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EXHIBIT 10.163
PURCHASE AGREEMENT
AMONG
CORRECTIONS CORPORATION OF AMERICA,
CORRECTIONS CORPORATION OF AMERICA (U.K.) LIMITED
AND
SODEXHO S.A.
DATED AS OF DECEMBER 31, 1996
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PURCHASE AGREEMENT
This Agreement (the "Agreement") is made and entered into this 31st day
of December, 1996, by and between Corrections Corporation of America, a Delaware
corporation having its principal place of business in Nashville, Tennessee (USA)
("CCA"), Corrections Corporation of America (U.K.) Limited, a wholly-owned
subsidiary of CCA and a company incorporated in England and Wales whose
registered number is 2147489 and whose registered office is 0 Xxxxxxxxx, Xxxxxx
XX0X 0XX ("CCAUK") and Sodexho S.A., a French societe anonyme, having its
principal place of business in France, or its designee (the "Buyer"). CCA and
CCAUK are sometimes referred to herein collectively as the "Sellers".
WHEREAS, CCAUK currently owns 5000 "A" Ordinary Shares, 5000 "B"
Ordinary Shares and 5,000 "C" Ordinary Shares in the capital stock 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%) of the issued shares of the Company; and
WHEREAS, Buyer desires to acquire from CCAUK, and CCAUK desires to sell
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, upon and subject to the terms and conditions contained in this
Agreement; and
WHEREAS, in connection with the purchase of the above described
securities, Buyer has requested and CCA has agreed to extend the expiration date
of warrants issued by CCA to Sodexho on June 23, 1994 and to extend the
nonconversion periods on the CCA 8.5% Note previously issued to Buyer and the
Floating Rate Note (as defined in that certain Securities Purchase Agreement
dated June 23, 1994 and subsequently amended, by and between Buyer and CCA).
NOW, THEREFORE, in consideration of the mutual promises, covenants and
agreements herein contained, the parties agree as follows:
ARTICLE I
PURCHASE AND SALE OF SHARES
1.01. TRANSFER OF SHARES. Subject to all of the terms and conditions of
this Agreement, at the Closing, CCA and CCAUK hereby agree to sell, transfer and
convey to Buyer, and Buyer agrees to purchase and acquire from CCA and CCAUK,
collectively, free and clear of all liens, claims, charges, restrictions,
security interests, equities, proxies, pledges and encumbrances of any kind,
3,000 "C" Ordinary Shares in the capital of the Company, which shares
collectively constitute twenty percent (20%) of the issued shares in the capital
of the Company (the foregoing shares of the Company are hereinafter collectively
referred to as the "Shares").
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ARTICLE II
CONSIDERATION
2.01. PURCHASE PRICE. The aggregate purchase price for the Shares shall
be One Million Pounds (L.1,000,000) (the "Purchase Price"). The Purchase
Price shall be paid by Buyer to CCAUK at the Closing (as defined herein), by
bank wire transfer or such other method as may be mutually agreed upon by the
parties.
2.02. COMPANY OBLIGATIONS. By entering into this Agreement, Buyer
understands and agrees that from and after the Closing, Buyer shall discharge
20% of any liability incurred by CCAUK or CCA under the documents described in
Schedule 2.02, shall cooperate with CCAUK and CCA in obtaining from the Home
Office consent to the assumption by Buyer of such liability and shall indemnify
CCA in respect thereof.
ARTICLE III
CLOSING; OBLIGATIONS OF THE PARTIES
3.01. CLOSING DATE. The closing (the "Closing") shall take place and be
effective for all purposes at 10:00 a.m., local time, on December 31, 1996 at
the offices of CCA or at such other time and place as the parties hereto
mutually agree (the "Closing Date").
3.02. OBLIGATIONS OF THE PARTIES AT THE CLOSING.
(a) At the Closing, the events set out in clauses (i) through (vi)
shall occur:
(i) the Buyer shall pay the consideration as specified in
Section 2.01.
(ii) CCAUK shall deliver to the Buyer or to such person as
Buyer may direct, the share certificate(s) issued by the Company representing
the Shares.
(iii) the Sellers shall procure the delivery to Buyer of duly
executed transfers of all of the Shares in favor of the Buyer or its nominee(s).
(iv) CCAUK shall deliver to the Buyer any waiver, consent or
other document which the Buyer may require to obtain a good title to the Shares
registered in the name of the Buyer or its nominee(s), including any Power of
Attorney under which any document required to be delivered under this Agreement
has been executed.
