<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER 17, 1997
REGISTRATION NO. 333-28521
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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AMENDMENT NO. 4
TO
FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------------
NEW BEVERLY HOLDINGS, INC.
(Exact Name of Registrant as Specified in its Charter)
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DELAWARE 8051 62-1691861
(State or other jurisdiction of (Primary Standard Industrial (IRS Employer
incorporation or organization) Classification Code Number) Identification No.)
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5111 ROGERS AVENUE, SUITE 40-A
FORT SMITH, ARKANSAS 72919-0155
(501) 452-6712
(Address, Including Zip Code, And Telephone Number, Including
Area Code, of Registrant's Principal Executive Offices)
ROBERT W. POMMERVILLE, ESQ.
EXECUTIVE VICE PRESIDENT, GENERAL COUNSEL AND SECRETARY
NEW BEVERLY HOLDINGS, INC.
5111 ROGERS AVENUE, SUITE 40-A
FORT SMITH, ARKANSAS 72919-0155
(501) 452-6712
(Name, Address, Including Zip Code, and Telephone Number, Including
Area Code, of Agent for Service)
---------------------
Copies to:
H. WATT GREGORY, III, ESQ.
MICHAEL E. KARNEY, ESQ.
GIROIR, GREGORY, HOLMES & HOOVER, PLC
111 CENTER STREET, SUITE 1900
LITTLE ROCK, ARKANSAS 72201
(501) 372-3000
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after this Registration Statement becomes effective and all other
conditions described herein have been satisfied or are waived.
If the securities being registered on this Form are being offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, check the following box. [ ]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
---------------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 13. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
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Registration fee............................................ 100.00
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Printing and engraving expenses............................. 200,000.00*
Transfer agent fees......................................... 15,000.00*
Legal fees and expenses..................................... 900,000.00*
Accounting fees and expenses................................ 200,000.00*
New York Stock Exchange listing fee......................... 5,300.00*
Miscellaneous expense....................................... 1,200,000.00*
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Total............................................. $2,620,400.00
=============
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* Estimated
ITEM 14. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Registrant's Certificate of Incorporation and Bylaws and the
indemnification agreements between the Registrant and its officers and directors
contain provisions regarding the indemnification of officers and directors. The
Registrant's Certificate of Incorporation and Bylaws provide that the
Registrant, to the fullest extent permitted, and in the manner required by the
laws of the State of Delaware as in effect at the time of the adoption of the
Certificate of Incorporation and Bylaw provisions regarding indemnification or
as the same may be amended from time to time, shall (i) indemnify any person
(and the heirs and legal representatives of such person) who is made or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether in nature civil, criminal, administrative or
investigative, by reason of the fact that he or she is or was a director
officer, employee or agent of the Registrant or of any constituent corporation
absorbed into the Registrant by consolidation or merger, or serves or served
with another corporation, partnership, joint venture, trust or enterprise, or
non-profit entity, including service with respect to employee benefit plans, at
the request of the Registrant or of any such constituent corporation against all
liability and (ii) provide to any such person (and the heirs and legal
representatives of such person) advances for expenses incurred in defending any
such action, suit or proceeding, upon receipt of an undertaking by or on behalf
of such person (and the heirs and legal representatives of such person) to repay
such advances unless it is ultimately determined that he or she is not entitled
to indemnification by the Registrant.
Section 145 of the Delaware General Corporation Law ("DGCL") applies to the
Company and the relevant portion of the DGCL provides as follows:
145. INDEMNIFICATION OF OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS;
INSURANCE.
(a) A corporation may indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the corporation)
by reason of the fact that he is or was a director, officer, employee or
agent of the corporation, or is or was serving at the request of the
corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, against
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in connection with such
action, suit or proceeding if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. The termination of
any action, suit or proceeding
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by judgment, order, settlement, conviction, or upon a plea of nolo
contendere or its equivalent, shall not, of itself, create a presumption
that the person did not act in good faith and in a manner which he
reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, had
reasonable cause to believe that his conduct was unlawful.
(b) A corporation may indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed
action or suit by or in the right of the corporation to procure a judgment
in its favor by reason of the fact that he is or was a director, officer,
employee or agent of the corporation, or is or was serving at the request
of the corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise against
expenses (including attorneys' fees) actually and reasonably incurred by
him in connection with the defense or settlement of such action or suit if
he acted in good faith and in a manner he reasonably believed to be in or
not opposed to the best interests of the corporation and except that no
indemnification shall be made in respect of any claim, issue or matter as
to which such person shall have been adjudged to be liable to the
corporation unless and only to the extent that the Court of Chancery or the
court in which such action or suit was brought shall determine upon
application that, despite the adjudication of liability but in view of all
the circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses which the Court of Chancery or such
other court shall deem proper.
(c) To the extent that a director, officer, employee or agent of a
corporation has been successful on the merits or otherwise in defense of
any action, suit or proceeding referred to in subsections (a) and (b) of
this section, or in defense of any claim, issue or matter therein, he shall
be indemnified against expenses (including attorneys' fees) actually and
reasonably incurred by him in connection therewith.
(d) Any indemnification under subsections (a) and (b) of this section
(unless ordered by a court) shall be made by the corporation only as
authorized in the specific case upon a determination that indemnification
of the director, officer, employee or agent is proper in the circumstances
because he has met the applicable standard of conduct set forth in
subsections (a) and (b) of this section. Such determination shall be made
(1) by a majority vote of the directors who were not parties to such
action, suit or proceeding, even though less than a quorum, or (2) if there
are no such directors, or if such directors so direct, by independent legal
counsel in a written opinion, or (3) by the stockholders.
