“Confidentiality Agreement” means the mutual nondisclosure agreement by and between Columbus and Cabot Parent, dated March 28, 2025.

(1)

Officers’ Certificate, dated as of July 27, 1998,

(2)

Eight Supplemental Indenture, dated as of December 1, 2006,

(3)

Ninth Supplemental Indenture, dated as of June 5, 2008,

(4)

Eleventh Supplemental Indenture, dated as of February 20, 2009,

(5)

Twelfth Supplemental Indenture, dated as of November 29, 2012,

(6)

Thirteenth Supplemental Indenture, dated as of May 13, 2013,

(7)

Fourteenth Supplemental Indenture, dated as of December 8, 2014,

(8)

Fifteenth Supplemental Indenture, dated as of December 13, 2016,

(9)

Sixteenth Supplemental Indenture, dated as of August 7, 2017,

(10)

Seventeenth Supplemental Indenture, dated as of May 26, 2020,

(11)

Eighteenth Supplemental Indenture, dated as of September 17, 2020,

(12)

Nineteenth Supplemental Indenture, dated as of June 2, 2021,

(13)

Twentieth Supplemental Indenture, dated as of June 20, 2023,

(14)

Twenty-First Supplemental Indenture, dated as of January 19, 2024, and

(15)

Twenty-Second Supplemental Indenture, dated as of August 20, 2024.

(1)

First Supplemental Indenture, dated August 12, 1999, among TCA Cable TV, Inc., Cox Classic Cable, Inc. and Chase Bank of Texas, N.A., and

(2)

Second Supplemental Indenture, dated December 1, 2003, between TCA Cable TV, Inc., Cox Classic Cable, Inc. and JPMorgan Chase Bank.

(xx)           fail to use commercially reasonable efforts to do any of the following:  (A) maintain inventory, plant replacement materials and customer premises equipment for the Cabot Systems at levels (by device type) in the Ordinary Course, (B) maintain and continue regular purchase order activity therefor in the Ordinary Course and (C) maintain customer premises equipment of a quantity (by device type) sufficient to enable Columbus to conduct the Cabot Business, in the Ordinary Course as it is conducted by Cabot Parent as of the date of this Agreement, for at least a 45-day period following the Closing Date;

 

(xxi)           knowingly take, cause or permit to be taken or omit to take any action which would reasonably be expected to materially delay or prevent or impede consummation of the Transaction by the End Date;

 

(xxii)          enter into, modify, renew, suspend, abrogate, terminate or amend any transaction or Contract with any Cabot Related Person, other than (i) as otherwise provided by this Agreement to occur on or prior to the Closing or the Restructuring, (ii) actions related to the compensation or benefits of Cabot Business Employees or other current or former directors, employees or other service providers of the Cabot Business, Cabot or the Transferred Subsidiaries that are expressly permitted pursuant to the exceptions to Section 5.2(a)(viii) or (ix) or (iii) commercial Contracts entered into in the Ordinary Course on arm’s-length terms;

 

(xxiii)          redeem, repurchase, prepay, defease, incur, assume, endorse, guarantee or otherwise become liable for or modify in any material respect the terms of any Indebtedness, or otherwise issue or sell any debt securities or calls, options, warrants or other rights to acquire any debt securities (directly, contingently or otherwise), except for (A) the incurrence of any Indebtedness among Cabot and its wholly owned Transferred Subsidiaries in the Ordinary Course, (B) any revolving borrowings under the Existing Cabot Credit Agreement, provided all such borrowings are repaid by Cabot prior to the Closing, (C) as contemplated by Section 5.14, (D) any Permitted Refinancing Indebtedness, (E) in connection with any cash payment of any Maturing Indebtedness by Cabot or (F) any Permitted Revolver Amendments; or

 

(xxiv)          authorize or enter into any agreement or commitment to do any of the foregoing.

 

(b)        Notwithstanding anything to the contrary in this Agreement, (i) the Cabot Parties shall be entitled to cause distributions in respect of the Membership Interests or other Equity Interests in Cabot, as applicable, of all Non-Operating Cash in the Cabot Business to Cabot Parent or NewCo 1, as applicable, from time to time between the date of this Agreement and the Closing and (ii) the Cabot Parties shall not be entitled to cause the distribution in respect of the Membership Interests or other Equity Interests in Cabot, as applicable, of any Operating Cash.

 

Section 5.3           Conduct of Business by Columbus.

 

(a)           From the date hereof to the Closing, except (w) as otherwise contemplated in this Agreement or by the Lewis Merger Agreement (or any agreements entered into in connection therewith, including, without limitation, the Lewis SHA Amendment), (x) as otherwise required by Law, (y) as set forth in Section 5.3(a) of the Columbus Disclosure Schedule or (z) as Cabot Parent otherwise consents in writing (such consent not to be unreasonably withheld, conditioned or delayed), Columbus shall, and shall cause each of its Subsidiaries to, (a) use commercially reasonable efforts to conduct its business and operations in the Ordinary Course which shall include using commercially reasonable efforts to preserve intact the business of Columbus and its Subsidiaries and their relationships with customers, suppliers, programming providers, creditors and employees; and (b) use commercially reasonable efforts to retain all of the Columbus Franchises, including using commercially reasonable efforts to perform all material obligations under all of the Columbus Franchises and using commercially reasonable efforts to renew any material Columbus Governmental Authorizations that expire prior to the Closing Date.  Without limiting the generality of the foregoing, from the date hereof to the Closing, except (w) as otherwise contemplated by this Agreement or by the Lewis Merger Agreement (or any agreements entered into in connection therewith, including, without limitation, the Lewis SHA Amendment), (x) as otherwise required by Law, (y) for the items set forth in Section 5.3(a) of the Columbus Disclosure Schedule or (z) to which Cabot Parent otherwise consents in writing (such consent not to be unreasonably withheld, conditioned or delayed), Columbus shall not, and shall cause its Subsidiaries not to:

 

(i)           knowingly take, cause or permit to be taken or omit to take any action that would reasonably be expected to prevent or materially delay or impede the consummation of the Transaction by the End Date;

 

(ii)          modify, suspend, abrogate, amend or terminate any of the organizational documents of any Columbus Party, other than modifications, abrogations or amendments (to organizational documents other than Columbus’s certificate of incorporation) that are not material;

 

(iii)         reclassify, split, combine, subdivide, cancel or redeem, repurchase, or otherwise acquire, directly or indirectly any Equity Interest or class of Equity Interests in Columbus or its Subsidiaries, except (A) where equitable adjustments are made to the number of shares of Columbus Class C Common Stock, Columbus Holdings Class C Common Units and Columbus Holdings Preferred Units constituting the Equity Consideration, as applicable, (B) in connection with any compensatory equity awards or for any such transaction by a wholly owned Subsidiary of Columbus which remains a wholly owned Subsidiary after consummation of such transaction and (C) for cancellations of Equity Interests of Columbus held by Columbus or any of its Subsidiaries or repurchases of Equity Interests of Columbus;

 

(iv)         declare, set aside or make any dividend or other distribution to the Columbus stockholders (whether cash or stock);

 

(v)          engage in any material business other than the business of Columbus and its Subsidiaries as of the date of this Agreement;

 

(vi)         liquidate or terminate the existence of any of the Columbus Parties;

 

(vii)        incur Indebtedness (as defined in the Amended and Restated Credit Agreement, dated as of March 18, 1999, as amended and restated on April 26, 2019 and as further amended, restated, amended and restated, supplemented or otherwise modified from time to time on or prior to the date of this Agreement, by and among Columbus Communications Operating, LLC, CCO Holdings, LLC, the lenders and issuing lenders from time to time party thereto and Bank of America, N.A., as administrative agent) (“Columbus Indebtedness”) (other than solely to refinance existing Indebtedness in an aggregate principal amount no greater than the aggregate principal amount of the Indebtedness being refinanced plus any interest, expenses, fees, costs or other obligations in connection with such refinancing), if immediately following such incurrence Columbus’s Leverage Ratio (as defined in such credit agreement) determined as of the last day of the most recently ended fiscal quarter of Columbus would exceed 4.50x on a pro forma basis after giving effect to such incurrence and the use of proceeds thereof;

 

(viii)          knowingly take, or omit to take, any action outside the Ordinary Course that would reasonably be expected to result in a “Below Investment Grade Downgrade Event” or a “Change of Control Repurchase Event” (each as defined in the applicable supplemental indenture governing the applicable series of Existing Cabot Notes) at Closing or in the 60 days following the Closing Date; or

 

(ix)            authorize or enter into any agreement or commitment to do any of the foregoing.

 

(b)           From the date hereof to the Closing, Columbus shall not, and shall cause its Subsidiaries not to, enter into any agreements with respect to, or consummate, transactions for the acquisition of businesses, assets, equity or property of another Person (whether by merger, consolidation, stock or asset purchase or otherwise), for cash and/or Equity Interests of Columbus or its Subsidiaries, if such transactions would, individually or in the aggregate, reasonably be expected to (i) require Columbus to abandon or terminate the Transaction, (ii) delay the consummation of the Transaction beyond the End Date, (iii) prohibit or prevent the consummation of the Transaction or (iv) result in Cabot Parent having an Equity Interest (as defined in the Stockholders Agreement) equal to less than 21% at the Closing; provided that, to the extent any such transactions would not violate the provisions set forth in this Section 5.3(b), then, notwithstanding anything to the contrary in this Agreement, including this Section 5.3, Section 5.4 and Section 5.5, Columbus shall be permitted to enter into such transactions.

 

Section 5.4           Consents; Further Assurances.

 

(a)           Subject to, and not in limitation of, Section 5.5, the Cabot Parties, on the one hand, and the Columbus Parties, on the other hand, shall cooperate and use their respective commercially reasonable efforts to do, or cause to be done, all things necessary or advisable to fulfill as promptly as practicable the conditions to Closing in this Agreement and consummate the Transaction.  Without limiting the generality of the foregoing, the Cabot Parties, on the one hand, and the Columbus Parties, on the other hand, shall each, with the reasonable cooperation of the other(s), use commercially reasonable efforts to obtain and maintain all material Cabot Consents and Columbus Consents, respectively.  If, notwithstanding the exercise of their commercially reasonable efforts and compliance with this Section 5.4 and Section 5.5, the Cabot Parties are unable to obtain one or more of the Cabot Consents, the Cabot Parties shall reasonably cooperate with the Columbus Parties’ efforts to obtain each such Cabot Consent for a period of 12 months following the Closing.  For the avoidance of doubt, except as otherwise provided in Article VI, none of the parties’ obligations to effect the Closing shall be conditioned on obtaining any Cabot Consents or Columbus Consents.

 

(b)           Nothing contained in this Agreement shall require the expenditure or payment of any funds (other than in respect of normal and usual attorneys’ fees, filing fees or other normal costs of doing business), the giving of any other consideration by any Columbus Party, any Cabot Party or their respective Subsidiaries with respect to seeking any Cabot Consents or Columbus Consents or any regulatory approvals pursuant to Section 5.5.

 

(c)           Each party shall execute and deliver such other documents, certificates, agreements and other writings and to take such other commercially reasonable actions as may be reasonably necessary or desirable to evidence, consummate or implement expeditiously the Transaction.

 

(d)           Notwithstanding anything to the contrary herein, including Section 5.3, Section 5.5 and Section 5.11, nothing in this Agreement or in any Ancillary Agreements shall require Columbus or any of its Subsidiaries to take any action that would breach the Lewis Merger Agreement or any agreement entered into in connection therewith, and nothing in this Agreement or in any Ancillary Agreements shall limit, restrict, impair or prevent Columbus from complying with the terms and provisions of, and performing under, the Lewis Merger Agreement and any agreement entered into in connection therewith.  Notwithstanding anything to the contrary herein, including Section 5.3, Section 5.5 and Section 5.11, Cabot Parent agrees that Columbus’ compliance with the terms and provisions of the Lewis Merger Agreement and any agreement entered into in connection therewith, and the performance by Columbus under and pursuant to the Lewis Merger Agreement, any agreement entered into in connection therewith and the consummation of the Lewis Transactions in accordance therewith shall not be deemed to be a breach of, or give rise to any remedy or right under, any provision of this Agreement (including Sections 5.4, 5.5, Article VI and Article VII hereof) or any other Ancillary Agreement.  Columbus agrees that (i) it shall not, and it shall not permit its Affiliates to, amend, modify or waive any provision of, or terminate, or agree to any amendment, modification, waiver or termination of, the Lewis Merger Agreement in a manner that would be, or would reasonably be expected to be, adverse in any material respect to the Cabot Parties or the Transaction without the prior written consent of Cabot Parent (it being understood that nothing in this clause (i) shall prevent Lewis from waiving any provision of, or terminating, the Lewis Merger Agreement) and (ii) it shall use its reasonable best efforts to cause the Lewis Transactions to close immediately prior to the Closing.

 

Section 5.5          Regulatory Approvals.

 

(a)           As soon as practicable after the execution of this Agreement, and, in any event, within 60 calendar days after the date of this Agreement, each of Cabot Parent and Columbus shall make or cause to be made all filings required of each of them or any of their Affiliates under Antitrust Laws with respect to the Transaction (collectively, the “Antitrust Applications”).  As soon as practicable after the execution of this Agreement, and, with respect to the Regulatory Applications, in any event, within 60 calendar days after the date of this Agreement (with an additional 30 calendar days for Regulatory Applications related to LFAs, State Regulatory Authorities and Broadband Grants subject to extension upon the mutual agreement of the parties), Cabot Parent and Columbus shall prepare and file or deliver, or cause to be prepared and filed or delivered, the Regulatory Applications and any other applications (other than the Antitrust Applications) seeking consent or approval of, clearance from, or filings, notices, declarations or registrations with, any other Government Entities that are necessary for the consummation of the transactions contemplated hereby (together with the Antitrust Applications, the “Regulatory Approvals”). In addition, Cabot Parent shall cause Cabot to use reasonable best efforts to promptly obtain, and to obtain no later than the End Date, for any Cabot Franchise for which a valid notice of renewal pursuant to the formal renewal procedures established by Section 626 of the Communications Act has not been timely delivered to the appropriate Government Entity, a renewal or extension of either (i) at least thirty-seven (37) months; or (ii) at least two (2) years and an agreement by such Government Entity to abide by the renewal procedures set forth in subsections (b) through (g) of Section 626.

 

(b)           Subject to the terms of this Section 5.5, the parties shall cooperate with each other in all reasonable respects and shall use reasonable best efforts to (i) obtain the Regulatory Approvals as promptly as practicable, including to resolve such objections, if any, as may be asserted by any Government Entity with respect to the Transaction under the Antitrust Laws, the Communications Laws or any other applicable Law in connection with the Transaction, (ii) take such actions as may be required to cause the expiration of the waiting or notice periods under the Communications Laws or the Antitrust Laws with respect to the Transaction as promptly as possible after the execution of this Agreement, (iii) promptly file any additional information required by any Government Entity in connection with the Regulatory Approvals as soon as practicable after receipt of a request for additional information and (iv) cooperate with each other in connection with any such filing (including, to the extent permitted by applicable Law, providing copies of drafts of all prepared filings to the non-filing parties prior to filing and considering all reasonable additions, deletions or changes suggested in connection therewith) and in connection with resolving any investigation or other inquiry of any such Government Entity with respect to any such filing.  Without the prior consent of Columbus, none of Cabot Parent, Cabot or any of its Subsidiaries shall agree with any Government Entity to extend or to toll the time limits applicable to such Government Entity’s consideration of any Regulatory Approval.  Each of Cabot Parent and Columbus shall promptly inform the other party of any material and substantive oral communication with, and provide copies of written communications (and memoranda setting forth the substance of any material and substantive oral communication) with, any Government Entity regarding any Regulatory Approval.  Unless prohibited by applicable Law or by the applicable Government Entity, and subject to the other terms of this Section 5.5, each of Cabot Parent and Columbus shall consult with the other party prior to any meetings, by telephone or in person, with the staff of a Government Entity in connection with the transactions contemplated by this Agreement and, to the extent reasonably practicable, provide reasonable prior notice to, and include the other party in, material and substantive meetings or conversations with any Government Entity in connection with the transactions contemplated by this Agreement.  If such notice and inclusion is prohibited by applicable Law or is not reasonably practicable, such party shall keep the other party apprised with respect thereto.  In furtherance of its obligations under this Section 5.5, each of Cabot Parent and Columbus shall use its reasonable best efforts to furnish to the other party all information reasonably requested by the other party in connection with Regulatory Approvals, and will consult and cooperate with the other party in connection with, any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals relating to Regulatory Approvals. Each of Cabot Parent and Columbus may designate competitively sensitive material provided to the other party under this Section 5.5 as “outside counsel only” if such designating party reasonably deems it advisable and necessary to do so and provided that it is standard industry practice to refrain from disclosing such material in the context of an acquisition or merger transaction (it being agreed that such materials designated as “outside counsel only” and the information contained therein shall be given only to the outside legal counsel of the recipient and will not be disclosed by such outside counsel to employees, officers, or directors of the recipient, unless express written permission is obtained in advance from the source of the materials).  In addition, each of Cabot Parent and Columbus may redact any material provided to the other parties under this Section 5.5 (whether or not competitively sensitive or designated as “outside counsel only”) (w) to exclude Transaction-Related Documents, as defined under the HSR Act, (x) to remove references concerning the valuation of businesses, (y) as necessary to comply with contractual agreements, and (z) as necessary to address reasonable privilege concerns.  Subject to compliance with its obligations in this Section 5.5, Columbus shall be entitled, upon reasonable consultation in advance with Cabot Parent and after good faith consideration of the views of Cabot Parent, to direct the strategy with respect to obtaining the Regulatory Approval; however neither Columbus nor Cabot Parent may commit to or agree with any Government Entity to enter into a timing agreement, stop the clock, stay, toll or extend any applicable waiting period or withdraw and refile its Notification and Report form as required by the Antitrust Laws or other applicable Law, or enter into any similar timing agreement, without the prior written consent of the other party (not to be unreasonably withheld, conditioned or delayed).

 

(c)           Notwithstanding anything in this Agreement to the contrary, Columbus, Columbus Holdings and Cabot Parent understand and agree that “reasonable best efforts” shall require Columbus, Columbus Holdings and their respective Subsidiaries to (i) divest or otherwise hold separate (including by establishing a trust or otherwise) any businesses, assets or properties of Columbus, Columbus Holdings and their respective Subsidiaries (including Cabot and the Transferred Subsidiaries), other than businesses, assets or properties that, individually or in the aggregate, are material to Columbus, Columbus Holdings and their respective Subsidiaries (including Cabot and the Transferred Subsidiaries), taken as a whole, (ii) accept any conditions or take any other actions that would apply to, or affect, any businesses, assets or properties of Columbus, Columbus Holdings and their respective Subsidiaries (including of Cabot or any Transferred Subsidiary or the Cabot Business), other than (A) any condition requiring significant construction or any condition in perpetuity, (B) any condition or action that is inconsistent with or violative of any conditions imposed by the FCC in connection with securing Regulatory Approvals from the FCC or (C) any condition or action that would reasonably be expected, individually or in the aggregate, to materially adversely affect (financially or otherwise) the business, assets or results of operations of Columbus, Columbus Holdings and their respective Subsidiaries (including Cabot and the Transferred Subsidiaries), taken as a whole, and (iii) unless mutually agreed by the parties, litigate or participate in the litigation of any proceeding involving the FCC, the FTC or Antitrust Division, or any other Government Entity, whether judicial or administrative, in order to (A) oppose or defend against any action by any such Government Entity to prevent or enjoin the consummation of the Transaction, this Agreement or the Ancillary Agreements or (B) overturn any regulatory action by any such Government Entity to prevent consummation of the Transaction, this Agreement or the Ancillary Agreements, including by defending any suit, action or other legal proceeding brought by any such Government Entity in order to avoid the entry of, or to have vacated, overturned or terminated or appealing any order (provided that Columbus shall direct the strategy in connection with any litigation under this clause (iii)) (any condition, remedy or action that Columbus or Columbus Holdings is not required to accept or take under this Section 5.5(c), a “Burdensome Condition”). Notwithstanding the foregoing, neither Columbus nor Columbus Holdings shall be required to commit to or effect any action contemplated by this Section 5.5 that is not conditioned upon the consummation of the Transaction and the other transactions contemplated by this Agreement and the Ancillary Agreements.

 

Section 5.6           Transfer Tax and Sales Tax Matters; General Tax Cooperation.

 

(a)           Columbus Holdings shall be responsible for and pay one-half of all Transfer Taxes and one-half of any Sales Taxes, and Cabot Parent shall be responsible for and pay one-half of all Transfer Taxes and one-half of any Sales Taxes.  Any Tax Returns that must be filed in connection with Transfer Taxes or Sales Taxes shall be prepared by the party primarily or customarily responsible under applicable Law for filing such Tax Returns, and such party will use commercially reasonable efforts to provide such Tax Returns to the other party at least ten (10) Business Days prior to the date such Tax Returns are due to be filed.  Columbus and Cabot Parent shall cooperate in the timely completion and filing of all such Tax Returns.

 

(b)           Cabot Parent and Columbus Holdings shall provide each other with such assistance as reasonably may be requested by either of them in connection with (i) the preparation of any Tax Return, or (ii) any audit or other examination by any taxing authority, or any judicial or administrative proceedings relating to liability for Taxes.  The party requesting assistance hereunder shall reimburse the other party for reasonable out-of-pocket expenses incurred in providing such assistance, provided, however, that, for purposes of receiving reimbursement, no independent contractors, such as accountants or attorneys, shall be consulted without the written consent of the party requesting assistance, which consent shall not be unreasonably withheld.

