<PAGE> 1
As filed with the Securities and Exchange Commission on June 18, 1998.
Registration No. _______________
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
--------------------
RES-CARE, INC.
(Exact name of Company as specified in its charter)
KENTUCKY 61-0875371
(State or other jurisdiction of (I.R.S. Employee
incorporation or organization) Identification No.)
10140 LINN STATION ROAD
LOUISVILLE, KENTUCKY 40223
(Address of principal executive offices)
---------------------
RES-CARE, INC. 1998 OMNIBUS STOCK PLAN
(Full title of the plan)
---------------------
RONALD G. GEARY COPY TO:
PRESIDENT AND CHIEF EXECUTIVE OFFICER
RES-CARE, INC. HENRY D. KAHN
10140 LINN STATION ROAD PIPER & MARBURY, L.L.P.
LOUISVILLE, KENTUCKY 40223 36 CHARLES STREET
(502) 394-2100 BALTIMORE, MARYLAND 21201-3018
(Name, address and telephone number, (410) 576-1686
including area code, of agent for service)
-----------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
=========================================================================================================================
PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TITLE OF SECURITIES AMOUNT TO BE OFFERING PRICE AGGREGATE OFFERING REGISTRATION
TO BE REGISTERED REGISTERED PER SHARE PRICE FEE
- -------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, no par value 750,000 $19.75(2) $14,812,500 $4,369.69
Shares(1)
=========================================================================================================================
</TABLE>
(1) Plus such additional shares as may become issuable by reason of the
antidilution provisions of the Plan.
(2) Estimated solely for the purpose of determining the registration fee.
Pursuant to Rule 457, a proposed offering price of 19.75, the average of
high and low prices on June 16, 1998 as reported by the Nasdaq National
Market System, was used.
<PAGE> 2
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE.
The following documents have been incorporated by reference in
this Registration Statement:
(a) The Registrant's Annual Report on Form 10-K for the
fiscal year ended December 31, 1997; and
(b) The Registrant's Quarterly Report on Form 10-Q for
the quarterly period ended March 31, 1998; and
(c) The description of the Registrant's Common Stock, no
par value, contained in the Registration Statement on
Form S-3 (Reg. No. 333-23599) as such description may
be amended or updated.
All documents subsequently filed by the Registrant pursuant to Sections
13, 14 and 15(d) of the Securities Exchange Act of 1934, prior to the filing of
a post-effective amendment to this Registration Statement which indicates that
all the securities offered have been sold or which deregisters all of such
shares then remaining unsold, shall be deemed to be incorporated by reference
into this Registration Statement and to be a part hereof from the date of filing
of such documents. Any statement contained in a document incorporated or deemed
to be incorporated by reference herein shall be deemed to be modified or
superseded for purposes of this Registration Statement to the extent that a
statement contained herein or in any other subsequently filed document which
also is or is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of this
Registration Statement.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 271B.8-510 of the Kentucky Business Corporation Act
(the "KBCA") permits the indemnification by a corporation of any director who is
made party to a threatened, pending or completed action, suit or proceeding
because he is or was a director of such corporation. To be eligible for
indemnification, such person must have conducted himself in good faith and
reasonably believed that his conduct, if undertaken in his official capacity
with the corporation, was in the corporation's best interests, and, if not in
his official capacity, was at least not opposed to the corporation's best
interests. In the case of a criminal proceeding, the director must also not have
reasonable cause to believe his conduct was unlawful. A director may not be
indemnified under the above-referenced section in connection with a proceeding
by or in the right of the corporation in which the director was adjudged liable
to the corporation or in connection with any other proceeding charging improper
personal benefit by him, whether or not involving action in his official
capacity, in which he was adjudged liable on the basis that personal benefit was
improperly received by him. Indemnification permitted under Section 271B.8-510
of the
Page 2 of 8
<PAGE> 3
KBCA in connection with a proceeding by or in the right of the corporation shall
be limited to reasonable expenses incurred in connection with the proceeding.
Section 271B.8-560 of the KBCA provides that a Kentucky corporation may
indemnify its officers, employees and agents to the same extent as directors.
