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EXHIBIT 2.2
VOTING AND NON-COMPETITION AGREEMENT
VOTING AGREEMENT, dated as of April 12, 2000 (the
"Agreement"), by and among RWD Holdings, Inc., a Delaware corporation
("Parent"), and the Persons listed on Schedule A hereto (each, a "Shareholder"
and, collectively, the "Shareholders").
WHEREAS, Res-Care, Inc., a Kentucky corporation (the
"Company"), and Parent propose to enter into an Agreement and Plan of Merger in
the form attached hereto as Exhibit A (as amended, the "Merger Agreement"),
which provides for, among other things, the merger of a wholly-owned subsidiary
of Parent with and into the Company (the "Merger");
WHEREAS, as of the date hereof, the Shareholders are holders
of record or Beneficially Own (as defined herein) shares of common stock, no par
value (the "Company Common Stock"), of the Company; and
WHEREAS, as a condition to the willingness of Parent to enter
into the Merger Agreement, Parent has required that each Shareholder agree, and
in order to induce Parent to enter into the Merger Agreement, each Shareholder
has agreed, to enter into this Agreement with respect to all of the shares of
Company Common Stock now held of record or Beneficially Owned and which may
hereafter be acquired by such Shareholder (collectively, the "Shares").
NOW, THEREFORE, in consideration of the foregoing and the
mutual covenants and agreements contained herein, and intending to be legally
bound hereby, the parties hereto hereby agree as follows:
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ARTICLE I
CERTAIN DEFINITIONS
Section 1.1 GENERAL. Capitalized terms used and not defined herein have the
respective meanings ascribed to them in the Merger Agreement.
Section 1.2 BENEFICIAL OWNERSHIP. For purposes of this Agreement,
"Beneficially Own" or "Beneficial Ownership" with respect to any securities
shall mean "beneficial ownership" of such securities (as determined pursuant to
Rule 13d-3 under the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), including pursuant to any agreement, arrangement or understanding,
whether or not in writing. Without duplicative counting of the same securities
by the same holder, securities Beneficially Owned by a Shareholder shall include
securities Beneficially Owned by all other Persons (as defined in the Merger
Agreement) with whom such Person would constitute a "group" within the meaning
of Section 13(d) of the Exchange Act other than parties to this Agreement.
ARTICLE II
Section 2.1 VOTING AGREEMENT. Each of the Shareholders hereby irrevocably
and unconditionally agrees that during the term of this Agreement as specified
in Section 5.1, at any meeting of the shareholders of the Company, however
called, and in any action by consent of the shareholders of the Company, each of
the Shareholders shall vote (or cause to be voted) the Shares held of record (to
the extent such Person also has the right to vote such Shares) or Beneficially
Owned (to the extent such Person also has the right to vote such Shares) by such
Shareholder:
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(a) in favor of the Merger, the Merger Agreement (provided that the
Merger Agreement shall not have been amended in a manner materially adverse to
the interests of the Shareholders thereunder) and the transactions contemplated
by the Merger Agreement (each of the Shareholders acknowledges receipt and
review of a copy of the Merger Agreement); and
(b) against any Business Combination (as defined below) other than the
Merger. For purposes of this Agreement, "Business Combination" shall mean,
whether effected in one transaction or a series of transactions, (a) any merger,
consolidation, reorganization or other business combination pursuant to which
the business of the Company is combined with that of one or more Persons
including, without limitation, any joint venture, in violation of the Merger
Agreement, or (b) the acquisition, directly or indirectly, by another Person of
all or a substantial portion of the assets of, or of any right to all or a
substantial portion of the revenues or income of, the Company by way of a
negotiated purchase, lease, license, exchange, joint venture or other means, in
violation of the Merger Agreement, or (c) the acquisition, directly or
indirectly, by another Person of control of the Company through a proxy contest
or otherwise, in violation of the Merger Agreement.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE SHAREHOLDERS
Each of the Shareholders hereby represents and warrants,
severally and not jointly, to Parent as follows:
Section 3.1 AUTHORITY RELATIVE TO THIS AGREEMENT. Such Shareholder has all
necessary power and authority to execute and deliver this Agreement, to perform
its obligations
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hereunder and to consummate the transactions contemplated hereby. Where such
Shareholder is a corporation, limited liability company, partnership or other
entity, the execution and delivery of this Agreement by such Shareholder and the
consummation by such Shareholder of the transactions contemplated hereby have
been duly and validly authorized by the board of directors or other governing
body of such Shareholder, and no other proceedings on the part of such
Shareholder are necessary to authorize this Agreement or to consummate such
transactions. This Agreement has been duly and validly executed and delivered by
such Shareholder and constitutes a legal, valid and binding obligation of such
Shareholder, enforceable against such Shareholder in accordance with its terms,
except to the extent enforceability may be limited by bankruptcy, insolvency,
moratorium or other laws affecting creditors' rights generally or by general
principles governing the availability of equitable remedies.
