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Title: |
Purchase Agreement |
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Entities: |
Canadian Imperial Bank of Commerce; CIBC World Markets Corp.; Deutsche Bank Securities Inc.; Paetec Corp |
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Date: |
2005 |
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Size: |
Preview shows 43KB of 127KB total |
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Price: |
$57 |
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ID: |
#1435738 |
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Start of Preview |
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PAETEC CORP.
(a Delaware corporation)
[] Shares of Common Stock
PURCHASE AGREEMENT
Dated: [], 2005
Table of Contents
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PURCHASE AGREEMENT |
2 | |
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SECTION 1. Representations and Warranties |
4 | |
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(a) Representations and Warranties by the Company |
4 | |
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(b) Representations and Warranties by the Selling Shareholders |
12 | |
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(c) Officers Certificates |
14 | |
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SECTION 2. Sale and Delivery to Underwriters; Closing |
15 | |
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(a) Initial Securities |
15 | |
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(b) Option Securities |
15 | |
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(c) Custodial Arrangements |
15 | |
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(d) Payment |
16 | |
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(e) Denominations; Registration |
17 | |
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SECTION 3. Covenants of the Company |
17 | |
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(a) Compliance with Securities Regulations and Commission Requests |
17 | |
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(b) Filing of Amendments |
17 | |
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(c) Delivery of Registration Statements |
17 | |
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(d) Delivery of Prospectuses |
18 | |
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(e) Continued Compliance with Securities Laws |
18 | |
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(f) Blue Sky Qualifications |
18 | |
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(g) Rule 158 |
19 | |
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(h) Use of Proceeds |
19 | |
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(i) Listing |
19 | |
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(j) Restriction on Sale of Securities |
19 | |
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(k) Reporting Requirements |
20 | |
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(l) Compliance with Rules Relating to the Sale or Allocation of Initial Public Offerings of Securities |
20 | |
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SECTION 4. Payment of Expenses |
20 | |
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(a) Expenses |
20 | |
TOC-1
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(b) Expenses of the Selling Shareholders |
21 | |
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(c) Termination of Agreement |
21 | |
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(d) Allocation of Expenses |
21 | |
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SECTION 5. Conditions of Underwriters Obligations |
21 | |
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(a) Effectiveness of Registration Statement |
21 | |
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(b) Opinion of Counsel for Company |
22 | |
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(c) Opinion of FCC Regulatory Counsel for Company |
22 | |
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(d) Opinion of Counsel for the Selling Shareholders |
22 | |
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(e) Opinion of Counsel for Underwriters |
22 | |
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(f) Officers Certificate |
22 | |
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(g) Certificate of Selling Shareholders |
22 | |
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(h) Accountants Comfort Letter |
23 | |
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(i) Bring-down Comfort Letter |
23 | |
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(j) Approval of Listing |
23 | |
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(k) No Objection |
23 | |
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(l) Lock-up Agreements |
23 | |
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(m) Repayment and Termination of the Existing Credit Facility |
23 | |
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(p) Closing Transactions |
23 | |
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(q) Conditions to Purchase of Option Securities |
24 | |
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(r) Additional Documents |
25 | |
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(s) Termination of Agreement |
25 | |
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SECTION 6. Indemnification |
25 | |
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(a) Indemnification of Underwriters by the Company |
25 | |
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(b) Indemnification of Underwriters by the Selling Shareholders |
27 | |
TOC-2
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(c) Indemnification of Company, Directors and Officers and Selling Shareholders by each of the Underwriters |
27 | |