 

(c)           Columbus Holdings shall indemnify and hold harmless Cabot Parent from and against any Transfer Taxes and any Sales Taxes for which Columbus Holdings is responsible pursuant to Section 5.6(a).

 

Section 5.7           Employees.

 

(a)           Transfer of Employment.  Cabot Parent, Cabot and their respective Subsidiaries shall take all reasonably necessary actions to ensure that, as of immediately prior to the Closing, (i) all Employees of Cabot Parent or its Subsidiaries who provide services primarily with respect to the Cabot Business (each, a “Cabot Business Employee”) are employed by Cabot or one of the Transferred Subsidiaries, including for clarity any such employee who, on the Closing Date, is on leave of any kind, and (ii) Cabot and the Transferred Subsidiaries do not employ any individual who is not a Cabot Business Employee, including for clarity any such individual who, on the Closing Date, is on leave of any kind.  Section 5.7(a) of the Cabot Disclosure Schedule sets forth a correct and complete list, as of the date hereof, of each employee that is employed by Cabot or one of the Transferred Subsidiaries, and each such employee’s title, location of employment, date of hire (or with respect to employees of SEGRA, years of service), base salary or hourly wage rate and target incentives and/or commissions. As soon as reasonably practicable after the date of this Agreement and in no event later than sixty (60) days after the date hereof, Cabot Parent shall provide a correct and complete list of all Cabot Business Employees to the Columbus Parties, which list will be subject to update for new hires (to the extent permitted by the terms of this Agreement) from time to time until the Closing Date.  The Cabot Business Employees who continue employment with Columbus, Cabot or any of their respective Subsidiaries from and following the Closing Date are hereinafter referred to as the “Continuing Employees.”  With respect to any Continuing Employees who hold work visas, Cabot Parent and the Columbus Parties shall cooperate to provide for the transfer of the sponsorship of such visas to the Columbus Parties effective as of the Closing Date.  To the extent any Cabot Business Employee cannot be transferred to Cabot or one of the Transferred Subsidiaries, or it is commercially impractical to do so before the Closing (each such Cabot Business Employee, an “Offer Employee”), the Columbus Parties shall, or shall cause one of their Subsidiaries to, make offers of employment to each such Offer Employee in accordance with applicable Law, and on terms and conditions consistent with the requirements of Section 5.7(b).

 

(b)           Terms of Compensation and Benefits Following the Closing.  Following the Closing:

 

(i)           until the first anniversary thereof, the Columbus Parties shall provide, or shall cause to be provided to each Continuing Employee (1) who is a commissions-based employee, base wages that are no less favorable than the base wages provided immediately prior to the Closing to each such Continuing Employee, (2) base salary or base wage and annual bonus and other short-term incentive opportunities, which are no less favorable in the aggregate than those provided immediately prior to the Closing to each such Continuing Employee, provided that this clause (2) shall not apply to any commissions-based employee, (3) target equity or equity-based incentive opportunities and employee benefits (other than severance) that are no less favorable in the aggregate than those provided to similarly situated employees of Columbus and its Subsidiaries; provided that, for purposes of determining whether such pay, opportunities and benefits are no less favorable in the aggregate, defined benefit pension plan benefits, retention, sale, stay, or change in control payments or awards or any similar compensation or benefit shall not be taken into account and (4) severance benefits that are no less that those provided under a severance plan to be mutually agreed between Cabot Parent and the Columbus Parties;

 

(ii)           the service of each Continuing Employee with Cabot Parent or any of its Subsidiaries (or any predecessor employer) prior to the Closing shall be treated as service with Columbus and its Subsidiaries for purposes of eligibility to participate and vesting under each employee benefit plan, agreement, program, policy and arrangement of Columbus or its Subsidiaries (the “Columbus Plans”) (including vacation, paid time-off and severance plans) in which such Continuing Employee is eligible to participate and participates in after the Closing; provided that such recognition of service shall not (A) apply for purposes of any defined benefit retirement plan or plan that provides retiree medical or welfare benefits, (B) operate to duplicate any benefits of a Continuing Employee with respect to the same period of service or (C) apply for purposes of any plan, program or arrangement (x) under which similarly situated employees of Columbus and its Subsidiaries do not receive credit for prior service or (y) that is grandfathered or frozen, either with respect to level of benefits or participation; and

 

(iii)           for purposes of each Columbus Plan in which any Continuing Employee or his or her eligible dependents is eligible to participate and participates in after the Closing, to the extent commercially reasonable and permitted by applicable Law, Columbus shall or shall cause its applicable Subsidiary to (A) waive any pre-existing condition, exclusion, or waiting period to the extent such condition, exclusion, or waiting period was satisfied or waived under the comparable Benefit Plan as of the Closing and (B) provide full credit for any co-payments, deductibles or similar payments made or incurred prior to the Closing under the comparable Benefit Plan for the plan year in which the Closing occurs.

 

(c)           Health and Welfare Plans.  For periods prior to the Closing, Cabot Parent and its Subsidiaries shall comply with the health care continuation coverage requirements of Section 4980B of the Code or Part 6 of Title I of ERISA and the portability requirements under the Health Insurance Portability and Accountability Act of 1996, in each case, with respect to the Cabot Business Employees and individuals who would have been Cabot Business Employees if employed on the Closing Date.

 

(d)           401(k) Plans.  From and following the Closing, Cabot Parent and its Subsidiaries (excluding Cabot and the Transferred Subsidiaries) shall retain all Liabilities, along with all assets under, all tax-qualified 401(k) retirement plans sponsored by Cabot Parent and its Subsidiaries (collectively the “Cabot Parent 401(k) Plan”).  With respect to the tax-qualified 401(k) retirement plan maintained by Columbus for its employees (the “Columbus 401(k) Plan”), Columbus and Cabot Parent shall take all actions necessary either (i) to permit, beginning as soon as practicable following the Closing, each Continuing Employee to effect a rollover contribution of “eligible rollover distributions” (within the meaning of Section 401(a)(31) of the Code, and including loans) of such Continuing Employee’s account balance (which shall become fully vested as of immediately prior to the Closing) from the Cabot Parent 401(k) Plan to the Columbus 401(k) Plan, in the form of cash, in an amount equal to the full account balance (including loans) distributed to such employee from the Cabot Parent 401(k) Plan or (ii) at Columbus’s option, to effect a direct transfer from a trust established under the Cabot Parent 401(k) Plan to a trust established under the Columbus 401(k) Plan of each Continuing Employee’s account balance under the Cabot Parent 401(k) Plan to the Columbus 401(k) Plan, provided that all transferred assets shall be in the form of cash.

 

(e)           Flexible Spending Accounts.

 

(i)           Immediately prior to the Closing Date, either Columbus or its Subsidiaries shall have in effect one or more plans or arrangements providing for health care flexible spending and dependent care spending accounts (each, a “Columbus Flex Plan”) in which each Continuing Employee who participates in the Cabot Parent Flex Plan (the “Cabot Parent Flex Plan”) is eligible to participate as of the Closing Date.  To the extent permitted by applicable Law and to the extent applicable, Cabot Parent and Columbus shall take all actions necessary or appropriate so that, effective as of the Closing Date, (A) the account balance (positive or negative) in the applicable accounts of each Continuing Employee under the Cabot Parent Flex Plan shall be transferred to the applicable Columbus Flex Plans; (B) the elections, contribution levels and coverage levels of such Continuing Employee shall apply under the applicable Columbus Flex Plans, in the same manner as under the Cabot Parent Flex Plan; and (C) from and after the Closing Date, each Continuing Employee shall be reimbursed from the applicable Columbus Flex Plans in a comparable manner based on similar terms as the Cabot Parent Flex Plan for claims incurred at any time during the plan year in which the Closing Date occurs.

 

(ii)           As soon as reasonably practicable after the Closing Date (and in no event more than 120 days thereafter), Cabot Parent shall determine the positive or negative Aggregate Flex Plan Balance (as defined below) and notify Columbus of the amount of such Aggregate Flex Plan Balance in writing.  The term “Aggregate Flex Plan Balance” shall mean, as of the Closing Date, the aggregate amount of contributions that have been made to the accounts of the Continuing Employees under the Cabot Parent Flex Plan for the plan year in which the Closing Date occurs, minus the aggregate amount of reimbursements that have been made from the accounts of the Continuing Employees under the Cabot Parent Flex Plan for the plan year in which the Closing Date occurs.  If the applicable Aggregate Flex Plan Balance is a negative amount, Columbus shall pay the absolute value of such amount to Cabot Parent as soon as reasonably practicable following Columbus’s receipt of the written notice thereof.  If the applicable Aggregate Flex Plan Balance is a positive amount, Cabot Parent shall pay such positive amount to Columbus as soon as reasonably practicable following Cabot Parent’s receipt of the written notice thereof.

 

(f)           Short-Term Cash Incentive Compensation.  Between the date hereof and the Closing, Cabot Parent and its Subsidiaries shall continue to pay all annual bonuses and other short-term cash incentive compensation that become due to the Cabot Business Employees or individuals who would have been Cabot Business Employees if employed on the Closing Date in the Ordinary Course (and, for the avoidance of doubt, shall not delay the payment of any amount otherwise payable in accordance with its terms or in the Ordinary Course prior to the Closing until after the Closing).  From and following the Closing, Columbus and its Subsidiaries shall assume all Liabilities in respect of annual bonuses and other short-term cash incentive compensation (other than commissions) that become due to the Cabot Business Employees from and following the Closing, which for any performance period that is ongoing as of the Closing shall be subject to terms and conditions that are substantially consistent, in all material respects, with those that applied prior to the Closing Date, including with respect to the timing of payment and target incentive opportunities.  Columbus shall (and shall cause its Subsidiaries to) pay, to any Continuing Employee whose employment is involuntarily terminated by Columbus (or any of its Subsidiaries) on or after the Closing Date other than for cause or due to death or disability, who was prior to termination eligible for an annual bonus in respect of the year of termination, and who executes, and does not revoke, a release of claims in a form provided by Columbus, in favor of Columbus, Cabot Parent and their respective Subsidiaries, an annual bonus in respect of the year in which the Closing Date occurs, in an amount equal to the Continuing Employee’s target bonus opportunity then in effect, prorated based on the ratio of (x) the number of days elapsed from and including the commencement of the bonus year through and including the Continuing Employee’s termination date divided by (y) the total number of days in the bonus year, and payable within fifty (50) days following employment termination; provided, however, any payment to a Continuing Employee contemplated by this sentence shall be reduced by the value of any payments in respect of the applicable Continuing Employee’s annual bonus for the portion of the year of termination preceding the date of termination that are made to the applicable Continuing Employee under any other arrangement to the extent such payment would result in a duplicative bonus for the same period of service.

 

(g)           Cabot Long-Term Awards.

 

(i)           Effective as of immediately prior to the Closing, each outstanding long-term incentive award granted in respect of fiscal 2024 or fiscal 2025 under the Cabot Parent Amended and Restated Long-Term Incentive Plan (a “Cabot Long-Term Award”) that is then outstanding and is held by a Cabot Business Employee or individual who would have been a Cabot Business Employee if employed on the Closing Date shall vest, with any applicable performance goals in respect of incomplete performance periods deemed satisfied at the target level (or, if there is no target, deemed achieved) and be paid by Cabot Parent or its Subsidiaries (excluding Cabot and the Transferred Subsidiaries) on or following the Closing Date in accordance with applicable Law and the applicable award terms.  Cabot Parent and its Subsidiaries (excluding Cabot and the Transferred Subsidiaries) shall retain and be responsible for all Liabilities related to any Cabot Long-Term Awards, which shall be considered Excluded Liabilities.

 

(ii)           With respect to fiscal 2026, Cabot Parent or its Subsidiaries shall not grant Cabot Long-Term Awards to Cabot Business Employees. As soon as reasonably practicable following the day after the first anniversary of the Closing Date (the “Payment Date”), Cabot Parent or its Subsidiaries (excluding Cabot and the Transferred Subsidiaries) shall deliver an amount in cash to the Columbus Parties that represents one-third of the value of Cabot Long-Term Awards that would have been granted to Continuing Employees in respect of fiscal 2026, as determined by the Columbus Parties in consultation with Cabot Parent (the “2026 Cabot Business Employee Award Value”), provided that the 2026 Cabot Business Employee Award Value shall be calculated solely by reference to the Cabot Long-Term Awards that would have been granted to those Continuing Employees who remain employed with the Columbus Parties through the Payment Date. As soon as reasonably practicable following the Payment Date, and in no event later than March 15^th of the year following the Payment Date, the Columbus Parties shall pay to each such Continuing Employee the portion of 2026 Cabot Business Employee Award Value that corresponds to such Continuing Employee’s name, as set forth on a schedule to be provided to the Columbus Parties by Cabot Parent or its Subsidiaries.

 

(iii)           As soon as reasonably practicable following the Closing, the Columbus Parties shall grant to each Continuing Employee an award in respect of Columbus Class A Common Stock with a grant date fair value that is equal to two-thirds of the value of Cabot Long-Term Award that would have been granted to such Continuing Employee in respect of fiscal 2026.

 

(h)         Severance.  Prior to the Closing, Cabot Parent and its Subsidiaries shall use reasonable best efforts to ensure that the transactions contemplated by this Agreement do not trigger entitlement to any severance compensation or benefits (“Severance Compensation”) to any Cabot Business Employee or Continuing Employee.  Between the date hereof and the Closing, Cabot Parent and its Subsidiaries shall continue to pay all Severance Compensation that becomes payable to any individuals who would have been Cabot Business Employees if employed as of the Closing in the Ordinary Course (and, for the avoidance of doubt, shall not delay the payment of any such amounts otherwise payable prior to the Closing until after the Closing).  Columbus and its Subsidiaries shall be responsible for all Liabilities related to any Severance Compensation that becomes payable to any Cabot Business Employee, Continuing Employee or individual who would have been a Cabot Business Employee if employed as of the Closing, whether arising prior to, on or after the Closing Date; provided, however, in the event that Columbus and its Subsidiaries incur any Liabilities as a result of Cabot Parent and its Subsidiaries’ breach of their obligations hereunder, Cabot Parent and its Subsidiaries shall retain and reimburse Columbus and its Subsidiaries for any such Liabilities.

 

(i)           WARN Act.  Cabot Parent shall periodically notify Columbus of the number and work location of employees of the Cabot Business or Cabot or any of the Transferred Subsidiaries laid-off during the 90-day period prior to the Closing, and shall provide to Columbus a final list as of immediately prior to the Closing.  Subject to Cabot Parent’s compliance with the immediately preceding sentence, Columbus shall be responsible for providing or discharging any and all notifications, benefits and liabilities to Continuing Employees and governmental authorities required by the WARN Act.

 

(j)           Paid Time Off.  Following the Closing, Columbus shall assume and honor, in accordance with the terms of the applicable Benefit Plan, the unused vacation or paid-time off earned and accrued by each Continuing Employee.

 

(k)          Employee Communications.  To the extent reasonably practicable, prior to making any broadly-distributed written or oral communications to Cabot Business Employees or the directors, officers or employees of Cabot or any of the Transferred Subsidiaries pertaining to material post-Closing compensation or benefit matters that are affected by the Transaction, Cabot Parent shall or shall cause Cabot to consult with Columbus regarding the content of the intended communication, and shall consider any feedback in good faith (provided that any subsequent communications substantively consistent with those previously consulted upon will not require any further consultation).  Columbus shall have a reasonable period of time to review and comment on the communication, which comments Cabot Parent and Cabot shall consider in good faith.

 

(l)           280G Matters.  Prior to the Closing Date, Cabot Parent shall submit for approval by its equity holders, in conformance with Section 280G of the Code and the regulations thereunder (the “280G Stockholder Vote”), any payments that would reasonably be expected to constitute a “parachute payment” pursuant to Section 280G of the Code (each a “Parachute Payment”) on behalf of each “disqualified individual” (as defined in Section 280G of the Code and the regulations promulgated thereunder) and which are irrevocably waived by such individual under the immediately following sentence.  Prior to the distribution of the 280G Stockholder Vote materials, Cabot Parent shall use commercially reasonable efforts to obtain an irrevocable waiver of the right to any Parachute Payment (in the absence of the 280G Stockholder Vote) from each of the applicable disqualified individuals whose Parachute Payments would be subject to the 280G Stockholder Vote.  Cabot Parent shall have delivered to Columbus complete copies of all disclosure and other related documents that will be provided to the equity holders entitled to vote in connection with the 280G Stockholder Vote, in each case, solely with respect to Cabot Business Employees, Continuing Employees, or individuals who would have been a Cabot Business Employee if employed as of the Closing, in a manner providing Columbus with sufficient time to review and comment thereon, and shall consider in good faith all reasonable comments of Columbus thereon. Columbus acknowledges that this Section 5.7(l) shall not be construed to require Cabot Parent or its Subsidiaries to compel any Person to waive any existing legally binding rights under any contract or agreement that such Person has with Cabot Parent or any Subsidiary thereof and in no event shall Cabot Parent be deemed to be in breach of this Section 5.7(l) if, despite its commercially reasonable efforts to obtain a waiver from such Person, any such Person refuses to waive any such rights. The parties hereto acknowledge that this Section 5.7(l) shall not apply to any agreement, contract, arrangement or plan entered into by and between Columbus or any of its Subsidiaries and a Cabot Business Employee or Continuing Employee (“Columbus Arrangements”), unless such Columbus Arrangements have been disclosed to Cabot Parent at least ten Business Days prior to the Closing Date.  To the extent any Columbus Arrangement is not disclosed to Cabot Parent at least ten Business Days prior to the Closing Date, compliance with this Section 5.7(l) shall be determined as if such Columbus Arrangement had not been entered into.

 

(m)        No Third-Party Beneficiaries.  Notwithstanding any provision of this Section 5.7, Columbus shall either cause the Continuing Employees to continue to participate in the existing Cabot Benefit Plans that continue to be maintained by Cabot from and after the Closing or, in its sole discretion, cause the Continuing Employees to participate in the Columbus Plans.  Furthermore, nothing contained in this Section 5.7 shall require or imply that the employment of the Cabot Business Employees or the Continuing Employees will continue for any particular period of time following the Closing.  This Section 5.7 is not intended, and shall not be deemed, to confer any rights or remedies upon any Person other than the parties to this Agreement and their respective successors and permitted assigns, to create any agreement of employment with any Person or to otherwise create any third-party beneficiary hereunder, or to be interpreted as an amendment to any plan of Columbus or any Subsidiary of Columbus (including Cabot and the Transferred Subsidiaries).

 

Section 5.8         Notification.  Between the date of this Agreement and the Closing Date, Cabot Parent shall give prompt notice to Columbus, and Columbus shall give prompt notice to Cabot Parent, (a) of any notice or other communication received by such party from any Government Entity in connection with the Transaction or from any Person alleging that the consent of such Person is or may be required in connection with the Transaction, if the subject matter of such communication or the failure of such party to obtain such consent could be material to Cabot, the Transferred Subsidiaries, any Columbus Party or the Transaction, (b) of any actions, suits, claims, investigations or proceedings commenced relating to the Transaction, and (c) if such party becomes aware of any fact, circumstance or event that would reasonably be expected to cause any of the conditions set forth in Section 6.1, 6.2 or 6.3 not to be satisfied.  Notwithstanding the foregoing, it is understood and agreed that neither the delivery or non-delivery of any notice pursuant to this Section 5.8 nor any disclosures provided thereby shall affect any of the rights, remedies or obligations of the parties hereunder.

 

Section 5.9         Transition Matters.  In light of the non-ordinary course nature of the change of control of the Cabot Business, prior to the Closing, Cabot Parent and Columbus shall consult closely in monitoring activities of the Cabot Business relating to the change of control of the Cabot Business under the syndication agreements to which the Cabot Business is a party as of the date of this Agreement.  Prior to the Closing, the Cabot Parent Parties shall not, and shall cause Cabot and the Transferred Subsidiaries not to, without prior discussion with Columbus, enter into new Contracts that materially change the scope of existing syndications with respect to the period after the Closing.  Nothing herein shall give Columbus the right to influence or control the Cabot Business prior to Closing.

 

Section 5.10       Columbus Stockholder Meeting.  Columbus shall cause a meeting of its stockholders (the “Columbus Stockholder Meeting”) to be duly called and held as soon as reasonably practicable after the date of this Agreement for the purpose of obtaining the Columbus Stockholder Approvals.  In connection with the Columbus Stockholder Meeting, the Board of Directors of Columbus shall (i) subject to Section 5.11, (1) recommend approval and adoption of the Columbus Stockholder Approvals by Columbus’s stockholders (the “Columbus Board Recommendation”) and (2) use its reasonable best efforts to obtain the Columbus Stockholder Approvals and (ii) otherwise comply with all legal requirements applicable to such meeting.  Without limiting the generality of the foregoing, unless this Agreement has terminated in accordance with its terms, this Agreement, the Certificate Amendment and the Cabot Parent Issuance shall be submitted to Columbus’s stockholders at the Columbus Stockholder Meeting whether or not (x) Columbus’s Board of Directors shall have effected an Adverse Recommendation Change or (y) any Columbus Acquisition Proposal shall have been publicly proposed or announced or otherwise submitted to Columbus or any of its Representatives. Columbus shall not, without the prior written consent of Cabot, adjourn or postpone the Columbus Stockholder Meeting; provided that Columbus may, without the prior written consent of Cabot, adjourn or postpone the Columbus Stockholder Meeting (A) if, as of the time for which the Columbus Stockholder Meeting is originally scheduled (as set forth in the Proxy Statement), there are insufficient shares of Columbus Class A Common Stock or Columbus Class B Common Stock represented (either in person or by proxy) to constitute a quorum necessary to conduct the business of the Columbus Stockholder Meeting, (B) after consultation with Cabot Parent, if the failure to adjourn or postpone the Columbus Stockholder Meeting would reasonably be expected to be a violation of Law for the distribution of any required supplement or amendment to the Proxy Statement, (C) after consultation with Cabot Parent, for a single period not to exceed ten (10) Business Days, to solicit additional proxies if necessary to obtain the Columbus Stockholder Approvals, or (D) if Columbus has delivered to Cabot Parent a bona fide notice contemplated by Section 5.11(c), for a maximum of ten (10) Business Days. Cabot Parent may require Columbus to adjourn, delay or postpone the Columbus Stockholder Meeting once for a period not to exceed ten (10) Business Days to solicit additional proxies necessary to obtain the Columbus Stockholder Approvals; provided that such adjournment would not cause the Transaction to fail to be consummated by the End Date.  Once Columbus has established a record date for the Columbus Stockholder Meeting, Columbus shall not change such record date or establish a different record date for the Columbus Stockholder Meeting without the prior written consent of Cabot Parent (not to be unreasonably withheld, delayed or conditioned), unless required to do so by Law or Columbus’s organizational documents.

