<PAGE> 1
As filed with the Securities and Exchange Commission on July 24, 1995
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.)
1200 South Waldron Road, No. 155
Fort Smith, Arkansas 72903
(Address of principal executive offices) (Zip Code)
------------------------
PHARMACY MANAGEMENT SERVICES, INC.
1990 INCENTIVE AND NON-STATUTORY STOCK OPTION PLAN, AS AMENDED, ASSUMED BY
BEVERLY ENTERPRISES, INC.; AND INSTA-CARE HOLDINGS, INC. FIRST
EMPLOYEES STOCK OPTION PLAN, ASSUMED BY BEVERLY ENTERPRISES, INC.
(Full Titles of the Plans)
------------------------
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
------------------------
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(2)
- -----------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Fee(2)
Common Stock, $.10
par value 436,024 shares $ 12.875 $ 5,613,809 $ 1935.80
=================================================================================================================
</TABLE>
(1) The maximum amount of shares issuable pursuant to the PMSI Plan (as
defined) is 342,311 shares of the Registrant's $.10 par value per share
common stock (the "Common Stock" or "Beverly Common Stock").
<PAGE> 2
The maximum amount of shares issuable pursuant to the Insta-Care Plan (as
defined) is 93,713 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 sales prices of the Registrant's Common Stock on July 19, 1995 as
reported on the New York Stock Exchange.
<PAGE> 3
PART I
GENERAL NOTE
This Registration Statement on Form S-8 relates to two different
employee benefit plans (the "Plans") of Beverly Enterprises, Inc., a Delaware
corporation ("Beverly"): the Pharmacy Management Services, Inc. ("PMSI") 1990
Incentive and Non-statutory Stock Option Plan, as amended, assumed by Beverly
(the "PMSI Plan"); and the Insta-Care Holdings, Inc.("Insta-Care") First
Employees Stock Option Plan, assumed by Beverly (the "Insta-Care Plan").
The PMSI Plan. On June 27, 1995, pursuant to an Agreement and Plan of
Merger dated December 26, 1994, as amended by Amendment No. 1 to Agreement and
Plan of Merger dated May 19, 1995 (the "Merger Agreement"), PMSI was merged
with and into Beverly, with Beverly being the surviving corporation. Pursuant
to the Merger Agreement, Beverly assumed the PMSI Plan which assumption
included modification with respect to the number of shares of Beverly Common
Stock issuable upon exercise of the outstanding options thereunder and the
modification of the exercise price for shares of Beverly Common Stock issuable
upon exercise of the outstanding options thereunder. The PMSI Plan assumed by
Beverly has 342,311 shares of Beverly Common Stock reserved for issuance
thereunder.
The Insta-Care Plan. On November 15, 1994, 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
California corporation and a wholly-owned subsidiary of Beverly ("PCA"), PCA
purchased all of the issued and outstanding shares of common stock of
Insta-Care from Eckerd. Pursuant to the Purchase Agreement, on November 15,
1994, Beverly assumed the Insta-Care Plan which assumption included
modification with respect to the number of shares of Beverly Common Stock
issuable upon exercise of the outstanding options thereunder, modification of
the exercise price for shares of Beverly Common Stock underlying the options,
as well as designating the Beverly Compensation Committee (as defined) to
administer the Insta-Care Plan, as assumed. The Insta-Care Plan assumed by
Beverly has 93,713 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.
<PAGE> 4
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,
1994, as amended May 19, 1995 on Form 10-K/A (the "1994
Beverly 10-K");
2. Quarterly Report on Form 10-Q for the quarter ended March 31,
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 Securities Exchange Act of 1934, as
amended, 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.
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 of Incorporation 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
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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
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.
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<PAGE> 6
(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.
(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 person who is or was a director, officer,
employee or agent of such constituent corporation, or is or was serving at the
request of such constituent corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise, shall stand in the same position under 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* Pharmacy Management Services, Inc. 1990 Incentive and
Non-statutory Stock Option Plan, dated December 23,
1989, assumed by Beverly Enterprises, Inc.
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<PAGE> 7
Exhibit 4.2* Pharmacy Management Services, Inc. Amendment to 1990
Incentive and Non-statutory Stock Option Plan, dated
December 5, 1991, assumed by Beverly Enterprises,
Inc.
Exhibit 4.3* Pharmacy Management Services, Inc. Second Amendment
to 1990 Incentive and Non-statutory Stock Option
Plan, dated June 4, 1993, assumed by Beverly
Enterprises, Inc.
Exhibit 4.4* Insta-Care Holdings, Inc. First Employees Stock
Option Plan assumed by Beverly Enterprises, Inc.
Exhibit 4.5* Assumption Agreement by and between Beverly
Enterprises, Inc. and Insta-Care Holdings, Inc.,
dated as of November 15, 1994.
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)
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<PAGE> 8
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.
(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> 9
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 July 24, 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 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>
/s/ DAVID R. BANKS Chairman of the Board,
- ------------------------------------------- President, Chief Executive
David R. Banks Officer and Director July 24, 1995
/s/ ROBERT D. WOLTIL Executive Vice President,
- ------------------------------------------- Finance and Chief
Robert D. