Share Purchase Agreement - the Wackenhut Corp., Tuhnekcaw Inc., Group 4 Falck A/S and Wackenhut Corrections Corp.
SHARE PURCHASE AGREEMENT
dated as of
April 30, 2003
among
THE WACKENHUT CORPORATION,
TUHNEKCAW, INC.,
GROUP 4 FALCK A/S,
and
WACKENHUT CORRECTIONS CORPORATION
relating to the purchase and sale
of
COMMON STOCK
of
WACKENHUT CORRECTIONS CORPORATION
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TABLE OF CONTENTS
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ARTICLE 1
DEFINITIONS
SECTION 1.01. DEFINITIONS......................................................................1
ARTICLE 2
PURCHASE AND SALE
SECTION 2.01. PURCHASE AND SALE................................................................4
SECTION 2.02. CLOSING..........................................................................4
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF THE SELLERS
SECTION 3.01. CORPORATE EXISTENCE AND POWER....................................................5
SECTION 3.02. OWNERSHIP OF SHARES..............................................................5
SECTION 3.03. AUTHORIZATION; NO BREACH.........................................................5
SECTION 3.04. NO OTHER AGREEMENTS..............................................................6
SECTION 3.05. FINDER'S FEES....................................................................6
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
SECTION 4.01. CORPORATE EXISTENCE AND POWER....................................................6
SECTION 4.02. AUTHORIZATION; NO BREACH.........................................................6
SECTION 4.03. FINANCING........................................................................7
SECTION 4.04. NO OTHER AGREEMENTS..............................................................7
SECTION 4.05. FINDERS' FEES....................................................................7
SECTION 4.06. SOLVENCY.........................................................................7
ARTICLE 5
CERTAIN COVENANTS OF THE PARTIES
SECTION 5.01. REASONABLE BEST EFFORTS..........................................................7
SECTION 5.02. PUBLIC ANNOUNCEMENTS.............................................................8
SECTION 5.03. TERMINATION OF CERTAIN AGREEMENTS................................................8
ARTICLE 6
STANDSTILL
SECTION 6.01. ACQUISITION OF VOTING SECURITIES................................................10
SECTION 6.02. CERTAIN ACTIONS.................................................................10
SECTION 6.03. TERMINATION OF STANDSTILL PROVISIONS............................................11
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ARTICLE 7
CONDITIONS TO CLOSING
SECTION 7.01. CONDITIONS TO OBLIGATIONS OF EACH PARTY.........................................11
SECTION 7.02. CONDITIONS TO OBLIGATION OF THE PURCHASER.......................................12
SECTION 7.03. CONDITION TO OBLIGATION OF THE SELLERS..........................................13
ARTICLE 8
SURVIVAL; INDEMNIFICATION
SECTION 8.01. SURVIVAL........................................................................13
SECTION 8.02. INDEMNIFICATION.................................................................13
SECTION 8.03. NO SPECIAL DAMAGES..............................................................14
ARTICLE 9
TERMINATION
SECTION 9.01. TERMINATION.....................................................................14
SECTION 9.02. NOTICE OF TERMINATION...........................................................15
SECTION 9.03. EFFECT OF TERMINATION...........................................................15
ARTICLE 10
MISCELLANEOUS
SECTION 10.01. NOTICES........................................................................15
SECTION 10.02. AMENDMENTS AND WAIVERS.........................................................16
SECTION 10.03. EXPENSES; DOCUMENTARY TAXES....................................................17
SECTION 10.04. SPECIFIC PERFORMANCE...........................................................17
SECTION 10.05. SUCCESSORS AND ASSIGNS.........................................................17
SECTION 10.06. GOVERNING LAW..................................................................17
SECTION 10.07. JURISDICTION...................................................................17
SECTION 10.08. WAIVER OF JURY TRIAL...........................................................18
SECTION 10.09. COUNTERPARTS; THIRD PARTY BENEFICIARIES........................................18
SECTION 10.10. ENTIRE AGREEMENT...............................................................18
SECTION 10.11. CAPTIONS.......................................................................18
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SHARE PURCHASE AGREEMENT
AGREEMENT dated as of April 30, 2003 among The Wackenhut Corporation, a
Florida corporation ("Wackenhut"), Tuhnekcaw, Inc., a Delaware corporation and a
wholly-owned subsidiary of Wackenhut ("TUHNEKCAW"), Group 4 Falck A/S, a
corporation organized under the laws of Denmark ("GROUP 4 FALCK" and, together
with Wackenhut and Tuhnekcaw, the "SELLERS"), and Wackenhut Corrections
Corporation, a Florida corporation (the "PURCHASER"). Wackenhut, Tuhnekcaw,
Group 4 Falck and the Purchaser are herein referred to individually as a "PARTY"
and collectively as the "PARTIES."
