Stock Purchase Agreement - Corrections Corporation of America and Sodexho SA
STOCK PURCHASE AGREEMENT
BY AND BETWEEN
CORRECTIONS CORPORATION OF AMERICA
AND
SODEXHO S.A.
DATED AS OF JUNE 9, 1995
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STOCK PURCHASE AGREEMENT
This Agreement (the "Agreement") is made and entered into this 9th day
of June, 1995, by and between Corrections Corporation of America, a Delaware
corporation having its principal place of business in Nashville, Tennessee (the
"Seller"), and Sodexho S.A., a French corporation, having its principal place
of business in France (the "Buyer").
WHEREAS, Seller will at the Closing (as hereinafter defined) own
45,000 "C" 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 one hundred (100%) percent of the issued shares of the
Company; and
WHEREAS, Buyer desires to acquire from Seller, and Seller desires to
sell to Buyer, shares in the capital of the Company owned by Seller which
shares collectively represent fifty percent (50%) of the issued shares of the
Company (the "Shares") 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, 22,500 "C"
class shares in the capital of the Company, which shares collectively
constitute fifty percent (50%) 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
Three Million Seven Hundred Seventeen Thousand Dollars ($3,717,000.00) (U.S.)
(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.
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2.02. COMPANY OBLIGATIONS. By entering into this Agreement, Buyer
understands and agrees that from and after the Closing, Buyer shall have the
obligations set forth in Schedule 2.02 hereto.
ARTICLE III
CLOSING; OBLIGATIONS OF THE PARTIES
3.01. CLOSING DATE. Subject to the provisions of Section 7.05 and
Section 8.05, the closing (the "Closing") shall take place and be effective for
all purposes at 10:00 a.m., local time, on ___ July 1995 at the offices of
Seller or at such other time and place as the parties hereto mutually agree
(the "Closing Date").
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 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 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) Two (2) persons nominated by Buyer shall be
appointed as directors;
(v) 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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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
Delaware 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.
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
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 Certificate of
Incorporation or Bylaws of the Seller; (c) violate any order, arbitration
award, judgment, writ, injunction, decree, statute, rule, or regulation
applicable to the
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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 any
other person acting on its 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. ORGANIZATION AUTHORITY AND GOOD STANDING. The Company is a
company duly organized, validly existing, and in good standing under the laws
of Queensland, Australia. The Company has full corporate power and authority
to carry on its business as now conducted and possesses all governmental and
other permits, licenses, and other authorization to own, lease, or operate its
assets and properties as now owned, leased, and operated and to carry on its
business as presently conducted.
4.07. NO CONFLICTS. The execution and delivery of this Agreement
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 Company is a party or by which it is
bound; (b) violate any order, arbitration award, judgment, writ, injunction,
decree, statute, rule, or regulation applicable to Company; or (c) violate any
other contractual or legal obligation or restriction to which Company is
subject. That certain Shareholders Agreement dated September 27, 1989 and
subsequently amended by and among Seller and certain other shareholders of the
Company has been terminated.
4.08. SUBSIDIARIES. The entities listed on Schedule 4.08 hereto
(the "Subsidiaries") are the only subsidiaries in which the Company owns,
directly or indirectly, any capital stock or other equity interest, or with
respect to which the Company, alone or in combination with others, is in a
control position. Each of the Subsidiaries is a corporation duly organized,
validly existing, and in good standing under the laws of the jurisdiction of
its incorporation. Each of the Subsidiaries has the power and authority and
possesses all governmental and other permits, licenses, and other
authorizations to own or lease its properties and to carry on its business as
now conducted. The outstanding capital stock of each of the Subsidiaries is
validly issued, fully paid, and non-assessable. The Company has good and valid
title to the equity interests in the Subsidiaries, free and clear of all liens,
claims, charges, restrictions, security interests, equities, proxies, pledges,
or encumbrances of any kind, except as set forth on Schedule 4.08. Except
where otherwise indicated herein, or unless the context otherwise requires, any
reference to the Company herein shall include the Company and the Subsidiaries.
