<PAGE> 1
As filed with the Securities and Exchange Commission on September 21, 1994
Registration No.33-_____
________________________________________________________________________________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
__________________________________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
__________________________________
BEVERLY ENTERPRISES, INC.
(Exact name of registrant as specified in its charter)
Delaware 95-4100309
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
5111 Rogers Avenue, Suite 40-A
Fort Smith, Arkansas 72919-1000
(Address of principal executive offices) (Zip Code)
__________________________________
BEVERLY ENTERPRISES, INC.
NON EMPLOYEE DIRECTORS' STOCK OPTION PLAN; AMERICAN TRANSITIONAL HOSPITALS,
INC. 1993 NONQUALIFIED STOCK OPTION PLAN ASSUMED BY BEVERLY ENTERPRISES,
INC.; AND STOCK OPTION AGREEMENT BETWEEN BEVERLY ENTERPRISES, INC. AND
ROBERT C. CROSBY DATED SEPTEMBER 2, 1994
(Full Titles of the Plans)
__________________________________
Robert W. Pommerville,
Senior Vice President, General Counsel & Secretary
5111 Rogers Avenue, Suite 40-A
Fort Smith, Arkansas 72919-1000
(501) 452-6712
(Name, address and telephone number of agent for service)
Copy to:
C. J. Giroir, Jr., Esq.
Gordon Y. Allison, Esq.
Giroir & Gregory, Professional Association
111 Center Street, Suite 1900
Little Rock, Arkansas 72201
(501) 372-3000
__________________________________
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
================================================================================================================
Proposed Proposed Maximum
Title of Securities Amount to be Maximum Offering Aggregate Offering Amount of
to be Registered Registered(1) Price Per Share(2) Price(2) Registration Fee(2)
- ----------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $.10
par value 353,451 shares $ 13.875 $ 4,904,133 $ 1,691.08
================================================================================================================
</TABLE>
(1) The maximum amount of shares issuable pursuant to the Directors' Plan (as
defined) is 200,000 shares of the Registrant's common stock; the maximum
amount of shares issuable pursuant to the ATH Plan (as defined) is 114,903
shares of the Registrant's common stock and the maximum amount of shares
issuable pursuant to the Crosby Agreement (as defined) is 38,548 shares of
the Registrant's common stock.
(2) Estimated solely for the purpose of determining the registration fee
pursuant to Rule 457(c) and (h)(1), based upon the average of the high and
low prices of the Registrant's Common Stock on September 14, 1994 as
reported on the New York Stock Exchange.
________________________________________________________________________________
<PAGE> 2
PART I
GENERAL NOTE
This Registration Statement on Form S-8 relates to three different
employee benefit plans (the "Plans") of Beverly Enterprises, Inc., a Delaware
corporation ("Beverly"): (i) the NonEmployee Directors' Stock Option Plan (the
Directors' Plan"); (ii) the American Transitional Hospitals, Inc. 1993
NonQualified Stock Option Plan assumed by Beverly (the "ATH Plan"); and (iii)
the Stock Option Agreement between Beverly and Robert C. Crosby dated September
2, 1994 (the "Crosby Agreement").
The Directors' Plan. The Directors' Plan was approved by Beverly's
stockholders at its 1994 Annual Meeting of Stockholders. The Directors' Plan
has 200,000 shares of Beverly common stock reserved for issuance thereunder.
The ATH Plan. On September 2, 1994, pursuant to an agreement and plan
of merger dated June 22, 1994, by and among Beverly, ATH Acquisition, Inc., a
Delaware corporation ("Acquisition"), and American Transitional Hospitals,
Inc., a Delaware corporation ("ATH"), Acquisition was merged with and into ATH,
with ATH being the surviving corporation and becoming a subsidiary of Beverly
(the "Merger Agreement"). Pursuant to the Merger Agreement, on September 2,
1994 Beverly assumed the ATH Plan, which assumption included modification with
respect to the number of shares of Beverly common stock issuable upon exercise
of the outstanding options thereunder, as well as modification to the exercise
price for shares of Beverly common stock underlying the options. The ATH plan
assumed by Beverly has 114,903 shares of Beverly common stock reserved for
issuance thereunder.
The Crosby Agreement. Pursuant to the Merger Agreement, Beverly
assumed an existing Option Agreement dated May 25, 1992 between ATH and Mr.
Robert C. Crosby, which assumption resulted in an agreement dated September 2,
1994 between Beverly and Mr. Crosby with the number of shares of Beverly
common stock issuable upon exercise of the option being adjusted in accordance
with the merger exchange ratio, as well as modification to the exercise price
for shares issuable upon exercise of the option in accordance with the merger
exchange ratio. The Crosby Agreement has 38,548 shares of Beverly common stock
reserved for issuance thereunder.
RULE 428(B)(1)
The document(s) containing the information specified in Items 1 and 2
of Part I of Form S-8 will be sent or given to plan participants in the Plans
as specified in Rule 428(b)(1) and, in accordance with the instructions to Part
I, are not filed with the Commission as part of this Registration Statement.
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<PAGE> 3
PART II
Item 3. Incorporation of Documents by Reference.
The following documents previously filed with the Securities and
Exchange Commission are hereby incorporated by reference:
1. Annual Report on Form 10-K for the year ended December 31,
1993, as amended May 27, 1994 on Form 10-K/A (the "1993
Beverly 10-K").
2. The portions of the Proxy Statement for the Annual Meeting of
Stockholders held May 19, 1994 that have been incorporated by
reference in the 1993 Beverly 10-K.
3. Quarterly Reports on Form 10-Q for the quarters ended March
31, 1994 and June 30, 1994.
4. Current Report on Form 8-K dated January 4, 1994, as amended
January 7, 1994 on Form 8-K/A.
5. Current Report on Form 8-K dated April 7, 1994.
6. Registration Statement on Form 8-A dated August 21, 1990 and
any amendment or report filed for the purpose of updating such
description.
