Exhibit 4.1


 


VOTING AGREEMENT


 


This VOTING
AGREEMENT, dated as of September 6, 2010 (this “Agreement”), by and among the
shareholders listed on the signature page(s) hereto (collectively, the “Shareholders”
and each individually, a “Shareholder”), and Res-Care, Inc., a Kentucky
corporation (the “Company”). Capitalized terms used and not otherwise defined
herein shall have the respective meanings ascribed to them in the Share
Exchange Agreement (as defined below).


 


RECITALS


 


WHEREAS,
as of the date hereof, the Shareholders beneficially own an aggregate of
3,700,000 shares of common stock, no par value, and 48,095 shares of the Series
A Convertible Preferred Stock, no par value (such shares, or any other voting
or equity securities of the Company hereafter acquired by any Shareholder prior
to the termination of this Agreement, being referred to herein collectively as
the “Shares”);


 


WHEREAS,
concurrently with the execution of this Agreement, Purchaser and the Company
are entering into an Agreement and Plan of Share Exchange, dated as of the date
hereof (the “Share Exchange Agreement”), pursuant to which the Purchaser has
agreed to acquire all of the outstanding shares of the Company (the “Transaction”)
on the terms and subject to the conditions set forth therein; and


 


WHEREAS,
as a condition to the willingness of the Company to enter into the Share
Exchange Agreement, the Company has required that the Shareholders agree, and
in order to induce the Company to enter into the Share Exchange Agreement the
Shareholders are willing, to enter into this Agreement.


 


NOW,
THEREFORE, in consideration of the foregoing and the mutual covenants and
agreements contained herein, and intending to be legally bound hereby, the
parties hereby agree, severally and not jointly, as follows:


 


Section 1.
Voting of Shares.


 


Each
Shareholder covenants and agrees that until the termination of this Agreement
in accordance with the terms hereof, at the Company’s special meeting of
shareholders or any other meeting of the shareholders of the Company, however
called, and in any action by written consent of the shareholders of the
Company, such Shareholder will vote, or cause to be voted, all of such
Shareholder’s respective Shares owned at the record date for such meeting or
consent (i) in favor of the adoption of the Share Exchange Agreement and
the approval of the Transaction contemplated by the Share Exchange Agreement
and any actions required in furtherance thereof, as the Share Exchange
Agreement may be modified or amended from time to time and (ii) in favor
of approval of the Alternative Acquisition Agreement pursuant to Section 11-030
of the Kentucky Business Corporation Act, provided that the Company shall have
complied with Section 7.2 of the Share Exchange Agreement and paid the applicable



 

















 


Break-Up
Fee to the Purchaser.  For purposes
hereof, (a) a “Qualifying Acquisition” means the acquisition of all of the
Company’s outstanding shares of capital stock for cash, including the
acquisition of all shares of Series A Convertible Preferred Stock for a cash
price no less than the greater of (x) the price payable in such transaction for
the shares of Common Stock into which such Series A Convertible Preferred Stock
is then convertible and (y) the then liquidation preference of the Series A Convertible
Preferred Stock and (b) the “Alternative Acquisition Agreement” is the
definitive agreement with respect to a Qualifying Acquisition that, if the
Share Exchange Agreement had not previously been terminated pursuant to Section
9.1(d)(ii) of the Share Exchange Agreement, the Company enters into in
accordance with Section 7.2(e) of the Share Exchange Agreement.  This Agreement does not relate to any non
voting securities of the Company, or to derivatives, swaps or other
arrangements with respect to shares of capital stock of the Company where the
Shareholder has no right to vote or direct the vote of such shares.


 


Section 2.
Transfer of Shares.  Each
Shareholder covenants and agrees that, except for (x) tenders of Shares
pursuant to a tender offer (pursuant to the Alternative Acquisition Agreement
or otherwise) and (y) sales of Shares following termination of the Share
Exchange Agreement pursuant to Rule 144 under the Securities Act of 1933, such
Shareholder will not directly or indirectly (i) sell, assign, transfer,
tender, pledge, encumber or otherwise dispose of any of the Shares,
(ii) deposit any of the Shares into a voting trust or enter into a voting
agreement or arrangement with respect to the Shares or grant any proxy or power
of attorney with respect thereto that is inconsistent with this Agreement or
(iii) enter into any contract, option or other arrangement or undertaking
with respect to the direct or indirect sale, assignment, transfer, tender,
pledge, encumbrance, or other disposition of any Shares; provided, however,
that notwithstanding the foregoing a Shareholder may transfer Shares or agree
to transfer Shares to any Affiliate of the Shareholder, including, but not
limited to Purchaser, provided that in
each such case the transferee agrees in writing to be bound by this Agreement.
Nothing herein shall restrict or otherwise limit the encumbrance or pledge of
Shares pursuant to margin and/or other pledge arrangements, provided that in
the event of any new margin or pledge arrangement, the voting rights of such
Shares shall be subject to Section 1 hereof.