Mandatory indemnification against reasonable expenses incurred in connection
with a proceeding is provided for by the KBCA, unless otherwise limited by the
corporation's articles of incorporation, where a director or officer has been
wholly successful on the merits or otherwise, in the defense of any proceeding
to which he was a party because he is or was a director or officer of the
corporation. A court of competent jurisdiction may also order indemnification if
the director is fairly and reasonably entitled thereto in view of all relevant
circumstances, whether or not he met the applicable standard of conduct or was
adjudged liable to the corporation.
The KBCA provides that indemnification pursuant to its
provisions is not exclusive of other rights of indemnification to which a person
may be entitled under any bylaw, agreement, vote of shareholders or
disinterested directors, or otherwise. Additionally, the KBCA provides that a
corporation may purchase and maintain insurance on behalf of directors,
officers, employees or agents of the corporation against liability asserted
against or incurred by such parties in their respective capacity with the
corporation.
Article X of the Registrant's Amended and Restated Articles of
Incorporation, as amended, and Article X of the Registrant's Bylaws provide
indemnification of its directors, officers, employees and other agents to the
maximum extent permitted by law.
ITEM 8. EXHIBITS.
Exhibit No. Description of Exhibit
4.1...................Res-Care, Inc. 1998 Omnibus Stock Plan
4.2...................Amended and Restated Articles of
Incorporation of the Registrant's.
Exhibit No. 3.1 of the Registrant's
Registration Statement on Form S-1 (File
No. 33-48749) is hereby incorporated by
reference.
4.3...................Amendment to Amended and Restated
Articles of Incorporation of the
Registrant. Exhibit No. 3.1 to the
Registrant's Registration Statement on
Form S-3 (Reg. No. 333-32573) is hereby
incorporated by reference.
4.4...................Bylaws of the Registrant. Exhibit No.
3.2 of the Registrant's Registration
Statement on Form S-1 (File No.
33-48749) is hereby incorporated by
reference.
5.....................Opinion of Reed Weitkamp Schell Cox &
Vice *
23.1..................Consent of KPMG Peat Marwick LLP *
Page 3 of 8
<PAGE> 4
23.2..................Consent of Reed Weitkamp Schell Cox &
Vice (contained in their opinion filed
as Exhibit 5)
24....................Powers of Attorney (included on the
signature page of this Registration
Statement) *
*.....................Filed herewith.
ITEM 9. UNDERTAKINGS.
A. The undersigned Registrant hereby undertakes:
1. To file, during any period in which offers
or sales are being made, a post-effective
amendment to this Registration Statement:
i. To include any prospectus required
by Section 10(a)(3) of the
Securities Act of 1933;
ii. To reflect in the prospectus any
facts or events arising after the
effective date of this Registration
Statement (or the most recent
post-effective amendment hereof)
which, individually or in the
aggregate, represent a fundamental
change in the information set forth
in this Registration Statement;
iii. To include any material information
with respect to the plan of
distribution not previously
disclosed in this Registration
Statement or any material change to
such information in this
Registration Statement;
Provided, however, that paragraphs
A(1)(i) and A(1)(ii) shall not apply
if the information required to be
included in a post-effective
amendment by those paragraphs is
contained in periodic reports filed
by the Registrant pursuant to
Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 that
are incorporated by reference in
this Registration Statement.
2. That, for the purpose of determining any
liability under the Securities Act of 1933,
each such post-effective amendment shall be
deemed to be a new registration statement
relating to the securities offered therein,
and the offering of such securities at that
time shall be deemed to be the initial bona
fide offering thereof.
3. To remove from registration by means of a
post-effective amendment any of the
securities being registered which remain
unsold at the termination of the offering.
Page 4 of 8
<PAGE> 5
B. The undersigned Registrant hereby undertakes that,
for purposes of determining any liability under the
Securities Act of 1933, each filing of the
Registrant's Annual Report pursuant to Section 13(a)
or Section 15(d) of the Securities Exchange Act of
1934 (and where applicable, each filing of an
employee benefit plan's annual report pursuant to
Section 15(d) of the Securities Exchange Act of 1934)
that is incorporated by reference in this
Registration Statement shall be deemed to be a new
Registration Statement relating to the securities
offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona
fide offering thereof.
