<PAGE> 1
As filed with the Securities and Exchange Commission on October 17, 1995
Registration No.33-_____
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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.)
1200 SOUTH WALDRON ROAD, NO. 155
FORT SMITH, ARKANSAS 72903
(Address of principal executive offices) (Zip Code)
--------------------
INSTA-CARE HOLDINGS, INC. FIRST EMPLOYEES STOCK
OPTION PLAN, ASSUMED BY BEVERLY ENTERPRISES, INC.
(Full Titles of the Plan)
--------------------
Robert W. Pommerville,
Executive Vice President, General Counsel & Secretary
5111 Rogers Avenue, Suite 40-A
Fort Smith, Arkansas 72919-0155
(501) 452-6712
(Name, address and telephone number of agent for service)
Copy to:
H. Watt Gregory, III, Esq.
Michael E. Karney, Esq.
Giroir & Gregory, Professional Association
111 Center Street, Suite 1900
Little Rock, Arkansas 72201
(501) 372-3000
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
================================================================================================================
Proposed Maximum Proposed Maximum
Title of Securities Amount to be Offering Price Per Aggregate Offering Amount of
to be Registered Registered(1) Share(2) Price(2) Registration Fee(2)
- ----------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Common Stock, $.10
par value 14,072 shares $ 13.44 $ 189,127.68 $65.22
================================================================================================================
</TABLE>
(1) The shares registered hereby relate to certain shares issuable pursuant to
the Insta-Care Plan (as defined). The options with respect to such shares
have been exercised by the optionees and such shares are being registered
for purposes of resale pursuant to this reoffering prospectus of the
Registrant.
(2) Estimated solely for the purpose of determining the registration fee
pursuant to Rule 457(c) and (h)(1), based upon the average of the high and
low sales prices of the Registrant's Common Stock on October 16, 1995 as
reported on the New York Stock Exchange.
--------------------
Approximate date of proposed commencement of sales: promptly, and on
a continuous basis for more than 30 days after the effective date of this
Registration Statement.
The contents of the Registration Statement of the Registrant on Form
S-8 (File No. 33-61269), dated July 24, 1995, are hereby incorporated by
reference.
<PAGE> 2
PROSPECTUS
INSTA-CARE HOLDINGS, INC.
FIRST EMPLOYEES STOCK OPTION PLAN
ASSUMED BY BEVERLY ENTERPRISES, INC. ON
NOVEMBER 15, 1994
14,072 SHARES
Common Stock
($.10 par value)
This Reoffering Prospectus relates to the sale by the selling
stockholders listed herein (the "Selling Stockholders") of shares of the common
stock, par value $.10 per share (the "Common Stock", or the "Shares") of
Beverly Enterprises, Inc., a Delaware corporation (the "Company" or
"Beverly"). The Common Stock currently held by the Selling Stockholders was
received upon the exercise of options held by the Selling Stockholders under
the Insta-Care Holdings, Inc. ("Insta-Care") First Employees Stock Option Plan
(the "Insta-Care Plan") which was assumed by the Company on November 15, 1994
pursuant to an Assumption Agreement dated as of November 15, 1994 (the
"Assumption Agreement"), whereby shares of Common Stock were issuable from
time to time upon exercise of options that had been granted by Insta-Care and
assumed by the Company. The Company assumed the Insta-Care Plan and the
Insta-Care options that have been granted thereunder pursuant to a Stock
Purchase Agreement dated as of September 12, 1994 (the "Purchase Agreement'),
between Eckerd Corporation ("Eckerd") and Pharmacy Corporation of America, a
wholly-owned subsidiary of the Company ("PCA"), wherein PCA purchased all of
the issued and outstanding shares of common stock of Insta-Care from Eckerd
(the "Stock Purchase").
The method of distribution of the Common Stock offered hereby is
described under the heading "Plan of Distribution." The Company will not
receive any of the proceeds from the sale of the Common Stock. The Company
will pay all expenses in connection with the offering other than commissions
and discounts of underwriters, dealers or agents.
FOR CERTAIN FACTORS WHICH SHOULD BE CONSIDERED WITH RESPECT TO THE
COMPANY AND ITS COMMON STOCK, SEE "RISK FACTORS" ON PAGE 1 HEREIN.
--------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF
THIS PROSPECTUS. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
--------------------
The date of this Prospectus is October 17, 1995.