W I T N E S S E T H :
WHEREAS, as of the date hereof, Tuhnekcaw owns of record, and Group 4
Falck and Wackenhut Beneficially Own, 12,000,000 shares of the Purchaser's
common stock, par value $.01 per share (the "COMMON STOCK");
WHEREAS, the Sellers desire to sell, and the Purchaser desires to
purchase, all of the shares of the Purchaser's Common Stock owned by the Sellers
on the terms and subject to the conditions set forth in this Agreement;
WHEREAS, the Board of Directors of the Purchaser (the "BOARD"), at a
meeting duly called and held upon the recommendation of an Independent Committee
of the Board (the "INDEPENDENT COMMITTEE"), has adopted a resolution authorizing
this Agreement and the transactions contemplated hereby; and
WHEREAS, the Independent Committee has received an opinion dated April
30, 2003, from Legg Mason Wood Walker, Incorporated, the financial advisor to
the Independent Committee, that the consideration being paid in connection with
the transactions contemplated by this Agreement is fair from a financial point
of view to all holders of the Purchaser's Common Stock other than the Sellers.
NOW, THEREFORE, the Parties hereto agree as follows:
ARTICLE 1
DEFINITIONS
Section 1.01. DEFINITIONS. The following terms, as used herein, shall
have the following meanings:
"ACQUISITION PROPOSAL" means any offer or proposal for, or any
indication of interest in, a merger or other business combination involving the
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Purchaser or any Subsidiary of the Purchaser or the acquisition of any equity
interest in, or a substantial portion of the assets of, the Purchaser or any
Subsidiary of the Purchaser.
"AFFILIATE" means, with respect to any Person, any other Person
directly or indirectly controlling, controlled by, or under common control with
such Person; PROVIDED THAT for the purposes hereof none of the Sellers shall be
deemed an Affiliate of the Purchaser. For the purpose of this definition, the
term "control" (including with correlative meanings, the terms "controlling",
"controlled by" and "under common control with"), as used with respect to any
Person, shall mean the possession, directly or indirectly, of the power to
direct or cause the direction of the management and policies of such Person,
whether through the ownership of voting securities, by contract or otherwise.
"APPLICABLE CLAIMS" has the meaning set forth in Section 5.03(c) of
this Agreement.
"BENEFICIAL OWNERSHIP" and "BENEFICIALLY OWN" shall be determined in
accordance with Rules 13d-3 and 13d-5 under the Exchange Act.
"BOARD" has the meaning set forth in the recitals to this Agreement.
"BUSINESS DAY" means any day except a Saturday, Sunday or other day on
which commercial banks in New York or Florida are authorized by law to close.
"CLOSING" has the meaning set forth in Section 2.02 of this Agreement.
"CLOSING DATE" means the date of the Closing.
"COMMON STOCK" has the meaning set forth in the recitals to this
Agreement.
"DAMAGES" has the meaning set forth in Section 8.02(a) of this
Agreement.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated thereunder.
"FINANCING LETTERS" means the letters dated April 30, 2003 attached
hereto as Exhibit A.
"GROUP 4 FALCK" has the meaning set forth in the preamble to this
Agreement.
"INDEMNITY AGREEMENT" means that certain Indemnity Agreement, dated as
of December 9, 2002, by and among Wackenhut, the Trustee of the Wackenhut
Corporation Group Insurance Program of Employees and Dependents, and the
Purchaser, relating to certain employee health care benefit claims.
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"INDEPENDENT COMMITTEE" has the meaning set forth in the recitals to
this Agreement.
"LETTER AGREEMENT" means that certain letter agreement dated as of
March 7, 2002, between the Purchaser and Group 4 Falck, relating to a potential
sale of the Purchaser's interest in its joint venture in the United Kingdom.
"LIEN" means, with respect to any property or asset, any mortgage,
lien, pledge, charge, security interest, encumbrance or other adverse claim of
any kind in respect of such property or asset.
"NON-SOLICITATION AGREEMENT" means the Covenant of Indemnification,
Release and Non-Solicitation Agreement, dated as of September 18, 2002, between
Wackenhut and the Purchaser, relating to certain matters between Wackenhut and
the Purchaser.
"PARTY" has the meaning set forth in the preamble to this Agreement.
"PERSON" means an individual, corporation, partnership, limited
liability company, association, trust or other entity or organization, including
a government or political subdivision or an agency or instrumentality thereof.
"PURCHASE PRICE" has the meaning set forth in Section 2.01 of this
Agreement.
"PURCHASER" has the meaning set forth in the preamble to this
Agreement.
"PURCHASER INDEMNIFIED PERSON" has the meaning set forth in Section
8.02(a) of this Agreement.
"RELATED AGREEMENTS" means contracts, agreements, arrangements or
understandings between or concerning the Sellers or their Affiliates, on the one
hand, and the Purchaser or its Affiliates, on the other hand.
"SAFEGUARDS AGREEMENT" means the Agreement dated March 7, 2002, among
the Purchaser, Wackenhut and Group 4 Falck, as amended from time to time,
relating to the conditions under which the Purchaser approved Group 4 Falck's
acquisition of Wackenhut.
"SELLER INDEMNIFIED PERSON" has the meaning set forth in Section
8.02(b) of this Agreement.
"SELLERS" has the meaning set forth in the preamble to this Agreement.
"SENIOR SELLER OFFICERS" means (i) the senior officers of Wackenhut and
(ii) Soren Lundsberg-Nielsen and Lars Norby Johansen.
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"SERVICES AGREEMENT" has the meaning set forth in Section 5.03(a) of
this Agreement.
"SHARES" means 12,000,000 shares of Common Stock owned, as of the date
hereof, by the Sellers.
"SOFTWARE AGREEMENT" has the meaning set forth in Section 5.03(a) of
this Agreement.