C. Insofar as indemnification for liabilities arising
under the Securities Act of 1933 may be permitted to
directors, officers and controlling persons of the
Registrant pursuant to the KBCA, the Amended and
Restated Articles of Incorporation, as amended, and
the Bylaws of the Registrant, or otherwise, the
Registrant has been advised that in the opinion of
the Securities and Exchange Commission such
indemnification is against public policy as expressed
in the Securities Act of 1933, and is, therefore,
unenforceable. In the event that a claim for
indemnification against such liabilities (other than
payment by the Registrant of expenses incurred or
paid by a director, officer or controlling person of
the Registrant in the successful defense of any
action, suit or proceeding) is asserted by such
director, officer or controlling person in connection
with the securities being registered, the Registrant
will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to
a court of appropriate jurisdiction the question
whether such indemnification by it is against public
policy as expressed in the Securities Act of 1933 and
will be governed by the final adjudication of such
issue.
Page 5 of 8
<PAGE> 6
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant has duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in Louisville, Kentucky on
this 18th day of June, 1998.
By: /S/ RONALD G. GEARY
-------------------------------------
Ronald G. Geary
President and Chief Executive Officer
POWER OF ATTORNEY
Know All Men By These Presents, that each person whose signature
appears below constitutes and appoints James R. Fornear, Ronald G. Geary and E.
Halsey Sandford, and each of them, his true and lawful attorneys-in-fact and
agents, with full power of substitution and resubstitution, for him and in his
name, place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Registration Statement, and to
file the same, with all exhibits thereto, and other documents in connection
therewith with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, and each of them, full power and authority to do
and perform each and every act and thing requisite and necessary to be done, as
fully to all intents and purposes as he might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and agents or any of
them, or their or his substitute or substitutions, may lawfully do or cause to
be done by virtue hereof.
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS
REGISTRATION STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN THE
CAPACITIES AND ON THE DATES INDICATED.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- --------- ----- ----
<S> <C> <C>
/S/ JAMES R. FORNEAR Chairman of the Board June 18, 1998
- -------------------- Director
/S/ RONALD G. GEARY President June 18, 1998
- ------------------- Chief Executive Officer
Director
/S/ E. HALSEY SANDFORD Senior Executive June 18, 1998
- ---------------------- Director
</TABLE>
Page 6 of 8
<PAGE> 7
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- --------- ----- ----
<S> <C> <C>
/S/ RALPH G. GRONEFELD, JR. Acting Executive Vice President, June 18, 1998
- --------------------------- Finance and Administration
Chief Financial Officer
Principal Accounting Officer
/S/ SEYMOUR L. BRYSON Director June 18, 1998
- ---------------------
/S/ W. BRUCE LUNSFORD Director June 18, 1998
- ---------------------
/S/ SPIRO B. MITSOS Director June 18, 1998
- -------------------
</TABLE>
Page 7 of 8
<PAGE> 8
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit Number Description Number
-------------- ----------- ------
<S> <C> <C>
4.1 Res-Care, Inc. 1998 Omnibus Stock Plan
4.2 Amended and Restated Articles of Incorporation of
the Registrant. Exhibit No. 3.1 of the Registrant's
Registration Statement on Form S-1 (File No. 33-
48749) is hereby incorporated by reference.
4.3 Amendment to Amended and Restated Articles of
Incorporation of the Registrant. Exhibit No. 3.1 to
the Registrant's Registration Statement on Form S-3
(Reg. No. 333-32573) is hereby incorporated by
reference.
4.4 Bylaws of the Registrant. Exhibit No. 3.2 of the
Registrant's Registration Statement on Form S-1 (File
No. 33-48749) is hereby incorporated by reference.
5 Opinion of Reed Weitkamp Schell Cox & Vice *
23.1 Consent of KPMG Peat Marwick LLP *
23.2 Consent of Reed Weitkamp Schell Cox & Vice
(contained in their opinion filed as Exhibit 5)
24 Powers of Attorney (included on the signature page of
this Registration Statement) *
* Filed herewith.