<PAGE> 3
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in
accordance therewith files reports, proxy statements and other information with
the Securities and Exchange Commission (the "Commission"). Such reports, proxy
statements and other information filed by the Company can be inspected and
copied at the public reference facilities maintained by the Commission at Room
1024, 450 Fifth Street, N.W., Judiciary Plaza, Washington, D.C. 20549, and at
the regional offices of the Commission located at 7 World Trade Center, New
York, New York 10048, and 500 West Madison Street, Suite 1400, Chicago,
Illinois 60601. Copies of such materials can also be obtained from the Public
Reference Section of the Commission at 450 Fifth Street, N.W., Judiciary Plaza,
Washington, D.C. 20549 at prescribed rates. The shares of Beverly Common Stock
are listed on the New York Stock Exchange, 20 Broad Street, New York, New York
10005 and the Pacific Stock Exchange, 301 Pine Street, San Francisco,
California 94104.
The Company has filed a Registration Statement on Form S-8 (the
"Registration Statement") with the Commission under the Securities Act of 1933,
as amended (the "Securities Act"), with respect to the Shares to be resold by
the Selling Stockholders. This Prospectus does not contain all of the
information set forth in the Registration Statement, certain parts of which are
omitted in accordance with the rules and regulations of the Commission. The
Registration Statement and any amendments thereto, including exhibits filed as
a part thereof, are available for inspection and copying as set forth above.
THIS PROSPECTUS INCORPORATES BY REFERENCE DOCUMENTS WHICH ARE NOT
PRESENTED HEREIN OR DELIVERED HEREWITH. COPIES OF SUCH DOCUMENTS (OTHER THAN
EXHIBITS TO SUCH DOCUMENTS UNLESS SUCH EXHIBITS ARE SPECIFICALLY INCORPORATED
BY REFERENCE) WILL BE PROVIDED WITHOUT CHARGE BY FIRST CLASS MAIL TO ANY PERSON
TO WHOM THIS PROSPECTUS IS DELIVERED, UPON WRITTEN OR ORAL REQUEST OF SUCH
PERSON. REQUESTS FOR THE COMPANY DOCUMENTS SHOULD BE DIRECTED TO BEVERLY
ENTERPRISES, INC., 5111 ROGERS AVENUE, SUITE 40-A, FORT SMITH, ARKANSAS 72919-
0155, (501) 452-6712, ATTN: ROBERT W. POMMERVILLE, EXECUTIVE VICE PRESIDENT,
GENERAL COUNSEL AND SECRETARY.
--------------------
NO PERSON IS AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATION NOT CONTAINED IN THIS PROSPECTUS AND, IF GIVEN OR MADE, SUCH
INFORMATION OR REPRESENTATION SHOULD NOT BE RELIED UPON AS HAVING BEEN
AUTHORIZED. THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO SELL, OR A
SOLICITATION OF ANY OFFER TO PURCHASE, THE SECURITIES OFFERED BY THIS
PROSPECTUS, FROM ANY PERSON, IN ANY JURISDICTION IN WHICH IT IS UNLAWFUL TO
MAKE SUCH OFFER OR SOLICITATION. NEITHER THE DELIVERY OF THIS PROSPECTUS NOR
ANY DISTRIBUTION OF THE SECURITIES MADE UNDER THIS PROSPECTUS SHALL, UNDER ANY
CIRCUMSTANCES, CREATE AN IMPLICATION THAT THERE HAS BEEN NO CHANGE IN THE
AFFAIRS OF THE COMPANY SINCE THE DATE OF THIS PROSPECTUS.
<PAGE> 4
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,
1994, as amended May 19, 1995 on Form 10-K/A (the "1994
Beverly 10-K");
2. Quarterly Reports on Form 10-Q for the quarters ended March
31, 1995 and June 30, 1995;
3. The portions of the Proxy Statement for the Annual Meeting of
Stockholders held May 18, 1995 that have been incorporated by
reference in the 1994 Beverly 10-K;
4. Current Report on Form 8-K dated June 27, 1995;
5. Current Report on Form 8-K dated May 30, 1995;
6. Current Report on Form 8-K dated April 6, 1995;
7. Current Report on Form 8-K dated December 14, 1994, as amended
February 10, 1995, on Form 8-K/A;
8. Registration Statement on Form 8-A relating to the
Registrant's Common Stock dated August 21, 1990, and any
amendment or report filed for the purpose of updating such
description; and
9. Registration Statement on Form 8-A relating to the
Registrant's Common Stock Purchase Rights (as defined) dated
September 29, 1994, 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 Act, after the date hereof and 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.
<PAGE> 5
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page No.
