1
EXHIBIT 10.3
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (the "Agreement"), dated as of June 30,
2000, is made by and among Prison Realty Trust, Inc., a Maryland corporation
formerly known as Prison Realty Corporation ("Prison Realty"); and Baron Asset
Fund, a Massachusetts business trust ("Baron Asset Fund"), and all series
thereof, on behalf of itself and one or more mutual funds managed by it, or its
affiliates (collectively, "Baron"). (Baron is sometimes referred to herein as
the "Seller").
WITNESSETH:
WHEREAS, Baron owns 1,749,532 shares of the common stock of Corrections
Corporation of America, a Tennessee corporation ("CCA"), $0.01 par value per
share (the "CCA Common Stock"), representing approximately 16.0% of CCA's issued
and outstanding capital stock on a fully-diluted basis (the "Shares");
WHEREAS, pursuant to the terms of CCA's charter, CCA shall not be
merged with or sold to another entity without the prior consent of the holders
of 80.0% of CCA's capital stock;
WHEREAS, pursuant to the terms of that certain letter agreement dated
December 30, 1998 (the "Letter Agreement"), CCA agreed that it would not merge
with or be sold to another entity without the prior consent of Baron (the "Baron
Veto Right");
WHEREAS, in connection with the restructuring of Prison Realty (the
"Restructuring"), Prison Realty, CCA Acquisition Sub, Inc., a Tennessee
corporation and wholly-owned subsidiary of Prison Realty ("CCA Acquisition
Sub"), and CCA have entered into, or will contemporaneously herewith enter into,
an Agreement and Plan of Merger (the "Merger Agreement"), to effect the merger
of CCA with and into CCA Acquisition Sub (the "Merger");
WHEREAS, immediately prior to the consummation of the Merger, Prison
Realty desires to purchase, and Baron desires to sell, all of the Shares for the
non-cash consideration comprised of securities of Prison Realty as set forth
herein;
WHEREAS, in consideration for obtaining the consent of Baron pursuant
to the Baron Veto Right, Prison Realty also desires to issue Baron certain
securities of Prison Realty as set forth herein;
WHEREAS, Prison Realty and Baron are entering into this Agreement to
provide for the purchase and sale of the Shares and to establish various rights
and obligations in connection therewith and in connection with such other
transactions contemplated hereby; and
WHEREAS, the Restructuring, including the Merger and the transactions
contemplated by this Agreement, are intended to serve as an alternative to
agreements previously entered into by the parties hereto with respect to a
restructuring of Prison Realty, including, but not limited to, (i) the Agreement
and Plan of Merger dated December 26, 1999, by and among, Prison Realty and
certain of its wholly-owned subsidiaries, including CCA Acquisition Sub, and
CCA, Prison Management
1
2
Services, Inc. ("PMSI"), and Juvenile and Jail Facility Management Services,
Inc. ("JJFMSI") (Prison Realty, CCA, PMSI and JJFMSI known collectively, as the
"Companies"), (ii) those certain Securities Purchase Agreements dated December
26, 1999 and April 5, 2000 (as executed on April 16, 2000), respectively, by and
among the Companies, on the one hand, and affiliates of the Fortress Investment
Group LLC and The Blackstone Group, LLC and Pacific Life Insurance Company, on
the other hand, respectively, and (iii) that certain Stock Purchase Agreement
dated December 21, 1999 by and among Prison Realty, CCA, Baron and Sodexho
Alliance, S.A., a French societe anonyme ("Sodexho").
NOW, THEREFORE, in consideration of the foregoing and of the
representations, warranties, conditions, covenants and agreements contained
herein, and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto hereby agree as follows:
1. PURCHASE AND SALE OF THE SHARES AND CONSIDERATION FOR BARON CONSENT.
1.1 PURCHASE AND SALE OF SHARES. Subject to the terms and
conditions of this Agreement and on the basis of the representations and
warranties set forth herein, Baron agrees to sell to Prison Realty, and Prison
Realty agrees to purchase from Baron, all of the Shares, totaling 1,749,532
shares of CCA Common Stock, for the purchase prices and consideration set forth
in Section 1.2 hereof.
1.2 PURCHASE PRICE AND CONSIDERATION FOR THE SHARES. Subject to
the terms and conditions set forth in this Agreement, in consideration for the
sale and delivery of the Shares by Baron, Prison Realty will issue and deliver
to Baron at the Closing, as defined herein, shares of its voting common stock,
$0.01 par value per share ("Prison Realty Common Stock") with an aggregate value
of eight million dollars U.S. ($8,000,000), as calculated below (the Prison
Realty Common Stock to be issued and delivered to Baron as consideration for the
Shares known as the "Purchase Price").
The number of shares of Prison Realty Common Stock to be issued and
delivered to Baron as the Purchase Price shall be determined by dividing
$8,000,000 by the lesser of (i) $3.4375, the closing price of shares of Prison
Realty Common Stock on the New York Stock Exchange (the "NYSE") on Friday, June
23, 2000, (ii) the average closing price of Prison Realty Common Stock on the
NYSE over the five trading days ending two trading days prior to the closing of
the Merger, (iii) the conversion price of any of Prison Realty's secured or
unsecured indebtedness existing prior to the Merger, and (iv) the exercise price
of any equity securities issued by Prison Realty prior to the Merger in
satisfaction of its existing contractual obligations.
1.3 CONSIDERATION FOR BARON CONSENT.
(a) Subject to the terms and conditions set forth in this
Agreement, and except as otherwise provided in Section 1.3(b) of this Agreement,
in consideration for Baron's consent to the Merger pursuant to the Baron Veto
Right, Prison Realty will issue and deliver to Baron at the
2
3
Closing, as defined herein, (i) warrants to purchase shares of Prison Realty
Common Stock having an aggregate value of two million dollars U.S. ($2,000,000),
as calculated below, with an exercise price equal to $0.01 per share and
pursuant to the form of warrant agreement attached hereto as Exhibit A (the
"Baron Series A Warrants"), and (ii) warrants to purchase shares of Prison
Realty Common Stock having an aggregate value of one million dollars U.S.
($1,000,000), as calculated below, at an exercise price equal to the lesser of
(a) $3.4375, the closing price of shares of Prison Realty Common Stock on the
NYSE on Friday, June 23, 2000, (b) the average closing price of Prison Realty
Common Stock on the NYSE over the five trading days ending two trading days
prior to the closing of the Merger, (c) the conversion price of any of Prison
Realty's secured or unsecured indebtedness existing prior to the Merger, and (d)
the exercise price of any equity securities issued by Prison Realty prior to the
Merger in satisfaction of its existing contractual obligations, and pursuant to
the form of warrant agreement attached hereto as Exhibit B (the "Baron Series B
Warrants," and together with the Baron Series A Warrants, the "Baron Warrants"
or the "Warrants"). As set forth in Exhibits A and B, respectively, the Warrants
shall be exercisable for a period of five years commencing on the date of
issuance of the Warrants hereunder.
The number of shares of Prison Realty Common Stock Baron shall receive
as the result of its exercise of the Baron Series A Warrants shall be determined
by dividing $2,000,000 by the lesser of (a) $3.4375, the closing price of shares
of Prison Realty Common Stock on the NYSE on Friday, June 23, 2000, (b) the
average closing price of Prison Realty Common Stock on the NYSE over the five
trading days ending two trading days prior to the closing of the Merger, (c) the
conversion price of Prison Realty's existing secured or unsecured indebtedness,
as may be adjusted, and (d) the exercise price or conversion price of any equity
securities issued by Prison Realty in satisfaction of its existing contractual
obligations. The number of shares of Prison Realty Common Stock Baron shall
receive as the result of its exercise of the Baron Series B Warrants shall be
determined by dividing $1,000,000 by the lesser of (a) $3.4375, the closing
price of shares of Prison Realty Common Stock on the NYSE on Friday, June 23,
2000, (b) the average closing price of Prison Realty Common Stock on the NYSE
over the five trading days ending two trading days prior to the closing of the
Merger, (c) the conversion price of any of Prison Realty's secured or unsecured
indebtedness existing prior to the Merger, and (d) the exercise price of any
equity securities issued by Prison Realty prior to the Merger in satisfaction of
its existing contractual obligations. (The shares to be issued to Baron upon the
exercise of the Warrants are known herein as the "Warrant Shares.")
(b) Notwithstanding Section 1.3(a) of this Agreement, in the event
that Prison Realty fails to comply with the provisions of Section 3.2(c) of this
Agreement: (i) the Series A Warrants shall thereafter constitute warrants to
purchase shares of Prison Realty Common Stock having an aggregate value of five
million dollars U.S. ($5,000,000), as calculated below, with an exercise price
equal to $0.01 per share and pursuant to the form of warrant agreement attached
hereto as Exhibit A; and (ii) the Series B Warrants shall be terminated. Any
reference to the "Warrants" in this Agreement shall, upon the occurrence of the
events set forth in this Section 1.3(b), shall be deemed to refer to the Series
A Warrants, as modified by this Section 1.3(b).
3
4
Following the modification of the Series A Warrants set forth in this
Section 1.3(b), the number of shares of Prison Realty Common Stock Baron shall
receive as the result of its exercise of the Baron Series A Warrants shall be
determined by dividing $5,000,000 by the lesser of (a) $3.4375, the closing
price of shares of Prison Realty Common Stock on the NYSE on Friday, June 23,
2000, (b) the average closing price of Prison Realty Common Stock on the NYSE
over the five trading days ending two trading days prior to the closing of the
Merger, (c) the conversion price of any of Prison Realty's secured or unsecured
indebtedness existing prior to the Merger, and (d) the exercise price of any
equity securities issued by Prison Realty prior to the Merger in satisfaction of
its existing contractual obligations.