All documents subsequently filed by the Registrant pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as
amended, prior to the filing of a post-effective amendment which indicates that
all securities offered have been sold or which deregisters all securities then
remaining unsold shall be deemed to be incorporated by reference in this
Registration Statement and to be a part hereof from the date of filing of such
documents. Any statement contained herein or in the Prospectus covering the
securities registered by this Registration Statement shall be deemed to be
modified or superseded for purposes of this Registration Statement or the
Prospectus to the extent that a statement contained herein or therein or in any
other subsequently filed document which also is or is deemed to be incorporated
by reference herein or therein 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 or the
Prospectus.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
The Registrant's Restated Certificate of Incorporation and Amended
Bylaws and indemnification agreements between the Registrant and its officers
and directors contain provisions regarding the indemnification of officers and
directors. The Registrant's Restated Certificate and Amended Bylaws provide
that the Registrant, to the full 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 and bylaw provision 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
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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 provides the
following:
(a) A corporation shall have power to 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 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 shall have power to 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), 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) (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). Such
determination shall be made (1) by the board of directors by a majority vote of
a quorum consisting of directors who were not parties to such action, suit or
proceeding, or (2) if such a quorum is not obtainable, or, even if obtainable,
a quorum of disinterested directors so directs, 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 is ultimately 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.
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(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 by-law, agreement, vote of
stockholder 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 the provisions of 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 authority to indemnify its directors, officers, and
employees or agents, so that any persons 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 the provisions of 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 any 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 any 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.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Exhibit 4.1* NonEmployee Directors' Stock Option Plan.
Exhibit 4.2* Assumption Agreement that was executed by and between
Beverly Enterprises, Inc. and American Transitional
Hospitals, Inc. ("ATH") at the time ATH became a
subsidiary of Beverly Enterprises, Inc.
Exhibit 4.3 American Transitional Hospitals, Inc. 1993
NonQualified Stock Option Plan assumed by Beverly
Enterprises, Inc. (Incorporated by reference to
Exhibit 10.39 to the Registration Statement on Form
S-4 (Amendment No. 1) of Beverly Enterprises, Inc.
filed on August 5, 1994 (File No. 33-54501)).
Exhibit 4.4* Stock Option Agreement between Beverly Enterprises,
Inc. and Robert C. Crosby dated September 2, 1994.
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Exhibit 5.1* Opinion and Consent of Giroir & Gregory, Professional
Association, as to the legality of the common stock
offered pursuant to the Plans.
Exhibit 23.1* Consent of Giroir & Gregory, Professional Association
(included in Exhibit 5.1).
Exhibit 23.2* Consent of Ernst & Young LLP, Independent Auditors.
Exhibit 24.1* The Power of Attorney of officers and directors of
the Registrant is found on the signature page hereof.
_________________
*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
the registration statement (or the most
recent post-effective amendment thereof)
which, individually or in the aggregate,
represent a fundamental change in the
information set forth in the registration
statement;
(iii) To include any material information with
respect to the plan of distribution not
previously disclosed in the registration
statement or any material change to such
information in the registration statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do
not apply if the registration statement is on Form S-3 or Form S-8 and
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 the
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.
(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 the
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.
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(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933, as amended (the "Act") 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 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 connected 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 Act and will be governed by the final adjudication of such
issue.
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<PAGE> 8
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized in the City of Fort Smith, State of Arkansas, on September 20,
1994.
BEVERLY ENTERPRISES, INC.
By: /s/ DAVID R. BANKS
David R. Banks
Chairman of the Board, President
and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL BY THESE PRESENTS, that each of the undersigned hereby
constitutes and appoints David R. Banks, Robert W. Pommerville, and John W.
MacKenzie, and each or any of them, his true and lawful attorneys-in-fact and
agents, with full power of substitution and resubstitution, for him and on his
behalf and in his name, place and stead, in any and all capacities, to sign,
execute, and file with the Securities and Exchange Commission and any state
securities regulatory board or commission any documents relating to the
proposed issuance and registration of the securities offered pursuant to this
Registration Statement on Form S-8 under the Securities Act of 1933, as
amended, including any and all amendments relating thereto, with all exhibits
and any and all documents required to be filed with respect thereto with any
regulatory authority, granting unto said attorney, full power and authority to
do and perform each and every act and thing requisite and necessary to be done
in and about the premises in order to effectuate the same as fully to all
intents and purposes as he might or could do if personally present, hereby
ratifying and confirming all that said attorneys-in-fact and agents, or any of
them, or their or his substitute or substitutes, may lawfully do or cause to be
done.
Pursuant to the requirements of the Securities Act of 1933, as
amended, this Registration Statement has been signed below by the following
persons in the capacities and on the date indicated:
<TABLE>
<CAPTION>
Signatures Title Date
- ---------- ----- ----
<S> <C> <C>
Chairman of the Board,
/s/ DAVID R. BANKS President, Chief
- ------------------------------------------- Executive Officer and September 20, 1994
David R. Banks Director
Executive Vice President,
/s/ ROBERT D. WOLTIL Finance and Chief
- ------------------------------------------- Financial Officer September 20, 1994
Robert D. Woltil
Vice President,
/s/ SCOTT M. TABAKIN Controller and Chief
- ------------------------------------------- Accounting Officer September 20, 1994
Scott M. Tabakin
</TABLE>
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<TABLE>
<S> <C> <C>
/s/ BERYL F. ANTHONY, JR. Director September 20, 1994
- -------------------------------------------
Beryl F. Anthony, Jr.
/s/ CURT F. BRADBURY Director September 20, 1994
- -------------------------------------------
Curt F. Bradbury
/s/ JAMES R. GREENE Director September 20, 1994
- -------------------------------------------
James R. Greene
/s/ JON E. M. JACOBY Director September 20, 1994
- -------------------------------------------
Jon E. M. Jacoby
/s/ LOUIS W. MENK Director September 20, 1994
- -------------------------------------------
Louis W. Menk
/s/ WILL K. WEINSTEIN Director September 20, 1994
- -------------------------------------------
Will K. Weinstein
</TABLE>
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INDEX TO EXHIBITS
Exhibit
- -------
4.1* NonEmployee Directors' Stock Option Plan.
4.2* Assumption Agreement that was executed by and between
Beverly Enterprises, Inc. and American Transitional
Hospitals, Inc. ("ATH") at the time ATH became a
subsidiary of Beverly Enterprises, Inc.
4.3 American Transitional Hospitals, Inc. 1993
NonQualified Stock Option Plan assumed by Beverly
Enterprises, Inc. (Incorporated by reference to
Exhibit 10.39 to the Registration Statement on Form
S-4 (Amendment No. 1) of Beverly Enterprises, Inc.
filed on August 5, 1994 (File No. 33-54501)).