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<S> <C>
Risk Factors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Governmental Regulation and Reimbursement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Increased Labor Costs and Availability of Personnel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Certain Anti-Takeover Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
The Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Selling Stockholders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Plan of Distribution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Description of Beverly Capital Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Authorized Capital Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Beverly Preferred Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Beverly Common Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Beverly Common Stock Purchase Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Legal Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Experts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
</TABLE>
THIS DOCUMENT CONSTITUTES PART OF A PROSPECTUS COVERING SECURITIES THAT HAVE
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
<PAGE> 6
RISK FACTORS
GOVERNMENTAL REGULATION AND REIMBURSEMENT
Approximately 79%, 80% and 80% of Beverly's net operating revenues
were derived from federal and state health care programs for the six months
ended June 30, 1995 and the years ended December 31, 1994 and 1993,
respectively. These programs are highly regulated and are subject to budgetary
constraints and other developments. Beverly's operations could be adversely
affected by regulatory developments such as mandatory increases in the scope
and quality of care to be afforded nursing home residents and revisions in
licensing and certification standards. Furthermore, governmental reimbursement
programs are subject to statutory and regulatory changes, retroactive rate
adjustments, administrative rulings and governmental funding restrictions, all
of which may materially increase or decrease the rate of program payments to
Beverly for its services. There can be no assurance that payments under
governmental and private third party payor programs will remain at levels
comparable to present levels or will, in the future, be sufficient to cover the
costs allocable to patients eligible for reimbursement pursuant to such
programs. In addition, there can be no assurance that facilities owned, leased
or managed by Beverly, or the provision of services and supplies by Beverly,
now or in the future, will initially meet or continue to meet the requirements
for participation in such programs. Beverly could be adversely affected by the
continuing efforts of governmental and private third party payors to contain
the amount of reimbursement for health care services. In an attempt to reduce
federal and state expenditures, there have been, and Beverly expects that there
will continue to be, a number of proposals to limit Medicaid and Medicare
reimbursement for health care services.
Congress has recently proposed legislation that would reform the
Medicare and Medicaid programs. Included in their proposals are various
provisions to curb the growth of Medicare spending and provide more autonomy
and control to state governments in administering the Medicaid program. There
is active discussion concerning these proposals and the form of any final
legislation signed into law could differ significantly from current proposals.
The impact of currently proposed legislation on Beverly is not readily
determinable. However, in their currently proposed form, such proposals could
have a significant adverse affect on Beverly's future financial position,
results of operations and cash flows.
As a general matter, increases in Beverly's operating costs result in
higher patient rates under Medicaid programs in subsequent periods. However,
Beverly's results of operations will continue to be affected by the time lag in
most states between increases in reimbursable costs and the receipt of related
reimbursement rate increases. Medicaid rate increases, adjusted for inflation,
are generally based upon changes in costs for a full calendar year period. The
time lag before such costs are reflected in permitted rates varies from state
to state, with a substantial portion of the increases taking effect up to 18
months after the related cost increases.
INCREASED LABOR COSTS AND AVAILABILITY OF PERSONNEL
In recent years, Beverly has experienced increases in its labor costs
primarily due to higher wages and greater benefits intended to attract and
retain qualified personnel, increased staffing levels in its nursing facilities
due to greater patient acuity and the hiring of therapists on staff. Beverly
expects labor costs to continue to increase in the future; however, it is
anticipated that any increase in costs will generally result in higher patient
rates in subsequent periods, subject to the time lag in most states mentioned
above, of up to 18 months, between increases in reimbursable costs and the
receipt of related reimbursement rate increases.
<PAGE> 7
Currently, Beverly is not experiencing a nursing shortage.
Periodically in the past, however, the health care industry, including
Beverly's long-term care facilities, has experienced a shortage of nurses to
staff health care operations. Beverly competes with other health care
providers for nursing personnel and a nursing shortage could force Beverly to
pay higher salaries and make greater use of registry (temporary nursing and
related personnel). A lack of qualified nursing personnel might also result in
reduced census or require Beverly to admit patients requiring a lower level of
care, both of which could adversely affect operating results.
CERTAIN ANTI-TAKEOVER PROVISIONS
Certain provisions of the Certificate of Incorporation and Bylaws of
Beverly might make an unsolicited acquisition of control of Beverly more
difficult or expensive. Furthermore, Beverly has adopted a stockholder rights
plan which also might make an unsolicited acquisition of Beverly more difficult
or expensive. See "DESCRIPTION OF BEVERLY CAPITAL STOCK - Beverly Common Stock
Purchase Rights."
THE COMPANY
Beverly is the largest provider of long-term health care in the United
States. At June 30, 1995, Beverly operated 712 nursing facilities with 76,440
licensed beds. The facilities are located in 33 states and the District of
Columbia, and range in capacity from 20 to 388 beds. At June 30, 1995,
Beverly also operated 62 institutional and mail order pharmacies, 9 long-term
transitional hospitals, and 40 retirement and assisted living centers.
