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EXHIBIT 10.165
OPTION AGREEMENT
THIS OPTION AGREEMENT is made and entered into as of December 31, 1996,
by and between Corrections Corporation of America, a Delaware corporation having
its principal place of business in Nashville, Tennessee ("CCA"), Corrections
Corporation of America (U.K.) Limited, a company incorporated in England and
Wales whose registered number is 2147489 and whose registered office is at 9
Cheapside, London ECZC 6AD ("CCAUK") and Sodexho S.A., a French societe anonyme,
or its designee ("Sodexho").
W I T N E S S E T H:
WHEREAS, CCAUK is a wholly-owned subsidiary of CCA, and currently owns
5000 "A" Ordinary Shares, 5000 "B" Ordinary Shares and 5,000 "C" Ordinary Shares
in the capital of U.K. Detention Services Limited, a company incorporated in
England and Wales ("UKDS") whose registered number is 2147491 and whose
registered office is 00 Xxxxxxx Xxxxxx, Xxxxxx, XXXX 0XX (xxx "Company") which
shares collectively represent one hundred percent (100%) percent of the issued
share capital of the Company; and
WHEREAS, on even date herewith Buyer acquired from CCAUK, and CCAUK
sold to Buyer, 3,000 "C" Ordinary Shares in the capital of the Company owned by
CCAUK which shares collectively represent twenty percent (20%) of the issued
shares of the Company pursuant to that certain Purchase Agreement by and among
CCA, CCAUK and Sodexho.
WHEREAS, CCA, CCAUK and Sodexho have agreed that in consideration of
the acquisition by Sodexho of the shares referred to above, CCA, CCAUK will
grant Sodexho an option to purchase an additional 2,000 "C" Ordinary Shares and
2,500 "B" Ordinary Shares (the "Shares") of the capital stock of the Company
which shares represent thirty percent (30%) of the outstanding shares of the
Company, under the terms and conditions set forth herein.
NOW, THEREFORE, for and in consideration of the premises and the mutual
promises, covenants, agreements, and conditions in this Agreement, and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, CCA, CCAUK and Sodexho hereby agree as follows:
1. Grant of Option. Subject to the terms and conditions of this
Agreement and in reliance upon the representations, warranties, covenants, and
agreements contained herein, CCA and CCAUK hereby grant to Sodexho the option to
purchase all, but not less than all, of the Shares (the "Option").
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2. Purchase Price of Shares. The purchase price of the Shares shall be
One Million Five Hundred Thousand Pounds ((pound)1,500,000). The purchase price
shall be payable by bank wire transfer or such other form of payment as may be
acceptable to CCA and CCAUK.
3. Term. Subject to the terms and conditions of this Agreement,
including, without limitation, Section 8 hereof, the Option shall be exercisable
by Sodexho on or before 11:59 p.m., Nashville, Tennessee time, on June 30, 1997,
after which such right shall terminate. Provided, however, that in the event the
Company is not notified on or before May 31, 1997 as to the renewal and/or
extension by the Secretary of State for the Home Department (the "Authority") of
that certain agreement dated December 3, 1992 by and between the Company and the
Authority, the term of the Option shall be extended until the date which is
thirty (30) days after the date of receipt of notice of renewal and/or extension
or such later date as agreed in writing by the parties hereto.
4. Exercise of Option; Closing. Subject to the terms and conditions of
this Agreement, the Option shall be exercised by Sodexho with respect to all,
but not less than all, of the Shares by giving notice of exercise to CCA or
CCAUK in accordance with Section 9 of this Agreement. Delivery of the Shares and
payment therefor (the "Closing") shall take place at the offices of CCA,
Nashville, Tennessee, at 10:00 a.m., Nashville, Tennessee time, on the tenth
Business Day, as hereinafter defined, following the date such notice of exercise
is given, or at such other date, time, and/or place as CCAUK and Sodexho may
mutually agree. As used in this Agreement, "Business Day" means any Monday,
Tuesday, Wednesday, Thursday, or Friday on which banking institutions in the
City of Nashville, Tennessee are not authorized or obligated by law or executive
order to close.