(v) CCAUK shall cause a meeting of the Directors of the
Company to be convened and shall procure that at the meeting:
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(a) the Directors shall approve the transfer of the
Shares to the Buyer or its nominee and, subject to the payment of stamp duty by
the Buyer, direct the entries in the Company's share register be made, the
existing share certificate(s) for the Shares be cancelled and a new certificate
in the name of the Buyer or its nominee(s) be issued;
(b) One (1) person nominated by Buyer shall be
appointed as a director of the Company;
(v) Buyer may by written notice to CCAUK waive compliance by
CCAUK with the requirements of this Section 3.02.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF SELLERS
In order to induce Buyer to enter into this Agreement and consummate
the transactions contemplated hereby, Sellers hereby represent and warrant as
follows:
4.01. ORGANIZATION AND GOOD STANDING. CCA is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware, United States and has full corporate power and authority to enter into
this Agreement and to carry out the transactions contemplated hereby. CCAUK is a
corporation duly incorporated, validly existing and in good standing under the
laws of England and has full power and authority to enter into this Agreement
and to carry out the transactions contemplated hereby.
4.02. OWNERSHIP OF SHARES; VALIDITY AND ENFORCEABILITY. Sellers
represent and warrant that (i) CCAUK is the legal and beneficial owner of the
Shares, free and clear of all liens, claims, charges, restrictions, security
interests, equities, proxies, pledges or encumbrances of any kind; (ii) CCAUK
has the full right, power, authority and capacity to sell and transfer the
Shares owned by CCAUK; (iii) by virtue of the transfer of the Shares to Buyer at
the Closing, Buyer 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.
4.03. CORPORATE POWER AND AUTHORITY: DUE AUTHORIZATION. Each of CCA and
CCAUK has full corporate power and authority to execute and deliver this
Agreement and to consummate the transactions contemplated hereby. The board of
directors of each of CCA and CCAUK has duly approved and authorized the
execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby, and no other corporate proceedings on the part
of CCA or CCAUK are necessary to approve and authorize the execution and
delivery of this Agreement and the consummation of the transactions contemplated
hereby. This Agreement and each of the documents to which CCA and/or CCAUK is a
party constitutes, or will constitute when executed and
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delivered, a valid and binding agreement of CCA and/or CCAUK, as applicable, in
each case enforceable in accordance with its terms.
4.04. NO VIOLATION. The execution and delivery of this Agreement by
each of CCA and CCAUK does not, and the consummation of the transactions
contemplated hereby will not, (a) violate or be in conflict with, or constitute
a default (or an event which, with notice or lapse of time, or both, would
constitute a default) with, or result in the termination of, or accelerate the
performance required by, or excuse performance by any person of any of its
obligations under, or cause the performance required by, or excuse performance
by any person of any of its liabilities under, any provision of, or result in
the creation of any lien or security interest under, any agreement, indenture,
instrument, lease, security agreement, mortgage or lien to which CCA or CCAUK is
a party or by which any of CCA or CCAUK's assets or properties are bound; (b)
violate or be in conflict with any provision of the Certificate of Incorporation
or Bylaws of CCA or the Articles of Association of CCAUK; (c) violate any order,
arbitration award, judgment, writ, injunction, decree, statute, rule, or
regulation applicable to CCA or CCAUK; or (d) violate any other contractual or
legal obligation or restriction to which CCA and/or CCAUK is subject.
4.05. ABSENCE OF QUESTIONABLE PAYMENTS. Neither CCA, CCAUK nor any
other person acting on its behalf has at any time directly or indirectly used
funds for any illegal purpose, including without limitation, the making of any
improper political contribution, bribe or kickback.
4.06. ORGANIZATION AUTHORITY AND GOOD STANDING. The Company is a
company duly incorporated, validly existing, and in good standing under the laws
of England. The Company has full corporate power and authority to carry on its
business as now conducted and possesses all governmental and other permits,
licenses, and other authorization to own, lease, or operate its assets and
properties as now owned, leased, and operated and to carry on its business as
presently conducted.
4.07. NO CONFLICTS. The execution and delivery of this Agreement does
not, and the consummation of the transactions contemplated hereby will not,
(a)violate any provision, or result in the creation of any lien or security
interest under, any agreement, indenture, instrument, lease, security agreement,
mortgage, or lien to which Company is a party or by which it is bound; (b)
violate any order, arbitration award, judgment, writ, injunction, decree,
statute, rule, or regulation applicable to Company; (c) violate or be in
conflict with any provision of the Articles of Association of the Company; or
(d) violate any other contractual or legal obligation or restriction to which
Company is subject.
4.08. SUBSIDIARIES. The Company does not own, directly or indirectly,
any capital stock or other equity interest, or with respect to which the
Company, alone or in combination with others, is in a control position. The
Company has no subsidiaries within the meaning of Section 736 Companies Act,
1985.
