Exhibit III
SHARE PURCHASE AGREEMENT
dated as of
April 30, 2003
among
THE WACKENHUT CORPORATION,
TUHNEKCAW, INC.,
GROUP 4 XXXXX A/S,
and
WACKENHUT CORRECTIONS CORPORATION
relating to the purchase and sale
of
Common Stock
of
WACKENHUT CORRECTIONS CORPORATION
TABLE OF CONTENTS
PAGE
ARTICLE 1
DEFINITIONS
SECTION 1.01. DEFINITIONS...................................................1
ARTICLE 2
PURCHASE AND SALE
SECTION 2.01. PURCHASE AND SALE.............................................4
SECTION 2.02. CLOSING.......................................................4
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF THE SELLERS
SECTION 3.01. CORPORATE EXISTENCE AND POWER.................................5
SECTION 3.02. OWNERSHIP OF SHARES...........................................5
SECTION 3.03. AUTHORIZATION; NO BREACH......................................5
SECTION 3.04. NO OTHER AGREEMENTS...........................................6
SECTION 3.05. FINDER'S FEES.................................................6
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
SECTION 4.01. CORPORATE EXISTENCE AND POWER.................................6
SECTION 4.02. AUTHORIZATION; NO BREACH......................................6
SECTION 4.03. FINANCING.....................................................7
SECTION 4.04. FINDERS' FEES.................................................7
ARTICLE 5
CERTAIN COVENANTS OF THE PARTIES
SECTION 5.01. REASONABLE BEST EFFORTS.......................................8
SECTION 5.02. PUBLIC ANNOUNCEMENTS..........................................8
SECTION 5.03. TERMINATION OF CERTAIN AGREEMENTS.............................8
ARTICLE 6
STANDSTILL
SECTION 6.01. ACQUISITION OF VOTING SECURITIES.............................10
SECTION 6.02. CERTAIN ACTIONS..............................................10
SECTION 6.03. TERMINATION OF STANDSTILL PROVISIONS.........................11
i
ARTICLE 7
CONDITIONS TO CLOSING
SECTION 7.01. CONDITIONS TO OBLIGATIONS OF EACH PARTY......................12
SECTION 7.02. CONDITIONS TO OBLIGATION OF THE PURCHASER....................12
SECTION 7.03. CONDITION TO OBLIGATION OF THE SELLERS.......................13
ARTICLE 8
SURVIVAL; INDEMNIFICATION
SECTION 8.01. SURVIVAL.....................................................13
SECTION 8.02. INDEMNIFICATION..............................................14
ARTICLE 9
TERMINATION
SECTION 9.01. TERMINATION..................................................14
SECTION 9.02. NOTICE OF TERMINATION........................................15
SECTION 9.03. EFFECT OF TERMINATION........................................15
ARTICLE 10
MISCELLANEOUS
SECTION 10.01. NOTICES.....................................................15
SECTION 10.02. AMENDMENTS AND WAIVERS......................................17
SECTION 10.03. EXPENSES; DOCUMENTARY TAXES.................................17
SECTION 10.04. SUCCESSORS AND ASSIGNS......................................17
SECTION 10.05. GOVERNING LAW...............................................17
SECTION 10.06. JURISDICTION................................................18
SECTION 10.07. WAIVER OF JURY TRIAL........................................18
SECTION 10.08. COUNTERPARTS; THIRD PARTY BENEFICIARIES.....................18
SECTION 10.09. ENTIRE AGREEMENT............................................18
SECTION 10.10. CAPTIONS....................................................18
ii
Exhibit III
SHARE PURCHASE AGREEMENT
AGREEMENT dated as of April 30, 2003 among The Wackenhut Corporation,
a Florida corporation ("Wackenhut"), Tuhnekcaw, Inc., a Delaware corporation
and a wholly-owned subsidiary of Wackenhut ("Tuhnekcaw"), Group 4 Xxxxx A/S, a
corporation organized under the laws of Denmark ("Group 4 Falck" and, together
with Wackenhut and Tuhnekcaw, the "Sellers"), and Wackenhut Corrections
Corporation, a Florida corporation (the "Purchaser"). Wackenhut, Tuhnekcaw,
Group 4 Falck and the Purchaser are herein referred to individually as a
"Party" and collectively as the "Parties."
W I T N E S S E T H :
WHEREAS, as of the date hereof, Tuhnekcaw owns of record, and Group 4
Falck and Wackenhut Beneficially Own, 12,000,000 shares of the Purchaser's
common stock, par value $.01 per share (the "Common Stock");
WHEREAS, the Sellers desire to sell, and the Purchaser desires to
purchase, all of the shares of the Purchaser's Common Stock owned by the
Sellers on the terms and subject to the conditions set forth in this
Agreement;
WHEREAS, the Board of Directors of the Purchaser (the "Board"), at a
meeting duly called and held upon the recommendation of an Independent
Committee of the Board (the "Independent Committee"), has adopted a resolution
authorizing this Agreement and the transactions contemplated hereby; and
WHEREAS, the Independent Committee has received an opinion dated
April 30, 2003, from Xxxx Xxxxx Xxxx Xxxxxx, Incorporated, the financial
advisor to the Independent Committee, that the consideration being paid in
connection with the transactions contemplated by this Agreement is fair from a
financial point of view to all holders of the Purchaser's Common Stock other
than the Sellers.
