-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, BtSU3Sf4E11FzLTrvTAiBSEDxCtG+0axbOywd1eWR9Ub+EQiXFFEWLaa155vmJV2 OOc2q9vQ5VJAqL7oEOruaA== 0001341004-06-003609.txt : 20061222 0001341004-06-003609.hdr.sgml : 20061222 20061222164159 ACCESSION NUMBER: 0001341004-06-003609 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 2 CONFORMED PERIOD OF REPORT: 20061222 ITEM INFORMATION: Entry into a Material Definitive Agreement ITEM INFORMATION: Financial Statements and Exhibits FILED AS OF DATE: 20061222 DATE AS OF CHANGE: 20061222 FILER: COMPANY DATA: COMPANY CONFORMED NAME: US LEC CORP CENTRAL INDEX KEY: 0001054290 STANDARD INDUSTRIAL CLASSIFICATION: TELEPHONE COMMUNICATIONS (NO RADIO TELEPHONE) [4813] IRS NUMBER: 562065535 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 000-24061 FILM NUMBER: 061297520 BUSINESS ADDRESS: STREET 1: 6801 MORRISON BOULEVARD STREET 2: MORROCROFT III CITY: CHARLOTTE STATE: NC ZIP: 28211 BUSINESS PHONE: 704-319-1000 MAIL ADDRESS: STREET 1: 6801 MORRISON BOULEVARD STREET 2: MORROCROFT III CITY: CHARLOTTE STATE: NC ZIP: 28211 8-K 1 ny589155.txt FORM 8-K & 425 UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 ---------------- FORM 8-K CURRENT REPORT Pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 Date of Report (Date of earliest event reported): December 22, 2006 (December 22, 2006) ------------- US LEC CORP. (Exact name of registrant as specified in its charter) ---------------- Delaware 0-24061 56-2065535 - -------------------------------------------------------------------------------- (State or other jurisdiction of (Commission (IRS Employer incorporation) File Number) Identification No.) Morrocroft III 6801 Morrison Boulevard Charlotte, North Carolina 28211 - -------------------------------------------------------------------------------- (Address of principal executive offices) (Zip Code) Registrant's telephone number, including area code: (704) 319-1000 N/A (Former name or former address, if changed since last report.) ---------------- Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below): [x] Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) [_] Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) [_] Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) [_] Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) Item 1.01. Entry Into a Material Definitive Agreement On December 22, 2006, US LEC Corp. ("US LEC") entered into Amendment No. 1 (the "Amendment") to the Agreement and Plan of Merger (the "Merger Agreement"), dated as of August 11, 2006, by and among US LEC, PAETEC Corp., a Delaware corporation, WC Acquisition Holdings Corp., a Delaware corporation and a wholly-owned direct subsidiary of PAETEC (the "Company"), WC Acquisition Sub U Corp., a Delaware corporation and a wholly-owned direct subsidiary of the Company, and WC Acquisition Sub P Corp., a Delaware corporation and a wholly-owned direct subsidiary of the Company. The Amendment amends the Merger Agreement to provide that the Company's name would be changed to PAETEC Holding Corp., to provide that all shares of the Company owned by PAETEC immediately prior to the effective time of the mergers provided for in the Merger Agreement (the "Effective Time") would be automatically canceled and retired at the Effective Time, and to facilitate personnel decisions and tax planning matters that were otherwise covered by covenants in the Merger Agreement. The foregoing description of the Amendment is qualified in its entirety by reference to the Amendment, which is filed as Exhibit 2.1 hereto and is incorporated herein by reference. ITEM 9.01 FINANCIAL STATEMENTS AND EXHIBITS (d) Exhibits Exhibit No. Description Exhibit 2.1 Amendment No. 1 to Agreement and Plan of Merger, dated as of December 22, 2006, by and among US LEC Corp., PAETEC Corp., WC Acquisition Holdings Corp., WC Acquisition Sub U Corp. and WC Acquisition Sub P Corp. SIGNATURES Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized. US LEC Corp. By: /s/ J. Lyle Patrick ----------------------------------- Name: J. Lyle