EXHIBIT 4.5
PSYCHIATRIC SOLUTIONS, INC.
THIRD AMENDED AND RESTATED VOTING AGREEMENT
THIS THIRD AMENDED AND RESTATED VOTING AGREEMENT (the "AGREEMENT") is
made and entered into this 6th day of January, 2003 by and among PSYCHIATRIC
SOLUTIONS, INC., a Delaware corporation formerly known as PMR Corporation (the
"COMPANY"), those certain holders of the Company's capital stock listed on
Exhibit A hereto (collectively, the "INVESTORS") and THE 1818 MEZZANINE FUND II,
L.P. ("1818 FUND").
WITNESSETH:
WHEREAS, Psychiatric Solutions Hospitals, Inc. (f/k/a Psychiatric
Solutions, Inc.) ("OLD PSI") and certain of the Investors are parties to that
certain Second Amended and Restated Voting Agreement, dated as of June 28, 2002
(as amended through the date hereof, the "PRIOR VOTING AGREEMENT");
WHEREAS, pursuant to the terms of that certain Agreement and Plan of
Merger (the "MERGER") between the Company, Old PSI and PMR Acquisition
Corporation dated August 5, 2002, Old PSI became a direct wholly owned
subsidiary of the Company;
WHEREAS, following the Merger, the parties determined it was
appropriate for the Company to replace Old PSI as a party to this Agreement;
WHEREAS, the Company and the Investors have agreed to amend the Prior
Voting Agreement such that the voting restrictions contained in Section 1 of the
Agreement will not be binding upon certain transferees of shares; and
WHEREAS, K. ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, and ▇▇▇▇▇▇▇ ▇. ▇.
▇▇▇▇▇▇▇▇, M.D., each of whom was a "Key Stockholder" under the Prior Voting
Agreement, will be removed as parties and no longer bound by the terms of this
Agreement.
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
SECTION 1. VOTING
1.1 INVESTOR SHARES. The Investors each agree to hold all shares of
voting capital stock of the Company registered in their respective names or
beneficially owned by them as of the date hereof, and any and all other
securities of the Company legally or beneficially acquired by each of the
Investors after the date hereof (including but not limited to all shares of
Series A Preferred Stock, par value $0.01 per share (the "SERIES A PREFERRED
STOCK"), of the Company and all shares of Common Stock issued upon conversion of
the Series A Preferred Stock)
(hereinafter collectively referred to as the "INVESTOR SHARES"), subject to, and
to vote the Investor Shares in accordance with, the provisions of this
Agreement.
1.2 VOTING.
(a) Until the Vote Termination Date, at any annual or special
meeting or other action of the shareholders called for the purpose of
electing directors of the same class as ▇▇▇▇▇▇ ▇▇▇▇▇▇ (or his successor
1818 Fund designee to the Board of Directors) to or removing directors
of the same class as ▇▇▇▇▇▇ ▇▇▇▇▇▇ (or his successor 1818 Fund designee
to the Board of Directors) from the Company's Board of Directors, the
Investors agree to vote all of their shares of capital stock of the
Company to cause one member of the Board of Directors of the Company to
be a person designated by 1818 Fund. The "VOTE TERMINATION DATE" shall
occur when both of the following clauses (x) and (y) have been
satisfied: (x) the indebtedness owed to the 1818 Fund under that
certain Securities Purchase Agreement dated as of June 28, 2002 between
Old PSI and 1818 Fund has been repaid in full; and (y) either of the
following has happened: (i) the 1818 Fund owns less than 50% of the
shares of stock (assuming exercise of the warrants issued to the 1818
Fund pursuant to such Securities Purchase Agreement) issued pursuant to
such Securities Purchase Agreement, or (ii) the fifth (5th) anniversary
of the date hereof has occurred.
(b) Until the Vote Termination Date and unless otherwise
provided for herein, in the event of any termination, removal or
resignation of any Director designated pursuant to Section 1.2(a), the
Investors shall vote their shares to cause such vacancy to be filled in
accordance with the provisions of Section 1.2(a).