</TABLE>
Page 8 of 8
<PAGE> 1
Exhibit 4.1
RES-CARE, INC.
1998 OMNIBUS STOCK PLAN
1. ESTABLISHMENT, PURCHASE AND TYPES OF AWARDS
Res-Care, Inc. (the "Company") hereby establishes the Res-Care, Inc.
1998 OMNIBUS STOCK PLAN (the "Plan"). The purpose of the Plan is to promote the
long-term growth and profitability of the Company by (i) providing key people
with incentives to improve stockholder value and to contribute to the growth and
financial success of the Company, and (ii) enabling the Company to attract,
retain and reward the best available persons for positions of substantial
responsibility.
The Plan permits the granting of stock options (including incentive
stock options qualifying under Code Section 422 and nonqualified stock options),
stock appreciation rights, restricted or unrestricted stock awards, phantom
stock, performance awards, or any combination of the foregoing.
2. DEFINITIONS
Under this Plan, except where the context otherwise indicates, the
following definitions apply:
(a) "Award" shall mean any stock option, stock appreciation right,
stock award, phantom stock award or performance award.
(b) "Board" shall mean the Board of Directors of the Company.
(c) "Code" shall mean the Internal Revenue Code of 1986, as amended,
and any regulations promulgated thereunder.
(d) "Common Stock" shall mean shares of common stock of the Company at
no par value.
(e) "Company" shall mean Res-Care, Inc.
(f) "Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
(g) "Fair Market Value" as of any given date with respect to any Awards
granted hereunder shall be determined in good faith by the Board as of the date
the respective Awards are granted.
(h) "Grant Agreement" shall mean a written document memorializing the
terms and
1
<PAGE> 2
conditions of an Award granted pursuant to the Plan and shall incorporate the
terms of the Plan.
(i) "Related Entities" shall mean any entity, whether now or hereafter
existing, which controls, is controlled by, or is under common control with, the
Company (including, but not limited to, joint ventures, limited liability
companies and partnerships). For this purpose, "control" shall mean ownership of
50% or more of the total combined voting power or value of all classes of stock
or interests of the entity.
(j) "Ten Percent Shareholder" shall mean an employee who owns ten
percent (10%) or more of the Common Stock as such amount is calculated for
purposes of Section 422(b)(6) of the Code.
3. EFFECTIVE DATE; TERMINATION DATE
The Plan is effective as of the date on which the Plan was adopted by
the Board, subject to approval of the stockholders within twelve months before
or after such date. No Award shall be granted under the Plan after the close of
business on the day immediately preceding the tenth anniversary of the effective
date of the Plan. Subject to other applicable provisions of the Plan, all Awards
made under the Plan prior to such termination of the Plan shall remain in effect
until such Awards have been satisfied or terminated in accordance with the Plan
and the terms of such Awards.
4. ADMINISTRATION
(a) Administration of Plan. The Plan shall be administered by the Board
or by such committee or committees as may be appointed by the Board from time to
time (the Board, committee or committees hereinafter referred to as the
"Administrator").
(b) Powers of the Administrator. The Administrator shall have all the
powers vested in it by the terms of the Plan, such powers to include authority,
in its sole and absolute discretion, to grant Awards under the Plan, prescribe
Grant Agreements evidencing such Awards and establish programs for granting
Awards.
The Administrator shall have full power and authority to take
all other actions necessary to carry out the purpose and intent of the Plan,
including, but not limited to, the authority to: (i) determine the eligible
persons to whom, and the time or times at which Awards shall be granted; (ii)
determine the types of Awards to be granted; (iii) determine the number of
shares to be covered by or used for reference purposes for each Award; (iv)
impose such terms, limitations, restrictions and conditions upon any such Award
as the Administrator shall deem appropriate; (v) modify, amend, extend or renew
outstanding Awards, or accept the surrender of outstanding Awards and substitute
new Awards (provided however, that, except as provided in Section 8(d) of the
Plan, any modification that would materially adversely affect any outstanding
Award shall not be made without the consent of the holder); (vi) accelerate or
otherwise change
2
<PAGE> 3
the time in which an Award may be exercised or becomes payable and to waive or
accelerate the lapse, in whole or in part, of any restriction or condition with
respect to such Award, including, but not limited to, any restriction or
condition with respect to the vesting or exercisability of an Award following
termination of any grantee's employment; and (vii) establish objectives and
conditions, if any, for earning Awards and determining whether Awards will be
paid after the end of a performance period.
