked with no further action required, and the March 5th Offer Transaction Documents would be deemed null and void on the earlier to occur of: (a) the time at which the Issuer notifies the MIP V Affiliates in writing that it is not accepting the March 5th Amended Offer; and (b) 11:59 p.m. New York time on March 13, 2020, if the Issuer has not delivered an executed signature page to the March 5th Merger Agreement by such time. The foregoing description of the March 5th Amended Proposal does not purport to be complete and is qualified in its entirety by reference to the terms and conditions of the March 5th Amended Proposal, a copy of which is filed as Exhibit 99.26 to the Schedule 13D and is incorporated by reference in its entirety into this Item 4.

 

17

 

Item 4 of the 13D Filing is hereby amended by adding the following disclosure after the last paragraph under the heading “The Merger Agreement and Updated Merger Agreement”:

 

On March 5, 2020, and in connection with the March 5th Amended Proposal, the MIP V Affiliates submitted the March 5th Merger Agreement which sets forth the definitive terms pursuant to which, if executed by the Issuer prior to 11:59 p.m. New York time on March 13, 2020, the MIP V Affiliates will acquire 100% of the outstanding Common Shares for cash consideration of $15.50 per Common Share, payable at the closing of the Merger.  The March 5th Merger Agreement contains substantially similar terms as the March 4th Merger Agreement, but (i) increases the merger consideration payable to each holder of Common Shares to $15.50 per Common Share in cash, from $14.50 in cash and (ii) reflects the increased termination fee payable by the Issuer to Charlie AcquireCo Inc. and Charlie Merger Sub Inc. pursuant to the Third Brookfield Amendment in the event the Issuer terminates the Brookfield Merger Agreement (as amended by the Third Brookfield Amendment) in certain circumstances.  The foregoing description of the March 5th Merger Agreement does not purport to be complete and is qualified in its entirety by reference to the terms and conditions of the March 5th Merger Agreement, which are evidenced by a changed pages blackline showing the differences between the March 4th Merger Agreement and the March 5th Merger Agreement, a copy of which is filed as Exhibit 99.27 to the Schedule 13D and is incorporated by reference in its entirety into this Item 4.

 

Item 4 of the 13D Filing is hereby amended by adding the following disclosure after the last paragraph under the heading “The Equity Funding Letters and Updated Equity Funding Letters”:

 

On March 5, 2020, and in connection with the March 5th Amended Proposal, the Funds agreed to enter into the March 5th Equity Funding Letters with substantially similar terms as the March 4th Equity Funding Letters, but increase the cash equity financing to be made available by the Funds to the MIP V Affiliates to $307 million from $300 million in order to:  (i) fund (in the amount necessary to fund) a portion of the merger consideration payable to holders of Common Shares under the March 5th Merger Agreement; (ii) refinance any credit facility or other indebtedness of the Issuer or any subsidiary of the Issuer that will not continue after the consummation of the Merger; and (iii) pay any fees and expenses of or payable by the MIP V Affiliates in connection with the Merger.  The foregoing description of the March 5th Equity Funding Letters does not purport to be complete and is qualified in its entirety by reference to the terms and conditions of the March 5th Equity Funding Letters, copies of which are filed as Exhibit 99.28 and Exhibit 99.29 to the Schedule 13D and are incorporated by reference in their entirety into this Item 4.

 

Item 4 of the 13D Filing is hereby amended by adding the following disclosure after the last paragraph under the heading “The Limited Guarantees and the Updated Limited Guarantees”:

 

On March 5, 2020, and in connection with the March 5th Amended Proposal, the Funds proposed to enter into the March 5th Limited Guarantees guaranteeing certain obligations of the MIP V Affiliates under the March 5th Merger Agreement, with substantially similar terms as the March 4th Limited Guarantees.  The foregoing description of the March 5th Limited Guarantees does not purport to be complete and is qualified in its entirety by reference to the terms and conditions of the March 5th Limited Guarantees, copies of which are filed as Exhibit 99.30 and Exhibit 99.31 to the Schedule 13D and are incorporated by reference in their entirety into this Item 4.

 

Item 5. Interest in Securities of the Issuer

 

Item 5(c) of the 13D Filing is hereby amended and restated in its entirety as follows:

 

(c) Transactions within the past 60 days. Except for the information set forth in the Schedule 13D, including in Items 3, 4 and 6, which is incorporated herein by reference, none of the Reporting Persons has effected any transaction related to the Common Shares during the past 60 days.

 

Item 6. Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer

 

The last sentence of Item 6 of the 13D Filing is hereby amended and restated as follows:

 

The responses to Items 2 through 5 of this Schedule 13D, and all Exhibits attached to this Amendment No. 7, are incorporated by reference in their entirety into this Item 6.