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(d) Indemnification of Selling Shareholders by the Company |
27 | |
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(e) Indemnification of Company by the Selling Shareholders |
28 | |
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(f) Actions Against Parties; Notification |
28 | |
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(g) Settlement Without Consent if Failure to Reimburse |
29 | |
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(h) Indemnification for Reserved Securities |
29 | |
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(i) Other Agreements with Respect to Indemnification |
30 | |
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SECTION 7. Contribution |
30 | |
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SECTION 8. Representations, Warranties and Agreements to Survive Delivery |
31 | |
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SECTION 9. Termination of Agreement. |
31 | |
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(a) Termination; General |
31 | |
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(b) Liabilities |
32 | |
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SECTION 10. Default by One or More of the Underwriters |
32 | |
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SECTION 11. Default by One or More of the Selling Shareholders or the Company |
33 | |
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SECTION 12. No Fiduciary Duty. |
33 | |
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(a) Acknowledgement by the Company |
33 | |
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(b) Acknowledgement by the Selling Shareholders. |
34 | |
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SECTION 13. Notices |
34 | |
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SECTION 14. Parties |
34 | |
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SECTION 15. GOVERNING LAW |
35 | |
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SECTION 16. TIME |
35 | |
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SECTION 17. Counterparts |
35 | |
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SECTION 18. Effect of Headings |
35 | |
SCHEDULES
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Schedule A - Underwriters |
Sch A-1 |
TOC-3
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Schedule B - Initial and Option Securities to be Sold |
Sch B-1 | |
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Schedule C - Pricing Information |
Sch C-1 | |
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Schedule D-1 - List of Persons and Entities Subject to Lock-up |
Sch D-1 | |
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Schedule D-2 - List of Persons and Entities Subject to Lock-up |
Sch D-2 | |
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Schedule E |
Sch E-1 | |
EXHIBITS
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Exhibit A - Form of Opinion and Letter of Hogan & Harston, Counsel to the Company, |
A-1 | |
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Exhibit A-1- Form of Opinion of Swidler Berlin LLP FCC Regulatory Counsel to the Company |
A-2 | |
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Exhibit A-2 - Form of Opinion of Loeb & Loeb LLP, Counsel to the Selling Shareholders Counsel |
A-3 | |
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Exhibit A-3 - Form of Opinion of General Counsel of the Company |
A-5 | |
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Exhibit B-1 - Form of Lock-up Letter for Persons and Entities listed on Schedule D-1 |
B-1 | |
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Exhibit B-2 - Form of Lock-up Letter for Persons and Entities Listed on Schedule D-2 |
B-4 | |
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Exhibit C - Form of Power of Attorney |
C-1 | |
ANNEXES
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Annex A - Form of Accountants Comfort Letter |
Annex A-1 |
TOC-4
PAETEC CORP.
(a Delaware corporation)
[] Shares of Common Stock
(Par Value $0.01 Per Share)
PURCHASE AGREEMENT
August [], 2005
MERRILL LYNCH & CO.
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
MORGAN STANLEY & CO. INCORPORATED
CIBC WORLD MARKET CORP.
DEUTSCHE BANK SECURITIES INC.
GOLDMAN, SACHS & CO.
| c/o | MERRILL LYNCH & CO. |
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
4 World Financial Center
New York, New York 10080
and
MORGAN STANLEY & CO. INCORPORATED
1585 Broadway
New York, New York 10036
Ladies and Gentlemen:
PaeTec Corp., a Delaware corporation (the Company), and the persons listed in Schedule B hereto (the Selling Shareholders), confirm their respective agreements with Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated (Merrill Lynch), Morgan Stanley and Co. Incorporated (Morgan Stanley), CIBC World Markets Corp., Deutsche Bank Securities Inc. and Goldman, Sachs & Co., which are collectively referred to herein as the Underwriters, which term shall also include any underwriter substituted as hereinafter provided in Section 10 hereof, with respect to the issue and sale by the Company, the sale by the Selling Shareholders, acting severally and not jointly, and the purchase by the Underwriters, acting severally and not jointly, of the respective numbers of shares of Common Stock, par value $0.01 per share, of the Company (Common Stock) set forth in Schedules A and B hereto, and with respect to the grant by the Company and the Selling Shareholders, acting severally and not jointly, to the Underwriters, acting severally and not jointly, of the option described in Section 2(b) hereof to purchase all or any part of [] additional shares of Common Stock to cover over-allotments, if any. The aforesaid [] shares of Common Stock (the Initial Securities) to
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