The Administrator shall have full power and authority, in its
sole and absolute discretion, to administer and interpret the Plan and to adopt
and interpret such rules, regulations, agreements, guidelines and instruments
for the administration of the Plan and for the conduct of its business as the
Administrator deems necessary or advisable. The Administrator may correct any
defect, supply an omission or reconcile any inconsistency in the Plan, or in any
granted Award, in the manner and to the extent it shall deem necessary to carry
it into effect.
(c) Non-Uniform Determinations. The Administrator's determinations
under the Plan (including without limitation, determinations of the persons to
receive Awards, the form, amount and timing of such Awards, the terms and
provisions of such Awards and the Grant Agreements evidencing such Awards) need
not be uniform and may be made by the Administrator selectively among persons
who receive, or are eligible to receive, Awards under the Plan, whether or not
such persons are similarly situated.
(d) Limited Liability. To the maximum extent permitted by law, no
member of the Administrator shall be liable for any action taken or decision
made in good faith relating to the Plan or any Award thereunder.
(e) Indemnification. To the maximum extent permitted by law and by the
Company's Articles of Incorporation and Bylaws, the members of the Administrator
shall be indemnified by the Company in respect of all their activities under the
Plan.
(f) Effect of Administrator's Decision. All actions taken and decisions
and determinations made by the Administrator on all matters relating to the Plan
pursuant to the powers vested in it hereunder shall be in the Administrator's
sole and absolute discretion and shall be conclusive and binding on all parties
concerned, including the Company, its stockholders, any participants in the Plan
and any other employee of the Company, and their respective successors in
interest.
5. SHARES AVAILABLE FOR THE PLAN; MAXIMUM AWARDS
Subject to adjustments as provided in Section 8(d) of the Plan, the
shares of Common Stock that may be issued with respect to Awards granted under
the Plan shall not exceed an aggregate of 750,000 shares of Common Stock. The
Company shall reserve such number of shares for Awards under the Plan subject to
adjustments as provided in Section 8(d) of the Plan. The number of shares of
Common Stock available for grants of Awards under the Plan shall be
3
<PAGE> 4
decreased by the sum of the number of shares with respect to which Awards have
been granted and are then outstanding and the number of shares issued upon
exercise of Award. If any Award, or portion of an Award, under the Plan expires
or terminates unexercised, becomes unexercisable or is forfeited or otherwise
terminated, surrendered or cancelled as to any shares, or if any shares of
Common Stock are surrendered to the Company in connection with any Award
(whether or not such surrendered shares were acquired pursuant to any Award),
the shares subject to such Award and the surrendered shares shall thereafter be
available for further Awards under the Plan; provided, however, that any such
shares that are surrendered to the Company in connection with any Award or that
are otherwise forfeited after issuance shall not be available for purchase
pursuant to incentive stock options intended to qualify under Code Section 422.
Subject to adjustments as provided in Section 8(d) of the Plan, the
maximum number of shares of Common Stock subject to Awards of any combination
that may be granted during any one fiscal year of the Company to any one
individual shall be limited to 75,000. Such per-individual limit shall not be
adjusted to effect a restoration of shares of Common Stock with respect to which
the related Award is terminated, surrendered or cancelled.
6. PARTICIPATION
Participation in the Plan shall be open to all employees, officers, and
directors of the Company and the Related Entities as may be selected by the
Administrator from time to time.
7. AWARDS
The Administrator, in its sole discretion, establishes the terms of all
Awards granted under the Plan. Awards may be granted individually or in tandem
with other types of Awards.
All Awards granted under the Plan shall be evidenced by agreements
which shall be subject to the applicable provisions of the Plan, and such other
provisions as the Board may in its discretion adopt. If the issuance of an Award
is evidenced by a written agreement (including but not limited to an employment
agreement), the terms and restrictions relating to such Award as set forth in
each written agreement shall, to the extent inconsistent with any of the
foregoing, be controlling. In the absence of such an agreement or any such
inconsistent provision, the provisions of the Plan shall control.