 

18

 

Item 7. Material to be Filed as Exhibits

 

Item 7 of the 13D Filing is hereby amended to add the following:

 

Exhibit 99.25		Joint Filing Agreement, dated as of March 6, 2020, by and among the Reporting Persons.
Exhibit 99.26		Letter to the members of the Board of Directors of the Issuer, dated as of March 5, 2020.
Exhibit 99.27		Changed Pages Blackline showing the differences between the March 4th Merger Agreement and the March 5th Merger Agreement.
Exhibit 99.28		Equity Funding Letter by Ares Special Situations Fund IV, L.P., dated as of March 5, 2020.
Exhibit 99.29		Equity Funding Letter by ASOF Holdings I, L.P., dated as of March 5, 2020.
Exhibit 99.30		Limited Guarantee proposed to be made by Ares Special Situations Fund IV, L.P. to the Issuer, dated as of March 5, 2020.
Exhibit 99.31		Limited Guarantee proposed to be made by ASOF Holdings I, L.P. to the Issuer, dated as of March 5, 2020.

 

19

 

SIGNATURE

 

After reasonable inquiry and to the best of my knowledge and belief, the undersigned certifies that the information set forth in this statement is true, complete and correct.

 

Date: March 6, 2020

 

	ASSF IV AIV B HOLDINGS III, L.P.
	By:	ASSF OPERATING MANAGER IV, L.P.
		Its Manager
		/s/ Naseem Sagati Aghili
		By:	Naseem Sagati Aghili
		Its:	Authorized Signatory
	ASSF OPERATING MANAGER IV, L.P.
		/s/ Naseem Sagati Aghili
		By:	Naseem Sagati Aghili
		Its:	Authorized Signatory
	AF V US BD HOLDINGS, L.P.
	By:	AF V US BD HOLDINGS GP LLC
		Its General Partner
	By:	AF V BD AIV, L.P.
		Its Sole Member
	By:	ARES MANAGEMENT LLC
		Its Manager
		/s/ Naseem Sagati Aghili
		By:	Naseem Sagati Aghili
		Its:	Authorized Signatory
	AF V US BD HOLDINGS GP LLC
	By:	AF V BD AIV, L.P.
		Its Sole Member
	By:	ARES MANAGEMENT LLC
		Its Manager
		/s/ Naseem Sagati Aghili
		By:	Naseem Sagati Aghili
		Its:	Authorized Signatory

 

20

 

	AF V BD AIV, L.P.
	By:	ARES MANAGEMENT LLC
		Its Manager
		/s/ Naseem Sagati Aghili
		By:	Naseem Sagati Aghili
		Its:	Authorized Signatory
	ARES CREDIT HEDGE FUND LP
	By:	ARES CAPITAL MANAGEMENT III LLC
		Its Manager
		/s/ Naseem Sagati Aghili
		By:	Naseem Sagati Aghili
		Its:	Authorized Signatory
	ARES CAPITAL MANAGEMENT III LLC
		/s/ Naseem Sagati Aghili
		By:	Naseem Sagati Aghili
		Its:	Authorized Signatory
	ARES MANAGEMENT LLC
		/s/ Naseem Sagati Aghili
		By:	Naseem Sagati Aghili
		Its:	Authorized Signatory
	ARES MANAGEMENT HOLDINGS L.P.
	By:	ARES HOLDCO LLC
		Its General Partner
		/s/ Naseem Sagati Aghili
		By:	Naseem Sagati Aghili
		Its:	Authorized Signatory
	ARES HOLDCO LLC
		/s/ Naseem Sagati Aghili
		By:	Naseem Sagati Aghili
		Its:	Authorized Signatory
	ARES HOLDINGS INC.
		/s/ Naseem Sagati Aghili
		By:	Naseem Sagati Aghili
		Its:	Authorized Signatory

 

21

 

	ARES MANAGEMENT CORPORATION
		/s/ Naseem Sagati Aghili
		By:	Naseem Sagati Aghili
		Its:	Authorized Signatory
	ARES MANAGEMENT GP LLC
		/s/ Naseem Sagati Aghili
		By:	Naseem Sagati Aghili
		Its:	Authorized Signatory
	ARES VOTING LLC
	By:	ARES PARTNERS HOLDCO LLC
		Its Sole Member
		/s/ Naseem Sagati Aghili
		By:	Naseem Sagati Aghili
		Its:	Authorized Signatory
	ARES PARTNERS HOLDCO LLC
		/s/ Naseem Sagati Aghili
		By:	Naseem Sagati Aghili
		Its:	Authorized Signatory

 

22

 

EXHIBIT INDEX

 

Exhibit 99.25		Joint Filing Agreement, dated as of March 6, 2020, by and among the Reporting Persons.
Exhibit 99.26		Letter to the members of the Board of Directors of the Issuer, dated as of March 5, 2020.
Exhibit 99.27		Changed Pages Blackline showing the differences between the March 4th Merger Agreement and the March 5th Merger Agreement.
Exhibit 99.28		Equity Funding Letter by Ares Special Situations Fund IV, L.P., dated as of March 5, 2020.
Exhibit 99.29		Equity Funding Letter by ASOF Holdings I, L.P., dated as of March 5, 2020.
Exhibit 99.30		Limited Guarantee proposed to be made by Ares Special Situations Fund IV, L.P. to the Issuer, dated as of March 5, 2020.
Exhibit 99.31		Limited Guarantee proposed to be made by ASOF Holdings I, L.P. to the Issuer, dated as of March 5, 2020.

