Securities Purchase Agreement [Amendment No. 1] - Sodexho SA and Corrections Corporation of America
AMENDMENT NO. 1
TO
SECURITIES PURCHASE AGREEMENT
THIS AMENDMENT NO. 1 TO SECURITIES PURCHASE AGREEMENT (this
"Amendment"), dated as of July 11, 1995, is entered into by and among Sodexho
S.A., a French corporation ("Purchaser") and Corrections Corporation of
America, a Delaware corporation (the "Corporation").
R E C I T A L S:
WHEREAS, the Corporation and the Purchaser are parties to that certain
Securities Purchase Agreement, dated as of June 23, 1994 (the "Agreement"); and
WHEREAS, the parties desire to amend the Agreement with regard to the
interest rate on the 8.75% Notes (as referred to therein) and the timing of the
purchase of such 8.75% Notes by the Purchaser on the terms and conditions set
forth herein.
A G R E E M E N T:
NOW, THEREFORE, in consideration of the foregoing and subject to the
terms and conditions herein contained, the parties hereto agree as follows:
SECTION 1. Definitions.
1.1. General. Initially capitalized terms used in this Amendment
shall have the meanings ascribed thereto in the Agreement, as amended hereby,
unless otherwise defined herein.
1.2. Floating Rate. Section 6 of the Agreement is hereby amended to
include the following definition of Floating Rate:
"Floating Rate" means the six (6) month London Interbank
Offered Rate (LIBOR) as reported each day in The Wall Street Journal
plus 135 basis points or 1.35%, calculated on a daily basis. The
Floating Rate Note shall bear interest at the Floating Rate from the
date such Floating Rate Note is issued to the date the principal
hereof is paid or made available for payment or upon conversion of
such principal portion of the Floating Rate Note in accordance
therewith. Interest on the Floating Rate Note shall be computed on
the daily principal balance at the Floating Rate. The Floating Rate
shall be calculated upon the issuance of such note and shall be
recalculated upon each Interest Payment Date (as defined in the
Floating Rate Note) for the following six-month period. In computing
interest on the Floating Rate Note, the date of issuance of such note
shall be included and the date of payment shall be excluded: provided
that if the note is repaid on the same day on which it is issued, one
day's interest shall be paid on the note."
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SECTION 2. Amendments to the Agreement.
2.1. Amendment to Terms. All references in the Agreement to the
8.75% Notes shall be deleted and such Notes shall hereinafter be referred to as
the "Floating Rate Notes".
2.2. Amendment of Section 1.8 of the Agreement. Section 1.8 of the
Agreement is hereby amended by deleting such Section in its entirety and
inserting in its place the following new Section 1.8.
"1.8. Right to Purchase Floating Rate Note. The Company has
authorized the grant to Purchaser of the right to purchase up to $20
million aggregate principal amount Floating Rate Convertible
Subordinated Notes, in the form of Exhibit E hereto (the "Floating
Rate Note", and together with the Shares, the 8.5% Note and the
Warrants, the "Securities"), on the terms and conditions set forth in
Section 2 hereto."
2.3. Amendment of Section 2 of the Agreement. Section 2 of the
Agreement is hereby amended by deleting such Section in its entirety and
inserting in its place the following new Section 2.
"2. Right to Purchase Securities.
2.1. Right to Purchase Floating Rate Notes. Subject to the
terms and conditions set forth below, at any time during the period
beginning September 30, 1995 and ending December 31, 1997, the
Purchaser will have the right to purchase up to $10 million aggregate
principal amount Floating Rate Notes convertible at the conversion
price of $27.30. Subject to the terms and conditions set forth below,
at any time during the period beginning February 15, 1996 and ending
December 31, 1997, the Purchaser will have the right to purchase up to
$10 million aggregate principal amount Floating Rate Notes convertible
at the conversion price of $27.30 (collectively, the "Rights").
The Floating Rate Notes shall be converted in no more than
three increments. All conversions of the Floating Rate Notes shall be
on such other terms and conditions as set forth in Exhibit D hereto.
(a) To exercise the Rights, the Purchaser shall deliver to
the Company (i) a notice of exercise duly executed by the Purchaser
specifying the aggregate principal amount of Floating Rate Notes to be
purchased (the "Notice of Exercise") and (ii) an amount equal to the
principal amount for all of the Floating Rate Notes as to which the
Rights are then being exercised (the "Exercise Price"). At the option
of the Purchaser, payment of the Exercise Price shall be made by (i)
wire transfer of funds to an account in a bank designated by the
Company for such purpose, or (ii) certified or official bank check
payable to the order of the Company, or (iii) by any combination of
such methods.
(b) Upon receipt of the required deliveries by the Purchaser
and satisfaction of the conditions set forth in Section 11 hereof, the
Company shall at
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a Subsequent Closing within five days after receipt of the Notice of
Exercise, cause to be issued and delivered to the Purchaser Floating
Rate Notes in an aggregate principal amount equal to that specified in
the Notice of Exercise. Such Floating Rate Notes shall be registered
in the name of the Purchaser.