1.4 MERGER VOTES. Subject to the terms and conditions set forth in
this Agreement, in consideration for the purchase of the Shares by Prison
Realty, and in consideration for the payment of additional consideration in
connection with the Baron Veto Right, Baron hereby consents to the Merger in
accordance with the Letter Agreement and further agrees to vote, or cause to be
voted, all of the Shares in favor of the Merger and the related transactions to
be approved by the shareholders of CCA in connection therewith and agrees to
vote, or cause to be voted, any shares of Prison Realty stock owned by the Baron
Asset Fund in favor of the actions recommended by the Board of Directors of
Prison Realty for approval by Prison Realty's stockholders at a special meeting
of the stockholders of Prison Realty to be held in connection with
Restructuring.
1.5 EFFECT ON CERTAIN EXISTING AGREEMENTS. Subject to the terms
and conditions set forth herein, the parties hereto acknowledge and agree (and
the parties have received a letter from CCA pursuant to which CCA acknowledges
and agrees) that this agreement supercedes the Purchase-Related Agreements (as
herein defined) with respect to the parties' rights, duties and obligations
thereunder and the Purchase-Related Agreements shall each, at the time of the
Closing and thereafter, be considered null and void and of no further force or
effect with respect to the parties, and the rights and obligations contained in
each such document shall no longer be binding upon the parties hereto. For
purposes hereof, "Purchase-Related Agreements" means all agreements entered into
by and among the parties hereto in connection with the purchase by Sodexho and
Baron of the Shares from CCA, including without limitation (i) the Stock
Purchase Agreement, dated December 28, 1998, by and among CCA, Sodexho and
Baron, (ii) the Registration Rights Agreement, dated December 30, 1998, by and
among CCA, Sodexho and Baron, (iii) the letter agreement, dated December 30,
1998, by and between CCA and Baron, (iv) the letter agreement, dated December
30, 1998, by and among CCA, Baron, and CCA Prison Realty Trust (a predecessor in
interest to Prison Realty) ("Old Prison Realty"), (v) the letter agreement,
dated December 30, 1998, by and among Old CCA (as hereinafter defined), Baron,
Old Prison Realty, and Prison Realty, (vi) the Shareholders' Agreement, dated
December 30, 1998, among Baron, Sodexho and CCA, and (vii) the Agreement in
Principle, dated October 15, 1998, among Baron, Old Prison Realty, the former
Corrections Corporation of America (a predecessor in interest to Prison Realty)
("Old CCA") and CCA.
1.6 CLOSING. The closing of the purchase by Prison Realty of the
Shares and the issuance by Prison Realty of additional consideration to Baron in
connection with the Baron Veto Right (the
4
5
"Closing") shall take place at a time to be mutually agreed upon by the parties,
at the offices of Xxxxxx & Xxxxxxxxxxx, P.A. in Nashville, Tennessee or at such
other place as the parties shall mutually agree; provided, however, that the
Closing shall take place prior to the closing of the Merger.
At the Closing, Baron shall deliver to Prison Realty a certificate or
certificates, registered in Baron's name, representing the Shares being acquired
by Prison Realty pursuant to this Agreement, accompanied by a blank stock power
relating thereto, against payment of the Purchase Price. At the Closing, Prison
Realty shall deliver to Baron a certificate or certificates, registered in
Baron's name, representing the shares of Prison Realty Common Stock being issued
to Baron as the Purchase Price pursuant to the terms of this Agreement. At the
Closing, Prison Realty shall also deliver to Baron the Warrants being issued to
Baron in consideration for its consent to the Merger in connection with the
Baron Veto Right.
1.7 TERMINATION. This Agreement may be terminated by any of the
parties hereto if the purchase and sale of the Shares shall not have been
consummated on or before October 31, 2000, unless the failure to consummate the
purchase and sale of the Shares is the result of a material breach of this
Agreement by the party seeking to terminate this Agreement. Upon termination of
this Agreement pursuant to this Section 1.7, this Agreement shall forthwith
become void and shall have no effect, and the obligations of the parties hereto
with respect to the matters set forth herein shall terminate.
2. REPRESENTATIONS AND WARRANTIES OF BARON. Baron hereby represents and
warrants to Prison Realty as of the date hereof as follows:
2.1 ORGANIZATION. Baron represents and warrants that it is a
business trust duly organized, validly existing and in good standing under the
laws of the State of Massachusetts.
2.2 DUE AUTHORIZATION. Baron has all right, power and authority to
enter into this Agreement and to consummate the transactions contemplated
hereby. The execution and delivery of this Agreement by Baron and the
consummation by Baron of the transactions contemplated hereby have been duly
authorized by all necessary action on behalf of Baron. This Agreement has been
duly executed and delivered by Baron and constitutes a valid and binding
agreement of Baron enforceable in accordance with its terms, except that (i)
such enforcement may be subject to bankruptcy, insolvency, reorganization,
moratorium or other similar laws now or hereafter in effect relating to
creditors' rights, and (ii) the remedy of specific performance and injunctive
and other forms of equitable relief may be subject to equitable defenses and to
the discretion of the court before which any proceeding therefor may be brought.
2.3 OWNERSHIP OF SHARES. (i) Hare & Co. is the record owner, and
Baron is the beneficial owner, of the number of Shares set forth in Section 1.1
hereof, free and clear of all liens, claims, charges, restrictions, security
interests, equities, proxies, pledges or encumbrances of any kind; (ii) except
for the Shares, Baron does not own any other capital stock, equity interest or
debt
5
6
instrument issued by CCA, nor do either of them own any right, option or warrant
to acquire any of the foregoing; (iii) Baron has the full right, power,
authority and capacity to sell and transfer the Shares owned by it; and (iv) by
virtue of the transfer of the Shares owned by Baron to Prison Realty at the
Closing, Prison Realty 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. As of the date of the Closing, Baron
represents that it has no claims of any kind against Prison Realty or CCA, with
respect to the Shares, or the sale thereof.
2.4 CONFLICTING AGREEMENTS AND OTHER MATTERS. Neither the
execution and delivery of this Agreement nor the performance by Baron of its
obligations hereunder will conflict with, result in a breach of the terms,
conditions or provisions of, constitute a default under, result in the creation
of any mortgage, security interest, encumbrance, lien or charge of any kind upon
any of the properties or assets of Baron pursuant to, or require any consent,
approval or other action by or any notice to or filing with any court or
administrative or governmental body pursuant to, the organizational documents or
agreements of Baron or any agreement, instrument, order, judgment, decree,
statute, law, rule or regulation by which Baron is bound.
2.5 BROKERAGE. There are no claims for brokerage commissions or
finder's fees or similar compensation in connection with the transactions
contemplated by this Agreement based on any arrangement made by or on behalf of
Baron.
2.6 OFFERING OF SHARES. Neither Baron nor any Person, as defined
hereafter, acting on the behalf of either of them has offered the Shares for
sale to, solicited any offers to buy the Shares from or otherwise approached or
negotiated with respect to the CCA Common Stock with any Person other than
Prison Realty. Neither Baron nor any Person acting on the behalf of either of
them has taken or will take any action (including, without limitation, any
offering of any securities of CCA under circumstances which would require the
integration of such offering with the offering of the Shares under the
Securities Act of 1933, as amended (the "Act") and the rules and regulations of
the U.S. Securities and Exchange Commission (the "Commission") thereunder) which
might subject the sale of the Shares to the registration requirements of Section
5 of the Act.
2.7 ACTIONS PENDING; COMPLIANCE WITH LAW. (a) There is no action,
suit, investigation, proceeding, claim or penalty pending or, to the knowledge
of Baron threatened by any public official or governmental authority or agency,
against Baron or any of its respective properties or assets by or before any
court, arbitrator or governmental body, department, commission, board, bureau,
agency or instrumentality, which questions the validity of this Agreement or the
Shares or any action taken or to be taken pursuant hereto or thereto or which is
reasonably likely to result in any material adverse change in the business,
prospects or financial condition of Baron, (b) Baron is not in default in any
material respect with respect to any judgment, order, writ, injunction, decree
or award; and (c) the business of Baron is in compliance with applicable
Federal, state, local and foreign governmental laws and regulations, all to the
extent necessary to avoid any material adverse effect on the business,
properties or condition (financial or other) of Baron taken as a whole.
6
7
3. REPRESENTATIONS AND WARRANTIES OF PRISON REALTY. Prison Realty hereby
represents and warrants to Baron as of the date hereof as follows:
3.1 ORGANIZATION. Prison Realty is a corporation duly organized
and existing in good standing under the laws of the State of Maryland and has
the power to own its respective property and to carry on its respective business
as now being conducted.
3.2 DUE AUTHORIZATION.
(A) The execution and delivery of this Agreement by
Prison Realty and compliance by Prison Realty with all the provisions of this
Agreement (i) are within the corporate power and authority of Prison Realty; and
(ii) have been authorized by all requisite corporate proceedings on the part of
Prison Realty. This Agreement has been duly executed and delivered by Prison
Realty and constitutes the valid and binding agreement of Prison Realty
enforceable in accordance with its terms, except that (a) such enforcement may
be subject to bankruptcy, insolvency, reorganization, moratorium or other
similar laws now or hereafter in effect relating to creditors rights, and (b)
the remedy of specific performance and injunctive and other forms of equitable
relief may be subject to equitable defenses and to the discretion of the court
before which any proceeding therefor may be brought.
(B) The Prison Realty Common Stock and the Warrant Shares
have been duly authorized by Prison Realty, and the Prison Realty Common Stock
and Warrant Shares have been reserved for issuance and, when issued and
delivered in accordance with this Agreement, will be validly issued, fully paid
and nonassessable and listed for trading on the NYSE or such other exchange as
Prison Realty Common Stock may be traded. There are no preemptive rights or
other rights to subscribe for or purchase securities existing with respect to
the issuance of the Prison Realty Common Stock by Prison Realty pursuant hereto.