"SUBSIDIARY" means any Person of which securities or other ownership
interests having ordinary voting power to elect a majority of the board of
directors or other persons performing similar functions are at the time directly
or indirectly owned by any Party.
"TUHNEKCAW" has the meaning set forth in the preamble to this
Agreement.
"VOTING SECURITIES" means all securities of the Purchaser entitled, in
the ordinary course, to vote in the election of directors of the Purchaser.
"WACKENHUT" has the meaning set forth in the preamble to this
Agreement.
ARTICLE 2
PURCHASE AND SALE
Section 2.01. PURCHASE AND SALE. Upon the terms and subject to the
conditions of this Agreement, the Sellers agree to sell to the Purchaser, and
the Purchaser agrees to purchase from the Sellers, the Shares at the Closing.
The purchase price for the Shares (the "PURCHASE PRICE") is $132,000,000. The
Purchase Price shall be paid as provided in Section 2.02.
Section 2.02. CLOSING. The closing (the "CLOSING") of the purchase and
sale of the Shares hereunder shall take place at the offices of Akerman
Senterfitt, One Southeast Third Avenue, 28th Floor, Miami, Florida 33131, as
soon as possible, but in no event later than four Business Days, after
satisfaction (or waiver by the Party entitled to the benefit of such condition)
of each of the conditions set forth in Article 7. At the Closing:
(a) The Purchaser shall deliver to the Sellers the Purchase Price in
immediately available funds by wire transfer to an account designated by the
Sellers, by notice to the Purchaser, which notice shall be delivered not later
than two Business Days prior to the Closing Date.
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(b) The Sellers shall deliver to the Purchaser a certificate or
certificates for the Shares duly endorsed or accompanied by stock powers duly
endorsed in blank, with any required transfer stamps affixed thereto.
(c) Group 4 Falck will deliver to the Purchaser the resignations of all
directors of the Purchaser designated by Group 4 Falck from their positions as
directors.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF THE SELLERS
The Sellers, jointly and severally, represent and warrant to the
Purchaser that:
Section 3.01. CORPORATE EXISTENCE AND POWER. Each is a company duly
organized and validly existing under the laws of its jurisdiction of
organization, and has all corporate powers and all material governmental
licenses, authorizations, permits, consents and approvals required to carry out
the transactions contemplated by this Agreement.
SECTION 3.02. OWNERSHIP OF SHARES. The Sellers or their wholly-owned
Subsidiaries are the record and beneficial owners of the Shares, and will
transfer and deliver to the Purchaser at the Closing valid title to the Shares
free and clear of any Lien or any other limitation or restriction. The Sellers
Beneficially Own 12,000,000 shares of Common Stock, in the aggregate, and none
of the Sellers nor any of their Affiliates Beneficially Own any securities of
the Purchaser other than such 12,000,000 shares of Common Stock.
Section 3.03. AUTHORIZATION; NO BREACH. The execution, delivery and
performance of this Agreement by each of them and the consummation of the
transactions contemplated hereby are within their powers and have been duly
authorized by all necessary action on their part, including without limitation
any requisite approval of their shareholders. This Agreement has been duly and
validly executed by them and constitutes a legal, valid and binding obligation
of them, enforceable against them in accordance with this Agreement's terms. The
execution, delivery and performance by them of this Agreement and the
consummation of the transactions contemplated hereby, do not and will not, (i)
conflict with, violate or result in a default under or breach of, (ii) result in
the creation of any Lien, right or obligation of Purchaser, or require any
payment by Purchaser, relating to the Shares pursuant to or (iii) require any
authorization, permit, filing, consent, approval, exemption or other action by
or notice or declaration to, or filing with, any court or administrative or
governmental body or agency of any jurisdiction pursuant to, (x) the certificate
of incorporation, bylaws or other organizational documents of either of them,
(y) any law, statute, rule, regulation, order, judgment or decree to which
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either of them, any of their Subsidiaries or any of their directors or executive
officers is subject, or (z) any material agreement or material instrument to
which either of them, any of their Subsidiaries or any of their directors or
executive officers is a party or subject; except for any filings that may be
required under applicable securities laws or stock exchange rules and
regulations.
SECTION 3.04. NO OTHER AGREEMENTS. To the knowledge of the Senior
Seller Officers, other than the Safeguards Agreement, the Letter Agreement and
the other agreements referred to in Section 5.03 hereof, there are no Related
Agreements.
Section 3.05. FINDER'S FEES. Except for Lehman Brothers, whose fees
will be paid by the Sellers, there is no investment banker, broker, finder or
other intermediary which has been retained by or is authorized to act on behalf
of any of them or any of their Affiliates which might be entitled to any fee or
commission from them or any of their Affiliates as a result of or upon
consummation of the transactions contemplated by this Agreement.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
The Purchaser represents and warrants to the Sellers as follows:
Section 4.01. CORPORATE EXISTENCE AND POWER. The Purchaser is a
corporation duly organized, validly existing and in good standing under the laws
of Florida, and has all corporate powers and all material governmental licenses,
authorizations, permits, consents and approvals required to carry out the
transactions contemplated by this Agreement.