 


Section 3.
Waiver of Appraisal Rights. Each Shareholder hereby waives, to the full
extent of the law, and agrees not to assert any appraisal rights pursuant to
Subtitle 13 of the Kentucky Business Corporation Act or otherwise in connection
with the Transaction with respect to any and all Shares held by the undersigned
of record or beneficially owned.


 


Section 4.
Representations and Warranties of the Shareholders. Each Shareholder on
his or its own behalf hereby severally represents and warrants to the Company
with respect to such Shareholder and such Shareholder’s ownership of the Shares
as follows:


 


(a)
Number of Shares. Each Shareholder represents, warrants and agrees that Schedule I
annexed hereto sets forth, adjacent to the name of such Shareholder, the number
of Shares of which the Shareholder is the beneficial owner (it being understood
and agreed that the beneficial ownership shall not include any rights with
respect to derivatives, swaps or other arrangements). Each Shareholder
represents, warrants and agrees that, as of the date hereof, those Shares on
Schedule I constitute all of the Shares of which such Shareholder has the
power to vote or direct the vote.


 

















 


(b)
Power, Binding Agreement. Each of the Shareholders is a corporation,
limited partnership or limited liability company, as applicable, duly formed,
under the laws of its state of incorporation, formation or organization and has
full entity power and authority to execute and deliver this Agreement and to
consummate the transactions contemplated hereby. The execution and delivery of
this Agreement by each Shareholder and the consummation of the transactions
contemplated hereby have been, if necessary, duly and validly authorized by the
appropriate governing body of such Shareholder, and, no other entity
proceedings on the part of such Shareholder are necessary to authorize the
execution, delivery and performance of this Agreement by such Shareholder and
the consummation of the transactions contemplated hereby.  Each of the Shareholders has duly and validly
executed this Agreement and this Agreement constitutes a legal, valid and
binding obligation of such Shareholder enforceable against such Shareholder in
accordance with its terms, except as such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization or other similar laws
affecting creditors’ rights generally and by general equitable principles
(regardless of whether enforceability is considered in a proceeding in equity
or at law).


 


Section 5.
Representations and Warranties of the Company. The Company represents
and warrants to the Shareholders as follows:


 


Power, Binding Agreement. The Company is a
corporation duly incorporated, validly existing and in good standing under the
laws of the Commonwealth of Kentucky and has full corporate power and authority
to execute and deliver this Agreement and to consummate the transactions
contemplated hereby. The execution and delivery of this Agreement and the Share
Exchange Agreement by the Company and the consummation of the transactions
contemplated hereby and thereby have been duly and validly authorized by the
Board of Directors of the Company, and, no other corporate proceedings on the
part of the Company are necessary to authorize the execution, delivery and
performance of this Agreement and the Share Exchange Agreement by the Company
and the consummation of the transactions contemplated hereby and thereby. The
Company has duly and validly executed this Agreement and this Agreement
constitutes a legal, valid and binding obligation of the Company enforceable
against the Company in accordance with its terms, except as such enforceability
may be limited by applicable bankruptcy, insolvency, reorganization or other similar
laws affecting creditors’ rights generally and by general equitable principles
(regardless of whether enforceability is considered in a proceeding in equity
or at law).


 


Section 6.
Termination. Notwithstanding any other provision herein, the obligations
of the Shareholders set forth in this Agreement shall not be effective or
binding until after such time as the Share Exchange Agreement is executed and
delivered by Purchaser and the Company. This Agreement shall terminate
immediately upon the earliest to occur of (i) termination of the Share
Exchange Agreement in accordance with its terms, unless such termination (A) is
pursuant to Section 9.1(c)(ii) of the Share Exchange Agreement and the Company
concurrently enters into the Alternate Acquisition Agreement and pays the
applicable Break-Up Fee to the Purchaser or (B) is pursuant to Section
9.1(d)(ii) of the Share Exchange Agreement as a result of the Company’s
approval or recommendation of a Superior Proposal, and the Company pays the
applicable Break-Up Fee to the Purchaser within two (2) Business Days
thereafter, (ii) the


 

















 