(a) Stock Options. The Administrator may from time to time grant to
eligible participants Awards of incentive stock options as that term is defined
in Code Section 422 or nonqualified stock options; provided, however, that
Awards of incentive stock options shall be limited to employees of the Company
and Related Entities. Options intended to qualify as incentive stock options
under Code Section 422 must have an exercise price at least equal to Fair Market
Value on the date of grant, provided, however, that the exercise price for
Options granted to a Ten Percent Shareholder shall be not less than 110% of the
Fair Market Value on the date of the grant. Nonqualified stock options may be
granted with an exercise price less than Fair
4
<PAGE> 5
Market Value. No stock option shall be an incentive stock option unless so
designated by the Administrator at the time of grant or in the Grant Agreement
evidencing such stock options.
Each Option shall expire on such date as the Administrator
shall determine, but not later than the tenth anniversary of the date of the
grant (not later than the fifth anniversary in the case of Options granted to a
Ten Percent Shareholder which are intended to be incentive stock options), and
shall be subject to earlier termination as provided in the Grant Agreement.
(b) Stock Appreciation Rights. The Administrator may from time to time
grant to eligible participants Awards of Stock Appreciation Rights ("SAR"). An
SAR entitles the grantee to receive, subject to the provisions of the Plan and
the Grant Agreement, a payment having an aggregate value equal to the product of
(i) the excess of (A) the Fair Market Value on the exercise date of one share of
Common Stock over (B) the base price per share specified in the Grant Agreement,
times (ii) the number of shares specified by the SAR, or portion thereof, which
is exercised. Payment by the Company of the amount receivable upon any exercise
of an SAR may be made by the delivery of Common Stock or cash, or any
combination of Common Stock and cash, as determined in the sole discretion of
the Administrator. If upon settlement of the exercise of an SAR a grantee is to
receive a portion of such payment in shares of Common Stock, the number of
shares shall be determined by dividing such portion by the Fair Market Value of
a share of Common Stock on the exercise date. No fractional shares shall be used
for such payment and the Administrator shall determine whether cash shall be
given in lieu of such fractional shares of whether such fractional shares shall
be eliminated.
(c) Stock Awards. The Administrator may from time to time grant
restricted or unrestricted Stock Awards to eligible participants in such
amounts, on such terms and conditions, and for such consideration, including no
consideration or such minimum consideration as may be required by law, as it
shall determine. A Stock Award may be paid in Common Stock, in cash or in a
combination of Common Stock and cash, as determined in the sole discretion of
the Administrator.
(d) Phantom Stock. The Administrator may from time to time grant Awards
to eligible participants denominated in stock-equivalent units ("phantom stock")
in such amounts and on such terms and conditions as it shall determine. Phantom
stock units granted to a participant shall be credited to a bookkeeping reserve
account solely for accounting purposes and shall not require a segregation of
any of the Company's assets. An Award of phantom stock may be settled in Common
Stock, in cash, or in a combination of Common Stock and cash, as determined in
the sole discretion of the Administrator. Except as otherwise provided in the
applicable Grant Agreement, the grantee shall not have the rights of a
stockholder with respect to any shares of Common Stock represented by a phantom
stock unit solely as a result of the grant of a phantom stock unit to the
grantee.
(e) Performance Awards. The Administrator may, in its discretion, grant
performance awards which become payable on account of attainment of one or more
performance goals
5
<PAGE> 6
established by the Administrator. Performance awards may be paid by the delivery
of Common Stock or cash, or any combination of Common Stock and cash, as
determined in the sole discretion of the Administrator. Performance goals
established by the Administrator may be based on the Company's operating income
or one or more other business criteria selected by the Administrator that apply
to an individual or group of individuals, a business unit, or the Company as a
whole, over such performance period as the Administrator may designate.