Beverly's facilities had average occupancy of 88.4% for the six months ended
June 30, 1995 and 88.5%, 88.5% and 88.4% during the years ended December 31,
1994, 1993 and 1992, respectively.
Beverly's principal executive offices are located at 1200 South
Waldron Road, No. 155, Fort Smith, Arkansas 72903, and its telephone number is
(501) 452-6712.
SELLING STOCKHOLDERS
The shares of Common Stock being offered hereby are being sold for the
account of the Selling Stockholders listed below and were acquired by the
Selling Stockholders through the exercise of options granted under the
Insta-Care Plan. The following table sets forth for each of the Selling
Stockholders, such person's ownership of Common Stock acquired pursuant to the
Insta-Care Plan, at October 3, 1995, the number of shares being offered by such
person and such person's ownership by number of shares and by percent of total
outstanding shares before and after giving effect to the sale of shares offered
hereby.
<TABLE>
<CAPTION>
NUMBER OF NUMBER OF MATERIAL RELATIONSHIP WITH
SHARES BENEFICIALLY PERCENTAGE OF SHARES TO BE THE COMPANY OR ANY PREDECESSOR
OWNED PURSUANT TO OUTSTANDING OFFERED PURSUANT OR AFFILIATES OF THE COMPANY
NAME THE INSTA-CARE PLAN SHARES OWNED TO THIS PROSPECTUS WITHIN THE LAST THREE YEARS
---- ------------------- ------------ ------------------ ---------------------------
<S> <C> <C> <C> <C>
Edward A. Caporello . 898 * 898 N/A
Steven B. Cashton . . 2,994 * 2,994 N/A
Robert Gylling . . . 599 * 599 N/A
Holly A. Klalo . . . 1,198 * 1,198 N/A
George Miller . . . . 898 * 898 N/A
Lynda Romeo . . . . . 599 * 599 N/A
JoAnne Shefres . . . 2,994 * 2,994 N/A
Donald G. Tibbets . . 1,198 * 1,198 N/A
John Virginio . . . . 1,796 * 1,796 N/A
Michael Vuolo . . . . 898 * 898 N/A
</TABLE>
- ---------------
* Less than 1.0%.
The Common Stock offered hereby will be sold either to or through
agents, underwriters or dealers designated from time to time or directly by the
Selling Stockholder. See "Plan of Distribution".
2
<PAGE> 8
PLAN OF DISTRIBUTION
The Shares offered hereby may be sold by the Selling Stockholders or
by pledgees, donees, transferees or other successors in interest. Such sales
may be made in the market or otherwise at prices and at terms then prevailing
or at prices related to the then-current market price, or in negotiated
transactions. The Shares may be sold by one or more of the following methods,
without limitation: (a) a block trade in which the broker or dealer so engaged
will attempt to sell the shares as agent but may position and resell a portion
of the block as principal to facilitate the transaction; (b) purchases by a
broker or dealer as principal and resale by such broker or dealer for its
account pursuant to this Prospectus; (c) ordinary brokerage transactions and
transactions in which the broker solicits purchasers; and (d) face-to-face
transactions between sellers and purchasers without a broker-dealer. In
effecting sales, brokers or dealers engaged by the Selling Stockholders may
arrange for other brokers or dealers to participate. Such brokers or dealers
may receive commissions or discounts from Selling Stockholders in amounts to be
negotiated immediately prior to the sale. Such brokers or dealers and any
other participating brokers or dealers may be deemed to be "underwriters"
within the meaning of the Securities Act, in connection with such sales. A
Selling Stockholder who is selling Shares that are control securities within
the meaning of the instructions to the Form S-8 Registration Statement is
subject to limitations on the number of shares he/she may sell during a three
month period as set forth in Rule 144(e) under the Securities Act. In
addition, any Shares covered by this Prospectus that qualify for sale pursuant
to Rule 144 under the Securities Act might be sold under Rule 144 rather than
pursuant to this Prospectus.
Upon the Company's being notified by a Selling Stockholder that any
material arrangement has been entered into with a broker or dealer for the sale
of any Shares through a secondary distribution, or a purchase by a broker or
dealer, a supplemented Prospectus will be filed, if required, pursuant to Rule
424(c) under the Securities Act, disclosing (a) the name of each such
broker-dealer(s), (b) the number of Shares involved, (c) the price at which
such Shares were sold, (d) the commissions paid or discounts or concessions
allowed to such broker-dealer(s), where applicable, (e) that such
broker-dealer(s) did not conduct any investigation to verify the information
set out or incorporated by reference in this Prospectus, as supplemented, and
(f) other facts material to the transaction.
