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EXHIBIT 10.1
FIRST AMENDMENT TO SECURITIES PURCHASE AGREEMENT
This FIRST AMENDMENT (the "First Amendment") to that certain Securities
Purchase Agreement (the "Agreement"), dated as of December 26, 1999, by and
among Prison Realty Trust, Inc., a Maryland corporation ("Prison Realty"),
Corrections Corporation of America, a Tennessee corporation ("CCA"), Prison
Management Services, Inc., a Tennessee corporation ("PMSI"), and Juvenile and
Jail Facility Management Services, Inc., a Tennessee corporation ("JJFMSI")
(Prison Realty, CCA, PMSI and JJFMSI are collectively referred to herein as the
"Companies"), on the one hand, and Prison Acquisition Company L.L.C., a Delaware
limited liability company ("Prison Acquisition Company L.L.C."), on the other
hand, is dated as of February 28, 2000.
WITNESSETH:
WHEREAS, subsequent to the execution and delivery of the
Agreement the parties thereto identified certain provisions that are ambiguous
in terms of their actual application, as well as a typographical error;
WHEREAS, the Companies and Prison Acquisition Company L.L.C. are
agreeable to clarifying such ambiguities as described below; and
WHEREAS, both the Companies and Prison Acquisition Company L.L.C.
agree that such typographical error should be corrected as described below.
NOW, THEREFORE, in consideration of the mutual covenants,
agreements, representation and warranties contained herein, and for other good
and valuable consideration, the receipt of which is hereby acknowledged, the
parties hereto hereby agree as follows:
1. The last sentence of Section 7.6(b) is amended to read in its
entirety as follows:
Notwithstanding the foregoing, none of the Companies will be
precluded from providing information to, or discussing,
negotiating and, subject to Section 7.6(c), executing agreements
with, any person or entity that makes a written proposal pursuant
to which such other person or entity would (i) make a significant
equity investment in one or more of the Companies, (ii) acquire
all or a substantial portion of the assets of one or more of the
Companies or (iii) acquire one or more of the Companies, if and
to the extent that its Board of Directors reasonably determines
in good faith (after consultation with outside counsel) that they
are required to authorize such actions by their fiduciary duties.
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2. Section 7.6(c) of the Agreement is amended and restated in its
entirety as follows:
At such time as the Board of Directors of any of the Companies has
determined in good faith, after consultation with its financial,
accounting and legal advisors, that such company is prepared to
terminate this Agreement pursuant to Section 10.1(e) and enter into a
definitive agreement with respect to a Competing Transaction, the
Companies shall, prior to terminating and entering into such
definitive agreement with respect to such Competing Transaction, send
a written notice to the Investors attaching a copy of the definitive
written agreement relating to such Competing Transaction (together
with all related exhibits and schedules), together with a copy of
such definitive agreement revised appropriately for the purpose of
execution by the Investors, which copy shall be executed by the
Companies. Upon receipt of the notice and such executed definitive
written agreement, the Investors shall have the right to match the
terms and conditions of such Competing Transaction for five business
days commencing on the day following the date of receipt and ending
at midnight on the fifth business day by delivering written notice to
the Companies to such effect, together with a copy of the definitive
agreement executed by Prison Acquisition Company L.L.C. If the
Investors deliver such notice and executed definitive agreement to
the Companies within the prescribed time period, the Companies shall
cease discussions with any outside parties in accordance with the
provisions of Section 7.6(a) hereof and this Agreement shall be
deemed to have been terminated pursuant to Section 10.1(a) hereof. If
the Investors do not deliver such written notice and executed
definitive agreement within the prescribed time period, or advise the
Companies that they do not intend to exercise their right to match
the terms of the Competing Transaction, then, subject to Section
7.6(d) hereof, the Companies shall be free to enter into the
definitive agreement relating to such Competing Transaction in the
form previously delivered to the Investors.
3. The last paragraph of Section 10.1 is amended to read in its entirety
as follows:
In the event that this Agreement shall be terminated pursuant to
Article X, all further obligations of the parties under this
Agreement, other than the obligations set forth in Section 7.3,
Section 7.6(d) and Article XII, shall be terminated without further
liability of any party to any other party, provided that nothing
herein shall relieve any party from liability for its willful breach
of this Agreement.
4. Section 10.1(e) is amended to read in its entirety as follows:
by the Companies (subject to the Companies' compliance with Section
7.6(c)) or the Investors if the Board of Directors of any of the
Companies determine to recommend or enter into a Third-Party
Agreement;
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5. Miscellaneous.
(a) Authorization. Each party to this First Amendment hereby
represents and warrants that the execution, delivery and performance of this
First Amendment are within the powers of each party and have been duly
authorized by the party, the execution and performance of this First Amendment
by each party have been duly authorized by all applicable laws and regulations,
and this First Amendment constitutes the valid and enforceable obligation of
each party in accordance with its terms.
(b) Effect of First Amendment. Each party acknowledges that this
First Amendment constitutes a written instrument as contemplated by Section 12.4
of the Agreement. Except as modified or amended herein, all terms and provisions
of the Agreement shall continue and remain in full force and effect.
(c) Counterparts. This First Amendment 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 shall together constitute one instrument.
(d) Titles and Subtitles. The titles and subtitles used in this
First Amendment are used for convenience only and are not to be considered in
construing or interpreting this First Amendment.
(e) Governing Law. This First Amendment shall be construed in
accordance with the laws of the State of Maryland without giving effect to
conflicts of laws principles thereof.
(f) Severability. Should any part of this First Amendment be
invalid or unenforceable, such invalidity or unenforceability shall not affect
the validity and enforceability of the remaining portion.
(g) Entire Agreement. This First Amendment constitutes the entire
agreement of the parties hereto and supersedes all prior agreements and
presentations with respect to the subject matter hereof.
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IN WITNESS WHEREOF, each of the undersigned has caused this First
Amendment to be executed as of the date first above written.
COMPANIES:
PRISON REALTY TRUST, INC.
By: /s/ DOCTOR X. XXXXXX
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Name: Doctor X. Xxxxxx
Title: Chief Executive Officer
CORRECTIONS CORPORATION OF AMERICA
By: /s/ DOCTOR X. XXXXXX
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Name: Doctor X. Xxxxxx
Title: Chief Executive Officer
PRISON MANAGEMENT SERVICES, INC.
By: /s/ XXXXXXX X. XXXXXXXXXX
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Name: Xxxxxxx X. Xxxxxxxxxx
Title: Chief Executive Officer
JUVENILE AND JAIL FACILITY MANAGEMENT
SERVICES, INC.
By: /s/ XXXXXXX X. XXXXXXXXXX
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Name: Xxxxxxx X. Xxxxxxxxxx
Title: Chief Executive Officer
PRISON ACQUISITION COMPANY L.L.C.
By: /s/ XXXX X. XXXX
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Name: Xxxx X. Xxxx
Title:
By: /s/ XXXXXXX X. XXXXXXX
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Name: Xxxxxxx X. Xxxxxxx
Title:
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