8. MISCELLANEOUS
(a) Withholding of Taxes. Grantees and holders of Awards shall pay to
the Company or make provision satisfactory to the Administrator for payment of,
any taxes required to be withheld in respect of Awards under the Plan no later
than the date of the event creating the tax liability. The Company may, to the
extent permitted by law, deduct any such tax obligations from any payment of any
kind otherwise due to the grantee or holder of any Award. In the event that
payment to the Company of such tax obligations is made in shares of Common
Stock, such shares shall be valued at Fair Market Value on the applicable date
for such purposes.
(b) Loans. The Company may make or guarantee loans to grantees to
assist grantees in exercising Awards and satisfying any withholding tax
obligations.
(c) Transferability. Except as otherwise determined by the
Administrator, no Award granted under the Plan shall be transferrable by a
grantee except to members of the grantee's family or to trusts for the benefit
of family members or by will or the laws of descent and distribution. Unless
otherwise determined by the Administrator in accord with the provisions of the
immediately preceding sentence, an Award may be exercised during the lifetime of
the grantee only by the grantee, the grantee's duly appointed guardian or legal
representative or the family member(s) or trustee of the trust to whom an Award
has been transferred as permitted under the Plan.
(d) Adjustments; Business Combinations. In the event of changes in the
Common Stock of the Company by reason of any stock dividend, split-up,
recapitalization, merger, consolidation, business combination or exchange of
shares and the like, the Administrator shall, in its discretion, make
appropriate adjustments to the maximum number and kind of shares reserved for
issuance or with respect to which Awards may be granted under the Plan as
provided in Section 5 of the Plan and to the number, kind and price of shares
covered by Awards granted, and shall, in its discretion and without the consent
of holders of Awards, make any other adjustments in Awards, including but not
limited to reducing the number of shares subject to Awards in cash or in shares
of Common Stock or other securities of the Company or of any other entity, or in
any other matters which relate to Awards as the Administrator shall, it its sole
discretion, determine to be necessary or appropriate.
Notwithstanding anything in the Plan to the contrary and without
the consent of the holders of Awards, the Administrator, in its sole discretion,
may make any modifications to any
6
<PAGE> 7
Awards, including but not limited to cancellation, forfeiture, surrender or
other termination of the Awards in whole or in part regardless of the vested
status of the Award, in order to facilitate any business combination that is
authorized by the Board to comply with requirements for treatment as a
pooling-of-interests transaction for accounting purposes under generally
accepted accounting principles.
The Administrator is authorized to make, in its sole discretion and
without the consent of holders of Awards, adjustments in the terms and
conditions of, and the criteria included in, Awards in recognition of unusual or
nonrecurring events affecting the Company, or the financial statements of the
Company, or of changes in applicable laws, regulations, or accounting
principles, whenever the Administrator determines that such adjustments are
appropriate in order to prevent dilution or enlargement of the benefits or
potential benefits intended to be made available under the Plan.
(e) Tender Offer, Exchange or Sale. In the event that (i) any person
other than the Company shall acquire more than 30% of the Common Stock through a
tender offer, exchange offer or otherwise; or (ii) if the Company shall be a
party to a binding agreement to any merger, consolidation or reorganization in
which any person acquires, beneficially or of record, more than 30% of such
stock; or (iii) there shall be a sale of all or substantially all of the assets
of the Company; or (iv) the persons who were directors of the Company
immediately before a transaction shall cease to constitute a majority of the
Board of Directors of the Company or any successor to the Company; then (x) the
option or award shall immediately vest and be exercisable, and (y) any
outstanding Award held by a grantee shall be entitled to receive in lieu of
exercise of such Award, to the extent that it is then exercisable, a cash
payment in an amount equal to the difference between the aggregate exercise
price of such Award, or portion thereof, and (A) in the case of an event covered
by (i) above, the final offer price per share paid for Common Stock, or such
lower price as the Board may determine is necessary to preserve an Option's ISO
status, multiplied by the number of shares of Common Stock covered by the Award
or portion thereof, or (B) in the case of an event covered by (ii), (iii), or
(iv) above, the aggregate Fair Market Value of the shares covered by the Award,
as determined by the Board at such time. The Administrator shall have the
discretion to revoke or limit the acceleration of exercisability provided for
herein at any time before and within 20 business days following the Effective
Date or Approval Date (as hereafter defined). The Effective Date shall mean the
date on which a change of control occurs. The Approval Date shall mean the date
of approval of a transaction described herein by the Board of Directors.