4.09. LITIGATION. Except as set forth in Schedule 4.09, there are
no claims, actions, suits, proceedings, inquiries, or investigations pending or
threatened by or against, or otherwise affecting the Company at law or in
equity, or by any federal, state, municipal, or other governmental department,
commission, board, agency, instrumentality, or authority which, if adversely
decided, have a material adverse effect on the condition (financial or
otherwise), assets, liabilities, earnings, prospects, or business of the
Company. There are no claims, action, or suits
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pending or threatened by or against or otherwise affecting the Company at law
or in equity, questioning the validity of this Agreement or the transactions
contemplated hereby.
4.10. TITLE TO ASSETS. Except as set forth in Schedule 4.10, the
Company is the record, legal, and beneficial owner of, and has good marketable
title to, all the Assets (as defined herein), free and clear of all mortgages,
security interests, liens, leases, covenants, assessments, easements, options,
rights of refusal and set-off, restrictions, reservations, defects in the
title, encroachments, and other encumbrances, direct, contingent, or otherwise.
The Assets are all assets set forth in the financial statements of the Company
and owned or leased by the Company or otherwise utilized in the operation of
the Company's business, excluding those items disposed of and replaced since
December 31, 1994, in the ordinary course of business, but including the
replacements thereof.
4.11 TAX MATTERS. Seller and the Company have duly and timely
filed all tax reports and returns required to be filed by the Company and have
duly paid all taxes and other charges due or claimed to be due from the Company
by foreign, federal, state, or local taxing authorities (including, without
limitation, those due in respect of its properties, income, franchises,
licenses, sales, and payrolls); and true and correct copies of all tax reports
and returns relating to such taxes and other charges for the period since
December 31, 1990, have been heretofore delivered to Buyer. Since January 1,
1990, the Company has not incurred tax liabilities other than in the ordinary
course of business; there are no tax liens (other than liens for current taxes
not yet due) upon any properties or assets of the Company (whether real,
personal or mixed, tangible or intangible), and, except as reflected in the
financial statements of the Company, there are no pending or threatened
questions or examinations relating to, or claims asserted for, taxes or
assessments against the Company, and there is no basis for such question or
claim.
4.12. CAPITALIZATION. The authorized capital stock of the Company
consists of 15,000,000 "C" class shares of $1.00 each and of 1,000,000 "E"
class shares of $1.00 each. The issued capital stock is 45,000 "C" class
shares and no "E" class shares. Except for the issued "C" class and "E" class
shares, there are no shares of capital stock or other securities of the Company
issued and outstanding. There are no outstanding options, warrants, or rights
to purchase or acquire from the Company or the Seller, any securities of the
Company, and there are no contracts, commitments, agreements, understandings,
arrangements, or restrictions as to which the Company or the Seller is a party
or by which either of them is bound relating to any shares of capital stock or
other securities of the Company (including the Shares), whether or not
outstanding on the stock of the Company.
4.13. SHARES. All of the shares of issued capital stock of the
Company are duly authorized, validly issued, and outstanding and fully paid and
nonassessable, and free of preemptive rights.
4.14. CONTRACTS. Schedule 4.14 hereto sets forth a complete and
accurate list of all contracts, agreements, consulting arrangements, purchase
orders, leases, subleases, options, and commitments, oral or written, and all
assignments, amendments, schedules, exhibits, and
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appendices thereof, affecting or relating to the Company's business, the
Company's assets, or any interest therein to which the Company is a party or by
which the Company or its business assets or the Company's stock is bound or
affected, including, without limitation, service contracts, equipment leases,
and leases of space and ground leases (collectively, the "Contracts"); provided
there shall be no breach of this Section 4.14 if Immaterial Contracts as
defined below, are omitted. "Immaterial Contracts" shall mean contracts having
a remaining term of less than one (1) year and involving an expenditure of less
than US$25,000 in the aggregate for all obligations under any one contract or
$1,000,000 for all such contracts.
4.15. LICENSES AND PERMITS. The Company has all local, state, and
federal licenses, permits, registrations, certificates, consents,
accreditation, and approvals (collectively, the "Licenses and Permits")
necessary to conduct its business in a manner currently conducted. There is no
default under any of the Company's Licenses and Permits, no notices have been
received by the Company or its employees, agents, or representatives with
respect to threatened, pending, or possible revocation, termination,
suspension, or limitation of any such License or Permit, and there exists no
grounds for revocation, suspension, or limitation of any such License or
Permit.