(C) Prison Realty shall: (i) at the Closing, have filed
with the Commission a registration statement which shall have been declared
effective by the Commission with respect to the issuance of the Prison Realty
Common Stock at Closing and the issuance of the Warrant Shares upon conversion
of the Warrants; or, in the alternative, (ii) have filed, within 15 days
following the Closing, a registration statement which is subsequently declared
effective by the Commission within 60 days following the filing of such
registration statement with the Commission, and thereafter maintain the
effectiveness of such registration statement until the expiration of the
Warrants, with respect to the resale of all or a portion of the Prison Realty
Common Stock and the Warrant Shares by Baron.
3.3 CONFLICTING AGREEMENTS AND CHARTER PROVISIONS. Neither the
execution and delivery of this Agreement and the purchase of the Shares or the
issuance and delivery of the Prison Realty Common Stock or Warrants as
consideration therefore, nor fulfillment of nor compliance with the terms and
provisions hereof or thereof, will conflict with or result in a breach of the
terms, conditions or provisions of, or give rise to a right of termination
under, or constitute a default under, or result in any violation of, the Charter
or Bylaws of Prison Realty or any mortgage, agreement,
7
8
security, instrument, order, judgment, decree, statute, law, rule or regulation
to which Prison Realty or any of its property is subject.
3.4 BROKERS OR FINDERS. No agent, broker, investment banker or
other firm or Person, is or will be entitled to any broker's fee or any other
commission or similar fee from Prison Realty in connection with any of the
transactions contemplated by this Agreement. As used herein, "Person" shall mean
any individual, partnership, joint venture, corporation, trust, unincorporated
organization, government or department or agency of a government.
4. CONDITIONS TO THE OBLIGATIONS OF EACH OF PRISON REALTY AND BARON. The
obligations of the parties to consummate the transactions contemplated hereunder
shall be contingent upon the satisfaction of the conditions contained in this
Section 4. If any of these conditions is not satisfied, or waived by the
appropriate party, no party hereto shall have any obligation to perform any of
its obligations under this Agreement, and this Agreement shall be void and of no
further force and effect.
4.1 Those conditions precedent set forth in Sections 5.01, 5.02,
and 5.03 of the Merger Agreement (with the exception of the condition in Section
5.02(f) related to the purchase of the Shares).
4.2 The approval of the Merger and the transactions contemplated
hereby by Xxxxxx Commercial Paper Inc. ("Xxxxxx"), the administrative agent of
the Company's $1.0 billion senior secured credit facility, as required by the
terms of the Amended and Restated Credit Agreement dated August 4, 1999 by and
among the Company as Borrower, certain of its subsidiaries as Guarantors, those
parties identified as the Lenders thereunder, Xxxxxx as Administrative Agent,
Societe Generale as Documentation Agent, The Bank of Nova Scotia as Syndication
Agent, and Southtrust Bank (formerly known as Southtrust Bank, N.A.) as
Co-Agent, as amended by the terms of the Waiver and Amendment, dated June 9,
2000.
5. CONDITIONS TO THE OBLIGATIONS OF PRISON REALTY. The obligation of
Prison Realty to purchase the Shares and to issue the consideration for its
consent to the Merger in connection with the Baron Veto Right at the Closing is,
at its option, subject to the satisfaction, on or before such date, of the
following conditions:
(A) The representations and warranties of Baron contained
in Section 2 hereof shall be true and correct on and as of the date of the
Closing with the same effect as though such representations and warranties had
been made on and as of such date, and Baron shall have certified to such effect
to Prison Realty in writing.
(B) Baron shall have performed and complied with all
agreements and conditions contained herein required to be performed or complied
with by it prior to or at the date of the Closing, and Baron shall have
certified to such effect to Prison Realty in writing.
8
9
(C) All corporate and other proceedings to be taken by
Baron in connection with the transactions contemplated hereby and all documents
incident thereto shall be satisfactory in form and substance to Prison Realty
and its counsel, and Prison Realty and its counsel shall have received all such
counterpart originals or certified or other copies of such documents as they may
reasonably request.
(D) Pursuant to Section 1.4 herein, Baron shall have
voted, or caused to be voted, all of the Shares in favor of the Merger and the
related transactions to be approved by the stockholders of CCA in connection
therewith and shall have voted, or caused to be voted, any shares of Prison
Realty stock owned by it in favor of the matters necessary to complete the
Restructuring to be approved by the stockholders of Prison Realty in connection
therewith.
6. CONDITIONS TO THE OBLIGATIONS OF BARON. The obligation of Baron to
sell the Shares being purchased by Prison Realty at the Closing is subject to
the satisfaction, on or before such dates, of the following conditions:
(A) The representations and warranties contained in
Section 3 hereof shall be true and correct on and as of the date of the Closing
with the same effect as though such representations and warranties had been made
on and as of such date.
(B) Prison Realty shall have performed and complied with
all agreements and conditions contained herein required to be performed or
complied with by it prior to or on the date of the Closing.
(C) All corporate and other proceedings to be taken by
Prison Realty in connection with the transactions contemplated hereby and all
documents incident thereto shall be satisfactory in form and substance to Baron
and its counsel, and Baron and its counsel shall have received all such
counterpart originals or certified or other copies of such documents as they may
reasonably request.
(D) The shares of Prison Realty Common Stock to be issued
as consideration for the purchase of the Shares and the Warrant Shares shall
have been approved for listing on the NYSE, subject to official notice of
issuance, if applicable.
7. MISCELLANEOUS.
7.1 GOVERNING LAW. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Tennessee without giving
effect to conflicts of law principles thereof.
7.2 JURISDICTION; FORUM; SERVICE OF PROCESS; WAIVER OF JURY TRIAL.
With respect to any suit, action or proceeding ("Proceeding") arising out of or
relating to this Agreement each of Prison Realty and Baron hereby irrevocably:
9
10
(A) submit to the exclusive jurisdiction of the United
States District Court for the Middle District of Tennessee or any state court
located in the State of Tennessee, County of Davidson (the "Selected Courts")
and waive any objection to venue being laid in the Selected Courts whether based
on the grounds of FORUM NON CONVENIENS or otherwise;
(B) consent to service of process in any Proceeding by
the mailing of copies thereof by registered or certified mail, postage prepaid,
or by recognized international express carrier or delivery service, to any party
hereto at their respective addresses referred to in Section 8.5 hereof;
provided, however, that nothing herein shall affect the right of any party
hereto to serve process in any other manner permitted by law; and
(C) waive, to the fullest extent permitted by law, any
right they may have to a trial by jury in any Proceeding.
7.3 SUCCESSORS AND ASSIGNS. Except as otherwise provided herein,
the provisions hereof shall inure to the benefit of, and be binding upon, the
successors by operation of law and permitted assigns of the parties hereto. No
assignment of this Agreement may be made by any party at any time, whether or
not by operation of law, without the other parties' prior written consent.
7.4 ENTIRE AGREEMENT; AMENDMENT. This Agreement together with the
Exhibits attached hereto constitutes the full and entire understanding and
agreement between the parties with regard to the subjects hereof. Except as
expressly provided herein, neither this Agreement nor any term hereof may be
amended, waived, discharged or terminated other than by a written instrument
signed by all parties hereto.
7.5 NOTICES, ETC. All notices and other communications provided
for or permitted hereunder shall be made in writing and delivered by hand
delivery, facsimile, or any courier guaranteeing overnight delivery to the
addresses and/or facsimile numbers listed below. All such notices and
communications shall be deemed to have been duly given: at the time delivered by
hand, if personally delivered; five business days after being deposited in the
mail, postage prepaid, if mailed; when receipt is confirmed, if delivered by
facsimile; and on the next business day, if timely delivered to a courier
guaranteeing overnight delivery.
if to Prison Realty:
Prison Realty Trust, Inc.
00 Xxxxxx Xxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxx, Chairman of the Board of Directors
10
11
with a copy to:
Xxxxxx & Xxxxxxxxxxx, P.A.
000 Xxxxxx Xx., Xxxxx 0000
Xxxxxxxxx, XX 00000
Attention: Xxxxxxxxx X. Xxxxx, Esq.
if to Baron:
Baron Capital Group, Inc.
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxxxxxx, Esq.
or to such other address as any party may, from time to time, designate in a
written notice given in a like manner.
7.6 DELAYS OR OMISSIONS. Except as expressly provided herein, no
delay or omission to exercise any right, power or remedy accruing to any party
hereto upon any breach or default of another party under this Agreement, shall
impair any such right, power or remedy nor shall it be construed to be a waiver
of any such breach or default, or an acquiescence therein, or of any similar
breach or default thereafter occurring; nor shall any waiver of any single
breach or default be deemed a waiver of any other breach or default theretofore
or thereafter occurring. Any waiver, permit, consent or approval of any kind or
character on the part of any party of any breach or default under this
Agreement, or any waiver on the part of any such party of any provisions or
conditions of this Agreement, must be in writing and shall be effective only to
the extent specifically set forth in such writing. All remedies, either under
this Agreement or by law or otherwise afforded to any party shall be cumulative
and not alternative.
7.7 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which may be executed by only one of the parties hereto,
each of which shall be enforceable against the party actually executing such
counterpart, and all of which together shall constitute one instrument.
7.8 SEVERABILITY. In the event that any provision of this
Agreement becomes or is declared by a court of competent jurisdiction to be
illegal, unenforceable or void, this Agreement shall continue in full force and
effect without said provisions; provided that no such severability shall be
effective if it materially changes the economic benefit of this Agreement to any
party. It is hereby stipulated and declared to be the intention of the parties
that they would have executed the remaining terms, provisions, covenants and
restrictions without including any of such which may be hereafter declared
invalid, void or unenforceable.