Section 4.02. AUTHORIZATION; NO BREACH. The execution, delivery and
performance by the Purchaser of this Agreement and the consummation of the
transactions contemplated hereby are within the Purchaser's powers and have been
duly authorized by all necessary action on the part of the Purchaser. This
Agreement has been duly and validly executed by the Purchaser and constitutes a
legal, valid and binding obligation of the Purchaser, enforceable against it in
accordance with this Agreement's terms. Subject to the receipt of funds
specified in the Financing Letters, the execution, delivery and performance by
the Purchaser of this Agreement and the consummation of the transactions
contemplated hereby and thereby, do not and will not, (i) conflict with, violate
or result in a default under or breach of or (ii) require any authorization,
permit, filing, consent, approval, exemption or other action by or notice or
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declaration to, or filing with, any court or administrative or governmental body
or agency of any jurisdiction pursuant to, (x) the Purchaser's Amended and
Restated Certificate of Incorporation or By-laws or (y) any law, statute, rule,
regulation, order, judgment or decree to which the Purchaser, any of its
Subsidiaries or any of its directors or executive officers is subject; except
for any filings that may be required under applicable securities laws or stock
exchange rules and regulations. The Purchaser has a good faith belief that,
prior to July 31, 2003, it shall have obtained any and all consents (including,
without limitation, those consents required to be obtained pursuant to Section
7.02(c) hereto) necessary under any material agreement or material instrument to
which the Purchaser, any of its Subsidiaries or any of its directors or
executive officers is a party or subject, for the performance by the Purchaser
of this Agreement and the consummation of the transactions contemplated hereby.
SECTION 4.03. FINANCING. The Purchaser has delivered to Group 4 Falck a
correct and complete copy of the Financing Letters. Other than the Financing
Letters and an associated fee letter (which fee letter contains no term contrary
to any of the terms of the Financing Letters), there are no contracts,
agreements, arrangements or understandings, in each case whether oral or
written, between the Purchaser and the counterparties to the Financing Letters
or any of their Affiliates that relate to this Agreement or the transactions
contemplated hereby. Assuming receipt of the funds specified in the Financing
Letters on the terms thereof, the Purchaser acknowledges that it will have, at
or prior to the Closing, available lines of credit or other sources of funds to
enable it to make payment of the Purchase Price and all other fees and expenses
required to be paid by it in accordance with this Agreement.
SECTION 4.04. NO OTHER AGREEMENTS. To the knowledge of the senior
officers of the Purchaser, other than the Safeguards Agreement, the Letter
Agreement and the other agreements referred to in Section 5.03 hereof, there are
no Related Agreements.
Section 4.05. FINDERS' FEES. Except for Legg Mason Wood Walker
Incorporated, whose fees will be paid by the Purchaser, and any fees payable by
the Purchaser to parties specified in the Financing Letters, there is no
investment banker, broker, finder or other intermediary which has been retained
by or is authorized to act on behalf of the Purchaser or any of its Affiliates
which might be entitled to any fee or commission from the Purchaser or any of
its Affiliates as a result of or upon consummation of the transactions
contemplated by this Agreement.
SECTION 4.06. SOLVENCY. The Purchaser believes that it currently meets
and, after giving effect to the transactions contemplated by this Agreement
(including payment of fees related thereto), that it will meet, the solvency
test set forth in Section 607.06401(3) of the Florida Business Corporation Act.
ARTICLE 5
CERTAIN COVENANTS OF THE PARTIES
SECTION 5.01. REASONABLE BEST EFFORTS. Subject to the terms and
conditions of this Agreement, each of the Parties agrees that it will use its
reasonable best efforts to take, or cause to be taken, all actions and to do, or
cause to be done, all things necessary or desirable under applicable laws and
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regulations to consummate the transactions contemplated by this Agreement;
PROVIDED THAT in no event shall the Purchaser be required to pay costs and
expenses in connection with arranging any financing in connection with the
transactions contemplated hereby (or any alternative financing) in excess of the
costs and expenses contemplated by the Financing Letters or agree to financing
terms that differ in a manner adverse to the Purchaser from those contemplated
by the Financing Letters.
SECTION 5.02. PUBLIC ANNOUNCEMENTS. The Parties agree to consult with
each other before issuing any press release or making any public statement with
respect to this Agreement or the transactions contemplated hereby and will not
issue any such press release or make any such public statement prior to such
consultation; PROVIDED, HOWEVER, that, in the case of any press release or
public statement that may be required to be issued under any applicable law or
listing agreement with any securities exchange, a Party shall be deemed to have
satisfied its obligations under this Section 5.02 by using its reasonable best
efforts (after giving due regard to all the relevant circumstances) to consult
with the other Parties hereto prior to issuing any such press release or public
statement.
SECTION 5.03. TERMINATION OF CERTAIN AGREEMENTS. The Sellers and the
Purchaser agree as follows:
(i) The Services Agreement between Wackenhut and Purchaser
dated October 28, 2002 (the "SERVICES AGREEMENT") and the provision of
Information Systems related services provided by Wackenhut to Purchaser
thereunder, shall terminate as of December 31, 2003, and thereafter no
payments under such Services Agreement in respect of any period after
December 31, 2003 shall be due or payable from Purchaser to Wackenhut;
PROVIDED THAT, prior to and following the termination of the Services
Agreement, Wackenhut shall reasonably cooperate with Purchaser to
ensure a smooth transition in the transfer of Information Systems
related services from Wackenhut to Purchaser. Notwithstanding anything
in this Section 5.03(a)(i) to the contrary, it is understood and agreed
that the Services Agreement shall remain in full force and effect if
the Closing hereunder is not consummated in accordance with the terms
hereof.