4.16. RELATED PARTY TRANSACTIONS. All transactions between Seller
and its affiliates on the one hand and the Company and its affiliates on the
other hand prior to the date hereof were conducted at arm's length and at fair
value.
4.17. FINANCIAL STATEMENTS. Seller has delivered to Buyer: (a)
audited consolidated balance sheets of the Company as of December 31, 1994, and
the related audited consolidated statements of income, changes in stockholders'
equity, and changes in financial position for the fiscal year then ended,
including the notes thereto, together with the report thereon of Arthur
Andersen LLP, independent certified public accountants (the "Audited Financial
Statements"), and (b) an unaudited consolidated balance sheet of the Company as
of April 30, 1995 (the "Unaudited Balance Sheet") and the related unaudited
consolidated statements of income, changes in shareholders' equity, and changes
in financial position for the period then ended, including the notes thereto
(the "Unaudited Financial Statements") (the Audited Financial Statements and
the Unaudited Financial Statements are collectively referred to herein as the
"Financial Statements"). The Financial Statements are true, complete, and
correct, and fairly present the consolidated assets, liabilities, financial
condition, and results of operations of the Company as of the respective dates
thereof, and for the periods therein referred to, subject, in the case of the
Unaudited Financial Statements, to normal recurring year-end adjustments.
4.18. NO UNDISCLOSED LIABILITY. The Company does not have any
liabilities or obligations of any nature, whether absolute, accrued,
contingent, or otherwise, and whether due or to become due (including, without
limitation, liabilities for taxes and interest, penalties, and other charges
payable with respect thereto which are not reflected or reserved against in
Financial Statements or disclosed in the notes thereto.) The reserves
reflected in the Financial Statements are adequate, appropriate, and reasonable
in accordance with generally accepted accounting principles applied on a
consistent basis. Furthermore, Seller does not have actual knowledge of
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or actual knowledge of any basis for the assertion against the Company of any
such liability or obligation of any nature not fully reflected or reserved
against in the Financial Statements.
4.19. 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.
4.20. OFFERING OF SHARES. The offer, issuance and sale of the
Shares by the Seller to Buyer will not require registration under United States
securities laws.
4.21. CONSENTS AND APPROVALS. Subject to the provisions of Section
7.05, 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.
4.22. FULL DISCLOSURE. Neither the representations appearing in
Article IV of 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 societe anonyme
duly organized, validly existing and in good standing under the laws of France
and has full corporate power and authority to enter into this Agreement and to
carry out the transactions contemplated hereby.
5.02. AUTHORIZATION. The Board of Directors of Buyer has taken all
action required 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,
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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 order,
arbitration award, judgment, writ, injunction, decree, statute, rule or
regulation applicable to Buyer; or (c) violate any other contractual or legal
obligation or restriction to which Buyer is subject.
5.05. PURCHASE FOR INVESTMENT. Buyer is acquiring the Shares for
its own account and not with a view to, or present intention of, distribution
thereof in violation of the federal securities laws of the United States or
Australia or any state securities or blue sky laws, and the Shares will not be
disposed of in contravention of such laws.
5.06. 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.
5.07. 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.
5.08. FULL DISCLOSURE. Neither the representations appearing in
Article V of 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 PARTIES
The parties hereto agree 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 the request of the other party hereto and without further
consideration, each of Seller and Buyer will execute and deliver such other
instruments of sale, transfer, conveyance, assignment, and delivery and
confirmation and take such action as may reasonably be requested by the other
party hereto 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.
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6.02. CONSENTS AND APPROVALS. Each of Seller and Buyer 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 to carry out the
transactions contemplated in this Agreement.
6.03. NON-DISCLOSURE. Except as agreed to in writing by the other
party hereto, neither Seller nor Buyer will disclose to any other person not an
employee of such entity (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.
6.04. SCHEDULES. Seller hereby agrees to deliver the Schedules
referred to herein and required to be delivered pursuant to the terms hereof,
to the Buyer within fourteen (14) days of the execution of this Agreement.
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.
7.03. DUE DILIGENCE. Buyer shall have completed to its satisfaction,
a due diligence review of the Company.
7.04. 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.
7.05. SHAREHOLDERS AGREEMENT. The parties hereto shall have entered
into a Shareholders Agreement or, if necessary, an amendment to the Articles of
Association with regard to the issues outlined in Schedule 7.05 hereto which
Agreement shall be in form and substance mutually agreeable to both parties.