(e) Expenses (including attorneys' fees) incurred by an officer or
director in defending any civil, criminal, administrative or investigative
action, suit or proceeding may be paid by the corporation in advance of the
final disposition of such action, suit or proceeding upon receipt of an
undertaking by or on behalf of such director or officer to repay such
amount if it shall ultimately be determined that he is not entitled to be
indemnified by the corporation as authorized in this section. Such expenses
(including attorneys' fees) incurred by other employees and agents may be
so paid upon such terms and conditions, if any, as the board of directors
deems appropriate.
(f) The indemnification and advancement of expenses provided by, or
granted pursuant to, the other subsections of this section shall not be
deemed exclusive of any other rights to which those seeking indemnification
or advancement of expenses may be entitled under any bylaw, agreement, vote
of stockholders or disinterested directors or otherwise, both as to action
in his official capacity and as to action in another capacity while holding
such office.
(g) A corporation shall have power to purchase and maintain insurance
on behalf of any person who is or was a director, officer, employee or
agent of the corporation, or is or was serving at the request of the
corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise against
any liability asserted against him and incurred by him in any such
capacity, or arising out of his status as such, whether or not the
corporation would have the power to indemnify him against such liability
under this section.
(h) For purposes of this section, references to "the corporation"
shall include, in addition to the resulting corporation, any constituent
corporation (including any constituent of a constituent) absorbed in a
consolidation or merger which, if its separate existence had continued,
would have had power and
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authority to indemnify its directors, officers and employees or agents, so
that any person who is or was a director, officer, employee or agent of
such constituent corporation, or is or was serving at the request of such
constituent corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise,
shall stand in the same position under this section with respect to the
resulting or surviving corporation as he would have with respect to such
constituent corporation if its separate existence had continued.
(i) For purposes of this section, references to "other enterprises"
shall include employee benefit plans; references to "fines" shall include
any excise taxes assessed on a person with respect to any employee benefit
plan; and references to "serving at the request of the corporation" shall
include any service as a director, officer, employee or agent of the
corporation which imposes duties on, or involves services by, such
director, officer, employee, or agent with respect to an employee benefit
plan, its participants or beneficiaries; and a person who acted in good
faith and in a manner he reasonably believed to be in the interest of the
participants and beneficiaries of an employee benefit plan shall be deemed
to have acted in a manner "not opposed to the best interests of the
corporation" as referred to in this section.
(j) The indemnification and advancement of expenses provided by, or
granted pursuant to, this section shall, unless otherwise provided when
authorized or ratified, continue as to a person who has ceased to be a
director, officer, employee or agent and shall inure to the benefit of the
heirs, executors and administrators of such a person.
(k) The Court of Chancery is hereby vested with the exclusive
jurisdiction to hear and determine all actions for advancement of expenses
or indemnification brought under this section or under any bylaw,
agreement, vote of stockholders or disinterested directors, or otherwise.
The Court of Chancery may summarily determine a corporation's obligation to
advance expenses (including attorneys' fees).
The Certificate of Incorporation limits the liability of directors (in
their capacity as directors, but not in their capacity as officers) to the
Registrant or its stockholders to the fullest extent permitted by the DGCL, as
amended. Specifically, no director of the Registrant will be personally liable
to the Registrant or its stockholders for monetary damages for breach of the
director's fiduciary duty as a director, except as provided in Section 102 of
the DGCL for liability: (i) for any breach of the director's duty of loyalty to
the Registrant or its stockholders; (ii) for acts or omissions not in good faith
and which involve intentional misconduct or knowing violation of law; (iii)
under Section 174 of the DGCL, which relates to unlawful payments of dividends
or unlawful stock repurchases or redemptions; or (iv) for any transaction from
which the director derived an improper personal benefit. The inclusion of this
provision in the Certificate of Incorporation may have the effect of reducing
the likelihood of derivative litigation against directors, and may discourage or
deter stockholders or management from bringing a lawsuit against directors for
breach of their duty of care, even though such action, if successful, might
otherwise have benefitted the Registrant and its stockholders.
Under the Certificate of Incorporation and in accordance with Section 145
of the DGCL, the Registrant will indemnify any person who was or is a party, or
is threatened to be made a party, to any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than a "derivative" action by or in the right of the
Registrant) by reason of the fact that such person was or is a director or
officer of the Registrant, against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably incurred
in connection with such action, suit or proceeding if such person acted in good
faith and in a manner such person reasonably believed to be in or not opposed to
the best interests of the Registrant, and, with respect to any criminal action
or proceeding, had no reasonable cause to believe such acts were unlawful. A
similar standard of care is applicable in the case of derivative actions, except
that indemnification only extends to expenses (including attorneys' fees)
actually and reasonably incurred in connection with the defense or settlement of
such an action and then, where the person is adjudged to be liable to the
Registrant, only if and to the extent that the Court of Chancery of the State of
Delaware or the court in which such action was brought determines that such
person is fairly and reasonably entitled to such indemnity and then only for
such expenses as the court deems proper. The Registrant will indemnify, pursuant
to the standard enumerated in Section 145 of the DGCL, any past or present
officer or
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director who was or is a party, or is threatened to be made a party, to any
threatened, pending or completed derivative action by or in the right of the
Registrant.