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4.09. LITIGATION. There are no claims, actions, suits, proceedings,
inquiries, or investigations pending or threatened by or against, or otherwise
affecting the Company, or by any state, municipal, or other governmental
department, commission, board, agency, instrumentality, or authority which, if
adversely decided, would have a material adverse effect on the condition
(financial or otherwise), assets, liabilities, earnings, prospects, or business
of the Company. There are no claims, action, or suits pending or threatened by
or against or otherwise affecting the Company at law or in equity, questioning
the validity of this Agreement or the transactions contemplated hereby.
4.10. TITLE TO ASSETS. The Company is the legal and beneficial owner
of, and has good marketable title to, all the Assets (as defined herein), free
and clear of all mortgages, security interests, liens, leases, covenants,
assessments, easements, options, rights of refusal and set-off, restrictions,
reservations, defects in the title, encroachments, and other encumbrances,
direct, contingent, or otherwise. The Assets are all assets set forth in the
financial statements of the Company and owned or leased by the Company or
otherwise utilized in the operation of the Company's business, excluding those
items disposed of and replaced since December 31, 1995, in the ordinary course
of business, but including the replacements thereof.
4.11 TAX MATTERS. CCAUK and the Company have duly and timely filed all
tax reports and returns required to be filed by the Company and have duly paid
all taxes and other charges due or claimed to be due from the Company by
foreign, federal, state, or local taxing authorities (including, without
limitation, those due in respect of its properties, income, franchises,
licenses, sales, and payrolls); and true and correct copies of all tax reports
and returns relating to such taxes and other charges for the period since
December 31, 1990, have been heretofore delivered to Buyer. Since January 1,
1991, the Company has not incurred tax liabilities other than in the ordinary
course of business; there are no tax liens (other than liens for current taxes
not yet due) upon any properties or assets of the Company (whether real,
personal or mixed, tangible or intangible), and, except as reflected in the
financial statements of the Company, there are no pending or threatened
questions or examinations relating to, or claims asserted for, taxes or
assessments against the Company, and there is no basis for such question or
claim.
4.12. CAPITALIZATION. The authorized capital of the Company consists of
5,000 "A" Ordinary Shares (the "A Ordinary Shares"), 5,000 "B" Ordinary Shares
(the "B Ordinary Shares") and 5,000 "C" Ordinary Shares (the "C Ordinary
Shares"). The issued capital stock is 5,000 "A" Ordinary Shares, 5,000 "B"
Ordinary Shares and 5,000 "C" Ordinary Shares. Except for the issued "A"
Ordinary Shares, the "B" Ordinary Shares and the "C" Ordinary Shares, there are
no shares or other securities of the Company in issue. There are no outstanding
options, warrants, or rights to purchase or acquire from the Company, CCA or
CCAUK, any securities of the Company, and there are no contracts, commitments,
agreements, understandings, arrangements, or restrictions as to which the
Company, CCA or CCAUK is a party or by which any of them is bound relating to
any shares or other securities of the Company (including the Shares), whether or
not those shares or other securities have been issued.
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4.13. SHARES. The Shares are fully paid and constitute the whole of the
issued and allotted share capital of the Company. All of the shares of issued
capital stock of the Company are duly authorized, validly issued, and
outstanding and fully paid and nonassessable, and except for preemptive rights
set forth in the Company's Articles of Association (which have been waived) are
free of preemptive rights.
4.14. CONTRACTS. Schedule 4.14 hereto sets forth a complete and
accurate list of all contracts, agreements, consulting arrangements, purchase
orders, leases, subleases, options, and commitments, oral or written, and all
assignments, amendments, schedules, exhibits, and appendices thereof, affecting
or relating to the Company's business, the Company's assets, or any interest
therein to which the Company is a party or by which the Company or its business
assets or the share capital of the Company is bound or affected, including,
without limitation, service contracts, equipment leases, and leases of space and
ground leases (collectively, the "Contracts"); provided there shall be no breach
of this Section 4.14 if Immaterial Contracts as defined below, are omitted.
"Immaterial Contracts" shall mean contracts having a remaining term of less than
one (1) year and involving an expenditure of less than US$25,000 in the
aggregate for all obligations under any one contract or $1,000,000 in the
aggregate for all such contracts.
4.15. LICENSES AND PERMITS. The Company has all local and national
licenses, permits, registrations, certificates, consents, accreditation, and
approvals (collectively, the "Licenses and Permits") necessary to conduct its
business in a manner currently conducted. There is no default under any of the
Company's Licenses and Permits, no notices have been received by the Company or
its employees, agents, or representatives with respect to threatened, pending,
or possible revocation, termination, suspension, or limitation of any such
License or Permit, and there exists no grounds for revocation, suspension, or
limitation of any such License or Permit.
4.16. RELATED PARTY TRANSACTIONS. All transactions between CCA, CCAUK
and their affiliates on the one hand and the Company and its affiliates on the
other hand prior to the date hereof were conducted at arm's length and at fair
value.
