Agreement and Plan of Merger - Corrections Corporation of America, CCA of Tennessee Inc. and Prison Management Services Inc.
AGREEMENT AND PLAN OF MERGER
This AGREEMENT AND PLAN OF MERGER, dated as of November 17, 2000 (the
"Agreement"), is by and among Corrections Corporation of America, a Maryland
corporation formerly known as Prison Realty Trust, Inc. ("CCA"), CCA of
Tennessee, Inc., a Tennessee corporation formerly known as CCA Acquisition Sub,
Inc. and a wholly-owned subsidiary of CCA ("CCA of Tennessee"), and Prison
Management Services, Inc., a Tennessee corporation ("PMSI"). (CCA of Tennessee
is sometimes referred to herein as the "Acquisition Company," and PMSI is
sometimes referred to herein as the "Target Company.")
W I T N E S S E T H:
WHEREAS, pursuant to the terms of an Agreement and Plan of Merger by and
among CCA, CCA of Tennessee and Corrections Corporation of America, a Tennessee
corporation ("OpCo"), dated June 30, 2000, OpCo was, effective October 1 2000,
merged with and into CCA of Tennessee, with CCA of Tennessee being the surviving
corporation (the "CCA Merger");
WHEREAS, CCA, CCA of Tennessee and PMSI wish to merge PMSI with and into
CCA of Tennessee (the "Merger" or the "PMSI Merger"), upon the terms and subject
to the conditions set forth in this Agreement, which Merger requires the
approval by the affirmative vote of the Boards of Directors of PMSI, CCA of
Tennessee and CCA (collectively, the "Board Approvals");
WHEREAS, the Merger also requires the approval by the affirmative vote
of the holders of a majority of the outstanding shares of Class A common stock,
$0.01 par value per share, of PMSI (the "PMSI Class A Common Stock") (the "PMSI
Shareholder Approval");
WHEREAS, CCA, CCA of Tennessee and PMSI desire to make certain covenants
and agreements in connection with the Merger and also to prescribe various
conditions to the Merger; and
WHEREAS, for federal income tax purposes, it is intended that the Merger
qualify as a reorganization within the meaning of Section 368(a) of the Code,
and this Agreement is intended to be and is adopted as a plan of reorganization
with respect to the Merger.
NOW, THEREFORE, in consideration of the foregoing and the respective
representations, warranties, covenants and agreements set forth herein, the
parties hereto agree as follows:
ARTICLE I
THE MERGER
SECTION 1.01 The Merger. At the Effective Time (as defined in Section
1.03 herein) and subject to and upon the terms and conditions of this Agreement,
and in accordance with the Tennessee Business Corporation Act (the "TBCA"), PMSI
shall be merged with and into CCA
<PAGE> 2
of Tennessee, whereupon the separate corporate existence of PMSI shall cease and
CCA of Tennessee shall continue as the surviving company.
Following the Merger, CCA of Tennessee (the "Surviving Company") shall
succeed to and assume all the rights and obligations of PMSI, in accordance with
the TBCA.
SECTION 1.02 Closing. Unless this Agreement shall have been terminated
and the transactions contemplated herein abandoned pursuant to Section 4.01, and
subject to the satisfaction or waiver of the conditions set forth in Article
III, the closing of the Merger (the "Closing") will take place at 10:00 a.m.,
local time, on a date to be specified by the parties, which shall be no later
than the fifth business day following the satisfaction or waiver of all the
conditions set forth in Article III herein which by their terms are capable of
being satisfied prior to the Closing (the "Closing Date"), at the offices of
Stokes Bartholomew Evans & Petree, P.A. in Nashville, Tennessee, unless another
time, date or place is agreed to by the parties hereto.
SECTION 1.03 Effective Time. Subject to the provisions of this
Agreement, as promptly as practicable on the Closing Date, articles of merger
and all other appropriate documents (in any such case, the "Articles of Merger")
shall be duly prepared, executed, acknowledged and filed by the parties in
accordance with the relevant provisions of the TBCA with the Secretary of State
of the State of Tennessee (the "Tennessee Secretary of State"). The Merger shall
become effective on the Closing Date at the time of day specified in the
Articles of Merger filed with the Tennessee Secretary of State (the "Effective
Time").