NOW, THEREFORE, the Parties hereto agree as follows:
Article 1
DEFINITIONS
Section 1.01. Definitions. The following terms, as used herein,
shall have the following meanings:
"Acquisition Proposal" means any offer or proposal for, or any
indication of interest in, a merger or other business combination involving
the Purchaser or
any Subsidiary of the Purchaser or the acquisition of any equity interest in,
or a substantial portion of the assets of, the Purchaser or any Subsidiary of
the Purchaser.
"Affiliate" means, with respect to any Person, any other Person
directly or indirectly controlling, controlled by, or under common control
with such Person; provided that for the purposes hereof none of the Sellers
shall be deemed an Affiliate of the Purchaser. For the purpose of this
definition, the term "control" (including with correlative meanings, the terms
"controlling", "controlled by" and "under common control with"), as used with
respect to any Person, shall mean the possession, directly or indirectly, of
the power to direct or cause the direction of the management and policies of
such Person, whether through the ownership of voting securities, by contract
or otherwise.
"Applicable Claims" has the meaning set forth in Section 5.03(c) of
this Agreement.
"Beneficial Ownership" and "Beneficially Own" shall be determined in
accordance with Rules 13d-3 and 13d-5 under the Exchange Act.
"Board" has the meaning set forth in the recitals to this Agreement.
"Business Day" means any day except a Saturday, Sunday or other day
on which commercial banks in New York or Florida are authorized by law to
close.
"Closing" has the meaning set forth in Section 2.02 of this
Agreement.
"Closing Date" means the date of the Closing.
"Common Stock" has the meaning set forth in the recitals to this
Agreement.
"Damages" has the meaning set forth in Section 8.02(a) of this
Agreement.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated thereunder.
"Financing Letters" means the letters dated April 30, 2003 attached
hereto as Exhibit A.
"Group 4 Falck" has the meaning set forth in the preamble to this
Agreement.
"Indemnity Agreement" means that certain Indemnity Agreement, dated
as of December 9, 2002, by and among Wackenhut, the Trustee of the Wackenhut
2
Corporation Group Insurance Program of Employees and Dependents, and the
Purchaser, relating to certain employee health care benefit claims.
"Independent Committee" has the meaning set forth in the recitals to
this Agreement.
"Letter Agreement" means that certain letter agreement dated as of
March 7, 2002, between the Purchaser and Group 4 Falck, relating to a
potential sale of the Purchaser's interest in its joint venture in the United
Kingdom.
"Lien" means, with respect to any property or asset, any mortgage,
lien, pledge, charge, security interest, encumbrance or other adverse claim of
any kind in respect of such property or asset.
"Non-Solicitation Agreement" means the Covenant of Indemnification,
Release and Non-Solicitation Agreement, dated as of September 18, 2002,
between Wackenhut and the Purchaser, relating to certain matters between
Wackenhut and the Purchaser.
"Party" has the meaning set forth in the preamble to this Agreement.
"Person" means an individual, corporation, partnership, limited
liability company, association, trust or other entity or organization,
including a government or political subdivision or an agency or
instrumentality thereof.
"Purchase Price" has the meaning set forth in Section 2.01 of this
Agreement.
"Purchaser" has the meaning set forth in the preamble to this
Agreement.
"Purchaser Indemnified Person" has the meaning set forth in Section
8.02(a) of this Agreement.
"Related Agreements" means contracts, agreements, arrangements or
understandings between or concerning the Sellers or their Affiliates, on the
one hand, and the Purchaser or its Affiliates, on the other hand.
"Safeguards Agreement" means the Agreement dated March 7, 2002, among
the Purchaser, Wackenhut and Group 4 Xxxxx, as amended from time to time,
relating to the conditions under which the Purchaser approved Group 4 Xxxxx'x
acquisition of Wackenhut.
"Seller Indemnified Person" has the meaning set forth in Section
8.02(b) of this Agreement.
"Sellers" has the meaning set forth in the preamble to this
Agreement.
3
"Senior Seller Officers" means (i) the senior officers of Wackenhut
and (ii) Xxxxx Xxxxxxxxx-Xxxxxxx and Xxxx Xxxxx Xxxxxxxx.
"Services Agreement" has the meaning set forth in Section 5.03(a) of
this Agreement.
"Shares" means 12,000,000 shares of Common Stock owned, as of the
date hereof, by the Sellers.
"Software Agreement" has the meaning set forth in Section 5.03(a) of
this Agreement.
"Subsidiary" means any Person of which securities or other ownership
interests having ordinary voting power to elect a majority of the board of
directors or other persons performing similar functions are at the time
directly or indirectly owned by any Party.
"Tuhnekcaw" has the meaning set forth in the preamble to this
Agreement.
"Voting Securities" means all securities of the Purchaser entitled,
in the ordinary course, to vote in the election of directors of the Purchaser.
"Wackenhut" has the meaning set forth in the preamble to this
Agreement.