4.17. FINANCIAL STATEMENTS. CCA and CCAUK have delivered to Buyer: (a)
audited balance sheet of the Company as at December 31, 1995, and the audited
profit and loss account and cash flow statement for the fiscal year then ended,
including the notes thereto, together with the report thereon of Deloitte &
Touche, independent certified public accountants (the "Audited Financial
Statements"), and (b) an unaudited consolidated balance sheet of the Company as
of October 31, 1996 (the "Unaudited Balance Sheet") and the related unaudited
consolidated statements of income, changes in shareholders' equity, and changes
in financial position for the period then ended, including the notes thereto
(the "Unaudited Financial Statements") (the Audited Financial Statements and the
Unaudited Financial Statements are collectively referred to herein as the
"Financial Statements"). The Financial Statements are true, complete, and
correct, and fairly present the consolidated assets, liabilities, financial
condition, and results of operations of the Company as of the respective dates
thereof, and for the periods therein referred to, subject, in the case of the
Unaudited Financial
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Statements, to normal recurring year-end adjustments. The net asset value of the
Company as of December 31, 1996 shall not be less than 150,000 Pounds.
4.18. NO UNDISCLOSED LIABILITY. The Company does not have any
liabilities or obligations of any nature, whether absolute, accrued, contingent,
or otherwise, and whether due or to become due (including, without limitation,
liabilities for taxes and interest, penalties, and other charges payable with
respect thereto) which are not reflected or reserved against in Financial
Statements or disclosed in the notes thereto. The reserves reflected in the
Financial Statements are adequate, appropriate, and reasonable in accordance
with generally accepted accounting principles applied on a consistent basis.
Furthermore, CCAUK does not have actual knowledge of or actual knowledge of any
basis for the assertion against the Company of any such liability or obligation
of any nature not fully reflected or reserved against in the Financial
Statements.
4.19. PROFESSIONAL FEES. The Sellers have not done anything to cause or
incur any liability or obligation of the Company for investment banking,
brokerage, finders, agents or other fees, commissions, expenses or charges in
connection with the negotiation, preparation, execution or performance of this
Agreement or the consummation of the transactions contemplated hereby, and
Sellers do not know of any claim by anyone for such a fee, commission, expense
or charge.
4.20. OFFERING OF SHARES. The offer, sale and transfer of the Shares by
CCAUK to Buyer will not require registration under United States securities laws
or the securities laws of England.
4.21. CONSENTS AND APPROVALS. Subject to the provisions of Section
7.06, Sellers have obtained or will have obtained prior to Closing, all
consents, approvals, authorizations or orders of third parties, including
governmental authorities, necessary for the authorization, execution and
performance of this Agreement by Sellers.
4.22. FULL DISCLOSURE. Neither the representations appearing in Article
IV of this Agreement, nor any schedule, exhibit, list, certificate or other
instrument and document furnished or to be furnished by Sellers to Buyer
pursuant to this Agreement, contains any untrue statement of a material fact or
omits to state any material fact required to be stated herein or therein or
necessary to make the statements and information contained herein or therein not
misleading.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF BUYER
In order to induce Sellers to enter into this Agreement and consummate
the transactions contemplated hereby, Buyer hereby represents and warrants to
Sellers as follows:
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5.01. ORGANIZATION AND GOOD STANDING. Buyer is a societe anonyme duly
organized, validly existing and in good standing under the laws of France and
has full corporate power and authority to enter into this Agreement and to carry
out the transactions contemplated hereby.
5.02. AUTHORIZATION. The Board of Directors of Buyer has taken all
action required to authorize the execution and delivery by Buyer of this
Agreement and the consummation by Buyer of the transactions contemplated hereby.
5.03. VALID AND BINDING AGREEMENT. This Agreement constitutes a valid
and binding agreement of Buyer, enforceable against Buyer in accordance with its
terms.
5.04. NO VIOLATION. The execution and delivery of this Agreement by
Buyer does not, and the consummation of the transactions contemplated hereby
will not, (a) violate any provision, or result in the creation of any lien or
security interest under, any agreement, indenture, instrument, lease, security
agreement, mortgage or lien to which Buyer is a party or by which it is bound;
(b) violate any order, arbitration award, judgment, writ, injunction, decree,
statute, rule or regulation applicable to Buyer; or (c) violate any other
contractual or legal obligation or restriction to which Buyer is subject.
5.05. PURCHASE FOR INVESTMENT. Buyer is acquiring the Shares for its
own account and not with a view to, or present intention of, distribution
thereof in violation of the federal securities laws of the United States or
England or any state securities or blue sky laws, and the Shares will not be
disposed of in contravention of such laws.