The Certification of Incorporation of the Registrant provides that the
Registrant may pay for the expenses incurred by an indemnified director or
officer in defending the proceedings specified above in advance of their final
disposition, provided that, if the DGCL so requires, such indemnified person
agrees to reimburse the Registrant if it is ultimately determined that such
person is not entitled to indemnification. The Registrant's Certificate of
Incorporation also allows the Registrant, in its sole discretion, to indemnify
any person who is or was one of its employees and agents to the same degree as
the foregoing indemnification of directors and officers. To the extent that a
director, officer, employee or agent of the Registrant has been successful on
the merits or otherwise in defense of any action, suit or proceeding referred to
in subsections (a) and (b) of Section 145 of the DGCL, or in defense of any
claim, issue or matter therein, such person shall be indemnified against
expenses (including attorneys' fees) actually and reasonably incurred by such
person in connection therewith. In addition, the Registrant may purchase and
maintain insurance on behalf of any person who is or was a director, officer,
employee or agent of the Registrant or another corporation, partnership, joint
venture, trust or other enterprise against any liability asserted against and
incurred by such person in such capacity, or arising out of the person's status
as such whether or not the Registrant would have the power or obligation to
indemnify such person against such liability under the provisions of the DGCL.
The Registrant maintains insurance for the benefit of the Registrant's officers
and directors insuring such persons against certain liabilities, including civil
liabilities under the securities laws. Additionally, the Registrant has entered
into indemnification agreements with each of the Directors of the Registrant,
which, among other things, provides that the Registrant will indemnify such
Directors to the fullest extent permitted by the Certificate of Incorporation
and the DGCL and will advance expenses of defending claims against such
Directors.
ITEM 15. RECENT SALES OF UNREGISTERED SECURITIES
None
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
(a) The following exhibits are filed as part of the Registration Statement.
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EXHIBIT
NUMBER DESCRIPTION
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2.1 -- Agreement and Plan of Merger dated April 15, 1997 by and
between Beverly Enterprises, Inc. and Capstone Pharmacy
Services, Inc. (incorporated by reference to Exhibit 2.1
to Beverly Enterprises, Inc.'s Current Report on Form 8-K
dated April 15, 1997).
2.2 -- Agreement and Plan of Distribution by and among Beverly
Enterprises, Inc., New Beverly Holdings, Inc. and
Capstone Pharmacy Services, Inc. dated as of April 15,
1997 (incorporated by reference to Exhibit 2.2 to Beverly
Enterprises, Inc.'s Current Report on Form 8-K dated
April 15, 1997).
3.1* -- Certificate of Incorporation of New Beverly Holdings,
Inc. dated April 15, 1997.
3.2* -- Amended Certificate of Incorporation of New Beverly
Holdings, Inc. dated May 29, 1997.
3.4* -- Bylaws of New Beverly Holdings, Inc.
4.1 -- Indenture dated as of February 1, 1996 between Beverly
Enterprises, Inc. and Chemical Bank, as Trustee, with
respect to Beverly Enterprises, Inc.'s 9% Senior Notes
due February 15, 2006 (incorporated by reference to
Exhibit 4.1 to Beverly Enterprises, Inc.'s Annual Report
on Form 10-K for the year ended December 31, 1995).
</TABLE>
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<TABLE>
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EXHIBIT
NUMBER DESCRIPTION
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4.2 -- Indenture dated as of April 1, 1993 (the "First Mortgage
Bond Indenture"), among Beverly Enterprises, Inc.,
Delaware Trust Company, as Corporate Trustee, and Richard
N. Smith, as Individual Trustee, with respect to First
Mortgage Bonds (incorporated by reference to Exhibit 4.1
to Beverly Enterprises, Inc.'s Quarterly Report on Form
10-Q for the quarter ended March 31, 1993).
4.3 -- First Supplemental Indenture dated as of April 1, 1993 to
the First Mortgage Bond Indenture, with respect to 8 3/4%
First Mortgage Bonds due 2008 (incorporated by reference
to Exhibit 4.2 to Beverly Enterprises, Inc.'s Quarterly
Report on Form 10-Q for the quarter ended March 31,
1993).
4.4 -- Second Supplemental Indenture dated as of July 1, 1993 to
the First Mortgage Bond Indenture, with respect to 8 5/8%
First Mortgage Bonds due 2008 (replaces Exhibit 4.1 to
Beverly Enterprises, Inc.'s Current Report on Form 8-K
dated July 15, 1993) (incorporated by reference to
Exhibit 4.15 to Beverly Enterprises, Inc.'s Quarterly
Report on Form 10-Q for the quarter ended June 30, 1993).
4.5 -- Indenture dated as of December 30, 1993 (the "Notes
Indenture"), between Beverly Enterprises, Inc. and
Boatmen's Trust Company, as Trustee, with respect to the
8.75% Notes (incorporated by reference to Exhibit 4.2 to
Beverly Enterprises, Inc.'s Registration Statement on
Form S-3 filed on November 9, 1993 (File No. 33-50965)).
4.6 -- First Supplemental Indenture dated as of December 30,
1993 to the Notes Indenture, with respect to 8 3/4% Notes
due 2003 (incorporated by reference to Exhibit 4.4 to
Beverly Enterprises, Inc.'s Current Report on Form 8-K
dated January 4, 1994).
4.7 -- Rights Agreement dated as of September 29, 1994, between
Beverly Enterprises, Inc. and The Bank of New York, as
Rights Agent (incorporated by reference to Exhibit 1 to
Beverly Enterprises, Inc.'s Registration Statement on
Form 8-A filed on October 18, 1994).
4.8 -- Amendment, dated as of April 6, 1995, to the Rights
Agreement between Beverly Enterprises, Inc. and The Bank
of New York, as Rights Agent (incorporated by reference
to Exhibit 4.20 to Beverly Enterprises, Inc.'s Quarterly
Report on Form 10-Q for the quarter ended June 30, 1995).
In accordance with item 601(b)(4)(iii) of Regulation S-K,
certain instruments pertaining to Beverly Enterprises,
Inc.'s long-term obligations have not been filed; copies
thereof will be furnished to the Securities and Exchange
Commission upon request.
