UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE
TO
Tender Offer Statement under Section 14(d)(1) or
13(e)(1) of
the Securities Exchange Act of
1934
(Amendment No. 5)
RES-CARE, INC.
(Name
of Subject Company)
ONEX RESCARE
ACQUISITION, LLC
(Name
of Filing Persons - (Offeror))
ONEX
PARTNERS III LP
(Name
of Filing Persons - (Offeror))
The
persons listed on Schedule I hereto
(Name of Filing Persons - (Other Persons))
COMMON STOCK, NO PAR VALUE
(Title
of Class of Securities)
760943100
(CUSIP
Number of Class of Securities)
Joel I. Greenberg, Esq.
Kaye Scholer LLP
425 Park Avenue
New York, New York 10022
(212) 836-8000
(Name,
address, and telephone numbers of person authorized to receive
notices and communications on behalf of filing persons)
Calculation of Filing Fee
Transaction Valuation*
|
|
Amount of Filing Fee**
|
$340,732,402
|
|
$24,294.22
|
*
Estimated for
purposes of calculating the filing fee only.
Calculated by multiplying (i) 25,715,653, which is the difference
between 29,415,653, the number of shares of common stock, no par value (Shares),
of Res-Care, Inc. (the Company) outstanding as of September 30,
2010, and 3,700,000, which is the number of Shares beneficially owned by Onex
Corporation and its affiliates by (ii) $13.25, which is the per Share
tender offer price. The number of
outstanding Shares was obtained by the Company.
**
The filing fee,
calculated in accordance with Rule 0-11 of the Securities Exchange Act of
1934, as amended, and Fee Rate Advisory #4 for fiscal year 2010, issued December 17,
2009, is calculated by multiplying the Transaction Valuation by .0000713.
x
Check the box
if any part of the fee is offset as provided by Rule 0-11(a)(2) and
identify the filing with which the offsetting fee was previously paid. Identify the previous filing by registration
statement number, or the Form or Schedule and the date of its filing.
Amount Previously Paid
|
|
$24,294.22
|
|
Form or Registration No.:
|
|
Schedule TO-T
|
Filing Party:
|
|
Onex Rescare Acquisition,
LLC
|
|
Date Filed:
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|
October 7, 2010
|
o
Check the box
if the filing relates solely to preliminary communications made before the
commencement of a tender offer.
Check the appropriate boxes
below to designate any transactions to which the statement relates:
x
third-party
tender offer subject to Rule 14d-1.
o
issuer tender
offer subject to Rule 13e-4.
x
going-private
transaction subject to Rule 13e-3.
o
amendment to
Schedule 13D under Rule 13d-2.
Check the following box if
the filing is a final amendment reporting the results of the tender offer:
o
Schedule I
Onex Partners LP
Onex American Holdings II LLC
Onex US Principals LP
Rescare Executive Investco LLC
Onex Partners III GP LP
Onex Corporation
Onex American Holdings GP LLC
Onex Partners GP LP
Onex Partners GP Inc.
2
This
Amendment No. 5 (this Amendment No. 5) to the Tender Offer
Statement and Rule 13e-3 Transaction Statement on Schedule TO originally
filed with the Securities and Exchange Commission on October 7, 2010, as
amended by Amendment No. 1 thereto filed on October 13, 2010, by
Amendment No. 2 thereto filed on October 25, 2010, by Amendment No. 3
thereto filed on November 2, 2010 and by Amendment No. 4 thereto
filed on November 8, 2010 (as amended, the Schedule TO) by Onex Rescare
Acquisition, LLC, a Delaware limited liability company (the Purchaser), is
filed by Purchaser and Onex Partners III LP and amends the Schedule TO relating
to the offer by Purchaser to purchase all of the outstanding shares of common
stock, no par value (the Shares) of Res-Care, Inc., a Kentucky
corporation (the Company), other than Shares owned by the Purchaser and its
affiliates, at a purchase price of $13.25 per Share, net to the seller in cash,
without interest and less any applicable withholding of taxes, upon the terms
and subject to the conditions set forth in the Amended and Restated Offer to
Purchase, dated October 25, 2010 (the Offer to Purchase) (which as
amended or supplemented from time to time, together constitute the Offer).