4.4* Stock Option Agreement between Beverly Enterprises,
Inc. and Robert C. Crosby dated September 2, 1994.
5.1* Opinion and Consent of Giroir & Gregory, Professional
Association, as to the legality of the common stock
offered pursuant to the Plans.
23.1* Consent of Giroir & Gregory, Professional Association
(included in Exhibit 5.1).
23.2* Consent of Ernst & Young LLP, Independent Auditors.
24.1* The Power of Attorney of officers and directors of
the Registrant is found on the signature page hereof.
_________________
*Filed herewith.
<PAGE> 1
EXHIBIT 4.1
BEVERLY ENTERPRISES, INC.
NONEMPLOYEE DIRECTORS' STOCK OPTION PLAN
(EFFECTIVE AS OF JUNE 1, 1994)
ARTICLE I.
ESTABLISHMENT AND PURPOSE
1.1. Establishment of the Plan. Beverly Enterprises, Inc., a
Delaware corporation ("Company") hereby establishes a stock option plan as set
forth in this document, which plan as amended from time to time shall be known
as the "Beverly Enterprises, Inc. Nonemployee Directors' Stock Option Plan"
("Plan").
1.2 Purpose. The purpose of the Plan is to build a proprietary
interest among the Company's Nonemployee Directors and thereby secure for the
Company's shareholders the benefits associated with common stock ownership by
those who will oversee the Company's future growth and success.
1.3 Applicability of the Plan. The provisions of this Plan are
applicable only to individuals who, on or after June 1, 1994, are Nonemployee
Directors.
1.4 Effective Date. This Plan shall be effective as of June 1,
1994, subject to the approval of this Plan by the Board of Directors and the
Company's shareholders, as provided in this Section 1.4. To become effective,
this Plan must be approved by the Board of Directors and by the affirmative
vote of the holders of a majority of shares of Common Stock present, or
represented, and entitled to vote at a meeting of the Company's stockholders
called for such purpose. Absent such approvals prior to January 1, 1995, this
Plan shall terminate and cease to be of any further force or effect and all
grants of Options hereunder shall be null and void.
ARTICLE II.
DEFINITIONS AND CONSTRUCTION
2.1 Definitions. Whenever used as a capitalized term in the Plan,
the following terms shall have the respective meanings set forth below, unless
otherwise expressly provided:
(a) "Affiliate" means "affiliate" as defined in Rule
12b-2 under the Exchange Act.
(b) "Beneficial Owner" shall have the meaning ascribed to
such term in Rule 13d-3 under the Exchange Act.
(c) "Board" or "Board of Directors" means the Board of
Directors of the Company.
(d) "Change in Control" shall be deemed to have occurred
if the conditions set forth in any one of the following paragraphs
shall have been satisfied:
(1) Any Person, corporation or other entity or
group becomes the Beneficial Owner of shares of the Company
having 30 percent or more of the total number of votes that
may be cast for the election of members of the Board; or
(2) As the result of, or in connection with, any
tender or exchange offer, merger or other business
combination, sale of assets or contested election, or any
combination of the foregoing (a "Transaction"), the persons
who were members of the Board before the Transaction shall
cease to constitute a majority of the Board of Directors of
the Company or any successor to the Company or its assets; or
(3) If at any time (A) the Company shall
consolidate with, or merge with, any other Person and the
Company shall not be the continuing or surviving corporation,
(B) any Person shall consolidate with, or merge with, the
Company, and the Company shall be the continuing or surviving
corporation and in connection therewith, all or part of the
outstanding Common Stock shall be changed into or exchanged
for stock or other securities of any other Person or cash or
any other
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<PAGE> 2
property, (C) the Company shall be a party to a statutory
share exchange with any other Person after which the Company
is a Subsidiary of any other Person, or (D) the Company shall
sell or otherwise transfer 50 percent or more of the assets or
earning power of the Company and its Subsidiaries (taken as a
whole) to any Person or Persons.
(e) "Code" means the Internal Revenue Code of 1986, as
amended, and the regulations issued thereunder, as the same may be
amended from time to time.
(f) "Common Stock" means the common stock of the Company.
(g) "Company" means Beverly Enterprises, Inc., or any
successor thereto.
(h) "Effective Date" means June 1, 1994, subject to the
approvals as described in Section 1.4.
(i) "Exchange Act" means the Securities Exchange Act of
1934, as amended from time to time.
(j) "Fair Market Value" means, on any given date, the
closing price of Common Stock as reported on the New York Stock
Exchange composite tape on such day or, if no shares of Common Stock
were traded on the New York StoCk Exchange on such day, then on the
next preceding day that Common Stock was traded on such Exchange, all
as reported by such source as the Board may select.
(k) "Grant Date" means June 1 of each calendar year
during the period this Plan remains in effect. The first "Grant Date"
under the Plan is June 1, 1994.
(l) "Nonemployee Director" means an individual who is a
member of the Board and who is not an employee of the Company or any
Subsidiary or Affiliate thereof.
(m) "Option" means an option granted under this Plan to
purchase a share or shares of Common Stock.
(n) "Participant" means a Nonemployee Director to whom an
Option has been granted under this Plan.
(o) "Person" means "person" as defined in Section 3(a)
(9) of the Exchange Act and as used in Sections 13(d) and 14(d)
thereof, including a "group" as defined in Section 13(d)(3) of the
Exchange Act.
(p) "Plan" means the "Beverly Enterprises, Inc.
Nonemployee Directors' Stock Option Plan" as set forth in this
document, and as the same may be amended from time to time.
(q) "Subsidiary" means a corporation at least 50 percent
of the combined voting power of all classes of stock of which is owned
by the Company, either directly or through one or more of its
Subsidiaries.
(r) "Vesting Date" means, with respect to any Options
granted as of a particular Grant Date, the next June 1 following such
Grant Date. The first Vesting Date under the Plan is June 1, 1995.
2.2 Gender and Number; Headings. Except when otherwise indicated
by the context, any masculine terminology when used in this Plan shall also
include the feminine gender, and the definition of any term in the singular
shall also include the plural. Headings of Articles and Sections herein are
included solely for convenience, and if there is any conflict between such
headings and the text of the Plan, the text shall control.