7.9 TITLES AND SUBTITLES. The titles and subtitles used in this
Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement. The terms "affiliate" and "associate"
shall have the meanings ascribed to them in Rule 12b-2 promulgated under the
Securities Exchange Act of 1934, as amended (the "Exchange Act").
11
12
7.10 FURTHER ACTIONS; REASONABLE EFFORTS. Upon the terms and
subject to the conditions hereof, each of the parties agrees to use its
reasonable efforts to take, or cause to be taken, all actions, and to do, or
cause to be done, and to assist and cooperate with the other parties in doing,
all things necessary, proper or advisable to consummate and make effective, in
the most expeditious manner practicable, the transactions contemplated by this
Agreement, including without limitation (i) the obtaining of all necessary
actions or nonactions, waivers, consents and approvals from governmental or
regulatory entities and the making of all necessary registrations and filings
and the taking of all steps as may be necessary to obtain an approval or waiver
from, or to avoid an action or proceeding by, any Governmental Entity, (ii) the
obtaining of all necessary consents, approvals or waivers from third parties,
(iii) the defending of any lawsuits or other legal proceedings, whether judicial
or administrative, challenging this Agreement or the consummation of the
transactions contemplated hereby, including seeking to have any stay or
temporary restraining order entered by any court or other Governmental Entity or
any restraint vacated or reversed, and (iv) the execution and delivery of any
additional instruments necessary to consummate the transactions contemplated by,
and to fully carry out the purposes of this Agreement.
7.11 ENFORCEMENT OF AGREEMENT. The parties hereto agree that
irreparable damage would occur in the event that any of the provisions of this
Agreement were not performed in accordance with its specific terms or was
otherwise breached. It is accordingly agreed that the parties shall be entitled
to an injunction or injunctions and other equitable remedies to prevent breaches
of this Agreement and to enforce specifically the terms and provisions hereof in
any of the Selected Courts, this being in addition to any other remedy to which
they are entitled at law or in equity. Any requirements for the securing or
posting of any bond with respect to such remedy are hereby waived by each of the
parties hereto.
7.12 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. (a) All
representations and warranties contained herein or made in writing by any party
in connection herewith shall survive the execution and delivery of this
Agreement and the purchase, sale and delivery of the Shares and the issuance and
delivery of the Warrants and the Warrant Shares, regardless of any investigation
made by or on behalf of any party; (b) Baron hereby covenants and agrees with
Prison Realty that, regardless of any investigation made at any time by or on
behalf of Prison Realty or any information Prison Realty may have and,
regardless of the Closings hereunder, Baron shall indemnify Prison Realty and
its respective directors, officers, employees and affiliates, and each of its
successors and assigns, and hold it and them harmless from, against and in
respect of any and all costs, losses, claims, liabilities, fines, penalties,
damages and expenses (including interest which may be imposed in connection
therewith, court costs and reasonable fees and disbursements of counsel)
incurred by any of them resulting from any misrepresentation, breach of warranty
or nonfulfillment of any agreement, covenant or obligation made by Baron in this
Agreement (including without limitation any certificate, document or instrument
delivered in connection herewith); and (c) Prison Realty hereby covenants and
agrees with Baron that, regardless of any investigation made at any time by or
on behalf of Baron or any information Baron may have and, regardless of the
Closing hereunder, Prison Realty shall indemnify Baron and its respective
directors, officers, employees and affiliates, and each of its successors and
assigns, and hold it and them harmless from, against and in respect
12
13
of any and all costs, losses, claims, liabilities, fines, penalties, damages and
expenses (including interest which may be imposed in connection therewith, court
costs and reasonable fees and disbursements of counsel) incurred by any of them
resulting from any misrepresentation, breach of warranty or nonfulfillment of
any agreement, covenant or obligation made by Prison Realty in this Agreement
(including without limitation any certificate, document or instrument delivered
in connection herewith)
7.13 EXPENSES. Except as otherwise provided in this Agreement, or
in any other agreement referred to in this Agreement, each of the parties shall
be responsible for their own expenses relating to the transactions contemplated
hereby.
IN WITNESS WHEREOF, Prison Realty and Baron have caused this Agreement
to be duly executed and delivered, all as of the day and year first above
written.
PRISON REALTY:
PRISON REALTY TRUST, INC.
A MARYLAND CORPORATION
By: /s/ Xxxxxx X. Xxxxxxx
--------------------------------------
Its: Chairman of the Board of Directors
--------------------------------------
BARON:
BARON ASSET FUND, A MASSACHUSETTS BUSINESS
TRUST, AND ALL SERIES THEREOF
By: /s/ Xxxxxx Xxxxx
--------------------------------------
Its: President
--------------------------------------
13
14
Exhibit A
THE SECURITIES REPRESENTED HEREBY ARE SUBJECT TO THE PROVISIONS OF A STOCK
PURCHASE AGREEMENT, DATED AS OF JUNE __, 2000, BY AND AMONG PRISON REALTY TRUST,
INC., A MARYLAND CORPORATION; CORRECTIONS CORPORATION OF AMERICA, A TENNESSEE
CORPORATION FORMERLY KNOWN AS CORRECTIONAL MANAGEMENT SERVICES CORPORATION; AND
BARON ASSET FUND, A MASSACHUSETTS BUSINESS TRUST, AND ALL SERIES THEREOF, ON
BEHALF OF ITSELF AND ONE OR MORE MUTUAL FUNDS MANAGED BY IT, OR ITS AFFILIATES
(THE "STOCK PURCHASE AGREEMENT"), COPIES OF WHICH ARE ON FILE AT THE OFFICES OF
THE CORPORATION.
------------------------------------
CORRECTIONS CORPORATION OF AMERICA
COMMON STOCK PURCHASE WARRANT
-----------------------------------
Warrant No.: W-A Date: [September ___, 2000]
This Warrant Certificate certifies that, _____________, or registered
assigns (collectively, the "Warrantholder"), is the registered holder of this
Common Stock Purchase Warrant expiring on or before the Expiration Date (the
"Warrants") to purchase shares of Common Stock, par value $0.01 per share (the
"Common Stock"), of Corrections Corporation of America, formerly Prison Realty
Trust, Inc., a Maryland corporation (the "Company"). Each Warrant entitles the
Warrantholder, upon exercise at any time and from time to time during the period
from the date of this Warrant through [September __, 2005] (the "Expiration
Date"), to purchase all or a portion of the Warrant Shares at the exercise price
of $0.01 per share (the "Exercise Price"), payable in lawful money of the United
States of America upon surrender of this Warrant Certificate and payment of the
Exercise Price, all subject to the terms, conditions and adjustments herein set
forth.
Certain capitalized terms used herein and not otherwise defined shall
have the meanings ascribed to them in Section 9 hereto or otherwise those
meanings ascribed to them in the Stock Purchase Agreement.
1. Duration and Exercise of Warrant; Limitations on Exercise; Payment
of Taxes.
1.1 Duration and Exercise of Warrant. Subject to the terms and
conditions set forth herein, the Warrant may be exercised, either in whole or
from time to time in part, at the election of the Warrantholder by:
(a) the surrender of this Warrant to the Company, with a duly executed
Exercise Form (in the form annexed hereto as Exhibit A) specifying that portion
of the Principal Amount to be used
15
to purchase Warrant Shares, during normal business hours on any Business Day
prior to the Expiration Date (as used in this Agreement, "Business Day" shall
mean a day other than a Saturday, Sunday or a day on which banking institutions
in the State of Maryland are required or authorized to close by applicable law,
regulation or executive order); and
(b) the delivery of payment to the Company, for the account of the
Company, by cash, by certified or bank cashier's check or by wire transfer of
immediately available funds in accordance with wire instructions that shall be
provided by the Company upon request, of that portion of the Principal Amount
specified in the Exercise Form in lawful money of the United States of America.
Upon such surrender of the Warrants and payment of the Exercise Price,
the Company shall issue and cause to be delivered with all reasonable dispatch
to, or upon the written order of, the Warrantholder, a certificate or
certificates for the number of full Warrant Shares issuable upon the exercise of
such Warrants. The Company agrees that such Warrant Shares shall be deemed to be
issued to the Warrantholder as the record holder of such Warrant Shares as of
the close of business on the Business Day on which this Warrant shall have been
surrendered and payment made for the Warrant Shares as aforesaid. All Warrant
Certificates surrendered upon exercise of Warrants shall be canceled and
disposed of by the Company.
1.2 Limitations on Exercise. Notwithstanding anything to the contrary
herein, this Warrant may be exercised only upon receipt by the Company of
approval of any applicable Governmental Authority of the proposed exercise. The
Warrantholder shall not be entitled to exercise this Warrant, or any part
thereof, unless and until such approvals, certificates, legal opinions or other
documents are reasonably acceptable to the Company. The cost of such approvals,
certificates, legal opinions and other documents, if required, shall be borne by
the Warrantholder.
1.3 Warrant Shares Certificate. A stock certificate or certificates for
the Warrant Shares purchased by the Warrantholder shall be delivered to the
Warrantholder within five Business Days after receipt of the Exercise Form and
receipt of payment of all or a portion of the Principal Amount, as designated in
the Exercise Form. If this Warrant shall have been exercised only in part, the
Company shall, at the time of delivery of the stock certificate or certificates,
deliver to the Warrantholder a new Warrant evidencing the rights to use the
remaining portion of the Principal Amount to purchase Warrant Shares, which new
Warrant shall in all other respects be identical with this Warrant.
1.4 Payment of Taxes. The issuance of certificates for Warrant Shares
upon the exercise of Warrants shall be made without charge to the Warrantholder
for any documentary stamp or similar stock transfer or other issuance tax in
respect thereto; provided, however, that the Warrantholder shall be required to
pay any and all taxes which may be payable in respect of any transfer involved
in the issuance and delivery of any certificate in a name other than that of the
registered Warrantholder as reflected upon the books of the Company.