DESCRIPTION OF BEVERLY CAPITAL STOCK
AUTHORIZED CAPITAL STOCK
Beverly has the authority to issue 325,000,000 shares of capital
stock, of which 300,000,000 are common stock, par value $.10 per share
("Beverly Common Stock"), and 25,000,000 are preferred stock, par value $1.00
per share ("Beverly Preferred Stock"). At July 31, 1995, Beverly had
outstanding 98,210,053 shares of Beverly Common Stock and 3,000,000 shares of
Beverly Series B Preferred Stock (as defined).
BEVERLY PREFERRED STOCK
Under Beverly's Certificate of Incorporation, Beverly's Board of
Directors may from time to time establish and issue one or more series of
preferred stock and fix the designations, powers, preferences and rights of the
shares of such series and the qualification, limitations or restrictions
thereon, including, but not limited to, the fixing of the dividend rights,
dividend rate or rates, conversion rights, voting rights, rights and terms of
redemption (including sinking fund provisions), the redemption price or prices,
and the liquidation preferences, in each case, if any, of any wholly unissued
series of Beverly Preferred Stock. Any such series may rank on a parity with
or senior to the Beverly Series B Preferred Stock (subject to the class voting
rights of the Beverly Series B Preferred Stock) with respect to dividends,
distributions and liquidation, and any such series may have greater or lesser
voting rights than the Beverly Series B Preferred Stock.
Beverly has outstanding 3,000,000 shares of $2.75 Cumulative
Convertible Exchangeable Preferred Stock (the "Beverly Series B Preferred
Stock"), with a liquidation value of $50 per share. The Beverly Series B
Preferred
3
<PAGE> 9
Stock is convertible into 11,252,813 shares of Beverly's Common Stock. The
holders of the Beverly Series B Preferred Stock are entitled to receive out of
legally available funds, when and as declared by Beverly's Board of Directors,
quarterly cash dividends equal to $2.75 per share (aggregate of $8,250,000 per
annum). Except as required by law, holders of the Beverly Series B Preferred
Stock have no voting rights unless dividends on the Beverly Series B Preferred
Stock have not been paid in an aggregate amount equal to at least six full
quarters (whether or not consecutive), in which case holders of the Beverly
Series B Preferred Stock will be entitled to elect two additional directors to
Beverly's Board of Directors to serve until such dividend arrearage is
eliminated. Beverly has paid all required quarterly dividends on the Beverly
Series B Preferred Stock since its issuance in 1993. The Beverly Series B
Preferred Stock is exchangeable, in whole or in part (but in no more than two
parts), at the option of Beverly, on any dividend payment date beginning
November 1, 1995, for Beverly's 5 1/2% Convertible Subordinated Debentures due
August 1, 2018 (the "5 1/2% Debentures"), at the rate of $50 principal amount
of 5 1/2% Debentures for each share of the Beverly Series B Preferred Stock.
The Beverly Series B Preferred Stock is redeemable at any time on and after
August 1, 1996, in whole or in part, only at the option of Beverly, initially
at a redemption price of $51.925 per share, and thereafter at prices decreasing
ratably annually to $50 per share on and after August 1, 2003, plus accrued and
unpaid dividends.
BEVERLY COMMON STOCK
Holders of Beverly Common Stock are entitled to receive such dividends
as are declared by the Board of Directors, subject to the preference of the
Beverly Series B Preferred Stock and any other outstanding Beverly Preferred
Stock, and are entitled to cast one vote per share on all matters voted upon by
stockholders. There is no cumulative voting for the election of directors and
Beverly Common Stock does not have any preemptive rights. Upon liquidation of
Beverly, holders of Beverly Common Stock are entitled to share equally and
ratably in any assets available for distribution to them, after payment or
provision for liabilities and amounts owing with respect to the Beverly Series
B Preferred Stock and any other outstanding Beverly Preferred Stock. Payment
and declaration of dividends on Beverly Common Stock and purchases of shares
thereof by Beverly are subject to certain restrictions if Beverly fails to pay
dividends on its Beverly Series B Preferred Stock and will be subject to
restrictions if Beverly fails to pay dividends on any other series of Beverly
Preferred Stock ranking prior to Beverly Common Stock as to the payment of
dividends. Beverly is subject to certain restrictions under its banking
arrangements related to the payment of cash dividends on its common stock.
The Registrar and Transfer Agent for Beverly Common Stock is The Bank
of New York.
BEVERLY COMMON STOCK PURCHASE RIGHTS
The Beverly Board of Directors has adopted a stockholders rights plan,
pursuant to which one common stock purchase right (a "Right" or "Rights") was
issued with respect to each share of Beverly Common Stock (the "Common
Shares"), outstanding at the close of business on November 2, 1994 (the "Record
Date"). Each Right entitles the registered holder thereof, after the Right
becomes exercisable and until the expiration, redemption, exchange, or
termination of the Right, to purchase from Beverly one Common Share at a price
of $70 per share, subject to adjustment (the "Purchase Price"). The
description and terms of the Rights are set forth in a Rights Agreement dated
September 29, 1994 (the "Rights Agreement") between Beverly and the Bank of New
York, as Rights Agent (the "Rights Agent").