(ii) All agreements relating to the sublease of the property
located at 4200 Wackenhut Drive, Palm Beach Gardens, Florida 33410,
from Wackenhut, as sublessor, to the Purchaser, as sublessee, shall be
terminated effective as of the Closing Date, and no payments under any
agreements relating to such sublease in respect of any period after the
Closing Date shall be due or payable from the Purchaser to Wackenhut;
it being understood and agreed that such agreements shall remain in
full force and effect if the Closing hereunder is not consummated in
accordance with the terms hereof.
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(b) The Parties agree that the Safeguards Agreement and the Letter
Agreement shall each terminate effective as of the Closing Date and shall be of
no further force or effect, it being understood and agreed that such agreements
shall remain in full force and effect if the Closing hereunder is not
consummated in accordance with the terms thereof.
(c) Wackenhut will continue to handle all general liability, automobile
and workers' compensation claims on behalf of the Purchaser and its Affiliates
with occurrence dates prior to October 2, 2002. The Purchaser agrees that, for
all claims with dates of loss prior to October 2, 2002 for which the Purchaser
was or is an insured party under certain insurance policies reinsured by Titania
Insurance Company of America (collectively, the "APPLICABLE CLAIMS"), it shall,
consistent with its duties and obligations as an insured party, cooperate fully
with Wackenhut and its Affiliates and any third party administrators,
investigators, adjusters and attorneys in connection with the investigation,
defense and resolution of any Applicable Claims.
(d) The Parties agree that the Indemnity Agreement shall remain in
effect in accordance with its terms notwithstanding this Agreement and the
consummation of the Closing hereunder.
(e) Except for Section 3 of the Non-Solicitation Agreement which shall
terminate and be of no further force or effect as of the first anniversary of
the Closing Date, the Parties agree that the Non-Solicitation Agreement shall
remain in effect in accordance with its terms notwithstanding this Agreement and
the consummation of the Closing hereunder, it being understood and agreed that
the Non-Solicitation Agreement shall remain in full force and effect if the
Closing hereunder is not consummated in accordance with the terms hereof. The
Purchaser further agrees that it shall abide by any and all otherwise applicable
non-compete agreements between Wackenhut and employees of Wackenhut and its
Affiliates.
(f) The Parties agree that the Purchaser's software licensing rights
under the terms of that certain Master Software License Agreement, dated April
2, 1998, between Wackenhut and Infinium Software, Inc., as amended (the
"SOFTWARE AGREEMENT"), shall remain in effect in accordance with the terms of
the Software Agreement notwithstanding this Agreement and the consummation of
the Closing hereunder, to the extent that the Purchaser complies with all of its
obligations under the Software Agreement. Wackenhut covenants and agrees not to
take any action adverse or detrimental to Purchaser's licensing rights under the
Software Agreement following the Closing.
(g) Notwithstanding anything to the contrary in this Agreement, except
as explicitly provided elsewhere herein, all Related Agreements shall terminate
in connection with the consummation of the Closing hereunder in accordance with
its terms, and all obligations under any Related Agreement pursuant to which one
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party thereto is obligated to guarantee or otherwise ensure the performance of
any obligations or undertakings of the other party thereto to any other Person
shall terminate as to each other concurrently therewith.
SECTION 5.04 . USE OF THE NAME "WACKENHUT". (a) The Parties agree and
acknowledge that the use of the name, trademark or service mark "Wackenhut" in
all of its forms is, and shall remain, the sole property of Sellers and their
Affiliates following the consummation of the Closing hereunder and, except as
expressly provided in Section 5.04(b), none of the Purchaser or any of its
Affiliates shall retain any rights (including without limitation any rights of
use) therein.
(b) Notwithstanding Section 5.04(a), the Purchaser and its Affiliates
shall be permitted to use the name, trademark or service mark "Wackenhut" to the
same extent they use them as of the date hereof for a period not to exceed one
year following the Closing hereunder; PROVIDED THAT during such period Purchaser
and its Affiliates shall use their respective reasonable best efforts to
eliminate the use of the name "Wackenhut" from their operations as rapidly as
possible. Notwithstanding the foregoing, with respect to its corporate name, (i)
the Purchaser shall recommend in its 2004 proxy statement that its shareholders
vote to amend the Purchaser's articles of incorporation to eliminate "Wackenhut"
from the Purchaser's name at the Purchaser's 2004 annual meeting of its
shareholders and (ii) if the Purchaser continues to use the name "WCC," it shall
prior to the first anniversary of the Closing Date develop an alternative full
name for the initial "W" in the name "WCC."
ARTICLE 6
STANDSTILL
SECTION 6.01. ACQUISITION OF VOTING SECURITIES. Effective on and after
the date hereof, the Sellers will not, and will not permit any of their
Subsidiaries to, purchase or otherwise acquire, or agree or offer to purchase or
otherwise acquire, Beneficial Ownership of any Voting Securities.
