Stock Purchase Agreement - Chubb Security Holdings Australia Ltd. and Corrections Corporation of America
STOCK PURCHASE AGREEMENT
BY AND BETWEEN
CHUBB SECURITY HOLDINGS AUSTRALIA LIMITED
AND
CORRECTIONS CORPORATION OF AMERICA
DATED AS OF MARCH ___, 1995
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STOCK PURCHASE AGREEMENT
This Agreement (the "Agreement") is made and entered into this ____
day of March, 1995, by and between Corrections Corporation of America, a
Delaware corporation having its principal place of business in Nashville,
Tennessee (the "Buyer"), and Chubb Security Holdings Australia Limited A.C.N.
003 590 921, a New South Wales Company, having its principal place of business
in New South Wales, Australia (the "Seller").
WHEREAS, Seller will at the Closing (as hereinafter defined) own
15,000 "W" class shares and 7,500 "H" class shares in the capital of
Corrections Corporation of Australia Pty. Ltd. A.C.N. 010 921 641, a Queensland
Company (the "Company") which shares collectively represent fifty (50%) percent
of the issued shares of the Company; and
WHEREAS, Buyer desires to acquire from Seller, and Seller desires to
sell to Buyer, all of the shares in the capital of the Company owned by Seller
upon and subject to the terms and conditions contained in this Agreement.
NOW, THEREFORE, in consideration of the mutual promises, covenants and
agreements herein contained, the parties agree as follows:
ARTICLE I
PURCHASE AND SALE OF SHARES
1.01. TRANSFER OF SHARES. Subject to all of the terms and
conditions of this Agreement, at the Closing, Seller hereby agrees to sell,
transfer and convey to Buyer, and Buyer agrees to purchase and acquire from
Seller, free and clear of all liens, claims, charges, restrictions, security
interests, equities, proxies, pledges and encumbrances of any kind, 15,000 "W"
class shares and 7,500 "H" class shares in the capital of the Company, which
shares collectively constitute fifty (50%) percent of the issued shares in the
capital of the Company (the foregoing shares of the Company are hereinafter
collectively referred to as the "Shares").
ARTICLE II
CONSIDERATION
2.01. PURCHASE PRICE. The Purchase Price for the Shares shall be
Five Million Dollars ($5,000,000) (Aust.) (the "Purchase Price"). The Purchase
Price shall be paid by Buyer to Seller at the Closing, by bank cheque, bank
wire transfer or such other method as may be mutually agreed upon by the
parties.
2.02. ASSUMPTION OF LIABILITIES. From and after the Closing, Buyer
shall be responsible for any and all obligations of Seller with respect to
providing equity financing to the Company,
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including, without limitation, payments in connection with the Company's
overdraft facility or the provision of any equity necessary for construction
and development of that certain new women's prison to be located in Victoria,
Australia (the "New Women's Prison"). The Buyer undertakes to procure a full
and conditional release for the Seller from all agreements entered into by it
in relation to the construction, development and operation of the New Women's
Prison and hereby indemnifies and shall keep indemnified the Seller from and
against any and all loss, damage, costs, expenses, obligations and liability
suffered or incurred by the Seller under or pursuant to any or all such
agreements until the Seller shall have been fully and unconditionally released
therefrom.
2.03. PERSONNEL SERVICES. Following the Closing and until March 31,
1996 or such earlier date as may be agreed to by the parties, Seller shall
provide various supervision and security operations personnel to the Borallon
Correctional Centre in accordance with the terms and conditions of that certain
Personnel Contract by and between Seller and Buyer to be attached hereto as
Exhibit A.
ARTICLE III
CLOSING; OBLIGATIONS OF THE PARTIES
3.01. CLOSING DATE. Subject to the fulfillment of Section 7.07, the
closing (the "Closing") shall take place and be effective for all purposes at
10:00 a.m., local time, on 14 April 1995 at the offices of Seller or at such
other time and place as the parties hereto mutually agree (the "Closing Date").
If the Buyer has not received the notification referred to in Section 7.07 from
the Commonwealth Government by 14 April 1995, the Closing Date shall be five
working days after the receipt of such notification or if no notification is
received within 40 days from the date that the Buyer has given notification to
the Commonwealth government of its intention to enter into this Agreement, then
five working days after the expiration of that 40 day period.