 

23

EXHIBIT 99.25

 

JOINT FILING AGREEMENT

 

In accordance with Rule 13d-1(k)(1) promulgated under the Securities Exchange Act of 1934, as amended, the undersigned hereby agree to the joint filing with each of the Reporting Persons (as such term is defined in the Schedule 13D referred to below) on behalf of each of them of a statement on Schedule 13D (including amendments to the Schedule 13D) with respect to the common shares, par value $0.01 per share, of Cincinnati Bell Inc., an Ohio corporation, and that this agreement may be included as an exhibit to such joint filing.

 

IN WITNESS WHEREOF, the undersigned hereby execute this agreement as of March 6, 2020.

 

	ASSF IV AIV B HOLDINGS III, L.P.
	By:	ASSF OPERATING MANAGER IV, L.P.
		Its Manager
		/s/ Naseem Sagati Aghili
		By:	Naseem Sagati Aghili
		Its:	Authorized Signatory
	ASSF OPERATING MANAGER IV, L.P.
		/s/ Naseem Sagati Aghili
		By:	Naseem Sagati Aghili
		Its:	Authorized Signatory
	AF V US BD HOLDINGS, L.P.
	By:	AF V US BD HOLDINGS GP LLC
		Its General Partner
	By:	AF V BD AIV, L.P.
		Its Sole Member
	By:	ARES MANAGEMENT LLC
		Its Manager
		/s/ Naseem Sagati Aghili
		By:	Naseem Sagati Aghili
		Its:	Authorized Signatory
	AF V US BD HOLDINGS GP LLC
	By:	AF V BD AIV, L.P.
		Its Sole Member
	By:	ARES MANAGEMENT LLC
		Its Manager
		/s/ Naseem Sagati Aghili
		By:	Naseem Sagati Aghili
		Its:	Authorized Signatory

 

 

 

	AF V BD AIV, L.P.
	By:	ARES MANAGEMENT LLC
		Its Manager
		/s/ Naseem Sagati Aghili
		By:	Naseem Sagati Aghili
		Its:	Authorized Signatory
	ARES CREDIT HEDGE FUND LP
	By:	ARES CAPITAL MANAGEMENT III LLC
		Its Manager
		/s/ Naseem Sagati Aghili
		By:	Naseem Sagati Aghili
		Its:	Authorized Signatory
	ARES CAPITAL MANAGEMENT III LLC
		/s/ Naseem Sagati Aghili
		By:	Naseem Sagati Aghili
		Its:	Authorized Signatory
	ARES MANAGEMENT LLC
		/s/ Naseem Sagati Aghili
		By:	Naseem Sagati Aghili
		Its:	Authorized Signatory
	ARES MANAGEMENT HOLDINGS L.P.
	By:	ARES HOLDCO LLC
		Its General Partner
		/s/ Naseem Sagati Aghili
		By:	Naseem Sagati Aghili
		Its:	Authorized Signatory
	ARES HOLDCO LLC
		/s/ Naseem Sagati Aghili
		By:	Naseem Sagati Aghili
		Its:	Authorized Signatory
	ARES HOLDINGS INC.
		/s/ Naseem Sagati Aghili
		By:	Naseem Sagati Aghili
		Its:	Authorized Signatory

 

 

	ARES MANAGEMENT CORPORATION
		/s/ Naseem Sagati Aghili
		By:	Naseem Sagati Aghili
		Its:	Authorized Signatory
	ARES MANAGEMENT GP LLC
		/s/ Naseem Sagati Aghili
		By:	Naseem Sagati Aghili
		Its:	Authorized Signatory
	ARES VOTING LLC
	By:	ARES PARTNERS HOLDCO LLC
		Its Sole Member
		/s/ Naseem Sagati Aghili
		By:	Naseem Sagati Aghili
		Its:	Authorized Signatory
	ARES PARTNERS HOLDCO LLC
		/s/ Naseem Sagati Aghili
		By:	Naseem Sagati Aghili
		Its:	Authorized Signatory

 

Exhibit 99.26

 

March 5, 2020

 

Cincinnati Bell Inc.

221 East Fourth Street

Cincinnati, Ohio 45202

 

Attention:   Board of Directors

 

Re:          Fourth Amended Binding Offer Letter

 

Dear Sirs and Madams:

 

Reference is made to our binding offer to acquire Cincinnati Bell Inc. (the “Company”) dated February 27, 2020, our subsequent binding offer dated March 2, 2020 (the “March 2 Amended Offer”), our March 3, 2020 letter amending the March 2 Amended Offer and our subsequent binding offer dated March 4, 2020 (the “March 4 Amended Offer”). This letter amends the March 4 Amended Offer.

 

We are pleased to amend our bid with an increase of our offer price to $15.50 from $14.50 per share. You will see that as well as delivering an increased offer, we have continued to keep the Company Termination Fee at $7.5 million, which we believe is in the best interest of your shareholders. Other than the merger consideration, this letter does not amend or modify any other material term of the March 4 Amended Offer.

 

The undersigned are currently indirectly wholly-owned subsidiaries of MIP V (FCC) AIV, L.P. (“MIP V”), a fund managed by Macquarie Infrastructure and Real Assets Inc. (“MIRA”).  MIRA is in turn a division of the Macquarie Group. In addition to our equity commitment from MIP V, we have obtained binding equity commitments from Ares Special Situations Fund IV, L.P. and ASOF Holdings I, L.P., funds managed by the Private Equity Group of Ares Management Corporation (NYSE:  ARES).