 

Section 5.11         No Solicitation; Other Offers.

 

(a)           General Prohibitions.  Prior to receipt of the Columbus Stockholder Approvals, neither Columbus nor any of its Subsidiaries shall, nor shall Columbus or any of its Subsidiaries authorize or permit any of its or their Representatives to, directly or indirectly, (i) solicit, initiate or take any action to knowingly facilitate or encourage the submission of any Columbus Acquisition Proposal, (ii) enter into or participate in any discussions (other than to state that Columbus is not permitted to have discussions) or negotiations with any Third Party that is seeking to make, or has made, a Columbus Acquisition Proposal, (iii) furnish any non-public information relating to Columbus or any of its Subsidiaries or afford access to the business, properties, assets, books or records of Columbus or any of its Subsidiaries to, otherwise knowingly cooperate in any way with, or knowingly assist, participate in, facilitate or encourage any effort by any Third Party that is seeking to make, or has made, a Columbus Acquisition Proposal, (iv) make an Adverse Recommendation Change, (v) fail to enforce, or grant any waiver or release under, any standstill or similar agreement with respect to any class of equity securities of Columbus or any of its Subsidiaries unless the Board of Directors of Columbus determines after consulting with its outside legal counsel that the failure to waive such provision would be inconsistent with its fiduciary duties under Law; provided that Columbus shall not enforce and hereby waives any provision of any such agreement that would prohibit a Third Party from communicating confidentially a Columbus Acquisition Proposal to Columbus’s Board of Directors, (vi) approve any transaction under, or any Person becoming an “interested stockholder” under, Section 203 of the DGCL or (vii) enter into any agreement in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement or other similar instrument relating to a Columbus Acquisition Proposal (other than a confidentiality agreement to the extent contemplated by Section 5.11(b)); provided that (so long as Columbus and its Representatives have otherwise complied in all material respects with this Section 5.11) none of the foregoing shall prohibit Columbus and its Representatives from, at any time prior to receipt of the Columbus Stockholder Approvals, participating in discussions with any Persons or group of Persons who has made a Columbus Acquisition Proposal after the date of this Agreement solely to request the clarification of the terms and conditions thereof so as to determine whether the Columbus Acquisition Proposal is, or could reasonably be expected to lead to, a Columbus Superior Proposal, and any such actions shall not be a breach of this Section 5.11(a). It is agreed that any violation of the restrictions on Columbus set forth in this Section 5.11 by any Representative of Columbus or any of its Subsidiaries shall be a breach of this Section 5.11 by Columbus.

 

(b)           Recommendation Exceptions.  Notwithstanding Section 5.11(a), but subject to Section 5.11(c) and Section 5.11(d), at any time prior to receipt of the Columbus Stockholder Approvals:

 

(i)           Columbus, directly or indirectly through advisors, agents or other intermediaries, may (A) engage in negotiations or discussions with any Third Party that, subject to Columbus’s compliance with Section 5.11(a), has made after the date of this Agreement a Columbus Superior Proposal or a Columbus Acquisition Proposal that the Board of Directors of Columbus determines in good faith, after consultation with its outside legal advisors, could reasonably be expected to lead to a Columbus Superior Proposal by the Third Party making such Columbus Acquisition Proposal, (B) furnish to such Third Party and its advisors, agents or other intermediaries (including financing sources) non-public information relating to Columbus or any of its Subsidiaries pursuant to a customary confidentiality agreement (a copy of which shall be provided for informational purposes only to Cabot Parent) with such Third Party with terms no less favorable to Columbus than those contained in the Confidentiality Agreement (it being understood and hereby agreed that such confidentiality agreement need not contain a “standstill” or similar provision that prohibits such Third Party from making any Columbus Acquisition Proposal, acquiring Columbus or taking any other action); provided that all such information (to the extent that such information has not been previously provided or made available to Cabot Parent) is provided or made available to Cabot Parent, as the case may be, prior to or as promptly as practicable (but no later than 24 hours) after the time it is provided or made available to such Third Party and (C) take any action required by Law or that any court of competent jurisdiction orders Columbus to take;

 

(ii)           following receipt of a Columbus Superior Proposal, the Board of Directors of Columbus may, subject to compliance with Section 5.11(d), make an Adverse Recommendation Change; and

 

(iii)           following a Columbus Intervening Event, the Board of Directors of Columbus may, subject to compliance with Section 5.11(d), make an Adverse Recommendation Change involving or relating to such Columbus Intervening Event;

 

in each case referred to in the foregoing clauses (i), (ii) and (iii) only if the Board of Directors of Columbus determines in good faith, after considering advice from outside legal counsel, that the failure to take such action would be inconsistent with its fiduciary duties under Law.  For purposes of clarification, the taking of any of the actions permitted by Section 5.11(a) and Section 5.11(b)(i) shall not be deemed to be an Adverse Recommendation Change.

 

In addition, nothing contained herein shall prevent Columbus or its Board of Directors from (i) complying with Rule 14a-9, Rule 14d-9 or Rule 14e-2(a) and Item 1012(a) of Regulation M-A under the Exchange Act (or making any similar communication to stockholders in connection with any amendment to the terms of a tender offer or exchange offer) so long as any action taken or statement made to so comply is consistent with this Section 5.11 or (ii) disclosing factual information regarding the business, financial condition or results of operations of Columbus or Cabot or the fact that a Columbus Acquisition Proposal has been made, the identity of the party making such proposal or the material terms of such proposal in the Proxy Statement or otherwise, to the extent Columbus in good faith determines that such information, facts, identity or terms is required to be disclosed under Law or that failure to make such disclosure would be inconsistent with its fiduciary duties under Law; provided that any such action taken or statement or disclosure made that relates to a Columbus Acquisition Proposal shall be deemed to be an Adverse Recommendation Change unless the Board of Directors of Columbus reaffirms the Columbus Board Recommendation in such statement or disclosure or in connection with such action (except that a mere “stop, look and listen” disclosure in compliance with Rule 14d-9(f) of the Exchange Act or failure to take a position with respect to a Columbus Acquisition Proposal governed by the tender offer or exchange offer rules under the Exchange Act until the tenth (10th) Business Day after commencement of such Columbus Acquisition Proposal shall not constitute an Adverse Recommendation Change).

 

(c)           Required Notices.  The Board of Directors of Columbus shall not take any of the actions referred to in Section 5.11(b) unless Columbus shall have delivered to Cabot Parent a prior written notice advising Cabot Parent that it intends to take such action, and, after taking such action, Columbus shall, if such action is in connection with a Columbus Acquisition Proposal, continue to advise Cabot Parent on a current basis of the status and terms of any discussions and negotiations with the Third Party. In addition, Columbus shall notify Cabot Parent promptly (but in no event later than 24 hours) after receipt by Columbus (or any of its Representatives) of any Columbus Acquisition Proposal, any written indication from a Third Party that such Third Party is considering making a Columbus Acquisition Proposal or any written request for information relating to Columbus or any of its Subsidiaries or for access to the business, properties, assets, books or records of Columbus or any of its Subsidiaries by any Third Party that has indicated that it is considering making, or has made, a Columbus Acquisition Proposal. Columbus shall within 24 hours of receipt thereof provide such notice orally and in writing and shall identify the Third Party making, and the material terms and conditions of, any such Columbus Acquisition Proposal, indication or request, and shall promptly (but in no event later than 24 hours after receipt) provide to Cabot Parent copies of all material correspondence and written materials sent or provided to Columbus or any of its Subsidiaries that describes any terms or conditions of any Columbus Acquisition Proposal. Columbus shall keep Cabot Parent reasonably informed, on a reasonably current basis, of the status and details of any such Columbus Acquisition Proposal, indication or request.  Any material amendment to any Columbus Acquisition Proposal will be deemed to be a new Columbus Acquisition Proposal for purposes of Columbus’s compliance with this Section 5.11(c).

 

(d)           “Last Look”.  The Board of Directors of Columbus shall not make an Adverse Recommendation Change in response to a Columbus Acquisition Proposal unless (i) such Columbus Acquisition Proposal constitutes a Columbus Superior Proposal, (ii) Columbus promptly notifies Cabot Parent, in writing at least five (5) Business Days before taking that action, of its intention to do so, attaching the most current version of the proposed agreement under which such Columbus Superior Proposal is proposed to be consummated and the identity of the Third Party making the Columbus Acquisition Proposal, and (iii) the Cabot Parties do not make, within such five (5)-Business-Day period after its receipt of that written notification, an offer to revise the terms of this Agreement that is at least as favorable to the stockholders of Columbus as such Columbus Superior Proposal (it being understood and agreed that any amendment to the financial terms or other material terms of such Columbus Superior Proposal shall require a new written notification from Columbus and a new period under clause (ii) of this Section 5.11(d), except that such period shall be three (3) Business Days instead of five (5) Business Days). The Board of Directors of Columbus shall not make an Adverse Recommendation Change in response to a Columbus Intervening Event, unless (A) Columbus has provided Cabot Parent with written information describing such Columbus Intervening Event in reasonable detail promptly after becoming aware of it and keeps Cabot Parent fully informed, on a reasonably current basis, of material developments with respect to such Columbus Intervening Event, (B) Columbus has provided Cabot Parent at least five (5) Business Days’ prior notice of its intention to make an Adverse Recommendation Change with respect to such Columbus Intervening Event, attaching a reasonably detailed explanation of the facts underlying the determination by the Board of Directors of Columbus that a Columbus Intervening Event has occurred and its need to make an Adverse Recommendation Change in light of the Columbus Intervening Event and (C) the Cabot Parties do not make, within such five (5)-Business-Day period, an offer to revise the terms of this Agreement that Columbus’s Board of Directors determines would obviate the need for an Adverse Recommendation Change in light of the Columbus Intervening Event. During any five (5)-Business-Day period prior to effecting an Adverse Recommendation Change pursuant to this Section 5.11(d), Columbus and its Representatives shall negotiate in good faith with Cabot Parent and its Representatives regarding any revisions to the terms of the transactions contemplated by this Agreement proposed by the Cabot Parties.

 

(e)           Definition of Columbus Superior Proposal.  For purposes of this Agreement, “Columbus Superior Proposal” means a bona fide, unsolicited written Columbus Acquisition Proposal for at least a majority of the outstanding shares of Columbus Class A Common Stock or all or substantially all of the consolidated assets of Columbus and its Subsidiaries that the Board of Directors of Columbus determines in good faith, after consultation with a financial advisor of nationally recognized reputation and outside legal counsel and taking into account all material financial, legal, regulatory and other aspects of such proposal, including the terms and conditions of the Columbus Acquisition Proposal, (x) is on terms and conditions more favorable to Columbus’s stockholders than the transactions contemplated hereby (taking into account any proposal by the Cabot Parties to amend the terms of this Agreement pursuant to Section 5.11(d)) and (y) is reasonably likely to be consummated and, if a cash transaction (whether in whole or in part), has financing, if any, that is then fully committed or reasonably determined to be available by the Board of Directors of Columbus.

 

(f)           Obligation to Terminate Existing Discussions. Each of the Columbus Parties shall, and shall cause its Subsidiaries and its and their Representatives to, cease immediately and cause to be terminated any and all existing activities, discussions or negotiations, if any, with any Third Party and its Representatives and its financing sources conducted prior to the date hereof with respect to any Columbus Acquisition Proposal.

 

Section 5.12        Proxy Filing; Information Supplied.

 

(a)           In connection with the Columbus Stockholder Meeting, Columbus shall, as promptly as practicable after the date hereof (on a timetable to be mutually agreed in light of accounting, regulatory and transactional considerations), prepare and file a proxy statement in preliminary form relating to the Columbus Stockholder Meeting (such proxy statement, including any amendment or supplement thereto, the “Proxy Statement”) with the SEC.  Columbus will provide Cabot Parent and its counsel a reasonable opportunity to review and comment on the Proxy Statement, and shall consider any comments of Cabot Parent thereon.  Columbus shall use its reasonable best efforts to (i) ensure that the Proxy Statement complies as to form in all material respects with the rules and regulations promulgated by the SEC under the Exchange Act, (ii) promptly notify Cabot Parent of, cooperate with Cabot Parent with respect to, and respond promptly to any comments of the SEC or its staff, (iii) have the Proxy Statement become definitive as promptly as practicable after such filing, and (iv) cause the Proxy Statement to be mailed to Columbus’s stockholders as promptly as practicable after such time of becoming definitive.

 

(b)           Each Cabot Party shall furnish all information concerning itself, its Subsidiaries and its Affiliates to Columbus and provide such other assistance as may be reasonably requested by Columbus in connection with the preparation, filing and distribution of the Proxy Statement.

 

(c)           Columbus shall promptly provide Cabot Parent and its counsel with any comments, whether written or oral, that Columbus or its counsel may receive from time to time from the SEC or its staff with respect to the Proxy Statement promptly after receipt of those comments.  Columbus will provide Cabot Parent and its counsel a reasonable opportunity to review and comment on any responses to any comments of the SEC or its staff and any amendment or supplement to the Proxy Statement, and shall consider any comments of Cabot Parent thereon.

 

(d)           Each of the Columbus Parties and the Cabot Parties agrees promptly (i) to correct any information provided by it for use in the Proxy Statement if and to the extent that such information shall have become false and misleading in any material respect and (ii) to supplement any such information to include any information that shall become necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.

 

(e)           Cabot Parent acknowledges that Columbus is subject to the reporting requirements of Section 13(a) of the Exchange Act and in light of Columbus’s reporting requirements, Cabot Parent shall furnish all information concerning itself, its Subsidiaries and its Affiliates to Columbus and shall provide such other assistance as may be reasonably requested in connection with any filings or other disclosures required by the SEC to be made by Columbus in connection with the transactions contemplated by this Agreement on a timely basis.

 

Section 5.13       Financing Cooperation.  Prior to the Closing, each Cabot Party agrees to, and to cause its Subsidiaries to, use reasonable best efforts to provide, and shall use reasonable best efforts to cause their respective Representatives to provide, to the Columbus Parties and their Subsidiaries, such cooperation as may be customary and reasonably requested (subject in all cases to the limitations on access and information in Section 5.1) in writing by Columbus that is necessary in connection with the arrangement of any debt financing to be obtained by the Columbus Parties or any of their Subsidiaries (“Debt Financing”), including:

 

(a)           participating during normal business hours at times to be mutually agreed in a reasonable number of customary meetings, presentations, road shows, due diligence sessions and sessions with rating agencies that are customary for debt financings of the type sought to be arranged;

 

(b)           assisting with the preparation of customary materials for rating agency presentations, offering documents, private placement memoranda, bank information memoranda, prospectuses and similar documents;

 

(c)           as promptly as reasonably practical, furnishing to any of the Columbus Parties, their respective Subsidiaries and/or their financing sources with historical financial information (including quarterly and annual financial statements delivered pursuant to Section 5.1(f)(iii) and (iv)) and other pertinent information relating solely to Cabot and the Transferred Subsidiaries as may be reasonably requested by Columbus (including in connection with any of the Columbus Parties’ and/or their respective Subsidiaries’ preparation of pro forma financial statements), including historical financial statements and other pertinent information relating solely to Cabot and the Transferred Subsidiaries) (x) of the type and form required by Regulation S-X and Regulation S-K promulgated under the Securities Act for a registered public offering of non-convertible debt securities, (y) of the type and form customarily included in private placements of non-convertible debt securities under Rule 144A of the Securities Act or (z) as otherwise reasonably required or otherwise reasonably necessary to assist any of the Columbus Parties and/or their Subsidiaries in receiving customary “comfort” (including “negative assurance” comfort) from independent accountants in connection with any public offering or private placement of non-convertible debt securities; provided, that the Cabot Parties and their Subsidiaries shall not be required to prepare or provide:  (A) any pro forma financial information, including pro forma cost savings, synergies, capitalization or other pro forma adjustments desired to be incorporated into any pro forma financial information, including information or assistance relating to the proposed aggregate amount of debt financing, together with assumed interest rates, dividends (if any) and fees and expenses relating to the incurrence of such debt (it being understood and agreed that the Cabot Parties and their Subsidiaries shall be required to assist the Columbus Parties and/or their respective Subsidiaries with preparing pro forma financial information and pro forma financial statements regarding Cabot and the Transferred Subsidiaries as part of any of the Columbus Parties’ or their respective Subsidiaries’ preparation of pro forma financial information and pro forma financial statements for Columbus or Columbus Holdings and their respective Subsidiaries on a consolidated basis, in each case, that is customary for the type of financing being sought); (B) projections, risk factors or other forward looking information (it being understood and agreed that the Cabot Parties and their Subsidiaries shall be required to assist the Columbus Parties and/or their respective Subsidiaries with the preparation for presentation of projections, risk factors and other forward looking information for Cabot and the Transferred Subsidiaries as part of the consolidated business of Columbus or Columbus Holdings and their respective Subsidiaries, and not on a stand-alone basis, in each case, that is customary for the type of financing being sought); (C) any description of all or any portion of any such Debt Financing, including any “description of notes”, “plan of distribution” or information customarily provided by investment banks or their counsel or advisors in preparation of a prospectus for registered offerings of non-convertible debt securities or an offering memorandum for private placements of non-convertible debt securities under Rule 144A of the Securities Act; (D) segment reporting or consolidating and other financial statements or data required by Rules 3-09, 3-10, 3-16, 13-01 or 13-02 of Regulation S-X under the Securities Act; (E) compensation discussion and analysis and other information required by Item 402, 404 or 601 of Regulation S-K under the Securities Act; (F) any information regarding executive compensation and related pension disclosure rules related to SEC Release Nos. 33-8732A, 34-54302A and IC-27444A; (G) any financial statements (other than the historical financial statements referenced above) that Cabot Parent does not maintain in the Ordinary Course; (H) any other information (other than as expressly set forth above) not reasonably available to Cabot Parent under its current reporting systems; and (I) any other information customarily excluded from a prospectus for registered offerings of non-convertible debt securities or an offering memorandum for private placements of non-convertible debt securities under Rule 144A of the Securities Act (clauses (A) – (I), collectively, the “Excluded Information”);

 

(d)           using reasonable best efforts to cause its independent accountants to cooperate with such Debt Financing consistent with their customary practices and, to the extent reasonably requested by any of the Columbus Parties or their respective Subsidiaries, to obtain customary accountants’ “comfort letters” (including customary “negative assurances”) and customary consents to the inclusion of audit reports in connection with such Debt Financing;

 

(e)         executing and delivering customary authorization and representation letters in connection with such financing arrangements, to the extent reasonably requested by any of the Columbus Parties or their respective Subsidiaries; and

 

(f)          executing and delivering any customary officer’s certificates and similar documents, to the extent reasonably requested by any of the Columbus Parties or their respective Subsidiaries, provided that the effectiveness of any such certificate or similar document shall be subject to the occurrence of and no earlier than the Closing.

 

Section 5.14          Treatment of Cabot Indebtedness.