3.02. OBLIGATIONS OF THE PARTIES AT THE CLOSING.
(a) At the Closing, the events set out in clauses (i)
through (v) shall occur:
(i) the Buyer shall pay the consideration as
specified in Section 2.01;
(ii) the Seller shall deliver to the Buyer or to
such person as Buyer may direct, the share certificate issued by the Company
for the Shares together with an executed instrument of transfer in registrable
form (except for the payment of any applicable stamp duty) for the Shares in
favor of the Buyer or its nominee (as transferee) from the registered holder of
the Shares (as transferor).
(iii) the Seller shall deliver to the Buyer any
waiver, consent or other document which the Buyer may require to obtain a good
title to the Shares registered in the name
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of the Buyer or its nominee, including any Power of Attorney under which any
document required to be delivered under this Agreement has been executed.
(iv) the Seller and the Buyer shall cause a
meeting of the Directors of the Company to be convened and shall procure that
at the meeting:
(a) the Directors shall approve the
transfer of the Shares to the Buyer or its nominee and, subject to the
payment of stamp duty, direct the entries in the Company's share
register be made, the existing share certificate for the Shares be
cancelled and a new certificate in the name of the Buyer be issued;
(b) the Directors shall revoke any
authorities for the operation of the Company's bank account granted to
any nominee or officer of Seller or granted to any Director or
Secretary appointed by Seller or representing Seller;
(c) two (2) persons that Buyer shall
have previously nominated shall be appointed as Directors and one (1)
person previously nominated by the Purchaser shall be appointed as
Secretary of the Company in place of the Director and Secretary
nominated by Seller or representing Seller;
(d) the Directors shall revoke any
power/s of attorney granted by the Company prior to the meeting in
favor of Seller or any Director or Secretary appointed by Seller;
(e) Ian Richards Masters and Graeme
Francis Pettigrew shall each resign as Director of the Company. Their
resignations shall be accepted; and
(f) The Directors shall appoint as an
additional Secretary of the Company some person nominated for that
purpose by Messrs. Thomas W. Beasley and T. Don Hutto.
(v) Seller shall deliver to the Meeting of the
Directors of the Company:
(a) the written resignation of Messrs.
Masters and Pettigrew and an acknowledgement from them that they have
no claim of any nature against the Company;
(b) any property of the Company in the
possession of Seller or any employee of Seller or in the possession of
Messrs. Masters or/and Pettigrew; and
(vi) Buyer may by written notice to the Seller
waive compliance by the Seller with the requirements of this Section 3.02 on
the Seller's part to be performed.
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(vii) The Buyer and the Seller being the only
shareholders in the Company, and being the only shareholders or class of
shareholders entitled to appoint directors of the Company hereby agree that the
quorum necessary for a valid meeting of directors of the Company shall be
present if there shall be 3 directors present 2 of whom appointed by the "W"
class shareholders and 1 by the "C" class shareholders or vice versa.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF SELLER
In order to induce Buyer to enter into this Agreement and consummate
the transactions contemplated hereby, Seller hereby represents and warrants as
follows:
4.01. ORGANIZATION AND GOOD STANDING. Seller is a corporation duly
organized, validly existing and in good standing under the laws of the State of
New South Wales and has full corporate power and authority to enter into this
Agreement and to carry out the transactions contemplated hereby.
4.02. OWNERSHIP OF SHARES; VALIDITY AND ENFORCEABILITY. Seller
represents and warrants that (i) Seller is the legal and beneficial owner of
the Shares, free and clear of all liens, claims, charges, restrictions,
security interests, equities, proxies, pledges or encumbrances of any kind;
(ii) Seller has the full right, power, authority and capacity to sell and
transfer the respective Shares owned by such Seller; (iii) by virtue of the
transfer of the Shares to Buyer at the Closing, Buyer will obtain full title to
such Shares, free and clear of all liens, claims, charges, restrictions,
security interests, equities, proxies, pledges, or encumbrances of any kind.