5.06. PROFESSIONAL FEES. Buyer has not done anything to cause or incur
any liability for investment banking, brokerage, finders, agents or other fees,
commissions, expenses or charges in connection with the negotiation,
preparation, execution and performance of this Agreement or the consummation of
the transactions contemplated hereby, and Buyer does not know of any claim by
anyone for such a commission or fee.
5.07. CONSENTS AND APPROVALS. Buyer has obtained or will have obtained
prior to Closing, all consents, approvals, authorizations or orders of third
parties, including governmental authorities, necessary for the authorization,
execution and performance of this Agreement by Buyer.
5.08. FULL DISCLOSURE. Neither the representations appearing in Article
V of this Agreement, nor any certificate or other instrument or document
furnished or to be furnished by Buyer to Seller pursuant to this Agreement,
contains any untrue statement of a material fact or omits to state a material
fact required to be stated herein or therein or necessary to make the statements
and information contained herein or therein not misleading.
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ARTICLE VI
COVENANTS AND AGREEMENTS OF PARTIES
The parties hereto agree that from the date hereof until the Closing,
and thereafter if so specified, it will fulfill the following covenants and
agreements unless otherwise consented to by Buyer in writing:
6.01. FURTHER ASSURANCES. At any time and from time to time after the
Closing, at the request of the other party hereto and without further
consideration, each of Sellers and Buyer will execute and deliver such other
instruments of sale, transfer, conveyance, assignment, and delivery and
confirmation and take such action as may reasonably be requested by another
party hereto in order more effectively to transfer, convey and assign to Buyer
and to place Buyer in possession and control of, and to confirm Buyer's title
to, the Shares, and to assist Buyer in exercising all rights and enjoying all
benefits with respect thereto.
6.02. CONSENTS AND APPROVALS. Each of Sellers and Buyer shall, in a
timely, accurate and complete manner, take all necessary corporate and other
action and use all reasonable efforts to obtain all consents, approvals,
permits, licenses and amendments of agreements required to carry out the
transactions contemplated in this Agreement.
6.03. NON-DISCLOSURE. Except as agreed to in writing by the other party
hereto, neither Sellers nor Buyer will disclose to any other person not an
employee of such entity (or a person otherwise involved in the carrying out of
the transactions contemplated by this Agreement), nor make any public
announcement of, the transactions contemplated by this Agreement prior to the
Closing. Any such disclosure to employees will be made on a need-to-know basis
and on the condition that such employees agree to be bound by the same
confidentiality terms.
ARTICLE VII
CONDITIONS TO BUYER'S OBLIGATIONS
All obligations of Buyer hereunder are subject to the fulfillment,
prior to or at the Closing, of each of the following conditions:
7.01. REPRESENTATIONS AND WARRANTIES. The representations and
warranties made by the Sellers in this Agreement shall be true when made and at
and as of the time of the Closing as though such representations and warranties
were made at and as of such date.
7.02. PERFORMANCE. Sellers shall have performed and complied with all
agreements, obligations, and conditions required by this Agreement to be so
complied with or performed.
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7.03. DUE DILIGENCE. Buyer shall have completed to its satisfaction, a
due diligence review of the Company.
7.04. OFFICER'S CERTIFICATE. Sellers shall have delivered to Buyer a
Certificate of an officer of CCA and/or CCAUK dated the Closing Date, certifying
as to the fulfillment of the conditions specified in Sections 7.01, 7.02, 7.06
and 7.07 hereof.
7.05. SHAREHOLDERS AGREEMENT. The parties hereto shall have entered
into a Shareholders Agreement and, if necessary, an amendment to the Articles of
Association which Agreement shall be in form and substance mutually agreeable to
both parties.
7.06. CONSENTS. All third party consents, including governmental
consents, shall have been obtained.
7.07. PURCHASE OF SHARES. CCAUK and/or CCA shall have acquired all
shares of the Company owned by Xxx Xxxxxx XxXxxxxx (Trade Investments) Ltd. and
that certain Shareholders Agreement dated 20 May 1993, made between Xxx Xxxxxx
XxXxxxxx (Holdings) Limited (1), Mowlem Developments Limited (2), CCA (UK)
Limited (3), Xxx Xxxxxx XxXxxxxx (Trade Investments) Limited (4), Xxxx Xxxxxx &
Company PLC (5), Corrections Corporation of America (6) and the Company (7), as
subsequently amended, shall have been terminated.
7.08. SECURITIES PURCHASE AGREEMENT AMENDMENT. CCA and Sodexho shall
have entered into an amendment to that certain Securities Purchase Agreement
dated June 23, 1994 to extend the expiration date of the Warrants referred to
therein to December 31, 1999 and to extend the nonconversion period of the 8.5%
Note and the Floating Rate Note (both as defined therein) to June 23, 1999.