As
permitted by General Instruction F to Schedule TO, the information set forth by
this Amendment No. 5, including all appendices, schedules, exhibits and
annexes hereto and thereto, is hereby expressly incorporated by reference
herein in response to Items 1 through 13 of the Schedule TO. You should read this Amendment No. 5 to
Schedule TO together with the Schedule TO.
Item 11.
Additional
Information.
(1)
The information incorporated by reference into Item 11(a) of
the Schedule TO is amended by the following amendment to the Offer to Purchase:
The Offer - Section 13. Certain Legal Matters; Regulatory Approvals
The
subsection entitled
Antitrust.
is amended by adding the following thereto:
Purchaser
and Target were informed by the FTC of the early termination of the waiting
period under the HSR Act on October 19, 2010.
The
subsection entitled
Health Care Regulatory
Approvals; Government Contracts.
is amended by adding the
following thereto:
On
November 10, 2010, the West Virginia Heath Care Authority issued its
written approval of Purchasers acquisition of Target through an acquisition of
Shares.
Item 13.
Information Required by Schedule
13E-3
.
Item 7.
Purposes, Alternatives, Reasons and Effects
.
(1)
The
information incorporated by reference into Item 7 of Item 13 of the Schedule TO
is amended by the following amendment to the Offer to Purchase:
Special Factors - Section 4. Position of Onex Investors Regarding Fairness
of the Offer and the Share Exchange
The antepenultimate paragraph of
this section shall be amended and replaced with the following:
As a result of the Offer, Onex
Investors direct and indirect interest in Targets net book value and net
earnings will increase to the extent of the number of Shares acquired under the
Offer. Following the consummation of the Share Exchange, the Onex Investors
interest in the net book value and net earnings of Target is expected to increase
from approximately 24.9% to approximately 98%. The Onex Investors will also
bear a similar percentage of the risk of losses generated by Targets
operations and any decrease in the value of Target after the Share Exchange.
The Onex Investors interest in Targets net book value was $102.1 million as
of September 30, 2010 and in Targets net loss was $5.7 million for the
nine months ended September 30, 2010. On a pro forma basis, as adjusted
for the acquisition of Shares in the Offer and the Share Exchange, the Onex
Investors interest in Targets net book value would have been $409.9 million
as of September 30, 2010, and their interest in Targets net loss for the
nine months ended September 30, 2010 would have been $23.0 million. Targets
net book value of $13.18 per share as of June 30, 2010 and of $11.98 per
share as of September 30, 2010 are each less than the Offer Price.
Item 8.
Fairness of the
Transaction
.
(1)
The
information incorporated by reference into Item 8 of Item 13 of the Schedule TO
is amended by the amendment contained in numbered point 1 of Item 7 of Item 13,
which is hereby incorporated by reference into this Item 8 of Item 13 of the
Schedule TO.
Item 13.
Financial
Statements
.
(1)
The information incorporated
by reference into Item 13(a) of Item 13 of the Schedule TO is amended by
adding the following thereto:
The unaudited consolidated financial
statements of the Company for the quarter ended September 30, 2010 are
incorporated by reference to Part 1 Item 1 of the Companys Quarterly
Report on Form 10-Q for the quarter ended September 30, 2010 and
filed on November 5, 2010.
3
(2)
The information incorporated
by reference into Item 13 of Item 13 of the Schedule TO is amended by the
following amendments to the Offer to Purchase:
The Offer - Section 7. Certain Information Concerning Target
The fifth paragraph of this section
shall be amended and replaced with the following:
Historical Summary Financial Information.
The
summary consolidated financial data for the years ended December 31, 2009
and 2008, six month periods ended June 30, 2009 and June 30, 2010 and
nine month periods ended September 30, 2009 and September 30, 2010
that follow are extracted from, and should be read in conjunction with, the
consolidated financial statements and notes thereto contained in the Companys
Annual Reports on Form 10-K for the year ended December 31, 2009
filed with the SEC on March 9, 2010 and for the year ended December 31,
2008 filed with the SEC on March 13, 2009, and the Companys Quarterly
Reports on Form 10-Q for the quarterly period ended June 30, 2009,
filed with the SEC on August 7, 2009, the quarterly period ended June 30,
2010, filed with the SEC on August 6, 2010, the quarterly period ended September 30,
2009, filed with the SEC on August November 6, 2009, and the
quarterly period ended September 30, 2010, filed with the SEC on November 5,
2010. More comprehensive financial
information is included in such reports (including managements discussion and
analysis of financial conditions and results of operations) and other documents
filed by Target with the SEC, and the following is qualified in its entirety by
reference to such reports and other documents and all of the financial information
and notes contained therein. Copies of
such reports and other documents may be examined at or obtained from the SEC in
the manner set forth above. These
documents are incorporated by reference in this offer to purchase. See Available Information.