This Agreement constitutes a legal, valid and binding agreement of the Seller,
enforceable against Seller in accordance with its terms. As of the Closing
Date and upon receipt of the Purchase Price, Seller represents that it has no
claims of any kind against the Company.
4.03. CORPORATE POWER AND AUTHORITY: DUE AUTHORIZATION. Seller has
full corporate power and authority to execute and deliver this Agreement and to
consummate the transactions contemplated hereby. The Board of Directors of
Seller has duly approved and authorized the execution and delivery of this
Agreement and the consummation of the transactions contemplated hereby, and no
other corporate proceedings on the part of Seller are necessary to approve and
authorize the execution and delivery of this Agreement and the consummation of
the transactions contemplated hereby. This Agreement and each of the documents
to which Seller is a party constitutes, or will constitute when executed and
delivered, a valid and binding agreement of Seller, in each case enforceable in
accordance with its terms.
4.04. NO VIOLATION. The execution and delivery of this Agreement by
the Seller does not, and the consummation of the transactions contemplated
hereby will not, (a) violate or be in conflict with, or constitute a default
(or an event which, with notice or lapse of time, or both, would constitute a
default) with, or result in the termination of, or accelerate the performance
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required by, or excuse performance by any person of any of its obligations
under, or cause the performance required by, or exercise performance by any
person of any of its liabilities under, any provision of, or result in the
creation of any lien or security interest under, any agreement, indenture,
instrument, lease, security agreement, mortgage or lien to which the Seller is
a party or by which any of the Seller's assets or properties are bound; (b)
violate or be in conflict with any provision of the Articles of Association or
Bylaws of the Seller; (c) violate any order, arbitration award, judgment, writ,
injunction, decree, statute, rule, or regulation applicable to the Seller; or
(d) violate any other contractual or legal obligation or restriction to which
the Seller is subject.
4.05. ABSENCE OF QUESTIONABLE PAYMENTS. Neither the Seller nor
Messrs. Pettigrew and Masters or any other person acting on their behalf has at
any time directly or indirectly used funds for any illegal purpose, including
without limitation, the making of any improper political contribution, bribe or
kickback.
4.06. PROFESSIONAL FEES. The Seller has not done anything to cause
or incur any liability or obligation of the Company for investment banking,
brokerage, finders, agents or other fees, commissions, expenses or charges in
connection with the negotiation, preparation, execution or performance of this
Agreement or the consummation of the transactions contemplated hereby, and
Seller does not know of any claim by anyone for such a fee, commission, expense
or charge.
4.07. CONSENTS AND APPROVALS. Seller has obtained or will have
obtained prior to Closing, all consents, approvals, authorizations or orders of
third parties, including governmental authorities, necessary for the
authorization, execution and performance of this Agreement by Seller.
4.08. FULL DISCLOSURE. Neither this Agreement, nor any schedule,
exhibit, list, certificate or other instrument and document furnished or to be
furnished by Seller to Buyer pursuant to this Agreement, contains any untrue
statement of a material fact or omits to state any material fact required to be
stated herein or therein or necessary to make the statements and information
contained herein or therein not misleading.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF BUYER
In order to induce Seller to enter into this Agreement and consummate
the transactions contemplated hereby, Buyer hereby represents and warrants to
Seller as follows:
5.01. ORGANIZATION AND GOOD STANDING. Buyer is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware and has full corporate power and authority to enter into this
Agreement and to carry out the transactions contemplated hereby.
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5.02. AUTHORIZATION. The Board of Directors of Buyer has taken all
action required by law, its Certificate of Incorporation, its Bylaws and
otherwise to authorize the execution and delivery by Buyer of this Agreement
and the consummation by Buyer of the transactions contemplated hereby.
5.03. VALID AND BINDING AGREEMENT. This Agreement constitutes a
valid and binding agreement of Buyer, enforceable against Buyer in accordance
with its terms.