Patrick Title: Executive Vice President and Chief Financial Officer Date: December 22, 2006 EXHIBIT INDEX Exhibit No. Description - ----------- ----------- Exhibit 2.1 Amendment No. 1 to Agreement and Plan of Merger, dated as of December 22, 2006, by and among US LEC Corp., PAETEC Corp., WC Acquisition Holdings Corp., WC Acquisition Sub U Corp. and WC Acquisition Sub P Corp. EX-2 2 nyc644721.txt EXHIBIT 2.1 - AMEND 1 TO AGMT & PLAN OF MERGER Exhibit 2.1 AMENDMENT NO. 1 TO AGREEMENT AND PLAN OF MERGER THIS AMENDMENT NO. 1 TO AGREEMENT AND PLAN OF MERGER (this "Amendment") is made and entered into as of this 22nd day of December, 2006, by and among US LEC Corp, a Delaware corporation ("US LEC"), PAETEC Corp., a Delaware corporation ("PAETEC"), WC Acquisition Holdings Corp., a Delaware corporation and a wholly-owned direct subsidiary of PAETEC (the "Company"), WC Acquisition Sub U Corp., a Delaware corporation and a wholly-owned direct subsidiary of the Company ("Merger Sub U"), and WC Acquisition Sub P Corp., a Delaware corporation and a wholly-owned direct subsidiary of the Company ("Merger Sub P"). W I T N E S S E T H: - - - - - - - - - - WHEREAS, the parties wish to amend the Agreement and Plan of Merger, dated as of August 11, 2006, by and among US LEC, PAETEC, Merger Sub U, Merger Sub P and the Company (the "Merger Agreement") upon the terms and conditions set forth in this Amendment; NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto hereby agree as follows: 1. Amendment of Section 1.6(a). Section 1.6(a) of the Merger Agreement is hereby amended by replacing the existing text with the following text: "The directors of US LEC at the US LEC Effective Time shall be the initial directors of the US LEC Surviving Corporation until they have resigned or been removed from office or their successors have been duly elected or appointed or qualified; provided, however, that, within one day following the US LEC Effective Time, the Company, as the sole stockholder of the US LEC Surviving Corporation, shall take action to remove from office without cause all such directors who are not also continuing as directors of the Company." 2. Amendment of Section 1.7(c). Section 1.7(c) of the Merger Agreement is hereby amended by replacing the reference to "PAETEC Communications Corp." set forth therein with a reference to "PAETEC Holding Corp." 3. Amendment to Exhibits 1.7(a)-1 and 1.7(a)-2. Exhibits 1.7(a)-1 and 1.7(a)-2 to the Merger Agreement shall each be amended by replacing each reference to "PAETEC Communications Corp." set forth therein with a reference to "PAETEC Holding Corp." 4. Amendment of Section 2.1. Section 2.1 of the Merger Agreement is hereby amended by adding a new Section 2.1(j) thereto, which shall read in its entirety as follows: "(j) Cancellation of Company Shares. Each share of CompanyCommon Stock held by PAETEC immediately prior to the Effective Time shall automatically be canceled and retired and shall cease to exist, and no consideration shall be delivered in exchange therefor." 5. Amendments Regarding Conversion Agreement. (a) Section 5.17 of the Merger Agreement is hereby amended by adding the following parenthetical at the end of such Section 5.17: "(other than any amendment to or modification or termination of the Conversion Agreement that provides for the acceleration of the issuance and delivery of the shares of PAETEC Common Stock subject to issuance pursuant thereto, without in any manner increasing the number of shares of PAETEC Common Stock subject to issuance pursuant thereto)." (b) Section 6.3(g) of the Merger Agreement is hereby amended by adding the following clause at the end of such Section 6.3(g): ", unless, solely in the case of the Conversion Agreement, any such amendment or modification is made pursuant to, or any such lack of effectiveness is the result of any actions taken in accordance with, Section 5.17 hereof." (c) Section 4.1(a)(ii) of the PAETEC Disclosure Schedule is hereby amended by adding the following: "5. PAETEC will be permitted to issue up to 