 

(a)           Columbus or one of its Subsidiaries may (a) commence and conduct one or more offers to purchase, including any offer required to be made in connection with any “Change of Control” (as defined in the applicable supplemental indenture governing each applicable series of Existing Cabot Notes), tender offers or exchange offers with respect to any or all of the outstanding aggregate principal amount of the Existing Cabot Notes identified by Columbus to Cabot Parent prior to, on or after the date hereof on terms that are acceptable to Columbus (the “Offers to Purchase”) and/or (b) solicit the consent of the holders of debt issued under the Existing Cabot Indenture regarding certain proposed amendments to the Existing Cabot Indenture (the “Consent Solicitations” and, together with the Offers to Purchase, if any, the “Cabot Note Offers and Consent Solicitations”); provided that the closing of any such Offers to Purchase shall not occur, and the amendments in connection with any such Consent Solicitations shall not become operative (although any supplemental indentures entered into in connection with any such Consent Solicitations may become effective upon execution), prior to the Closing; provided, further, that the consummation of any Cabot Note Offers and Consent Solicitations shall not be a condition to the Closing.  Any Cabot Note Offers and Consent Solicitations shall be made on such terms and conditions (including price to be paid and conditionality) as are proposed by Columbus and which are permitted by the terms of the Existing Cabot Indenture and applicable Laws, including applicable SEC rules and regulations.  Columbus will reasonably consult with Cabot Parent regarding the material terms and conditions of any Cabot Note Offers and Consent Solicitations, including the timing and commencement of any Cabot Note Offers and Consent Solicitations and any relevant tender or consent deadlines.  Columbus shall not be permitted to commence any Cabot Note Offers and Consent Solicitations until Columbus shall have provided Cabot Parent with the related offer to purchase, consent solicitation statement, letter of transmittal, if any, or press release, if any, in connection therewith, and each other material document relevant to the transaction that will be distributed by Columbus in the applicable Cabot Note Offers and Consent Solicitations (collectively, the “Debt Offer Documents”) a reasonable period of time in advance of Columbus commencing the applicable Offer to Purchase or Consent Solicitation to allow Cabot Parent and its counsel to review and comment on such Debt Offer Documents, and Columbus shall give reasonable and good faith consideration to any comments made or input provided by Cabot Parent and its legal counsel.  Subject to the receipt of the requisite holder consents, in connection with any or all of the Consent Solicitations, Cabot shall execute one or more supplemental indentures to the Existing Cabot Indenture in accordance with the terms thereof amending the terms and provisions of such Existing Cabot Indenture as described in the applicable Debt Offer Documents in a form as reasonably requested by Columbus (each, a “Cabot Supplemental Indenture”), which such supplemental indentures may become effective upon the execution thereof but shall not become operative until the Closing, and Cabot Parent shall use reasonable best efforts to cause the trustee under each such Existing Cabot Indenture to enter into such supplemental indentures.  Cabot Parent shall, and shall cause each of its Subsidiaries to, and shall use reasonable best efforts to cause its and their Representatives to, provide all reasonable and customary cooperation as may be reasonably requested by Columbus in writing to assist Columbus in connection with any Cabot Note Offers and Consent Solicitations; provided that neither Cabot nor counsel for Cabot shall be required to furnish any certificates, legal opinions or negative assurance letters in connection with any Cabot Note Offers and Consent Solicitation (other than in connection with the execution of any Cabot Supplemental Indenture relating to the Consent Solicitations, with respect to which Cabot shall deliver customary officers’ certificates (the “Cabot Indenture Officers’ Certificates”) and counsel to Cabot shall provide customary legal opinions, in each case, to the trustee under the Existing Cabot Indenture and solely to the extent such certificates or legal opinions, as applicable, would not conflict with applicable Laws and would be accurate in light of the facts and circumstances at the time delivered) or execute any other instruments or agreements in connection therewith other than any Cabot Supplemental Indenture described in the immediately preceding sentence.  The solicitation agent, information agent, depositary or other agent retained in connection with any Cabot Note Offers and Consent Solicitations will be selected by Columbus, retained by Columbus, and their fees and out-of-pocket expenses will be paid directly by Columbus (or its Subsidiaries).  If, at any time prior to the completion of the Cabot Note Offers and Consent Solicitations, Cabot Parent or any of its Subsidiaries, on the one hand, or Columbus or any of its Subsidiaries, on the other hand, discovers any information that should be set forth in an amendment or supplement to the Debt Offer Documents, so that the Debt Offer Documents shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of circumstances under which they are made, not misleading, such party that discovers such information shall promptly notify the other party, and an appropriate amendment or supplement prepared by Columbus describing such information shall be disseminated to the holders of the applicable notes, debentures or other debt securities of Cabot outstanding under the Existing Cabot Indenture.

 

(b)           If requested by Columbus, in lieu of or in addition to Columbus commencing or closing any Cabot Note Offer and Consent Solicitation for any series of Existing Cabot Notes, Cabot Parent shall use its reasonable best efforts, to the extent permitted by such series of Existing Cabot Notes and the Existing Cabot Indenture or the Existing CoxCom Notes and the Existing CoxCom Indenture, as applicable, to (A) issue a notice of redemption (“Cabot Redemption Notice”) for all or a portion of the outstanding aggregate principal amount of such series of Existing Cabot Notes, or Existing CoxCom Notes pursuant to the redemption provisions of the Existing Cabot Indenture or Existing CoxCom Indenture, as applicable, which notice of redemption shall (if issued prior to the Closing Date) be expressly conditioned on the occurrence of the Closing and (B) take any other actions reasonably requested by Columbus to facilitate the redemption and satisfaction and discharge of any series of Existing Cabot Notes or Existing CoxCom Notes at the Closing pursuant to the redemption and satisfaction and discharge provisions of the Existing Cabot Indenture or Existing CoxCom Indenture, as applicable, and the other provisions of such indentures, provided that, for the avoidance of doubt, no such Redemption (as defined below) shall be effective prior to the Closing and provided further that neither Cabot nor counsel for Cabot shall be required to furnish any certificates, legal opinions or negative assurance letters in connection with any Redemption (except that Cabot shall deliver customary officers’ certificates (each, a “Cabot Redemption Officers’ Certificate”) and (solely to the extent the trustee under the applicable Existing Cabot Indenture or Existing CoxCom Indenture, or such indenture or relevant supplemental indenture, requires an opinion of counsel) counsel to Cabot shall provide customary legal opinions, in each case, to the trustee under each applicable indenture (solely to the extent such certificates or legal opinions, as applicable, would not conflict with applicable Laws and would be accurate in light of the facts and circumstances at the time delivered)).  If a notice of conditional redemption or satisfaction and discharge is given, Columbus shall ensure that at or prior to the Closing, so long as the applicable conditions of such redemption or satisfaction and discharge are satisfied, Cabot has all funds necessary in connection with any such redemption or satisfaction and discharge.  The redemption or satisfaction and discharge of any series of Existing Cabot Notes or Existing CoxCom Notes pursuant to this Section 5.14(b) are referred to collectively as the “Redemption” of such series of Existing Cabot Notes or Existing CoxCom Notes, as applicable.

 

(c)           If requested by Columbus, in lieu of or in addition to Columbus commencing or closing any Cabot Note Offer and Consent Solicitation for any series of Existing Cabot Notes or consummating any Redemption with respect to any series of Existing Cabot Notes, Cabot Parent shall, to the extent permitted by such series of Existing Cabot Notes and the Existing Cabot Indenture, designate any subsidiary of the issuer under any Existing Cabot Indenture as an “Unrestricted Subsidiary” or equivalent term under the Existing Cabot Indenture, provided that, for the avoidance of doubt, no such designation shall be effective prior to the Closing and no such request by Columbus may be made within five Business Days of the Closing Date and provided further that Cabot shall deliver customary officers’ certificates and (solely to the extent the trustee under the applicable Existing Cabot Indenture or Existing CoxCom Indenture, or such indenture or relevant supplemental indenture, requires an opinion of counsel) counsel to Cabot shall provide customary legal opinions, in each case, in connection therewith to the trustee under each Existing Cabot Indenture (solely to the extent such certificates or legal opinions, as applicable, would not conflict with applicable Laws and would be accurate in light of the facts and circumstances at the time delivered).

 

(d)           Subject to Section 5.14(e), Cabot Parent shall, and shall cause its Subsidiaries to, deliver, in each case, on or prior to the Closing Date (and as more specifically stated below), all notices, and take all other actions reasonably requested by Columbus, to facilitate, on or prior to the Closing Date:

 

(i)           either, in Cabot Parent’s discretion (in consultation with Columbus), (A) the removal and release of Cabot as a borrower, guarantor or obligor under and pursuant to the Existing Cabot Credit Agreement, the Existing Cabot Guarantee Agreement and each of the other Loan Documents, such that as of the Closing Date, Cabot and the Transferred Subsidiaries shall have no liability whatsoever, and none of their assets shall be subject to recourse, under the Existing Cabot Credit Agreement or any of the other Loan Documents (this clause (A), the “Cabot Borrower Removal”), or (B) (x) the repayment in full in cash (or, at the option of Columbus, in the case of any letters of credit for which Cabot or any Transferred Subsidiary is the applicant, cash collateralization, to the extent Columbus or Cabot shall not have entered into an alternative arrangement with the applicable issuing bank) of all amounts and other obligations then outstanding under the Existing Cabot Credit Agreement and (y) the termination (such repayment and termination, the “Existing Credit Facilities Termination”) of the Existing Cabot Credit Agreement, including by providing to Columbus a customary payoff letter from the administrative agent under the Existing Cabot Credit Agreement, in form and substance reasonably satisfactory to Columbus (it being understood and agreed that release and indemnification provisions may be included), which payoff letter shall, among other things, (1) indicate the total amount required to be paid to fully satisfy all principal, interest, prepayment premiums, penalties and any other monetary obligations then due and payable under such Existing Cabot Credit Agreement (other than any obligations which survive by their terms) (the “Payoff Amount”) and (2) provide that, upon receipt of the Payoff Amount under such payoff letter (or, for the avoidance of doubt, any cash collateralization in connection with letters of credit), all such obligations (and all security interests (if any) granted to secure such obligations) and all Loan Documents shall be terminated (other than any obligations which survive by their terms); and

 

(ii)           (x) the release of Cabot and any applicable Transferred Subsidiary from the Specified Cabot Guarantees and the termination of each Specified Cabot Guarantee Agreement, such that, as of the Closing Date, Cabot and the Transferred Subsidiaries shall have no liability whatsoever, and none of their assets shall be subject to recourse, thereunder or under any definitive agreement governing such guarantees or the underlying obligations guaranteed thereby and (y) the delivery of customary acknowledgements of release from the administrative agent, trustee or other applicable agent or counterparty (as applicable) under such Specified Guarantee Agreements and such definitive documentation, in each case, in form and substance reasonably satisfactory to Columbus (it being understood and agreed that, with respect to the Existing Cabot Guarantee Agreement, delivery of such acknowledgment in the form of a payoff letter satisfying the requirements set forth in Section 5.14(d)(i) above shall be reasonably satisfactory);

 

(iii)           upon reasonable advance request from Columbus, delivered in writing to Cabot, (x) the repayment in full in cash of all amounts and other obligations under all of the Specified Debt Documents (if any) and (y) the termination (such repayment and termination, the “Specified Debt Termination”) of all such Specified Debt Documents (if any), including by, upon Columbus’s request, providing to Columbus one or more payoff letters from each applicable agent or trustee under such Specified Debt Documents, in form and substance reasonably satisfactory to Columbus, which payoff letter (or payoff letters, as the case may be) shall, among other things, (1) indicate the total amount required to be paid to fully satisfy all principal, interest, prepayment premiums, penalties and any other monetary obligations then due and payable under each such Specified Debt Document (other than any obligations which survive by their terms) (all such amounts, taken together in the aggregate, the “Specified Debt Payoff Amount”) and (2) provide that, upon receipt of the Specified Debt Payoff Amount under such payoff letter or payoff letters (as the case may be), all such obligations (and all security interests (if any) granted to secure such obligations) and all Specified Debt Documents shall be terminated (other than any customary indemnification obligations which survive by their terms);

 

provided that the Cabot Borrower Removal, the Existing Credit Facilities Termination and any notices related to the foregoing may be expressly conditioned on the Closing.

 

(e)           Notwithstanding the foregoing or anything to the contrary set forth in Section 5.13 or this Section 5.14, neither Cabot Parent nor any of its Affiliates shall be required to (i) take or permit the taking of any action pursuant to Section 5.13 or this Section 5.14 that (A) would require Cabot Parent, its Subsidiaries or any of their respective Representatives to pass resolutions or consents to approve or authorize the execution of any Debt Financing, any Cabot Note Offers and Consent Solicitations or any Redemption or execute or deliver any certificate, document, instrument, opinion, negative assurance letter or agreement or agree to any change or modification of any existing certificate, document, instrument, opinion, negative assurance letter or agreement that is, in each case, effective prior to the Closing (other than (v) customary authorization and representation letters, accountants’ “comfort letters” (including customary “negative assurances”) and customary consents to the inclusion of audit reports in connection with any Debt Financing, (w) to the extent required by Section 5.14(a), applicable Cabot Supplemental Indentures and related Cabot Indenture Officers’ Certificates and customary legal opinions in connection therewith, (x) to the extent required by Section 5.14(b), applicable Cabot Redemption Notices, notices of satisfaction and discharge and Cabot Redemption Officers’ Certificates and legal opinions in connection therewith, (y) as contemplated by Section 5.14(c), applicable officers’ certificates and customary legal opinions in connection therewith and (z) to the extent required by Section 5.14(d), the applicable payoff letter, borrower termination agreement and required notices and requests in connection with the foregoing), (B) would cause any representation or warranty in this Agreement to be inaccurate or breached by Cabot Parent or any of its Affiliates, any closing condition set forth in Article VI to fail to be satisfied or any other breach of this Agreement (in each case, unless Columbus waives such breach or such failure prior to the Company or any Company Subsidiary taking such action); provided that Cabot shall notify Columbus of any such potential or anticipated breach promptly upon becoming aware thereof, (C) would require Cabot Parent or any of its Affiliates to (1) pay any commitment or other similar fee or any other fee to any financing source or (2) incur any other expense, liability or obligation in connection with any Debt Financing, any Cabot Note Offers and Consent Solicitations or any Redemption prior to the Closing, in each case of this clause (2) that would not be reimbursed or indemnified in full by Columbus in accordance with the last sentence of this Section 5.14(e), (D) would cause any director, officer, employee or stockholder of Cabot Parent or any of its Affiliates to incur any personal liability, or (E) would result in a violation or breach of, conflict with, or a default (with or without notice, lapse of time, or both) under any Cabot Material Contract, the organizational documents of Cabot Parent or its Subsidiaries (as in effect on the date hereof) or any applicable Law; (ii) provide any access, or make available any document, correspondence or information, if doing so would, in the reasonable judgment of Cabot Parent’s legal counsel, jeopardize or cause a risk of loss or waiver of the attorney-client, attorney work product or other similar privilege of Cabot Parent or any of its Subsidiaries; provided, that in such instance Cabot Parent shall inform Columbus of the general nature of the information being withheld and, on Columbus’s request, reasonably cooperate with the other party to provide such information, in whole or in part, in a manner that would not result in any of the outcomes described in this clause (ii); (iii) without otherwise limiting the obligations of Cabot Parent pursuant to Section 5.13 to assist Columbus in Columbus’s preparation of any materials that include any Excluded Information, prepare any Excluded Information or (iv) take any action pursuant to Section 5.13 or this Section 5.14 that would unreasonably interfere with the ongoing business or operations of Cabot Parent and its Subsidiaries. Nothing contained in Section 5.13 or this Section 5.14 or otherwise shall require Cabot Parent or any of its Affiliates, prior to the Closing, to be an issuer or other obligor with respect to any Debt Financing.  Columbus shall promptly, upon request by Cabot Parent, reimburse Cabot Parent and its Affiliates for all reasonable and documented out-of-pocket costs and expenses (including reasonable and documented attorneys’ fees) incurred by them or their respective Representatives in connection with such cooperation pursuant to Section 5.13 and this Section 5.14 (whether or not the Transaction is consummated or this Agreement is terminated) and shall indemnify and hold harmless Cabot Parent and its Affiliates and their respective Representatives from and against any and all losses, claims, damages, liabilities, reasonable out-of-pocket costs, reasonable and documented out-of-pocket attorneys’ fees, judgments, fines, penalties and amounts paid in settlement (including all interest, assessments and other charges paid or payable in connection with or in respect of any thereof) suffered or incurred by them in connection with the arrangement of any Debt Financing, the Cabot Note Offers and Consent Solicitations or any Redemption, any action taken by them at the request of Cabot Parent or its Representatives pursuant to Section 5.13 and this Section 5.14 and any information used in connection therewith (other than information provided by Cabot Parent, its Subsidiaries or their respective Representatives), in each case, except to the extent suffered or incurred as a result of the bad faith, gross negligence, willful misconduct or material breach of this Agreement by Cabot Parent or any of its Subsidiaries or their respective Representatives, as determined in a final and non-appealable judgement by a court of competent jurisdiction (the “Reimbursement Obligations”).

 

Section 5.15         Cooperation as to Pending Litigation.

 

(a)           Cabot Parent and the Columbus Parties agree that, from and after the Closing, at Cabot Parent’s sole cost and expense, Cabot Parent (i) shall control and direct the pursuit of all claims, counterclaims and causes of action with respect to the matter set forth on Section 5.15(a) of the Cabot Disclosure Schedule and all activities relating thereto, including any appeals or related administrative or legal actions (the “Retained Claim”) and (ii) may (at its sole cost and expense) settle, litigate, dispute, defend, appeal or make counterclaims pertaining to the Retained Claim in the name and on behalf of Cabot and the Transferred Subsidiaries; provided that (w) for the avoidance of doubt, any Liabilities arising from the Retained Claim and any action taken in connection therewith shall be deemed to be Excluded Liabilities, (x) such settlement provides for the unconditional release of Cabot and the Transferred Subsidiaries from all liabilities and obligations in connection with the Retained Claim and does not involve any admission of guilt or wrongdoing by Cabot or the Transferred Subsidiaries, and (y) the terms of any such settlement do not impose any obligation on Cabot, the Transferred Subsidiaries or their Affiliates (other than any reimbursed amounts hereunder and other than customary non-disparagement and confidentiality obligations). With respect to the defense or prosecution of any litigation or legal proceeding with respect to the Cabot Business that relates to the period prior to the Closing, including the Retained Claim, Cabot Parent and the Columbus Parties shall use commercially reasonable efforts to cooperate and assist each other following the Closing by making available to the other during normal business hours and upon reasonably prior written notice, but without unreasonably disrupting its business, all records to the extent relating to the Cabot Business held by it and reasonably necessary to permit the defense or investigation of any such litigation or legal proceeding (other than litigation or legal proceedings between any Columbus Party, Cabot or any Transferred Subsidiary, on the one hand, and Cabot Parent or its Subsidiaries (other than Cabot and the Transferred Subsidiaries), on the other hand, to which the applicable rules of discovery shall apply), and shall preserve and retain all such records for the length of time contemplated by its standard record retention policies and schedules; provided that in no event shall any Columbus Party, Cabot or any Transferred Subsidiary, on the one hand, or Cabot Parent or its Subsidiaries (other than Cabot and the Transferred Subsidiaries), on the other hand, have access to any information that (x) based on advice of counsel to any Columbus Party, Cabot or any Transferred Subsidiary, on the one hand, or Cabot Parent or its Subsidiaries (other than Cabot and the Transferred Subsidiaries), on the other hand, would violate applicable Laws, including Antitrust Laws, or would destroy any legal privilege, or (y) in the reasonable judgement of any Columbus Party or Cabot, on the one hand, or Cabot Parent or its Subsidiaries (other than Cabot and the Transferred Subsidiaries), on the other hand, would (A) result in the disclosure of any trade secrets or other proprietary or confidential information of third parties or (B) violate any obligation with respect to confidentiality; provided, that such Columbus Party, Cabot or such Transferred Subsidiary, on the one hand, or Cabot Parent or such Subsidiary, on the other hand, shall have used commercially reasonable efforts to make alternative arrangements to permit access to and the disclosure of such information.  If any of the information or material furnished pursuant to this Section 5.15(a) includes material or information subject to the attorney-client privilege, work product doctrine or any other applicable privilege concerning pending or threatened litigation or governmental investigations, each party hereto understands and agrees that the parties hereto have a commonality of interest with respect to such matters and it is the desire, intention and mutual understanding of the parties hereto that the sharing of such material or information is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or information or its continued protection under the attorney-client privilege, work product doctrine or other applicable privilege.  All such information provided under this Section 5.15(a) that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege shall remain entitled to such protection under these privileges, this Agreement and the joint defense doctrine.

 

(b)           Any litigation, arbitration or claim that is threatened in writing or brought against any Columbus Party, Cabot or any Transferred Subsidiaries, Cabot Parent or any of its Subsidiaries that relates to this Agreement or the transactions contemplated hereby (“Deal Litigation”) shall be brought to the attention of the other party and neither party shall take any action in any Deal Litigation without consulting the other party and reflecting reasonably the comments of the other party.  All Deal Litigation shall be prosecuted and/or defended diligently unless otherwise agreed by Cabot Parent and Columbus, and no settlement or offer of compromise shall be made without the consent of Cabot Parent and Columbus (such consent not to be unreasonably withheld, conditioned or delayed).  The parties shall use reasonable best efforts to make personnel available on an expedited basis for depositions and other forms of oral and written testimony unless otherwise agreed by Cabot Parent and Columbus.

 

Section 5.16         Cabot Restructuring; Guarantees.

 

(a)           At or prior to the Closing,

 

(i)           Cabot Parent shall cause Cabot and the Transferred Subsidiaries to transfer, convey, assign and deliver to Cabot Parent or one or more of its Subsidiaries (other than Cabot and the Transferred Subsidiaries), and Cabot Parent or such Subsidiaries shall acquire from Cabot and the Transferred Subsidiaries, all of Cabot’s and the Transferred Subsidiaries’ right, title and interest in and to the Excluded Assets;

 

(ii)           Cabot Parent shall, and shall cause its Subsidiaries (other than Cabot and the Transferred Subsidiaries) to, transfer, convey, assign and deliver to Cabot or the Transferred Subsidiaries, and Cabot or such Transferred Subsidiaries shall acquire from Cabot Parent and such Subsidiaries, all of Cabot Parent’s and such Subsidiaries’ right, title and interest in and to the Cabot Assets;

 

(iii)           Cabot Parent shall assume and be liable for, and from and after the Closing shall pay, perform and discharge when due, and shall (to the extent permitted by Law) cause Cabot and the Transferred Subsidiaries to be released from, and Cabot and the Transferred Subsidiaries shall have no obligations with respect to, the Excluded Liabilities; and

 

(iv)           Cabot shall assume and be liable for, and from and after the Closing shall pay, perform and discharge when due, and shall (to the extent permitted by Law) cause Cabot Parent, the Cabot Parent Beneficial Owners and their respective Affiliates (other than Cabot and the Transferred Subsidiaries) to be released from and Cabot Parent, the Cabot Parent Beneficial Owners and their respective Affiliates (other than Cabot and the Transferred Subsidiaries) shall have no obligations with respect to, the Assumed Liabilities.