Article 2
PURCHASE AND SALE
Section 2.01. Purchase and Sale. Upon the terms and subject to the
conditions of this Agreement, the Sellers agree to sell to the Purchaser, and
the Purchaser agrees to purchase from the Sellers, the Shares at the Closing.
The purchase price for the Shares (the "Purchase Price") is $132,000,000. The
Purchase Price shall be paid as provided in Section 2.02.
Section 2.02. Closing. The closing (the "Closing") of the purchase
and sale of the Shares hereunder shall take place at the offices of Akerman
Senterfitt, Xxx Xxxxxxxxx Xxxxx Xxxxxx, 00xx Xxxxx, Xxxxx, Xxxxxxx 00000, as
soon as possible, but in no event later than four Business Days, after
satisfaction (or waiver by the Party entitled to the benefit of such
condition) of each of the conditions set forth in Article 7. At the Closing:
(a) The Purchaser shall deliver to the Sellers the Purchase Price in
immediately available funds by wire transfer to an account designated by the
Sellers, by notice to the Purchaser, which notice shall be delivered not later
than two Business Days prior to the Closing Date.
4
(b) The Sellers shall deliver to the Purchaser a certificate or
certificates for the Shares duly endorsed or accompanied by stock powers duly
endorsed in blank, with any required transfer stamps affixed thereto.
(c) Group 4 Falck will deliver to the Purchaser the resignations of
all directors of the Purchaser designated by Group 4 Falck from their
positions as directors.
Article 3
REPRESENTATIONS AND WARRANTIES OF THE SELLERS
The Sellers, jointly and severally, represent and warrant to the
Purchaser that:
Section 3.01. Corporate Existence and Power. Each is a company duly
organized and validly existing under the laws of its jurisdiction of
organization, and has all corporate powers and all material governmental
licenses, authorizations, permits, consents and approvals required to carry
out the transactions contemplated by this Agreement.
Section 3.02. Ownership of Shares. The Sellers or their wholly-owned
Subsidiaries are the record and beneficial owners of the Shares, and will
transfer and deliver to the Purchaser at the Closing valid title to the Shares
free and clear of any Lien or any other limitation or restriction. The Sellers
Beneficially Own 12,000,000 shares of Common Stock, in the aggregate, and none
of the Sellers nor any of their Affiliates Beneficially Own any securities of
the Purchaser other than such 12,000,000 shares of Common Stock.
Section 3.03. Authorization; No Breach. The execution, delivery and
performance of this Agreement by each of them and the consummation of the
transactions contemplated hereby are within their powers and have been duly
authorized by all necessary action on their part, including without limitation
any requisite approval of their shareholders. This Agreement has been duly and
validly executed by them and constitutes a legal, valid and binding obligation
of them, enforceable against them in accordance with this Agreement's terms.
The execution, delivery and performance by them of this Agreement and the
consummation of the transactions contemplated hereby, do not and will not, (i)
conflict with, violate or result in a default under or breach of, (ii) result
in the creation of any Lien, right or obligation of Purchaser, or require any
payment by Purchaser, relating to the Shares pursuant to or (iii) require any
authorization, permit, filing, consent, approval, exemption or other action by
or notice or declaration to, or filing with, any court or administrative or
governmental body or agency of any jurisdiction pursuant to, (x) the
certificate of incorporation, bylaws or other organizational documents of
either of them, (y) any law, statute, rule, regulation, order, judgment or
decree to which either of them, any of their
5
Subsidiaries or any of their directors or executive officers is subject, or
(z) any material agreement or material instrument to which either of them, any
of their Subsidiaries or any of their directors or executive officers is a
party or subject; except for any filings that may be required under applicable
securities laws or stock exchange rules and regulations.
Section 3.04. No Other Agreements. To the knowledge of the Senior
Seller Officers, other than the Safeguards Agreement, the Letter Agreement and
the other agreements referred to in Section 5.03 hereof, there are no Related
Agreements.
Section 3.05. Finder's Fees. Except for Xxxxxx Brothers, whose fees
will be paid by the Sellers, there is no investment banker, broker, finder or
other intermediary which has been retained by or is authorized to act on
behalf of any of them or any of their Affiliates which might be entitled to
any fee or commission from them or any of their Affiliates as a result of or
upon consummation of the transactions contemplated by this Agreement.
Article 4
REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
The Purchaser represents and warrants to the Sellers as follows:
Section 4.01. Corporate Existence and Power. The Purchaser is a
corporation duly organized, validly existing and in good standing under the
laws of Florida, and has all corporate powers and all material governmental
licenses, authorizations, permits, consents and approvals required to carry
out the transactions contemplated by this Agreement.
Section 4.02. Authorization; No Breach. The execution, delivery and
performance by the Purchaser of this Agreement and the consummation of the
transactions contemplated hereby are within the Purchaser's powers and have
been duly authorized by all necessary action on the part of the Purchaser.