5.04. NO VIOLATION. The execution and delivery of this Agreement by
Buyer does not, and the consummation of the transactions contemplated hereby
will not, (a) violate any provision, or result in the creation of any lien or
security interest under, any agreement, indenture, instrument, lease, security
agreement, mortgage or lien to which Buyer is a party or by which it is bound;
(b) violate any provision of Buyer's Certificate of Incorporation or Bylaws;
(c) violate any order, arbitration award, judgment, writ, injunction, decree,
statute, rule or regulation applicable to Buyer; or (d) violate any other
contractual or legal obligation or restriction to which Buyer is subject.
5.05. PROFESSIONAL FEES. Buyer has not done anything to cause or
incur any liability for investment banking, brokerage, finders, agents or other
fees, commissions, expenses or charges in connection with the negotiation,
preparation, execution and performance of this Agreement or the consummation of
the transactions contemplated hereby, and Buyer does not know of any claim by
anyone for such a commission or fee.
5.06. CONSENTS AND APPROVALS. Buyer has obtained or will have
obtained prior to Closing, all consents, approvals, authorizations or orders of
third parties, including governmental authorities, necessary for the
authorization, execution and performance of this Agreement by Buyer.
5.07. FULL DISCLOSURE. Neither this Agreement, nor any certificate
or other instrument or document furnished or to be furnished by Buyer to Seller
pursuant to this Agreement, contains any untrue statement of a material fact or
omits to state a material fact required to be stated herein or therein or
necessary to make the statements and information contained herein or therein
not misleading.
ARTICLE VI
COVENANTS AND AGREEMENTS OF SELLER
Seller agrees that from the date hereof until the Closing, and thereafter
if so specified, it will fulfill the following covenants and agreements unless
otherwise consented to by Buyer in writing:
6.01. FURTHER ASSURANCES. At any time and from time to time after
the Closing, at Buyer's request and without further consideration, Seller will
execute and deliver such other
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instruments of sale, transfer, conveyance, assignment, and delivery and
confirmation and take such action as the Buyer may reasonably deem necessary or
desirable in order more effectively to transfer, convey and assign to Buyer and
to place Buyer in possession and control of, and to confirm Buyer's title to,
the Shares, and to assist Buyer in exercising all rights and enjoying all
benefits with respect thereto.
6.02. CONSENTS AND APPROVALS. Seller shall, in a timely, accurate
and complete manner, take all necessary corporate and other action and use all
reasonable efforts to obtain all consents, approvals, permits, licenses and
amendments of agreements required of the Seller to carry out the transactions
contemplated in this Agreement.
6.03. NON-DISCLOSURE. (a) Except as agreed to in writing by Buyer,
Seller will not disclose to any other person not an employee of Seller (or a
person otherwise involved in the carrying out of the transactions contemplated
by this Agreement), nor make any public announcement of, the transactions
contemplated by this Agreement prior to the Closing. Any such disclosure to
employees will be made on a need-to-know basis and on the condition that such
employees agree to be bound by the same confidentiality terms.
(b) Seller absolutely and unconditionally covenants and
agrees with Buyer that, from the period commencing on the Closing Date and
continuing for a period of five years following the Closing Date, neither
Seller nor any of its officers, directors, employees or affiliates and their
successors and assigns will disclose to any other person not an employee of
Seller, any information which it may have obtained regarding the business of
the Company.
6.04. NON-COMPETITION.
(a) Seller and its affiliates absolutely and unconditionally
covenant and agree with the Buyer that, from the period commencing on the
Closing Date and continuing for a period of five years following the Closing
Date, neither Seller nor any of its directors, officers, employees or
affiliates will, either directly or indirectly, solely or jointly with any
other person or persons, as an employee, consultant or advisor (whether or not
engaged in business for profit), or as an individual proprietor, partner,
shareholder, director, officer, joint venturer, investor, lender or in any
other capacity, compete with the business of the Buyer in any and all parts of
the world outlined on the plan annexed to that certain Shareholders' Agreement
dated September 22, 1989 and subsequently amended, by and between Buyer and
Seller (the "Shareholders' Agreement") as Exhibit B. For purposes of this
Agreement, "compete with the business of the Buyer" shall mean engaging in the
business of developing, designing, managing or operating private correctional
facilities or providing extradition services therefore, provided, however, that
the foregoing restriction shall not prevent Seller from providing security
personnel for supervision and security operations to such entities.