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7.06. GOVERNMENTAL APPROVAL. (a) The Buyer shall have received
notification from The Treasurer of the Commonwealth Government of Australia
(the "Treasurer") that the Treasurer does not object to the Buyer acquiring the
Shares on the terms set out in this Agreement. If the Buyer has not done so
prior to the execution of this Agreement it shall forthwith notify the
Treasurer of its intention to acquire the Shares as required by the Foreign
Acquisitions & Takeovers Act 1975 (the "Act");
(b) If the Treasurer shall have made an order pursuant to Section
18(2) of the Act prohibiting the acquisition of the Shares by the Buyer, then
this Agreement shall terminate;
(c) If the Treasurer indicates, within 30 days of notification,
that, pursuant to Section 25(1A) of the Act, he is prepared to grant his
consent to the acquisition of the Shares by the Buyer, subject to the
fulfillment by the Buyer of certain specified conditions, then the Buyer shall
advise the Treasurer and the Seller in writing within seven days thereafter
whether it accepts these conditions. If the Buyer accepts the conditions,
Buyer shall use its best reasonable efforts to comply with such conditions
within five days of the Treasurer's notification of the conditions and the
Closing shall be within five days of such compliance. If the Buyer does not
accept the Treasurer's conditions, then this Agreement will be at an end;
(d) If the Buyer has given notice to the Treasurer of his
intention to acquire the Shares, 30 days has expired from the date of such
notification and the Treasurer has not made any order under the Act or has not
made any decision under Section 25(1A) of the Act, then Closing shall be 5
working days from the date of expiration of that period of 30 days;
(e) If:
(i) before the end of thirty days after the date on which
the Treasurer has received notice from the Buyer of its intention to acquire
the Shares, the Treasurer has made an order under Section 22 of the Act in
relation to the proposed acquisition of the Shares;
(ii) an order is published in the Gazette as required by
the Act; and
(iii) 90 days pass after the day on which the order is
published:
(a) the Treasurer has not made a decision under
Section 25(1A); or
(b) made any other order under the Act,
then the Closing shall be five working days after the
expiration of that ninety day period.
(f) The purchase of the Shares by Buyer shall have been approved
by the States of Victoria and Queensland governments as required by existing
contracts by and between the Company and such governments.
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(g) The Victorian government shall have completed to its
satisfaction a probity investigation of Buyer in connection with the Company's
New Women's Prison Project in Victoria.
(h) The governments of the States of Victoria and Queensland shall
have completed to their satisfaction a probity investigation of the directors
of the Company designated by Buyer and appointed pursuant to Clause
3.02(a)(iv)(b) hereof.
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.
8.04. CONSENTS. Seller 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 Seller.
8.05. GOVERNMENT APPROVALS. (a) The Buyer shall have received the
approval of the Treasurer as described in Section 7.05 hereof.
(b) The purchase of the Shares by Buyer shall have been approved by
the States of Victoria and Queensland governments as required by existing
contracts by and between the Company and such governments.
(c) The Victorian government shall have completed to its
satisfaction a probity investigation of Buyer in connection with the Company's
New Women's Prison Project in Victoria.
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(d) The governments of the States of Victoria and Queensland shall
have completed to their satisfaction a probity investigation of the directors
of the Company designated by Buyer and appointed pursuant to Clause
3.02(a)(iv)(b) hereof.
ARTICLE IX
INDEMNIFICATION
9.01. INDEMNIFICATION BY SELLER. The Seller hereby agrees to
defend, indemnify and hold harmless Buyer, its directors, officers, employees,
affiliates and agents, and shall reimburse Buyer for, from and against each
claim, loss, diminution in value, damages, 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) Any other Loss incidental to any of the foregoing.
9.02. INDEMNIFICATION BY BUYER. Buyer hereby agrees to defend,
indemnify and hold harmless Seller, its directors, officers, employees,
affiliates and agents, 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. (a) 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
(but the failure to so notify shall not relieve the indemnifying party from its
obligations hereunder unless such failure irrevocably prejudices the
indemnifying party), 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
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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 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.