This Agreement has been duly and validly executed by the Purchaser and
constitutes a legal, valid and binding obligation of the Purchaser,
enforceable against it in accordance with this Agreement's terms. Subject to
the receipt of funds specified in the Financing Letters, the execution,
delivery and performance by the Purchaser of this Agreement and the
consummation of the transactions contemplated hereby and thereby, do not and
will not, (i) conflict with, violate or result in a default under or breach of
or (ii) require any authorization, permit, filing, consent, approval,
exemption or other action by or notice or declaration to, or filing with, any
court or administrative or governmental body or agency of any jurisdiction
pursuant to, (x) the Purchaser's Amended and Restated Certificate of
Incorporation or By-laws or (y) any law, statute, rule, regulation, order,
judgment or decree to which the Purchaser, any of its Subsidiaries or any of
its directors or
6
executive officers is subject; except for any filings that may be required
under applicable securities laws or stock exchange rules and regulations. The
Purchaser has a good faith belief that, prior to July 31, 2003, it shall have
obtained any and all consents (including, without limitation, those consents
required to be obtained pursuant to Section 7.02(c) hereto) necessary under
any material agreement or material instrument to which the Purchaser, any of
its Subsidiaries or any of its directors or executive officers is a party or
subject, for the performance by the Purchaser of this Agreement and the
consummation of the transactions contemplated hereby.
Section 4.03. Financing. The Purchaser has delivered to Group 4
Falck a correct and complete copy of the Financing Letters. Other than the
Financing Letters and an associated fee letter (which fee letter contains no
term contrary to any of the terms of the Financing Letters), there are no
contracts, agreements, arrangements or understandings, in each case whether
oral or written, between the Purchaser and the counterparties to the Financing
Letters or any of their Affiliates that relate to this Agreement or the
transactions contemplated hereby. Assuming receipt of the funds specified in
the Financing Letters on the terms thereof, the Purchaser acknowledges that it
will have, at or prior to the Closing, available lines of credit or other
sources of funds to enable it to make payment of the Purchase Price and all
other fees and expenses required to be paid by it in accordance with this
Agreement.
Section 4.04. No Other Agreements. To the knowledge of the senior
officers of the Purchaser, other than the Safeguards Agreement, the Letter
Agreement and the other agreements referred to in Section 5.03 hereof, there
are no Related Agreements.
Section 4.05. Finders' Fees. Except for Xxxx Xxxxx Xxxx Xxxxxx
Incorporated, whose fees will be paid by the Purchaser, and any fees payable
by the Purchaser to parties specified in the Financing Letters, there is no
investment banker, broker, finder or other intermediary which has been
retained by or is authorized to act on behalf of the Purchaser or any of its
Affiliates which might be entitled to any fee or commission from the Purchaser
or any of its Affiliates as a result of or upon consummation of the
transactions contemplated by this Agreement.
Section 4.06. Solvency. The Purchaser believes that it currently
meets and, after giving effect to the transactions contemplated by this
Agreement (including payment of fees related thereto), that it will meet, the
solvency test set forth in Section 607.06401(3) of the Florida Business
Corporation Act.
7
Article 5
CERTAIN COVENANTS OF THE PARTIES
Section 5.01. Reasonable Best Efforts. Subject to the terms and
conditions of this Agreement, each of the Parties agrees that it will use its
reasonable best efforts to take, or cause to be taken, all actions and to do,
or cause to be done, all things necessary or desirable under applicable laws
and regulations to consummate the transactions contemplated by this Agreement;
provided that in no event shall the Purchaser be required to pay costs and
expenses in connection with arranging any financing in connection with the
transactions contemplated hereby (or any alternative financing) in excess of
the costs and expenses contemplated by the Financing Letters or agree to
financing terms that differ in a manner adverse to the Purchaser from those
contemplated by the Financing Letters.
Section 5.02. Public Announcements. The Parties agree to consult
with each other before issuing any press release or making any public
statement with respect to this Agreement or the transactions contemplated
hereby and will not issue any such press release or make any such public
statement prior to such consultation; provided, however, that, in the case of
any press release or public statement that may be required to be issued under
any applicable law or listing agreement with any securities exchange, a Party
shall be deemed to have satisfied its obligations under this Section 5.02 by
using its reasonable best efforts (after giving due regard to all the relevant
circumstances) to consult with the other Parties hereto prior to issuing any
such press release or public statement.
Section 5.03. Termination of Certain Agreements. (a) The Sellers and
the Purchaser agree as follows:
(i) The Services Agreement between Wackenhut and Purchaser
dated October 28, 2002 (the "Services Agreement") and the provision
of Information Systems related services provided by Wackenhut to
Purchaser thereunder, shall terminate as of December 31, 2003, and
thereafter no payments under such Services Agreement in respect of
any period after December 31, 2003 shall be due or payable from
Purchaser to Wackenhut; provided that, prior to and following the
termination of the Services Agreement, Wackenhut shall reasonably
cooperate with Purchaser to ensure a smooth transition in the
transfer of Information Systems related services from Wackenhut to
Purchaser. Notwithstanding anything in this Section 5.03(a)(i) to
the contrary, it is understood and agreed that the Services
Agreement shall remain in full force and effect if the Closing
hereunder is not consummated in accordance with the terms hereof.
(ii) All agreements relating to the sublease of the
property located at 0000 Xxxxxxxxx Xxxxx, Xxxx Xxxxx Xxxxxxx,
Xxxxxxx 00000,
8
from Wackenhut, as sublessor, to the Purchaser, as sublessee, shall
be terminated effective as of the Closing Date, and no payments
under any agreements relating to such sublease in respect of any
period after the Closing Date shall be due or payable from the
Purchaser to Wackenhut; it being understood and agreed that such
agreements shall remain in full force and effect if the Closing
hereunder is not consummated in accordance with the terms hereof.
