Exhibit 2.3
EXECUTION COPY
STOCKHOLDER VOTING AGREEMENT
STOCKHOLDER VOTING AGREEMENT, dated as of April 8, 2003 between
Psychiatric Solutions, Inc., a Delaware corporation ("Acquiror"), and each of
▇▇▇▇ ▇. ▇▇▇▇▇▇ ("▇▇▇▇▇▇"), ▇▇▇▇▇▇ Holdings HSA Limited ("HSA"), ▇▇▇▇ ▇▇▇▇▇▇
Holdings Pty. Limited ("Holdings") and ▇▇▇▇ ▇▇▇▇▇▇ Hospitals Pty. Limited
("Hospitals") (Ramsay, HSA, Holdings and Hospitals being, collectively, the
"Stockholder").
WHEREAS, Acquiror, Acquiror's wholly owned subsidiary, PSI Acquisition
Sub, Inc., a Delaware corporation (the "Subsidiary"), and Ramsay Youth Services,
Inc., a Delaware corporation (the "Company"), are entering into an Agreement and
Plan of Merger, dated the date hereof (the "Merger Agreement"), which provides
for the merger of the Subsidiary with the Company, on the terms and subject to
the conditions set forth in the Merger Agreement (the "Merger"). Capitalized
terms used herein and not otherwise defined shall have the meanings assigned
thereto in the Merger Agreement.
WHEREAS, Stockholder is the beneficial owner of approximately 59.4% of
the outstanding common stock, par value $.01 per share, of the Company (the
"Company Common Stock").
WHEREAS, as a condition to the willingness of Acquiror and the
Subsidiary to enter into the Merger Agreement, Stockholder has agreed to vote
all of the shares of Company Common Stock owned by Stockholder as of the date
hereof and any shares acquired by Stockholder after the date hereof (including
any shares acquired pursuant to the exercise of any options or rights to
purchase, the conversion of convertible securities or otherwise) (collectively,
the "Shares") as provided in this Agreement.
NOW, THEREFORE, the parties hereby agree as follows:
1. AGREEMENT TO VOTE. Stockholder agrees that, during the time this
Agreement is in effect, at any meeting of the stockholders of the Company,
however called, or in connection with any written consent of the stockholders of
the Company, Stockholder shall vote (or cause to be voted) the Shares (i) in
favor of the adoption of the Merger Agreement and each of the other actions
contemplated by the Merger Agreement and any actions required in furtherance
hereof and thereof; (ii) against any action or agreement that would result in a
breach of any covenant, representation or warranty or any other obligation or
agreement of the Company under the Merger Agreement; and (iii) except as
specifically requested in writing by Acquiror in advance, against the following
actions (other than the Merger and the transactions contemplated by the Merger
Agreement): (1) any extraordinary corporate transaction, such as a merger,
consolidation or other business combination involving the Company or its
subsidiaries; (2) a sale, lease or transfer of a material amount of assets of
the Company or its subsidiaries or a reorganization, recapitalization,
dissolution or liquidation of the Company or its subsidiaries; and (3) (a) any
change in the majority of the board of directors of the Company; (b) any
material change in the present capitalization of the Company or any amendment of
the Company's Certificate of Incorporation; (c) any other material change in the
Company's corporate structure or business; or (d) any other action which is
intended or could reasonably be expected to impede, interfere with, delay,
postpone, discourage or materially adversely affect the Merger or the
transactions contemplated by the Merger Agreement. Stockholder shall not enter
into any agreement or understanding with any person or entity prior to the
termination of this Agreement or vote or give instructions prior to the
termination of this Agreement in any manner inconsistent with clauses (i), (ii)
or (iii) of the preceding sentence.
2. LIMITATION. Stockholder will retain at all times the right to vote
the Shares, in Stockholder's sole discretion, on all matters other than those
set forth in Section 1 of this agreement which are at any time or from time to
time presented for a vote to the Company's stockholders generally.
3. REPRESENTATIONS, WARRANTIES AND COVENANTS OF STOCKHOLDER.
Stockholder represents and warrants to, and agrees with, Acquiror that:
(a) this Agreement has been duly executed and delivered by
Stockholder and constitutes a valid and legally binding obligation of
Stockholder enforceable in accordance with its terms;
(b) Stockholder is not subject to or obligated under any
provision of (i) any contract, (ii) any license, franchise or permit or
(iii) any law, regulation, order judgment or decree which would be
breached or violated by Stockholder's execution, delivery and
performance of this Agreement and the consummation of the transactions
contemplated hereby;
(c) no authorization, consent or approval of, or any filing
with, any public body or authority is necessary for consummation by
Stockholder of the transactions contemplated by this Agreement;
(d) as of the date of this Agreement, the Shares consist of:
(i) 5,916 shares of Company Common Stock owned
by Ramsay and 550,000 shares of Company
Common Stock which may be acquired upon the
exercise by Ramsay of stock options which
provide for an exercise price per share
which is less than $5.00 (which options are
currently exercisable as to 366,666 shares);
(ii) 3,731,339 shares of Company Common Stock
owned by Holdings;
(iii) 751,024 shares of Company Common Stock owned
by Hospitals; and
(iv) 906,352 shares of Company Common Stock owned
by HSA; and
(e) on the date hereof Stockholder has, and Stockholder will
have at all times up to the earlier of (i) the termination of this
Agreement or (ii) the Effective Time, the unrestricted power to vote
the Shares and the sole power to demand appraisal rights with respect
to the Shares.
2
4. EXPENSES. Each party will pay its or his own expenses incurred in
connection with this Agreement.
5. CAPACITY. The parties hereby agree that Ramsay is executing this
Agreement solely in his individual capacity and in his capacity as an authorized
signatory on behalf of each of HSA, Hospitals and Holdings. Nothing contained in
this Agreement shall limit or otherwise affect Ramsay's conduct or exercise of
his fiduciary and other duties, rights or entitlements as a director or Chairman
of the Company.
6. AMENDMENT. This Agreement may not be modified, amended, altered or
supplemented except upon the execution and delivery of a written agreement
executed by Acquiror and Stockholder. No party to this Agreement may assign any
of its or his rights or obligations under this Agreement without the prior
written consent of the other party, except that the rights and obligations of
Acquiror hereunder may be assigned by Acquiror to any of its corporate
affiliates.
7. NOTICES. All notices and other communications hereunder shall be in
writing and shall be given and shall be deemed to have been duly given if
delivered in person, by cable, telegram, telex or facsimile transmission, to the
parties as follows:
If to Stockholder: c/o ▇▇▇▇ ▇. ▇▇▇▇▇▇
Ramsay Health Care Ltd.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇. ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇
With a copy to:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
If to Acquiror: Psychiatric Solutions, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇-▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇
or to such other address as either party may have furnished to the other in
writing in accordance herewith, except that notices of change of address shall
only be effective upon receipt.
8. COUNTERPARTS; FACSIMILE SIGNATURE. This Agreement may be executed in
two or more counterparts, including by facsimile signature, each of which shall
be deemed to be an original, but all of which together shall constitute one and
the same document.
3
9. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware.
10. BINDING EFFECT. This Agreement shall be binding upon, inure to the
benefit of, and be enforceable by the heirs, personal representatives,
successors and permitted assigns of the parties. Nothing expressed or referred
to in this Agreement is intended or shall be construed to give any person other
than the parties to this Agreement, or their respective heirs, personal
representatives, successors or assigns, any legal or equitable right, remedy or
claim under or in respect of this Agreement or any provision contained herein.
11. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between the parties with respect to the subject matter hereof.
12. TERMINATION. This Agreement shall terminate on the earlier to occur
of (i) the Effective Time, (ii) termination of the Merger Agreement or (iii) at
the option of the Stockholder, the execution or granting of any amendment,
modification, change or waiver with respect to the Merger Agreement subsequent
to the date of this Agreement, that results in any decrease in the price to be
paid per share for the shares of Company Common Stock. Upon termination, this
Agreement shall forthwith become void and there shall be no liability or
obligations hereunder on the part of either Acquiror or Stockholder, except to
the extent of any other relief due to Acquiror under Section 15 hereof.
13. SEVERABILITY. If any term, provision, covenant or restriction of
this Agreement is held by a court of competent jurisdiction to be invalid, void
or unenforceable, the remainder of the terms, provisions, covenants and
restrictions of this Agreement shall remain in full force and effect and shall
in no way be affected, impaired or invalidated.
14. FURTHER ASSURANCES. Stockholder will, upon the request of Acquiror,
execute and deliver such documents and take such action reasonably deemed by
Acquiror to be necessary or desirable to effectuate the purposes of this
Agreement.
15. REMEDIES. The parties hereto acknowledge that Acquiror will be
irreparably harmed and that there will be no adequate remedy at law for a
violation of any of the covenants or agreements of Stockholder set forth herein.
Therefore, it is agreed that, in addition to any other remedies that may be
available to Acquiror upon any such violation, Acquiror shall have the right to
enforce such covenants and agreements by specific performance, injunctive relief
or by any other means available to Acquiror at law or in equity.
16. TRANSFERS OF SHARES; LIMITATIONS. Nothing in this Agreement shall
be deemed to prohibit or restrict the right of Ramsay, Holdings, Hospital and
HSA to transfer Shares to any corporation or entity wholly owned, directly or
indirectly, by Ramsay; provided, however, that the transferee shall in each case
agree in writing, as a condition of such transfer, to be bound by the provisions
of this Agreement. Except as expressly contemplated by this Agreement,
Stockholder will not, directly or indirectly, voluntarily: (i) offer for sale,
sell, transfer, tender, pledge, encumber, assign or otherwise dispose of,
enforce or permit the execution of the provisions of any redemption agreement
with the Company or enter into any contract, option or other arrangement or
understanding with respect to or consent to the offer for sale, sale, transfer,
4
tender, pledge, encumbrance, assignment or other disposition of, any or all of
the Shares or any interest therein; (ii) grant any proxies or powers of
attorney, deposit any Shares into a voting trust or enter into a voting
agreement with respect to any Shares; or (iii) take any action that would make
any representation or warranty of Stockholder contained herein untrue or
incorrect or have the effect of preventing or disabling Stockholder from
performing Stockholder's obligations under this Agreement.
REMAINDER OF PAGE INTENTIONALLY LEFT BLANK.
5
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
ACQUIROR: STOCKHOLDER:
PSYCHIATRIC SOLUTIONS, INC.
By:
----------------------------
-----------------------------------
Title: ▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------
RAMSAY HOLDINGS HSA LIMITED
By:
-------------------------------
Title:
----------------------------
▇▇▇▇ ▇▇▇▇▇▇ HOLDINGS PTY. LIMITED
By:
-------------------------------
Title:
----------------------------
▇▇▇▇ ▇▇▇▇▇▇ HOSPITALS PTY. LIMITED
By:
-------------------------------
Title:
----------------------------
6
