Stock Purchase Agreement [Amendment No. 1] - Corrections Corporation of America and Sodexho SA
FIRST AMENDMENT TO STOCK PURCHASE AGREEMENT
BY AND BETWEEN
CORRECTIONS CORPORATION OF AMERICA
AND
SODEXHO S.A.
DATED AS OF OCTOBER ______, 1995
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FIRST AMENDMENT TO STOCK PURCHASE AGREEMENT
THIS FIRST AMENDMENT TO STOCK PURCHASE AGREEMENT (the "AMENDMENT") is
made and entered into this ____ day of October, 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, Buyer and Seller are parties to that certain Stock Purchase
Agreement dated as of June 9, 1995 (the "AGREEMENT"), pursuant to which Seller
agreed to sell to Buyer and Buyer agreed to purchase from Seller, shares
representing fifty percent (50%) of the issued shares of Corrections
Corporation of Australia Pty. Ltd. A.C.N. 010 921 641, a Queensland company
(the "COMPANY"), upon the terms and conditions set forth therein; and
WHEREAS, Seller and Buyer desire to amend the Agreement on the terms
and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual promises covenants and
agreements herein contained, the parties agree as follows:
SECTION 1. Definitions. Initially capitalized terms used in
this Amendment shall have the meanings ascribed thereto in the Agreement, as
amended hereby, unless otherwise defined herein.
SECTION 2. Amendments to the Agreement.
2.1. Amendment to Article I. Article I of the Agreement is hereby
amended to read in its entirety 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, 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"). Seller shall transfer the Shares free and clear of all
liens, claims, charges, restrictions, security interests, equities,
proxies, pledges and encumbrances of any kind, except that Seller
shall retain title to the Shares and shall hold the Shares as provided
in Section 3.02(a)(ii) hereof.
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2.2. Amendment to Article III. Article III of the
Agreement is hereby amended to read in its entirety as follows:
ARTICLE III
CLOSING; OBLIGATIONS OF THE PARTIES
3.01. Closing Date. Subject to the provisions of Section
7.06 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
October ___, 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 (iv) shall occur:
(i) Buyer shall pay the consideration as specified in
Section 2.01.
(ii) Upon and after receipt of the consideration pursuant
to (i) above, and without any additional action by Seller or Buyer,
Seller shall for the time being remain the record holder of and retain
legal title to the Shares, and Buyer, as purchaser, shall become
beneficial owner of the Shares with all of the rights, including the
right to receive dividends, and obligations of any holder of class "C"
shares in the Company as set forth in the Articles of Association, as
amended, and as a shareholder under the Shareholders Agreement by and
between the Buyer and Seller of even date herewith (the "Shareholders
Agreement"). Seller shall execute in favor of Buyer or Buyer's
designee an irrevocable proxy in form and substance mutually agreeable
to both parties (the "Irrevocable Proxy"). Seller shall not
thereafter sell, transfer or convey the Shares, and Buyer shall not
thereafter sell, transfer or convey its beneficial interest in the
Shares, except in accordance with the terms of this Agreement and the
terms of the Shareholders Agreement described in Section 7.05 of this
Agreement and the Articles of Association, as amended.
(iii) Seller shall cause a meeting of the Directors of the
Company to be convened and shall procure that at the meeting:
(A) approval of the transactions contemplated by
this Agreement;
(B) at the request of Buyer, the appointment as
directors of the Corporation two (2) persons nominated by Buyer.
(b) In the event all required approvals described in this
Agreement are obtained on or before October ___, 1998, then the events
set out in clauses (i) through (iii) shall occur within thirty (30)
days of receipt of such approvals:
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(i) Seller shall deliver to Buyer, or to such person as
Buyer may direct, without additional consideration 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).
(ii) 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.
(iii) Seller shall cause a meeting of the Directors of the
Company to be convened and shall procure that at the meeting approval
of 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 canceled and a new certificate in the name of the Buyer be issued.
Seller shall also cause the Articles of Association to be amended to
incorporate the provisions of the Shareholders Agreement.
(c) If (A) all required approvals described in this
Agreement are not obtained on or before October , 1998, or (B)
----
otherwise at Buyer's option on or before October , 1997, the events
----
set out in clauses (i) through (iii) shall occur on or before October
, 1998 in the case of (A) above or October , 1997, in the case
--- ---
of (B) above:
(i) Seller or its designee, which designee may be Doctor
R. Crants, subject to Seller's rights under the Shareholders Agreement
and the receipt of government approvals described in Section 7.06 of
the Agreement, shall pay to Buyer by bank cheque, bank wire transfer
or such other method as may be mutually agreed upon by the parties a
sum equal to the Purchase Price plus interest thereon at a rate equal
to the six month LIBOR rate less any cash distributions received by
Buyer as a result of Buyer's beneficial ownership of the Shares.
(ii) Upon and after payment of such consideration, and
without any additional action by Seller or Buyer, Seller shall cease
to hold the Shares for the benefit of Buyer, and Seller or its
designee, as the case may be, shall thereafter hold the Shares for its
own account and the Irrevocable Proxy executed herewith shall
terminate.
(iii) The Shareholders Agreement described in Section 7.05
of this Agreement shall automatically terminate.
(iv) The persons nominated by Buyer to serve as directors
pursuant to subparagraph (a)(iii) of this section shall resign as
directors.
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(d) Each party by written notice to the other may waive
compliance by such other party with the requirements of this Section
3.02.
2.3. Amendment to Article 4.02. Article 4.02 of the Agreement is
hereby amended to read in its entirety as follows:
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, pursuant to Section 3.02, 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.
SECTION 3. Effectiveness of this Amendment. This Amendment
shall become effective upon the execution and delivery of this Amendment by the
Buyer and the Seller.
SECTION 4. Indemnification. Seller agrees to defend, indemnify
and hold harmless Buyer, its directors, officers, employees, affiliates and
agents, and shall reimburse Buyer for, from and against any Loss resulting from
this Amendment or any actions contemplated thereby.
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
and the Articles of Association, as amended.
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 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 parties under, the Agreement or prejudice any
right or remedy that either party may have or may have in the future under or
in connection with the Agreement or any
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instrument or agreement referred to therein. The parties hereto acknowledge
and agree that the representations and warranties of the parties contained in
the Agreement shall survive the execution and delivery of this Amendment and
the effectiveness hereof.
5.4. Governing Law. This Amendment 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 Amendment. The parties
further acknowledge that irrevocable damage would occur in the event that any
of the provisions of this Amendment 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
Amendment 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.
5.5. Counterparts; Telecopy Execution. This Amendment 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.
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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