3,400,000 shares of PAETEC Common Stock pursuant to the Conversion Agreement, as the same may be amended from time to time in accordance with Section 5.17 of the Agreement." (d) Section 5.11(a)(v) of the PAETEC Disclosure Schedule is hereby amended by deleting the existing numbered paragraph (1) of Section 5.11(a)(v) in its entirety and substituting therefor a new numbered paragraph (1) of Section 5.11(a)(v), which shall read in its entirety as follows: "1. The Conversion and Exchange Agreement, as the same may be amended in accordance with Section 5.17 of the Agreement, but only to the extent that obligations of PAETEC remain thereunder immediately prior to the Effective Time." 6. Company Registration Rights Agreement. (a) Section 4.1(a)(iii) of the PAETEC Disclosure Schedule is hereby amended by adding the following: "3. PAETEC and PAETEC Holding will be entitled to enter into a Registration Rights Agreement in substantially the form attached hereto as Exhibit 4.1(a)(iii)(3) with the Persons set forth on the signature pages thereof." (b) The PAETEC Disclosure Schedule is hereby amended by adding thereto the Exhibit 4.1(a)(iii)(3) agreed by counsel to PAETEC and US LEC to be the substantially final version of the Registration Rights Agreement referred to in Item 3 of Section 4.1(a)(iii) of the PAETEC Disclosure Schedule. 7. PAETEC 2001 Option Plan. (a) Section 4.1(a)(vi) of the PAETEC Disclosure Schedule is hereby amended by adding the following: "5. PAETEC will be permitted to amend Section 19.1 of the PAETEC 2001 Plan to change the third word of clause (a) thereof from 'may' to 'shall' and to change the first reference to the word 'may' in the final sentence thereof to 'shall'." (b) From and after any amendment permitted by Item 5 of Section 4.1(a)(vi) of the PAETEC Disclosure Schedule, each reference in the Merger Agreement to the PAETEC 2001 Plan as in effect on the date of the Merger Agreement shall be deemed to be a reference to the PAETEC 2001 Plan, as amended by such amendment. 8. Acceleration of Certain US LEC Payments. Section 4.1(a)(vi) of the US LEC Disclosure Schedule is hereby amended by adding the following: "5. US LEC shall be permitted to accelerate the payment of the 2006 bonus and retention payments to Aaron Cowell and J. Lyle Patrick." 9. Continuing Effect. This Amendment shall not constitute an amendment or modification of any provision of the Merger Agreement not expressly referred to herein. Except as expressly set forth in this Amendment, the terms, provisions and conditions of the Merger Agreement shall remain unchanged and in full force and effect. 10. Counterparts. This Amendment may be executed in any number of counterparts which, taken together, shall constitute a single, binding instrument. 11. Governing Law. This Amendment and any disputes arising out of or related to it shall be governed by, and construed in accordance with, the laws of the State of Delaware, regardless of the laws that might otherwise govern under applicable principles of conflict of laws thereof. [Signature page follows] IN WITNESS WHEREOF, US LEC, PAETEC, Merger Sub U, Merger Sub P and the Company have caused this Amendment No.1 to be executed as of the date first written above by their respective officers thereunto duly authorized. US LEC CORP. By: /s/ J. Lyle Patrick ---------------------------------- Name: J. Lyle Patrick Title: Executive Vice President and Chief Financial Officer PAETEC CORP. By: /s/ Arunas A. Chesonis ---------------------------------- Name: Arunas A. Chesonis Title: Chairman, President and Chief Executive Officer WC ACQUISITION HOLDINGS CORP. By: /s/ Keith M. Wilson ---------------------------------- Name: Keith M. Wilson Title: Executive Vice President and Chief Financial Officer WC ACQUISITION SUB U CORP. By: /s/ Keith M. Wilson ---------------------------------- Name: Keith M. Wilson Title: Vice President WC ACQUISITION SUB P CORP. By: /s/ Keith M. Wilson ---------------------------------- Name: Keith M. Wilson Title: Vice President -----END PRIVACY-ENHANCED MESSAGE-----