5.1* -- Opinion of Giroir, Gregory, Holmes & Hoover, PLC as to
certain legal matters.
10.1 -- Executive Medical Reimbursement Plan assumed by New
Beverly Holdings, Inc. (incorporated by reference to
Exhibit 10.5 to Beverly Enterprises, Inc.'s Annual Report
on Form 10-K for the year ended December 31, 1987).
10.2 -- Amended and Restated Beverly Enterprises, Inc. Executive
Life Insurance Plan and Summary Plan Description (the
"Executive Life Plan") assumed by New Beverly Holdings,
Inc. (incorporated by reference to Exhibit 10.7 to
Beverly Enterprises, Inc.'s Annual Report on Form 10-K
for the year ended December 31, 1993).
10.3 -- Amendment No. 1, effective September 29, 1994, to the
Executive Life Plan assumed by New Beverly Holdings, Inc.
(incorporated by reference to Exhibit 10.10 to Beverly
Enterprises, Inc.'s Registration Statement on Form S-4
filed on February 13, 1995 (File No. 33-57663)).
10.4 -- Executive Physicals Policy assumed by New Beverly
Holdings, Inc. (incorporated by reference to Exhibit 10.8
to Beverly Enterprises, Inc.'s Quarterly Report on Form
10-Q for the quarter ended June 30, 1993).
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<TABLE>
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EXHIBIT
NUMBER DESCRIPTION
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10.5 -- Amended and Restated Deferred Compensation Plan effective
July 18, 1991 assumed by New Beverly Holdings, Inc.
(incorporated by reference to Exhibit 10.6 to Beverly
Enterprises, Inc.'s Annual Report on Form 10-K for the
year ended December 31, 1991).
10.6 -- Amendment No. 1, effective September 29, 1994, to the
Deferred Compensation Plan assumed by New Beverly
Holdings, Inc. (incorporated by reference to Exhibit
10.13 to Beverly Enterprises, Inc.'s Registration
Statement on Form S-4 filed on February 13, 1995 (File
No. 33-57663)).
10.7 -- Executive Retirement Plan assumed by New Beverly
Holdings, Inc. (incorporated by reference to Exhibit 10.9
to Beverly Enterprises, Inc.'s Annual Report on Form 10-K
for the year ended December 31, 1987).
10.8 -- Amendment No. 1, effective as of July 1, 1991, to the
Executive Retirement Plan assumed by New Beverly
Holdings, Inc. (incorporated by reference to Exhibit 10.8
to Beverly Enterprises, Inc.'s Annual Report on Form 10-K
for the year ended December 31, 1991).
10.9 -- Amendment No. 2, effective as of December 12, 1991, to
the Executive Retirement Plan assumed by New Beverly
Holdings, Inc. (incorporated by reference to Exhibit 10.9
to Beverly Enterprises, Inc.'s Annual Report on Form 10-K
for the year ended December 31, 1991).
10.10 -- Amendment No. 3, effective as of July 31, 1992, to the
executive Retirement Plan assumed by New Beverly
Holdings, Inc. (incorporated by reference to Exhibit
10.10 to Beverly Enterprises, Inc.'s Annual Report on
Form 10-K for the year ended December 31, 1992).
10.11 -- Amendment No. 4, effective as of January 1, 1993, to the
Executive Retirement Plan assumed by New Beverly
Holdings, Inc. (incorporated by reference to Exhibit
10.18 to Beverly Enterprises, Inc.'s Annual Report on
Form 10-K for the year ended December 31, 1994).
10.12 -- Amendment No. 5, effective as of September 29, 1994, to
the Executive Retirement Plan assumed by New Beverly
Holdings, Inc. (incorporated by reference to Exhibit
10.19 to Beverly Enterprises, Inc.'s Annual Report on
Form 10-K for the year ended December 31, 1994).
10.13 -- Beverly Enterprises, Inc. Executive Deferred Compensation
Plan assumed by New Beverly Holdings, Inc. (incorporated
by reference to Exhibit 10.23 to Beverly Enterprises,
Inc.'s Annual Report on Form 10-K for the year ended
December 31, 1996).
10.14 -- Beverly Enterprises, Inc. Supplemental Long-Term
Disability Plan assumed by New Beverly Holdings, Inc.
(incorporated by reference to Exhibit 10.24 to Beverly
Enterprises, Inc.'s Annual Report on Form 10-K for the
year ended December 31, 1996).
10.15 -- Severance Plan for Corporate and Regional Employees
effective December 1, 1989 assumed by New Beverly
Holdings, Inc. (incorporated by reference to Exhibit
10.21 to Amendment No. 1 to Beverly Enterprises, Inc.'s
Registration Statement on Form S-1 filed on February 26,
1990 (File No. 33-33052)).
10.16 -- Employment Contract, made as of December 8, 1995, between
Beverly Enterprises, Inc. and David R. Banks
(incorporated by reference to Exhibit 10.2 to Beverly
Enterprises, Inc.'s Quarterly Report on Form 10-Q for the
quarter ended June 30, 1996).
</TABLE>
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<TABLE>
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EXHIBIT
NUMBER DESCRIPTION
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10.17* -- Employment Contract, made as of August 22, 1997 between
New Beverly Holdings, Inc. and David R. Banks.
10.18 -- Employment Contract, made as of December 8, 1995, between
Beverly Enterprises, Inc. and Boyd W. Hendrickson
(incorporated by reference to Exhibit 10.3 to Beverly
Enterprises, Inc.'s Quarterly Report on Form 10-Q for the
quarter ended June 30, 1996).