(b) The Parties agree that the Safeguards Agreement and the Letter
Agreement shall each terminate effective as of the Closing Date and shall be
of no further force or effect, it being understood and agreed that such
agreements shall remain in full force and effect if the Closing hereunder is
not consummated in accordance with the terms thereof.
(c) Wackenhut will continue to handle all general liability,
automobile and workers' compensation claims on behalf of the Purchaser and its
Affiliates with occurrence dates prior to October 2, 2002. The Purchaser
agrees that, for all claims with dates of loss prior to October 2, 2002 for
which the Purchaser was or is an insured party under certain insurance
policies reinsured by Titania Insurance Company of America (collectively, the
"Applicable Claims"), it shall, consistent with its duties and obligations as
an insured party, cooperate fully with Wackenhut and its Affiliates and any
third party administrators, investigators, adjusters and attorneys in
connection with the investigation, defense and resolution of any Applicable
Claims.
(d) The Parties agree that the Indemnity Agreement shall remain in
effect in accordance with its terms notwithstanding this Agreement and the
consummation of the Closing hereunder.
(e) Except for Section 3 of the Non-Solicitation Agreement which
shall terminate and be of no further force or effect as of the first
anniversary of the Closing Date, the Parties agree that the Non-Solicitation
Agreement shall remain in effect in accordance with its terms notwithstanding
this Agreement and the consummation of the Closing hereunder, it being
understood and agreed that the Non-Solicitation Agreement shall remain in full
force and effect if the Closing hereunder is not consummated in accordance
with the terms hereof. The Purchaser further agrees that it shall abide by any
and all otherwise applicable non-compete agreements between Wackenhut and
employees of Wackenhut and its Affiliates.
(f) The Parties agree that the Purchaser's software licensing rights
under the terms of that certain Master Software License Agreement, dated April
2, 1998, between Wackenhut and Infinium Software, Inc., as amended (the
"Software Agreement"), shall remain in effect in accordance with the terms of
the Software Agreement notwithstanding this Agreement and the consummation of
the Closing hereunder, to the extent that the Purchaser complies with all of
its obligations
9
under the Software Agreement. Wackenhut covenants and agrees not to take any
action adverse or detrimental to Purchaser's licensing rights under the
Software Agreement following the Closing.
(g) Notwithstanding anything to the contrary in this Agreement,
except as explicitly provided elsewhere herein, all Related Agreements shall
terminate in connection with the consummation of the Closing hereunder in
accordance with its terms, and all obligations under any Related Agreement
pursuant to which one party thereto is obligated to guarantee or otherwise
ensure the performance of any obligations or undertakings of the other party
thereto to any other Person shall terminate as to each other concurrently
therewith.
Section 5.04. Use of the Name "Wackenhut". (a) The Parties agree and
acknowledge that the use of the name, trademark or service xxxx "Wackenhut" in
all of its forms is, and shall remain, the sole property of Sellers and their
Affiliates following the consummation of the Closing hereunder and, except as
expressly provided in Section 5.04(b), none of the Purchaser or any of its
Affiliates shall retain any rights (including without limitation any rights of
use) therein.
(b) Notwithstanding Section 5.04(a), the Purchaser and its
Affiliates shall be permitted to use the name, trademark or service xxxx
"Wackenhut" to the same extent they use them as of the date hereof for a
period not to exceed one year following the Closing hereunder; provided that
during such period Purchaser and its Affiliates shall use their respective
reasonable best efforts to eliminate the use of the name "Wackenhut" from
their operations as rapidly as possible. Notwithstanding the foregoing, with
respect to its corporate name, (i) the Purchaser shall recommend in its 2004
proxy statement that its shareholders vote to amend the Purchaser's articles
of incorporation to eliminate "Wackenhut" from the Purchaser's name at the
Purchaser's 2004 annual meeting of its shareholders and (ii) if the Purchaser
continues to use the name "WCC," it shall prior to the first anniversary of
the Closing Date develop an alternative full name for the initial "W" in the
name "WCC."
Article 6
STANDSTILL
Section 6.01. Acquisition of Voting Securities. Effective on and
after the date hereof, the Sellers will not, and will not permit any of their
Subsidiaries to, purchase or otherwise acquire, or agree or offer to purchase
or otherwise acquire, Beneficial Ownership of any Voting Securities.