(c) Purchaser may, prior to any Subsequent Closing, if the
conditions specified in Section 11 have not been fulfilled, in a
written notice to the Company, withdraw the Notice of Exercise and the
Company shall repay to the Purchaser the Exercise Price plus interest
at a rate of the Floating Rate for the period beginning on the date of
the Notice of Exercise and ending on the date of such repayment within
three days of the withdrawal of the Notice of Exercise.
2.2. Effectiveness of Exercise. Unless otherwise requested
by the Purchaser, the Rights shall be deemed to have been exercised
and the Floating Rate Notes shall be deemed to have been issued, and
the Purchaser shall be deemed to have become the holder of record of
the Floating Rate Notes for all purposes, as of the close of business
on the date the Notice of Exercise, together with payment of the
Exercise Price, is received by the Company."
SECTION 3. Effectiveness of this Amendment.
This Amendment shall become effective upon the execution and delivery
of this Amendment by the Purchaser and the Corporation.
SECTION 4. Representations and Warranties of the Corporation.
In order to induce the Purchaser to enter into this Amendment, the
Corporation hereby makes the following representations and warranties to the
Purchaser:
4.1. Corporate Power and Authorization. The Corporation has the
requisite corporate power and authority to execute, deliver and perform its
obligations under this Amendment.
4.2. No Conflict. Neither the execution and delivery by the
Corporation of this Amendment nor the consummation of the transactions
contemplated or required hereby nor compliance by the Corporation with the
terms, conditions and provisions hereof will conflict with or result in a
breach of any of the terms, conditions or provisions of the Certificate of
Incorporation or Bylaws of the Corporation or any law, regulation, order, writ,
injunction or decree of any court or governmental instrumentality or any
agreement or instrument to which the Corporation is a party or by which any of
its properties is bound, or constitute a default thereunder or result in the
creation or imposition of any lien.
4.3. Authorization; Governmental Approvals. The execution and
delivery by the Corporation of this Amendment and the consummation of the
transactions contemplated hereby (i) have been duly authorized by all necessary
corporate action on the part of the Corporation and (ii) do not and will not
require any authorization, consent, approval or license from or any
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registration, qualification, designation, declaration or filing with, any court
or governmental department, commission, board, bureau, agency or
instrumentality, domestic or foreign.
4.4. Valid and Binding Effect. This Amendment has been duly and
validly executed and delivered by the Corporation and constitutes the legal,
valid and binding obligation of the Corporation, enforceable in accordance with
its terms.
4.5. Absence of Default. No event has occurred and is continuing or
will result from the consummation of the transactions contemplated by this
Amendment that would constitute an Event of Default under the Agreement.
SECTION 5. Miscellaneous.
5.1. Amendment to Agreement. The Agreement is hereby, and shall
henceforth be deemed to be, amended, modified and supplemented in accordance
with the provisions hereof, and the respective rights, duties and obligations
under the Agreement shall hereafter be determined, exercised and enforced under
the Agreement, as amended, subject in all respects to such amendments,
modifications, and supplements and all terms and conditions of this Amendment.
5.2. Ratification of the Agreement. Except as expressly set forth in
this Amendment, all agreements, covenants, undertakings, provisions,
stipulations, and promises contained in the Agreement and the Securities are
hereby ratified, readopted, approved, and confirmed and remain in full force
and effect.
5.3. No Implied Waiver. The execution, delivery and performance of
this Amendment shall not, except as expressly provided herein, constitute a
waiver or modification of any provision of, or operate as a waiver of any
right, power or remedy of the Purchaser under, the Agreement or prejudice any
right or remedy that the Purchaser may have or may have in the future under or
in connection with the Agreement or any instrument or agreement referred to
therein. The Corporation acknowledges and agrees that the representations and
warranties of the Corporation contained in the Agreement and in this Amendment
shall survive the execution and delivery of this Amendment and the
effectiveness hereof.
5.4. Governing Law. This Amendment shall be governed by, and
construed and enforced in accordance with, the laws of the State of Delaware.
The English language version of all documents relating to the transactions
contemplated hereby will govern.
5.5. Counterparts; Telecopy Execution. This Agreement may be
executed in two or more counterparts, each of which shall be deemed to be an
original, but all of which together shall constitute one and the same
instrument. Delivery of an executed counterpart of this Amendment by facsimile
shall be equally as effective as delivery of a manually executed counterpart.
Any party delivering an executed counterpart of this Amendment by facsimile
shall also deliver a manually executed counterpart, but the failure to deliver
a manually executed counterpart shall not affect the validity, enforceability,
and binding effect of this Amendment.
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IN WITNESS WHEREOF, the undersigned have caused this Amendment to be
executed by their duly authorized officers as of the date first written above.
SODEXHO S.A.
By:
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Its:
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CORRECTIONS CORPORATION OF AMERICA
By:
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Its:
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