10.19 -- Form of Change In Control Severance Agreement, made as of
December 8, 1995, between Beverly Enterprises, Inc. and
its Executive Vice Presidents (incorporated by reference
to Exhibit 10.31 to Beverly Enterprises, Inc.'s Annual
Report on Form 10-K for the year ended December 31,
1995).
10.20* -- Form of Employment Contract, made as of August 22, 1997
between New Beverly Holdings, Inc. and certain officers.
10.21 -- Form of Change In Control Severance Agreement, made as of
December 8, 1995, between Beverly Enterprises, Inc. and
certain of its officers (incorporated by reference to
Exhibit 10.32 to Beverly Enterprises, Inc.'s Annual
Report on Form 10-K for the year ended December 31,
1995).
10.22* -- Form of Severance Agreement made as of August 26, 1997
between New Beverly Holdings, Inc. and certain officers.
10.23* -- Amended and Restated Credit Agreement, dated as of August
20, 1997, among Beverly Enterprises, Inc., the Banks
listed therein, and Morgan Guaranty Trust Company of New
York, as Issuing Bank and as Agent.
10.24 -- Trust Indenture dated as of December 1, 1994 from Beverly
Funding Corporation, as Issuer, to Chemical Bank, as
Trustee (the "Chemical Indenture") (incorporated by
reference to Exhibit 10.45 to Beverly Enterprises, Inc.'s
Registration Statement on Form S-4 filed on February 13,
1995 (File No. 33-57663)).
10.25 -- Series Supplement dated as of December 1, 1994 to the
Chemical Indenture (incorporated by reference to Exhibit
10.46 to Beverly Enterprises, Inc.'s Registration
Statement on Form S-4 filed on February 13, 1995 (File
No. 33-57663)).
10.26 -- Data Processing Agreement, dated as of August 1, 1992, by
and between Systematics Telecommunications Services, Inc.
and Beverly California Corporation (incorporated by
reference to Exhibit 10 to Beverly Enterprises, Inc.'s
Quarterly Report on Form 10-Q for the quarter ended June
30, 1992).
10.27 -- Form of Irrevocable Trust Agreement for the Beverly
Enterprises, Inc. Executive Benefits Plan assumed by New
Beverly Holdings, Inc. (incorporated by reference to
Exhibit 10.55 to Beverly Enterprises, Inc.'s Registration
Statement on Form S-4 filed on February 13, 1995 (File
No. 33-57663)).
10.28 -- Form of Indemnification and Pledge Agreement assumed by
New Beverly Holdings, Inc. (Incorporated by reference to
Exhibit 10.1 to Beverly Enterprises, Inc.'s Quarterly
Report on Form 10-Q for the quarter ended March 31,
1997).
10.29 -- Beverly Enterprises, Inc. Non-Employee Director Deferred
Compensation Plan assumed by New Beverly Holdings, Inc.
(incorporated by reference to Exhibit 10.1 to Beverly
Enterprises, Inc.'s Quarterly Report on Form 10-Q for the
quarter ended June 30, 1997).
</TABLE>
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<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
------- -----------
<C> <S>
10.30 -- Participation Agreement, dated as of March 21, 1997,
among Vantage Healthcare Corporation, Petersen Health
Care, Inc., Beverly Savana Cay Manor, Inc., Beverly
Enterprises-Georgia, Inc., and Beverly
Enterprises-California, Inc. as Lessees and Structural
Guarantors; Beverly Enterprises, Inc. as Representative,
Construction Agent and Parent Guarantor; BMO Leasing
(U.S.), Inc. as Agent Lessor and Lessor; The Long-Term
Credit Bank of Japan, LTD., Los Angeles Agency and Bank
of Montreal, as Lenders; The Long-Term Credit Bank of
Japan, LTD., Los Angeles Agency as Arranger and
Administrative Agent for the Lenders; and Bank of
Montreal as Co-Arranger and Syndication Agent with
respect to the Lease Financing of Assisted Living and
Nursing Facilities for Beverly Enterprises, Inc.
(incorporated by reference to Exhibit 10.2 of Beverly
Enterprises, Inc., Quarterly Report on Form 10-Q for the
quarter ended June 30, 1997).
10.31* -- Amendment No. 1 and Waiver to Participation Agreement,
dated as of May 27, 1997.
10.32* -- Amendment No. 2 to Participation Agreement, dated as of
August 20, 1997.
11.1 -- Computation of Net Income (Loss) Per Share for the years
ended December 31, 1996, 1995, 1994, 1993 and 1992
(incorporated by reference to Exhibit 11.1 to Beverly
Enterprises, Inc.'s Annual Report on Form 10-K for the
year ended December 31, 1996).
23.1** -- Consent of Ernst & Young LLP, Independent Auditors.
23.2* -- Consent of Giroir, Gregory, Holmes & Hoover, PLC
(included as part of Exhibit 5.1).
24.1* -- Power of Attorney.
27.1* -- New Beverly Holdings, Inc. Financial Data Schedule.
</TABLE>
- ---------------
* Previously filed.
** Filed herewith.
(b) Accounting schedules:
Schedule II -- Valuation and Qualifying Accounts
Beverly Enterprises, Inc.
Pharmacy Corporation of America
ITEM 17. UNDERTAKINGS.
The undersigned registrant hereby undertakes:
1. 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 foregoing provisions, 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 and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the 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 and will be governed by the final adjudication of such issue.
II-8
<PAGE> 10
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
has duly caused this Registration Statement on Form S-1 to be signed on its
behalf by the undersigned, thereunto duly authorized, in the city of Fort Smith,
State of Arkansas, on the 17th day of October, 1997.
NEW BEVERLY HOLDINGS, INC.