Effective
Time, (iii) if the Share Exchange Agreement is terminated pursuant to
Section 9.1(c)(ii) and the Company concurrently enters into the
Alternative Acquisition Agreement and pays the applicable Break-Up Fee to the
Purchaser, the earliest to occur of (A) the consummation of the transaction
contemplated by such Alternative Acquisition Agreement, (B) the termination of
such Alternative Acquisition Agreement, (C) the taking of a vote by the Company’s
shareholders with respect to such Alternative Acquisition Agreement, and (D)
six months after execution and delivery of such Alternative Acquisition
Agreement, and (iv) if the Share Exchange Agreement is terminated pursuant to
Section 9.1(d)(ii) as a result of the Company’s approval or recommendation
of a Superior Proposal and the Company pays the applicable Break-Up Fee to the
Purchaser within two days thereof, the earliest to occur of (A) the fifth (5th ) Business Day after the termination of the
Share Exchange Agreement, unless the Company shall have entered into the
Alternative Acquisition Agreement with respect to such Superior Proposal prior
to such date, (B) the consummation of the transaction contemplated by such
Alternative Acquisition Agreement, (C) the termination of such Alternative
Acquisition Agreement, (D) the taking of a vote by the Company’s shareholders
with respect to such Alternative Acquisition Agreement, and (E) six months
after execution and delivery of such Alternative Acquisition Agreement.  Upon any such termination, this Agreement
shall immediately become void, there shall be no liability hereunder on the
part of the Shareholders and all rights and obligations of the parties to this
Agreement shall cease.


 


Section 7.
Specific Performance. The parties hereto agree that irreparable damage
would occur in the event any provision of this Agreement was not performed in
accordance with the terms hereof and that the parties shall be entitled to
specific performance of the terms hereof, in addition to any other remedy at
law or in equity.


 


Section 8.
Miscellaneous.


 


(a)
Entire Agreement. This Agreement constitutes the entire agreement
between the parties hereto with respect to the subject matter hereof and
supersedes all prior agreements and understandings, both written and oral,
between the parties with respect thereto. This Agreement may not be amended,
modified or rescinded except by an instrument in writing signed by each of the
parties hereto.


 


(b)
Severability. If any term or other provision of this Agreement is
invalid, illegal or incapable of being enforced by any rule of law, or public
policy, all other conditions and provisions of this Agreement shall
nevertheless remain in full force and effect. Upon such determination that any
term or other provision is invalid, illegal or incapable of being enforced, the
parties hereto shall negotiate in good faith to modify this Agreement so as to
effect the original intent of the parties as closely as possible to the fullest
extent permitted by applicable law in a mutually acceptable manner in order
that the terms of this Agreement remain as originally contemplated to the
fullest extent possible.


 


(c)
Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the Commonwealth of Kentucky without regard to the
principles of conflicts of law thereof.


 

















 


(d)
Counterparts. This Agreement may be executed in counterparts, each of
which shall be deemed an original and all of which together shall constitute
one and the same instrument.


 


(e)
Notices. All notices and other communications hereunder shall be in
writing and shall be deemed duly delivered (i) three business days after
being sent by hand delivery in writing, by facsimile or electronic transmission,
by registered or certified mail, return receipt requested, postage prepaid, or
(ii) one business day after being sent for next business day delivery,
fees prepaid, via a reputable nationwide overnight courier service, in each
case to the intended recipient as set forth below:


 


(i) if
to a Shareholder to:


 


c/o
Onex Investment Corp.

712 Fifth Avenue

New York, New York 10019

Telecopy: 212-582-0909 

Email:  bobby@onex.com

Attention:  Robert M. Le Blanc


 


with
a copy (which shall not constitute notice) to:


 


Kaye
Scholer LLP

425 Park Avenue

New York, New York 10022

Telecopy:  212-836-8211

Email:  jgreenberg@kayescholer.com

Attention:  Joel I. Greenberg


 


(ii) if
to Company to:


 


Res-Care,
Inc.

9901 Linn Station Road

Louisville, Kentucky 40223

Telecopy:  502-394-2164

Email:  rgeary@rescare.com

Attention:  Ronald G. Geary


 


with
a copy (which shall not constitute notice) to:


 


Frost
Brown Todd LLC 

400 West Market Street, 32nd Floor

Louisville, KY 40202

Telecopy:  502-581-1087

Email:  amacdonald@fbtlaw.com

Attention:  Alan K. MacDonald


 

















 


(f)
No Third Party Beneficiaries. This Agreement is not intended, and shall
not be deemed, to confer any rights or remedies upon any person other than the
parties hereto and their respective successors and permitted assigns.


 


(g)
Assignment. Except as provided in Section 2 hereof, neither this
Agreement nor any of the rights, interests or obligations under this Agreement
may be assigned or delegated, in whole or in part, by operation of law or
otherwise by any of the parties hereto without the prior written consent of the
other parties and any such assignment without such prior written consent shall
be null and void. Subject to the preceding sentence, this Agreement shall be
binding upon, inure to the benefit of, and be enforceable by, the parties
hereto and their respective successors and permitted assigns.