 

For good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, we hereby amend the March 4 Amended Offer, upon the terms and conditions reflected herein and in the documents attached hereto (as so amended, the “Offer”).  Please find attached hereto (1) an Agreement and Plan of Merger (the “Merger Agreement”) setting forth the definitive terms of the proposed merger by and among Red Fiber Parent LLC (“Parent”), RF Merger Sub Inc. (“Merger Sub”), a wholly owned subsidiary of Parent, and the Company, duly executed on behalf of Parent and Merger Sub, (2) the Company Disclosure Letter and the Parent Disclosure Letter (each as defined in the Merger Agreement and, together, the “Disclosure Letters”), (3) the Guarantees (as defined in the Merger Agreement) and (4) the Equity Funding Letters and the Debt Commitment Letters (each as defined in the Merger Agreement and, together, the “Financing Letters”). The Merger Agreement, the Disclosure Letters, the Guarantees and the Financing Letters are collectively referred to herein as the “Transaction Documents.”

 

The execution and delivery of this Offer and the Merger Agreement by Parent and Merger Sub to the Company and the delivery by Parent and Merger Sub of the other Transaction Documents attached hereto constitute a binding irrevocable offer by Parent and Merger Sub to acquire the Company on the terms and subject to the conditions set forth in the Merger Agreement and the other Transaction Documents and acceptance of the Company Disclosure Letter, in each case in the form of such documents as attached hereto.

 

 

None of Parent or Merger Sub shall have the right to withdraw this Offer or terminate, amend or otherwise modify the executed Transaction Documents attached hereto; provided, however, that this Offer shall be automatically withdrawn and revoked with no further action required by the Company, Parent or Merger Sub and the executed Merger Agreement, Financing Letters and Guarantees shall be deemed null and void (such withdrawal and revocation, an “Offer Termination”) on the earliest to occur of:

 

(a)                                 the time at which the Company notifies Parent in writing that it is not accepting the Offer; and

 

(b)                                 11:59 p.m. New York time on March 13, 2020, if the Company has not delivered to Parent an executed signature page to the Merger Agreement submitted with this Offer by such time.

 

The Company can accept this Offer at any time prior to the occurrence of an Offer Termination by delivering an executed signature page to the Merger Agreement, and the Merger Agreement shall be dated as of the date of such acceptance, provided that the following conditions (the “Offer Acceptance Conditions”) shall have been satisfied: (i) the Agreement and Plan of Merger, dated as of December 21, 2020, by and among the Company, Charlie AcquireCo Inc. and Charlie Merger Sub Inc. (the “Brookfield Merger Agreement”) shall have been terminated in accordance with its terms and (ii) the Company shall have delivered to Parent and Merger Sub an executed certification in the form attached hereto as Exhibit A (the “Brookfield Termination Notice Certification”).  The executed signature page to the Merger Agreement and the executed Brookfield Termination Notice Certification shall be delivered to Parent and Merger Sub in accordance with Section 9.02 of the Merger Agreement.

 

In no event may this Offer be accepted at any time after the Offer Termination or if any of the Offer Acceptance Conditions shall not be satisfied at the time this Offer is sought to be accepted.  Upon an Offer Termination, the Merger Agreement, Parent Disclosure Letter, Financing Letters and Guarantees shall be returned to Parent and be deemed null and void.

 

The provisions of Article IX of the Merger Agreement are incorporated by reference herein mutatis mutandis and this Offer and our other agreements set forth herein shall be governed by and construed in accordance with such provisions.

 

*****

 

 

Very truly yours,

 

	RED FIBER PARENT LLC
	By:	/s/ Karl Kuchel
		Name: Karl Kuchel
		Title: Chief Executive Officer
	By:	/s/ Anton Moldan
		Name: Anton Moldan
		Title: Vice President

 

	RF MERGER SUB INC.
	By:	/s/ Karl Kuchel
		Name: Karl Kuchel
		Title: Chief Executive Officer
	By:	/s/ Anton Moldan
		Name: Anton Moldan
		Title: Vice President

 

[Signature page to Offer Letter]

 

Exhibit 99.27

 

following the final day of the Marketing Period, subject to, in each case, the satisfaction or waiver of the conditions set forth in Article VII (other than those conditions that by their nature are to be satisfied at the Closing, but subject to the satisfaction or (to the extent permitted by Law) waiver of those conditions) or (ii) such other time and date as shall be agreed to in writing between the Company and Parent. The date on which the Closing occurs is referred to in this Agreement as the “Closing Date”.

 

SECTION 1.03. Effective Time. Subject to the provisions of this Agreement, as soon as practicable on the Closing Date, the Company shall cause the Merger to be consummated by filing a certificate of merger that is reasonably acceptable to Parent and executed in accordance with, and in such form as is required by, the relevant provisions of the OGCL (the “Certificate of Merger”), and shall make all other filings, recordings or publications required under the OGCL in connection with the Merger. The Merger shall become effective at the time that the Certificate of Merger is filed with the Secretary of State of the State of Ohio (the “Secretary of State”) or, to the extent permitted by applicable Law, at such later time as is agreed to by the parties hereto prior to the filing of such Certificate of Merger and specified in the Certificate of Merger (the time at which the Merger becomes effective is herein referred to as the “Effective Time”).