Section 6.02. Certain Actions. Effective on and after the Closing
Date, the Sellers will not, and will not permit any of their Affiliates to:
10
(a) make, or take any action to solicit, initiate or encourage, an
Acquisition Proposal;
(b) seek to influence or control, in any manner whatsoever, the
management or policies of the Purchaser;
(c) make, or in any way participate in, any "solicitation" of
"proxies" to vote (as such terms are defined in Rule 14a-1 under the Exchange
Act), solicit any consent or communicate with or seek to advise or influence
any Person with respect to the voting of any Voting Securities or nominate, or
solicit any votes or proxies for the nomination of, any directors with respect
to the Purchaser;
(d) form, join or encourage the formation of any "group" (within the
meaning of Section 13(d)(3) of the Exchange Act) with respect to any Voting
Securities;
(e) call or seek to have called any meeting of the shareholders of
the Purchaser;
(f) solicit, seek to effect, negotiate with or voluntarily provide
any information to any other Person with respect to, or make any statement or
proposal, whether written or oral, to the Board or otherwise make any public
announcement (except as required by law or the requirements of any relevant
stock exchange) whatsoever with respect to, any form of acquisition or
business combination transaction involving the Purchaser or any significant
portion of its assets, including, without limitation, a merger, tender offer,
exchange offer or liquidation, or any restructuring, recapitalization or
similar transaction with respect to the Purchaser;
(g) take any action that raises a significant risk that the
Purchaser might be required to make a public announcement regarding a business
combination, merger or other type of transaction described above;
(h) assist, advise or encourage any other Person in doing any of the
foregoing; or
(i) request to amend, waive or not to enforce any provision of this
paragraph, unless specifically invited by the Board to do so.
Section 6.03. Termination of Standstill Provisions. The provisions
of this Article 6 shall terminate upon the earliest to occur of any of the
following:
(a) the written agreement of the Purchaser and the Sellers to
terminate the provisions of this Article 6;
(b) the first anniversary of the Closing Date; or
11
(c) the termination of this Agreement in accordance with the
provisions of Article 9 hereof.
Article 7
CONDITIONS TO CLOSING
Section 7.01. Conditions to Obligations of Each Party. The
obligations of each Party to consummate the Closing are subject to the
satisfaction of the following conditions:
(a) No provision of any applicable law or regulation and no
judgment, injunction, order or decree shall prohibit the consummation of the
Closing.
(b) No material proceeding challenging this Agreement or any of the
transactions contemplated hereby or seeking to prohibit, alter, prevent or
materially delay the Closing shall have been instituted by any Person before
any court, arbitrator or governmental body, agency or official and be pending,
which in the reasonable judgment of any Party, may reasonably be expected to
cause such Party or any of its Affiliates, to incur or suffer any Damages;
provided that such Party has received a written opinion of its counsel to such
effect.
Section 7.02. Conditions to Obligation of the Purchaser. The
obligation of the Purchaser to consummate the Closing is subject to the
satisfaction of the following further conditions:
(a) (i) The Sellers shall have performed in all material respects
all of their obligations hereunder required to be performed by them on or
prior to the Closing Date,
(ii) the representations and warranties of the Sellers
contained in this Agreement and in any certificate or other writing
delivered by the Sellers pursuant hereto shall be true in all
respects at and as of the Closing Date as if made at and as of such
time, and
(iii) the Purchaser shall have received a certificate from
the Sellers signed by the chief executive officer of each of the
Sellers to the foregoing effect.
(b) The Purchaser shall have received all funds contemplated in the
Financing Letters on the terms set forth therein.
(c) The Purchaser shall have obtained any consents required pursuant
to the terms of any material agreements or instruments with its lenders or its
customers and under any agreements specified by the counterparties to the
Financing Letters or any of their Affiliates, including, without limitation,
those agreements set forth in the list provided by the Purchaser to the
Sellers on April
12
30, 2003, in each case in form and substance reasonably acceptable to the
Purchaser.
(d) The Purchaser shall be able to meet the solvency test set forth
in Section 607.06401(3) of the Florida Business Corporation Act as of the
Closing Date after giving effect to the consummation of the transactions
contemplated by this Agreement (including payment of fees related thereto) and
the Purchaser shall have received a certificate or opinion to that effect from
an independent firm of nationally recognized standing customarily engaged in
rendering such certificates or opinions.
Section 7.03. Condition to Obligation of the Sellers. The obligation
of the Sellers to consummate the Closing is subject to the satisfaction of the
following further conditions:
(a) The Purchaser shall have performed in all material respects all
of its obligations hereunder required to be performed by it on or prior to the
Closing Date.
(b) The representations and warranties of the Purchaser contained in
this Agreement and in any certificate or other writing delivered by the
Purchaser pursuant hereto shall be true in all respects at and as of the
Closing Date as if made at and as of such time.
(c) The Sellers shall have received a certificate from the Purchaser
signed by its chief executive officer to the foregoing effect.
Article 8
SURVIVAL; INDEMNIFICATION
Section 8.01. Survival. The representations and warranties of the
Parties hereto contained in this Agreement or in any certificate or other
writing delivered pursuant hereto or in connection herewith, shall survive the
Closing until the second anniversary of the Closing Date, except that the
representations and warranties contained in Sections 3.01, 3.03, 4.01 and 4.02
shall survive indefinitely. Notwithstanding the preceding sentence, any
representation or warranty in respect of which indemnity may be sought under
this Agreement shall survive the time at which it would otherwise terminate
pursuant to the preceding sentence, if notice of the inaccuracy or breach
thereof giving rise to such right of indemnity shall have been given in
reasonable detail to the Party against whom such indemnity may be sought prior
to the time of such termination. The covenants and agreements of the Parties
contained in this Agreement shall survive the Closing in accordance with their
terms or, if no term is specified, indefinitely.