SECTION 1.04 Effects of the Merger. At the Effective Time, the Merger
shall have the effects set forth in Section 48-21-108 of the TBCA. Without
limiting the foregoing, and subject thereto, at the Effective Time all the
property, rights, privileges, powers and franchises of the Target Company and
the Acquisition Company shall vest in the Surviving Company, and all debts,
liabilities and duties of the Target Company and the Acquisition Company shall
become the debts, liabilities and duties of the Surviving Company.
SECTION 1.05 Constituent Documents.
(a) Charter. The charter of the Acquisition Company as in effect
immediately prior to the Effective Time shall continue to be the charter of the
Surviving Company (with such amendments as may be set forth in the Articles of
Merger in accordance with this Agreement) until thereafter changed or amended as
provided therein or by applicable law.
(b) Bylaws. The bylaws of the Acquisition Company as in effect
immediately prior to the Effective Time shall continue to be the bylaws of the
Surviving Company until thereafter changed or amended as provided therein or by
applicable law.
SECTION 1.06 Directors. The directors of the Acquisition Company
immediately prior to the Effective Time shall be the directors of the Surviving
Company, until the earlier of their resignation or removal or until their
respective successors are duly elected and qualified, as the case may be.
2
<PAGE> 3
SECTION 1.07 Officers. The officers of the Acquisition Company
immediately prior to the Effective Time shall be the officers of the Surviving
Company, serving in such capacity until the earlier of their resignation or
removal or until their respective successors are duly elected and qualified, as
the case may be.
ARTICLE II
EFFECT OF THE MERGER ON THE CAPITAL SHARES, INDEBTEDNESS AND
AGREEMENTS OF THE CONSTITUENT ENTITIES; EXCHANGE OF
CERTIFICATES
SECTION 2.01 Effect on Capital Shares, Indebtedness and Agreements. For
purposes hereof, the term "Constituent Capital Stock" means the PMSI Common
Stock (as defined herein). By virtue of the Merger and without any action on the
part of CCA or its stockholders, the Acquisition Company, the Target Company or
the holders of the Constituent Capital Stock:
(a) Cancellation of Certain Shares, Indebtedness and Agreements. As of
the Effective Time, except as set forth on Schedule A attached hereto: (i) each
share of Constituent Capital Stock that is owned by any of the parties hereto or
their subsidiaries (except for any shares of CCA Common Stock owned by the
Acquisition Company which are to be delivered as the PMSI Merger Consideration)
shall automatically be canceled and retired and shall cease to exist and no
consideration shall be delivered in exchange therefor; (ii) any indebtedness
between any of the parties hereto shall be canceled and shall cease to exist and
no consideration shall be delivered therefor; and (iii) all agreements between
any of the parties hereto shall be canceled and shall cease to exist.
(b) Conversion of PMSI Common Stock. As of the Effective Time, each
issued and outstanding share of Class B common stock, $0.01 par value per share,
of PMSI (the "PMSI Class B Common Stock," and, together with the PMSI Class A
Common Stock, the "PMSI Common Stock") shall be canceled in accordance with
subparagraph (a) above, and each issued and outstanding share of PMSI Class A
Common Stock (other than shares canceled pursuant to subparagraph (a) above)
shall be converted into the right to receive that number of shares of CCA Common
Stock (collectively, the "PMSI Merger Consideration") determined by: (i)
dividing $550,000 by the CCA Closing Price (as herein defined); and (ii)
dividing the amount determined under clause (i) by the total number of shares of
PMSI Class A Common Stock outstanding immediately prior to the Effective Time
which are not to be canceled pursuant to subparagraph (a) above. All
computations made in accordance with the preceding sentence shall be rounded to
two decimal places. As of the Effective Time, each issued and outstanding share
of PMSI Class A Common Stock converted into CCA Common Stock in accordance
herewith shall no longer be outstanding and shall automatically be canceled and
retired and shall cease to exist, and each holder of a certificate representing
any such shares of PMSI Class A Common Stock shall cease to have any rights with
respect thereto except the right to receive the PMSI Merger Consideration,
without interest thereon. Shares of CCA Common Stock that are issued in exchange
for shares of PMSI Class A Common Stock which are subject to forfeiture under
the PMSI Restricted Stock Plan (as defined in Section 2.04 herein) shall become
subject to the terms
3
<PAGE> 4
and restrictions of the CCA Restricted Stock Plan in accordance with Section
2.04 herein. For purposes hereof, the term "CCA Closing Price" means the average
closing price of CCA Common Stock on the New York Stock Exchange (the "NYSE")
over the five trading days ending two trading days prior to the Closing Date.