(b) It is expressly understood, acknowledged and agreed by
Seller (i) that the restriction contained in Section 6.04(a) of this Agreement
represents a reasonable and necessary protection of the legitimate interests of
the Buyer and that its failure to observe and comply with
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its covenants and agreements in that paragraph will cause irreparable harm to
the Buyer; (ii) it is and will continue to be difficult to ascertain the
nature, scope and extent of the harm; and (iii) a remedy at law for such
failure by the Seller will be inadequate. Accordingly, it is the intention of
the parties that, in addition to any other rights or remedies which the Buyer
may have in the event of any breach of Section 6.04(a), the Buyer shall be
entitled, and is expressly and irrevocably authorized by Seller, to demand and
obtain specific performance, including, without limitation, temporary and
permanent injunctive relief and all other appropriate equitable relief against
Seller in order to enforce against Seller the covenants and agreements
contained in that Section of this Agreement.
(c) If any court of competent jurisdiction shall at any time
deem the duration of the restriction contained in Section 6.04(a) of this
Agreement to be too lengthy or the scope thereof to be too broad, the
restrictive time period shall be deemed to be the longest period permissible by
law, and the scope shall be deemed to comprise the broadest scope permissible
by law. The parties hereby agree that such court may modify the objectionable
provision so as to make it valid, reasonable and enforceable and agree to be
bound by the terms of such provision, as modified by the court.
6.05. EXCLUSIVITY. Unless and until this Agreement terminates,
neither Seller nor any of its directors, officers, employees, investment
bankers, commercial banks, representatives or agents shall, directly or
indirectly, solicit, initiate, or knowingly encourage initiation of any
inquiries or proposals from or provide any confidential information to or
participate in any discussion or negotiations with, any person (other than
Buyer and its affiliates and their respective directors, officers, employees,
investment bankers, commercial banks, representatives and agents) concerning
the sale of the Shares, nor shall Seller accept any proposal with respect to,
or otherwise enter into any such sale or other similar transaction.
ARTICLE VII
CONDITIONS TO BUYER'S OBLIGATIONS
All obligations of Buyer hereunder are subject to the fulfillment,
prior to or at the Closing, of each of the following conditions:
7.01. REPRESENTATIONS AND WARRANTIES. The representations and
warranties made by the Seller in this Agreement shall be true when made and at
and as of the time of the Closing as though such representations and warranties
were made at and as of such date.
7.02. PERFORMANCE. Seller shall have performed and complied with
all agreements, obligations, and conditions required by this Agreement to be so
complied with or performed.
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7.03. OFFICER'S CERTIFICATE. Seller shall have delivered to Buyer a
Certificate of an officer of Seller dated the Closing Date, certifying as to
the fulfillment of the conditions specified in Sections 7.01 and 7.02 hereof.
7.04. CONSENTS AND APPROVALS. Buyer shall have received all consents
required for the consummation of the transactions contemplated hereby, all of
which consents shall be in form and substance satisfactory to Buyer.
7.05. RENEWAL OF BORALLON CONTRACT. That certain contract by and
between the Company and the Queensland Corrective Service Commission with
respect to the Borallon Correctional Centre shall have been renewed on terms
and conditions satisfactory to Buyer.
7.06. FAVORABLE TAX RULING. The Company shall have received, in the
opinion of Buyer, a favorable 51 AD tax code ruling as to the expensing of the
infrastructure of the New Women's Prison.
7.07. COMMONWEALTH APPROVAL. The Buyer shall have received
notification from the Commonwealth government that it does not object to the
Buyer acquiring the Seller's shares pursuant to this Agreement, as provided for
in S.26(2) of the Foreign Acquisitions & Takeovers Act (Commonwealth). The
Buyer agrees to notify the Treasurer of the Commonwealth of this Agreement and
its intention to acquire the Seller's shares forthwith upon the execution of
this Agreement.
ARTICLE VIII
CONDITIONS TO SELLER'S OBLIGATIONS
All obligations of Seller under this Agreement are subject to the
fulfillment, prior to or at the Closing, of each of the following conditions:
8.01. REPRESENTATIONS AND WARRANTIES. The representations and
warranties made by the Buyer in this Agreement shall be true when made and at
and as of the time of the Closing as though such representations and warranties
were made at and as of such date.
