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EXHIBIT 10.86
1998 AMENDMENT TO
1994 SECURITIES PURCHASE AGREEMENT BY AND BETWEEN
CORRECTIONS CORPORATION OF AMERICA AND SODEXHO S.A.
This 1998 AMENDMENT TO 1994 SECURITIES PURCHASE AGREEMENT BY AND
BETWEEN CORRECTIONS CORPORATION OF AMERICA AND SODEXHO S.A., dated December 30,
1998 (the "1998 Amendment"), is entered into by and between Sodexho Alliance,
S.A., a French societe anonyme and successor in interest to Sodexho S.A., a
French societe anonyme (the "Purchaser"), and Corrections Corporation of
America, a Tennessee corporation and successor in interest to a Delaware
corporation of the same name (the "Corporation").
W I T N E S S E T H:
WHEREAS, the Corporation and the Purchaser are parties to that certain
Securities Purchase Agreement, dated as of June 23, 1994, as amended on July 11,
1995, December 31, 1996 and December 31, 1997 (the Securities Purchase
Agreement, as amended, known as the "Securities Purchase Agreement"), pursuant
to which, among other things, the Purchaser received the right to purchase up to
$20,000,000 aggregate principal amount Floating Rate Convertible Note (the
"Floating Rate Note") from the Corporation;
WHEREAS, the Corporation and CCA Prison Realty Trust, a Maryland real
estate investment trust ("Prison Realty"), have entered into an Amended and
Restated Agreement and Plan of Merger, dated September 29, 1998 (the "Merger
Agreement"), pursuant to which: (i) CCA will merge with and into Prison Realty
Corporation, a Maryland corporation ("New Prison Realty"), with New Prison
Realty as the surviving entity (the "CCA Merger"); and (ii) Prison Realty will
merge with and into New Prison Realty, with New Prison Realty as the surviving
entity (the "Prison Realty Merger") (collectively, the "Merger");
WHEREAS, in connection with the Merger and in order that New Prison
Realty will qualify and operate as a real estate investment trust for federal
income tax purposes under all applicable laws, rules and regulations after
completion of the Merger, immediately prior to completion of the Merger, CCA
will, among other things, (i) sell all of the issued and outstanding capital
stock of certain of its wholly-owned corporate subsidiaries to Correctional
Management Services Corporation, a Tennessee corporation ("CMSC"), and (ii)
sell, transfer, assign and convey all right, title and interest in and to
certain contracts with government entities relating to the management and
operation of correctional and detention facilities by CCA, together with certain
accounts receivable and accounts payable related thereto and certain other net
assets used in connection therewith, to CMSC;
WHEREAS, Purchaser, together with Baron Asset Fund, a Massachusetts
business trust, on behalf of the Baron Asset Fund Series ("Baron"), has entered
into a Stock Purchase Agreement, dated as of even date herewith (the "Stock
Purchase Agreement"), with CMSC, pursuant to which each of Purchaser and Baron
has agreed to purchase one million seven hundred forty-nine thousand five
hundred thirty-two (1,749,532) shares of common stock, $0.01 par value per
share, of CMSC in accordance with the terms and conditions thereof; and
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WHEREAS, in connection with the Merger and the Stock Purchase
Agreement, the Purchaser now desires, and the Corporation has agreed, to amend
the Securities Purchase Agreement to provide that, if the Purchaser exercises
its right to purchase the Floating Rate Note, the ability of the Purchaser to
effect the conversion of the Floating Rate Note is conditioned upon completion
of the Merger, but that, upon completion of the Merger, the Floating Rate Note
shall be convertible upon its original terms.
NOW, THEREFORE, for and in consideration of the premises and the mutual
promises, covenants and conditions set forth in this 1998 Amendment and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Corporation and the Purchaser hereby agree as follows:
1. Amendment of Section 1 of Exhibit E to the Securities Purchase
Agreement. Section 1 of Exhibit E to the Securities Purchase Agreement is hereby
amended by inserting the following:
"Merger" means, collectively, the mergers of the Corporation
and CCA Prison Realty Trust, a Maryland real estate investment
trust ("Prison Realty"), with and into Prison Realty
Corporation, a Maryland corporation ("New Prison Realty"),
pursuant to the Amended and Restated Agreement and Plan of
Merger, dated as of September 29, 1998, by and among the
Corporation, Prison Realty and New Prison Realty.
"New Prison Realty Ownership Limit" means, with respect to
shares of New Prison Realty common stock, $0.01 par value per
share (the "New Prison Realty Common Stock"), 9.8% of the
outstanding shares of New Prison Realty Common Stock.