2
16
1.5 Divisibility of Warrant; Transfer of Warrant.
(a) Subject to the provisions of this Section, this Warrant may be
divided upon surrender at the office of the Company located at 00 Xxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxx, Xxxxxxxxx 00000, without charge to the Warrantholder.
Subject to the provisions of this Section, upon such division, the Warrants may
be transferred of record as the then-Warrantholder may specify without charge to
such Warrantholder (other than any applicable transfer taxes).
(b) Subject to the provisions of this Section, upon surrender of this
Warrant to the Company with a duly executed Assignment Form (in the form annexed
hereto as Exhibit B) and funds sufficient to pay any transfer tax, the Company
shall, without charge, execute and deliver a new Warrant or Warrants which shall
in all material respects be identical with this Warrant, in the name of the
assignee named in such Assignment Form, and this Warrant shall promptly be
canceled. Prior to any proposed transfer (whether as the result of a division or
otherwise) of this Warrant, such Warrantholder shall give written notice to the
Company of such Warrantholder's intention to effect such transfer. Each such
notice shall describe the manner and circumstances of the proposed transfer in
sufficient detail. The term "Warrant" as used in this Agreement shall be deemed
to include any Warrants issued in substitution or exchange for this Warrant.
2. Reservation and Registration of Shares, etc. The Company covenants
and agrees as follows:
(a) all Warrant Shares which are issued upon the exercise of this
Warrant will, upon issuance, be validly issued, fully paid and nonassessable,
not subject to any preemptive rights, and free from all taxes, liens, security
interests, charges and other encumbrances with respect to the issue thereof,
other than taxes with respect to any transfer occurring contemporaneously with
such issue;
(b) during the period within which this Warrant may be exercised, the
Company will at all times have authorized and reserved, and keep available, free
from preemptive rights, out of the aggregate of its authorized but unissued
Common Stock, for the purpose of enabling it to satisfy any obligation to issue
Warrant Shares upon exercise of Warrants, the maximum number of shares of Common
Stock which may then be deliverable upon the exercise of all outstanding
Warrants; and
(c) the Company will use its reasonable best efforts to obtain all such
authorizations, exemptions or consents from any public regulatory body having
jurisdiction thereof as may be necessary to enable the Company to perform its
obligations under this Warrant.
(d) prior to the Expiration Date, the Company shall use its reasonable
best efforts to (i) maintain an effective registration statement covering the
shares of Common Stock of the Company which may then be issuable upon exercise
of all outstanding Warrants and, if necessary, amend and supplement the same and
(ii) make all filings required to obtain all Blue Sky exemptions,
authorizations, consents or approvals required for the issuance of shares of
Common Stock upon exercise of all outstanding Warrants.
3
17
3. Obtaining Stock Exchange Listings. The Company will from time to time
take all action which may be necessary so that the Warrant Shares, immediately
upon their issuance upon the exercise of Warrants, will be listed on the
principal securities exchanges and markets within the United States of America,
if any, on which other shares of Common Stock are listed.
4. Loss or Destruction of Warrant. Subject to the terms and conditions
hereof, upon receipt by the Company of evidence reasonably satisfactory to it of
the loss, theft, destruction or mutilation of this Warrant and, in the case of
loss, theft or destruction, of such bond or indemnification as the Company may
reasonably require, and, in the case of such mutilation, upon surrender and
cancellation of this Warrant, the Company will execute and deliver a new Warrant
of like tenor.
5. Ownership of Warrant. The Company may deem and treat the
Warrantholder as the holder and owner hereof (notwithstanding any notations of
ownership or writing hereon made by anyone other than the Company) for all
purposes and shall not be affected by any notice to the contrary, until
presentation of this Warrant for registration of transfer.
6. Amendments. Any provision of this Warrant may be amended and the
observance thereof may be waived (either generally or in a particular instance
and either retroactively or prospectively), only with the written consent or
approval of the Company and the Warrantholder. Any amendment or waiver effected
in accordance with this Section 6 shall be binding upon the Warrantholder and
the Company.
7. Certain Corporate Actions.
7.1 Distributions to all Holders of Common Stock. If the Company shall,
at any time after the date of issuance of this Warrant, fix a record date to
distribute to all holders of its Common Stock any shares of capital stock of the
Company (other than Common Stock) or evidences of its indebtedness or assets
(not including regular quarterly cash dividends or distributions paid from
retained earnings of the Company) or rights or warrants to subscribe for or
purchase any of its securities [(provided, however, that (i) the distribution of
the Company's Series B Preferred Stock to the existing holders of the Company's
Common Stock and (ii) the issuance of rights to purchase shares of the Company's
Common Stock to existing holders of the Company's Common Stock shall not
constitute such a distribution giving rise to adjustment under this Section
7.1)], then the Warrantholder shall be entitled to receive, upon exercise of
this Warrant, that portion of such distribution to which it would have been
entitled had the Warrantholder exercised its Warrant immediately prior to the
date of such distribution. At the time it fixes the record date for such
distribution, the Company shall allocate sufficient reserves to ensure the
timely and full performance of the provisions of this subsection. The Company
shall promptly (but in any case no later than five Business Days prior to the
record date of such distribution) give notice to the Warrantholder that such
distribution will take place.
4
18
7.2 Changes in Capital Stock. In case at any time the Company shall be a
party to any transaction (including, without limitation, a merger,
consolidation, sale of all or substantially all of the Company's assets,
liquidation or recapitalization of the capital stock) in which the previously
outstanding capital stock shall be changed into or exchanged for different
securities of the Company or common stock or other securities of another
corporation or interest in a non-corporate entity or other property (including
cash) or any combination of any of the foregoing or in which the Common Stock,
if then so listed or traded, ceases to be a publicly traded security either
listed on the New York Stock Exchange or the American Stock Exchange or quoted
by the NASDAQ National Market System or any successor thereto or comparable
system (each such transaction being herein called the "Transaction," the date of
consummation of the Transaction being herein called the "Consummation Date"),
then, as a condition of the consummation of the Transaction, lawful and adequate
provisions shall be made so that each holder of Warrants, upon the exercise
thereof at any time on or after the Consummation Date, shall be entitled to
receive, and such Warrants shall thereafter represent the right to receive, in
lieu of the Common Stock issuable upon such exercise prior to the Consummation
Date, the highest amount of securities or other property to which such holder
would actually have been entitled as a shareholder upon the consummation of the
Transaction if such holder had exercised such Warrants immediately prior
thereto.
7.3 Prohibited Transactions. Notwithstanding anything contained herein
to the contrary, the Company shall not effect any Transaction unless prior to
the consummation thereof each corporation or entity (other than the Company)
which may be required to deliver any securities or other property upon the
exercise of the Warrant, the surrender of Warrants or the satisfaction of
exercise rights as provided herein shall assume, by written instrument delivered
to the holder of the Warrants, the obligation to deliver to such holder such
securities or other property to which, in accordance with the foregoing
provisions, such holder may be entitled, and such corporation or entity shall
have similarly delivered to the holder of the Warrant appropriate notice of the
changes made in the rights attaching to the Warrants as a result of such
Transaction, including, without limitation, the exercise provisions applicable
thereto, if any, which shall thereafter continue in full force and effect and
shall be enforceable against such corporation or entity in accordance with the
terms hereof and thereof, together with such other matters as such holders may
reasonably request.
8. Expiration of the Warrant. The obligations of the Company pursuant to
this Warrant shall terminate on the Expiration Date.
9. Definitions.
As used herein, unless the context otherwise requires, the following
terms have the following respective meanings:
"Conversion Value" shall mean, with respect to a share of Common Stock
as of a particular date, (a) $3.4375, the closing price of shares of Prison
Realty Common Stock on the NYSE on Friday, June 23, 2000, (b) the average
closing price of Prison Realty Common Stock on the NYSE over the five trading
days ending two trading days prior to the closing of the Merger, (c) the
5
19
conversion price of Prison Realty's existing secured or unsecured indebtedness,
as may be adjusted, and (d) the exercise price or conversion price of any equity
securities issued by Prison Realty in satisfaction of its existing contractual
obligations.
"Exercise Date" shall mean the second Business Day following the date of
the Company's receipt from the Warrantholder of the Warrant, together with a
duly executed Exercise Form and payment of the Exercise Price.
"Governmental Authority" shall mean the government of any nation, state,
city, locality or other political subdivision of any thereof, and any entity
exercising executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government having or asserting jurisdiction over a
Person, its business or its properties.
"Person" shall mean any individual, firm, company, partnership, limited
liability company, trust, incorporated or unincorporated association, joint
venture, joint stock company, Governmental Authority or other entity of any
kind.
"Principal Amount" shall mean $2,000,000.
"Warrant Shares" shall mean that number of shares of Common Stock which
result from the quotient obtained by dividing (i) the Principal Amount, less any
portion of the Principal Amount previously converted into Warrant Shares
pursuant to this Warrant by (ii) the Conversion Value of the Common Stock on the
Exercise Date.
"Stock Purchase Agreement" shall mean that certain Stock Purchase
Agreement, dated as of June __, 2000, by and among Prison Realty Trust, Inc., a
Maryland corporation; Corrections Corporation of America, a Tennessee
corporation formerly known as Correctional Management Services Corporation; and
Baron Asset Fund, a Massachusetts business trust, and all series thereof, on
behalf of itself and one or more mutual funds managed by it, or its affiliates.
10. No Impairment. The Company shall not by any action, including,
without limitation, amending the Articles of Incorporation of the Company or
through any reorganization, transfer of assets, consolidation, merger,
dissolution, issue or sale of securities or any other voluntary action, avoid or
seek to avoid the observance or performance of any of the terms of this Warrant,
but will at all times in good faith assist in the carrying out of all such terms
and in the taking of all such reasonable actions as may be necessary or
appropriate to protect the rights of the Warrantholder against impairment.