The Rights are represented by the Common Share certificates and are
not exercisable until a Distribution Date (as defined). A Distribution Date is
defined as the earlier of the following: (i) ten (10) days following the Shares
Acquisition Date (the first date of a public announcement by Beverly or an
Acquiring Person which reveals the existence of an Acquiring Person) or (ii)
the tenth day after the date of the commencement of, or of the first public
announcement of the intent of any person (other than Beverly, any of its
Subsidiaries, or any of its Employee Benefit Plans) to commence a tender or
exchange offer which would result in any Person becoming the beneficial owner
of common shares aggregating 15% or more of the outstanding Beverly Common
Shares (an "Acquiring
4
<PAGE> 10
Person"). The Board of Directors of Beverly may postpone, under certain
circumstances, one or more times, a Distribution Date beyond the dates set
forth above. As soon as practicable, after a Distribution Date, the Rights
Agent will send to each record holder of Beverly Common Shares, as of the close
of business on a Distribution Date, a certificate for Rights evidencing one
Right for each Common Share. The Rights will first become exercisable on a
Distribution Date, unless earlier redeemed or exchanged, and may then begin
trading separately. The Rights will not at any time have any voting rights.
Each holder of a Right (other than those owned by the Acquiring Person
which shall be void) will have the right to receive upon the exercise that
number of Common Shares having a market value of two times the then current
Purchase Price of one Right if one of the following events is triggered: (1) a
person becomes an Acquiring Person (except under certain circumstances where
cash offers for all outstanding Common Shares are approved by the Board of
Directors of Beverly); or (2) if Beverly is the surviving corporation in a
merger with an Acquiring Person or any Associate or Affiliate (as defined in
Section 12b-2 of the Exchange Act) of any Acquiring Person, and the Common
Shares were not changed or exchanged. In the event that a person or group
becomes an Acquiring Person, or Beverly is acquired in a merger or other
business combination transaction where more than 50% of its assets or earning
power was sold, proper provision shall be made so that each holder of a Right
shall thereafter have the right to receive, upon the exercise thereof at the
then current Purchase Price of the Right, that number of shares of common stock
of the acquiring company which at the time of such transaction would have the
market value of two times the then current Purchase Price of one Right.
The Board of Directors has the right at any time prior to an
acquisition of an Acquiring Person of 50% or more of the then outstanding
Common Shares to cause Beverly to acquire the Rights (other than those owned by
the Acquiring Person which are void) in exchange for that number of Common
Shares which has an aggregate value, per Right, equal to the excess of the
value of the Common Shares issuable upon exercise of a Right after a person
becomes an Acquiring Person over the Purchase Price.
The Board of Directors may redeem the Rights in whole at a price of
$.01 per Right (the "Redemption Price") at any time prior to the close of
business on the tenth day following the public announcement of an Acquiring
Person. The ten-day redemption period may be changed by a majority of the
Board of Directors under certain circumstances. The right to exercise the
Rights will immediately terminate upon action by the Board of Directors to
redeem the Rights and the holders of the Rights will only have the right to
receive the Redemption Price.
The Purchase Price, the number of shares covered by each Right and the
number of Rights outstanding are subject to adjustment from time to time to
prevent dilution. Such adjustments may be made in the event Beverly (i)
declares a stock dividend on, or a subdivision, combination or reclassification
of, the Common shares, (ii) upon the grant to holders of the Common Shares of
certain rights or warrants to subscribe for or purchase Common shares or
convertible securities at less than the current market price of the Common
Shares or (iii) upon the distribution to holders of the Common Shares of
evidences of indebtedness, securities or assets (excluding regular periodic
cash dividends at a rate not in excess of 125% of the last regular periodic
cash dividend paid, or if not previously paid, at a rate not to exceed 50% of
the average net income per share of Beverly for the four quarters ended
immediately prior to the payment of such dividend, or dividends payable in
Common Shares (which dividends will be subject to the adjustment described in
clause (i) above) or of subscription rights or warrants (other than those
referred to above).
No adjustment in the Purchase Price will be required until cumulative
adjustments require an adjustment of at least 1% in such Purchase Price. No
fractional shares will be issued and in lieu thereof, a payment in cash will be
made based on the market price of the Common Shares on the last trading date
prior to the date of exercise.