SECTION 2.02 Exchange of Certificates.
(a) Exchange. Immediately after the Effective Time, CCA shall exchange
certificates representing PMSI Common Stock (the "PMSI Certificates" and each a
"PMSI Certificate") for the PMSI Merger Consideration. Promptly after the
Effective Time, CCA shall send to each holder of shares of PMSI Common Stock
(other than CCA or any of its Subsidiaries) at the Effective Time a letter of
transmittal for use in such exchange (which shall specify that the delivery
shall be effected, and risk of loss and title shall pass, only upon proper
delivery of the PMSI Certificates to CCA) and instructions for use in effecting
the surrender of the PMSI Certificates for payment therefor.
(b) Exchange of PMSI Certificates. Each holder of shares of PMSI Common
Stock that have been converted into the right to receive the PMSI Merger
Consideration will be entitled to receive, upon surrender to CCA of a PMSI
Certificate, together with a properly completed letter of transmittal, the PMSI
Merger Consideration in respect of each share of PMSI Common Stock represented
by such PMSI Certificate. Until so surrendered, each such PMSI Certificate
shall, after the Effective Time, represent for all purposes only the right to
receive such PMSI Merger Consideration.
(c) Form of Certain Transfers. If any portion of the PMSI Merger
Consideration is to be paid to a person (as defined in Section 5.03 herein)
other than the person in whose name a PMSI Certificate is registered, it shall
be a condition to such payment that the PMSI Certificate so surrendered shall be
properly endorsed or otherwise be in proper form for transfer and that the
person requesting such payment shall pay to CCA any transfer or other taxes
required as a result of such payment to a person other than the registered
holder of such PMSI Certificate or establish to the satisfaction of CCA that
such tax has been paid or is not payable.
(f) Transfers After the Effective Time. After the Effective Time, there
shall be no further registration of transfers of shares of PMSI Common Stock.
If, after the Effective Time, PMSI Certificates are presented to CCA or the
Surviving Company, they shall be canceled and promptly exchanged for the
consideration provided for, in accordance with the procedures set forth in this
Article.
(g) Unclaimed Shares. Neither CCA nor the Surviving Company shall be
liable to any holder of PMSI Common Stock for any amount paid to a public
official pursuant to applicable abandoned property laws.
(h) Dividends. No dividends, interest or other distributions with
respect to securities of CCA constituting part of the PMSI Merger Consideration
shall be paid to the holder of any unsurrendered PMSI Certificates until such
PMSI Certificates are surrendered as provided in this
4
<PAGE> 5
Section. Upon such surrender, there shall be paid, without interest, to the
person in whose name the securities of CCA have been registered, all dividends,
interest and other distributions payable in respect of such securities on a date
subsequent to, and in respect of a record date after, the Effective Time.
SECTION 2.03 Qualified Plans. Prior to the Effective Time, CCA and the
Target Company shall take all actions (including, if appropriate, amending the
terms of the CCA 401(k) Savings and Retirement Plan and the CCA Employee Savings
and Stock Ownership Plan) that are necessary to give effect to the transactions
contemplated by this Section.
SECTION 2.04 Restricted Stock Plans. As of the Effective Time, the
Prison Management Services, Inc. 1998 Restricted Stock Plan (the "PMSI
Restricted Stock Plan") shall be merged into a restricted stock plan (the "CCA
Restricted Stock Plan") with terms and conditions similar to those of the PMSI
Restricted Stock Plan, except that any shares forfeited under the new restricted
stock plan shall be forfeited to all plan participants. CCA, the Acquisition
Company and the Target Company shall take all actions that are necessary to give
effect to the transactions contemplated by this Section.