(c) At each meeting of the stockholders of the Company at
which the election of directors of the same class as ▇▇▇▇▇▇ ▇▇▇▇▇▇ (or
his successor 1818 Fund designee to the Board of Directors) occurs (or
at any time the stockholders of the Company act by written consent for
the purpose of the election of directors of the same class as ▇▇▇▇▇▇
▇▇▇▇▇▇ (or his successor 1818 Fund designee to the Board of
Directors)), the Company shall cause one designee of 1818 Fund to be
included in the slate of nominees recommended by the Board of Directors
of the Company to the Company's stockholders for election as directors,
and the Company shall use its reasonable best efforts to cause the
election of such designee, including voting all shares for which the
Company holds proxies (unless otherwise directed by the stockholder
submitting such proxy) or is otherwise entitled to vote, in favor of
the election of such designee. Notwithstanding anything in the
foregoing to the contrary, the obligations of the Company set forth in
this Section 1.2(c) shall terminate and have no further effect after
the Vote Termination Date.
(d) Notwithstanding the foregoing, for the avoidance of doubt,
nothing in this Section 1.2 shall require the holders of shares of any
series of preferred stock of the Company (including, without
limitation, any shares of the Series A Preferred Stock), that may be
issued after the date hereof, to vote their shares in favor of the 1818
Fund designee to the Board of Directors as the nominee of the holders
of any such series of preferred stock (including, without limitation,
as a nominee of the holders of Series A Preferred Stock pursuant to
Section 7(d) of the Certificate of Designations, Preferences
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and Rights of Series A Convertible Preferred Stock attached as Exhibit
B to the Stock Purchase Agreement, dated as of January 6, 2003, by and
among the Company and the purchasers named therein, which has been
approved by the Board of Directors of the Company).
1.3 LEGEND REMOVAL. The Company agrees to take all necessary actions
(including causing its transfer agent to take such necessary actions) to arrange
for the prompt issuance to each Investor of a replacement stock certificate not
bearing any restrictive legend relating to the Prior Voting Agreement upon
presentment of any certificate representing Investor Shares that is imprinted
with such a legend.
1.4 SUCCESSORS. The provisions of this Agreement shall not be binding
upon the successors in interest to, or transferees of, any of the Investor
Shares. Notwithstanding the foregoing, each of the Investors shall cause their
Affiliates to comply with the terms of this Agreement, and no Investor shall
transfer any Investor Shares to any Affiliate without first obtaining the
written agreement of such Affiliate to be bound by this Agreement as an
Investor; provided, however, that the obligations contained in this Agreement
shall not apply to Investor Shares which have been distributed by an Investor
pro rata to its partners. Notwithstanding the foregoing sentence, nothing in
this Agreement shall be deemed to bind any portfolio company of any of the
Investors (unless the Investor transfers Investor Shares to the portfolio
company); provided, however, that each Investor covenants that it shall not
intentionally attempt to avoid the obligations of this Agreement by causing any
portfolio company to take an action that would otherwise constitute a breach of
this Agreement, if such action were taken by the Investor directly. For purposes
of this Agreement, the term "Affiliate" means an entity that, directly or
indirectly, through one or more intermediaries, controls, or is controlled by,
or is under common control with, an Investor or its general partner, managing
member and/or management company. The term "control" means the possession,
directly or indirectly, of the power to direct the management and policies of an
entity, whether through the ownership of voting securities, by contract or
otherwise.
1.5 OTHER RIGHTS. Except as provided by this Agreement, each Investor
shall be entitled to exercise the full rights of a shareholder with respect to
the Investor Shares.
SECTION 2. TERMINATION
2.1 This Agreement shall continue in full force and effect from the
date hereof through the earliest of the following dates, on which it shall
terminate in its entirety:
(a) the Vote Termination Date;
(b) June 28, 2012; and
(c) the date the parties hereto terminate this Agreement by written
consent of holders of a majority in interest of the Investor Shares, 1818 Fund,
and the Company.
2.2 As to any Investor, the obligations of such Investor under this
Agreement shall terminate at the time such Investor ceases to own any Investor
Shares, provided that if such
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Investor subsequently acquires any Investor Shares, such Investor shall be bound
by the terms of this Agreement.