Until a Right is exercised, the holder thereof will have no rights as
a stockholder of Beverly beyond those as an existing stockholder, including,
without limitation, the right to vote or to receive dividends.
5
<PAGE> 11
Any provisions of the Rights Agreement may be amended by the Board of
Directors of Beverly prior to a Distribution Date. After a Distribution Date
the Company and the Rights Agent may amend or supplement the Rights Agreement
without the approval of any holders of Right Certificates to cure any
ambiguity, to correct or supplement any provision contained therein which may
be defective or inconsistent with any other provisions therein, to shorten or
lengthen any period under the Rights Agreement (requiring a majority of the
Board of Directors under certain circumstances), or so long as the interest of
the holders of Right Certificates (other than an Acquiring Person or an
affiliate or associate of an Acquiring Person) are not adversely affected,
thereby, to make any other provision in regard to matters or questions arising
thereunder which Beverly and the Rights Agent may deem necessary or desirable,
including but not limited to extending the Final Expiration Date. Beverly may
at any time prior to a Person becoming an Acquiring Person amend the Rights
Agreement to lower the thresholds described above to not less than the greater
of (i) any percentage greater than the largest percentage of the outstanding
Common Shares then known by Beverly to be beneficially owned by any person or
group of affiliated or associated persons and (ii) 10%.
The Rights will cause substantial dilution to a person or group that
acquires 15% or more of Beverly's stock on terms not approved by the Beverly's
Board of Directors, except pursuant to an offer conditioned on substantial
number of Rights being acquired. The Rights should not interfere with any
merger or other business combination approved by the Board of Directors prior
to ten days after the time that a Person or group has become an Acquiring
Person as the Rights may be redeemed by the Company at $.01 per Right prior to
such time.
On April 6, 1995, the Beverly Board of Directors approved certain
amendments to the Rights Agreement, and directed that the Plan, as amended, be
submitted to a binding vote of stockholders at the Annual Meeting held on May
18, 1995. The stockholders approved the Plan, as amended, at the Annual
Meeting.
On April 24, 1995, the Food and Allied Service Trades Department,
AFL-CIO, filed a complaint against the Company in the United States District
Court, District of Columbia, Civil Action Docket No. 95-0765, alleging that the
Company's proxy statement used in connection with soliciting the Company's
stockholders' approval of the Plan, as amended, at the Annual Meeting was
materially false and misleading and in violation of the Securities Exchange Act
of 1934, as amended. The complaint sought an injunction against the Company
with respect to voting any proxies obtained with the solicitation materials, or
in the alternative, that any vote of such shares in favor of the Plan pursuant
to proxies obtained with such materials be voided. Although the Court has
granted expedited discovery proceedings in the case, no hearing date has been
set on the complaint or the plaintiff's request for injunctive relief. The
Company has been vigorously defending the action, and believes that there is no
merit to the complaint. However, if the plaintiff were to be successful on the
merits of the case, the stockholders' approval of the Plan, as amended, at the
Annual Meeting held May 18, 1995 could be voided, and the Company could be
required to resolicit stockholders for approval of the Plan, as amended.
The amendments to the Rights Agreement (the "Amendments") approved by
the stockholders provide for the following:
Redemption of the Rights (as well as elimination of the Rights
Agreement) will be submitted to a binding stockholder vote if an offer for all
outstanding shares meeting certain conditions, as described below, is made and
within sixty (60) days thereafter, Beverly's Board of Directors has not either
redeemed the Rights or approved a financially superior alternative transaction.
Beverly's Board of Directors must redeem the Rights if holders of a majority of
the outstanding Beverly Common Stock vote to request such redemption to allow
the completion of that offer or a financially superior offer. The Amendments
thus give Beverly's stockholders the power to cause the redemption of the
Rights to allow completion of an offer meeting the specified conditions,
regardless of Beverly's Board of Directors' position on that offer.
The conditions of the offer that would trigger a stockholder
referendum are as follows: (i) the offer must be for all outstanding shares of
Beverly Common Stock at the same price; (ii) the portion of the offer that is
for cash
6
<PAGE> 12
must be fully financed; (iii) any portion of the offer that is non-cash
consideration must be in the form of New York Stock Exchange listed securities
and the offer must provide tax-deferred treatment for stockholders; and (iv)
the offer cannot be subject to financing, funding or due diligence conditions.
Prior to the adoption of the Amendments, the Rights Agreement was
scheduled to expire in 2004. Pursuant to the Amendments, the Rights Agreement
will now expire at Beverly's 1998 annual meeting unless holders of a majority
of the shares voting at Beverly's 1998 annual meeting vote affirmatively to
extend the term of the Plan. If Beverly's stockholders approve the extension
at Beverly's 1998 Annual Meeting, the Rights Agreement will expire at Beverly's
2001 annual meeting.
