EXHIBIT 2.3
STOCKHOLDER VOTING AGREEMENT
STOCKHOLDER VOTING AGREEMENT, dated as of April 8, 2003 between
Psychiatric Solutions, Inc., a Delaware corporation ("Acquiror"), and Xxxx X.
Xxxxxx (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 10.9% 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 546,806 shares of Company Common Stock owned by the Stockholder and
550,000 shares of Company Common Stock which may be acquired upon the
exercise by the Stockholder 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);
(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.
4. Expenses. Each party will pay its or his own expenses incurred
in connection with this Agreement.
5. Capacity. The parties hereby agree that Stockholder is
executing this Agreement solely in his individual capacity. Nothing contained in
this Agreement shall limit or otherwise affect Stockholder's conduct or exercise
of his fiduciary and other duties, rights or entitlements as a director or
President and Chief Executive Officer 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
2
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: Xxxx X. Xxxxxx
0 Xxxxxx Xxxx
Xxx Xxxxxxxx, XX 00000
With a copy to:
Xxxxxx X. Xxxxxx Esq.
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Telecopy No.: (000) 000-0000
If to Acquiror: Psychiatric Solutions, Inc.
000 Xxxxxxxx Xxxx, Xxxxx X-000
Xxxxxxxx, XX 00000
Telecopy No.: (000) 000-0000
Attention: Xxxx X. Xxxxxx
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.
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
3
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 Stockholder to transfer
Shares to any corporation or entity wholly owned, directly or indirectly, by
Stockholder; 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, 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.
4
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: /s/ Xxxx X. Xxxxxx /s/ Xxxx X. Xxxxxx
-------------------------------- --------------------------------
Title: Chief Executive Officer XXXX X. XXXXXX
5