 

SECTION 1.04. Effects of the Merger. The Merger shall have the effects provided in this Agreement and as set forth in the applicable provisions, including Section 1701.82, of the OGCL.

 

SECTION 1.05. Organizational Documents of the Surviving Corporation. At the Effective Time, the articles of incorporation of the Company, as in effect immediately prior to the Effective Time, shall be the articles of incorporation of the Surviving Corporation until thereafter changed or amended as provided therein or by applicable Law (and subject to Section 6.05 hereof). The code of regulations of the Surviving Corporation in effect from and after the Effective Time and until thereafter changed or amended as provided therein or by applicable Law shall be in the form of the code of regulations of Merger Sub as in effect immediately prior to the Effective Time, except that references to the name of Merger Sub shall be replaced by references to the name of the Surviving Corporation.

 

SECTION 1.06. Board of Directors and Officers of the Surviving Corporation. The directors of Merger Sub immediately prior to the Effective Time shall become the directors of the Surviving Corporation as of the Effective Time until the earlier of their resignation or removal in accordance with the articles of incorporation and code of regulations of the Surviving Corporation or until their respective successors have been duly elected and qualified, as the case may be. The officers of the Company immediately prior to the Effective Time shall continue as the officers of the Surviving Corporation immediately following the Effective Time until their respective successors are duly appointed and qualified or until their earlier death, resignation or removal in accordance with the articles of incorporation and code of regulations of the Surviving Corporation. The parties acknowledge and agree that following the Effective Time Parent shall cause the board of directors of the Surviving Corporation to include at least two (2) individuals who are “domiciled” (such persons must have resided in Hawaii no less than five (5) years and otherwise be domiciled within the meaning of Section 18-235-1.03 of the Hawaii Administrative Rules) in Hawaii.

 

SECTION 1.07.Brookfield Termination Fee. Concurrently with the execution hereof by the Company, the Company shall terminate the Agreement and Plan of Merger, dated as of December 21, 2019, by and among Brookfield, Charlie Merger Sub, Inc. and Cincinnati Bell, Inc. (as amended, the “Brookfield Agreement”), in accordance with Section 8.01(c)(ii) thereof and shall pay to Charlie AcquireCo Inc. (“Brookfield”) the $23,100,00024,800,000 termination fee (the “Brookfield Termination Fee”) payable pursuant to Section 6.06(b) and Section 8.01(c)(ii) of the Brookfield Agreement.

 

2

 

ARTICLE II

 

Effect on the Stock of the

Constituent Corporations; Exchange of Certificates

 

SECTION 2.01.Effect on Stock. At the Effective Time, by virtue of the Merger and without any action on the part of the Company, Parent, Merger Sub or any holder of any shares of common stock, par value $0.01 per share, of the Company (the “Company Common Shares”) or any shares of capital stock of Merger Sub:

 

(a)           Capital Stock of Merger Sub. Each issued and outstanding share of capital stock of Merger Sub shall be converted into and become one validly issued, fully paid and nonassessable share of common stock, par value $0.01 per share, of the Surviving Corporation.

 

(b)           Cancelation of Certain Shares. All Company Common Shares that are owned by the Company as treasury shares immediately prior to the Effective Time shall be canceled and shall cease to exist and no consideration shall be delivered in exchange therefor. All Company Common Shares held by Parent or Merger Sub immediately prior to the Effective Time shall be canceled and shall cease to exist and no consideration shall be delivered in exchange therefor. Each Company Common Share that is owned by any direct or indirect wholly owned Subsidiary of the Company or of Parent (other than Merger Sub) shall not represent the right to receive the Merger Consideration and shall be, at the election of Parent, either (i) converted into shares of common stock of the Surviving Corporation or (ii) canceled. Each Excluded Share shall be canceled at the Effective Time and, subject to Section 2.03, no consideration shall be delivered in exchange therefor.

 

(c)           Conversion of Company Common Shares. Subject to Section 2.01(b), each Company Common Share issued and outstanding immediately prior to the Effective Time (other than Common Appraisal Shares to be treated in accordance with Section 2.03 (collectively, the “Excluded Shares”)) shall be converted at the Effective Time into the right to receive an amount of cash equal to $14.5015.50 per share, without interest (the “Merger Consideration”). As of the Effective Time, all such Company Common Shares, when so converted pursuant to this Section 2.01(c), shall no longer be outstanding and shall automatically be canceled and shall cease to exist, and each holder of a certificate that immediately prior to the Effective Time represented any such Company Common Shares (each, a “Certificate”) (other than any Excluded Shares) and each holder of Company Common Shares held in book-entry form (other than any Excluded Shares) shall, in each case, cease to have any rights with respect thereto, except the right to receive the Merger Consideration to be paid in consideration therefor. The right of any holder of Company Common Shares to receive the Merger Consideration shall be subject in all cases to the provisions of Section 2.02.

 

(d)           6 3/4% Preferred Shares. Each 6 3/4% Preferred Share issued and outstanding immediately prior to the Effective Time shall remain issued and outstanding immediately following the Effective Time 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 Article Fourth of the Company Articles).

 

3

Exhibit 99.28

 

Ares Special Situations Fund IV, L.P.

 

March 5, 2020

 

Red Fiber Parent LLC

c/o Macquarie Infrastructure and Real Assets, Inc.

125 W. 55th Street

New York, New York 10019

 

Ladies and Gentlemen:

 

Reference is made to (a) that certain Agreement and Plan of Merger, dated as of March   , 2020 (as amended, restated, supplemented or otherwise modified from time to time in accordance with its terms, the “Merger Agreement”), by and among Red Fiber Parent LLC, a Delaware limited liability company (“Parent”), RF Merger Sub Inc., an Ohio corporation (“Merger Sub”), and Cincinnati Bell Inc., an Ohio corporation (the “Company”). Under the terms of the Merger Agreement, Parent will acquire the Company (the “Merger”). Reference is also made to those certain Equity Commitment Letters, dated as of the date of this Letter (the “Co-Investor ECL”), by MIP V (FCC) AIV, L.P. and ASOF Holdings I, L.P. (together, the “Co-Investor”) in favor of Parent.  As used in this Letter, the term “Co-Investor Commitment” shall have the meaning given the term “Commitment Amount” in the applicable Co-Investor ECL.  This letter is being delivered by Ares Special Situations Fund IV, L.P., a Delaware limited partnership (the “Investor”) to Parent in connection with the execution of the Merger Agreement.  Parent and the Investor are sometimes referred to in this letter agreement as a “Party,” individually, and as the “Parties,” collectively.  Capitalized terms used but not defined in this letter agreement (the “Letter”) have the meanings given them in the Merger Agreement.

 

Subject to the terms and conditions set forth herein and in the Merger Agreement, this Letter confirms the commitment of the Investor to make available or cause to be made available to Parent at or immediately prior to the Closing up to $153,550,000 of cash equity financing in immediately available funds (the “Commitment Amount”).  The Parties acknowledge and agree that Parent shall use the Commitment Amount solely to: (i) fund (and in the amount necessary to fund) a portion of the Merger Consideration pursuant to Section 2.01(c) of the Merger Agreement (as the same may be adjusted pursuant to Section 2.04 of the Merger Agreement); (ii) refinance any credit facility or other Indebtedness of the Company or any Company Subsidiary that will not continue after the Effective Time; and (iii) pay any fees and expenses of or payable by Parent or Merger Sub.  Whether in whole or in part, the Investor may allocate its commitment to the Co-Investor, any Affiliates of the Investor or the Co-Investor and their respective Affiliates’ respective co-investors and/or limited partners (each, an “Additional Investor”).  For the avoidance of doubt, permitted allocations as set forth in the preceding sentence shall include allocations to any funds or other entities managed, sponsored or advised by any of the foregoing entities as well as any entities controlled by such funds or other entities. With respect to any allocation made in accordance with the foregoing, the Investor’s Commitment Amount shall be amended and reduced by any amounts actually contributed (and not returned) by such Additional Investor(s).

 

Notwithstanding the foregoing, no such allocation shall relieve the Investor of its obligation to provide the amount set forth above in the event that any such Additional Investor fails to make its corresponding contribution.  The Parties agree that the Investor shall not under any circumstances be obligated under this Letter to, directly or indirectly, make available or cause to be made available any cash to Parent in excess of the Commitment Amount.

 

 

The Investor’s obligations to fund the Commitment Amount are subject to: (i) the execution and delivery of the Merger Agreement by Parent, Merger Sub and the Company; (ii) the terms of this Letter and the Merger Agreement; (iii) the satisfaction or waiver at the Closing by Parent of all conditions precedent to Parent’s and Merger Sub’s obligations set forth in Section 7.01 and Section 7.03 of the Merger Agreement (without any waiver of any such condition except waivers to which the Investor agrees in writing), in each case other than those conditions that by their nature are to be satisfied at the Closing but subject to such conditions being capable of and actually being satisfied at Closing; (iv) the Debt Financing having been funded or being funded at the Closing if the Equity Financing is funded at the Closing; and (v) the substantially concurrent consummation of the Closing of the transactions contemplated by the Merger Agreement in accordance with its terms.

 

The Investor’s obligations to fund the Commitment Amount will terminate automatically and immediately upon the earliest to occur of: (i) the Closing and payment of the Merger Consideration pursuant to Section 2.01(c) of the Merger Agreement (as the same may be adjusted pursuant to Section 2.04 of the Merger Agreement); (ii) the valid termination of the Merger Agreement in accordance with Section 8.01 of the Merger Agreement; (iii) the Company or its Subsidiaries accepting all or any payment from a Guarantor under the Guarantees; and (iv) the Company or its Subsidiaries, directly or indirectly, asserting a claim in an Action against the Investor, the Co-Investor, any of the Investor’s or Co-Investor’s Related Parties (as defined below), a Guarantor, Parent or any of Parent’s Related Parties relating to this Letter, the Guarantees, the Merger Agreement or any transactions contemplated by those documents.  The immediately preceding sentence shall not apply to any Action: (a) against the Investor, the Co-Investor, any of the Investor’s or Co-Investor’s Related Parties that is party (including its legal successors and assigns) to the Confidentiality Agreement solely related to the enforcement of the Confidentiality Agreement; (b) seeking specific performance against an Investor or the Co-Investor (or its successors or permitted assignees of its obligations under this Letter or the Co-Investor ECL) under, and pursuant to the terms of, this Letter or the Co-Investor ECL; (c) against Parent or Merger Sub (or its successors or permitted assignees) pursuant to the Merger Agreement; and/or (d) against the Guarantors (or its successors or permitted assignees) under the Guarantees in accordance with the express terms and conditions thereunder (clauses (a) through (d), collectively, the “Reserved Claims”). Upon termination of this Letter, the Investor will not have any further obligations or liabilities hereunder.