Any payment which the Company is required to make under this
Section 8(e) shall be made within fifteen business days following the event
which results in the Grantee's right to such payment.
(f) No Trust or Fund Created. Neither the Plan nor any Award shall
create or be construed to create a trust or separate fund of any kind of a
fiduciary relationship between the Company and a grantee or any other person. To
the extent that any grantee or other person
7
<PAGE> 8
acquires a right to receive payments from the Company pursuant to an Award, such
right shall be no greater than the right of any unsecured general creditor of
the Company.
(g) Governing Law. The validity, construction and effect of the Plan,
of Grant Agreements entered into pursuant to the Plan, and of any rules,
regulations, determinations or decisions made by the Administrator relating to
the Plan or such Grant Agreements, and the rights of any and all persons having
or claiming to have any interest therein or thereunder, shall be determined
exclusively in accordance with applicable federal laws and the laws of Kentucky,
without regard to its conflict of laws principles.
(h) Amendment to the Plan. The Board shall have the right to amend,
suspend or terminate the Plan at any time without the approval of Shareholders
of the Company, to the extent such approval is not required pursuant to the
Exchange Act or the Code.
(i) No Right to Continued Employment. No person shall have any claim or
right to be granted an Award under the Plan and the grant of an Award under the
Plan shall not be construed as giving the right to be retained in the employ of
the Company. Further, the Company expressly reserves the right, at any time, to
dismiss a Grantee with or without cause, free from liability or any claim under
the Plan, except as provided herein, or in an option agreement or an employment
agreement.
Date Approved by the Board: February 26, 1998
-----------------
Date Approved by the Shareholders: May 12, 1998
------------
8
<PAGE> 1
Exhibit 5
(REED WEITKAMP SCHELL COX & VICE LETTERHEAD)
May 13, 1998
Res-Care, Inc.
10140 Linn Station Road
Louisville, Kentucky 40223
RE: FORM S-8 REGISTRATION STATEMENT
Ladies and Gentlemen:
We have acted as legal counsel in connection with the preparation of a
Form S-8 Registration Statement under the Securities Act of 1933, as amended
("Registration Statement"), covering an aggregate of 750,000 common shares (the
"Shares") of Res-Care, Inc., a Kentucky corporation (the "Company").
We have examined and are familiar with the Amended and Restated
Articles of Incorporation and Bylaws of the Company, as those instruments have
been amended to date, and the various corporate records and proceedings relating
to the organization of the Company and the proposed issuance of the Shares
pursuant to the valid exercise of stock options granted pursuant to the 1998
Omnibus Stock Plan of the Company (the "Plan"). We have also examined such other
documents and proceedings as we have considered necessary for the purpose of
this opinion.
Based on the foregoing, it is our opinion that the Shares have been
duly authorized and, when issued and paid for in accordance with the terms of
the Plan, will be validly issued, fully paid and nonassessable.
To the extent that laws other than the laws of the Commonwealth of
Kentucky and federal laws are applicable to any of the transactions, agreements
or instruments referred to herein, we express no opinion on such laws.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Sincerely,
/S/ REED WEITKAMP SCHELL COX & VICE
------------------------------------
REED WEITKAMP SCHELL COX & VICE
<PAGE> 1
Exhibit 23.1
(KPMG PEAT MARWICK LLP LETTERHEAD)
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
---------------------------------------------------
The Board of Directors
Res-Care, Inc.
We consent to the incorporation by reference in the Registration Statement on
Form S-8 of Res-Care, Inc. of our report dated February 24, 1998, with respect
to the consolidated balance sheets of Res-Care, Inc. and subsidiaries as of
December 31, 1996 and 1997 and the related consolidated statements of income,
shareholders' equity, and cash flows for each of the years in the three-year
period ended December 31, 1997, which report appears in the Form 10-K for the
year ended December 31, 1997.
/s/ KPMG Peat Marwick LLP
- -------------------------
Louisville, Kentucky
June 15, 1998