ARTICLE VIII
CONDITIONS TO SELLER'S OBLIGATIONS
All obligations of Sellers under this Agreement are subject to the
fulfillment, prior to or at the Closing, of each of the following conditions:
8.01. REPRESENTATIONS AND WARRANTIES. The representations and
warranties made by the Buyer in this Agreement shall be true when made and at
and as of the time of the Closing as though such representations and warranties
were made at and as of such date.
8.02. PERFORMANCE. Buyer shall have performed and complied with all
agreements, obligations, and conditions required by this Agreement to be so
complied with or performed.
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8.03. OFFICER'S CERTIFICATE. Buyer shall have delivered to Seller a
Certificate of an officer of Buyer, dated the Closing Date, certifying as to the
fulfillment of the conditions specified in Sections 8.01 and 8.02 hereof.
8.04. CONSENTS. Sellers shall have received all consents required for
the consummation of the transactions contemplated hereby, all of which consents
shall be in form and substance satisfactory to Sellers.
ARTICLE IX
INDEMNIFICATION
9.01. INDEMNIFICATION BY SELLERS. The Sellers hereby agree to defend,
indemnify and hold harmless Buyer, its directors, officers, employees,
affiliates and agents, and shall reimburse Buyer for, from and against each
claim, loss, diminution in value, damages, liability, cost and expense
(including, without limitation, interest, penalties, costs of preparation and
investigation, and the reasonable fees, disbursements and expenses of attorneys,
accountants and other professional advisors) (collectively, "Losses"), directly
or indirectly relating to, resulting from or arising out of:
(a) Any untrue representation, misrepresentation, breach of warranty or
nonfulfillment of any covenant, undertaking, agreement or other obligation by or
of Sellers contained herein, or in any certificate, schedule, document or
instrument delivered to Buyer pursuant hereto.
(b) Any other Loss incidental to any of the foregoing.
9.02. INDEMNIFICATION BY BUYER. Buyer hereby agrees to defend,
indemnify and hold harmless Sellers, its directors, officers, employees,
affiliates and agents, and shall reimburse Sellers for, from and against Losses
directly or indirectly relating to, resulting from or arising out of:
(a) Any untrue representation, misrepresentation, breach of warranty or
nonfulfillment of any covenant, undertaking, agreement or other obligation by
Buyer contained herein or in any certificate, document or instrument delivered
to Sellers pursuant hereto.
(b) Any other Loss incidental to the foregoing.
9.03. PROCEDURE. (a) The indemnified party shall promptly notify the
indemnifying party of any claim, demand, action or proceeding for which
indemnification will be sought under Sections 9.01 or 9.02 of this Agreement
(but the failure to so notify shall not relieve the indemnifying party from its
obligations hereunder unless such failure irrevocably prejudices the
indemnifying party), and, if such claim, demand, action or proceeding is a third
party claim, demand, action or proceeding, the indemnifying party will have the
right at its expense to assume the defense thereof using counsel reasonably
acceptable to the indemnified party. The indemnified party shall have the right
to
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participate, at its own expense, with respect to any such third party claim,
demand, action or proceeding. In connection with any such third party claim,
demand, action or proceeding, Buyer and the Seller shall cooperate with each
other and provide each other with access to relevant books and records in their
possession. No such third party claim, demand, action or proceeding shall be
settled without the prior written consent of the indemnified party. If a firm
written offer is made to settle any such third party claim, demand, action or
proceeding and the indemnifying party proposes to accept such settlement and the
indemnified party refuses to consent to such settlement, then: (i) the
indemnifying party shall be excused from, and the indemnified party shall be
solely responsible for, all further defense of such third party claim, demand,
action or proceeding; and (ii) the maximum liability of the indemnifying party
relating to such third party claim, demand, action or proceeding shall be the
amount of the proposed settlement if the amount thereafter recovered from the
indemnified party on such third party claim, demand, action or proceeding is
greater than the amount of the proposed settlement.
(b) If the indemnified party reasonably determines (i) that there may
be a conflict between the positions of the indemnifying party and the
indemnified party in defending such claim or action, or (ii) that there may be
legal defenses available to such indemnified party different from or in addition
to those available to the indemnifying party, then separate counsel for the
indemnified party shall be entitled to participate in and conduct the defense,
or such different defenses, and the indemnifying party shall be liable for any
reasonable legal or other expenses incurred by the indemnified party in
connection with the defense.
(c) Judgments against and settlements entered into by the indemnified
party pursuant to Section 9.03(a) shall unconditionally release the indemnifying
party from liability for the particular claim, demand, action, or proceeding for
which indemnification was sought.