SECTION 6.02. CERTAIN ACTIONS. Effective on and after the Closing Date,
the Sellers will not, and will not permit any of their Affiliates to:
(a) make, or take any action to solicit, initiate or encourage, an
Acquisition Proposal;
(b) seek to influence or control, in any manner whatsoever, the
management or policies of the Purchaser;
(c) make, or in any way participate in, any "solicitation" of "proxies"
to vote (as such terms are defined in Rule 14a-1 under the Exchange Act),
solicit any consent or communicate with or seek to advise or influence any
Person with respect to the voting of any Voting Securities or nominate, or
solicit any votes or proxies for the nomination of, any directors with respect
to the Purchaser;
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(d) form, join or encourage the formation of any "group" (within the
meaning of Section 13(d)(3) of the Exchange Act) with respect to any Voting
Securities;
(e) call or seek to have called any meeting of the shareholders of the
Purchaser;
(f) solicit, seek to effect, negotiate with or voluntarily provide any
information to any other Person with respect to, or make any statement or
proposal, whether written or oral, to the Board or otherwise make any public
announcement (except as required by law or the requirements of any relevant
stock exchange) whatsoever with respect to, any form of acquisition or business
combination transaction involving the Purchaser or any significant portion of
its assets, including, without limitation, a merger, tender offer, exchange
offer or liquidation, or any restructuring, recapitalization or similar
transaction with respect to the Purchaser;
(g) take any action that raises a significant risk that the Purchaser
might be required to make a public announcement regarding a business
combination, merger or other type of transaction described above;
(h) assist, advise or encourage any other Person in doing any of the
foregoing; or
(i) request to amend, waive or not to enforce any provision of this
paragraph, unless specifically invited by the Board to do so.
SECTION 6.03. TERMINATION OF STANDSTILL PROVISIONS. The provisions of
this Article 6 shall terminate upon the earliest to occur of any of the
following:
(a) the written agreement of the Purchaser and the Sellers to terminate
the provisions of this Article 6;
(b) the first anniversary of the Closing Date; or
(c) the termination of this Agreement in accordance with the provisions
of Article 9 hereof.
ARTICLE 7
CONDITIONS TO CLOSING
Section 7.01. CONDITIONS TO OBLIGATIONS OF EACH PARTY. The obligations
of each Party to consummate the Closing are subject to the satisfaction of the
following conditions:
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(a) No provision of any applicable law or regulation and no judgment,
injunction, order or decree shall prohibit the consummation of the Closing.
(b) No material proceeding challenging this Agreement or any of the
transactions contemplated hereby or seeking to prohibit, alter, prevent or
materially delay the Closing shall have been instituted by any Person before any
court, arbitrator or governmental body, agency or official and be pending, which
in the reasonable judgment of any Party, may reasonably be expected to cause
such Party or any of its Affiliates, to incur or suffer any Damages; PROVIDED
THAT such Party has received a written opinion of its counsel to such effect.
Section 7.02. CONDITIONS TO OBLIGATION OF THE PURCHASER. The obligation
of the Purchaser to consummate the Closing is subject to the satisfaction of the
following further conditions:
(a) (i) The Sellers shall have performed in all material
respects all of their obligations hereunder required to be performed by
them on or prior to the Closing Date,
(ii) the representations and warranties of the Sellers
contained in this Agreement and in any certificate or other writing
delivered by the Sellers pursuant hereto shall be true in all respects
at and as of the Closing Date as if made at and as of such time, and
(iii) the Purchaser shall have received a certificate from the
Sellers signed by the chief executive officer of each of the Sellers to
the foregoing effect.
(b) The Purchaser shall have received all funds contemplated in the
Financing Letters on the terms set forth therein.
(c) The Purchaser shall have obtained any consents required pursuant to
the terms of any material agreements or instruments with its lenders or its
customers and under any agreements specified by the counterparties to the
Financing Letters or any of their Affiliates, including, without limitation,
those agreements set forth in the list provided by the Purchaser to the Sellers
on April 30, 2003, in each case in form and substance reasonably acceptable to
the Purchaser.
(d) The Purchaser shall be able to meet the solvency test set forth in
Section 607.06401(3) of the Florida Business Corporation Act as of the Closing
Date after giving effect to the consummation of the transactions contemplated by
this Agreement (including payment of fees related thereto) and the Purchaser
shall have received a certificate or opinion to that effect from an independent
firm of nationally recognized standing customarily engaged in rendering such
certificates or opinions.
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Section 7.03. CONDITION TO OBLIGATION OF THE SELLERS. The obligation of
the Sellers to consummate the Closing is subject to the satisfaction of the
following further conditions:
(a) The Purchaser shall have performed in all material respects all of
its obligations hereunder required to be performed by it on or prior to the
Closing Date.
(b) The representations and warranties of the Purchaser contained in
this Agreement and in any certificate or other writing delivered by the
Purchaser pursuant hereto shall be true in all respects at and as of the Closing
Date as if made at and as of such time.
(c) The Sellers shall have received a certificate from the Purchaser
signed by its chief executive officer to the foregoing effect.
ARTICLE 8
SURVIVAL; INDEMNIFICATION
Section 8.01. SURVIVAL. The representations and warranties of the
Parties hereto contained in this Agreement or in any certificate or other
writing delivered pursuant hereto or in connection herewith, shall survive the
Closing until the second anniversary of the Closing Date, except that the
representations and warranties contained in Sections 3.01, 3.03, 4.01 and 4.02
shall survive indefinitely. Notwithstanding the preceding sentence, any
representation or warranty in respect of which indemnity may be sought under
this Agreement shall survive the time at which it would otherwise terminate
pursuant to the preceding sentence, if notice of the inaccuracy or breach
thereof giving rise to such right of indemnity shall have been given in
reasonable detail to the Party against whom such indemnity may be sought prior
to the time of such termination. The covenants and agreements of the Parties
contained in this Agreement shall survive the Closing in accordance with their
terms or, if no term is specified, indefinitely.