13
Section 8.02. Indemnification. The Sellers, jointly and severally,
hereby indemnify the Purchaser, any Affiliate of the Purchaser and any of
their respective directors, officers, agents and employees (a "Purchaser
Indemnified Person") against and agrees to hold each of them harmless from any
and all losses, claims, damages, costs, liabilities or expenses (or actions,
suits or proceedings in respect thereof), including, without limitation,
reasonable expenses of investigation and reasonable attorneys' fees and
expenses in connection with any action, suit or proceeding ("Damages")
incurred or suffered by any Purchaser Indemnified Person, in each case arising
out of any misrepresentation or breach of warranty, covenant or agreement made
or to be performed by any of the Sellers pursuant to this Agreement.
(b) The Purchaser hereby indemnifies the Sellers, any Affiliate of
the Sellers and any of their respective directors, officers, agents and
employees (a "Seller Indemnified Person") against and agrees to hold each of
them harmless from any and all Damages incurred or suffered by any Seller
Indemnified Person, in each case arising out of any misrepresentation or
breach of warranty, covenant or agreement made or to be performed by the
Purchaser pursuant to this Agreement.
(c) Each Party agrees to promptly reimburse the other Parties hereto
against any Damages arising out of any guarantee or other obligation or
undertaking to third parties entered into prior to the date hereof (if any) if
(x) the reimbursing Party was the primary obligor in respect of such
guarantee, obligation or undertaking and (y) the claiming Party had guarantor
liability or other secondary liability solely as a result of an agreement with
respect to the obligations of the reimbursing Party, which agreement was
entered into prior to the date hereof.
Section 8.03. No Special Damages. Notwithstanding anything to the
contrary herein, no Party shall be liable to any other Party for any indirect,
special, punitive, exemplary or consequential loss or damage (including any
loss of revenue or profit) arising out of this Agreement. Both parties shall
use commercially reasonable efforts to mitigate their damages.
Article 9
TERMINATION
Section 9.01. Termination. Anything contained herein to the contrary
notwithstanding, this Agreement may be terminated and the transactions
contemplated hereby abandoned at any time prior to the Closing:
(a) by mutual written consent of the Parties;
14
(b) by the Purchaser if any of the conditions set forth in Section
7.01 or 7.02 shall have become incapable of fulfillment, and shall not have
been waived by the Purchaser;
(c) by the Sellers if any of the conditions set forth in Section
7.01 or 7.03 shall have become incapable of fulfillment, and shall not have
been waived by the Sellers;
(d) by any of the Parties if the Closing does not occur on or prior
to July 31, 2003;
provided that the Party seeking termination pursuant to clause (b), (c), or
(d) is not in breach of any of its representations, warranties, covenants or
agreements contained in this Agreement.
Section 9.02. Notice of Termination. In the event of termination by
any of the Parties pursuant to this Article 9, written notice thereof shall
forthwith be given to the other Party or Parties and the transactions
contemplated by this Agreement shall be terminated, without further action by
any Party.
Section 9.03. Effect of Termination. If this Agreement is terminated
and the transactions contemplated hereby are abandoned as described in this
Article 9, this Agreement shall become void and of no further force and
effect. Nothing in this Article 9 shall be deemed to release any Party from
any liability for any breach by such Party of the terms and provisions of this
Agreement or to impair the right of any Party to compel specific performance
by another Party of its obligations under this Agreement.
Article 10
MISCELLANEOUS
SECTION 10.01. Notices. All notices, requests and other
communications to any Party hereunder shall be in writing (including facsimile
transmission) and shall be given,
if to the Purchaser, to:
Wackenhut Corrections Corporation
One Park Place
000 XX 00xx Xxxxxx, Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
Attention: General Counsel
Fax: 000-000-0000
and
15
Independent Committee of Wackenhut Corrections Corporation
x/x Xxxxxxxxx Xxxxxxxxxxx Xxxxxxxxxxx
Xxx Xxxx Xxxxx
000 XX 00xx Xxxxxx, Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
Attention: Chairman
Fax: 000-000-0000
with copies to:
Akerman Senterfitt
Xxx Xxxxxxxxx Xxxxx Xxxxxx
00xx Xxxxx
Xxxxx, XX 00000-0000
Attention: Xxxxxxx Xxxxxxxxxxx
Fax: 000-000-0000
and
Xxxxx Xxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx Xxxxxxx
Fax: 000-000-0000
if to the Sellers, to:
Group 4 Xxxxx A/S
Polititorvet
XX-0000 Xxxxxxxxxx V
Denmark
Attention: Group General Counsel
Fax: + 00 00 00 00 00
with copies to:
The Wackenhut Corporation
0000 Xxxxxxxxx Xxxxx, #000
Xxxx Xxxxx Xxxxxxx, Xxxxxxx 00000
Attention: General Counsel
Fax: 000-000-0000
and
Xxxxxxx Xxxxxxx & Xxxxxxxx
16
0000 Xxxxxxxx Xxxxxx
Xxxx Xxxx, XX 00000
Attention: Xxxxx Xxxxxxx
Fax: 000-000-0000
All such notices, requests and other communications shall be deemed
received on the date of receipt by the recipient thereof if received prior to
5 p.m. in the place of receipt and such day is a Business Day in the place of
receipt. Otherwise, any such notice, request or communication shall be deemed
not to have been received until the next succeeding Business Day in the place
of receipt.