SECTION 3. MISCELLANEOUS
3.1 SPECIFIC PERFORMANCE. The parties hereto hereby declare that it is
impossible to measure in money the damages which will accrue to a party hereto
or to their heirs, personal representatives, or assigns by reason of a failure
to perform any of the obligations under this Agreement and agree that the terms
of this Agreement shall be specifically enforceable. If any party hereto or his
heirs, personal representatives, or assigns institutes any action or proceeding
to specifically enforce the provisions hereof, any person against whom such
action or proceeding is brought hereby waives the claim or defense therein that
such party or such personal representative has an adequate remedy at law, and
such person shall not offer in any such action or proceeding the claim or
defense that such remedy at law exists.
3.2 GOVERNING LAW. This Agreement, and the rights of the parties
hereto, shall be governed by and construed in accordance with the laws of the
State of Delaware as such laws apply to agreements among Delaware residents made
and to be performed entirely within the State of Delaware.
3.3 AMENDMENT. This Agreement may be amended only by an instrument in
writing signed by the Company, the holders of a majority in interest of the
Investor Shares (on an as-converted basis), the 1818 Fund and Oak Investment
Partners X, Limited Partnership ("OAK X") so long as Oak X and/or any entity
related to Oak X (individually or in the aggregate) owns greater than five
percent (5%) of the outstanding common stock of the Company (on an as-converted
basis).
3.4 SEVERABILITY. If any provision of this Agreement is held to be
invalid or unenforceable, the validity and enforceability of the remaining
provisions of this Agreement shall not be affected thereby.
3.5 SUCCESSORS. This Agreement shall inure to the benefit of and be
binding upon the parties hereto and their respective heirs, successors, assigns,
administrators, executors and other legal representatives.
3.6 ADDITIONAL SHARES. In the event that subsequent to the date of this
Agreement any shares or other securities (other than any shares or securities of
another corporation issued to the Company's stockholders pursuant to a plan of
merger) are issued on, or in exchange for, any of the Investor Shares by reason
of any stock dividend, stock split, consolidation of shares, reclassification or
consolidation involving the Company, such shares or securities shall be deemed
to be Investor Shares for purposes of this Agreement to the extent such shares
or securities are held by such Investor or its Affiliates (subject to the
Affiliate limitations described in Section 1.4).
3.7 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which will be deemed an original but all of which together
shall constitute one and the same agreement.
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3.8 WAIVER. No waivers of any breach of this Agreement extended by any
party hereto to any other party shall be construed as a waiver of any rights or
remedies of any other party hereto or with respect to any subsequent breach.
3.9 ATTORNEYS' FEES. In the event that any suit or action is instituted
to enforce any provision in this Agreement, the prevailing party shall be
entitled to all costs and expenses of maintaining such suit or action, including
reasonable attorneys' fees.
3.10 EXPENSES. The Company acknowledges and agrees that it shall
reimburse 1818 Fund for all reasonable out-of-pocket expenses (including travel
related expenses) of 1818 Fund and its representative incurred in connection
with such representative's duties as a member of the Board of Directors of the
Company.
3.11 ENTIRE AGREEMENT. This Agreement, together with the exhibits
hereto, is intended by the parties as a final expression of their agreement and
intended to be a complete and exclusive statement of the agreement and
understanding of the parties hereto in respect of the subject matter contained
herein and therein. There are no restrictions, promises, representations,
warranties or undertakings, other than those set forth herein or therein. This
Agreement, together with the exhibits hereto, supersedes all prior agreements
and understandings among the parties with respect to such subject matter,
including, without limitation, the Prior Voting Agreement.
3.12 OBLIGATIONS OF INVESTORS. The obligations of the Investors
hereunder are several and not joint.
[THIS SPACE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have executed this THIRD AMENDED
AND RESTATED VOTING AGREEMENT as of the date first above written.
COMPANY:
PSYCHIATRIC SOLUTIONS, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇, President
OLD PSI:
PSYCHIATRIC SOLUTIONS HOSPITALS, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇, President
[SIGNATURE PAGE TO THIRD AMENDED AND RESTATED VOTING AGREEMENT]
IN WITNESS WHEREOF, the parties hereto have executed this THIRD AMENDED
AND RESTATED VOTING AGREEMENT as of the date first above written.