Section 8.02. INDEMNIFICATION. The Sellers, jointly and severally,
hereby indemnify the Purchaser, any Affiliate of the Purchaser and any of their
respective directors, officers, agents and employees (a "PURCHASER INDEMNIFIED
PERSON") against and agrees to hold each of them harmless from any and all
losses, claims, damages, costs, liabilities or expenses (or actions, suits or
proceedings in respect thereof), including, without limitation, reasonable
expenses of investigation and reasonable attorneys' fees and expenses in
connection with any action, suit or proceeding ("DAMAGES") incurred or suffered
by any Purchaser Indemnified Person, in each case arising out of any
misrepresentation or breach of warranty, covenant or agreement made or to be
performed by any of the Sellers pursuant to this Agreement.
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(b) The Purchaser hereby indemnifies the Sellers, any Affiliate of the
Sellers and any of their respective directors, officers, agents and employees (a
"SELLER INDEMNIFIED PERSON") against and agrees to hold each of them harmless
from any and all Damages incurred or suffered by any Seller Indemnified Person,
in each case arising out of any misrepresentation or breach of warranty,
covenant or agreement made or to be performed by the Purchaser pursuant to this
Agreement.
(c) Each Party agrees to promptly reimburse the other Parties hereto
against any Damages arising out of any guarantee or other obligation or
undertaking to third parties entered into prior to the date hereof (if any) if
(x) the reimbursing Party was the primary obligor in respect of such guarantee,
obligation or undertaking and (y) the claiming Party had guarantor liability or
other secondary liability solely as a result of an agreement with respect to the
obligations of the reimbursing Party, which agreement was entered into prior to
the date hereof.
SECTION 8.03. NO SPECIAL DAMAGES. Notwithstanding anything to the
contrary herein, no Party shall be liable to any other Party for any indirect,
special, punitive, exemplary or consequential loss or damage (including any loss
of revenue or profit) arising out of this Agreement. Both parties shall use
commercially reasonable efforts to mitigate their damages.
ARTICLE 9
TERMINATION
SECTION 9.01. TERMINATION. Anything contained herein to the contrary
notwithstanding, this Agreement may be terminated and the transactions
contemplated hereby abandoned at any time prior to the Closing:
(a) by mutual written consent of the Parties;
(b) by the Purchaser if any of the conditions set forth in Section 7.01
or 7.02 shall have become incapable of fulfillment, and shall not have been
waived by the Purchaser;
(c) by the Sellers if any of the conditions set forth in Section 7.01
or 7.03 shall have become incapable of fulfillment, and shall not have been
waived by the Sellers;
(d) by any of the Parties if the Closing does not occur on or prior to
July 31, 2003;
PROVIDED THAT the Party seeking termination pursuant to clause (b), (c), or (d)
is not in breach of any of its representations, warranties, covenants or
agreements contained in this Agreement.
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SECTION 9.02. NOTICE OF TERMINATION. In the event of termination by any
of the Parties pursuant to this Article 9, written notice thereof shall
forthwith be given to the other Party or Parties and the transactions
contemplated by this Agreement shall be terminated, without further action by
any Party.
SECTION 9.03. EFFECT OF TERMINATION. If this Agreement is terminated
and the transactions contemplated hereby are abandoned as described in this
Article 9, this Agreement shall become void and of no further force and effect.
Nothing in this Article 9 shall be deemed to release any Party from any
liability for any breach by such Party of the terms and provisions of this
Agreement or to impair the right of any Party to compel specific performance by
another Party of its obligations under this Agreement.
ARTICLE 10
MISCELLANEOUS
SECTION 10.01. NOTICES. All notices, requests and other communications
to any Party hereunder shall be in writing (including facsimile transmission)
and shall be given,
if to the Purchaser, to:
Wackenhut Corrections Corporation
One Park Place
621 NW 53rd Street, Suite 700
Boca Raton, Florida 33487
Attention: General Counsel
Fax: 561-999-7744
and
Independent Committee of Wackenhut Corrections Corporation
c/o Wackenhut Corrections Corporation
One Park Place
621 NW 53rd Street, Suite 700
Boca Raton, Florida 33487
Attention: Chairman
Fax: 561-999-7744
with copies to:
Akerman Senterfitt
One Southeast Third Avenue
28th Floor
Miami, FL 33131-1714
Attention: Stephen Roddenberry
Fax: 305-374-5095
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and
Davis Polk & Wardwell
450 Lexington Avenue
New York, NY 10017
Attention: Leonard Kreynin
Fax: 212-450-3800
if to the Sellers, to:
Group 4 Falck A/S
Polititorvet
DK-1780 Copenhagen V
Denmark
Attention: Group General Counsel
Fax: + 45 33 91 00 26
with copies to:
The Wackenhut Corporation
4200 Wackenhut Drive, #100
Palm Beach Gardens, Florida 33410
Attention: General Counsel
Fax: 561-691-6680
and
Simpson Thacher & Bartlett
3330 Hillview Avenue
Palo Alto, CA 94304
Attention: Kevin Kennedy
Fax: 650-251-5002
All such notices, requests and other communications shall be deemed
received on the date of receipt by the recipient thereof if received prior to 5
p.m. in the place of receipt and such day is a Business Day in the place of
receipt. Otherwise, any such notice, request or communication shall be deemed
not to have been received until the next succeeding Business Day in the place of
receipt.