 

(b)           Prior to the Closing and subject to Section 5.16(c), Cabot Parent shall use reasonable best efforts to take, or cause to be taken, the following steps:

 

(i)           Cabot Parent shall (1) form a Delaware corporation and direct, wholly owned Subsidiary of Cabot Parent (“NewCo 1”), (2) immediately thereafter, contribute, assign, convey, transfer and deliver to NewCo 1 all of Cabot Parent’s right, title and interest in and to 100% of the Equity Interests of Cabot, and (3) immediately thereafter, cause Cabot to be converted into a limited liability company under Delaware Law (the “Cabot F-Reorganization”);

 

(ii)           Following completion of the Cabot F-Reorganization, Cabot shall distribute, assign, convey, transfer and deliver to NewCo 1 all of Cabot’s right, title and interest in and to 100% of the Equity Interests of MTN Infrastructure TopCo Blocker, Inc., Fiber Platform Holdings, LLC, Fiber Platform Blocker, Inc., Fiber Platform, LLC (other than the Equity Interests of Fiber Platform, LLC held by Fiber Platform Holdings, LLC or Fiber Platform Blocker, Inc.) and Rapidscale, Inc. and any intercompany receivable owed by Fiber Platform, LLC to Cabot or any other Transferred Subsidiary (the “Distribution”);

 

(iii)           Following completion of the Distribution, NewCo 1 shall (1) form a Delaware corporation and direct, wholly owned Subsidiary of NewCo 1 (“NewCo 2”), (2) immediately thereafter, contribute, assign, convey, transfer and deliver to NewCo 2 all of NewCo 1’s right, title and interest in and to 100% of the Equity Interests of  MTN Infrastructure TopCo Blocker, Inc., and (3) immediately thereafter, cause MTN Infrastructure TopCo Blocker, Inc. to be converted into a limited liability company under Delaware Law;

 

(iv)           Following completion of the Distribution, NewCo 1 shall (1) form a Delaware corporation and direct, wholly owned Subsidiary of NewCo 1 (“NewCo 3”), (2) immediately thereafter, contribute, assign, convey, transfer and deliver to NewCo 3 all of NewCo 1’s right, title and interest in and to 100% of the Equity Interests of Fiber Platform Holdings, LLC, and (3) immediately thereafter, cause Fiber Platform Holdings, LLC to elect to be treated as an entity disregarded as separate from its owner in accordance with Treasury Regulation Section 301.7701-3(c);

 

(v)           Following completion of the Distribution, NewCo 1 shall (1) form a Delaware corporation and direct, wholly owned Subsidiary of NewCo 1 (“NewCo 4”), (2) immediately thereafter, contribute, assign, convey, transfer and deliver to NewCo 4 all of NewCo 1’s right, title and interest in and to 100% of the Equity Interests of Fiber Platform Blocker, Inc., and (3) immediately thereafter, Fiber Platform Blocker, Inc. shall be converted into a limited liability company under Delaware Law;

 

(vi)          NewCo 1 shall, in connection with and at the same time as the contributions to each of NewCo 3 and NewCo 4 described above, contribute, assign, convey, transfer and deliver to one or both of NewCo 3 and NewCo 4 all of NewCo 1’s right, title and interest in and to (1) 100% of the Equity Interests of Fiber Platform, LLC (other than the Equity Interests of Fiber Platform, LLC held by Fiber Platform Holdings, LLC or Fiber Platform Blocker, Inc.) and (2) any intercompany receivable owed by Fiber Platform, LLC to NewCo 1;

 

(vii)         NewCo 1 shall (1) form a Delaware corporation and direct, wholly owned Subsidiary of NewCo 1 (“NewCo 5”), (2) immediately thereafter, contribute, assign, convey, transfer and deliver to NewCo 5 all of NewCo 1’s right, title and interest in and to 100% of the Equity Interests of RapidScale, Inc., and (3) immediately thereafter, RapidScale, Inc. shall be converted into a limited liability company under Delaware Law;

 

(viii)         Cabot Parent shall cause each Cabot NewCo to execute a joinder to this Agreement in customary form to be mutually agreed between the parties (the “Cabot NewCo Joinders”); and

 

(ix)           Cabot Parent shall cause each of the Transferred Subsidiaries (other than the Non-DRE Transferred Subsidiaries) to be properly treated as an entity that is disregarded as separate from its owner for U.S. federal (and applicable state and local) income Tax purposes.

 

(c)           Cabot Parent shall (i) keep Columbus reasonably informed in respect of any material action taken pursuant to Section 5.16(b), (ii) consult with Columbus in good faith prior to taking any such action that differs from the steps set forth in Section 5.16(b) in any respect that could reasonably be expected to be adverse to Columbus and (iii) not take any such action that differs materially from the steps set forth in Section 5.16(b) without the prior written consent of Columbus (such consent not to be unreasonably withheld, conditioned or delayed).

 

(d)           Prior to the Closing, Columbus shall:

 

(i)            form a Delaware corporation and direct, wholly owned Subsidiary of Columbus (“Columbus NewCo”); and

 

(ii)           cause Columbus NewCo to execute a joinder to this Agreement in customary form to be mutually agreed between the parties (the “Columbus NewCo Joinder”).

 

(e)           Without limiting the generality of the foregoing, at or prior to the Closing, Columbus and Cabot Parent agree to cooperate and use their respective reasonable best efforts to promptly obtain release of (i) Cabot and the Transferred Subsidiaries from all guarantees, performance bonds, bid bonds, credit support agreements, letters of credit, surety or other obligations in respect of obligations of Cabot Parent, the Cabot Parent Beneficial Owners and their respective Affiliates (other than Cabot and the Transferred Subsidiaries) (“Cabot Guarantees”) and (ii) Cabot Parent, the Cabot Parent Beneficial Owners and their respective Affiliates (other than Cabot and the Transferred Subsidiaries) from all guarantees, performance bonds, bid bonds, credit support agreements, letters of credit, surety or other obligations in respect of obligations of Cabot and the Transferred Subsidiaries (“Cabot Parent Guarantees” and, together with the Cabot Guarantees, the “Guarantees”). In the event any Guarantees are not released prior to or at the Closing, (A) each of Cabot Parent (in the case of clause (i)) or Columbus (in the case of clause (ii)) shall use its commercially reasonable efforts to obtain a letter of credit or surety insurance on behalf of Cabot Parent or Columbus, as applicable, or one of its Affiliates in favor of Columbus or Cabot Parent, as applicable, with respect to each such Guarantee issued in a format and from a bank mutually agreed by Cabot Parent and Columbus, (B) Columbus and Cabot, jointly and severally, will indemnify and hold Cabot Parent and its Affiliates that are a party to or otherwise have Liability with respect to each such Cabot Parent Guarantee harmless for any and all payments required to be made or other Liabilities incurred by Cabot Parent or its Affiliates under such Cabot Parent Guarantee until such Cabot Parent Guarantee is released and (C) Cabot Parent will indemnify and hold Cabot and its Affiliates that are a party to or otherwise have Liability with respect to each such Cabot Guarantee harmless for any and all payments required to be made or other Liabilities incurred by Cabot or its Affiliates under such Cabot Guarantee until such Cabot Guarantee is released. The foregoing indemnity will survive the Closing indefinitely and will not be subject to the limitations set forth in Article VII.  Notwithstanding anything to the contrary contained in this Section 5.16 or elsewhere, (I) none of Cabot Parent nor its Affiliates or Columbus nor its Affiliates, as applicable, shall have any obligation to keep any Guarantee in place for any renewal, extension, modification, supplement, amendment or rearrangement of the terms of any or all of the obligations or Liabilities relating to Guarantees or, in any case, no later than the Closing Date and (II) neither Cabot Parent nor Columbus, or any of their Affiliates, as applicable, will renew, extend, modify, supplement, amend or rearrange (or take any action that has the effect of renewing, extending, modifying, supplementing, amending or rearranging) the terms of any or all of the obligations or liabilities relating to Guarantees without the consent of the other party.

 

Section 5.17         Intercompany Accounts; Intercompany Arrangements.

 

(a)           At or prior to the Closing, Cabot Parent and Cabot shall settle, or cause to be settled, all intercompany receivables, payables and other balances (including, without limitation, pursuant to the Cabot Intercompany Promissory Note), in each case existing at or prior to the Closing between Cabot Parent or any of its Subsidiaries (other than Cabot and the Transferred Subsidiaries), on the one hand, and Cabot and the Transferred Subsidiaries, on the other hand, other than trade accounts receivable and trade accounts payable owed by or to non-cable businesses of Cabot Parent of which the Cabot Systems are customers in the Ordinary Course of such business’s provision of products or services to persons unaffiliated with Cabot Parent. For the avoidance of doubt, this Section 5.17(a) will not require the settlement of any intercompany receivables, payables and other balances that are exclusively between or among (i) Cabot Parent and its Subsidiaries (other than Cabot and the Transferred Subsidiaries) or (ii) Cabot and the Transferred Subsidiaries.

 

(b)           Except as expressly set forth in (a) Section 5.17(b) of the Cabot Disclosure Schedules and (b) this Agreement, including Section 5.16, the Restructuring and the Ancillary Agreements (and each other agreement or instrument expressly contemplated by this Agreement or any Ancillary Agreement to be entered into between Cabot or any Transferred Subsidiaries, on the one hand, and Cabot Parent or its Subsidiaries (other than Cabot or any Transferred Subsidiary), on the other hand), all of the agreements and commitments (whether written or oral) between Cabot or any Transferred Subsidiaries, on the one hand, and Cabot Parent or its Subsidiaries (other than Cabot or any Transferred Subsidiary), on the other hand, will terminate as of the Closing without any further action or liability on the part of the parties thereto.

 

Section 5.18       Insurance.  Columbus acknowledges and agrees that, from and after the Closing, (a) all insurance coverage for Cabot and the Transferred Subsidiaries provided under any insurance policy of Cabot Parent or any of its Subsidiaries or otherwise in relation to the Cabot Business pursuant to any insurance policy, risk funding program or arrangement maintained by Cabot Parent or any of its Subsidiaries (whether such any such policy, program or arrangement is maintained in whole or in part with a third party insurer or with Cabot Parent or any of its Subsidiaries, including any “occurrence”-based insurance policy with respect to any occurrences prior to Closing), in each case other than any insurance policies maintained by Cabot or the Transferred Subsidiaries (collectively, “Cabot Parent Insurance”), shall cease to be maintained for the benefit of Cabot or the Transferred Subsidiaries, and no further coverage shall be available to Cabot or the Transferred Subsidiaries under any such policy, program or arrangement and (b) neither Columbus nor any of its Affiliates will have access to any self-insurance or captive insurance programs with respect to the Cabot Business; provided, however, that, after the Closing, (i) Cabot Parent shall, and shall cause its Subsidiaries to, upon the written request of Columbus, (A) use commercially reasonable efforts to pursue and collect claims under any such policy, program or arrangement arising as the result of an “occurrence” prior to Closing and (B) coordinate the payment of any amounts actually payable thereunder to the appropriate recipient, net of any deductible, retention, administrative expense, retrospective premium or other similar cost or expense, and (ii) Columbus shall cooperate with any investigation of claims conducted in connection with any claim contemplated by the foregoing clause (i)(A); provided, further, however, that none of Cabot Parent, its Subsidiaries or their respective Representatives will be required to (I) commence, maintain, participate in or otherwise assist any Person in respect of any action, cause of action, claim, demand, proceeding against any Person (including any insurance company) in respect of any such “occurrence”-based insurance policy or any claim or submission made thereunder or in respect thereof, (II) agree to any condition precedent or condition subsequent in respect of any recovery or claim, including any changes or modifications to any such “occurrence”-based insurance policy or (III) incur any Liability, or pay any fees, consideration or other amounts, or concede anything of monetary or economic value or otherwise make any accommodation or provide any benefit to any Person, in each case, in respect of any such “occurrence”-based insurance policy or any claim or submission made thereunder or in respect thereof, unless Columbus or its Affiliates agree to indemnify and reimburse Cabot Parent, its Subsidiaries or their respective Representatives for or against any such Liability, fees, consideration or other amounts. In the event that Columbus or its Affiliates (including, after the Closing, Cabot and the Transferred Subsidiaries) receives any payment under any Cabot Parent Insurance on behalf of any business of Cabot Parent or any of its Affiliates, including any Excluded Business, after the Closing Date, such payments shall be the property of, and shall be forwarded and remitted to, Cabot Parent as promptly as practicable, but not later than 20 days, after receipt thereof (or, if later, after notice or determination of receipt of such improper payment), except in the event that such payment received relates to a claim submitted on behalf of Columbus pursuant to this Section 5.18. Notwithstanding anything to the contrary contained herein, Columbus acknowledges that the Cabot Parties are not responsible for procuring insurance coverage with respect to the post-Closing conduct or activities of Cabot, the Transferred Subsidiaries or the Cabot Business.

 

Section 5.19        Lewis Transactions.  Subject to Section 5.4(d), if, at any time prior to the Closing Date, the Lewis Merger Agreement is terminated or is not reasonably expected to be completed on a timeframe consistent with this Agreement, Columbus shall provide prompt written notice (but in any event no later than two (2) Business Days thereafter) to Cabot Parent and Lewis thereof, and Cabot Parent, Columbus and Lewis shall negotiate in good faith any required changes to the governance terms set forth in the Stockholders Agreement to reflect Lewis’ continued ownership in Columbus, as applicable; provided that, in no event shall Cabot Parent be obligated to agree to any such changes that may have an adverse impact on Cabot Parent, including in respect of any of the rights or obligations of Cabot Parent thereunder.

 

Section 5.20         Tax Cooperation.

 

(a)           The parties agree to cooperate in good faith to mitigate any adverse Tax impact to any Cabot Party (other than, after the Closing, Cabot and the Transferred Subsidiaries) or any Columbus Party as a result of the transactions contemplated by this Agreement, including under the “disguised sale” rules of Section 707 of the Code and the Treasury Regulations thereunder, the “alternative minimum tax” under Section 55 of the Code and the Treasury Regulations and proposed Treasury Regulations thereunder or as a result of, following the Closing, any change in applicable Tax Law (including, for this purpose, new or revised pronouncements of the IRS or Treasury Department or a revocation of a change in Tax Law proposed as of the date of this Agreement); provided that any such cooperation does not (a) (i) impose any material, unreimbursed and incremental costs, including net Tax costs (other than Tax costs arising from a reduction in Tax benefits), on the cooperating party or  or (ii) materially reduce anticipated benefits of the Transaction to Cabot Parent or Columbus, as the case may be, in any materially unreimbursed respect (other than any anticipated benefit that is inconsistent with the intended tax treatment set forth in Section 5.21(b)), in each case unless otherwise consented to by the cooperating party, with such consent not to be unreasonably withheld, conditioned, or delayed, or (b) prevent, materially impair or materially delay the Closing, including receipt of the Required Regulatory Approvals or of the Columbus Stockholder Approvals.

 

(b)           Cabot Parent shall prepare and, if permitted by applicable Law, timely file, any Tax Return with respect to state or local income Taxes of Cabot or any Transferred Subsidiary (or any predecessor thereof) for a Pre-Closing Tax Period (other than a Straddle Period) that is due to be filed on or after the Closing Date, and shall timely pay all Taxes shown as due thereon. If Columbus or its Affiliates (including Cabot and the Transferred Subsidiaries) is required by Law to file any such Tax Return, Cabot Parent shall provide a copy of such Tax Return to Columbus prior to the due date for filing such Tax Return, and Columbus shall timely file such Tax Return provided there is a reasonable basis for any position reflected thereon.  Columbus shall prepare and timely file, or cause to be prepared and timely filed, any Tax Return with respect to state or local income Taxes of Cabot or any Transferred Subsidiary (or any predecessor thereof) for a Straddle Period; provided that Columbus shall provide a copy of such Tax Return to Cabot Parent prior to filing and shall consider in good faith any reasonable comments of Cabot Parent thereon.

 

Section 5.21         Tax Treatment; Purchase Price Allocation.

 

(a)           The parties acknowledge and agree that Columbus Holdings (or an entity that is disregarded as separate from Columbus Holdings for U.S. federal income Tax purposes) shall incur one or more new nonrecourse (for purposes of Section 752 of the Code) borrowings on or around the Closing Date (and in any event no earlier than ninety days prior to and no later than ninety days after the Closing Date) to fund the payment of the Cash Consideration for the Membership Interests and Cabot Assets pursuant to Section 2.3(a)(ii), which borrowing(s) shall be received and held in a separate bank account (the “Borrowing”). The parties intend that, (i) for purposes of Treasury Regulations Section 1.707-5(b)(1), the Cash Consideration paid by Columbus Holdings for the Membership Interests and Cabot Assets pursuant to Section 2.3(a)(ii) is allocable to the proceeds of such Borrowing pursuant to Treasury Regulations Section 1.163-8T and (ii) the entirety of the Borrowing is incurred and used for the purposes of making debt-financed transfers to more than one partner pursuant to a plan (within the meaning of Treasury Regulations Section 1.707-5(b)(2)(ii)) to the extent applicable.

 

(b)           The parties acknowledge and agree that, for income tax purposes, (i) Cabot and each of the Transferred Subsidiaries (other than the Non-DRE Transferred Subsidiaries) is, or will be at the Closing, a disregarded entity pursuant to Treasury Regulations Section 301.7701-3, and that for income tax purposes, the contribution by NewCo 1 of the Membership Interests and any other Cabot Assets to Columbus Holdings shall be treated as a contribution of all of the assets of Cabot and each of its Subsidiaries as of the Closing, subject to the liabilities of Cabot and each such Subsidiary (the “NewCo 1 Contributed Property”), (ii) the receipt of the Equity Consideration from Columbus Holdings in respect of the NewCo 1 Contributed Property pursuant to Section 2.3(a)(ii) shall be treated as a transaction described in Section 721 of the Code, (iii) the receipt of any Cash Consideration from Columbus Holdings in respect of the NewCo 1 Contributed Property pursuant to Section 2.3(a)(ii) shall be treated as (A) a “debt-financed transfer” to NewCo 1 under Treasury Regulations Section 1.707-5(b)(1) to the extent the “debt-financed transfer” is traceable to NewCo 1’s allocable share, and (B) to the extent not otherwise treated as a “debt-financed transfer” pursuant to the preceding clause, to the maximum extent possible under applicable Law, as a reimbursement of NewCo 1’s capital expenditures within the meaning of Treasury Regulations Section 1.707-4(d) (including, for the avoidance of doubt, the capital expenditures of Cabot and any Person that NewCo 1 “steps in the shoes of” within the meaning of Treasury Regulation Section 1.707-4(d)(2)) to the extent of such capital expenditures with respect to the NewCo 1 Contributed Property within the two (2)-year period preceding the transfer of such property to Columbus Holdings and (iv) the liabilities assumed by Columbus Holdings with respect to the NewCo Contributed Property shall be treated as qualified liabilities as described in Treasury Regulation Section 1.707-5 to the maximum extent permitted pursuant to applicable Law.

 

(c)         The parties acknowledge and agree that (i) the Cabot F-Reorganization, and each of the transactions described in Section 5.16(b)(ii), Section 5.16(b)(iii), Section 5.16(b)(iv), Section 5.16(b)(v) and Section 5.16(b)(vii), shall be treated as meeting the requirements of Section 368(a)(1)(F) of the Code and (ii) the transaction described in Section 5.16(b)(vi) shall be treated as meeting the requirements of Section 351 of the Code.

 

(d)           Except as provided in Section 5.21 of the Cabot Disclosure Schedule, the parties acknowledge and agree that, for income tax purposes, the receipt of the Cash Consideration from Columbus in respect of the NewCo 2 Equity Interests, the NewCo 3 Equity Interests, the NewCo 4 Equity Interests and the NewCo 5 Equity Interests pursuant to Section 2.3(a)(i) shall be treated as taxable sales of stock of corporations by Newco 1 to Columbus NewCo at a purchase price equal to the aggregate fair market value of each of NewCo 2, NewCo 3, NewCo 4 and NewCo 5, which taxable sales are governed by Section 1001 of the Code.

 

(e)          The parties agree that an amount equal to the Cash Consideration paid by Columbus in respect of the NewCo 2 Equity Interests, the NewCo 3 Equity Interests, the NewCo 4 Equity Interests and the NewCo 5 Equity Interests pursuant to Section 2.3(a)(i) shall be allocated among the Cabot NewCos (other than NewCo 1) based on the relative fair market value of each such Cabot NewCo.

 

(f)           The parties acknowledge and agree that, for income tax purposes, the exchange of $1.00 for the one (1) share of Columbus Class C Common Stock issued by Columbus to Cabot Parent pursuant to Section 2.3(a)(iii) reflects the fair market value of such share.

