EXHIBIT 10.5
EXTENSION
OF
ASSET PURCHASE AGREEMENT
THIS EXTENSION, made and entered into as of the 30th day of
September, 1999, by and among BHS CONSULTING CORP., a Delaware corporation
("Seller"), ▇▇▇▇▇ ▇. ▇▇▇▇▇ and ▇▇▇▇▇ ▇. ▇▇▇▇▇ (the "Shareholders"), and CORNELL
CORRECTIONS, INC., a Delaware corporation ("Purchaser").
WITNESSETH:
WHEREAS, Seller and Shareholders have entered into that certain
Asset Purchase Agreement, dated May 10, 1999 with Purchaser (the "Purchase
Agreement"), whereby Purchaser is to purchase and Seller is to sell certain
assets of Seller not later than
September 30, 1999;
WHEREAS, although the Purchase Agreement is not conditioned on
financing, Purchaser has asked Seller to agree to extend such September 30 date
to enable Purchaser additional time to arrange financing;
WHEREAS, Seller is willing to agree to such extension on the
terms and conditions set forth
below;
WHEREAS, the parties desire to amend the Purchase Agreement to
reflect certain developments which have occurred since its execution and to
reflect certain agreements concerning the closing;
NOW, THEREFORE, the parties hereto hereby agree as follows:
SECTION 1. EXTENSION. Section 2.1 of the Purchase Agreement is
hereby amended to
provide in its entirety as follows:
The closing of the purchase and sale provided for herein (the
"Closing") shall take place at the offices of ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ in
Chicago, Illinois, on such date, not earlier than October 14, 1999
and not later than November 15, 1999 (the "Closing Period"), as may
be designated by Seller by not less than two (2) business days prior
notice to Purchaser, or at such other place, or such other time or
date not later than November 15, 1999 as may be agreed upon by the
parties in writing; provided, that Seller shall not designate a
closing date which is earlier than the date of the closing of the
transactions contemplated by the Interventions/IDDRS Purchase
Agreement (as defined in Section 9.1(m) below) unless a date for the
closing of the Interventions/IDDRS Purchase Agreement transactions
is not scheduled so that such closing will occur during the Closing
Period. For purposes of this Agreement, the date on which the
Closing actually occurs is referred to as the "CLOSING DATE".
Paragraph (e) of Section 10.1 of the Purchase Agreement is hereby amended to
provide in its entirety as follows:
"(f) by Seller or Purchaser by written notice thereof to the other
if the transactions contemplated hereby shall not have been
consummated by
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November 15, 1999, PROVIDED, however, that the party giving such
notice has not caused the failure to close by that party's breach of
this Agreement."
The parties acknowledge that nothing set forth above in this Section 1 shall
impair any of the conditions to closing set forth in the Purchase Agreement, as
amended by this Agreement.
SECTION 2. ▇▇▇▇▇▇▇ MONEY. Concurrently with the execution of this
Agreement, Purchaser is paying to Seller the sum of $500,000 ("▇▇▇▇▇▇▇ Money")
by delivery to Seller of a check representing immediately available funds. The
▇▇▇▇▇▇▇ Money shall be applied against the Purchase Price at Closing. Except as
set forth in the next sentence of this Section 2, if the Purchase Agreement is
terminated pursuant to Section 10.1 of the Purchase Agreement, Seller shall
refund the ▇▇▇▇▇▇▇ Money to Purchaser within three business days after such
termination of the Purchase Agreement, and if such termination resulted from a
material breach by Seller of its obligations under this Agreement, Purchaser
shall also have the right to seek any and all remedies that may be available to
it. If the Purchase Agreement is terminated by Seller pursuant to Section
10.1(c) of the Purchase Agreement as a result of a material breach by Purchaser
of its obligations under this Agreement, Seller shall retain all or a portion of
the ▇▇▇▇▇▇▇ Money as necessary against its actual damages in addition to any and
all other remedies which Seller may have if the termination occurs as a result
of a material breach by Purchaser of the Purchase Agreement.