ARTICLE III.
ELIGIBILITY AND PARTICIPATION
3.1 Eligibility; Participation. Each Nonemployee Director shall be
eligible to participate under this Plan and to receive a grant of an Option in
accordance with the provisions of this Plan.
3.2 Initial Grant of Stock Options. Each Nonemployee Director as
of the Effective Date shall automatically be granted an Option to purchase
2,500 shares of Common Stock, effective as of the Effective
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<PAGE> 3
Date. Each individual who first becomes a Nonemployee Director after the
Effective Date shall automatically be granted an Option to purchase 2,500
shares of Common Stock, effective as of the Grant Date which is coincident with
or next following the date on which such individual becomes a Nonemployee
Director. All Options granted under this Section 3.2 shall be subject to the
Common Stock availability provisions of Section 4.1.
3.3 Subsequent Grants of Stock Options. Each Nonemployee Director
who has received an initial grant of an Option, as described in Section 3.2,
shall automatically be granted an Option to purchase an additional 2,500 shares
of Common Stock as of each Grant Date subsequent to the initial Grant Date
applicable to such Nonemployee Director and during the term of this Plan, with
each such subsequent grant being effective as of the applicable Grant Date. To
be eligible to receive such an Option grant with respect to any such Grant
Date, the Nonemployee Director must be a Nonemployee Director on such Grant
Date. All Options granted under this Section 3.3 shall be subject to the Common
Stock availability provisions of Section 4.1.
ARTICLE IV.
COMMON STOCK AVAILABLE
4.1 In General. Subject to adjustment as provided in Section 4.2,
an aggregate of 200,000 shares of Common Stock shall be available for grant and
issuance pursuant to the provisions of this Plan. Such shares may be authorized
and unissued shares or may be shares issued and thereafter acquired by the
Company. If an Option shall expire or terminate for any reason without having
been exercised in whole or in part, the unpurchased shares of Common Stock
subject to such Option shall again be available for subsequent Option grants
under the Plan.
4.2 Adjustment in Event of Changes in Capitalization. In the event
of a stock dividend, stock split, or combination of shares, recapitalization or
other change in the Company's capitalization, or other distribution with
respect to holders of the Company's Common Stock other than normal cash
dividends, an automatic adjustment shall be made in the number and kind of
shares as to which outstanding Options or portions thereof then unexercised
shall be exercisable and in the available shares set forth in Section 4.1, to
the end that the proportionate interest of the Participant or eligible
Nonemployee Director shall be maintained as before the occurrence of such
event. Such adjustment in outstanding Options shall be made without change in
the total price applicable to the unexercised portion of such Options and with
a corresponding adjustment in the Option price per share. Automatic adjustment
shall also be made in the number and kind of shares subject to Options
subsequently granted under Article III of the Plan.
ARTICLE V.
TERMS AND CONDITIONS OF STOCK OPTIONS
5.1 Exercise of Stock Options.
(a) Option Exercisability. Each Option granted as of a
particular Grant Date shall be exercisable on or after the Vesting
Date with respect to such Grant Date, subject to the provisions of
Section 5.1 (b) and (c).
(b) Immediate Vesting For Death, Disability, and Change
of Control. Notwithstanding the provisions of Section 5.1(a), an
Option granted to any Participant shall become immediately exercisable
in full upon the first to occur of --
(1) The death of the Participant, in which case
the Option may be exercised by the Participant's executor or
administrator, or if not so exercised, by the legatees or
distributees of his or her estate or by such other person or
persons to whom the Participant's rights under the Option
shall pass by will or by the applicable laws of descent and
distribution;
(2) Such time as the Participant ceases to be a
member of the Board by reason of his or her disability and
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<PAGE> 4
(3) Change in Control.
(c) Holding Periods. Any Option may not be exercised for
at least six months after the grant thereof. Should this Section
5.1(c) require modification or be unnecessary to comply with the
requirements of Section 16 of and Rule 16b-3 under the Exchange Act,
the Board may waive such provision and/or amend this Plan to add to or
modify the provisions hereof accordingly.
(d) Termination Other Than Death or Disability. In the
event the Participant ceases to be a Nonemployee Director of the
Company for any reason other than death or disability when no Change
of Control has occurred, and such termination occurs prior to the time
an Option granted to such Participant has become exercisable, such
Option shall terminate with respect to the shares as to which the
Option is not then exercisable and all rights of the Participant to
such shares shall terminate without further obligation on the part of
the Company. As regards any Option which is exercisable by the
Participant at such time, such Participant must exercise such Option
within 90 days following the date the Participant so ceased to be a
Nonemployee Director, and, any such Option remaining unexercised as of
the close of such period shall expire.
5.2 Exercise Price. The exercise price of an Option for a share of
Common Stock shall be 100 percent of the Fair Market Value of such Common Stock
on the Grant Date relating to such Option.
5.3 Expiration of Options.
(a) In General. An Option shall expire ten years from the
Grant Date relating to such Option, unless terminated earlier in
accordance with the Plan.
(b) Death of Participant. In the event a Participant
ceases to be a Nonemployee Director of the Company by reason of death,
including without limitation in the event that a Participant dies
after ceasing to be a member of the Board by reason of disability, any
Option granted to such Participant hereunder that has not been fully
exercised at the time of the Participant's death may be exercised at
any time within the greater of
(1) one year after the date of death, or --
(2) the remainder of the period in which such
Participant could have exercised the Option had the
Participant not died. In the event any Option is exercised by
the executors, administrators, legatees, or distributees of
the estate of a deceased Participant, the Company shall be
under no obligation to issue Common Stock thereunder unless
and until the Company is satisfied that the person or persons
exercising the Option are the duly appointed legal
representatives of the deceased optionee's estate or the
proper legatees or distributees thereof.
5.4 Exercise and Payment of Exercise Price.
(a) Number of Shares. Subject to the terms and conditions
of the Plan, an Option shall, to the extent then exercisable, be
exercisable in whole or in part by giving written notice to the
Company stating the number of shares with respect to which the Option
is being exercised, accompanied by payment in full for such shares;
provided, however, that there shall be no such exercise at any one
time as to fewer than 100 shares or all of the remaining shares then
purchasable by the person or persons exercising the Option, if fewer
than 100 shares.