 

Except as set forth in the third and fourth sentences of this paragraph, nothing set forth in this Letter confers or gives, or shall be construed to confer or give: (i) any Person other than Parent any remedies under or by reason of, or any rights to enforce or cause Parent to enforce, this Letter or the Commitment Amount; or (ii) any Person any rights or remedies against any Person other than the Investor under or by reason of this Letter or the Commitment Amount.  For the avoidance of doubt, the limitation set forth in the preceding sentence applies without limitation to the Company or any of its Affiliates, securityholders, direct or indirect creditors, agents or Representatives.  Notwithstanding the foregoing, Investor’s Related Parties and Parent’s Related Parties are intended third party beneficiaries of, and shall be entitled to enforce, this Letter.  In addition but always subject to the terms and conditions of the Merger Agreement (a) solely to the extent specific performance is expressly permitted by Section 9.10 of the Merger Agreement, the Company may enforce Parent’s right, subject to the terms and conditions of this Letter, to cause the Commitment Amount to be funded solely for the purpose of causing Parent to pay a portion of the Merger Consideration pursuant to Section 2.01(c) of the Merger Agreement (as the same may be adjusted pursuant to Section 2.04 of the Merger Agreement) and any other amounts required to be paid by Parent or Merger Sub in connection with the consummation of the Merger, and (b) to enforce the Company’s consent rights to amendments or modifications that would reasonably be expected to be materially adverse to the Company.  For the avoidance of doubt, the Company’s right as set forth in the preceding sentence shall be for no other purpose than causing Parent to pay the aggregate Merger Consideration and any other amounts required to be paid by Parent or Merger Sub in connection with the consummation of the Merger and in no circumstance shall include any claim for monetary damages under this Letter, the Merger Agreement or any other transaction documents relating to the Merger Agreement.  The exercise by Parent or the Company of any rights to enforce this Letter shall not give rise to any other remedies, monetary or otherwise, against the Investor or any of its Related Parties.

 

2

 

In no event shall this Letter or the Commitment Amount be enforced by Parent, the Company or any other Person unless either: (i) each Co-Investor ECL is being concurrently enforced by Parent, or (ii) the Co-Investor Commitments have been funded in accordance with the Co-Investor ECLs.

 

The Investor represents and warrants to Parent that: (i) the Investor is duly organized, validly existing and in good standing under the Laws of its jurisdiction of organization and has all requisite corporate or equivalent power and authority to execute, deliver and perform its obligations under this Letter; (ii) the execution, delivery and performance of this Letter, (a) have been duly and validly authorized by the Investor and (b) do not violate, conflict with or result in default (whether after the giving of notice, lapse of time or both) under, any Law or any order of, or any ruling imposed by, any court or other Governmental Entity binding upon the Investor or the Investor’s governing documents; (iii) this Letter constitutes a valid and legally binding obligation of the Investor, enforceable against the Investor in accordance with its terms and conditions, except as the same may be limited by applicable insolvency, bankruptcy, reorganization, moratorium or other similar Laws relating to or affecting creditors’ rights generally or by general equitable principles (regardless of whether such enforceability is considered in a proceeding in equity or at law) and (iv) the Investor has (and will have at the Closing) sufficient access to funding (including capital commitments) in an amount at least equal to the Commitment Amount.

 

This Letter, together with the Guarantees and the Merger Agreement, constitutes the entire agreement, and supersedes all prior agreements, understandings and statements, both written and oral, between or among the Company, Parent and the Investor or any of their respective Affiliates with respect to the subject-matter of this Letter.  Except as otherwise expressly set forth herein this Letter may not be amended or otherwise modified without the prior written consent of Parent and the Investor and, solely to the extent such amendment or modification would reasonably be expected to be materially adverse to the Company, the Company. The foregoing limitation on amendment and modification applies to any deemed amendment of the Investor’s Commitment Amount upon the assignment or delegation by the Investor of a portion of its commitment to an Additional Investor and the contribution by such Additional Investor of such amount.

 

This Letter shall be treated as confidential by Parent and the Company.  This Letter is being provided to Parent or the Company solely in connection with the Merger Agreement and the transactions contemplated thereby.  This Letter may not be used, circulated, quoted or otherwise referred to in any document other than the Merger Agreement and any ancillary agreement or document with respect thereto, except with the prior written consent of the Investor.  The existence and terms of this Letter may be disclosed, however, to the extent required by applicable Law or in connection with any Action brought by any of the Parties or the Company to enforce this Letter.