5. Representations and Warranties of Sodexho. Recognizing that each of
CCA and CCAUK will be relying on the information and on the representations and
warranties set forth herein, Sodexho hereby acknowledges, represents, and
warrants to CCA and CCAUK as follows:
(a) Sodexho has full power and authority to execute, enter into,
and perform this Agreement and all agreements, instruments, and documents
contemplated hereby and to carry out the transactions contemplated hereby. This
Agreement is a valid and binding obligation of Sodexho, enforceable against it
in accordance with its terms, subject to the limitations imposed by bankruptcy,
insolvency, moratorium, or similar laws or provisions of general application,
and to availability of equitable remedies (whether enforcement is sought in a
court of law or equity).
(b) Sodexho is the sole party in interest in acquiring the Option
and if the Option is exercised, will be acquiring the Shares solely for its own
investment and not with a view to the resale or distribution thereof. Sodexho
has no present or contemplated agreement, understanding, intent, arrangement, or
commitment providing for or which is likely to compel the transfer, pledge,
sale, or disposition of the Shares. Sodexho will not attempt to sell, transfer,
convey, or otherwise dispose of all or any part of the Shares except in
accordance with applicable law.
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(c) Neither the execution and delivery of this Agreement nor the
carrying out of any of the transactions contemplated hereby or thereby, will in
any material respect contravene, violate, or result in the breach of, any
agreement or instrument to which Sodexho is a party or by which it is bound, or
of any law or governmental order, rule, or regulation which is applicable to
Sodexho or will result in the creation or imposition of any security interest,
mortgage, lien, encumbrance, or charge upon any of the properties or assets of
Sodexho. No consents or approvals of any persons or entities, governmental or
otherwise, are required which have not been obtained in respect of the execution
and delivery of this Agreement and the carrying out of the transactions
contemplated hereby or thereby on the part of Sodexho.
(d) Sodexho understands and agrees that the Shares have not
been registered under the securities laws of any jurisdiction. Sodexho further
understands and agrees that the Option and any exercise thereof must comply with
all applicable securities laws, as such laws exist on such dates that the Option
may be exercised. Sodexho also understands and agrees that the Option may never
be exercisable if compliance with such securities laws may not be achieved.
(e) Sodexho understands and agrees that CCA and CCAUK will
rely upon the representations made in this Agreement and related documents and
CCA and CCAUK are fully entitled to rely upon each and all of the same without
further inquiry.
6. Representations and Warranties of CCA and CCAUK. Recognizing that
Sodexho will be relying on the information and on the representations and
warranties set forth herein, CCA and CCAUK hereby acknowledge, represent, and
warrant to Sodexho as follows:
(a) Each of CCA and CCAUK has full power and authority to
execute, deliver, enter into, and perform this Agreement and all agreements,
instruments, and documents contemplated hereby and to carry out the transactions
contemplated thereby. This Agreement is a valid and binding obligation of each
of CCA and CCAUK, enforceable against each in accordance with its terms, subject
to the limitations imposed by bankruptcy, insolvency, moratorium, or similar
laws or provisions of general application, and to the availability of equitable
remedies (whether enforcement is sought in a court of law or equity).
(b) CCAUK is the sole owner of the Shares, free and clear of
any liens, claims, encumbrances, and charges, and has full power to sell,
transfer, and convey the same to Sodexho.
(c) Neither the execution and delivery of this Agreement, nor
the carrying out of any of the transactions contemplated hereby, will in any
material respect result in any violation of or be in conflict with any term of
any material agreement or instrument to which either CCA or CCAUK is a party or
by which either is bound, or of any law or governmental order, rule, or
regulation which is applicable to either of CCA or CCAUK or will result in the
creation or imposition of any security interest, mortgage, lien, encumbrance, or
charge upon any of the properties or assets of CCA or CCAUK. No consents or
approvals of any persons or entities, governmental or otherwise, are required
which have not been obtained in respect of the execution and delivery of this
Agreement or
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the Shares and the carrying out of the transactions contemplated hereby on the
part of CCA or CCAUK.
(d) The representations, warranties, and agreements of CCA and
CCAUK contained herein shall survive the execution and delivery of this
Agreement and the purchase of the Shares by Sodexho.
7. Assignment. Neither the Option nor any interest therein may be
transferred, assigned, pledged, hypothecated, or otherwise conveyed, except with
the prior written consent of CCA and/or CCAUK.
8. Conditions to Closing. (a) The obligations of CCA and CCAUK to
consummate the transactions contemplated by this Agreement are subject to the
conditions that the representations and warranties set forth in Section 5 hereof
and in Section 5 of the Purchase Agreement are true and correct on and as of the
date hereof and shall be true and correct on and as of the date of Closing and
that Sodexho shall have complied with all covenants and agreements and satisfied
all conditions on its part to be performed or satisfied prior to the Closing,
and CCA or CCAUK may request a certificate to that effect, dated as of the date
of Closing, signed by Sodexho.