SECTION 2.05 Fractional Shares. No fractional shares of CCA Common Stock
shall be issued to shareholders of PMSI in connection with the Merger, but in
lieu thereof each holder of shares of PMSI Common Stock otherwise entitled to
receive as a result of the Merger a fractional share of CCA Common Stock shall
be entitled to receive a cash payment (without interest), rounded to the nearest
cent, representing such holder's proportionate interest in the net proceeds
resulting from the sale (after deduction of all expenses resulting from such
sale) on the NYSE through one or more of its member firms, of the fractional
shares of CCA Common Stock all holders of shares of PMSI Common Stock would
otherwise be entitled to receive as a result of the Merger.
SECTION 2.06 Lost Certificates. If any PMSI Certificate shall have been
lost, stolen or destroyed, upon the making of an affidavit of that fact by the
person claiming such PMSI Certificate to be lost, stolen or destroyed and, if
required by the Surviving Company, the posting by such person of a bond, in such
reasonable amount as the Surviving Company may direct, as indemnity against any
claim that may be made against it with respect to such PMSI Certificate, CCA (or
its duly appointed transfer agent) will issue in exchange for such lost, stolen
or destroyed PMSI Certificate, the PMSI Merger Consideration to be paid in
respect of the shares represented by such PMSI Certificates as contemplated by
this Article.
ARTICLE III
CONDITIONS PRECEDENT
SECTION 3.01 Conditions to Each Party's Obligation To Effect the Merger.
The respective obligations of each party to effect the Merger shall be subject
to the satisfaction or waiver at or prior to the Effective Time of the following
condition:
5
<PAGE> 6
(a) No Injunctions or Restraints; Illegality. No statute, rule,
regulation, judgment, writ, decree, order, temporary restraining order,
preliminary or permanent injunction shall have been promulgated, enacted,
entered or enforced, and no other action shall have been taken, by any
Governmental Entity of competent jurisdiction enjoining or otherwise preventing
the consummation of the Merger shall be in effect; provided, however, that each
of the parties shall use its reasonable best efforts to prevent the entry of any
such injunction or other order or decree and to cause any such injunction or
other order or decree that may be entered to be vacated or otherwise rendered of
no effect.
(b) Board Approvals. The Board Approvals shall have been obtained.
SECTION 3.02 Conditions to Obligation of CCA and Acquisition Company to
Effect the Merger. The obligation of CCA and the Acquisition Company to effect
the Merger is subject to the satisfaction of the following conditions, unless
waived by CCA and the Acquisition Company:
(a) Shareholder Approval. The PMSI Shareholder Approval shall have been
obtained.
(b) Performance of Obligations of Other Parties. PMSI shall have
performed in all material respects all material obligations required to be
performed by it under this Agreement at or prior to the Closing Date, and CCA
shall have received a certificate to such effect signed on behalf of PMSI by its
Chief Executive Officer or Chief Financial Officer.
(c) Antitrust Clearance. If applicable, the waiting period with respect
to the consummation of the Merger under the Hart-Scott-Rodino Antitrust
Improvements Act of 1976, as amended, shall have expired or been terminated.
SECTION 3.03 Conditions to Obligation of PMSI to Effect the Merger. The
obligation of PMSI to effect the Merger is subject to the satisfaction of the
following conditions unless waived by PMSI:
(a) Shareholder Approval. The PMSI Shareholder Approval shall have been
obtained.
(b) Performance of Obligations of Other Parties. CCA and Acquisition
Company shall have performed in all material respects all material obligations
required to be performed by them under this Agreement at or prior to the Closing
Date, and PMSI shall have received a certificate to such effect signed on behalf
of CCA and Acquisition Company by their respective Chief Executive Officer or
Chief Financial Officer.
SECTION 3.04 Frustration of Closing Conditions. No party to this
Agreement may rely on the failure of any condition set forth in Sections 3.01
through 3.03, as the case may be, to be satisfied if such failure was caused by
such party's failure to use all reasonable best efforts to consummate the Merger
and the other transactions contemplated by this Agreement.