 

3

 

Notwithstanding anything that may be expressed or implied in this Letter, or any document or instrument delivered in connection herewith, and notwithstanding that the Investor or any of its permitted assigns may be a limited partnership, separate limited partnership or limited liability company, each of the Parties and the Company acknowledges and agrees that this Letter may be enforced only against the entities that are expressly named as Parties to this Letter and then only with respect to the specific obligations set forth in this Letter and subject to the terms and conditions set forth herein with respect to such Party.  For the elimination of doubt, the limitation set forth in the preceding sentence applies to any Action based upon, arising out of, or related to this Letter, the Merger Agreement or the transactions contemplated by this Letter and the Merger Agreement.  Without limiting any Reserved Claim brought pursuant to the terms of the applicable agreement under which such claims arise, the Parties also acknowledge and agree that no Party, nor any successor or permitted assignee thereof, no Affiliate thereof and no past, present or future director, officer, employee, consultant, incorporator, member, partner, controlling person, general or limited partner, manager, equityholder, agent, attorney, advisor, financing source,  or Representative of any of the foregoing (the “Related Parties”), shall have any liability for any of the representations, warranties, agreements or other obligations or liabilities of such Party or any successor or permitted assignee thereof or for any claim based on, arising out of, or related to this Letter or the transactions contemplated hereby.  The foregoing limitation shall apply without regard to whether the claim giving rise to any such liability shall be based upon claims sounding in contract or tort, at law or in equity or otherwise, or based upon any theory that seeks to impose liability of an entity party against its owners or Affiliates or by or through a claim by or on behalf of Parent or the Investor against any Related Party. Without limiting any Reserved Claim brought pursuant to the terms of the applicable agreement under which such claims arise, neither the Investor nor any of its respective Related Parties (other than Parent) shall have any liability to any Person in connection with the Merger Agreement or this Letter, whether based upon contract, tort or any other claim or legal theory and whether at law or equity.  The provisions of this paragraph are intended to be for the benefit of, and enforceable by the Related Parties of the Investor and Parent and each such person shall be a third-party beneficiary of this paragraph.  This paragraph shall be binding on all successors and assigns of the Company and shall survive the termination of this Letter.  Whether by operation of law, merger, consolidation or otherwise, the rights and obligations under this Letter may not be assigned or delegated by any Party without the prior written consent of each the other Parties.  Any attempted assignment shall be null and void and of no force or effect.  Notwithstanding the foregoing, the Investor may assign all or a portion of its obligations pursuant to the second paragraph of this Letter without the consent of any person.

 

Concurrently with the execution and delivery of this Letter, the Investor is executing and delivering to the Company a Guarantee related to certain of Parent’s obligations under the Merger Agreement.  The Company’s remedies against the Investor under such Guarantee shall be, and are intended to be, the sole and exclusive direct or indirect remedies available to the Company and its respective equityholders and Affiliates against the Investor or any Related Party in respect of any losses, liabilities or obligations arising under, or in connection with, the Merger Agreement or the failure of the transactions contemplated by the Merger Agreement to be consummated or otherwise in connection with the transactions contemplated by Merger Agreement. The foregoing limitation on remedies applies to any and all losses or liabilities in any form whether sought or claimed as lost profits, lost revenues, lost opportunities, diminution in value and consequential, indirect, punitive or other special damages, and whether at law, in equity, in contract, in tort, or otherwise, regardless of legal theory.  For the avoidance of doubt and without limiting the generality of the foregoing, the limitation on remedies set forth in this paragraph applies in respect of any oral or written representations or warranties made or alleged to have been made in connection with this Letter, the Guarantee or the Merger Agreement and without regard to whether: (i) Parent breaches its obligations under the Merger Agreement; or (ii) whether or not Parent’s breach is caused by the breach of the Investor of its obligations under this Letter.  The limitation on remedies set forth in this paragraph shall not affect the right of the Company to specifically enforce the provisions of this Letter, subject to and in accordance with the terms and conditions set forth in, and solely to the extent permitted by, the fifth paragraph hereof and Section 9.10 of the Merger Agreement.

 

4

 

This Letter may be executed in multiple counterparts (including counterparts transmitted by facsimile, in .pdf, DocuSign or similar electronic transmission) with the same effect as if all signatory Parties had signed the same document, all of which taken together shall together be considered one and the same agreement.  This Letter shall become effective when each Party shall have received counterparts thereof signed and delivered (by facsimile, e-mail of a .pdf attachment or otherwise) by all of the other Parties.

 

The provisions of Sections 9.08 (Governing Law), 9.05 (Severability) and 9.11 (Waiver of Jury Trial) of the Merger Agreement shall apply to this Letter as if such provisions were restated in this Letter in their entirety.

 

[Signature Pages to Follow]

 

5

 

			Very truly yours,
			ARES SPECIAL SITUATIONS FUND IV, L.P.
			By: ASSF Management IV, L.P., its general partner
			By: ASSF Management IV GP LLC, its general partner
			By:	/s/ Aaron Rosen
			Name:	Aaron Rosen
			Title:	Authorized Signatory
Agreed and accepted:
Red Fiber Parent LLC
By:	/s/ Karl Kuchel
Name:	Karl Kuchel
Title:	Chief Executive Officer
By:	/s/ John H. Kim
Name:	John H. Kim
Title:	Secretary

 

[Signature Page to Equity Commitment Letter]