 

(g)          The purchase price, as determined for U.S. federal income tax purposes, including any liabilities considered assumed by Columbus Holdings for U.S. federal income tax purposes, shall be allocated in accordance with Section 1060 of the Code and the Treasury Regulations thereunder to the extent that any assets are deemed sold to Columbus Holdings pursuant to Section 707 of the Code (the “Allocation”).  Within ninety (90) days after the Closing, the Columbus Parties shall prepare a draft Allocation for the review and consent of Cabot Parent (such consent not to be unreasonably withheld, conditioned or delayed).  If the parties are unable to resolve any disagreement within sixty (60) days after the Columbus Parties deliver the draft Allocation to Cabot Parent, then the parties shall submit all such disputed items for resolution to an independent, nationally recognized accounting firm mutually acceptable to the parties, whose decision shall be final and binding upon the parties and whose fees and expenses shall be borne equally by the parties.  In all events, including any resolution of disputed items by the independent, nationally recognized accounting firm, the Allocation shall be in accordance with the following principles:

 

(i)           the Allocation shall be consistent with customary purchase price allocation methodologies and with the obligations of Columbus and Columbus Holdings pursuant to Section 5.20; and

 

(ii)           an amount equal to the Cash Consideration paid by Columbus Holdings in respect of the Membership Interests and Cabot Assets pursuant to Section 2.3(a)(ii), plus any liabilities considered assumed by Columbus Holdings for U.S. federal income tax purposes, shall be allocated among the assets of Cabot and the Transferred Subsidiaries (other than the Cabot NewCos and the Subsidiaries thereof).

 

(h)           The parties shall file all Tax Returns consistent with the foregoing and shall not voluntarily take any action inconsistent therewith upon any audit or examination of any Tax Return or in any other filing or proceeding relating to Taxes, unless required pursuant to a determination as defined in Section 1313(a) of the Code or any similar provision of any foreign, state or local Law.

 

Section 5.22        Term Sheets.  As soon as reasonably practicable following the date of this Agreement (but in any event prior to the Closing Date), the parties shall negotiate in good faith final forms of each Ancillary Agreement (other than the Stockholders Agreement, the Letter Agreement and the Tax Receivables Agreement, substantially final forms of which are attached hereto) to be executed at the Closing, (i) with respect to the Transition Services Term Sheet, the Transition Services Agreement, including the services schedules thereto, consistent with the terms of the Transition Services Term Sheet, (ii) with respect to the Reverse Transition Services Term Sheet, the Reverse Transition Services Agreement, including the services schedules thereto, consistent with the terms of the Reverse Transition Services Term Sheet, (iii) with respect to the Preferred Term Sheet, the LLC Agreement, consistent with the terms of the Preferred Term Sheet and the terms set forth in the limited liability company agreement of Columbus Holdings in effect as of the date of this Agreement, and (iv) with respect to any other Ancillary Agreement (other than those excluded above), in each case, in forms reasonably acceptable to the parties and on substantially the terms set forth in the corresponding agreement in effect as of the date of this Agreement by and among Columbus, Columbus Holdings, Amundsen and/or Lewis, as applicable.  If any of the Transition Services Agreement or the Reverse Transition Services Agreement is in agreed form prior to the Closing pursuant to this Section 5.22, such agreement shall be executed and delivered by the applicable parties thereto at the Closing pursuant to Section 2.5 and shall at, and subject to the occurrence of, the Closing replace and supersede in all respects the Transition Services Term Sheet and the Reverse Transition Services Term Sheet, as applicable. Except if the Transition Services Term Sheet or the Reverse Transition Services Term Sheet has been replaced and superseded by the Transition Services Agreement or the Reverse Transition Services Agreement, as applicable, as contemplated by the foregoing sentence, the Transition Services Term Sheet or the Reverse Transition Services Term Sheet shall immediately become binding and in full force and effect at and following the Closing.

 

Section 5.23         Shared Contracts.

 

(a)           With respect to the Shared Contracts, from the date of this Agreement until the earlier of the valid termination of this Agreement and twelve (12) months following the Closing Date, Columbus and Cabot Parent shall, and shall cause their respective Subsidiaries to, reasonably cooperate with each other in an effort to divide, partially assign, modify or replicate (in whole or in part, including by entering into stand-alone Contracts or other arrangements) the respective rights and obligations under and in respect of any Shared Contract, such that, effective as of the Closing, (i) Columbus or one or more of its Subsidiaries is the beneficiary of the rights and privileges and is responsible for, and retains or assumes the Liabilities, obligations and burdens related to, the portion of such Shared Contract for the Cabot Business (the “Business Portion”) and (ii) Cabot Parent or one or more of its Subsidiaries is the beneficiary of the rights and privileges and is responsible for, and retains or assumes the Liabilities, obligations and burdens related to, the portion of such Shared Contract for any Excluded Businesses (the “Non-Business Portion”).

 

(b)          If Columbus and Cabot Parent, or their Subsidiaries, as applicable, do not or are not able to (but only for so long as they are not able to) enter into an arrangement to formally divide, partially assign, modify or replicate one or more Shared Contracts as contemplated by Section 5.23(a) prior to the Closing, then, for a period of twelve (12) months following the Closing Date, Columbus and Cabot Parent shall, and shall cause their Subsidiaries to, reasonably cooperate in any lawful arrangement to provide that, effective following the Closing, Columbus or its applicable Subsidiary shall retain or receive the benefits and retain or assume the Liabilities of the Business Portion of such Shared Contract and Cabot Parent or its applicable Subsidiary shall retain the benefits and retain the Liabilities of the Non-Business Portion of such Shared Contract; provided, however, that, subject to Section 5.4, except as expressly provided in the Transition Services Agreement or the Reverse Transition Services Agreement (including the schedules thereto) (or the Transition Services Term Sheet or the Reverse Transition Services Term Sheet, if such term sheet has not been replaced and superseded by the Transition Services Agreement or Reverse Transition Services Agreement), no party shall be required to (i) violate the terms of such Shared Contract or any applicable Law; (ii) extend, modify, revise or amend any provision of any of the Shared Contracts; (iii) furnish any consideration (unless reimbursed by another party hereto); (iv) incur any material Liability or compromise any material right, asset or benefit; (v) commence, defend or participate in any Action; (vi) offer or grant any accommodation (financial or otherwise) (unless, in the case of an accommodation that is purely financial, reimbursed by another party hereto); or (vii) take any action in furtherance of this Section 5.23 that would require any of the foregoing; provided, however, that in no event shall either party or its Subsidiaries be entitled to receive such rights and benefits beyond the term of such Shared Contract and neither party nor its Subsidiaries shall have any obligation to renew or replace such Shared Contract upon the expiration or termination thereof.

 

(c)           From and after the Closing, Columbus or its Subsidiaries, or Cabot Parent or its Subsidiaries, as applicable, shall bear the Liabilities and Losses associated with, and shall indemnify and hold Cabot Parent and its Subsidiaries, or Columbus and its Subsidiaries, as applicable, harmless from any Liabilities incurred by Cabot Parent or any of its Subsidiaries, or Columbus or any of its Subsidiaries, as applicable, with respect to, any arrangement entered into in connection with this Section 5.23 such that the parties would be placed in a substantially similar position as if such Shared Contract had been partially assigned, transferred, conveyed, divided, modified, replicated and/or novated at the Closing. Columbus or its Subsidiaries shall perform, at its sole cost and expense, the obligations of Cabot Parent or its Subsidiaries to be performed after the Closing under the Business Portion of such Shared Contract as if such portion were partially assigned, transferred, conveyed, divided, modified, replicated and/or novated hereunder. Cabot Parent or its Subsidiaries shall perform, at its sole cost and expense, the obligations of Columbus or its Subsidiaries to be performed after the Closing under the Non-Business Portion of such Shared Contract as if such portion were partially assigned, transferred, conveyed, divided, modified, replicated and/or novated hereunder.

 

(d)          From and after the Closing, except as expressly set forth in any Ancillary Agreement or this Section 5.23, none of Columbus, Cabot, the Transferred Subsidiaries or any of their respective Affiliates shall have any right, title, interest, preference, or remedy in respect of a Shared Contract or other service shared by Cabot Parent and its Subsidiaries, and shall not be entitled to any service or product or to otherwise use or avail itself of any Shared Contract or other such shared service.

 

(e)           No later than forty-five (45) days following the date hereof, Cabot Parent shall deliver to Columbus a list of all material Shared Contracts reasonably identified by Cabot Parent as of such date, and shall thereafter through the Closing, use commercially reasonable efforts to notify Columbus of any updates to such list to include newly identified Shared Contracts.

 

Section 5.24     Separation Planning.  Prior to Closing, Columbus and Cabot Parent each shall (and shall cause their respective Subsidiaries to) use commercially reasonable efforts to cooperate as reasonably necessary to support the parties’ planning and execution of the transition or migration of the Excluded Assets, the Excluded Liabilities, the Cabot Assets or the Assumed Liabilities, which cooperation shall include (a) providing the other party with such assistance and information as is reasonably necessary to prepare for and implement the separation of the Cabot Assets or the Assumed Liabilities to support such transition or migration, unless such access would, in the reasonable judgment of Cabot Parent, harm the competitiveness of Cabot if the transactions contemplated by this Agreement are not consummated; (b) discussing with the other party data transfer and migration assistance; (c) establishing a transition and integration planning team (which shall include knowledgeable personnel of Columbus and Cabot Parent) to discuss and plan for a transition and integration planning process concerning the separation, transition or migration of the Excluded Assets, the Excluded Liabilities, the Cabot Assets or the Assumed Liabilities and (d) determining the appropriate real estate footprint for the Cabot Business at the existing Cabot Parent headquarters and any other shared properties, including any reallocation of space amongst the parties necessary to separate the operations of the Cabot Business from the operations of Cabot Parent and its Affiliates (other than the Transferred Subsidiaries). In no event shall Cabot Parent or any of its Subsidiaries be required, without Cabot Parent’s consent, to (i) enter into, amend, or modify any Contract or arrangement, other than the Transition Services Agreement or the Reverse Transition Services Agreement; (ii) violate the terms of any Contract or applicable Law; (iii) furnish any consideration; (iv) incur any material Liability or compromise any material right, asset or benefit; (v) commence, defend or participate in any Action; or (vi) offer or grant any accommodation (financial or otherwise) (unless, in the case of an accommodation that is purely financial, reimbursed by another party hereto), in each case, in furtherance of this Section 5.24.  Columbus and its Subsidiaries shall bear any out-of-pocket third-party costs, fees or expenses incurred by Cabot Parent or its Subsidiaries in connection with the integration of the Cabot Business into the business of Columbus and its Subsidiaries and shall promptly reimburse Cabot Parent or its applicable Subsidiary for any such third-party costs, fees or expense.

 

Section 5.25       Wrong Pockets.  From and after the Closing, if Cabot Parent or any of its Subsidiaries receive or collect any cash funds from a third party arising from any accounts receivable of the Cabot Business, Cabot Parent shall or shall cause its applicable Subsidiary to remit such cash funds to Columbus within five (5) Business Days after its receipt thereof.  From and after the Closing, if Columbus or any of its Subsidiaries receive or collect any cash funds from a third party relating to Cabot Parent or its Subsidiaries (other than the Cabot Business), Columbus shall or shall cause its applicable Subsidiary to remit any such funds to Cabot Parent within five (5) Business Days after its receipt thereof.  From and after the Closing, if Cabot Parent or any of its Subsidiaries finds that it is in possession of any Cabot Asset or that is subject to an Assumed Liability, Cabot Parent shall, or shall cause its applicable Subsidiary to, notify Columbus of such fact and Cabot Parent and Columbus shall each cooperate to transfer such Cabot Asset or Assumed Liability from Cabot Parent (or its applicable Subsidiary) to Columbus (or its applicable Subsidiary).  From and after the Closing, if Columbus or any of its Subsidiaries finds that it is in possession of any Excluded Asset or subject to an Excluded Liability, Columbus shall, or shall cause its applicable Subsidiary to, notify Cabot Parent of such fact and Cabot Parent and Columbus shall each cooperate to transfer such Excluded Asset or Excluded Liability from Columbus (or its applicable Subsidiary) to Cabot Parent (or its applicable Subsidiary).

 

Section 5.26         D&O Indemnification and Insurance.

 

(a)           From and after the Closing, Columbus agrees that it shall cause Cabot and the Transferred Subsidiaries to indemnify and hold harmless each present and former director, officer, manager and employee of Cabot or the Transferred Subsidiaries against any costs or expenses (including reasonable attorneys’ fees), judgments, fines, losses, claims, damages or liabilities incurred in connection with any Action, whether civil, criminal, administrative or investigative, arising out of or pertaining to matters existing or occurring at or prior to the Closing, whether asserted or claimed prior to, at or after the Closing, to the fullest extent that Cabot or the applicable Transferred Subsidiary would have been permitted under applicable Law and its organizational documents in effect on the date of this Agreement to indemnify such Person (including promptly advancing expenses as incurred to the fullest extent permitted under applicable Law).  Without limiting the foregoing, Columbus shall cause Cabot or applicable the Transferred Subsidiaries, for a period of not less than six (6) years from the Closing Date, (i) to maintain provisions in its organizational documents concerning the indemnification and exoneration (including provisions relating to expense advancement) of Cabot or the Transferred Subsidiaries’ former and current directors, officers, managers and employees that are no less favorable to those Persons than the provisions of the organizational documents of Cabot or the applicable Transferred Subsidiaries in effect on the date of this Agreement and (ii) not to amend, repeal or otherwise modify such provisions in any respect that would adversely affect the rights of those Persons thereunder, in each case, except as required by Law.

 

(b)           For a period of six (6) years from the Closing Date, Columbus shall cause Cabot and the Transferred Subsidiaries to maintain in effect directors’ and officers’ liability insurance covering those Persons who are currently covered by the directors’ and officers’ liability insurance policies held by Cabot and the Transferred Subsidiaries on terms not less favorable than the terms of such current insurance coverage; provided, however, that (i) Columbus may cause coverage to be extended under the current directors’ and officers’ liability insurance policies by obtaining, at or prior to the Closing, at the sole cost of Columbus, a prepaid, non-cancelable six-year “tail” policy (containing terms not less favorable than the terms of such current insurance coverage) with respect to matters existing or occurring at or prior to the Closing and (ii) if any claim is asserted or made within such six (6)-year period, any insurance required to be maintained under this Section 5.26(b) shall be continued in respect of such claim until the final disposition thereof; provided, further, that in no event shall Columbus or its Subsidiaries be required to expend for such policies an annual premium in excess of three hundred percent (300%) of the premium amount per annum of the directors’ and officers’ liability insurance policies in effect as of the date hereof.

 

(c)           The rights of indemnification and to receive advancement of expenses as provided by this Agreement shall not be deemed exclusive of any other rights to which any Person entitled to indemnification under this Section 5.26 (a “D&O Indemnified Person”) may at any time be entitled.  No right or remedy herein conferred by this Agreement is intended to be exclusive of any other right or remedy, and every other right and remedy shall be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at Law or in equity, under contract or otherwise.  The assertion of any right or remedy hereunder, or otherwise, shall not prevent the concurrent or subsequent assertion of any other right or remedy.  Columbus hereby acknowledges that the D&O Indemnified Persons have or may in the future have certain rights to indemnification, advancement of expenses or insurance provided by other Persons (collectively, “Other Indemnitors”).  Columbus hereby agrees that, with respect to any advancement or indemnification obligation owed, at any time, to a D&O Indemnified Person by Cabot, the Transferred Subsidiaries or any Other Indemnitor, whether pursuant to any Organizational Documents or pursuant to this Section 5.26 (any of the foregoing, an “D&O Indemnification Obligation”), after the Closing, Columbus shall cause Cabot and the Transferred Subsidiaries to, (i) jointly and severally, and at all times, be the indemnitors of first resort (i.e., Cabot’s and the Transferred Subsidiaries’ obligations to a D&O Indemnified Person shall be primary and any obligation of the Other Indemnitors to advance expenses or to provide indemnification for the same expenses or liabilities incurred by a D&O Indemnified Person shall be secondary), and (ii) at all times, be required to advance, and shall be liable, jointly and severally, for, the full amount of all expenses, judgments, penalties, fines and amounts paid in settlement to the extent legally permitted and as required by the terms of this Agreement or any D&O Indemnification Obligation, without regard to any rights that a D&O Indemnified Person may have against the Other Indemnitors.  Furthermore, Columbus shall cause Cabot and the Transferred Subsidiaries to irrevocably waive, relinquish and release the Other Indemnitors from any and all claims (x) against the Other Indemnitors for contribution, subrogation, indemnification or any other recovery of any kind in respect thereof and (y) that the D&O Indemnified Person must seek expense advancement, reimbursement or indemnification from any Other Indemnitor before Cabot or the Transferred Subsidiaries must perform its expense advancement, reimbursement and indemnification obligations under this Agreement.  Columbus hereby further agrees that no advancement, indemnification or other payment by the Other Indemnitors on behalf of a D&O Indemnified Person with respect to any claim for which a D&O Indemnified Person has sought indemnification from Cabot or the Transferred Subsidiaries shall affect the foregoing, and the Other Indemnitors shall have a right of contribution or subrogation to the extent of such advancement, indemnification or other payment to all of the rights of recovery of such D&O Indemnified Person against Cabot or the Transferred Subsidiaries, and Cabot and the Transferred Subsidiaries shall jointly and severally indemnify and hold harmless against such amounts actually paid by the Other Indemnitors to or on behalf of such D&O Indemnified Person to the extent such amounts would have otherwise been payable by Cabot or the Transferred Subsidiaries under any D&O Indemnification Obligation.

 

(d)           Notwithstanding anything contained in this Agreement to the contrary, this Section 5.26 shall survive the Closing indefinitely and shall be binding, jointly and severally, on all successors and assigns of Columbus.  From and after the Closing, Columbus shall assume, and be jointly and severally liable for, and shall cause the Transferred Subsidiaries to honor, each of the covenants in this Section 5.26.

 

Section 5.27         Corporate Name.

 

(a)           For so long as Columbus’s name remains “Cox Communications, Inc.” in accordance with the Stockholders Agreement, Cabot Parent hereby grants to Columbus a limited, non-exclusive, non-transferable, non-assignable, fully paid-up license, solely for so long as Columbus’s name remains “Cox Communications, Inc.”, to continue use of the Cabot Names in substantially the same manner and form as, and solely to the extent, used by the Cabot Business prior to the Closing Date, subject to compliance with the trademark usage guidelines in effect prior to the Closing Date.  This license shall terminate immediately upon a change in Columbus’s name such that it is no longer named “Cox Communications, Inc.” in accordance with the Stockholders Agreement.  Columbus may not otherwise use any Cabot Names, and Cabot Parent and its Subsidiaries shall retain all right, title, interest, and goodwill in and pertaining to such Cabot Names.

 

(b)           Within one-hundred eighty (180) days following the Closing Date, Cabot Parent shall cease to use the Cabot Names and strike over, or otherwise obliterate, all public-facing references to the Transitional Company Names from all assets and other materials owned by Cabot Parent, including any sales and product literature, business cards, schedules, stationery, packaging materials, displays, signs, promotional materials, manuals, forms, websites, email, and other materials and systems that are visible to the public; provided, however, that, for the avoidance of doubt, and subject to the Stockholders Agreement, Cabot Parent shall be entitled to continue to use the Cabot Names in the conduct of the Excluded Businesses and any other businesses of Cabot Parent that use the Cabot Names.

 

(c)           Within one-hundred eighty (180) days following the date of termination of the license in Section 5.27(a), Columbus shall cease to use the Cabot Names and strike over, or otherwise obliterate, all public-facing references to the Cabot Names from all assets and other materials owned by Columbus, including any sales and product literature, business cards, schedules, stationery, packaging materials, displays, signs, promotional materials, manuals, forms, websites, email, and other materials and systems that are visible to the public.

 

(d)           Columbus shall, in its use of the Cabot Names as permitted in this Section 5.27, use the same or higher standards of quality that were in effect for such name or trademark as of the Closing Date, and Columbus may not use the Cabot Names in a manner that may reflect negatively on such name or on Cabot Parent.

 

(e)           Nothing in this Agreement shall be construed to prevent a party from using names or trademarks in accordance with applicable Law and principles of fair use and nominative use.

 

Section 5.28         R&W Insurance Policy.

 

(a)           As promptly as reasonably practicable after the date hereof, Columbus and Cabot Parent shall, and shall cause their respective Subsidiaries and their and their respective Subsidiaries’ Representatives to, cooperate in good faith and use their respective reasonable best efforts to enable Columbus to bind coverage of $1 billion under the R&W Insurance Policy no later than six (6) weeks after the date hereof (or such longer period if Cabot Parent elects to direct the process for obtaining the R&W Insurance Policy in accordance with the proviso of the immediately following sentence but in any event prior to the Closing Date).  In furtherance of the foregoing, and notwithstanding anything to the contrary in this Agreement, including Section 5.1, Cabot Parent shall be required to use its reasonable best efforts to (i) respond promptly to all reasonable diligence requests or other reasonable requests for information from Columbus and its Representatives that are customary to bind a buyer-side representation and warranty insurance policy for a transaction similar to the Transaction and (ii) afford Columbus and its Representatives with reasonable access, during regular business hours and upon reasonable advance notice, to the Representatives of Cabot Parent, Cabot and the Transferred Subsidiaries to respond to questions that are customary to bind a buyer-side representation and warranty insurance policy for a transaction similar to the Transaction.  Columbus shall be entitled to direct the strategy with respect to obtaining the R&W Insurance Policy, including:  (i) selecting the broker to place the R&W Insurance Policy, the R&W Insurer, and the structure and relevant retention(s) for the R&W Insurance Policy, (ii) furnishing to the R&W Insurer responses to diligence requests, and (iii) negotiating the terms of coverage and other provisions of the R&W Insurance Policy; provided that in the event Columbus fails to secure the R&W Insurance Policy, Cabot Parent shall have the ability but not the obligation to direct such matters and obtain the R&W Insurance Policy on Columbus’s behalf.  Columbus and Cabot Parent agree that the premium paid (together with underwriting fees and brokerage commissions, as applicable) to obtain the R&W Insurance Policy will be borne 50% by Columbus and 50% by Cabot Parent.  Solely, in the event that (x) Cabot Parent has breached its obligations under this Section 5.28(a) in any material respect, (y) such breach is the cause of an R&W Insurer’s inability to bind coverage under the R&W Insurance Policy and (z) Columbus has not breached its obligations under this Section 5.28(a) in any material respect (the foregoing clauses (x), (y) and (z), collectively, the “Springing Indemnity Condition”), then the Cabot Parent indemnification obligations set forth in Section 7.2(a) shall become effective.