6
<PAGE> 7
ARTICLE IV
TERMINATION AND AMENDMENT
SECTION 4.01 Termination. This Agreement may be terminated at any time
prior to the Effective Time, whether before or after the Board Approvals and the
PMSI Shareholder Approval is received:
(a) by mutual written consent of the parties hereto;
(b) by CCA or PMSI upon written notice to the other parties:
(i) if any Governmental Entity of competent jurisdiction shall
have issued a permanent injunction or other order or decree enjoining or
otherwise preventing the consummation of the Merger and such injunction or other
order or decree shall have become final and nonappealable; provided that the
party seeking to terminate this Agreement pursuant to this clause (i) shall have
used its reasonable best efforts to prevent or contest the imposition of, or
seek the lifting or stay of, such injunction, order or decree;
(ii) if the Merger shall not have been consummated on or before
February 28, 2001, unless the failure to consummate the Merger is the result of
a material breach of this Agreement by the party seeking to terminate this
Agreement;
(c) by CCA upon written notice to the other parties if, upon a vote at a
duly held meeting of the shareholders of PMSI or any adjournment thereof, the
PMSI Shareholder Approval shall not have been obtained;
(f) by CCA upon written notice to the remaining parties, if the Board of
Directors of PMSI or any committee thereof shall not have approved the Merger,
or after approving the Merger, shall have withdrawn or modified in a manner
adverse to CCA its approval or recommendation of the Merger or this Agreement or
resolved to do so;
(g) by PMSI upon written notice to the remaining parties, if the Board
of Directors of CCA or any committee thereof shall not have approved the Merger,
or after approving the Merger, shall have withdrawn or modified in a manner
adverse to such terminating party its approval or recommendation of the Merger
or this Agreement or resolved to do so;
(h) unless PMSI is in material breach of its obligations hereunder, by
PMSI upon written notice to CCA if CCA breaches or fails to perform any of its
covenants or agreements hereunder, which breach or failure to perform (A) would
give rise to the failure of a condition set forth in Section 3.03 hereof and (B)
is incapable of being cured by CCA or is not cured within thirty (30) days after
the terminating party gives written notice of such breach to CCA and such a cure
is not effected during such period; or
7
<PAGE> 8
(i) unless CCA is in material breach of its obligations hereunder, by
CCA upon written notice to PMSI if PMSI breaches or fails to perform any of its
representations, warranties, covenants or other agreements hereunder, which
breach or failure to perform (A) would give rise to the failure of a condition
set forth in Section 3.02 hereof and (B) is incapable of being cured by PMSI or
is not cured within thirty (30) days after CCA gives written notice of such
breach to PMSI and such a cure is not effected during such period.
SECTION 4.02 Effect of Termination. In the event of termination of this
Agreement as provided in Section 4.01 herein, this Agreement shall forthwith
become void and have no effect and, except to the extent that such termination
results from the willful and material breach by a party hereto of any covenants
or agreements set forth in this Agreement, there shall be no liability or
obligation on the part of the parties hereto except with respect to this Section
4.02 and Article V hereof, which provisions shall survive such termination.
SECTION 4.03 Amendment. This Agreement may be amended by the parties
hereto at any time before or after the Board Approvals and the PMSI Shareholder
Approval is received, provided that after receipt of the PMSI Shareholder
Approval, no amendment shall be made which by law requires further approval by
such shareholders without such further approval. This Agreement may not be
amended except by an instrument in writing signed on behalf of each of the
parties hereto.
SECTION 4.04 Extension; Waiver. At any time prior to the Effective Time,
the parties hereto may, to the extent legally allowed, (a) extend the time for
the performance of any of the obligations or other acts of the other party
hereto, (b) waive any inaccuracies in the representations and warranties
contained herein or in any document delivered pursuant hereto and (c) subject to
the proviso of Section 4.03, waive compliance with any of the agreements or
conditions contained herein. Any agreement on the part of a party hereto to any
such extension or waiver shall be valid only if set forth in a written
instrument signed on behalf of such party. The failure of any party to this
Agreement to assert any of its rights under this Agreement or otherwise shall
not constitute a waiver of those rights.
SECTION 4.05 Procedure for Termination, Amendment, Extension or Waiver.
A termination of this Agreement pursuant to Section 4.01, an amendment of this
Agreement pursuant to Section 4.03 or an extension or waiver pursuant to Section
4.04 shall, in order to be effective, require action by the Board of Directors,
or the duly authorized committee of such Board to the extent permitted by law,
of the party authorizing such action.