ARTICLE X
SURVIVAL OF REPRESENTATIONS
10.01. SURVIVAL OF REPRESENTATIONS. All representations, warranties,
covenants, indemnities and agreements by the parties contained in this Agreement
shall survive the Closing and any investigation at any time made by or on behalf
of any party hereto, and shall expire on the third anniversary of the Closing.
10.02. STATEMENTS AS REPRESENTATIONS. All statements contained in any
certificate, schedule, list, document or other writing delivered pursuant hereto
or in connection with the transactions contemplated hereby shall be deemed
representations and warranties for all purposes of this Agreement.
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10.03. REMEDIES CUMULATIVE. The remedies provided herein shall be
cumulative and shall not preclude the assertion by any party hereto of any other
rights or the seeking of any other remedies against the other party hereto.
ARTICLE XI
TERMINATION OF AGREEMENT
11.01. TERMINATION. This Agreement may be terminated at any time prior
to the Closing:
(a) By Buyer, if there has been a material violation or breach by CCA
or CCAUK of any of the agreements, representations or warranties contained in
this Agreement which has not been waived in writing, or if any of the conditions
set forth in Article VII hereof have not been satisfied by the Closing or have
not been waived in writing by Buyer.
(b) By CCAUK, if there has been a material violation or breach by the
Buyer of any of the agreements, representations or warranties contained in this
Agreement which has not been waived in writing, or if any of the conditions set
forth in Article VIII hereof have not been satisfied by the Closing or have not
been waived in writing by CCAUK.
(c) By either Buyer or CCAUK if the transactions contemplated by this
Agreement shall not have been consummated on or before December 31, 1996.
(d) By either Buyer or CCAUK if the other makes an assignment for the
benefit of creditors, files a voluntary petition in bankruptcy or seeks or
consents to any reorganization or similar relief under any present or future
bankruptcy act or similar law, or is adjudicated a bankrupt or insolvent, or if
a third party commences any bankruptcy, insolvency, reorganization or similar
proceeding involving the other.
11.02. EFFECT OF TERMINATION. In the absence of fraud or willful breach
on the part of Seller, or on the part of Buyer, then CCAUK will not have any
liability to Buyer, or Buyer will not have any liability to CCAUK, as the case
may be, under this Agreement if CCAUK or Buyer terminates this Agreement
pursuant to Section 11.01.
ARTICLE XII
MISCELLANEOUS
12.01. EXPENSES. All fees and expenses incurred by Sellers, including
without limitation, legal fees and expenses, in connection with this Agreement
will be borne by Sellers and all fees and
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expenses incurred by Buyer, including, without limitation, legal fees and
expenses, in connection with this Agreement will be borne by Buyer, provided,
however, that Buyer shall be responsible for all stamp duty which may be due to
any jurisdiction or governmental entity as a result of the purchase of the
Shares.
12.02. ASSIGNABILITY; PARTIES IN INTEREST.
(a) Buyer may assign any and all of its rights hereunder to any
affiliate of or any direct or indirect subsidiary of Buyer, and Buyer shall
advise Sellers of any such assignment and shall designate such party as the
assignee of this Agreement and transferee of the shares. Any such assignee shall
assume all of Buyer's duties, obligations and undertakings hereunder, but the
Buyer shall remain liable hereunder.
(b) Neither CCA nor CCAUK may assign, transfer or otherwise dispose of
any of its rights hereunder without the prior written consent of Buyer.
(c) All the terms and provisions of this Agreement shall be binding
upon, shall inure to the benefit of and shall be enforceable by the respective
transferees, heirs, successors, assigns and legal or personal representatives of
the parties hereto.
12.03. ENTIRE AGREEMENT; AMENDMENTS. This Agreement, including the
exhibits, schedules, lists and other documents and writings referred to herein
or delivered pursuant hereto, which form a part hereof, contains the entire
understanding of the parties with respect to its subject matter. There are no
restrictions, agreements, promises, warranties, covenants or undertakings other
than those expressly set forth herein or therein. This Agreement supersedes all
prior agreements and undertakings between the parties with respect to its
subject matter. This Agreement may be amended only by a written instrument duly
executed by all parties or their respective transferees, heirs, successors,
assigns or legal personal representatives. Any condition to a party's
obligations hereunder may be waived, but only by a written instrument signed by
the party entitled to the benefits thereof. The failure or delay of any party at
any time or times to require performance of any provision or to exercise its
rights with respect to any provision hereof, shall in no manner operate as a
waiver of or affect such party's right at a later time to enforce the same.
12.04. HEADINGS. The section and paragraph headings contained in this
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretations of this Agreement.
12.05. SEVERABILITY. The invalidity of any term or terms of this
Agreement shall not affect any other term of this Agreement, which shall remain
in full force and effect.