(b) Payment Methods. An Option may be paid for by --
(1) delivery of cash or a check payable to the
order of the Company in an amount equal to the exercise price
of such Option, or
(2) by delivery to the Company of shares of
Common Stock of the Company already owned by the Participant
for more than six months and having a Fair Market Value equal
in amount to the exercise price of the Option being exercised,
provided that such method is consistent with applicable tax
laws, or
(3) by any combination of such methods of payment.
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<PAGE> 5
5.5 Rights as a Shareholder. Except as specifically provided by
the Plan, the grant of an Option shall not give a Participant rights as a
shareholder; and the Participant will obtain such rights only upon actual
receipt of Common Stock.
5.6 Documentation of Option Grants. Option grants shall be
evidenced by written instruments prescribed by the Board from time to time. The
instruments may be in the form of agreements to be executed by both the
Participant and the Company or certificates, letters or similar instruments,
which need not be executed by the Participant, but acceptance of which will
evidence agreement to the terms of the grant.
5.7 Nontransferability of Options. No Option granted under the
Plan shall be assignable or transferable by the Participant to whom it is
granted, either voluntarily or by operation of law, except by will or the laws
of descent and distribution or pursuant to a "qualified domestic relations
order" as defined under Section 414(p) of the Code. Any such attempted
assignment or transfer in violation of this Section 5.7 shall be null and void.
During the life of the Participant, the Option shall be exercisable only by
such person or, in the event of incapacity, by the person or person properly
appointed to act on his or her behalf.
ARTICLE VI.
REGULATORY COMPLIANCE
6.1 Issuance or Delivery of Shares. The issuance or delivery of
any shares of Common Stock subject to exercisable Options may be postponed by
the Board for such period as may be required to comply with any applicable
requirements under the Federal securities laws, any applicable listing
requirements of any national securities exchange, or any requirements under any
law or regulation applicable to the issuance or delivery of such shares. The
Company shall not be obligated to issue or deliver any such shares if the
issuance or delivery thereof would constitute a violation of any provision of
any law or of any regulation of any governmental authority or any national
securities exchange.
6.2 Amendments for Compliance. Sections 2.1(l), 2.1(n), 3.1, 3.2
and 3.3 shall not be amended more than once every six months, other than to
comport with changes in the Code or other applicable Federal or state law.
Should any provision of this Section 6.2 require modification or be unnecessary
to comply with the requirements of Section 16 of and Rule 16b-3 under the
Exchange Act, the Board may waive such provision and/or amend this Plan to add
to or modify the provision hereof accordingly.
ARTICLE VII.
ADMINISTRATION
7.1 Plan Administration. The Plan shall be administered by the
Board. The Board shall have all the powers vested in it by the terms of the
Plan, such powers to include authority within the limitations described herein
to prescribe the form of the agreement embodying grants of Options. The Board
shall have the power to construe the Plan, to determine all questions arising
thereunder, and to adopt and amend such rules and regulations for the
administration of the Plan as it may deem desirable. Any decision of the Board
in the administration of the Plan, as described herein, shall be final and
conclusive. The Board may from time to time delegate certain of its
administrative responsibilities under the Plan to Company personnel or to a
committee. The Board may act only by a majority of its members in office,
except that the members thereof may authorize any one or more of their number
or any officer of the Company to execute and deliver documents on behalf of the
Board. No member of the Board shall be liable for anything done or omitted to
be done other than by such member's own willful misconduct or as expressly
provided by statute.
7.2 Indemnification and Exculpation. The members of the Board, its
agents, and officers and employees of the Company shall be indemnified and held
harmless by the Company against and from any and all loss, cost, liability, or
expense that may be imposed upon or reasonably incurred by them in connection
with or resulting from any claim, action, suit, or proceeding to which they may
be a party or in which they may be involved by reason of any action taken or
failure to act under this Plan and against and from any and all amounts paid by
them in settlement (with the Company's written approval) or paid by them in
satisfaction of
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<PAGE> 6
a judgment in any such action, suit, or proceeding. The foregoing provision
shall not be applicable to any person if the loss, cost, liability, or expense
is due to such person's gross negligence or willful misconduct.
ARTICLE VIII.
AMENDMENT AND TERMINATION
8.1 Amendment. Except as provided in Section 6.2, the Board shall
have the right to amend or modify the Plan in full or in part at any time and
from time to time; provided, however, that unless required by law, no such
amendment or modification shall --
(a) affect any right or obligation with respect to any
Option grant theretofore made,
(b) in any manner affect the restrictions set forth in
Section 6.2, or
(c) unless previously approved by the shareholders of the
Company, where such approval is necessary to satisfy then applicable
requirements of Federal securities laws, the Code, or rules of any
stock exchange on which the Company's Common Stock is listed --
(1) in any manner materially affect the
eligibility requirements set forth in Sections 3.1, 3.2 and
3.3,
(2) materially increase the number of shares of
Common Stock available for or subject to Options, or
(3) materially increase the benefits to
Participants under the Plan.
8.2 Termination.
(a) In General. The Board shall have the right to
terminate the Plan at any time; provided, however, that Options which
are granted on or before the termination date shall remain exercisable
in accordance with their respective terms after the termination of the
Plan.
(b) Termination Date. Unless terminated earlier by the
Board, the Plan shall terminate on May 31, 2004; provided, however,
that Options which are granted on or before such date shall remain
exercisable in accordance with their respective terms after the
termination of the Plan.
ARTICLE IX.
MISCELLANEOUS
9.1 Shareholder Approval. The effectiveness of the Plan and of the
grant of all Options under the Plan are subject to shareholder approval as
provided in Section 1.4. The Company's obligation to issue and deliver shares
of Common Stock under the Plan is subject to the approval of any governmental
authority required in connection with the authorization, issuance, or delivery
of Common Stock.
9.2 No Right to Reelection. Nothing in the Plan shall be deemed to
create any obligation on the part of the Board to nominate any Nonemployee
Director for reelection by the Company's shareholders, nor confer upon any
Nonemployee Director the right to remain a member of the Board for any period
of time, or at any particular rate of compensation.
9.3 Withholding. It shall be a condition to the obligation of the
Company to issue shares of Common Stock upon exercise of an Option, that the
optionee (or any beneficiary or person entitled to act under Section 5.1(b))
pay to the Company, upon its demand, such amount as may be requested by the
Company for the purpose of satisfying any liability to withhold Federal, state,
local, or foreign income or other taxes. Such amount may be paid by the
Participant by cash or check or by authorizing the Company to withhold shares
of Common Stock with a Fair Market Value equal to such Participant's
withholding obligation. If the amount requested is not paid, the Company may
refuse to issue shares of Common Stock.
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<PAGE> 7
9.4 Severability. In the event any provision of this Plan shall be
held invalid or illegal for any reason, any illegality or invalidity shall not
affect the remaining parts of this Plan, but this Plan shall be construed and
enforced as if the illegal or invalid provision had never been inserted, and
the Company shall have the privilege and opportunity to correct and remedy such
questions of illegality or invalidity by amendment as provided in this Plan.
9.5 Status Under ERISA. This Plan is not maintained as and is not
intended to be an "employee benefit plan" under the Employee Retirement Income
Security Act of 1974, as amended.
9.6 Applicable Law. The Plan shall be governed by, construed, and
administered in accordance with the laws of the State of Arkansas, except to
the extent such laws are preempted by the laws of the United States.
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<PAGE> 1
EXHIBIT 4.2
ASSUMPTION AGREEMENT
THIS ASSUMPTION AGREEMENT (this "Agreement"), dated as of September 2,
1994, between Beverly Enterprises, Inc., a Delaware corporation (the "Company")
and American Transitional Hospitals, Inc., a Delaware corporation ("ATH").
W I T N E S S E T H:
WHEREAS, ATH Acquisition, Inc., previously a Delaware corporation and
wholly-owned subsidiary of the Company ("Acquisition") was merged with and into
ATH on the date hereof (the "Merger"), with ATH being the surviving corporation
and becoming a wholly-owned subsidiary of the Company pursuant to an Agreement
and Plan of Merger dated June 22, 1994 (the "Merger Agreement");
WHEREAS, the Company agreed to assume the ATH 1993 Non Qualified Stock
Option Plan (the "Plan") attached hereto and any options (the "Options") that
had been granted by ATH thereto pursuant to the Merger Agreement following the
Merger;
NOW, THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the receipt of which is hereby acknowledged, the
Company hereby assumes all of the obligations of ATH pursuant to the Plan and
the Options, except that (i) the Plan shall be administered by the Company's
Compensation Committee; (ii) the Options shall be solely exercisable for an
aggregate of 114,903 shares of common stock of the Company; (iii) the number of
shares issuable upon exercise of the Options shall be modified in accordance
with the Merger Agreement; (iv) the exercise price for the Options shall be
modified in accordance with the Merger Agreement; and (v) stock option
agreements reflecting items (i) through (iv) herein will be delivered to
holders of the Options on or after the date hereof, with option agreements that
were issued by ATH to holders of the Options prior to consummation of the
Merger Agreement, being superseded and canceled concurrently herewith.
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
exercised as of the date first above written.
BEVERLY ENTERPRISES, INC., a Delaware
corporation
By: /s/ SCOTT M. TABAKIN
Title: Vice President, Controller
and Chief Accounting Officer
AMERICAN TRANSITIONAL HOSPITALS, INC., a
Delaware corporation
By: /s/ ROBERT C. CROSBY
Title: President
<PAGE> 1
EXHIBIT 4.4
STOCK OPTION AGREEMENT
TO BE EXECUTED BETWEEN BEVERLY ENTERPRISES, INC.
AND ROBERT C. CROSBY
This Agreement between Beverly Enterprises, Inc., a Delaware
corporation (the "Company") and Robert C. Crosby, an individual and resident of
the State of Tennessee (the "Optionee") dated September 2, 1994 (the "Effective
Time") relates to an agreement dated May 25, 1992 (the "Old Option Agreement")
by and between American Transitional Hospitals, Inc., a Delaware corporation
("ATH") and the Optionee.
In accordance with an agreement and plan of merger, dated June 22,
1994 (the "Merger Agreement") by and among the Company, ATH Acquisition, Inc.,
a Delaware corporation and wholly-owned subsidiary of Beverly ("Acquisition")
and ATH on the Effective Time, Acquisition was merged with and into ATH,
whereupon ATH as the surviving corporation, became a wholly-owned subsidiary of
the Company (the "Merger").
Pursuant to the Merger Agreement and as part of the Merger, the
Company assumed and modified the option granted pursuant to the Old Option
Agreement, such that the Optionee may only receive shares of the Company's
common stock upon exercise of the option. The number of shares of common stock
issuable upon the exercise of the option under the Old Option Agreement and the
exercise price therefor have been modified in accordance with the Merger
Agreement and are equal to the respective amounts described in Section 1 below.
1. The Option. The Optionee may, at his option, purchase all or any
part of an aggregate of 38,548 shares of the common stock, $.10 par value per
share, of the Company (the "Optioned Shares"), at the exercise price of $.83
per share (the "Option Price"), on the terms and conditions set forth herein
(the "Option").
2. Exercise and Term. From and after the Effective Time and subject
to the limitations imposed by Section 4 hereof, the Option shall be fully
vested and be exercisable for the Optioned Shares provided, however, that the
Option shall expire and terminate on May 25, 2002.
3. Representations of Optionee. The Optionee hereby expressly
acknowledges, represents and agrees as follows:
(a) Optionee is acquiring the Option and the
Optioned Shares for investment for his own account and not
with a view to the distribution thereof, within the meaning of
such term as used in the Securities Act of 1933, as amended
(the "Act"), or any rule or regulation thereunder, in
violation of the Act or any such rules.
<PAGE> 2
(b) Optionee has such knowledge and experience in
financial and business matters that he is capable of
evaluating the merits and economic risks of an investment in
the Optioned Shares.
(c) Optionee is able to bear the economic risks of
an investment in the Optioned Shares for an indefinite period
of time and to bear a complete loss of the investment.
Optionee is aware that the Option has not been and the
Optioned Shares have not been registered under the Act or any
state securities laws, that the Optioned Shares must be held
indefinitely unless they are subsequently registered or sold
pursuant to Rule 144 or another available exemption from
registration.
(d) Optionee understands and acknowledges that a
stop order may be placed against the transfer of the Optioned
Shares with the Company's transfer agent, subject to
compliance with the Act and the applicable rules thereunder.