Section 3.2 NO CONFLICT.
(a) The execution and delivery of this Agreement by such Shareholder
does not, and the performance of this Agreement by such Shareholder shall not,
(i) where such Shareholder is a corporation, limited liability company,
partnership or other entity, conflict with or violate the organizational
documents of such Shareholder, (ii) conflict with or violate any agreement,
arrangement, law, rule, regulation, order, judgment or decree to which such
Shareholder is a party or by which such Shareholder (or the Shares held of
record or Beneficially Owned by such Shareholder) is bound or affected or (iii)
result in any breach of or constitute a default (or an event that with notice or
lapse of time or both would become a default) under, or give to others any
rights of termination, amendment, acceleration or cancellation of, or result in
the creation of a lien or encumbrance on any of the Shares held of record or
Beneficially Owned by such Shareholder pursuant to any note, bond, mortgage,
indenture, contract, agreement, lease,
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license, permit, franchise or other instrument or obligation to which such
Shareholder is a party or by which such Shareholder (or the Shares held of
record or Beneficially Owned by such Shareholder) is bound or affected, except,
in the case of clauses (ii) and (iii) of this Section 3.2(a), for any such
conflicts, violations, breaches, defaults or other occurrences which would not
prevent or delay the performance by such Shareholder of its obligations under
this Agreement.
(b) The execution and delivery of this Agreement by such Shareholder
does not, and the performance of this Agreement by such Shareholder shall not,
require any consent, approval, authorization or permit of, or filing with or
notification to, any governmental entity except for applicable requirements, if
any, of the Exchange Act, and except where the failure to obtain such consents,
approvals, authorizations or permits, or to make such filings or notifications,
would not prevent or delay the performance by such Shareholder of its
obligations under this Agreement.
Section 3.3 TITLE TO THE SHARES. As of the date hereof, such Shareholder is
the record or Beneficial Owner of the number of Shares listed opposite the name
of such Shareholder on Schedule A hereto. The Shares listed opposite the name of
such Shareholder on Schedule A hereto are all the securities of the Company
either held of record or Beneficially Owned by such Shareholder. Such
Shareholder has not appointed or granted any proxy, which appointment or grant
is still effective, with respect to the Shares held of record or Beneficially
Owned by such Shareholder. Each Shareholder has the right to vote or cause to be
voted each of the Shares listed opposite the name of such Shareholder on
Schedule A hereto and, except as set forth on Schedule 3.3 hereto, the Shares
listed opposite the name of such Shareholder on Schedule A hereto are owned free
and clear of all security interests, liens, claims, pledges,
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options, rights of first refusal, agreements, limitations on such Shareholder's
voting rights, charges and other encumbrances of any nature whatsoever.
ARTICLE IV
COVENANTS OF THE SHAREHOLDERS
Section 4.1 NO INCONSISTENT AGREEMENT OR ACTION. Each of the Shareholders
hereby covenants and agrees that such Shareholder shall not, or permit any
Person under such Shareholder's control to, enter into any voting agreement or
grant a proxy or power of attorney with respect to the Shares held of record or
Beneficially Owned by such Shareholder or form any "group" for purposes of the
Exchange Act or the rules promulgated thereunder. Except on the terms and
conditions set forth in Section 3.9 of the Merger Agreement, no Shareholder
shall (i) solicit, initiate, encourage (including by way of furnishing
information or assistance) or take any other action to facilitate, any inquiry
or the making of any proposal which constitutes, or may reasonably be expected
to lead to, any Acquisition Proposals (as defined in the Merger Agreement) or
agree to or endorse any Acquisition Proposal, (ii) propose, enter into or
participate in any discussions or negotiations regarding any of the foregoing,
(iii) furnish to any other Person any information with respect to the Company's
business, properties or assets or (iv) otherwise cooperate in any way with, or
assist or participate in, facilitate or encourage, any effort or attempt by any
other Person to do or seek any of the foregoing.
Section 4.2 TRANSFER OF TITLE.
(a) Each of the Shareholders hereby covenants and agrees that such
Shareholder shall not (i) tender any Shares, (ii) sell, assign or transfer
record or Beneficial Ownership of any of the Shares, or (iii) pledge,
hypothecate or otherwise dispose of any Shares.
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(b) Notwithstanding the foregoing, [ ] may, subject to compliance with
the rules and regulations of the Exchange Act, sell or pledge up to [ ] Shares,
as provided in an Agreement by and among the Company, Parent and [ ], dated as
of April 12, 2000 (the "[ ] Agreement").
Section 4.3 NON-COMPETE. For the duration of the Non-Competition Period (as
defined in Section 5.1(b)), each Shareholder shall not, whether for his account
or for any other Person, (i) engage in or be involved with any provider of
residential, training, educational or support services to populations with
special needs, including persons with developmental or other disabilities or
at-risk or troubled youth (the "Industry"), in the continental United States,
Canada or the Commonwealth of Puerto Rico (the "Territory") or engage in
competition with any business then conducted by the Company or any of its
subsidiaries, or (ii) serve as an employee, officer or director of or consultant
to, or independent contractor to or have any interest (as a partner, owner,
shareholder, joint venturer, lender, guarantor or otherwise) in any business
which is engaged in any part of the Industry or in competition with any business
then conducted by the Company or any of its subsidiaries. Without limiting the
generality of the foregoing, for the duration of the Non-Competition Period,
each Shareholder shall not, whether for his own account or for any other Person,
directly or indirectly, invest in any entity conducting business in the Industry
in the Territory or in any business in competition with any business then
conducted by the Company or any of its subsidiaries without the prior written
consent of the Company, provided that each Shareholder may make such investments
to the extent such Shareholder is legally compelled to do so pursuant to legally
binding commitments approved by Company; PROVIDED, HOWEVER, that each
Shareholder may negotiate transactions on behalf of the Company and other
parties so long as such Shareholder believes in good faith that such
transactions are in the best interests of the Company.
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Section 4.4 NON-SOLICITATION. For the duration of the Non-Competition
Period, each Shareholder shall not, whether for his own account or for any other
Person, solicit, raid, entice or induce any person that presently is or at any
time during the Non-Competition Period shall be (or, in the case of termination,
is at the time of termination) a management employee or officer of the Company
or any of its subsidiaries to become employed by any Person, and each
Shareholder shall not approach any such employee for such purpose or authorize
the taking of such actions by any other Person or assist any such Person in
taking such action.
ARTICLE V
MISCELLANEOUS
Section 5.1 TERMINATION.
(a) Except with respect to Sections 4.3 and 4.4, this Agreement shall
be effective as of the date of this Agreement and shall terminate upon the
earlier to occur of (i) the closing of the transactions contemplated by the
Merger Agreement and (ii) the date the Merger Agreement is terminated in
accordance with its terms.