By: /s/ SCOTT M. TABAKIN
----------------------------------
Scott M. Tabakin
Executive Vice President,
Chief Financial Officer and
Director
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed on the dates indicated by the
following persons in the capacities indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<C> <S> <C>
* Chairman of the Board, Chief
- ----------------------------------------------------- Executive Officer and
David R. Banks Director October 17, 1997
* President, Chief Operating
- ----------------------------------------------------- Officer and Director
Boyd W. Hendrickson October 17, 1997
* Executive Vice President,
- ----------------------------------------------------- General Counsel, Secretary
Robert W. Pommerville and Director October 17, 1997
* Executive Vice
- ----------------------------------------------------- President -- Asset
Bobby W. Stephens Management and Director October 17, 1997
/s/ SCOTT M. TABAKIN Executive Vice President,
- ----------------------------------------------------- Chief Financial Officer and
Scott M. Tabakin Director October 17, 1997
* Vice President, Controller and
- ----------------------------------------------------- Chief Accounting Officer
Pamela H. Daniels October 17, 1997
/s/ *JOHN W. MACKENZIE
- -----------------------------------------------------
As Attorney-in-Fact
</TABLE>
II-9
<PAGE> 11
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
------- -----------
<C> <S>
2.1 -- Agreement and Plan of Merger dated April 15, 1997 by and
between Beverly Enterprises, Inc. and Capstone Pharmacy
Services, Inc. (incorporated by reference to Exhibit 2.1
to Beverly Enterprises, Inc.'s Current Report on Form 8-K
dated April 15, 1997).
2.2 -- Agreement and Plan of Distribution by and among Beverly
Enterprises, Inc., New Beverly Holdings, Inc. and
Capstone Pharmacy Services, Inc. dated as of April 15,
1997 (incorporated by reference to Exhibit 2.2 to Beverly
Enterprises, Inc.'s Current Report on Form 8-K dated
April 15, 1997).
3.1* -- Certificate of Incorporation of New Beverly Holdings,
Inc. dated April 15, 1997.
3.2* -- Amended Certificate of Incorporation of New Beverly
Holdings, Inc. dated May 29, 1997.
3.4* -- Bylaws of New Beverly Holdings, Inc.
4.1 -- Indenture dated as of February 1, 1996 between Beverly
Enterprises, Inc. and Chemical Bank, as Trustee, with
respect to Beverly Enterprises, Inc.'s 9% Senior Notes
due February 15, 2006 (incorporated by reference to
Exhibit 4.1 to Beverly Enterprises, Inc.'s Annual Report
on Form 10-K for the year ended December 31, 1995).
4.2 -- Indenture dated as of April 1, 1993 (the "First Mortgage
Bond Indenture"), among Beverly Enterprises, Inc.,
Delaware Trust Company, as Corporate Trustee, and Richard
N. Smith, as Individual Trustee, with respect to First
Mortgage Bonds (incorporated by reference to Exhibit 4.1
to Beverly Enterprises, Inc.'s Quarterly Report on Form
10-Q for the quarter ended March 31, 1993).
4.3 -- First Supplemental Indenture dated as of April 1, 1993 to
the First Mortgage Bond Indenture, with respect to 8 3/4%
First Mortgage Bonds due 2008 (incorporated by reference
to Exhibit 4.2 to Beverly Enterprises, Inc.'s Quarterly
Report on Form 10-Q for the quarter ended March 31,
1993).
4.4 -- Second Supplemental Indenture dated as of July 1, 1993 to
the First Mortgage Bond Indenture, with respect to 8 5/8%
First Mortgage Bonds due 2008 (replaces Exhibit 4.1 to
Beverly Enterprises, Inc.'s Current Report on Form 8-K
dated July 15, 1993) (incorporated by reference to
Exhibit 4.15 to Beverly Enterprises, Inc.'s Quarterly
Report on Form 10-Q for the quarter ended June 30, 1993).
4.5 -- Indenture dated as of December 30, 1993 (the "Notes
Indenture"), between Beverly Enterprises, Inc. and
Boatmen's Trust Company, as Trustee, with respect to the
8.75% Notes (incorporated by reference to Exhibit 4.2 to
Beverly Enterprises, Inc.'s Registration Statement on
Form S-3 filed on November 9, 1993 (File No. 33-50965)).
4.6 -- First Supplemental Indenture dated as of December 30,
1993 to the Notes Indenture, with respect to 8 3/4% Notes
due 2003 (incorporated by reference to Exhibit 4.4 to
Beverly Enterprises, Inc.'s Current Report on Form 8-K
dated January 4, 1994).
4.7 -- Rights Agreement dated as of September 29, 1994, between
Beverly Enterprises, Inc. and The Bank of New York, as
Rights Agent (incorporated by reference to Exhibit 1 to
Beverly Enterprises, Inc.'s Registration Statement on
Form 8-A filed on October 18, 1994).
</TABLE>
<PAGE> 12
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
------- -----------
<C> <S>
4.8 -- Amendment, dated as of April 6, 1995, to the Rights
Agreement between Beverly Enterprises, Inc. and The Bank
of New York, as Rights Agent (incorporated by reference
to Exhibit 4.20 to Beverly Enterprises, Inc.'s Quarterly
Report on Form 10-Q for the quarter ended June 30, 1995).
In accordance with item 601(b)(4)(iii) of Regulation S-K,
certain instruments pertaining to Beverly Enterprises,
Inc.'s long-term obligations have not been filed; copies
thereof will be furnished to the Securities and Exchange
Commission upon request.
5.1* -- Opinion of Giroir, Gregory, Holmes & Hoover, PLC as to
certain legal matters.
10.1 -- Executive Medical Reimbursement Plan assumed by New
Beverly Holdings, Inc. (incorporated by reference to
Exhibit 10.5 to Beverly Enterprises, Inc.'s Annual Report
on Form 10-K for the year ended December 31, 1987).