Optionee understands that each certificate representing the
Optioned Shares will bear a legend prohibiting the sale or
transfer of the Optioned Shares except in a transaction in
compliance with the registration provisions of the Act,
pursuant to Rule 144 or pursuant to another applicable
exemption form such registration provisions and upon
compliance with applicable state securities laws.
4. Representation and Warranties. As a condition to the exercise of
any portion of the Option, the Company may require the Optionee to make any
representation and/or warranty to the Company as may, in the judgment of
counsel to the Company, be required under any applicable law or regulation.
The Optionee understands and agrees that he shall not have any of the rights of
a stockholder with respect to the Optioned Shares until he has exercised the
Option, paid the Option Price, and been issued a stock certificate for the
purchased shares.
5. Options Not Transferrable. The Option may be exercised during the
lifetime of the Optionee only by the Optionee. The Optionee's rights and
interest under this Agreement and in and to the Option may not be sold,
pledged, hypothecated, assigned, encumbered, gifted or otherwise transferred in
any manner, either voluntarily or involuntarily by operation of law, except by
Will or the laws of descent or distribution.
6. Manner of Exercise. Subject to the terms and conditions hereof,
Optionee may exercise the Option assumed hereby as to all or any portion of the
Optioned Shares at any time, and from time to time, pursuant to Section 2
hereof, by giving written notice to the Company and tendering to the Company
the Option Price in
2
<PAGE> 3
cash or stock of the Company. The Optionee shall not be deemed to be a holder
of any shares covered by the Option assumed hereby unless and until written
notice is given in the proper manner, the Option Price is paid in full, any and
all documents pertaining to restrictions of the Optioned Shares are signed by
Optionee, and the certificates representing such Optioned Shares are
transferred to Optionee.
7. Termination of Employment. In the event that Optionee shall cease
to be in the employ of the Company for any reason other than Optionee's
disability, death, or retirement, the unexpired and unexercised portion of the
Option granted to such Optionee shall terminate sixty (60) days from and after
the actual date of termination of employment, unless the Option expires by its
terms on an earlier date.
8. Disability. In the event that Optionee shall cease to be in the
employ of the Company by reason of Optionee's disability, the unexercised
portion of the Option granted to the Optionee pursuant to Section 2 hereof
shall terminate on the date that is six (6) months from and after the date that
Optionee's employment with the Company was terminated by reason of his
disability. For this purpose, Optionee shall be deemed disabled if he is
unable to engage in any gainful activity by reason of any medically
determinable physical or mental impairment which has lasted or can be expected
to last for a continuous period of not less than 12 months, or which can be
expected to result in death, unless the Option expires by its terms on an
earlier date.
9. Retirement. In the event that Optionee terminates his employment
by reason of Optionee's retirement, the unexercised portion of the Option
granted to the Optionee pursuant to Section 2 hereof shall terminate on the
date that is six (6) months from the date such Optionee's employment with the
Company was terminated by reason of Optionee's retirement, unless the Option
expires by its terms on an earlier date.
10. Death. In the event that Optionee dies while in the employ of
the Company, the unexercised portion of the Option granted to the Optionee
hereunder and exercisable pursuant to Section 2 hereof shall be exercisable
within the six (6) month period commencing on the date of Optionee's death,
unless the Option expires sooner under this term, and then only (i) by the
person or persons to whom the Optionee's rights under the Option shall pass by
the Optionee's Will or the laws of descent and distribution, and (ii) if and to
the extent that Optionee was entitled to exercise the Option on the date of
Optionee's death. The Option, to the extent not exercised within the above
period after the date of Optionee's death, shall terminate upon expiration of
the period.
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<PAGE> 4
11. Adjustments Upon Chances in Capitalization and Reorganization.
(a) If the Option is exercised subsequent to any stock dividend,
split-up, recapitalization, combination or exchange of share, merger,
consolidation, acquisition of property or stock, separation, reorganization, or
liquidation, as a result of which shares of any class shall be issued in
respect of outstanding shares of Common Stock, or shares of Common Stock shall
be changed into the same or a different number of shares of the same or another
class or classes, without compensation therefor in money, resources or
property, the remaining shares subject to the Option assumed hereby and the
Option Price attributable thereto shall be appropriately adjusted to reflect
the applicable changes.
(b) If the Company is merged into or consolidated with another
corporation under circumstances where the Company is not the surviving
corporation, or if the Company is liquidated, or sells or otherwise disposes of
substantially all of its assets to another corporation while the Option assumed
remains outstanding (i) subject to the provisions of clause (ii) below, after
the effective date of such merger, consolidation or sale, as the case may be,
Optionee shall be so entitled, upon exercise of the Option assumed hereby, to
receive, in lieu of shares of Common Stock of the Company, shares of such stock
or other securities as the holders of shares of Common Stock of the Company
received pursuant to the terms of the merger, consolidation or sale, or (ii)
the Option assumed hereby may be canceled by the Board of Directors of the
Company as of the effective date of any such merger, consolidation, liquidation
or sale provided that (1) notice of such cancellation shall be given to
Optionee and (2) Optionee shall have the right to exercise the Option with
respect to the Optioned Shares to which the Optionee is entitled pursuant to
Section 2 hereof during a thirty (30) day period preceding the effective date
of such merger, consolidation, liquidation, sale or acquisition.
12. No Enlargement of Employee Rights. Nothing in this Agreement
shall be construed to confer upon the Optionee any right to continued
employment with the Company, or to restrict in any way the right of the Company
to terminate Optionee's employment.
13. Withholding of Taxes. Optionee authorizes the Company to
withhold, in accordance with any applicable law, from any compensation payable
to Optionee any taxes required to be withheld by federal, state or local law as
a result of the issuance of stock pursuant to the exercise of the Option.
14. Governing Law. This Agreement shall be construed and enforced in
accordance with the laws of the State of Delaware.
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<PAGE> 5
15. Agreement Binding on Successors. The terms of this Agreement
shall be binding upon the executors, administrators, heirs and successors of
the Optionee.
16. Cost of Litigation. In any action at law or in equity to enforce
any of the provisions or rights under this Agreement, the unsuccessful party to
such litigation, as determined by the court in a final judgment or decree shall
pay the successful party or parties all costs, expenses and reasonable
attorneys' fees incurred by the successful party or parties (including without
limitation costs, expenses and fees on any appeals), and if the successful
party recovers judgment in any such action or proceeding such costs, expenses
and attorneys' fees shall be included as part of the judgment.
17. Necessary Acts. The Optionee agrees to perform all acts and
execute and deliver any documents that may be reasonably necessary to carry out
the provisions of this Agreement, including but not limited to all acts and
documents related to compliance with federal and/or state securities law.
18. Notice. Any notice, demand or communication required, permitted
or desired to be given hereunder shall be deemed effectively given when
personally delivered or mailed by prepaid certified mail, return receipt
requested, addressed as follows:
Company: Beverly Enterprises, Inc.
5111 Rogers Avenue, Suite 40-A
Fort Smith, Arkansas 72919-1000
Attention: David R. Banks,
Chairman, President and
Chief Executive Officer
Optionee: Robert C. Crosby
211 Lewisburg Avenue
Franklin, Tennessee 37064
or to such other address as either party may designate in writing to the other.
19. Counterparts. For convenience, this Agreement may be executed in
any number of identical counterparts, each of which shall be deemed a complete
original in itself, and may be introduced in evidence or used for any other
purpose without the production of any other counterparts.
20. Invalid Provisions. In the event that any provision of this
Agreement is found to be invalid or otherwise unenforceable under any
applicable law, such invalidity or unenforceability shall not be construed as
rendering any other provisions contained herein invalid or unenforceable, and
all such other provisions were not contained herein.
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<PAGE> 6
21. Word Usage. Words used in the masculine shall apply to the
feminine where applicable, and wherever the context of the Agreement dictates,
the plural shall be read as the singular and the singular as the plural.
IN WITNESS WHEREOF, the Company and the Optionee have executed this
Agreement effective as of the date first written hereinabove.
COMPANY: BEVERLY ENTERPRISES, INC.
By: /s/ SCOTT M. TABAKIN,
Scott M. Tabakin,
Vice President, Controller
and Chief Accounting Officer
OPTIONEE: /s/ ROBERT C. CROSBY
Robert C. Crosby, an individual and
resident of the State of Tennessee
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<PAGE> 1
EXHIBIT 5.1
GIROIR & GREGORY
PROFESSIONAL ASSOCIATION
ATTORNEYS AT LAW
SUITE 1900
111 CENTER STREET
LITTLE ROCK, ARKANSAS 72201
TELEPHONE TELECOPIER
(501) 372-3000 (501) 374-2380
(501) 372-2475
September 20, 1994
Beverly Enterprises, Inc.
5111 Rogers Avenue, Suite 40-A
Fort Smith, Arkansas 72919-1000
RE: Beverly Enterprises, Inc. - Registration Statement on Form S-8
Gentlemen:
We have acted as securities counsel for Beverly Enterprises, Inc. (the
"Company") in connection with the preparation of a registration statement on
Form S-8 (the "Registration Statement") under the Securities Act of 1933, as
amended, to be filed with the Securities and Exchange Commission (the
"Commission") on September 21, 1994, in connection with the registration of
353,451 shares of Common Stock, $.10 par value (the "Shares"), issuable from
time to time as a result of the exercise of stock options with respect to three
different employee benefit plans of the Company: (i) the NonEmployee Directors'
Stock Option Plan; (ii) the American Transitional Hospitals, Inc. 1993
NonQualified Stock Option Plan assumed by Beverly; and (iii) the Stock Option
Agreement between Beverly and Robert C. Crosby dated September 2, 1994
(collectively, the "Plans").
In connection with the preparation of the Registration Statement and
the proposed issuance and sale of Shares in accordance with the Plans and the
Form S-8 prospectus to be delivered to participants in the Plans, we have made
certain legal and factual examinations and inquiries and examined, among other
things, such documents, records, instruments, agreements, certificates and
matters as we have considered appropriate and necessary for the rendering of
this opinion. We have assumed for the purpose of this opinion the authenticity
of all documents submitted to us as originals and the conformity with the
originals of all documents submitted to us as copies, and the genuineness of
the signatures thereon. As to various questions of fact material to this
opinion, we have, when relevant facts were not independently established,
relied, to the extent deemed proper by us, upon certificates and statements of
officers and representatives of the Company.
Based on the foregoing and in reliance thereon, it is our opinion that
the Shares have been duly authorized and, after the Registration Statement
becomes effective and after any post-effective amendment required by law is
duly completed, filed and becomes effective, and when the applicable provisions
of "Blue
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Beverly Enterprises, Inc.
September 20, 1994
Page 2
Sky" and other state securities laws shall have been complied with, and when
the Shares are issued and sold in accordance with the Plans and the Form S-8
prospectus to be delivered to participants in the Plans, the Shares will be
legally issued, fully paid and nonassessable.
We hereby consent to the inclusion of our opinion as Exhibit 5.1 to
the Registration Statement and further consent to the reference to this firm in
the Registration Statement. In giving this consent, we do not hereby admit
that we are in the category of persons whose consent is required under Section
7 of the Securities Act of 1933 or the rules and regulations of the Commission
thereunder.
This opinion is rendered solely for your benefit in accordance with
the subject transaction and is not to be otherwise used, circulated, quoted or
referred to without our prior written consent. We are opining herein as to the
effect on the subject transaction only of United States federal law and the
internal laws of the State of Delaware, without regard for choice of law
principles, and we assume no responsibility as to the applicability thereto, or
the effect thereon, of the laws of any other jurisdiction.
Very truly yours,
/s/ GIROIR & GREGORY,
Professional Association
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EXHIBIT 23.2
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement
(Form S-8) pertaining to the Beverly Enterprises, Inc. Non Employee Directors'
Stock Option Plan; American Transitional Hospitals, Inc. 1993 Nonqualified
Stock Option Plan assumed by Beverly Enterprises, Inc.; and Stock Option
Agreement between Beverly Enterprises, Inc. and Robert C. Crosby dated
September 2, 1994 of our report dated February 4, 1994, with respect to the
consolidated financial statements and schedules of Beverly Enterprises, Inc.
included in its Annual Report on Form 10-K, as amended, for the year ended
December 31, 1993, filed with the Securities and Exchange Commission.
/s/ ERNST & YOUNG LLP
Little Rock, Arkansas
September 20, 1994