 


(h)
Interpretation. When reference is made in this Agreement to a Section,
such reference shall be to a Section of this Agreement, unless otherwise
indicated. The headings contained in this Agreement are for convenience of
reference only and shall not affect in any way the meaning or interpretation of
this Agreement. The language used in this Agreement shall be deemed to be the
language chosen by the parties hereto to express their mutual intent, and no
rule of strict construction shall be applied against any party. Whenever the
context may require, any pronouns used in this Agreement shall include the
corresponding masculine, feminine or neuter forms, and the singular form of nouns
and pronouns shall include the plural, and vice versa. Any reference to any
federal, state, local or foreign statute or law shall be deemed also to refer
to all rules and regulations promulgated thereunder, unless the context
requires otherwise. Whenever the words “include,” “includes” or “including” are
used in this Agreement, they shall be deemed to be followed by the words “without
limitation.” No summary of this Agreement prepared by the parties shall affect
in any way the meaning or interpretation of this Agreement.


 


(i)
Submission to Jurisdiction. Each of the parties to this Agreement
(i) consents to submit itself to the personal jurisdiction of any state or
federal court sitting in the State of Delaware in any action or proceeding
arising out of or relating to this Agreement or any of the transactions
contemplated by this Agreement, (ii) agrees that all claims in respect of
such action or proceeding may be heard and determined in any such court,
(iii) agrees that it will not attempt to deny or defeat such personal
jurisdiction by motion or other request for leave from any such court and
(iv) agrees not to bring any action or proceeding arising out of or
relating to this Agreement or any of the transactions contemplated by this
Agreement in any other court. Each of the parties hereto waives any defense of
inconvenient forum to the maintenance of any action or proceeding so brought
and waives any bond, surety or other security that might be required of any
other party with respect thereto. Any party hereto may make service on another
party by sending or delivering a copy of the process to the party to be served
at the address and in the manner provided for the giving of notices in
Section 8(e). Nothing in this Section, however, shall affect the right of
any party to serve legal process in any other manner permitted by law.


 


(j)
WAIVER OF JURY TRIAL. EACH OF THE COMPANY AND EACH SHAREHOLDER HEREBY
IRREVOCABLY WAIVES ALL RIGHTS TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR
COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR
RELATING TO THIS


 

















 


AGREEMENT
OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THE ACTIONS OF THE COMPANY, THE
COMPANY OR EACH SHAREHOLDER IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE AND
ENFORCEMENT OF THIS AGREEMENT.


 

















 


IN
WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be
signed individually or by its respective duly authorized officer as of the date
first written above.


 


 


	
   

  	
  RES-CARE,
  INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Steven S. Reed

  
	
   

  	
   

  	
  Name:  Steven S. Reed

  
	
   

  	
   

  	
  Title:  Director

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  ONEX PARTNERS LP

  
	
   

  	
   

  
	
   

  	
  By:

  	
  ONEX PARTNERS GP LP, its
  General Partner

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  ONEX PARTNERS MANAGER LP,
  its 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

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  ONEX AMERICAN HOLDINGS
  II LLC

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/   Robert M.
  Le Blanc

  
	
   

  	
  Name:

  	
  Robert M. Le Blanc

  
	
   

  	
  Title:

  	
  Director

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/  Donald F.
  West

  
	
   

  	
  Name:

  	
  Donald F. West

  
	
   

  	
  Title:

  	
  Director

  
							



 

















 


	
   

  	
  ONEX US PRINCIPALS LP

  
	
   

  	
   

  
	
   

  	
  By:

  	
  ONEX AMERICAN HOLDINGS GP
  LLC, its General Partner

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/   Robert M.
  Le Blanc

  
	
   

  	
  Name:

  	
  Robert M. Le Blanc

  
	
   

  	
  Title:

  	
  Representative

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  RESCARE EXECUTIVE INVESTCO
  LLC

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/   Robert M.
  Le Blanc

  
	
   

  	
  Name:

  	
  Robert M. Le Blanc

  
	
   

  	
  Title:

  	
  Director

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/  Donald F.
  West

  
	
   

  	
  Name:

  	
  Donald F. West

  
	
   

  	
  Title:

  	
  Director

  



 

















 


SCHEDULE I


 


	
  Name

  	
   

  	
  Common Stock

  	
   

  	
  Series A Convertible

  Preferred Stock

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Onex Partners LP

  	
   

  	
  2,827,220

  	
   

  	
  36,750

  	
   

  
	
  Onex American Holdings II LLC

  	
   

  	
  805,719

  	
   

  	
  10,473.3

  	
   

  
	
  Onex US Principals LP

  	
   

  	
  17,634

  	
   

  	
  229.2

  	
   

  
	
  Rescare Executive Investco LLC

  	
   

  	
  49,427

  	
   

  	
  642.5

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Total:

  	
   

  	
  3,700,000

  	
   

  	
  48,095