Without limiting the generality of the foregoing, the Company shall (a) take all
such actions as may be necessary or appropriate in order that the Company may
validly and legally issue fully paid and nonassessable shares of Common Stock
upon the exercise of this Warrant, and (b) provide reasonable assistance to the
Warrantholder in obtaining all authorizations, exemptions or consents from any
Governmental Authority which may be necessary in connection with the exercise of
this Warrant.
6
20
11. Miscellaneous.
11.1 Entire Agreement. This Warrant constitutes the entire agreement
between the Company and the Warrantholder with respect to the Warrants.
11.2 Binding Effects; Benefits. This Warrant shall inure to the benefit
of and shall be binding upon the Company and the Warrantholder and its
respective heirs, legal representatives, successors and assigns. Nothing in this
Warrant, expressed or implied, is intended to or shall confer on any Person
other than the Company and the Warrantholder, or its respective heirs, legal
representatives, successors or assigns, any rights, remedies, obligations or
liabilities under or by reason of this Warrant.
11.3 Section and Other Headings. The section and other headings
contained in this Warrant are for reference purposes only and shall not be
deemed to be a part of this Warrant or to affect the meaning or interpretation
of this Warrant.
11.4 Further Assurances. Each of the Company and the Warrantholder shall
do and perform all such further acts and things and execute and deliver all such
other certificates, instruments and documents as the Company or the
Warrantholder may, at any time and from time to time, reasonably request in
connection with the performance of any of the provisions of this Warrant.
11.5 Notices. All notices and other communications required or permitted
to be given under this Warrant shall be in writing and shall be deemed to have
been duly given if (i) delivered personally or (ii) sent by facsimile or
recognized overnight courier or by United States first class certified mail,
postage prepaid, to the parties hereto at the following addresses or to such
other address as any party hereto shall hereafter specify by notice to the other
party hereto:
if to the Company, addressed to:
Corrections Corporation of America
00 Xxxxxx Xxxxx Xxxxxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Attention: Chief Financial Officer or Secretary
Fax Number: (000) 000-0000
with a copy to:
Xxxxxx & Xxxxxxxxxxx, P.A.
000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxx, Xxxxxxxxx 00000
Attention: Xxxxxxxxx X. Xxxxx, Esq.
Fax Number: (000) 000-0000
7
21
if to the Warrantholder, addressed to:
Baron Capital Group, Inc.
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxxxxxx, Esq.
Except as otherwise provided herein, all such notices and communications
shall be deemed to have been received (a) on the date of delivery thereof, if
delivered personally or sent by facsimile, (b) on the second Business Day
following delivery into the custody of an overnight courier service, if sent by
overnight courier, provided that such delivery is made before such courier's
deadline for next-day delivery, or (c) on the third Business Day after the
mailing thereof.
11.6 Separability. Any term or provision of this Warrant which is
invalid or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable the terms and provisions of this Warrant or
affecting the validity or enforceability of any of the terms or provisions of
this Warrant in any other jurisdiction.
11.7 Governing Law. THIS WARRANT SHALL BE DEEMED TO BE A CONTRACT MADE
UNDER THE LAWS OF THE STATE OF MARYLAND AND FOR ALL PURPOSES SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF SUCH STATE APPLICABLE TO SUCH
AGREEMENTS MADE AND TO BE PERFORMED ENTIRELY WITHIN SUCH STATE.
11.8 No Rights or Liabilities as Stockholder. Nothing contained in this
Warrant shall be deemed to confer upon the Warrantholder any rights as a
stockholder of the Company or as imposing any liabilities on the Warrantholder
to purchase any securities whether such liabilities are asserted by the Company
or by creditors or stockholders of the Company or otherwise.
[Signature Page to Follow]
8
22
IN WITNESS WHEREOF, the Company has caused this Warrant to be signed by
its duly authorized officer.
CORRECTIONS CORPORATION OF AMERICA
By:
----------------------------------
ATTEST:
By:
-------------------------------
9
23
EXHIBIT A
EXERCISE FORM
(To be executed upon exercise of this Warrant)
The undersigned hereby irrevocably elects to exercise the right,
represented by this Warrant, to use $_________ of the Principal Amount (as such
term is defined in the Warrant) to purchase shares of Common Stock and herewith
tenders payment for such Common Stock to the order of Corrections Corporation of
America in the amount of $__________, which amount includes payment of the par
value for such shares of the Common Stock, in accordance with the terms of this
Warrant. The undersigned requests that a certificate for such shares of Common
Stock be registered in the name of __________________ and that such certificates
be delivered to __________________ whose address is ___________________________.
Dated:
----------------
Signature
--------------------------------
----------------------------------
(Print Name)
----------------------------------
(Street Address)
----------------------------------
(City) (State) (Zip Code)
Signed in the Presence of:
----------------------------
24
EXHIBIT B
FORM OF ASSIGNMENT
(To be executed only upon transfer of this Warrant)
For value received, the undersigned registered holder of the within
Warrant hereby sells, assigns and transfers unto ______________________ the
right represented by such Warrant to use $_______ of the Principal Amount (as
such term is defined in the Warrant) to purchase shares of Common Stock of
Corrections Corporation of America to which such Warrant relates and all other
rights of the Warrantholder under the within Warrant, and appoints
______________________ Attorney to make such transfer on the books of
Corrections Corporation of America maintained for such purpose, with full power
of substitution in the premises. This sale, assignment and transfer has been
previously approved in writing by Corrections Corporation of America.
Dated:
----------------
Signature
--------------------------------
----------------------------------
(Print Name)
----------------------------------
(Street Address)
----------------------------------
(City) (State) (Zip Code)
Signed in the Presence of:
----------------------------
25
Exhibit B
THE SECURITIES REPRESENTED HEREBY ARE SUBJECT TO THE PROVISIONS OF A STOCK
PURCHASE AGREEMENT, DATED AS OF JUNE __, 2000, BY AND AMONG PRISON REALTY TRUST,
INC., A MARYLAND CORPORATION; CORRECTIONS CORPORATION OF AMERICA, A TENNESSEE
CORPORATION FORMERLY KNOWN AS CORRECTIONAL MANAGEMENT SERVICES CORPORATION; AND
BARON ASSET FUND, A MASSACHUSETTS BUSINESS TRUST, AND ALL SERIES THEREOF, ON
BEHALF OF ITSELF AND ONE OR MORE MUTUAL FUNDS MANAGED BY IT, OR ITS AFFILIATES
(THE "STOCK PURCHASE AGREEMENT"), COPIES OF WHICH ARE ON FILE AT THE OFFICES OF
THE CORPORATION.
------------------------------------
CORRECTIONS CORPORATION OF AMERICA
COMMON STOCK PURCHASE WARRANT
-----------------------------------
Warrant No.: W-B Date: [September ___, 2000]
This Warrant Certificate certifies that, _____________, or registered
assigns (collectively, the "Warrantholder"), is the registered holder of this
Common Stock Purchase Warrant expiring on or before the Expiration Date (the
"Warrants") to purchase shares of Common Stock, par value $0.01 per share (the
"Common Stock"), of Corrections Corporation of America, formerly Prison Realty
Trust, Inc., a Maryland corporation (the "Company"). Each Warrant entitles the
Warrantholder, upon exercise at any time and from time to time during the period
from the date of this Warrant through [September __, 2005] (the "Expiration
Date"), to purchase all or a portion of the Warrant Shares at the Exercise
Price, payable in lawful money of the United States of America upon surrender of
this Warrant Certificate and payment of the Exercise Price, all subject to the
terms, conditions and adjustments herein set forth.
Certain capitalized terms used herein and not otherwise defined shall
have the meanings ascribed to them in Section 9 hereto or otherwise those
meanings ascribed to them in the Stock Purchase Agreement.
1. Duration and Exercise of Warrant; Limitations on Exercise; Payment of
Taxes.
1.1 Duration and Exercise of Warrant. Subject to the terms and
conditions set forth herein, the Warrant may be exercised, either in whole or
from time to time in part, at the election of the Warrantholder by:
(a) the surrender of this Warrant to the Company, with a duly executed
Exercise Form (in the form annexed hereto as Exhibit A) specifying that portion
of the Principal Amount to be used
26
to purchase Warrant Shares, during normal business hours on any Business Day
prior to the Expiration Date (as used in this Agreement, "Business Day" shall
mean a day other than a Saturday, Sunday or a day on which banking institutions
in the State of Maryland are required or authorized to close by applicable law,
regulation or executive order); and
(b) the delivery of payment to the Company, for the account of the
Company, by cash, by certified or bank cashier's check or by wire transfer of
immediately available funds in accordance with wire instructions that shall be
provided by the Company upon request, of that portion of the Principal Amount
specified in the Exercise Form in lawful money of the United States of America.
Upon such surrender of the Warrants and payment of the Exercise Price,
the Company shall issue and cause to be delivered with all reasonable dispatch
to, or upon the written order of, the Warrantholder, a certificate or
certificates for the number of full Warrant Shares issuable upon the exercise of
such Warrants. The Company agrees that such Warrant Shares shall be deemed to be
issued to the Warrantholder as the record holder of such Warrant Shares as of
the close of business on the Business Day on which this Warrant shall have been
surrendered and payment made for the Warrant Shares as aforesaid. All Warrant
Certificates surrendered upon exercise of Warrants shall be canceled and
disposed of by the Company.
1.2 Limitations on Exercise. Notwithstanding anything to the contrary
herein, this Warrant may be exercised only upon receipt by the Company of
approval of any applicable Governmental Authority of the proposed exercise. The
Warrantholder shall not be entitled to exercise this Warrant, or any part
thereof, unless and until such approvals, certificates, legal opinions or other
documents are reasonably acceptable to the Company. The cost of such approvals,
certificates, legal opinions and other documents, if required, shall be borne by
the Warrantholder.