ARTICLE V
GENERAL PROVISIONS
SECTION 5.01 Notices. All notices and other communications hereunder
shall be in writing and shall be deemed given if delivered personally,
telecopied (with confirmation) or sent by overnight or same-day courier
(providing proof of delivery) to the parties at the following addresses (or at
such other address for a party as shall be specified by like notice):
8
<PAGE> 9
if to CCA, to:
Corrections Corporation of America
10 Burton Hills Boulevard, Suite 100
Nashville, Tennessee 37215
Attention: John D. Ferguson, Chief Executive Officer and President
Facsimile: (615) 263-3010
with a copy to:
Stokes Bartholomew Evans & Petree, P.A.
424 Church Street, Suite 2800
Nashville, Tennessee 37219-2323
Attention: Elizabeth E. Moore, Esq.
Facsimile: (615) 259-1470
if to PMSI, to:
Prison Management Services, Inc.
10 Burton Hills Boulevard
Nashville, Tennessee 37215
Attention: Brent Turner, Secretary and Treasurer
Facsimile: (615) 263-3170
with a copy to:
Stokes Bartholomew Evans & Petree, P.A.
424 Church Street, Suite 2800
Nashville, Tennessee 37219-2323
Attention: Elizabeth E. Moore, Esq.
Facsimile: (615) 259-1470
SECTION 5.03 Definitions; Interpretation.
(a) As used in this Agreement:
(i) "business day" means any day on which banks are not required or
authorized to close in the City of New York; and
(ii) "person" means an individual, corporation, partnership,
limited liability company, joint venture, association, trust, unincorporated
organization or other entity.
SECTION 5.04 Counterparts. This Agreement may be executed in two or more
counterparts, all of which shall be considered one and the same agreement and
shall become
9
<PAGE> 10
effective when two or more counterparts have been signed by each of the parties
and delivered to the other party.
SECTION 5.05 Entire Agreement; No Third-Party Beneficiaries; Rights of
Ownership. This Agreement (a) constitutes the entire agreement and supersedes
all prior agreements and understandings, both written and oral, among the
parties with respect to the subject matter hereof, and (b) is not intended to
confer upon any person other than the parties hereto any rights or remedies
hereunder.
SECTION 5.06 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Tennessee, without regard
to any principles of conflicts of law of such State.
SECTION 5.07 Assignment. Neither this Agreement nor any of the rights,
interests or obligations hereunder shall be assigned, in whole or in part, by
any of the parties hereto (whether by operation of law or otherwise) without the
prior written consent of the other parties, and any such assignment that is not
so consented to shall be null and void; provided that, if necessary or advisable
under applicable provisions of corporate or tax law, CCA may assign its rights
hereunder to any of its subsidiaries or affiliates to cause PMSI to merge with a
subsidiary or affiliate of CCA, but no such assignment shall relieve CCA of its
obligations hereunder including the obligations to deliver the PMSI Merger
Consideration. Subject to the preceding sentence, this Agreement will be binding
upon, inure to the benefit of and be enforceable by the parties and their
respective successors and assigns.
SECTION 5.08 Enforcement. The parties agree that irreparable damage
would occur in the event that any of the provisions of this Agreement were not
performed in accordance with their specific terms or were otherwise breached. It
is accordingly agreed that the parties shall be entitled to an injunction or
injunctions to prevent breaches of this Agreement and to enforce specifically
the terms and provisions of this Agreement in any Federal court located in the
State of Tennessee or in any Tennessee state court, this being in addition to
any other remedy to which they are entitled at law or in equity. In addition,
each of the parties hereto (a) consents to submit itself to the personal
jurisdiction of any Federal court located in the State of Tennessee or any
Tennessee state court in the event any dispute arises out of this Agreement or
any of the transactions contemplated by this Agreement and (b) agrees that it
will not attempt to deny or defeat such personal jurisdiction by motion or other
request for leave from any such court.
10
<PAGE> 11
Accepted and agreed to this 17th day of November, 2000.
CORRECTIONS CORPORATION OF AMERICA
/s/ John D. Ferguson
--------------------------------------------
John D. Ferguson
Chief Executive Officer and President
CCA OF TENNESSEE, INC.
/s/ John D. Ferguson
--------------------------------------------
John D. Ferguson
President
PRISON MANAGEMENT SERVICES, INC.
/s/ Brent Turner
--------------------------------------------
Brent Turner
Secretary and Treasurer
11
<PAGE> 12
Schedule A
[intentionally omitted]