SECTION 3. STATUS OF CLOSING CONDITIONS AND COMPLIANCE. Purchaser
waives any right which it may now or might hereafter have to refuse to close the
purchase under the Purchase Agreement based on any adverse change heretofore
occurring in the business, financial condition, properties, expenses or results
of operations of Seller. Section 9.1 of the Purchase Agreement is hereby amended
to delete paragraphs (f) (Due Diligence) and (g) (Absence of Material Adverse
Effect). The Purchase Agreement is hereby amended to delete from paragraph (d)
of Section 9.1 the phrase, "or otherwise adversely affected. . . ."
SECTION 4. ACQUISITION ASSETS. Subparagraph (ix) of Section 3.1 of
the Purchase Agreement is hereby deleted in its entirety.
SECTION 5. INTERIM MANAGEMENT FEES. If the Closing Date is any day
other than the first day of a calendar month, at Purchaser's option, Seller
agrees to waive (or forward to Purchaser if received by Seller) its management
fees accrued pursuant to the Interventions Contract and the IDDRS Contract which
are attributable to the Transferred Programs (as such term is defined in the
IDDRS/Interventions Purchase Agreement) beginning on the first day of the month
in which the Closing Date occurs and ending at Closing (the "Interim Management
Fees") in exchange for an increase to the amount of consideration paid to BHS at
the Closing under the Noncompetition Agreement referred to in Section 9.1(q) to
be executed by BHS by an amount equal to such Interim Management Fees.
SECTION 6. SUPPLEMENTAL CERTIFICATES FOR OPINIONS OF COUNSEL.
Notwithstanding anything in the Purchase Agreement to the contrary, each of the
opinions of counsel to be delivered at the Closing may, at the option of the
signatory of the opinion letter in question, also include a statement reciting
that the opinion giver has, with the permission of the recipient of the opinion
letter and without any investigation or independent confirmation, for purposes
of its opinion that any document (other than a document which is executed and
delivered at the Closing) to which its client or clients is a party has been
duly and validly executed and delivered by its client or clients, relied only
upon, and assumed the accuracy of, a certificate executed by its client or
clients substantially in the form of the certificate attached hereto as EXHIBIT
A, appropriately completed.
SECTION 7. NO TRANSFER OF RIGHTS. Purchaser hereby represents and
warrants to Seller that it has not transferred or suffered to be transferred to
or acquired by any other person any of Purchaser's rights
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under or interest in the Purchase Agreement.
SECTION 8. EFFECT OF EXTENSION. The Purchase Agreement as
amended and modified by
this Extension remains in full force and effect.
SECTION 9. COUNTERPARTS. This Extension may be executed in separate
counterparts, each of which shall be an original and all of which taken together
shall constitute one and the same agreement. A facsimile copy of a signature
hereto shall be fully effective as if it constituted an original signature.
Without limiting the foregoing, the parties agree upon request to deliver or
cause to be delivered to each other the original signature pages used to create
any facsimile.
IN WITNESS WHEREOF, the parties have executed or have caused this
Extension to be executed by their respective officers duly authorized thereunto
on the day
first above written.
CORNELL CORRECTIONS, INC. BHS CONSULTING CORP.
By: _________________________________ By:_________________________________
Its: _________________________________ Its:_________________________________
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▇▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇
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EXHIBIT A -- FORM OF SUPPLEMENTAL CERTIFICATE FOR OPINIONS
SIGNATURE AND DELIVERY CONFIRMATION
The undersigned hereby certify to ________________ that:
1. the signature pages attached hereto are true and correct copies
of the signature pages to the
__________________________entered into by and among _____________;
2. the undersigned [is][are] the person[s] who executed and delivered
the ______________ for [themselves, individually, and][on behalf of
___________];
3. the signature[s] of the undersigned [was][were] made upon a
counterpart of the _______________ transmitted to the undersigned by
telecopier, and the undersigned delivered the ________________ to
_______________on __________by transmitting such executed
counterpart to ________________on ___________; and
4. this certificate is given so that ________________ may rely upon it
for purposes of the opinion of counsel to be given by ______________
to
--------------------.
Dated:_______________, 1999.
[Signature[s]]
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