8.02. PERFORMANCE. Buyer shall have performed and complied with all
agreements, obligations, and conditions required by this Agreement to be so
complied with or performed.
8.03. OFFICER'S CERTIFICATE. Buyer shall have delivered to Seller a
Certificate of an officer of Buyer, dated the Closing Date, certifying as to
the fulfillment of the conditions specified in Sections 8.01 and 8.02 hereof.
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ARTICLE IX
INDEMNIFICATION
9.01. INDEMNIFICATION BY SELLER. The Seller hereby agrees to
defend, indemnify and hold harmless Buyer and shall reimburse Buyer for, from
and against each claim, loss, liability, cost and expense (including, without
limitation, interest, penalties, costs of preparation and investigation, and
the reasonable fees, disbursements and expenses of attorneys, accountants and
other professional advisors) (collectively, "Losses"), directly or indirectly
relating to, resulting from or arising out of:
(a) Any untrue representation, misrepresentation, breach
of warranty or nonfulfillment of any covenant, undertaking, agreement or other
obligation by or of Seller contained herein, or in any certificate, schedule,
document or instrument delivered to Buyer pursuant hereto.
(b) Without prejudice to the Buyer's undertaking and
indemnity in Section 2.02 any and all liabilities or obligations of the Seller
to the Company arising outside of this Agreement.
(c) Any other Loss incidental to any of the foregoing.
9.02. INDEMNIFICATION BY BUYER. Buyer hereby agrees to defend,
indemnify and hold harmless Seller, and shall reimburse Seller for, from and
against Losses directly or indirectly relating to, resulting from or arising
out of:
(a) Any untrue representation, misrepresentation, breach
of warranty or nonfulfillment of any covenant, undertaking, agreement or other
obligation by Buyer contained herein or in any certificate, document or
instrument delivered to Seller pursuant hereto.
(b) Any other Loss incidental to the foregoing.
9.03. PROCEDURE. The indemnified party shall promptly notify the
indemnifying party of any claim, demand, action or proceeding for which
indemnification will be sought under Sections 9.01 or 9.02 of this Agreement,
and, if such claim, demand, action or proceeding is a third party claim,
demand, action or proceeding, the indemnifying party will have the right at its
expense to assume the defense thereof using counsel reasonably acceptable to
the indemnified party. The indemnified party shall have the right to
participate, at its own expense, with respect to any such third party claim,
demand, action or proceeding. In connection with any such third party claim,
demand, action or proceeding, Buyer and the Seller shall cooperate with each
other and provide each other with access to relevant books and records in their
possession. No such third party claim, demand, action or proceeding shall be
settled without the prior written consent of the indemnified party. If a firm
written offer is made to settle any such third party claim, demand, action or
proceeding and the indemnifying party proposes to accept such settlement and
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the indemnified party refuses to consent to such settlement, then: (i) the
indemnifying party shall be excused from, and the indemnified party shall be
solely responsible for, all further defense of such third party claim, demand,
action or proceeding; and (ii) the maximum liability of the indemnifying party
relating to such third party claim, demand, action or proceeding shall be the
amount of the proposed settlement if the amount thereafter recovered from the
indemnified party on such third party claim, demand, action or proceeding is
greater than the amount of the proposed settlement.
ARTICLE X
SURVIVAL OF REPRESENTATIONS
10.01. SURVIVAL OF REPRESENTATIONS. All representations, warranties,
covenants, indemnities and agreements by the parties contained in this
Agreement shall survive the Closing and any investigation at any time made by
or on behalf of any party hereto, and other than the covenants of the Seller
contained in Section 6.04 hereof and the undertaking and indemnities of the
Buyer contained in Section 2.02, shall expire on the second anniversary of the
Closing Date.
10.02. STATEMENTS AS REPRESENTATIONS. All statements contained in
any certificate, schedule, list, document or other writing delivered pursuant
hereto or in connection with the transactions contemplated hereby shall be
deemed representations and warranties for all purposes of this Agreement.