1.3 Warrant Shares Certificate. A stock certificate or certificates for
the Warrant Shares purchased by the Warrantholder shall be delivered to the
Warrantholder within five Business Days after receipt of the Exercise Form and
receipt of payment of all or a portion of the Principal Amount, as designated in
the Exercise Form. If this Warrant shall have been exercised only in part, the
Company shall, at the time of delivery of the stock certificate or certificates,
deliver to the Warrantholder a new Warrant evidencing the rights to use the
remaining portion of the Principal Amount to purchase Warrant Shares, which new
Warrant shall in all other respects be identical with this Warrant.
1.4 Payment of Taxes. The issuance of certificates for Warrant Shares
upon the exercise of Warrants shall be made without charge to the Warrantholder
for any documentary stamp or similar stock transfer or other issuance tax in
respect thereto; provided, however, that the Warrantholder shall be required to
pay any and all taxes which may be payable in respect of any transfer involved
in the issuance and delivery of any certificate in a name other than that of the
registered Warrantholder as reflected upon the books of the Company.
2
27
1.5 Divisibility of Warrant; Transfer of Warrant.
(a) Subject to the provisions of this Section, this Warrant may be
divided upon surrender at the office of the Company located at 00 Xxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxx, Xxxxxxxxx 00000, without charge to the Warrantholder.
Subject to the provisions of this Section, upon such division, the Warrants may
be transferred of record as the then-Warrantholder may specify without charge to
such Warrantholder (other than any applicable transfer taxes).
(b) Subject to the provisions of this Section, upon surrender of this
Warrant to the Company with a duly executed Assignment Form (in the form annexed
hereto as Exhibit B) and funds sufficient to pay any transfer tax, the Company
shall, without charge, execute and deliver a new Warrant or Warrants which shall
in all material respects be identical with this Warrant, in the name of the
assignee named in such Assignment Form, and this Warrant shall promptly be
canceled. Prior to any proposed transfer (whether as the result of a division or
otherwise) of this Warrant, such Warrantholder shall give written notice to the
Company of such Warrantholder's intention to effect such transfer. Each such
notice shall describe the manner and circumstances of the proposed transfer in
sufficient detail. The term "Warrant" as used in this Agreement shall be deemed
to include any Warrants issued in substitution or exchange for this Warrant.
2. Reservation and Registration of Shares, etc. The Company covenants
and agrees as follows:
(a) all Warrant Shares which are issued upon the exercise of this
Warrant will, upon issuance, be validly issued, fully paid and nonassessable,
not subject to any preemptive rights, and free from all taxes, liens, security
interests, charges and other encumbrances with respect to the issue thereof,
other than taxes with respect to any transfer occurring contemporaneously with
such issue;
(b) during the period within which this Warrant may be exercised, the
Company will at all times have authorized and reserved, and keep available, free
from preemptive rights, out of the aggregate of its authorized but unissued
Common Stock, for the purpose of enabling it to satisfy any obligation to issue
Warrant Shares upon exercise of Warrants, the maximum number of shares of Common
Stock which may then be deliverable upon the exercise of all outstanding
Warrants; and
(c) the Company will use its reasonable best efforts to obtain all such
authorizations, exemptions or consents from any public regulatory body having
jurisdiction thereof as may be necessary to enable the Company to perform its
obligations under this Warrant.
(d) prior to the Expiration Date, the Company shall use its reasonable
best efforts to (i) maintain an effective registration statement covering the
shares of Common Stock of the Company which may then be issuable upon exercise
of all outstanding Warrants and, if necessary, amend and supplement the same and
(ii) make all filings required to obtain all Blue Sky exemptions,
authorizations, consents or approvals required for the issuance of shares of
Common Stock upon exercise of all outstanding Warrants.
3
28
3. Obtaining Stock Exchange Listings. The Company will from time to time
take all action which may be necessary so that the Warrant Shares, immediately
upon their issuance upon the exercise of Warrants, will be listed on the
principal securities exchanges and markets within the United States of America,
if any, on which other shares of Common Stock are listed.
4. Loss or Destruction of Warrant. Subject to the terms and conditions
hereof, upon receipt by the Company of evidence reasonably satisfactory to it of
the loss, theft, destruction or mutilation of this Warrant and, in the case of
loss, theft or destruction, of such bond or indemnification as the Company may
reasonably require, and, in the case of such mutilation, upon surrender and
cancellation of this Warrant, the Company will execute and deliver a new Warrant
of like tenor.
5. Ownership of Warrant. The Company may deem and treat the
Warrantholder as the holder and owner hereof (notwithstanding any notations of
ownership or writing hereon made by anyone other than the Company) for all
purposes and shall not be affected by any notice to the contrary, until
presentation of this Warrant for registration of transfer.
6. Amendments. Any provision of this Warrant may be amended and the
observance thereof may be waived (either generally or in a particular instance
and either retroactively or prospectively), only with the written consent or
approval of the Company and the Warrantholder. Any amendment or waiver effected
in accordance with this Section 6 shall be binding upon the Warrantholder and
the Company.
7. Adjustments to Exercise Price.
7.1 Certain Adjustments. Following the date of determination of the
Exercise Price in accordance with the provisions of Section 9 of this Agreement,
the Exercise Price shall be subject to adjustment from time to time as follows:
(a) Treatment of Stock Dividends, Stock Splits, etc. In case the Company
shall declare a dividend, or make a distribution, on the outstanding shares of
Common Stock, in either case, in shares of Common Stock, or effect a
subdivision, combination, share exchange or consolidation or reclassification of
the outstanding shares of Common Stock into a greater or lesser number of shares
of Common Stock, then, and in each such case, the Exercise Price in effect
immediately prior to such event or the record date therefor, whichever is
earlier, shall be adjusted by multiplying such Exercise Price by a fraction, the
numerator of which is the number of shares of Common Stock that were outstanding
immediately prior to such event and the denominator of which is the number of
shares of Common Stock outstanding immediately after such event. An adjustment
made pursuant to this Section 7.1(a) shall become effective: (i) in the case of
any such dividend or distribution, immediately after the close of business on
the record date for the determination of holders of shares of Common Stock
entitled to receive such dividend or distribution; or (ii) in the case of any
such subdivision, reclassification, consolidation or combination, at the close
of business on the day upon which such corporate action becomes effective.
4
29
(b) Certain Federal Income Tax Adjustments. In addition to the
adjustments in Section 7.1(a) above, the Company will be permitted to make such
reductions in the Exercise Price as it considers to be advisable in order that
any event treated for Federal income tax purposes as a dividend of stock or
stock rights will not be taxable to the holders of the shares of Common Stock.
(c) Minimum Adjustment of Exercise Price. If the amount of any
adjustment of the Exercise Price required pursuant to this Section 7 would be
less than one percent (1%) of the Exercise Price in effect at the time such
adjustment is otherwise so required to be made, such amount shall be carried
forward and adjustment with respect thereto made at the time of and together
with any subsequent adjustment which, together with such amount and any other
amount or amounts so carried forward, shall aggregate at least one percent (1%)
of such Exercise Price; provided that, upon the exercise of any Warrant or
Warrants, all adjustments carried forward and not theretofore made, up to and
including the date of such exercise shall, with respect to the Warrant or
Warrants then converted, be made to the nearest .001 of a cent.
7.2 Distributions to all Holders of Common Stock. If the Company shall,
at any time after the date of issuance of this Warrant, fix a record date to
distribute to all holders of its Common Stock any shares of capital stock of the
Company (other than Common Stock) or evidences of its indebtedness or assets
(not including regular quarterly cash dividends or distributions paid from
retained earnings of the Company) or rights or warrants to subscribe for or
purchase any of its securities [(provided, however, that (i) the distribution of
the Company's Series B Preferred Stock to the existing holders of the Company's
Common Stock and (ii) the issuance of rights to purchase shares of the Company's
Common Stock to existing holders of the Company's Common Stock shall not
constitute such a distribution giving rise to adjustment under this Section
7.2)], then the Warrantholder shall be entitled to receive, upon exercise of
this Warrant, that portion of such distribution to which it would have been
entitled had the Warrantholder exercised its Warrant immediately prior to the
date of such distribution. At the time it fixes the record date for such
distribution, the Company shall allocate sufficient reserves to ensure the
timely and full performance of the provisions of this subsection. The Company
shall promptly (but in any case no later than five Business Days prior to the
record date of such distribution) give notice to the Warrantholder that such
distribution will take place.
7.3 Changes in Capital Stock. In case at any time the Company shall be a
party to any transaction (including, without limitation, a merger,
consolidation, sale of all or substantially all of the Company's assets,
liquidation or recapitalization of the capital stock) in which the previously
outstanding capital stock shall be changed into or exchanged for different
securities of the Company or common stock or other securities of another
corporation or interest in a non-corporate entity or other property (including
cash) or any combination of any of the foregoing or in which the Common Stock,
if then so listed or traded, ceases to be a publicly traded security either
listed on the New York Stock Exchange or the American Stock Exchange or quoted
by the NASDAQ National Market System or any successor thereto or comparable
system (each such transaction being herein called the "Transaction," the date of
consummation of the Transaction being herein called the "Consummation Date"),
then, as a condition of the consummation of the Transaction, lawful and
5
30
adequate provisions shall be made so that each holder of Warrants, upon the
exercise thereof at any time on or after the Consummation Date, shall be
entitled to receive, and such Warrants shall thereafter represent the right to
receive, in lieu of the Common Stock issuable upon such exercise prior to the
Consummation Date, the highest amount of securities or other property to which
such holder would actually have been entitled as a shareholder upon the
consummation of the Transaction if such holder had exercised such Warrants
immediately prior thereto (subject to adjustments from and after the
Consummation Date as nearly equivalent as possible to the adjustment provided
for in this Section 7).