INVESTORS:
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇
[SIGNATURE PAGE TO THIRD AMENDED AND RESTATED VOTING AGREEMENT]
IN WITNESS WHEREOF, the parties hereto have executed this THIRD AMENDED
AND RESTATED VOTING AGREEMENT as of the date first above written.
INVESTORS:
▇▇▇▇▇▇▇ ASSOCIATES, LLC
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇
-------------------------------
Title: Principal
-------------------------------
[SIGNATURE PAGE TO THIRD AMENDED AND RESTATED VOTING AGREEMENT]
IN WITNESS WHEREOF, the parties hereto have executed this THIRD AMENDED
AND RESTATED VOTING AGREEMENT as of the date first above written.
INVESTORS:
THE 1818 MEZZANINE FUND II, L.P.
BY: ▇▇▇▇▇ BROTHERS ▇▇▇▇▇▇▇▇ & CO.,
ITS GENERAL PARTNER
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Managing Partner
[SIGNATURE PAGE TO THIRD AMENDED AND RESTATED VOTING AGREEMENT]
IN WITNESS WHEREOF, the parties hereto have executed this THIRD AMENDED
AND RESTATED VOTING AGREEMENT as of the date first above written.
INVESTORS:
F.C.A. VENTURE PARTNERS II, L.P.
BY: ▇▇▇▇▇▇▇ ▇▇ VENTURE CAPITAL GROUP, LLC,
GENERAL PARTNER
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇
------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇
------------------------------------
Title: Principal
------------------------------------
[SIGNATURE PAGE TO THIRD AMENDED AND RESTATED VOTING AGREEMENT]
IN WITNESS WHEREOF, the parties hereto have executed this THIRD AMENDED
AND RESTATED VOTING AGREEMENT as of the date first above written.
INVESTORS:
F.C.A. VENTURE PARTNERS I, L.P.
BY: DC INVESTMENTS LLC,
GENERAL PARTNER
By:
------------------------------------
Name:
------------------------------------
Title:
------------------------------------
[SIGNATURE PAGE TO THIRD AMENDED AND RESTATED VOTING AGREEMENT]
IN WITNESS WHEREOF, the parties hereto have executed this THIRD AMENDED
AND RESTATED VOTING AGREEMENT as of the date first above written.
INVESTORS:
OAK INVESTMENT PARTNERS VII,
LIMITED PARTNERSHIP
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------
Title: Managing Member of Oak Associates
VII, LLC, The General Partner of
Oak Investment Partners VII,
Limited Partnership
[SIGNATURE PAGE TO THIRD AMENDED AND RESTATED VOTING AGREEMENT]
IN WITNESS WHEREOF, the parties hereto have executed this THIRD AMENDED
AND RESTATED VOTING AGREEMENT as of the date first above written.
INVESTORS:
OAK VII AFFILIATES FUND,
LIMITED PARTNERSHIP
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------
Title: Managing Member of Oak VII
Affiliates, LLC, The General
Partner of Oak VII Affiliates Fund,
Limited Partnership
[SIGNATURE PAGE TO THIRD AMENDED AND RESTATED VOTING AGREEMENT]
IN WITNESS WHEREOF, the parties hereto have executed this THIRD AMENDED
AND RESTATED VOTING AGREEMENT as of the date first above written.
INVESTORS:
OAK INVESTMENT PARTNERS X
LIMITED PARTNERSHIP
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------
▇▇▇ ▇. ▇▇▇▇▇▇
Managing Member of Oak Associates X,
LLC, The General Partner of Oak
Investment Partners X, Limited Partnership
[SIGNATURE PAGE TO THIRD AMENDED AND RESTATED VOTING AGREEMENT]
IN WITNESS WHEREOF, the parties hereto have executed this THIRD AMENDED
AND RESTATED VOTING AGREEMENT as of the date first above written.