2. Amendment of Section 2(a) of Exhibit E to the Securities Purchase
Agreement. The first sentence of Section 2(a) of Exhibit E to the Securities
Purchase Agreement is hereby amended by deleting such sentence in its entirety,
and by substituting in lieu thereof the following:
Subject to and upon compliance with the provisions of this
Note, and Sections 2.1 and 8 of that certain Securities
Purchase Agreement by and among the Holder and the Corporation
dated as of June 23, 1994 as amended (the "Securities
Agreement"), the Holder is entitled, at its option, at any
time on or before the close of business on _________________,
or in case this Note or a portion hereof is called for
conversion by the Corporation, or the Holder requests
prepaying in accordance with the terms hereof, then in respect
of this Note or such portion hereof until and including, but
not after, the close of business on the third Business Day
prior to the Mandatory Repayment Date, to convert this Note
into fully paid and nonassessable shares of Common Stock;
provided, however, that: (i) the Corporation shall not be
entitled to call all or any portion of this Note and the
Holder shall not be entitled to convert all or a portion of
this Note into fully paid and nonassessable shares of Common
Stock unless and until the Merger is consummated; and (ii) the
Holder shall not be entitled to convert all or a portion of
this Note into fully paid and nonassessable shares of
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New Prison Realty Common Stock if such conversion would result
in the Holder beneficially (through the application of Section
544 of the Internal Revenue Code of 1986, as amended (the
"Code"), as modified by Section 856(h)(1)(B) of the Code) or
constructively (through the application of Section 318 of the
Code, as modified by Section 856(d)(5) of the Code) owning,
directly or indirectly, shares of New Prison Realty Common
Stock in excess of the New Prison Realty Ownership Limit.
3. Amendment of Other Documents. All other provisions contained in the
Securities Purchase Agreement, any exhibits or attachments thereto, and any
documents or instruments referred to therein, shall be hereby amended, where
appropriate and the context permits, to reflect the amendments contained in
Sections 1 and 2 above.
4. Effectiveness of this 1998 Amendment. This 1998 Amendment shall
become effective immediately upon the effectiveness of the CCA Merger.
5. Corporate Power and Authorization. The Corporation hereby warrants
and represents to Purchaser that: (i) it has the requisite corporate power and
authority to execute, deliver and perform its obligations under this 1998
Amendment; (ii) the execution and delivery by the Corporation of this 1998
Amendment and the consummation of the transactions contemplated hereby (a) have
been duly authorized by all necessary corporate action on the part of the
Corporation and (b) do not and will not require any authorization, consent,
approval or license from or any registration, qualification, designation,
declaration or filing with, any court or governmental department, commission,
board, bureau, agency or instrumentality, domestic or foreign; and (iii) this
1998 Amendment has been duly and validly executed and delivered by the
Corporation and constitutes the legal, valid and binding obligation of the
Corporation, enforceable in accordance with its terms.
6. Miscellaneous.
6.1. Amendment to Securities Purchase Agreement. The Securities
Purchase Agreement is hereby, and shall henceforth be deemed to be,
amended, modified and supplemented in accordance with the provisions
hereof, and the respective rights, duties and obligations under the
Securities Purchase Agreement shall hereafter be determined, exercised
and enforced under the Securities Purchase Agreement, as amended,
subject in all respects to such amendments, modifications and
supplements and all terms and conditions of this 1998 Amendment.
Initially capitalized terms used in this 1998 Amendment shall have the
meanings ascribed thereto in the Securities Purchase Agreement, as
amended hereby, unless otherwise defined herein.
6.2. Ratification of the Securities Purchase Agreement. Except as
expressly set forth in this 1998 Amendment, all agreements, covenants,
undertakings, provisions, stipulations, and promises contained in the
Securities Purchase Agreement and the Securities are hereby ratified,
re-adopted, approved and confirmed and remain in full force and effect.
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6.3. No Implied Waiver. The execution, delivery and performance of this
1998 Amendment shall not, except as expressly provided herein,
constitute a waiver or modification of any provision of, or operate as
a waiver of any right, power or remedy of the Purchaser under, the
Securities Purchase Agreement or prejudice any right or remedy that the
Purchaser may have or may have in the future under or in connection
with the Securities Purchase Agreement or any instrument or agreement
referred to therein. The Corporation acknowledges and agrees that the
representations and warranties of the Corporation contained in the
Securities Purchase Agreement and in this 1998 Amendment shall survive
the execution and delivery of this 1998 Amendment and the effectiveness
hereof.
6.4. Governing Law. The parties hereby expressly agree that this 1998
Amendment shall be governed by, and construed and enforced in
accordance with, the laws of the State of New York. The English
language version of all documents relating to the transactions
contemplated hereby will govern.
6.5. Counterparts; Facsimile Execution. This 1998 Amendment may be
executed in counterparts, each of which shall be deemed to be an
original, but all of which together shall constitute one and the same
instrument. Delivery of an executed counterpart of this 1998 Amendment
by facsimile shall be equally as effective as delivery of a manually
executed counterpart. Any party delivering an executed counterpart of
this 1998 Amendment by facsimile shall also deliver a manually executed
counterpart, but the failure to deliver a manually executed counterpart
shall not affect the validity, enforceability, and binding effect of
this 1998 Amendment.
6.6. Successors and Assigns. This 1998 Amendment, and all covenants
contained herein, shall bind and inure to the benefit of the parties
hereto and their respective successors and assigns.
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IN WITNESS WHEREOF, the undersigned have caused this 1998 Amendment to
be executed by their duly authorized officers as of the date first written
above.
PURCHASER:
SODEXHO ALLIANCE, S.A.
By: /s/ Jean-Pierre Cuny
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Its: Senior Vice President
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CORPORATION:
CORRECTIONS CORPORATION OF AMERICA
By: /s/ Darrell K. Massengale
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Its: Chief Financial Officer and Secretary
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