10.03. REMEDIES CUMULATIVE. The remedies provided herein shall be
cumulative and shall not preclude the assertion by any party hereto of any
other rights or the seeking of any other remedies against the other party
hereto.
10.04. LIMITATION ON SELLER'S LIABILITY. Notwithstanding any other
provisions of this Agreement, under no circumstances whatsoever shall the
liability of the Seller for:
(a) breach of any and all of the warranties and representations
contained in Article IV hereof; and
(b) under the indemnity given by the Seller under Article IX
hereof in relation to such warranties and representations; and
(c) breach of any and all of any warranties and conditions as to
title to the Shares that may be implied by law into the sale and purchase of
the Shares exceed in the aggregate for any and all claims a sum equal to the
Purchase price.
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ARTICLE XI
TERMINATION OF AGREEMENT
11.01. TERMINATION. This Agreement may be terminated at any time
prior to the Closing:
(a) By mutual agreement of Seller and Buyer.
(b) By Buyer, if there has been a material violation or
breach by the Seller of any of the agreements, representations or warranties
contained in this Agreement which has not been waived in writing, or if any of
the conditions set forth in Article VII hereof have not been satisfied by the
Closing or have not been waived in writing by Buyer.
(c) By Seller, if there has been a material violation or
breach by the Buyer of any of the agreements, representations or warranties
contained in this Agreement which has not been waived in writing, or if any of
the conditions set forth in Article VIII hereof have not been satisfied by the
Closing or have not been waived in writing by Seller.
(d) By either Buyer or Seller if the transactions
contemplated by this Agreement shall not have been consummated on or before
[April 30, 1995].
(e) By either Buyer or the Seller if the other makes an
assignment for the benefit of creditors, files a voluntary petition in
bankruptcy or seeks or consents to any reorganization or similar relief under
any present or future bankruptcy act or similar law, or is adjudicated a
bankrupt or insolvent, or if a third party commences any bankruptcy,
insolvency, reorganization or similar proceeding involving the other.
11.02. EFFECT OF TERMINATION. In the absence of fraud or willful
breach on the part of Seller, or on the part of Buyer, then Seller will not
have any liability to Buyer, or Buyer will not have any liability to Seller, as
the case may be, under this Agreement if Seller or Buyer terminates this
Agreement pursuant to Section 11.01.
ARTICLE XII
MISCELLANEOUS
12.01. EXPENSES. All fees and expenses incurred by Seller, including
without limitation, legal fees and expenses, in connection with this Agreement
will be borne by Seller and all fees and expenses incurred by Buyer, including,
without limitation, legal fees and expenses, in connection with this Agreement
will be borne by Buyer, provided, however, that Buyer shall be responsible for
all stamp duty which may be due to any jurisdiction or governmental entity as a
result of the Closing of the purchase of the Shares.
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12.02. ASSIGNABILITY; PARTIES IN INTEREST.
(a) Buyer may assign any and all of its rights hereunder
to any affiliate of or any direct or indirect subsidiary of Buyer, and Buyer
shall advise Seller of any such assignment and shall designate such party as
the assignee and transferee of the securities purchased. Any such assignee
shall assume all of Buyer's duties, obligations and undertakings hereunder, but
the assignor shall remain liable thereunder.
(b) Seller may not assign, transfer or otherwise dispose
of any of its rights hereunder without the prior written consent of Buyer.
(c) All the terms and provisions of this Agreement shall
be binding upon, shall inure to the benefit of and shall be enforceable by the
respective heirs, successors, assigns and legal or personal representatives of
the parties hereto.
12.03. ENTIRE AGREEMENT; AMENDMENTS. This Agreement, including the
exhibits, schedules, lists and other documents and writings referred to herein
or delivered pursuant hereto, which form a part hereof, contains the entire
understanding of the parties with respect to its subject matter. There are no
restrictions, agreements, promises, warranties, covenants or undertakings other
than those expressly set forth herein or therein. This Agreement supersedes
all prior agreements and undertakings between the parties with respect to its
subject matter. This Agreement may be amended only by a written instrument
duly executed by all parties or their respective heirs, successors, assigns or
legal personal representatives. Any condition to a party's obligations
hereunder may be waived, but only by a written instrument signed by the party
entitled to the benefits thereof. The failure or delay of any party at any
time or times to require performance of any provision or to exercise its rights
with respect to any provision hereof, shall in no manner operate as a waiver of
or affect such party's right at a later time to enforce the same.
