Exhibit 10.1


 


GUARANTEE


 


We
refer to the Agreement and Plan of Share Exchange (the “Share Exchange  Agreement”),
dated as of the date hereof, between Res-Care, Inc. (the “Company”)
and Onex Rescare Acquisition LLC (“Purchaser”), pursuant to which it is
contemplated that (i) Purchaser will commence a tender offer to purchase
all of the Public Shares of the Company, and (ii) the Company and
Purchaser will undertake a share exchange transaction pursuant to which the
shareholders of the Company other than members of the Purchaser Group will
receive cash in exchange for their Public Shares, with the result that the
Company will become a wholly-owned subsidiary of Purchaser, each on the terms
and subject to the conditions set forth therein.  Capitalized terms used and not defined herein
shall have the respective meanings assigned to such terms in the Share Exchange
Agreement.


 


In consideration of the
Company’s execution and delivery of the Share Exchange Agreement, Onex Partners
III LP, a Delaware limited partnership (“OP III LP”) hereby guarantees to
the Company that OP III LP will perform or satisfy, or cause Purchaser to
perform or satisfy, or cause one or more affiliated or related entities of OP
III LP to perform or satisfy, Purchaser’s obligations (the “Guaranteed
Obligations”) to (i) pay for Public Shares in the Offer pursuant to Section 2.1(f) of
the Share Exchange Agreement, (ii) deposit funds in the Exchange Fund
pursuant to Section 4.2 of the Share Exchange Agreement if, as and when
such obligations become due, and (iii) perform all of Purchaser’s
agreements, covenants and obligations under the Share Exchange Agreement to be
performed prior to or at the Effective Time, but in all cases subject to the
satisfaction of the Minimum Condition and the satisfaction or waiver by
Purchaser of each of the other conditions to the consummation of the Offer set
forth in Annex A of the Share Exchange Agreement.  Under no circumstances will the aggregate
liability of OP III LP under this Guarantee exceed $336,281,820.


 


Neither
this Guarantee nor the rights of the Company under this Guarantee shall be
assignable or transferable by the Company without the prior written consent of
OP III LP.  This Guarantee shall
automatically terminate upon the earliest of (i) the Closing, (ii) the
termination of the Share Exchange Agreement for any reason other than Purchaser’s
breach or (iii) if no claim under this Guarantee has been received by OP
III LP on or before March 31, 2011.


 


OP
III LP’s obligations pursuant to this Guarantee are subject to all rights,
claims, counterclaims, causes of action, defenses and remedies to which
Purchaser may be entitled.  This is a
guarantee of payment and performance and not collectability.  OP III LP hereby waives diligence,
presentment, demand of performance, filing of any claim, any right to require
any proceeding first against Purchaser, protest, notice and all demands
whatsoever in connection with the performance of its obligations set forth in
this Guarantee.


 


The
Company acknowledges that Purchaser is a newly-formed entity with no
significant assets. Notwithstanding anything that may be expressed or implied
in this Guarantee or any document or instrument delivered contemporaneously
herewith, and notwithstanding the fact that OP III LP is a partnership, by its
acceptance of the benefits of this Guarantee, the Company acknowledges and
agrees that neither it nor any of its affiliates (x) has any right of
recovery under this Guarantee against, and no liability under this Guarantee
shall attach to, the former, current or future stockholders, directors,
officers, employees, agents, affiliates, general or limited partners or
assignees of OP III LP, of Purchaser or of any former, current or future
stockholder, director, officer, employee, member, manager, general or limited
partner, Affiliate, agent or assignee of any of the foregoing (collectively,
but not including OP III LP or Purchaser, each an “OP III LP Affiliate”)
or (y) has any right of recovery against, and no liability shall attach
to, OP III LP or any OP III LP Affiliate for any liability or obligation
arising under or in 


 

















 


connection
with the Share Exchange Agreement or the Transactions (other than a claim
against OP III LP under this Guarantee), whether by or through attempted
piercing of the corporate or partnership veil, by or through a claim by or on
behalf of Purchaser against OP III LP or an OP III LP Affiliate, by the
enforcement of any assessment or by any legal or equitable proceeding, by
virtue of any Law or otherwise.  The
Company’s agreement in the preceding sentence is based on OP III LP’s
representation that it has sufficient liquid assets available to fund the
payment of the maximum guarantee obligation as set forth in this
Guarantee.  The Company hereby covenants
and agrees that it shall not institute, directly or indirectly, and shall cause
its respective Affiliates not to institute, any proceeding or bring any other
claim arising under, or in connection with, the Share Exchange Agreement or the
Transactions or otherwise relating thereto, against an OP III LP Affiliate or,
other than its right to recover from OP III LP under this Guarantee for up to
the amount of the Guaranteed Obligations (subject to the limitations described
herein), against OP III LP.  Recourse
against OP III LP under this Guarantee shall be the sole and exclusive remedy
of the Company and all of its Affiliates against OP III LP and any OP III LP
Affiliates in respect of any liabilities or obligations arising under, or in
connection with, the Share Exchange Agreement or the Transactions.  Nothing set forth in this Guarantee shall
confer or give or shall be construed to confer or give to any person other than
OP III LP and the Company (including any person acting in a representative
capacity) any rights or remedies against any person other than OP III LP and
the Company as expressly set forth herein.


 


The
Company acknowledges that OP III LP is agreeing to enter into this Guarantee in
reliance on the provisions set forth in the preceding paragraph, and OP III LP
acknowledges that the Company is agreeing to enter into the Share Exchange
Agreement in reliance on this Guarantee. 
The preceding paragraph shall survive termination of this Guarantee.


 


This
Guarantee constitutes the entire agreement, and supersedes all prior agreements,
understandings, and statements, both written or oral, between or among the
Company and OP III LP or any of their Affiliates with respect to its subject
matter.  This Guarantee shall be governed
by and construed in accordance with the substantive laws of the State of
Delaware, without giving effect to any choice or conflict of law provision or rule that
would cause the application of the laws of any other jurisdiction.


 


[Signature Page Follows]


 


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  Dated:
  September 6, 2010

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  ONEX
  PARTNERS III LP

  
	
   

  	
  By:
  Onex Partners III GP LP, its General Partner,

  
	
   

  	
  By:
  Onex Partners Manager LP, it Agent,

  
	
   

  	
  By:
  Onex Partners Manager GP ULC, its General Partner

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Robert M. Le Blanc

  
	
   

  	
   

  	
  Name:

  	
  Robert
  M. Le Blanc

  
	
   

  	
   

  	
  Title:

  	
  Managing
  Director

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Joshua Hausman

  
	
   

  	
   

  	
  Name:

  	
  Joshua
  Hausman

  
	
   

  	
   

  	
  Title:

  	
  Vice
  President

  
	
   

  	
   

  
	
   

  	
   

  
	
  Accepted
  and Agreed

  	
   

  
	
  RES-CARE, INC.

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/
  Steven S. Reed

  	
   

  	
   

  
	
   

  	
  Name:
  Steven S. Reed

  	
   

  	
   

  
	
   

  	
  Title:
  Director