12.06. NOTICES. All notices, request, claims, demands and other
communications hereunder shall be in writing and shall be deemed to have been
duly given if delivered or mailed (registered or certified mail, postage
prepaid, return receipt requested) as follows:
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If to Sellers:
Corrections Corporation of America (U.K.) Limited
Corrections Corporation of America
000 Xxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxxx 00000
Attn: Doctor X. Xxxxxx
With a copy to:
Xxxxxxxxx X. Xxxxx, Esq.
Xxxxxx & Xxxxxxxxxxx, P.A.
000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxx, Xxxxxxxxx 00000
If to Buyer:
Sodexho S.A.
0, xxxxxx Xxxxxx
00000 Xxxxxxxx-xx-Xxxxxxxxxx
XXXXXX
Attn: Xxxx-Xxxxxx Cuny
With a copy to:
Ropes & Xxxx
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, XX 00000
Attn: Xxxx Xxxxxxxxx
or to such other address as any party may have furnished to the others in
writing in accordance herewith, except that notices of change of address shall
only be effective upon receipt.
12.07. 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. Subject to Section 12.09 hereof, 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, subject to Section 12.09
hereof, 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 the English courts. This being in addition to any other
remedy to which they may be entitled at law or equity.
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12.08. COUNTERPARTS. This Agreement may be executed simultaneously in
one or more counterparts, with the same effect as if the signatories executing
the several counterparts had executed one counterpart, provided, however, that
the several executed counterparts shall together have been signed by Buyer and
the Sellers. All such executed counterparts shall together constitute one and
the same instrument.
12.09. DISPUTE RESOLUTION.
(a) Any party to this Agreement claiming that a dispute has arisen in
connection with the negotiation, execution, interpretation, performance or
nonperformance of this Agreement between any of the parties to this Agreement
shall give notice to the other party in dispute designating as its
representative in negotiations relating to the dispute a person with authority
to settle the dispute and the other party given written notice shall promptly
give notice in writing to the first party designating as its representative in
negotiations relating to the dispute a person with similar authority.
(b) The designated persons shall within 10 days of the last designation
required by subsection (a), following whatever investigations each deems
appropriate, seek to resolve the dispute.
(c) If the dispute is not resolved within the following 10 days (or
within such further period as the representatives may agree is appropriate) the
parties hereto agree that such dispute shall be solely and finally settled by
arbitration in accordance with the international rules of the International
Chamber of Commerce. All such proceedings shall be conducted in Geneva,
Switzerland.
(d) The parties acknowledge that the purpose of any exchange of
information or documents or the making of any offer of settlement pursuant to
this Section is to attempt to settle the dispute between the parties. No party
may use any information or documents obtained through the dispute resolution
process established by this Section for any purpose other than in an attempt to
settle a dispute between that party and the other party to this Agreement.
(e) After the expiration of the time established by this Section for
agreement on a dispute resolution process, any party which has complied with the
provisions of this Section may in writing terminate the dispute resolution
process provided for in this Section and may then commence Court proceedings
relating to the dispute.
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IN WITNESS WHEREOF, this Agreement has been duly executed and delivered
by the duly authorized officers of Buyer and by the Seller on the date first
above written.
BUYER:
SODEXHO S.A.
By: /s/
-----------------------------------------
Title:
--------------------------------------
SELLERS:
CORRECTIONS CORPORATION OF AMERICA (U.K.)
LIMITED
By: /s/
-----------------------------------------
Title:
--------------------------------------
CORRECTIONS CORPORATION OF AMERICA
By: /s/
-----------------------------------------
Title:
--------------------------------------
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SCHEDULES TO
PURCHASE AGREEMENT
AMONG
CORRECTIONS CORPORATION OF AMERICA,
CORRECTIONS CORPORATION OF AMERICA (U.K.) LIMITED
AND
CORRECTIONS CORPORATION OF AMERICA
AND
SODEXHO S.A.
DATED AS OF DECEMBER 31, 1996
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SCHEDULE 2.02
That certain Performance Bond dated 23rd December 1992 executed by UKDS
and CCA in connection with the contract between UKDS and the Home Office for the
operation of the Blackenhurst facility along with a related Deed of Counter
Indemnity dated 2nd April 1993
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SCHEDULE 4.14
MATERIAL CONTRACTS
1. Agreement, dated 3 December 1992, between UK Detention Services Limited and
the Secretary of State for the Home Department with regard to the operation and
management of the Blakenhurst Prison.
2. Agreement between UK Detention Services Limited and Worcester Royal Infirmary
regarding medical department management and staffing.
3. Agreement between UK Detention Services Limited and Xxxx Xxxxxx regarding
inmate education and industries management.
4. Agreement between UK Detention Services Limited and Xxxxxx X'Xxxxx regarding
maintenance.
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