SECTION 10.02. AMENDMENTS AND WAIVERS. (1) Any provision of this
Agreement may be amended or waived if, but only if, such amendment or waiver is
in writing and is signed, in the case of an amendment, by each Party to this
Agreement, or in the case of a waiver, by the Party against whom the waiver is
to be effective.
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(b) No failure or delay by any Party in exercising any right, power or
privilege hereunder shall operate as a waiver thereof nor shall any single or
partial exercise thereof preclude any other or further exercise thereof or the
exercise of any other right, power or privilege. The rights and remedies herein
provided shall be cumulative and not exclusive of any rights or remedies
provided by law.
SECTION 10.03. EXPENSES; DOCUMENTARY TAXES. Except as otherwise
contemplated by this Agreement, each Party will bear its own costs and expenses
(including legal fees and expenses) incurred in connection with this Agreement
and the transactions contemplated hereby. Sellers shall pay any and all stamp,
transfer and other similar taxes payable or determined to be payable in
connection with the execution and delivery of this Agreement or the transfer of
the Shares.
SECTION 10.04. SPECIFIC PERFORMANCE. The Parties agree that any breach
by one of them of any provision of this Agreement would irreparably injure the
other Parties and that money damages would be an inadequate remedy therefor.
Accordingly, each of the Parties agrees that the other Parties shall be entitled
to one or more injunctions enjoining any such breach and requiring specific
performance of the provisions of this Agreement and consents to the entry
thereof, in addition to any other remedy to which such other Parties may be
entitled at law or in equity.
SECTION 10.05. SUCCESSORS AND ASSIGNS. The provisions of this Agreement
shall be binding upon and inure to the benefit of the Parties and their
respective successors and assigns, whether so expressed or not; PROVIDED that no
Party may assign, delegate or otherwise transfer any of its rights or
obligations under this Agreement without the consent of each other Party.
SECTION 10.06. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the law of the State of Florida.
SECTION 10.07. JURISDICTION. Each of the Parties agree that any suit,
action or proceeding seeking to enforce any provision of, or based on any matter
arising out of or in connection with, this Agreement or the transactions
contemplated hereby shall be brought in the United States District Court for the
Southern District of Florida, West Palm Beach Division, or in any Florida State
Circuit Court sitting in Palm Beach County, Florida, and that any cause of
action arising out of this Agreement shall be deemed to have arisen from a
transaction of business in the State of Florida, and each of the Parties hereby
irrevocably consents to the jurisdiction of such courts (and of the appropriate
appellate courts therefrom) in any such suit, action or proceeding and
irrevocably waives, to the fullest extent permitted by law, any objection that
it may now or hereafter have to the laying of the venue of any such suit, action
or proceeding in any such court or that any such suit, action or proceeding
which is brought in any such court has been brought in an inconvenient forum.
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Process in any such suit, action or proceeding may be served on any party
anywhere in the world, whether within or without the jurisdiction of any such
court. Without limiting the foregoing, each Party agrees that service of process
on such Party as provided in Section 10.01 shall be deemed effective service of
process on such Party.
SECTION 10.08. WAIVER OF JURY TRIAL. EACH OF THE PARTIES HEREBY
IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING
ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY.
SECTION 10.09. COUNTERPARTS; THIRD PARTY BENEFICIARIES. This Agreement
may be signed in any number of counterparts, each of which shall be an original,
with the same effect as if the signatures thereto and hereto were upon the same
instrument. This Agreement shall become effective when each Party shall have
received a counterpart hereof signed by the other Party. No provision of this
Agreement is intended to confer upon any Person other than the parties hereto
any rights or remedies hereunder.
SECTION 10.10. ENTIRE AGREEMENT. This Agreement (including Exhibit A)
constitutes the entire agreement between the Parties with respect to the subject
matter of this Agreement and supersedes all prior agreements and understandings,
both oral and written, between the Parties with respect to the subject matter of
this Agreement.
SECTION 10.11. CAPTIONS. The captions herein are included for
convenience of reference only and shall be ignored in the construction or
interpretation hereof.
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IN WITNESS WHEREOF, the Parties have caused this Agreement to be duly
executed by their respective authorized officers as of the day and year first
above written.
WACKENHUT CORRECTIONS CORPORATION
By: /s/ George C. Zoley
------------------------------------
Name: George C. Zoley
Title: Chairman and Chief Executive Officer
TUHNEKCAW, INC.
By: /s/ Lars Norby Johansen
------------------------------------
Name: Lars Norby Johansen
Title:
THE WACKENHUT CORPORATION
By: /s/ Lars Norby Johansen
------------------------------------
Name: Lars Norby Johansen
Title:
GROUP 4 FALCK A/S
By: /s/ Lars Norby Johansen
------------------------------------
Name: Lars Norby Johansen
Title:
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EXHIBIT A
FINANCING LETTERS
[OMITTED]