Section 10.02. Amendments and Waivers. (a) Any provision of this
Agreement may be amended or waived if, but only if, such amendment or waiver
is in writing and is signed, in the case of an amendment, by each Party to
this Agreement, or in the case of a waiver, by the Party against whom the
waiver is to be effective.
(b) No failure or delay by any Party in exercising any right, power
or privilege hereunder shall operate as a waiver thereof nor shall any single
or partial exercise thereof preclude any other or further exercise thereof or
the exercise of any other right, power or privilege. The rights and remedies
herein provided shall be cumulative and not exclusive of any rights or
remedies provided by law.
Section 10.03. Expenses; Documentary Taxes. Except as otherwise
contemplated by this Agreement, each Party will bear its own costs and
expenses (including legal fees and expenses) incurred in connection with this
Agreement and the transactions contemplated hereby. Sellers shall pay any and
all stamp, transfer and other similar taxes payable or determined to be
payable in connection with the execution and delivery of this Agreement or the
transfer of the Shares.
Section 10.04. Specific Performance. The Parties agree that any
breach by one of them of any provision of this Agreement would irreparably
injure the other Parties and that money damages would be an inadequate remedy
therefor. Accordingly, each of the Parties agrees that the other Parties shall
be entitled to one or more injunctions enjoining any such breach and requiring
specific performance of the provisions of this Agreement and consents to the
entry thereof, in addition to any other remedy to which such other Parties may
be entitled at law or in equity.
Section 10.05. Successors and Assigns. The provisions of this
Agreement shall be binding upon and inure to the benefit of the Parties and
their respective successors and assigns, whether so expressed or not; provided
that no Party may assign, delegate or otherwise transfer any of its rights or
obligations under this Agreement without the consent of each other Party.
Section 10.06. Governing Law. This Agreement shall be governed by
and construed in accordance with the law of the State of Florida.
17
Section 10.07. Jurisdiction. Each of the Parties agree that any
suit, action or proceeding seeking to enforce any provision of, or based on
any matter arising out of or in connection with, this Agreement or the
transactions contemplated hereby shall be brought in the United States
District Court for the Southern District of Florida, West Palm Beach Division,
or in any Florida State Circuit Court sitting in Palm Beach County, Florida,
and that any cause of action arising out of this Agreement shall be deemed to
have arisen from a transaction of business in the State of Florida, and each
of the Parties hereby irrevocably consents to the jurisdiction of such courts
(and of the appropriate appellate courts therefrom) in any such suit, action
or proceeding and irrevocably waives, to the fullest extent permitted by law,
any objection that it may now or hereafter have to the laying of the venue of
any such suit, action or proceeding in any such court or that any such suit,
action or proceeding which is brought in any such court has been brought in an
inconvenient forum. Process in any such suit, action or proceeding may be
served on any party anywhere in the world, whether within or without the
jurisdiction of any such court. Without limiting the foregoing, each Party
agrees that service of process on such Party as provided in Section 10.01
shall be deemed effective service of process on such Party.
SECTION 10.08. WAIVER OF JURY TRIAL. EACH OF THE PARTIES HEREBY
IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING
ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY.
Section 10.09. Counterparts; Third Party Beneficiaries. This
Agreement may be signed in any number of counterparts, each of which shall be
an original, with the same effect as if the signatures thereto and hereto were
upon the same instrument. This Agreement shall become effective when each
Party shall have received a counterpart hereof signed by the other Party. No
provision of this Agreement is intended to confer upon any Person other than
the parties hereto any rights or remedies hereunder.
Section 10.10. Entire Agreement. This Agreement (including Exhibit
A) constitutes the entire agreement between the Parties with respect to the
subject matter of this Agreement and supersedes all prior agreements and
understandings, both oral and written, between the Parties with respect to the
subject matter of this Agreement.
Section 10.11. Captions. The captions herein are included for
convenience of reference only and shall be ignored in the construction or
interpretation hereof.
18
IN WITNESS WHEREOF, the Parties have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
WACKENHUT CORRECTIONS CORPORATION
By: /s/ Xxxxxx Xxxxx
-------------------------------
Name: Xxxxxx Xxxxx
Title: Chairman and
Chief Executive Officer
TUHNEKCAW, INC.
By: /s/ Xxxx Xxxxx Xxxxxxxx
-------------------------------
Name: Xxxx Xxxxx Xxxxxxxx
Title: President and Chief Executive
Officer, Group 4 Xxxxx A/S
THE WACKENHUT CORPORATION
By: /s/ Xxxx Xxxxx Xxxxxxxx
-------------------------------
Name: Xxxx Xxxxx Xxxxxxxx
Title: President and Chief Executive
Officer, Group 4 Xxxxx A/S
GROUP 4 XXXXX A/S
By: /s/ Xxxx Xxxxx Xxxxxxxx
-------------------------------
Name: Xxxx Xxxxx Xxxxxxxx
Title: President and
Chief Executive Officer
19