10.2 -- Amended and Restated Beverly Enterprises, Inc. Executive
Life Insurance Plan and Summary Plan Description (the
"Executive Life Plan") assumed by New Beverly Holdings,
Inc. (incorporated by reference to Exhibit 10.7 to
Beverly Enterprises, Inc.'s Annual Report on Form 10-K
for the year ended December 31, 1993).
10.3 -- Amendment No. 1, effective September 29, 1994, to the
Executive Life Plan assumed by New Beverly Holdings, Inc.
(incorporated by reference to Exhibit 10.10 to Beverly
Enterprises, Inc.'s Registration Statement on Form S-4
filed on February 13, 1995 (File No. 33-57663)).
10.4 -- Executive Physicals Policy assumed by New Beverly
Holdings, Inc. (incorporated by reference to Exhibit 10.8
to Beverly Enterprises, Inc.'s Quarterly Report on Form
10-Q for the quarter ended June 30, 1993).
10.5 -- Amended and Restated Deferred Compensation Plan effective
July 18, 1991 assumed by New Beverly Holdings, Inc.
(incorporated by reference to Exhibit 10.6 to Beverly
Enterprises, Inc.'s Annual Report on Form 10-K for the
year ended December 31, 1991).
10.6 -- Amendment No. 1, effective September 29, 1994, to the
Deferred Compensation Plan assumed by New Beverly
Holdings, Inc. (incorporated by reference to Exhibit
10.13 to Beverly Enterprises, Inc.'s Registration
Statement on Form S-4 filed on February 13, 1995 (File
No. 33-57663)).
10.7 -- Executive Retirement Plan assumed by New Beverly
Holdings, Inc. (incorporated by reference to Exhibit 10.9
to Beverly Enterprises, Inc.'s Annual Report on Form 10-K
for the year ended December 31, 1987).
10.8 -- Amendment No. 1, effective as of July 1, 1991, to the
Executive Retirement Plan assumed by New Beverly
Holdings, Inc. (incorporated by reference to Exhibit 10.8
to Beverly Enterprises, Inc.'s Annual Report on Form 10-K
for the year ended December 31, 1991).
10.9 -- Amendment No. 2, effective as of December 12, 1991, to
the Executive Retirement Plan assumed by New Beverly
Holdings, Inc. (incorporated by reference to Exhibit 10.9
to Beverly Enterprises, Inc.'s Annual Report on Form 10-K
for the year ended December 31, 1991).
10.10 -- Amendment No. 3, effective as of July 31, 1992, to the
executive Retirement Plan assumed by New Beverly
Holdings, Inc. (incorporated by reference to Exhibit
10.10 to Beverly Enterprises, Inc.'s Annual Report on
Form 10-K for the year ended December 31, 1992).
10.11 -- Amendment No. 4, effective as of January 1, 1993, to the
Executive Retirement Plan assumed by New Beverly
Holdings, Inc. (incorporated by reference to Exhibit
10.18 to Beverly Enterprises, Inc.'s Annual Report on
Form 10-K for the year ended December 31, 1994).
</TABLE>
<PAGE> 13
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
------- -----------
<C> <S>
10.12 -- Amendment No. 5, effective as of September 29, 1994, to
the Executive Retirement Plan assumed by New Beverly
Holdings, Inc. (incorporated by reference to Exhibit
10.19 to Beverly Enterprises, Inc.'s Annual Report on
Form 10-K for the year ended December 31, 1994).
10.13 -- Beverly Enterprises, Inc. Executive Deferred Compensation
Plan assumed by New Beverly Holdings, Inc. (incorporated
by reference to Exhibit 10.23 to Beverly Enterprises,
Inc.'s Annual Report on Form 10-K for the year ended
December 31, 1996).
10.14 -- Beverly Enterprises, Inc. Supplemental Long-Term
Disability Plan assumed by New Beverly Holdings, Inc.
(incorporated by reference to Exhibit 10.24 to Beverly
Enterprises, Inc.'s Annual Report on Form 10-K for the
year ended December 31, 1996).
10.15 -- Severance Plan for Corporate and Regional Employees
effective December 1, 1989 assumed by New Beverly
Holdings, Inc. (incorporated by reference to Exhibit
10.21 to Amendment No. 1 to Beverly Enterprises, Inc.'s
Registration Statement on Form S-1 filed on February 26,
1990 (File No. 33-33052)).
10.16 -- Employment Contract, made as of December 8, 1995, between
Beverly Enterprises, Inc. and David R. Banks
(incorporated by reference to Exhibit 10.2 to Beverly
Enterprises, Inc.'s Quarterly Report on Form 10-Q for the
quarter ended June 30, 1996).
10.17* -- Employment Contract, made as of August 22, 1997 between
New Beverly Holdings, Inc. and David R. Banks.
10.18 -- Employment Contract, made as of December 8, 1995, between
Beverly Enterprises, Inc. and Boyd W. Hendrickson
(incorporated by reference to Exhibit 10.3 to Beverly
Enterprises, Inc.'s Quarterly Report on Form 10-Q for the
quarter ended June 30, 1996).
10.19 -- Form of Change In Control Severance Agreement, made as of
December 8, 1995, between Beverly Enterprises, Inc. and
its Executive Vice Presidents (incorporated by reference
to Exhibit 10.31 to Beverly Enterprises, Inc.'s Annual
Report on Form 10-K for the year ended December 31,
1995).
10.20* -- Form of Employment Contract, made as of August 22, 1997
between New Beverly Holdings, Inc. and certain officers.