7.4 Prohibited Transactions. Notwithstanding anything contained herein
to the contrary, the Company shall not effect any Transaction unless prior to
the consummation thereof each corporation or entity (other than the Company)
which may be required to deliver any securities or other property upon the
exercise of the Warrant, the surrender of Warrants or the satisfaction of
exercise rights as provided herein shall assume, by written instrument delivered
to the holder of the Warrants, the obligation to deliver to such holder such
securities or other property to which, in accordance with the foregoing
provisions, such holder may be entitled, and such corporation or entity shall
have similarly delivered to the holder of the Warrant appropriate notice of the
changes made in the rights attaching to the Warrants as a result of such
Transaction, including, without limitation, the exercise provisions applicable
thereto, if any, which shall thereafter continue in full force and effect and
shall be enforceable against such corporation or entity in accordance with the
terms hereof and thereof, together with such other matters as such holders may
reasonably request.
7.5 Notice of Adjustment. Upon the occurrence of any event requiring an
adjustment of the Exercise Price, then and in each such case the Company shall
promptly deliver to each holder of the Warrants an Officer's Certificate stating
the Exercise Price resulting from such adjustment and the increase or decrease,
if any, in the number of shares of Common Stock issuable upon exercise of the
Warrants, setting forth in reasonable detail the method of calculation and the
facts upon which such calculation is based.
7.6 Effect of Failure to Notify. Failure to file any certificate or
notice or to give any notice, or any defect in any certificate or notice,
pursuant to Section 7.5 shall not affect the legality or validity of the
adjustment to the Exercise Price, the number of shares purchasable upon exercise
of this Warrant, or any transaction giving rise thereto.
8. Expiration of the Warrant. The obligations of the Company pursuant to
this Warrant shall terminate on the Expiration Date.
9. Definitions.
As used herein, unless the context otherwise requires, the following
terms have the following respective meanings:
6
31
"Exercise Price" shall mean an exercise price per share of Common Stock
which shall be equal to the lesser of (a) $3.4375, the closing price of shares
of Prison Realty Common Stock on the NYSE on Friday, June 23, 2000, (b) the
average closing price of Prison Realty Common Stock on the NYSE over the five
trading days ending two trading days prior to the closing of the Merger, (c) the
conversion price of any of Prison Realty's secured or unsecured indebtedness
existing prior to the Merger, and (d) the exercise price of any equity
securities issued by Prison Realty prior to the Merger in satisfaction of its
existing contractual obligations, as the Exercise Price may be adjusted from
time to time pursuant to the provisions of Section 7.
"Governmental Authority" shall mean the government of any nation, state,
city, locality or other political subdivision of any thereof, and any entity
exercising executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government having or asserting jurisdiction over a
Person, its business or its properties.
"Merger" shall have the meaning set forth in the preamble to the Stock
Purchase Agreement.
"Person" shall mean any individual, firm, company, partnership, limited
liability company, trust, incorporated or unincorporated association, joint
venture, joint stock company, Governmental Authority or other entity of any
kind.
"Principal Amount" shall mean $1,000,000.
"Warrant Shares" shall mean that number of shares of Common Stock which
results from the quotient obtained by dividing (i) the Principal Amount, less
any portion of the Principal Amount previously converted into Warrant Shares
pursuant to this Warrant, by (ii) the Exercise Price.
"Stock Purchase Agreement" shall mean that certain Stock Purchase
Agreement, dated as of June __, 2000, by and among Prison Realty Trust, Inc., a
Maryland corporation; Corrections Corporation of America, a Tennessee
corporation formerly known as Correctional Management Services Corporation; and
Baron Asset Fund, a Massachusetts business trust, and all series thereof, on
behalf of itself and one or more mutual funds managed by it, or its affiliates.
10. No Impairment. The Company shall not by any action, including,
without limitation, amending the Articles of Incorporation of the Company or
through any reorganization, transfer of assets, consolidation, merger,
dissolution, issue or sale of securities or any other voluntary action, avoid or
seek to avoid the observance or performance of any of the terms of this Warrant,
but will at all times in good faith assist in the carrying out of all such terms
and in the taking of all such reasonable actions as may be necessary or
appropriate to protect the rights of the Warrantholder against impairment.
Without limiting the generality of the foregoing, the Company shall (a) take all
such actions as may be necessary or appropriate in order that the Company may
validly and legally issue fully paid and nonassessable shares of Common Stock
upon the exercise of this Warrant, and (b) provide reasonable assistance to the
Warrantholder in obtaining all authorizations, exemptions
7
32
or consents from any Governmental Authority which may be necessary in connection
with the exercise of this Warrant.
11. Miscellaneous.
11.1 Entire Agreement. This Warrant constitutes the entire agreement
between the Company and the Warrantholder with respect to the Warrants.
11.2 Binding Effects; Benefits. This Warrant shall inure to the benefit
of and shall be binding upon the Company and the Warrantholder and its
respective heirs, legal representatives, successors and assigns. Nothing in this
Warrant, expressed or implied, is intended to or shall confer on any Person
other than the Company and the Warrantholder, or its respective heirs, legal
representatives, successors or assigns, any rights, remedies, obligations or
liabilities under or by reason of this Warrant.
11.3 Section and Other Headings. The section and other headings
contained in this Warrant are for reference purposes only and shall not be
deemed to be a part of this Warrant or to affect the meaning or interpretation
of this Warrant.
11.4 Further Assurances. Each of the Company and the Warrantholder shall
do and perform all such further acts and things and execute and deliver all such
other certificates, instruments and documents as the Company or the
Warrantholder may, at any time and from time to time, reasonably request in
connection with the performance of any of the provisions of this Warrant.
11.5 Notices. All notices and other communications required or permitted
to be given under this Warrant shall be in writing and shall be deemed to have
been duly given if (i) delivered personally or (ii) sent by facsimile or
recognized overnight courier or by United States first class certified mail,
postage prepaid, to the parties hereto at the following addresses or to such
other address as any party hereto shall hereafter specify by notice to the other
party hereto:
8
33
if to the Company, addressed to:
Corrections Corporation of America
00 Xxxxxx Xxxxx Xxxxxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Attention: Chief Financial Officer or Secretary
Fax Number: (000) 000-0000
with a copy to:
Xxxxxx & Xxxxxxxxxxx, P.A.
000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxx, Xxxxxxxxx 00000
Attention: Xxxxxxxxx X. Xxxxx, Esq.
Fax Number: (000) 000-0000
if to the Warrantholder, addressed to:
Baron Capital Group, Inc.
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxxxxxx, Esq.
Except as otherwise provided herein, all such notices and communications
shall be deemed to have been received (a) on the date of delivery thereof, if
delivered personally or sent by facsimile, (b) on the second Business Day
following delivery into the custody of an overnight courier service, if sent by
overnight courier, provided that such delivery is made before such courier's
deadline for next-day delivery, or (c) on the third Business Day after the
mailing thereof.
11.6 Separability. Any term or provision of this Warrant which is
invalid or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable the terms and provisions of this Warrant or
affecting the validity or enforceability of any of the terms or provisions of
this Warrant in any other jurisdiction.
11.7 Governing Law. THIS WARRANT SHALL BE DEEMED TO BE A CONTRACT MADE
UNDER THE LAWS OF THE STATE OF MARYLAND AND FOR ALL PURPOSES SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF SUCH STATE APPLICABLE TO SUCH
AGREEMENTS MADE AND TO BE PERFORMED ENTIRELY WITHIN SUCH STATE.
11.8 No Rights or Liabilities as Stockholder. Nothing contained in this
Warrant shall be deemed to confer upon the Warrantholder any rights as a
stockholder of the Company or as imposing
9
34
any liabilities on the Warrantholder to purchase any securities whether such
liabilities are asserted by the Company or by creditors or stockholders of the
Company or otherwise.
[Signature Page to Follow]
10
35
IN WITNESS WHEREOF, the Company has caused this Warrant to be signed by
its duly authorized officer.
CORRECTIONS CORPORATION OF AMERICA
By:
--------------------------------------
ATTEST:
By:
------------------------------------
11
36
EXHIBIT A
EXERCISE FORM
(To be executed upon exercise of this Warrant)
The undersigned hereby irrevocably elects to exercise the right,
represented by this Warrant, to use $_________ of the Principal Amount (as such
term is defined in the Warrant) to purchase shares of Common Stock and herewith
tenders payment for such Common Stock to the order of Corrections Corporation of
America in the amount of $__________, which amount includes payment of the par
value for such shares of the Common Stock, in accordance with the terms of this
Warrant. The undersigned requests that a certificate for such shares of Common
Stock be registered in the name of __________________ and that such certificates
be delivered to __________________ whose address is __________________________.
Dated:
--------------------
Signature
-------------------------------------
-------------------------------------
(Print Name)
-------------------------------------
(Street Address)
-------------------------------------
(City) (State) (Zip Code)
Signed in the Presence of:
--------------------------
37
EXHIBIT B
FORM OF ASSIGNMENT
(To be executed only upon transfer of this Warrant)
For value received, the undersigned registered holder of the within
Warrant hereby sells, assigns and transfers unto ______________________ the
right represented by such Warrant to use $_______ of the Principal Amount (as
such term is defined in the Warrant) to purchase shares of Common Stock of
Corrections Corporation of America to which such Warrant relates and all other
rights of the Warrantholder under the within Warrant, and appoints
______________________ Attorney to make such transfer on the books of
Corrections Corporation of America maintained for such purpose, with full power
of substitution in the premises. This sale, assignment and transfer has been
previously approved in writing by Corrections Corporation of America.
Dated:
--------------------
Signature
-------------------------------------
-------------------------------------
(Print Name)
-------------------------------------
(Street Address)
-------------------------------------
(City) (State) (Zip Code)
Signed in the Presence of:
--------------------------