LEGAL MATTERS
The validity of the issuance of the shares by the Company to the
Selling Stockholders has been passed upon for the Company by Giroir & Gregory,
Little Rock, Arkansas.
EXPERTS
The consolidated financial statements of Beverly Enterprises, Inc.,
appearing in Beverly Enterprises, Inc.'s Annual Report (Form 10-K) for the year
ended December 31, 1994, have been audited by Ernst & Young LLP, independent
auditors, as set forth in their report thereon included therein and
incorporated herein by reference. Such consolidated financial statements are
incorporated herein by reference in reliance upon such report given upon the
authority of such firm as experts in accounting and auditing.
7
<PAGE> 13
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 29,
1995.
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 substitutes or substitute, 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 29, 1995
David R. Banks Director
Senior Vice President,
/s/ SCOTT M. TABAKIN Controller, Acting Chief
- ------------------------------------------- Financial Officer and September 29, 1995
Scott M. Tabakin Chief Accounting Officer
</TABLE>
8
<PAGE> 14
<TABLE>
<S> <C> <C>
/s/ BERYL F. ANTHONY, JR. Director September 29, 1995
- -------------------------------------------
Beryl F. Anthony, Jr.
/s/ JAMES R. GREENE Director September 29, 1995
- -------------------------------------------
James R. Greene
/s/ EDITH E. HOLIDAY Director September 29, 1995
- -------------------------------------------
Edith E. Holiday
/s/ JON E. M. JACOBY Director September 29, 1995
- -------------------------------------------
Jon E. M. Jacoby
/s/ RISA J. LAVIZZO-MOUREY Director September 29, 1995
- -------------------------------------------
Risa J. Lavizzo-Mourey
/s/ LOUIS W. MENK Director September 29, 1995
- -------------------------------------------
Louis W. Menk
/s/ MARILYN R. SEYMANN Director September 29, 1995
- -------------------------------------------
Marilyn R. Seymann
</TABLE>
9
<PAGE> 15
INDEX TO EXHIBITS
4.1 Insta-Care Holdings, Inc. First Employees Stock Option Plan assumed by
Beverly Enterprises, Inc. (incorporated by reference to Exhibit 4.4 to
Beverly Enterprises, Inc.'s Registration Statement on Form S-8 filed
on July 24, 1995 (File No. 33-61269)).
4.2 Assumption Agreement by and between Beverly Enterprises, Inc. and
Insta-Care Holdings, Inc. dated as of November 15, 1994 (incorporated
by reference to Exhibit 4.5 to Beverly Enterprises, Inc.'s
Registration Statement on Form S-8 filed on July 24, 1995 (File
No.33-61269)).
5.1* Opinion and Consent of Giroir & Gregory, Professional Association, as
to the legality of the common stock offered pursuant to the Plan.
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.
10
<PAGE> 1
October 17, 1995
Beverly Enterprises, Inc.
1200 S. Waldron Road, No. 155
Fort Smith, Arkansas 72903
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 to be
filed with the Securities and Exchange Commission (the "Commission") on October
__, 1995, in connection with the registration of 14,072 shares of Common Stock,
$.10 par value (the "Shares"), issuable from time to time as a result of the
assumption by Beverly of the Insta-Care Holdings, Inc. ("Insta-Care") First
Employees Stock Option Plan (the "Plan") which was assumed by the Company on
November 15, 1994 pursuant to an Assumption Agreement dated November 15, 1994.
In connection with the preparation of the Registration Statement and
the proposed issuance and sale of Shares in accordance with the Plan and the
Form S-8 Prospectus to be delivered to participants in the Plan, 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 extent deemed proper by us, upon certificates and statements of
officers and representatives of the Company.
<PAGE> 2
Beverly Enterprises, Inc.
October 17, 1995
Page 2
Based on the foregoing and in reliance thereon, it is our opinion that the
Shares have been duly authorized and are legally issued, fully paid and
nonassessable in accordance with the application of the General Corporation Law
of the State of Delaware.
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
General Corporation Law 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,
GIROIR & GREGORY
Professional Association
<PAGE> 1
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement (Form S-8) pertaining to the Insta-Care Holdings, Inc.
First Employees Stock Option Plan, assumed by Beverly Enterprises, Inc. and to
the incorporation by reference therein of our report dated February 3, 1995,
with respect to the consolidated financial statements and schedule of Beverly
Enterprises, Inc. included in its Annual Report on Form 10-K, as amended, for
the year ended December 31, 1994, filed with the Securities and Exchange
Commission.
ERNST & YOUNG LLP
Little Rock, Arkansas
October 13, 1995