INVESTORS:
OAK X AFFILIATES FUND,
LIMITED PARTNERSHIP
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------
▇▇▇ ▇. ▇▇▇▇▇▇
Managing Member of Oak X Affiliates,
LLC, The General Partner of Oak X
Affiliates Fund, Limited Partnership
[SIGNATURE PAGE TO THIRD AMENDED AND RESTATED VOTING AGREEMENT]
IN WITNESS WHEREOF, the parties hereto have executed this THIRD AMENDED
AND RESTATED VOTING AGREEMENT as of the date first above written.
INVESTORS:
SOUTH POINTE VENTURE PARTNERS, L.P.
By:
------------------------------------
Name:
------------------------------------
Title:
------------------------------------
[SIGNATURE PAGE TO THIRD AMENDED AND RESTATED VOTING AGREEMENT]
IN WITNESS WHEREOF, the parties hereto have executed this THIRD AMENDED
AND RESTATED VOTING AGREEMENT as of the date first above written.
INVESTORS:
ACACIA VENTURE PARTNERS, L.P.
By:
------------------------------------
Name:
------------------------------------
Title:
------------------------------------
[SIGNATURE PAGE TO THIRD AMENDED AND RESTATED VOTING AGREEMENT]
IN WITNESS WHEREOF, the parties hereto have executed this THIRD AMENDED
AND RESTATED VOTING AGREEMENT as of the date first above written.
INVESTORS:
CGJR HEALTH CARE SERVICES,
PRIVATE EQUITIES, L.P.
CGJR II, L.P.
CGJR/MF III, L.P.
BY: CGJR CAPITAL MANAGEMENT, INC.
AS GENERAL PARTNER OF ALL 3
OF THE ENTITIES ABOVE
By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Jr.
------------------------------------
Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Jr.
------------------------------------
Title: President
------------------------------------
[SIGNATURE PAGE TO THIRD AMENDED AND RESTATED VOTING AGREEMENT]
IN WITNESS WHEREOF, the parties hereto have executed this THIRD AMENDED
AND RESTATED VOTING AGREEMENT as of the date first above written.
INVESTORS:
SALIX VENTURES II, L.P.
By: /s/ ▇▇▇▇▇ ▇▇▇▇
---------------------------------------------
▇▇▇▇▇ ▇▇▇▇
General Partner of Salix Partners II
The General Partner of Salix Ventures II, L.P.
[SIGNATURE PAGE TO THIRD AMENDED AND RESTATED VOTING AGREEMENT]
IN WITNESS WHEREOF, the parties hereto have executed this THIRD AMENDED
AND RESTATED VOTING AGREEMENT as of the date first above written.
INVESTORS:
SALIX AFFILIATES II, L.P.
By: /s/ ▇▇▇▇▇ ▇▇▇▇
-----------------------------------------------
▇▇▇▇▇ ▇▇▇▇
General Partner of Salix Partners II
The General Partner of Salix Affiliates II, L.P.
[SIGNATURE PAGE TO THIRD AMENDED AND RESTATED VOTING AGREEMENT]
IN WITNESS WHEREOF, the parties hereto have executed this THIRD AMENDED
AND RESTATED VOTING AGREEMENT as of the date first above written (solely for the
purpose of approving the amendment and modification of the Agreement. The
undersigned acknowledges that he is no longer a party to the Agreement nor is he
bound by its terms).
/s/ K. ▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------
K. ▇▇▇▇▇ ▇▇▇▇▇▇▇
[SIGNATURE PAGE TO THIRD AMENDED AND RESTATED VOTING AGREEMENT]
EXHIBIT A
LIST OF INVESTORS
▇▇▇▇▇▇▇ Associates, L.L.C.
▇▇▇▇ ▇. ▇▇▇▇▇▇
Acacia Venture Partners, L.P.
CGJR Health Care Services Private Equities, L.P.
CGJR II, L.P.
CGJR/MF III, L.P.
Salix Ventures II, L.P.
Salix Affiliates II, L.P.
FCA Venture Partners I, L.P.
FCA Venture Partners II, L.P.
Oak VII Affiliates Fund, Limited Partnership
Oak Investment Partners VII, Limited Partnership
Oak Investment Partners X, Limited Partnership
Oak X Affiliates Fund, Limited Partnership
South Pointe Venture Partners, L.P.