(b) In respect of the obligations set forth in Sections 4.3 and 4.4,
this Agreement shall be effective as of the date of this Agreement and shall
terminate upon the earlier to occur of (i) five years following the closing of
the transactions contemplated by the Merger Agreement (the "Non-Competition
Period") and (ii) the date the Merger Agreement is terminated in accordance with
its terms.
Section 5.2 ADDITIONAL SHARES. If, after the date hereof, a Shareholder
acquires the right to vote any additional shares of Company Common Stock (any
such shares shall be referred to herein as "Additional Shares"), including,
without limitation, upon exercise of any
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option, warrant or right to acquire shares of Company Common Stock or through
any stock dividend or stock split, the provisions of this Agreement applicable
to the Shares shall be applicable to such Additional Shares as if such
Additional Shares had been Shares as of the date hereof. The provisions of the
immediately preceding sentence shall be effective with respect to Additional
Shares without action by any Person immediately upon the acquisition by a
Shareholder of record or Beneficial Ownership of such Additional Shares.
Section 5.3 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 5.4 ENTIRE AGREEMENT. This Agreement and, with respect to [ ], the
[ ] Agreement constitute the entire agreement between Parent and the
Shareholders with respect to the subject matter hereof and supersedes all prior
agreements and understandings, both written and oral, between Parent and the
Shareholders with respect to the subject matter hereof.
Section 5.5 AMENDMENT AND WAIVER. No alteration, waiver, amendment or
supplement of this Agreement shall be binding or effective unless the same is
set forth in an instrument in writing signed by the parties hereto. The waiver
or failure to insist upon strict compliance with any condition or provision
hereof shall not operate as a waiver of, or estoppel with respect to, any
subsequent or other waiver or failure.
Section 5.6 SEVERABILITY. If any term or other provision of this Agreement
is held to be invalid, illegal or unenforceable, all other conditions and
provisions of this Agreement shall
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nevertheless remain in full force and effect so long as the economic or legal
substance of this Agreement is not affected in any manner materially adverse to
any party. Upon such determination that any term or other provision is invalid,
illegal or incapable of being enforced, the parties hereby 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.
Section 5.7 GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the Commonwealth of Kentucky applicable
to agreements made and to be performed entirely within such state. Each party
hereby submits to the jurisdiction of the Federal District Court of the Western
District of Kentucky.
Section 5.8 WAIVER OF JURY TRIAL. Parent and each Shareholder hereby
irrevocably waives, to the fullest extent permitted by law, 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 any of the
transactions contemplated hereby.
Section 5.9 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be an original and all of which, when taken
together, shall constitute one and the same instrument.
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IN WITNESS WHEREOF, each of the Shareholders and Parent have
caused this Agreement to be duly executed as of the date first written above.
RWD HOLDINGS, INC.
By:
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Name: W. Xxxxxx Xxxx
Title: President
THE SHAREHOLDERS
[ ]
[ ]
[ ]
[ ]
[ ]
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SCHEDULE A
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NUMBER OF SHARES
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NAME OF SHAREHOLDER OWNER OF RECORD VESTED STOCK OPTION TOTAL
------------------- --------------- ------------------- -----
Xxxxx X. Xxxxxxx 1,438,548 1,125 1,439,673
Xxxxxxxx X. Xxxxxxx 661,667 ----- 661,667
Xxxxx X. Xxxxxxx and
Xxxxxxxx X. Xxxxxxx jointly 702,209 ----- 702,209
Xxxxxx X. Xxxxx 799,781 816,046 1,615,827
Xxxxxx Xxxxxx Xxxxxxxx 141,689 2,025 143,714
Xxxxxxx X. Xxxxx 22,650 159,325 181,975
Xxxx X. Xxxx 1,300 131,795 132,500
Xxxxx X. Xxxxxxxxx 705 145,051 145,756
Xxxxxxx X. Xxxxxxxxxx 2,305,504 ----- 2,305,504
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SCHEDULE 3.3
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