12.04. HEADINGS. The section and paragraph headings contained in
this Agreement are for reference purposes only and shall not affect in any way
the meaning or interpretations of this Agreement.
12.05. SEVERABILITY. The invalidity of any term or terms of this
Agreement shall not affect any other term of this Agreement, which shall remain
in full force and effect.
12.06. NOTICES. All notices, request, claims, demands and other
communications hereunder shall be in writing and shall be deemed to have been
duly given if delivered or mailed (registered or certified mail, postage
prepaid, return receipt requested) as follows:
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If to Seller:
Chubb Security Holdings Australia Limited
P. O. Box 1955
149-155 Milton Street
Ashfield NSW 2131
Australia
Attn: Mr. Graeme Francis Pettigrew
If to Buyer:
Corrections Corporation of America
102 Woodmont Boulevard, Suite 800
Nashville, Tennessee 37205
Attn: Doctor R. Crants
With a copy to:
Elizabeth E. Moore, Esq.
Stokes & Bartholomew, P.A.
424 Church Street, Suite 2800
Nashville, Tennessee 37219
or to such other address as any party may have furnished to the others in
writing in accordance herewith, except that notices of change of address shall
only be effective upon receipt.
12.07. GOVERNING LAW. This Agreement shall be governed by and be
interpreted under the laws of Queensland without regard to the conflicts of law
principles thereof. Each party hereby irrevocably submits to the non-exclusive
jurisdiction of any state or federal court located in Queensland over any
action or proceeding to enforce any right under this Agreement. The parties
further acknowledge that irrevocable 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. Accordingly, the parties shall be
entitled to an injunction to prevent breaches of the provisions of this
Agreement and to enforce specifically the terms and provisions hereof in any
court in Queensland. This being in addition to any other remedy to which they
may be entitled at law or equity.
12.08. COUNTERPARTS. This Agreement may be executed simultaneously
in one or more counterparts, with the same effect as if the signatories
executing the several counterparts had executed one counterpart, provided,
however, that the several executed counterparts shall together have been signed
by Buyer and the Seller. All such executed counterparts shall together
constitute one and the same instrument.
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12.09. DISPUTE RESOLUTION.
(a) Any party to this agreement claiming that a dispute
has arisen under this agreement between any of the parties to this agreement
shall give notice to the other party in dispute designating as its
representative in negotiations relating to the dispute a person with authority
to settle the dispute and the other party given written notice shall promptly
give notice in writing to the first party designating as its representative in
negotiations relating to the dispute a person with similar authority.
(b) The designated persons shall within 10 days of the
last designation required by subsection (a), following whatever investigations
each deems appropriate, seek to resolve the dispute.
(c) If the dispute is not resolved within the following
10 days (or within such further period as the representatives may agree is
appropriate) the parties in dispute shall within a further 10 days seek to
agree on a process for resolving the whole or part of the dispute through means
other than litigation, such as further negotiations, mediation, conciliation,
independent expert determination and so on.
(d) The parties acknowledge that the purpose of any
exchange of information or documents or the making of any offer of settlement
pursuant to this Section is to attempt to settle the dispute between the
parties. No party may use any information or documents obtained through the
dispute resolution process established by this Section for any purpose other
than in an attempt to settle a dispute between that party and the other party
to this Agreement.
(e) After the expiration of the time established by this
Section for agreement on a dispute resolution process, any party which has
complied with the provisions of this Section may in writing terminate the
dispute resolution process provided for in this Section and may then commence
Court proceedings relating to the dispute.
IN WITNESS WHEREOF, this Agreement has been duly executed and
delivered by the duly authorized officers of Buyer and by the Seller on the
date first above written.
BUYER:
CORRECTIONS CORPORATION OF AMERICA
By:
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Title:
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SELLER:
CHUBB SECURITY HOLDINGS AUSTRALIA
LIMITED
By:
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Title:
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