(b) If the indemnified party reasonably determines (i) that there
may be a conflict between the positions of the indemnifying party and the
indemnified party in defending such claim or action, or (ii) that there may be
legal defenses available to such indemnified party different from or in
addition to those available to the indemnifying party, then separate counsel
for the indemnified party shall be entitled to participate in and conduct the
defense, or such different defenses, and the indemnifying party shall be liable
for any reasonable legal or other expenses incurred by the indemnified party in
connection with the defense.
(c) Judgments against and settlements entered into by the
indemnified party pursuant to Section 9.03(a) shall unconditionally release the
indemnifying party from liability for the particular claim, demand, action, or
proceeding for which indemnification was sought.
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 shall expire on the third 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.
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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 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.
(b) 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.
(c) By either Buyer or Seller if the transactions contemplated by
this Agreement shall not have been consummated on or before August 15, 1995.
(d) 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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<PAGE> 16
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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<PAGE> 17
If to Seller:
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
If to Buyer:
Sodexho S.A.
3, avenue Newton
78180 Montigny-le-Bretonneux
FRANCE
Attn: Jean-Pierre Cuny
With a copy to:
Ropes & Gray
One International Place
Boston, MA 02110
Attn: Howard K. Fuguet, Esq.
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
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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.
12.09. DISPUTE RESOLUTION.
(a) Any party to this Agreement claiming that a dispute has arisen
in connection with the negotiation, execution, interpretation, performance or
nonperformance of 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 hereto agree that such dispute shall be solely and finally settled
by arbitration in accordance with the international rules of the International
Chamber of Commerce. All such proceedings shall be conducted in Geneva,
Switzerland.
(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.
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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:
SODEXHO S.A.
By:
---------------------------------
Title:
------------------------------
SELLER:
CORRECTIONS CORPORATION OF AMERICA
By:
---------------------------------
Title:
------------------------------
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<PAGE> 20
SCHEDULES TO
STOCK PURCHASE AGREEMENT
BY AND BETWEEN
CORRECTIONS CORPORATION OF AMERICA
AND
SODEXHO S.A.
DATED AS OF JUNE 9, 1995
<PAGE> 21
SCHEDULE 4.08
SUBSIDIARIES
1. Corrections Corporation of New Zealand Limited.
2. Excor Investments Pty. Ltd. A.C.N. 011 043 002.
3. Viccor Investments Pty. Ltd. A.C.N. 068 569 120.
<PAGE> 22
SCHEDULE 4.09
LITIGATION
None.
<PAGE> 23
SCHEDULE 4.10
ASSETS TO WHICH THE COMPANY DOES NOT HAVE CLEAR TITLE
None.
<PAGE> 24
SCHEDULE 4.14
MATERIAL CONTRACTS
1. Contract (CCA) with the Government of the State of Queensland for the
management of the Borallon Prison. The Contract runs for the period
1st April 1995 to the 31st March 2000.
2. Contract (CCA) with the Government of the State of Victoria for the
provision of transport and escort services of inmates to and from and
in the Geelong Courts, Victorian County Courts; the security of prison
inmates in St. Augustine's Ward of St. Vincent's Hospital, Melbourne.
This Contract runs for the period 1st July 1994 to the 30th June 1997
and has 2 option provisions (in favour of CCA) for 3 years each.
3. Contract (Viccor) with the Government of the State of Victoria for the
design, construction, ownership, finance and management of a 125 bed
women's correctional centre at Melton, Victoria. Under this Contract
construction commenced on the 5th June 1995 and is to be completed by
the 30th June 1996. The correctional centre is to commence operations
on the 1st July 1996. The Contract for the management of the centre
runs for a period of 5 years commencing on the 1st July 1996 and has 5
options (in favour of CCA's subsidiary Excor Investments Pty. Ltd.)
of 3 years each. The Contract with the Government of the State of
Victoria for the women's correctional centre provides for CCA's
subsidiary Excor Investments Pty. Ltd. to lease the land at Melton for
a period of 40 years; to construct a prison on that land; and for
CCA's subsidiary to provide a prison for the Government of the State
of Victoria for a period of up to 20 years.
4. And as follows:
(a) Prison Services Agreement (5/6/95)
(b) Ground Lease (5/6/95)
(c) Tripartite Agreement (5/6/95)
(d) Accommodation Services Support Agreement (5/6/95)
(e) Project Facility Agreement (5/6/95)
(f) Equity Support Agreement (5/6/95)