The financial chart below the fifth
paragraph of this section is amended and supplemented by adding the following:
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Nine Months Ended
September 30
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2010
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2009
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Income Statement Data:
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Revenues
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$
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1,189,678
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$
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1,191,927
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Operating
income
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(7,948
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)
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63,354
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Net
income
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(Loss)
income from continuing operations, net of tax
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(23,197
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)
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31,775
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Loss
from discontinued operations, net of tax
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|
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Net
(loss) income
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(23,041
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)
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32,353
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|
Net
(loss) income attributable to common shareholders
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(23,041
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)
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27,717
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Basic
earnings per common share:
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From
continuing operations
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$
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(0.80
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)
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$
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0.96
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From
discontinued operations
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0.00
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0.00
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Basic
earnings per common share
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(0.80
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)
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0.96
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Diluted
earnings per common share:
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From
continuing operations
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$
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0.80
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$
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0.96
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From
discontinued operations
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0.00
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0.00
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Diluted
earnings per common share
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(0.80
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)
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0.96
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Other Financial Data:
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Depreciation
and amortization
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$
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19,271
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$
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19,658
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Share-based
compensation expense
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2,224
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|
3,413
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Facility
rent
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49,220
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45,857
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Selected Historical Ratios:
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Percentage
of total debt to total capitalization
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27.9
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31.1
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Ratio of
earnings to fixed charges(1)
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(0.1x
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)
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3.7x
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Balance Sheet Data:
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Working
capital
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$
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101,375
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$
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129,812
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Total
assets
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791,986
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927,389
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Long-term
obligations
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152,180
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211,421
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Total
debt, including capital leases
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159,002
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213,845
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Shareholders
equity
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409,871
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473,649
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4
(1) For the purpose of
determining the ratio of earnings to fixed charges, earnings are defined as
income from continuing operations before income taxes, plus fixed
charges. Fixed charges consist of interest expense on all indebtedness
and amortization of capitalized debt issuance costs and an estimate of interest
within rental expense.
Book Value Per Share.
The Companys book
value per share as of September 30, 2010 was $11.98.
5
SIGNATURES
After
due inquiry and to the best of its knowledge and belief, the undersigned
certifies that the information set forth in this statement is true, complete
and correct.
Date:
November 12, 2010
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ONEX
RESCARE ACQUISITION, LLC
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By:
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/s/
Robert M. Le Blanc
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Name:
Robert M. Le Blanc
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Title:
Sole Director
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ONEX
PARTNERS III LP
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By:
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ONEX
PARTNERS III GP LP, its General Partner
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By:
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ONEX
PARTNERS MANAGER LP, its Agent
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By:
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ONEX
PARTNERS MANAGER GP ULC.,
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its
General Partner
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By:
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/s/
Robert M. Le Blanc
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Name:
Robert M. Le Blanc
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Title:
Managing Director
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By:
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/s/
Joshua Hausman
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Name:
Joshua Hausman
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Title:
Vice President
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ONEX
PARTNERS III GP LP
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By:
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ONEX
PARTNERS GP INC., its General Partner
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By:
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/s/
Robert M. Le Blanc
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Name:
Robert M. Le Blanc
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Title:
President
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ONEX
PARTNERS GP INC.