 

(b)           The R&W Insurance Policy shall expressly provide that the R&W Insurer thereunder (i) irrevocably and unconditionally waives, releases and agrees not to pursue, directly or indirectly, any rights of or via subrogation, contribution, or otherwise against Cabot Parent, any of its Affiliates or any of their respective Representatives (other than Cabot and the Transferred Subsidiaries) (other than in the case of Fraud) with respect to any claim made by any insured thereunder; (ii) provides that each of Cabot Parent, its Affiliates and their respective Representatives (other than Cabot and the Transferred Subsidiaries) is a third-party beneficiary of such waiver described in clause (i) of this Section 5.28, (iii) provides that no change, amendment, waiver, or supplementation of the provisions in the immediately preceding clauses (i) and (ii) will be effective without the prior written consent of Cabot Parent, and (iv) agrees that Columbus shall have no obligation to pursue any claim against Cabot Parent, any of its Affiliates or any of their respective Representatives (other than Cabot and the Transferred Subsidiaries) in connection with any Loss thereunder.

 

Section 5.29        Financing Activities.  Each of the Columbus Parties shall, and shall cause its Subsidiaries to, use its reasonable best efforts to (x) take, or cause to be taken, all actions and do, or cause to be done, all things in its reasonable control necessary and proper or advisable to ensure that there does not occur either a “Below Investment Grade Downgrade Event” or a “Change of Control Repurchase Event” (each as defined in the applicable supplemental indenture governing each series of Existing Cabot Notes) at Closing or in the 60 days following the Closing Date, and (y) if at any time a Columbus Investment Grade Downgrade Event occurs, timely take, or cause to be timely taken, all actions and to timely do, or cause to be timely done, all things necessary, proper or advisable to timely negotiate and enter into definitive financing agreements necessary in the good faith judgment of Columbus in light of available cash and debt facilities to finance the Cash Consideration (or any other consideration required to be paid under this Agreement as a result of the treatment of Indebtedness of Cabot and/or its Subsidiaries pursuant to or in connection with Section 5.14), subject to the waiver by Cabot Parent, if necessary, of the covenant in Section 5.3(a)(vii) hereof; provided  if any such downgrade occurs and the Columbus Parties or any of their Affiliates enters into a debt commitment letter or best efforts engagement letter with respect to any such financing, Columbus shall share a draft of such letter with Cabot Parent at least three (3) Business Days prior to execution of such letter and such letter shall contain no conditions that would be reasonably expected to prevent, impede or delay the Closing Date.  As of the date hereof, no Columbus Party has any reason to believe that it will not be able to timely obtain financing for the Cash Consideration (or any other consideration required to be paid under this Agreement as a result of the treatment of Indebtedness of Cabot and/or its Subsidiaries pursuant to or in connection with Section 5.14) if a Columbus Investment Grade Downgrade Event occurs.

 

Section 5.30       Cabot Aviation.  As soon as reasonably practicable following the date of this Agreement (but in any event prior to the Closing Date), the parties shall negotiate in good faith an aircraft services agreement (the “Aircraft Services Agreement”) pursuant to which Columbus shall agree to pay Cabot Parent or its Affiliates $6.25 million per year for five years from the Closing Date, it being understood that these payments are expected to offset approximately 25% of Cabot Parent’s annual aviation-related costs in exchange for use of aircraft owned or operated by Cabot Parent and its Affiliates and services provided by Cabot Parent’s and its Affiliates’ operations enabling priority use of the aircraft, including pilots, mechanics, aviation staff and any other resources used to plan, maintain and operate its aircraft, in each case, limited to such times when the aircraft fleet owned or operated by Columbus is unavailable or insufficient for the needs of the business of Columbus such that additional short-term capacity is needed from the Cabot Parent aircraft fleet.

 

ARTICLE VI

CONDITIONS TO CLOSING

 

Section 6.1          Conditions to the Obligations of the Columbus Parties and the Cabot Parties.  The obligations of the parties hereto to effect the Closing are subject to the satisfaction (or waiver by both parties) prior to the Closing of the following conditions:

 

(a)         HSR.  Any waiting period (and any extension thereof), and any commitments by the parties not to close before a certain date under a timing agreement entered into with a Government Entity, applicable to the completion of the Transaction under the HSR Act shall have expired or been terminated (solely with respect to the obligations of the Columbus Parties, without the imposition of any Burdensome Condition);

 

(b)       LFA Approvals.  The aggregate number of Video Customers served by the Cabot Systems (i) pursuant to the “grandfathering” provisions of the Communications Act and (ii) pursuant to each Cabot Franchise for which (A) no consent is required from any Government Entity issuing such Cabot Franchise for the completion of the Transaction or (B) any such consent is required and has been received (or deemed received under Section 617 of the Communications Act) (solely with respect to the obligations of the Columbus Parties, without the imposition of any Burdensome Condition), shall be no less than 80% of the Video Customers then served by the Cabot Systems; and if less than 100% of such number of Video Customers, all applicable waiting periods (including extensions) shall have expired with respect to the FCC Forms 394 filed in connection with requests for the LFA Approvals that have not been obtained;

 

(c)          Required Regulatory Approvals.  The parties shall have secured all Required Regulatory Approvals (solely with respect to the obligations of the Columbus Parties, without the imposition of any Burdensome Condition) all of which shall remain in full force and effect (collectively with the conditions in Sections 6.1(a) and 6.1(b), the “Regulatory Conditions”);

 

(d)          No Prohibition.  No Government Entity or federal or state court of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any statute, rule, regulation, executive order, decree, judgment, injunction or other order (whether temporary, preliminary or permanent), in any case which is in effect and which makes unlawful, prohibits, delays, enjoins or otherwise prevents or restrains the completion of the transactions contemplated hereby; and

 

(e)           Columbus Stockholder Approvals.  The Columbus Stockholder Approvals shall have been obtained.

 

Section 6.2           Conditions to the Obligations of the Columbus Parties.  The obligations of the Columbus Parties to effect the Closing are subject to the satisfaction (or waiver by Columbus) prior to the Closing of the following conditions:

 

(a)         Representations and Warranties.  Each of the representations and warranties of any Cabot Party contained in this Agreement (other than (x) the Cabot Fundamental Representations and (y) clause (b) of Section 3.7) shall have been true and correct in all respects as of the date of this Agreement and shall be true and correct in all respects as of and as though made on the Closing Date (except for any such representation and warranty that is expressly made as of a specified earlier date, which shall be true and correct in all respects as of such specified earlier date) in each case without giving effect to any “Cabot Material Adverse Effect”, “material” or other materiality qualification, limitation or exception contained therein other than any failures to be so true and correct that, individually or in the aggregate, have not had and would not reasonably be expected to have a Cabot Material Adverse Effect.  Each Cabot Fundamental Representation shall have been true and correct in all material respects as of the date of this Agreement and shall be true and correct in all material respects as of and as though made on the Closing Date.  The representation and warranty of Cabot Parent set forth in clause (b) of Section 3.7 shall have been true and correct in all respects as of the date of this Agreement and shall be true and correct in all respects as of and as though made on the Closing Date;

 

(b)          Covenants.  Each of the covenants and agreements of any Cabot Party to be performed at or prior to the Closing shall have been performed in all material respects;

 

(c)          Material Adverse Effect.  Since the date of this Agreement, there shall not have been any event, occurrence, circumstance, development or condition that, individually or in the aggregate, has had or would reasonably be expected to have a Cabot Material Adverse Effect;

 

(d)          Certificate.  Columbus shall have received a certificate, signed by an authorized officer of Cabot Parent, dated the Closing Date, to the effect that the conditions set forth in Section 6.2(a), Section 6.2(b) and Section 6.2(c) have been satisfied; and

 

(e)           Other Deliveries.  Cabot Parent shall have delivered or caused to be delivered to Columbus each of the deliverables specified in Section 2.5(a).

 

Section 6.3           Conditions to the Obligations of the Cabot Parties.  The obligations of the Cabot Parties to effect the Closing are subject to the satisfaction (or waiver by Cabot Parent) prior to the Closing of the following conditions:

 

(a)         Representations and Warranties.  Each of the representations and warranties of any Columbus Party contained in this Agreement (other than (x) the Columbus Fundamental Representations and (y) clause (b) of Section 4.8) shall have been true and correct in all respects as of the date of this Agreement and shall be true and correct in all respects as of and as though made on the Closing Date (except for any such representation and warranty that is expressly made as of a specified earlier date, which shall be true and correct in all respects as of such specified earlier date) in each case without giving effect to any “Columbus Material Adverse Effect”, “material” or other materiality qualification, limitation or exception contained therein other than any failures to be so true and correct that, individually or in the aggregate, have not had and would not reasonably be expected to have a Columbus Material Adverse Effect.  Each Columbus Fundamental Representation shall have been true and correct in all material respects as of the date of this Agreement and shall be true and correct in all material respects as of and as though made on the Closing Date.  The representation and warranty of Columbus set forth in clause (b) of Section 4.8 shall have been true and correct in all respects as of the date of this Agreement and shall be true and correct in all respects as of and as though made on the Closing Date;

 

(b)          Covenants.  Each of the covenants and agreements of any Columbus Party to be performed at or prior to the Closing shall have been performed in all material respects;

 

(c)          Material Adverse Effect.  Since the date of this Agreement, there shall not have been any event, occurrence, circumstance, development or condition that, individually or in the aggregate, has had or would reasonably be expected to have a Columbus Material Adverse Effect;

 

(d)          Certificate.  Cabot Parent shall have received a certificate, signed on behalf of Columbus by an authorized officer, dated the Closing Date, to the effect that the conditions set forth in Section 6.3(a), Section 6.3(b) and Section 6.3(c) have been satisfied; and

 

(e)           Other Deliveries.  Columbus shall have delivered or caused to be delivered to Cabot Parent each of the deliverables specified in Section 2.5(b).

 

ARTICLE VII

INDEMNIFICATION

 

Section 7.1         Survival.  The representations and warranties contained in this Agreement shall not survive the Closing; provided that, subject to and solely upon the occurrence of the Springing Indemnity Condition, (a) the representations and warranties in Article III and Article IV (other than the Cabot Fundamental Representations and the Columbus Fundamental Representations) shall survive the Closing until the date that is eighteen (18) months after the Closing Date, at which time they shall terminate (and no claims shall be made for indemnification under Section 7.2 or Section 7.3 thereafter) and (b) the Cabot Fundamental Representations and the Columbus Fundamental Representations shall survive for the applicable statutes of limitations (giving effect to any waiver, mitigation or extension thereof) plus 60 days (and no claims shall be made for indemnification under Section 7.2 or Section 7.3 thereafter).  All covenants and agreements of the parties contained herein that contemplate performance at or prior to the Closing shall survive the Closing until the date that is twelve (12) months from the Closing Date, at which time they shall terminate (and no claims shall be made for indemnification under Section 7.2 or Section 7.3 thereafter).  Each covenant and agreement that contemplates performance following the Closing shall survive the Closing until the earlier to occur of the date such covenant or agreement is fully performed and the expiration of all applicable statutes of limitations (giving effect to any waiver, mitigation or extension thereof) plus 60 days (and no claims shall be made for indemnification under Section 7.2 or Section 7.3 thereafter).  Notwithstanding the foregoing, any claims for indemnification asserted in good faith with reasonable specificity and in writing by notice from the non-breaching party to the breaching party prior to the expiration date of the applicable survival period and in accordance with Section 7.5 shall not thereafter be barred by the expiration of the relevant representation, warranty, covenant or agreement and such claims shall survive until finally resolved.

 

Section 7.2           Indemnification by Cabot Parent.  Subject to the other terms and conditions of this Article VII, Cabot Parent shall indemnify and defend each of Columbus, Columbus Holdings and their respective Subsidiaries (collectively, the “Columbus Indemnitees”) against, and shall hold each of them harmless from and against, and shall pay and reimburse each of them for, any and all Losses incurred or sustained by, or imposed upon, the Columbus Indemnitees based upon, arising out of, or by reason of:

 

(a)           subject to and solely upon the occurrence of the Springing Indemnity Condition,  any inaccuracy in or breach of any of the representations or warranties (other than those that do not survive the Closing) of Cabot Parent contained in Article III of this Agreement or in any certificate or instrument delivered by or on behalf of Cabot Parent pursuant to Section 6.2(d) of this Agreement, as of the date such representation or warranty was made or as if such representation or warranty was made on and as of the Closing Date (except for representations and warranties that expressly relate to a specified date, the inaccuracy in or breach of which will be determined with reference to such specified date);

 

(b)           any breach of any covenant or agreement to be performed by Cabot Parent pursuant to this Agreement;

 

(c)           any Excluded Assets; or

 

(d)           any Excluded Liabilities.

 

Section 7.3          Indemnification by Columbus.  Subject to the other terms and conditions of this Article VII, Columbus Holdings shall indemnify and defend Cabot Parent and its Affiliates (collectively, the “Cabot Parent Indemnitees”) against, and shall hold each of them harmless from and against, and shall pay and reimburse each of them for, any and all Losses incurred or sustained by, or imposed upon, the Cabot Parent Indemnitees based upon, arising out of, or by reason of:

 

(a)           subject to and solely upon the occurrence of the Springing Indemnity Condition,  any inaccuracy in or breach of any of the representations or warranties (other than those that do not survive the Closing) Columbus contained in Article IV of this Agreement or in any certificate or instrument delivered by or on behalf of Cabot Parent pursuant to Section 6.3(d) of this Agreement, as of the date such representation or warranty was made or as if such representation or warranty was made on and as of the Closing Date (except for representations and warranties that expressly relate to a specified date, the inaccuracy in or breach of which will be determined with reference to such specified date);

 

(b)           any breach of any covenant or agreement to be performed by Columbus or Columbus Holdings pursuant to this Agreement;

 

(c)           any Cabot Assets; or

 

(d)           any Assumed Liabilities.

 

Section 7.4           Certain Limitations.  The following provisions shall apply solely upon the occurrence of the Springing Indemnity Condition:

 

(a)           Cabot Parent shall not be liable to the Columbus Indemnitees for indemnification under Section 7.2(a) until the aggregate amount of all indemnifiable Losses under Section 7.2(a) exceeds $250 million (two hundred fifty million) (the “Deductible”), in which event Cabot Parent shall be required to pay and be liable for all such Losses solely to the extent they exceed the Deductible.  The aggregate amount of all Losses for which Cabot Parent shall be liable pursuant to Section 7.2(a) shall not exceed $1 billion (the “Cap”).

 

(b)         Columbus Holdings shall not be liable to the Cabot Parent Indemnitees for indemnification under Section 7.3(a) until the aggregate amount of all indemnifiable Losses under Section 7.3(a) exceeds the Deductible, in which event Columbus Holdings shall be required to pay and be liable for all such Losses solely to the extent they exceed the Deductible. The aggregate amount of all Losses for which Columbus Holdings shall be liable pursuant to Section 7.3(a) shall not exceed the Cap.

 

(c)           Notwithstanding the foregoing, the foregoing limitations set forth in this Section 7.4 shall not apply to Losses based upon, arising out of, or by reason of any inaccuracy in or breach of the Cabot Fundamental Representations or the Columbus Fundamental Representations.

 

(d)         For purposes of this Article VII, any inaccuracy in or breach of any representation or warranty shall be determined without giving effect to any “Cabot Material Adverse Effect”, “material” or other materiality qualification, limitation or exception contained therein, in each case, except for any such qualifications and exceptions (i) used to qualify a set of materials made available or a list of items or (ii) contained in Section 3.7 and Section 4.8.

 

Section 7.5           Indemnification Procedures.  The party making a claim under this Article VII is referred to as the “Indemnified Party,” and the party against whom such claims are asserted under this Article VII is referred to as the “Indemnifying Party.”

 

(a)           Third Party Claims.  If any Indemnified Party receives notice of the assertion or commencement of any demand or Action made or brought by any Person who is not a party to this Agreement or an Affiliate of a party to this Agreement or a Representative of the foregoing (a “Third Party Claim”) against such Indemnified Party with respect to which the Indemnifying Party is obligated to provide indemnification under this Agreement, the Indemnified Party shall give the Indemnifying Party reasonably prompt written notice thereof, but in any event not later than ten (10) Business Days after receipt of such notice of such Third Party Claim.  The failure to give such prompt written notice shall not, however, relieve the Indemnifying Party of its indemnification obligations, except to the extent that such failure has a prejudicial effect on the rights or defenses available to the Indemnifying Party with respect to such Third Party Claim.  Such notice by the Indemnified Party shall describe the Third Party Claim in reasonable detail, shall include copies of all material written evidence thereof and shall indicate the estimated amount, if reasonably practicable, of the Loss that has been or may be sustained by the Indemnified Party.  The Indemnifying Party shall have the right to participate in, or by giving written notice to the Indemnified Party within twenty (20) calendar days after receipt of notice of a Third Party Claim from the Indemnified Party (or such lesser number of days as may be required by court proceeding in the event of a litigated matter), to assume the defense of any Third Party Claim at the Indemnifying Party’s expense and by the Indemnifying Party’s own counsel that is reasonably acceptable to the Indemnified Party; provided, that if the Indemnifying Party is Cabot Parent, such Indemnifying Party shall not have the right to defend or direct the defense of or compromise any such Third Party Claim that seeks an injunction or other equitable relief against the Indemnified Party. In the event that the Indemnifying Party assumes the defense of any Third Party Claim, subject to Section 7.5(b), it shall have the right to take such action as it deems necessary to avoid, dispute, defend, appeal or make counterclaims pertaining to any such Third Party Claim in the name and on behalf of the Indemnified Party.  The Indemnified Party shall have the right to participate in the defense of any Third Party Claim with counsel selected by it, subject to the Indemnifying Party’s right to control the defense thereof as provided herein.  The fees and disbursements of such counsel shall be at the expense of the Indemnified Party, provided, that if in the reasonable opinion of counsel to the Indemnified Party, (I) there are legal defenses available to an Indemnified Party that are different from or additional to those available to the Indemnifying Party or (II) there exists a conflict of interest between the Indemnifying Party and the Indemnified Party that cannot be waived, the Indemnifying Party shall be liable for the reasonable fees and reasonable documented out-of-pocket expenses of one counsel to the Indemnified Party in each jurisdiction for which the Indemnified Party reasonably determines counsel is required.  If the Indemnifying Party elects not to defend such Third Party Claim, fails to timely notify the Indemnified Party in writing of its election to defend as provided herein, or fails to diligently prosecute the defense of such Third Party Claim, the Indemnified Party may, subject to Section 7.5(b), pay or defend such Third Party Claim and seek indemnification for any and all Losses based upon, arising from or relating to such Third Party Claim to the extent such Third Party Claim is subject to indemnification under Section 7.2 or 7.3.  The parties hereto shall cooperate with each other in all reasonable respects in connection with the defense of any Third Party Claim, including making available (subject to the provisions of Section 5.1(a)) records relating to such Third Party Claim and furnishing, without expense (other than reimbursement of reasonable, documented out-of-pocket expenses) to the defending party, management employees of the non-defending party as may be reasonably necessary for the preparation of the defense of such Third Party Claim.

 

(b)          Settlement of Third Party Claims.  Notwithstanding any other provision of this Agreement, the Indemnifying Party shall not settle, compromise, or offer to settle or compromise, a Third Party Claim without the prior written consent of the Indemnified Party, unless the Indemnifying Party has assumed the defense of such Third Party Claim pursuant to Section 7.5(a) and such settlement or compromise provides, in customary form, for the unconditional release of each Indemnified Party from all liabilities and obligations in connection with such Third Party Claim and no nonmonetary terms or acknowledgment of facts and the Indemnifying Party indemnifies the Indemnified Party with respect to all Losses relating thereto.  The Indemnifying Party shall have no liability with respect to a Third Party Claim settled or compromised without its consent (which consent shall not be unreasonably withheld or delayed).

 

(c)           Direct Claims.  Any claim for indemnification by an Indemnified Party on account of a Loss which does not result from a Third Party Claim (a “Direct Claim”) shall be asserted by the Indemnified Party giving the Indemnifying Party reasonably prompt written notice thereof, but in any event not later than ten (10) Business Days after the Indemnified Party becomes aware of such Direct Claim.  The failure to give such prompt written notice shall not, however, relieve the Indemnifying Party of its indemnification obligations, except to the extent that such failure has a prejudicial effect on the rights or defenses available to the Indemnifying Party with respect to such Third Party Claim.  Such notice by the Indemnified Party shall describe the Direct Claim in reasonable detail, shall include copies of all material written evidence thereof and shall indicate the estimated amount, if reasonably practicable, of the Loss that has been or may be sustained by the Indemnified Party.  The Indemnifying Party shall have thirty (30) calendar days after its receipt of such notice to respond in writing to such Direct Claim.  The Indemnified Party shall allow the Indemnifying Party and its professional advisors to investigate the matter or circumstance alleged to give rise to the Direct Claim, and whether and to what extent any amount is payable in respect of the Direct Claim and the Indemnified Party shall assist the Indemnifying Party’s investigation by giving such information and assistance (including access to the Indemnified Party’s premises and personnel and the right to examine and copy any accounts, documents or records) as the Indemnifying Party or any of its professional advisors may reasonably request.  If the Indemnifying Party does not so respond within such thirty (30) calendar day period, the Indemnifying Party shall be deemed to have rejected such Direct Claim, in which case the Indemnified Party shall be free to pursue such remedies as may be available to the Indemnified Party on the terms and subject to the provisions of this Agreement.