(b) The obligations of Sodexho to consummate the transactions
contemplated by this Agreement are subject to the conditions that the
representations and warranties set forth in Section 6 hereof and in Section 4 of
the Purchase Agreement are true and correct on and as of the date hereof and
shall be true and correct as of the date of Closing, and that CCA and CCAUK
shall have complied with all covenants and agreements and satisfied all
conditions on their part to be performed or satisfied prior to Closing, and
Sodexho may request a certificate to that effect, dated as of the date of
Closing, signed by each of CCA and CCAUK.
9. Notices. Any notice required or permitted to be sent hereunder shall
be mailed, certified mail, return receipt requested, postage prepaid, or
delivered by overnight courier service, or by telex or facsimile transmission,
to the following addresses, or such other address as either party hereto
designates by written notice to the other party and shall be deemed to have been
given upon delivery, three (3) days after mailing, if mailed, or one (1)
Business Day after delivery to the courier if delivered by overnight courier
service or after transmission, if sent by telex or facsimile transmission:
If to CCAUK to:
Corrections Corporation of America (U.K.) Limited
Xxxxx 000
000 Xxxxxxxx Xxxxxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Attn: Gay Xxxx
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If to CCA to:
Corrections Corporation of America
Suite 800
000 Xxxxxxxx Xxxxxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Attn: Doctor X. Xxxxxx
If to Sodexho to:
Sodexho S.A.
0 xxxxxx Xxxxxx
00000 Xxxxxxxx-xx-Xxxxxxxxxx
XXXXXX
Attn: Xxxx-Xxxxxx Cuny
10. Severability. The invalidity or unenforceability of any provision
of this Agreement shall not affect the validity or enforceability of any other
term or provision hereof, and this Agreement in such event shall be construed in
all respects as if any invalid or unenforceable provisions were not included in
this Agreement.
11. Governing Law. This Agreement shall be governed by and be
interpreted under the laws of England without regard to the conflicts of law
principles thereof. Each party hereby irrevocably submits to the non-exclusive
jurisdiction of the English courts over any action or proceeding to enforce any
right under this Agreement. The parties further acknowledge that irrevocable
damage would occur in the event that any of the provisions of this Agreement
were not performed in accordance with their specific terms or were otherwise
breached. Accordingly, the parties shall be entitled to an injunction to prevent
breaches of the provisions of this Agreement and to enforce specifically the
terms and provisions hereof in any English court. This being in addition to any
other remedy to which they may be entitled at law or equity.
12. Board of Directors. Each of CCAUK and Sodexho acknowledge and agree
that Sodexho shall be entitled to one nominee to the Board of Directors of the
Company and CCAUK shall be entitled to the remainder of the director nominees.
In the event of the exercise of the Option by Sodexho, each shareholder shall
have be entitled to an equal number of nominees to the Board of Directors. In
the event of the exercise of the Option by Sodexho, each shareholder further
agrees (i) that in all elections of directors during the term of this Agreement,
such shareholder shall vote all shares owned by it for the nominees of the other
shareholders and (ii) that any change in the number of directors shall require
the unanimous written consent of all shareholders.
13. Entire Agreement. This Agreement constitutes the entire agreement
and supersedes all prior agreements and understandings, both written and oral,
between the parties with respect to the subject matter hereof.
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14. Amendment. No change or modification of this Agreement shall be
valid unless the same is in writing and signed by the parties to this Agreement.
This Agreement may be terminated at any time by an instrument in writing signed
by the parties to this Agreement.
15. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original.
16. Section Headings. The section headings are for reference only and
shall not limit or control the meaning of any provision of this Agreement.
17. Waiver. No delay or omission on the part of either party hereto in
exercising any right hereunder shall operate as a waiver of such right or any
other right under this Agreement; however, any of the terms or conditions of
this Agreement may be waived in writing at any time by the party hereto which is
entitled to the benefit thereof.
[Signature Page to Follow]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
CORRECTIONS CORPORATION OF AMERICA (U.K.)
LIMITED
By: /s/
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Title:
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CORRECTIONS CORPORATION OF AMERICA
By: /s/
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Title:
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SODEXHO S.A.
By: /s/
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Title:
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