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By:
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/s/
Robert M. Le Blanc
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Name:
Robert M. Le Blanc
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Title:
President
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ONEX
PARTNERS LP
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By:
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ONEX
PARTNERS GP LP, its General Partner,
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By:
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ONEX
PARTNERS MANAGER LP, its Agent
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By:
|
ONEX
PARTNERS MANAGER GP ULC.,
|
6
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its
General Partner
|
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|
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|
By:
|
/s/
Robert M. Le Blanc
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|
Name:
Robert M. Le Blanc
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Title:
Managing Director
|
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By:
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/s/
Joshua Hausman
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Name:
Joshua Hausman
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Title:
Vice President
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ONEX
PARTNERS GP LP
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By:
|
ONEX
PARTNERS GP INC., its General Partner
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By:
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/s/
Robert M. Le Blanc
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|
Name:
Robert M. Le Blanc
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|
Title:
President
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|
|
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ONEX
US PRINCIPALS LP
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By:
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ONEX
AMERICAN HOLDINGS GP LLC,
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its
General Partner
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By:
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/s/
Robert M. Le Blanc
|
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|
Name:
Robert M. Le Blanc
|
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|
Title:
Director
|
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|
|
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ONEX
AMERICAN HOLDINGS GP LLC
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By:
|
/s/
Robert M. Le Blanc
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|
Name:
Robert M. Le Blanc
|
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Title:
Director
|
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RESCARE
EXECUTIVE INVESTCO LLC
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By:
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/s/
Robert M. Le Blanc
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|
Name:
Robert M. Le Blanc
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Title:
Director
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By:
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/s/
Donald F. West
|
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Name:
Donald F. West
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Title:
Director
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ONEX
AMERICAN HOLDINGS II LLC
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|
|
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By:
|
/s/
Robert M. Le Blanc
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Name:
Robert M. Le Blanc
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Title:
Director
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By:
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/s/
Donald F. West
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Name:
Donald F. West
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Title:
Director
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7
|
ONEX
CORPORATION
|
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By:
|
/s/
Andrea E. Daly
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Name:
Andrea E. Daly
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Title:
Vice President
|
8
EXHIBIT INDEX
Exhibit No.
|
|
Description
|
(a)(1)(i)
|
|
Offer
to Purchase, dated October 7, 2010.*
|
(a)(1)(ii)
|
|
Amended
and Restated Offer to Purchase, dated October 25, 2010.*
|
(a)(1)(iii)
|
|
Letter
of Transmittal, dated October 7, 2010.*
|
(a)(1)(iv)
|
|
Notice
of Guaranteed Delivery.*
|
(a)(1)(v)
|
|
Letter
to Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees.*
|
(a)(1)(vi)
|
|
Letter
to Clients for Use by Brokers, Dealers, Commercial Banks, Trust Companies and
Other Nominees.*
|
(a)(1)(vi)(A)
|
|
Corrected
Letter to Clients for Use by Brokers, Dealers, Commercial Banks, Trust
Companies and Other Nominees.*
|
(a)(1)(vii)
|
|
Text
of Press Release issued by the Purchaser on September 7, 2010
(incorporated by reference to the pre-commencement Schedule TO-C filed on
September 8, 2010).*
|
(a)(5)(i)
|
|
Complaint
filed in Jefferson Circuit Court of the Commonwealth of Kentucky, captioned
Margolis v. Gronefeld, et al., case No. 10CI06597.*
|
(a)(5)(ii)
|
|
Text
of Press Release issued by Onex Corporation on October 7, 2010
announcing the commencement of the Offer.*
|
(a)(5)(iii)
|
|
Text
of Press Release issued by Onex Corporation on November 5, 2010
announcing the extension of the Offer.*
|
(b)
|
|
None.
|
(d)(1)
|
|
Agreement
and Plan of Share Exchange, dated as of September 6, 2010, between
Purchaser and the Company (incorporated by reference to Exhibit 2.01 to
the Form SC 13D/A filed by Onex Corporation on September 8, 2010).*
|
(d)(2)
|
|
Voting
Agreement, dated as of September 6, 2010, by and between certain of the
Companys shareholders and the Company (incorporated by reference to
Exhibit 4.1 to the Form 8-K filed by the Company on
September 10, 2010).*
|
(d)(3)
|
|
Guarantee
of Onex Partners III LP dated as of September 6, 2010 (incorporated by
reference to Exhibit 10.1 to the Form 8-K filed by the Company on
September 10, 2010).*
|
(d)(4)
|
|
Form of
Commitment Letter made by certain Company management shareholders in favor of
Onex Partners III LP (incorporated by reference to Exhibit 10.2 to the
Form 8-K filed by the Company on September 10, 2010).*
|
(f)
|
|
Subtitle
13 of the Kentucky Business Corporation Act (included as Schedule D of the
Offer to Purchase filed herewith as Exhibit (a)(1)(i)).*
|
(g)
|
|
None.
|
(h)
|
|
None.
|
* Previously filed.
9
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