 

(d)           Certain Tax Claims.  Notwithstanding the foregoing, if a Third Party Claim includes or would reasonably be expected to include both (i) a claim for Taxes that are Excluded Taxes or would otherwise be subject to indemnification and (ii) a claim for Taxes that are not Excluded Taxes and would not otherwise be subject to indemnification, and such claim for Taxes described in clause (i) is not separable from such a claim for Taxes described in clause (ii), Cabot Parent (if the claim for Taxes that are described in clause (i) exceeds or reasonably would be expected to exceed in amount the claim for Taxes that are described in clause (ii)) or otherwise Columbus Holdings (Cabot Parent or Columbus Holdings, as the case may be, the “Controlling Party”) shall be entitled to control the defense of such Third Party Claim (such Third Party Claim, a “Tax Claim”).  In such case, the other party (Cabot Parent or Columbus Holdings, as the case may be, the “Non-Controlling Party” shall be entitled to participate fully (at the Non-Controlling Party’s sole expense) in the conduct of such Tax Claim, the Controlling Party shall keep the Non-Controlling Party reasonably informed and promptly provide any updates (including any communications from a Government Entity) regarding the progress of such Tax Claim and the Controlling Party shall not settle such Tax Claim without the consent of such Non-Controlling Party (which consent shall not be unreasonably withheld, conditioned or delayed).  The costs and expenses of conducting the defense of such Tax Claim shall be reasonably apportioned based on the relative amounts of Taxes attributable to a Tax Claim described in clause (i) and a Tax Claim described in clause (ii). Notwithstanding anything to the contrary herein, Cabot Parent shall control any Third Party Claim or Tax Claim relating to any combined, consolidated or unitary Tax Return of any group the common parent of which is Cabot Parent (each, a “Cabot Parent Group Tax Claim”), and neither Columbus nor any of its Affiliates (including Cabot and the Transferred Subsidiaries after the Closing) shall have any participation, information, or consent rights with respect to any Cabot Parent Group Tax Claim, except to the extent such Cabot Parent Group Tax Claim (A) would reasonably be expected to have material adverse Tax consequences to Columbus or any of its Affiliates (including, after the Closing, Cabot and the Transferred Subsidiaries) or (B) relates solely to Cabot and/or any Transferred Subsidiary.

 

Section 7.6          Damages.  Notwithstanding anything to the contrary contained in this Agreement, no Indemnifying Party shall be liable under this Article VII for any punitive damages, except to the extent awarded by a court of competent jurisdiction to a third party in connection with a Third Party Claim.

Section 7.7          Payments.  The Indemnifying Party shall pay all amounts payable pursuant to this Article VII, in immediately available funds, to an account specified by the Indemnified Party following receipt from an Indemnified Party of a bill, together with all accompanying reasonably detailed supporting documentation, for a Loss that is the subject of indemnification hereunder, unless the Indemnifying Party in good faith disputes the Loss, in which event it shall so notify the Indemnified Party.  In any event, the Indemnifying Party shall pay to the Indemnified Party the amount of any Loss for which it is liable hereunder, in immediately available funds, to an account specified by the Indemnified Party no later than three (3) days following any Final Determination of such Loss and the Indemnifying Party’s liability therefor.  The parties hereto agree that should an Indemnifying Party not make full payment of any such obligations within such three (3) day period, any amount payable shall accrue interest from and including the date of the Final Determination at the prime rate as published in The Wall Street Journal as of the date such payment was required to be made.  A “Final Determination” shall exist when (a) the parties to the dispute have reached an agreement in writing, or (b) a court of competent jurisdiction shall have entered a final and non-appealable order or judgment.

 

Section 7.8          Tax Treatment of Indemnification Payments.  All indemnification payments made under this Agreement shall be treated by the parties as an adjustment first to the Cash Consideration and then to the Equity Consideration for Tax purposes, unless otherwise required by Law; provided, that, indemnification payments made under this Agreement to or in respect of (a) Columbus or any of its Subsidiaries (other than Columbus Holdings and the Subsidiaries thereof) in its or their capacity as a Columbus Indemnitee shall be treated as an adjustment to the portion of the Cash Consideration paid pursuant to Section 2.3(a)(i) and thereafter as an adjustment to the Equity Consideration paid pursuant to Section 2.3(a)(iii) and (b) Columbus Holdings and the Subsidiaries thereof in its or their capacity as a Columbus Indemnitee shall first be treated as an adjustment to the portion of the Cash Consideration paid pursuant to Section 2.3(a)(ii) and thereafter as an adjustment to the Equity Consideration paid pursuant to Section 2.3(a)(ii), in each case, unless otherwise required by Law.

 

Section 7.9         Effect of Investigation.  The representations, warranties, covenants and agreements of the Indemnifying Party, and the Indemnified Party’s right to indemnification with respect thereto, shall not be affected or deemed waived by reason of any investigation made by or on behalf of the Indemnified Party (including by any of its Representatives) or by reason of the fact that the Indemnified Party or any of its Representatives knew or should have known that any such representation or warranty is, was or might be inaccurate or that any such covenant or agreement is, was or might have been breached or not fulfilled or by reason of the Indemnified Party’s waiver of any condition set forth in Section 7.2 or 7.3.

 

Section 7.10        Exclusive Remedies.  Subject to Section 9.5, the parties acknowledge and agree that, if the Closing occurs, their sole and exclusive remedy with respect to any and all claims (other than claims arising from Fraud, criminal activity or willful misconduct on the part of a party hereto in connection with the transactions contemplated by this Agreement) for any breach of any representation, warranty, covenant or agreement set forth herein or otherwise relating to the subject matter of this Agreement shall be pursuant to the reimbursement and indemnification provisions set forth in Section 5.6(c) and this Article VII and the Reimbursement Obligations.  In furtherance of the foregoing, each party hereby waives, to the fullest extent permitted under Law, any and all rights, claims and causes of action for any breach of any representation, warranty, covenant or agreement set forth herein or otherwise relating to the subject matter of this Agreement it may have against the other parties hereto and their Affiliates and each of their respective Representatives arising under or based upon any Law, except pursuant to the reimbursement and indemnification provisions set forth in Section 5.6(c) and this Article VII and the Reimbursement Obligations.  Nothing in this Section 7.10 shall limit any Person’s right to seek and obtain any equitable relief to which any Person shall be entitled or to seek any remedy on account of any party’s Fraud, criminal or intentional misconduct.

 

ARTICLE VIII

TERMINATION

 

Section 8.1           Termination by Mutual Consent.  This Agreement may be terminated at any time prior to the Closing by written agreement of Cabot Parent and Columbus.

 

Section 8.2           Termination by Cabot Parent or Columbus.

 

(a)          Columbus, on the one hand, or Cabot Parent, on the other hand, may terminate this Agreement at any time prior to the Closing, by giving written notice of termination to the other, if:  (i) the Closing shall not have occurred by May 16, 2026 (the “End Date”), so long as the party proposing to terminate has not breached in any material respect any of its covenants or agreements under this Agreement in any manner that shall have proximately caused (such breaching party, a “Proximate Cause Party”) the failure of the Closing to so occur; provided, however, that if any of the Regulatory Conditions or the condition set forth in Section 6.1(d) (but only, in the case of Section 6.1(d), if the failure to satisfy such condition is as a result of any Antitrust Law or any Communications Law) are not satisfied on the End Date but all of the other conditions set forth in Article VI (other than those conditions that by their nature are to be satisfied only at the Closing, which conditions shall be capable of being satisfied) are satisfied or are waived, then Cabot Parent or Columbus shall be entitled to extend the End Date in increments of ninety (90) days to a date no later than to May 16, 2027 so long as the party proposing to so extend the End Date is not a Proximate Cause Party with respect to the failure of any of the Regulatory Conditions to be satisfied on or prior to the End Date; provided, further, that (x) if all of the conditions set forth in Article VI (other than those conditions that by their nature are to be satisfied only at the Closing, which conditions shall be capable of being satisfied) are satisfied or are waived on a date that occurs on or prior to the End Date but (y) the Closing would thereafter occur in accordance with Section 2.1 on a date (the “Specified Date”) that occurs within five (5) Business Days after such End Date, then the End Date shall automatically be extended to such Specified Date and the Specified Date shall become the End Date for purposes of this Agreement, or (ii) any decree, judgment, injunction or other order permanently restraining, enjoining or otherwise prohibiting completion of the Transaction shall have been issued and become final and non-appealable, so long as the party proposing to terminate is not a Proximate Cause Party with respect to the issuance, existence or effectiveness of such decree, judgment, injunction or other order.

 

(b)           Cabot Parent may terminate this Agreement at any time prior to the Closing, by giving written notice to Columbus, if (i) there has been a breach of any representation, warranty, covenant or agreement made by any Columbus Party herein or any such representation or warranty shall have become untrue as of and as though made on any date after the date of this Agreement, (ii) such breach or untruth would cause any of the closing conditions in Section 6.3(a) or 6.3(b) not to be satisfied (assuming, in the case of any such untruth, that such date was the Closing Date) and (iii) such breach or untruth is not curable or, if curable, is not cured by Columbus within thirty (30) days after written notice thereof is given by Cabot Parent to Columbus.

 

(c)           Columbus may terminate this Agreement at any time prior to the Closing, by giving written notice to Cabot Parent, if (i) there has been a breach of any representation, warranty, covenant or agreement made by any Cabot Party herein or any such representation or warranty shall have become untrue as of and as though made on any date after the date of this Agreement, (ii) such breach or untruth would cause any of the closing conditions in Section 6.2(a) or 6.2(b) not to be satisfied (assuming, in the case of any such untruth, that such date was the Closing Date) and (iii) such breach or untruth is not curable or, if curable, is not cured by Cabot Parent within thirty (30) days after written notice thereof is given by Columbus to Cabot Parent.

 

(d)           Columbus, on the one hand, and Cabot Parent, on the other hand, may terminate this Agreement at any time prior to the Closing, by giving written notice of termination to the other, if the Columbus Stockholder Approvals shall not have been obtained at the Columbus Stockholder Meeting or at any adjournment or postponement thereof, in each case at which a vote on such approvals was taken.

 

(e)           Cabot Parent may terminate this Agreement at any time before the Columbus Stockholder Approvals have been obtained, by giving written notice to Columbus, if (i) there has been an Adverse Recommendation Change or (ii) Columbus’s Board of Directors shall have failed to reaffirm the Columbus Board Recommendation as promptly as practicable (but in any event within ten (10) Business Days) after receipt of any written request to do so from Cabot Parent following the public announcement of any Columbus Acquisition Proposal (provided that Cabot Parent shall only make such request once with respect to any Columbus Acquisition Proposal or any material amendment thereto).

 

Section 8.3          Effect of Termination.  If this Agreement is terminated in accordance with Section 8.1 or Section 8.2, this Agreement shall thereafter become void and have no effect, and no party hereto shall have any liability to the other party or parties hereto or their respective Affiliates, or their respective directors, officers or employees, except as contemplated by the next sentence and except that nothing in this Section 8.3 or Section 8.4 shall relieve any party from liability for any willful and material breach of this Agreement that arose prior to such termination.  The provisions of (i) the penultimate sentence of Section 5.1(a), (ii) this Section 8.3, Section 8.4 and Article IX (and any related definitional provisions set forth in Article I), (iii) the Reimbursement Obligations and (iv) the reimbursement obligation pursuant to Section 5.28(a) and Section 5.1(f) shall survive any termination of this Agreement.  No termination of this Agreement shall affect the rights and obligations of the parties under the Confidentiality Agreement or the Clean Team Agreement, which shall survive termination of this Agreement in accordance with its terms.

 

Section 8.4           Liquidated Expenses.

 

(a)           In the event that this Agreement is terminated (i) by either Cabot Parent or Columbus pursuant to Section 8.2(d) after an Adverse Recommendation Change or (ii) by Cabot Parent pursuant to Section 8.2(e), then Columbus shall promptly, but in no event later than two (2) Business Days after such termination, pay to Cabot Parent a liquidated damages payment for expenses of $875 million, by wire transfer of immediately available funds to an account specified by Cabot Parent (the “Liquidated Expenses Payment”).

 

(b)           Each party hereto acknowledges that the agreements contained in this Section 8.4 are an integral part of the transactions contemplated by this Agreement and that, without these agreements, the parties would not enter into this Agreement; accordingly, if Columbus fails to promptly pay the Liquidated Expenses Payment if due under this Section 8.4, and, in order to obtain such payment, Cabot Parent commences an Action that results in a judgment against Columbus for the Liquidated Expenses Payment, Columbus shall pay the costs and expenses of Cabot Parent (including reasonable attorneys’ fees and expenses) in connection with such Action, together with interest on the amount of the Liquidated Expenses Payment at the prime rate as published in The Wall Street Journal as of the date such payment was required to be made plus 2%, such interest to accrue from the date such Liquidated Expenses Payment was required to be made through the date of payment. Columbus acknowledges that the Liquidated Expenses Payment contemplated hereby is not intended to be a penalty, but rather is liquidated damages in a reasonable amount that will compensate Cabot Parent in the circumstances in which such fee is due and payable for the expenses involved while negotiating this Agreement and in reliance on this Agreement on the expectation of the consummation of the transactions contemplated by this Agreement, which amount would otherwise be impossible to calculate with precision.  In no event shall Columbus be obligated to make more than one Liquidated Expenses Payment.

 

ARTICLE IX

MISCELLANEOUS

 

Section 9.1         Notices.  All notices and communications hereunder shall be in writing and served by personal delivery upon the party for whom it is intended or delivered by hand delivery, by registered or certified U.S. first-class mail, with return receipt requested and all postage and other fees prepaid, by reputable overnight courier service or by e-mail, provided that no e-mail transmission error is received by the sender, to the Person at the address set forth below, or such other address as may be designated in writing hereafter, in the manner set forth herein, by such Person:

 

if to any Columbus Party, to:

 

Charter Communications, Inc.

400 Washington Blvd.

Stamford, CT 06902

Attention:

Executive Vice President, General Counsel and Corporate Secretary

Email:

[***]

 

with a copy (which shall not constitute notice) to:

 

Wachtell, Lipton, Rosen & Katz

51 West 52nd Street

New York, New York 10019

Attention:

Steven A. Cohen

John L. Robinson

Steven R. Green

E-mail:

[email protected]

 

if to any Cabot Party, to:

 

Cox Enterprises, Inc.

6205-A Peachtree Dunwoody Road

Atlanta, GA 30328

Attention:

Executive Vice President, Chief Legal Officer and Corporate Secretary

Email:

[***]

with a copy (which shall not constitute notice) to:

 

Latham & Watkins LLP

330 North Wabash Avenue, Suite 2800

Chicago, Illinois  60611

Attention:

Bradley C. Faris

Victoria E. VanStekelenburg

E-mail:

[email protected]

 

Section 9.2          Amendment; Waiver.  No amendment, waiver or binding interpretation (an “Amendment”) shall be made to this Agreement unless in writing and signed, in the case of an amendment, by Columbus and Cabot Parent, or in the case of a waiver or binding interpretation, by the party or parties against whom the waiver is to be effective, provided that, following the Columbus Stockholder Approvals, there shall be no amendment to the provisions hereof which by applicable Law would require further approval by the Columbus stockholders without such further approval.  No failure or delay by any party in exercising any right, power or privilege hereunder shall operate as a waiver thereof; nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege.

 

Section 9.3         No Assignment or Benefit to Third Parties.  This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors, legal representatives and permitted assigns.  No party to this Agreement may assign any of its rights or delegate any of its obligations under this Agreement, by operation of Law or otherwise, without the prior written consent of the other party hereto.  Nothing in this Agreement, express or implied, is intended to confer upon any Person other than the Columbus Parties, the Cabot Parties, the Columbus Indemnitees and the Cabot Parent Indemnitees, and their respective successors, legal representatives and permitted assigns, any rights or remedies under or by reason of this Agreement.  Lewis shall be a third party beneficiary of Section 5.19.

 

Section 9.4         Entire Agreement.  This Agreement (including all Schedules, Exhibits and Annexes hereto) contains the entire agreement among the parties hereto and thereto with respect to the subject matter hereof and thereof and supersedes all prior agreements and understandings, oral or written, with respect to such matters, except for the Confidentiality Agreement and the Clean Team Agreement, which shall remain in full force and effect in accordance with its terms.  Notwithstanding any provision of this Agreement to the contrary, the Cabot Disclosure Schedule and the Columbus Disclosure Schedule are “facts ascertainable” as that term is used in Section 251(b) of the Delaware General Corporation Law, and do not form part of this Agreement but instead operate upon the terms of this Agreement as provided herein.

 

Section 9.5         Enforcement.  Irreparable damage for which monetary damages, even if available, would not be an adequate remedy, would occur if the parties hereto do not perform the provisions of this Agreement or any Ancillary Agreement (including failing to take such actions as are required of such parties hereunder to consummate the Transaction) in accordance with their respective specified terms or otherwise breach such provisions.  Each party shall be entitled to an injunction, specific performance and other equitable relief to prevent breaches of this Agreement or any Ancillary Agreement by the other parties hereto and to enforce specifically the terms and provisions hereof and thereof, this being in addition to any other remedy to which each such party is entitled at law or in equity.  No party will oppose the granting of an injunction, specific performance and other equitable relief on the basis that the other parties have an adequate remedy at law or an award of specific performance is not an appropriate remedy for any reason at law or equity.  Any party seeking an injunction or injunctions to prevent breaches of this Agreement or any Ancillary Agreement and to enforce specifically the terms and provisions of this Agreement or any Ancillary Agreement shall not be required to provide any bond or other security in connection with any such other order or injunction.

 

Section 9.6          Public Disclosure.  Notwithstanding anything to the contrary contained herein, except as may be required to comply with the requirements of any applicable Law and the rules and regulations of any stock exchange upon which the securities of one of the parties or any of their respective Affiliates is listed (provided, that, in such case, each party shall first give the other party a reasonable opportunity to review and comment on any draft public announcement), no press release or similar public announcement or communication shall be made or caused to be made relating to this Agreement unless specifically approved in advance by Columbus and Cabot Parent.

 

Section 9.7         Expenses.      Except as otherwise expressly provided in this Agreement, regardless of whether the Closing occurs, all costs, expenses and Taxes incurred in connection with this Agreement and the Transaction shall be borne by the party incurring such costs and expenses or the party upon which such costs, expenses or Taxes are imposed by applicable Law.

 

Section 9.8          Governing Law; Submission to Jurisdiction; Selection of Forum; Waiver of Trial by Jury.  THE AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW THAT WOULD RESULT IN THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION.  Each party hereto agrees that it shall bring any action or proceeding in respect of any claim arising out of or related to this Agreement or the Transaction, exclusively in the Delaware Court of Chancery or in the event (but only in the event) that such court declines jurisdiction over such action or proceeding, in the United States District Court for the District of Delaware (the “Chosen Courts”), and solely in connection with claims arising under this Agreement or the Transaction (i) irrevocably submits to the exclusive jurisdiction of the Chosen Courts, (ii) waives any objection to laying venue in any such action or proceeding in the Chosen Courts, and (iii) waives any objection that the Chosen Courts are an inconvenient forum or do not have jurisdiction over any party hereto.  Each party that does not maintain a registered agent in Delaware hereby irrevocably designates Corporation Service Company as its agent and attorney-in-fact for the acceptance of service of process and making an appearance on its behalf in any such claim or proceeding and for the taking of all such acts as may be necessary or appropriate in order to confer jurisdiction over it before the Chosen Courts and each party hereto stipulates that such consent and appointment is irrevocable and coupled with an interest.  Each party hereto irrevocably waives any and all right to trial by jury in any legal proceeding arising out of or relating to this Agreement or the Transaction.

 

Section 9.9         Counterparts.  This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, and all of which together shall constitute one and the same Agreement.  The exchange of copies of this Agreement and of signature pages by e-mail shall constitute effective execution and delivery of this Agreement as to the parties and may be used in lieu of the original Agreement for all purposes.  Signatures of the parties transmitted by e-mail shall be deemed to be their original signatures for all purposes.

 

Section 9.10         Headings.  The heading references herein and the table of contents hereof are for convenience purposes only, and shall not be deemed to limit or affect any of the provisions hereof.

 

Section 9.11        Severability.  The provisions of this Agreement shall be deemed severable and the invalidity or unenforceability of any provision shall not affect the validity or enforceability of the other provisions hereof.  If any provision of this Agreement, or the application thereof to any Person or any circumstance, is invalid or unenforceable, (a) a suitable and equitable provision shall be substituted therefor in order to carry out, to the extent as shall be valid and enforceable, the intent and purpose of such invalid or unenforceable provision and (b) the remainder of this Agreement and the application of such provision to other Persons or circumstances shall not be affected by such invalidity or unenforceability, nor shall such invalidity or unenforceability affect the validity or enforceability of such provision, or the application thereof, in any other jurisdiction.