10.21 -- Form of Change In Control Severance Agreement, made as of
December 8, 1995, between Beverly Enterprises, Inc. and
certain of its officers (incorporated by reference to
Exhibit 10.32 to Beverly Enterprises, Inc.'s Annual
Report on Form 10-K for the year ended December 31,
1995).
10.22* -- Form of Severance Agreement made as of August 26, 1997
between New Beverly Holdings, Inc. and certain officers.
10.23* -- Amended and Restated Credit Agreement, dated as of August
20, 1997, among Beverly Enterprises, Inc., the Banks
listed therein, and Morgan Guaranty Trust Company of New
York, as Issuing Bank and as Agent.
10.24 -- Trust Indenture dated as of December 1, 1994 from Beverly
Funding Corporation, as Issuer, to Chemical Bank, as
Trustee (the "Chemical Indenture") (incorporated by
reference to Exhibit 10.45 to Beverly Enterprises, Inc.'s
Registration Statement on Form S-4 filed on February 13,
1995 (File No. 33-57663)).
10.25 -- Series Supplement dated as of December 1, 1994 to the
Chemical Indenture (incorporated by reference to Exhibit
10.46 to Beverly Enterprises, Inc.'s Registration
Statement on Form S-4 filed on February 13, 1995 (File
No. 33-57663)).
</TABLE>
<PAGE> 14
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
------- -----------
<C> <S>
10.26 -- Data Processing Agreement, dated as of August 1, 1992, by
and between Systematics Telecommunications Services, Inc.
and Beverly California Corporation (incorporated by
reference to Exhibit 10 to Beverly Enterprises, Inc.'s
Quarterly Report on Form 10-Q for the quarter ended June
30, 1992).
10.27 -- Form of Irrevocable Trust Agreement for the Beverly
Enterprises, Inc. Executive Benefits Plan assumed by New
Beverly Holdings, Inc. (incorporated by reference to
Exhibit 10.55 to Beverly Enterprises, Inc.'s Registration
Statement on Form S-4 filed on February 13, 1995 (File
No. 33-57663)).
10.28 -- Form of Indemnification and Pledge Agreement assumed by
New Beverly Holdings, Inc. (Incorporated by reference to
Exhibit 10.1 to Beverly Enterprises, Inc.'s Quarterly
Report on Form 10-Q for the quarter ended March 31,
1997).
10.29 -- Beverly Enterprises, Inc. Non-Employee Director Deferred
Compensation Plan assumed by New Beverly Holdings, Inc.
(incorporated by reference to Exhibit 10.1 to Beverly
Enterprises, Inc.'s Quarterly Report on Form 10-Q for the
quarter ended June 30, 1997).
10.30 -- Participation Agreement, dated as of March 21, 1997,
among Vantage Healthcare Corporation, Petersen Health
Care, Inc., Beverly Savana Cay Manor, Inc., Beverly
Enterprises-Georgia, Inc., and Beverly
Enterprises-California, Inc. as Lessees and Structural
Guarantors; Beverly Enterprises, Inc. as Representative,
Construction Agent and Parent Guarantor; BMO Leasing
(U.S.), Inc. as Agent Lessor and Lessor; The Long-Term
Credit Bank of Japan, LTD., Los Angeles Agency and Bank
of Montreal, as Lenders; The Long-Term Credit Bank of
Japan, LTD., Los Angeles Agency as Arranger and
Administrative Agent for the Lenders; and Bank of
Montreal as Co-Arranger and Syndication Agent with
respect to the Lease Financing of Assisted Living and
Nursing Facilities for Beverly Enterprises, Inc.
(incorporated by reference to Exhibit 10.2 of Beverly
Enterprises, Inc., Quarterly Report on Form 10-Q for the
quarter ended June 30, 1997).
10.31* -- Amendment No. 1 and Waiver to Participation Agreement,
dated as of May 27, 1997.
10.32* -- Amendment No. 2 to Participation Agreement, dated as of
August 20, 1997.
11.1 -- Computation of Net Income (Loss) Per Share for the years
ended December 31, 1996, 1995, 1994, 1993 and 1992
(incorporated by reference to Exhibit 11.1 to Beverly
Enterprises, Inc.'s Annual Report on Form 10-K for the
year ended December 31, 1996).
23.1** -- Consent of Ernst & Young LLP, Independent Auditors.
23.2* -- Consent of Giroir, Gregory, Holmes & Hoover, PLC
(included as part of Exhibit 5.1).
24.1* -- Power of Attorney.
27.1* -- New Beverly Holdings, Inc. Financial Data Schedule.
</TABLE>
- ---------------
* Previously Filed.
** Filed herewith.
<PAGE> 1
EXHIBIT 23.1
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" and to
the use of our report dated February 7, 1997 (except for Note 2, paragraph 3, as
to which the date is March 13, 1997) with respect to the consolidated financial
statements and schedule of Beverly Enterprises, Inc. included in Amendment No. 4
to the Registration Statement (Form S-1 No. 333-28521) and related Prospectus of
New Beverly Holdings, Inc. for the registration of 110,424,677 shares of its
common stock.
We also consent to the reference to our firm under the caption "Experts"
and to the use of our report dated April 18, 1997, with respect to the
consolidated financial statements and schedule of Pharmacy Corporation of
America included in the above mentioned Amendment No. 4 to the Registration
Statement and Prospectus of New Beverly Holdings, Inc.
In addition we consent to the reference to our firm under the caption
"Experts" and to the use of our report dated June 2, 1997, with respect to the
balance sheet of New Beverly Holdings, Inc., included in the above mentioned
Amendment No. 4 to the Registration Statement and Prospectus.
/s/ ERNST & YOUNG LLP
October 7, 1997
Little Rock, Arkansas
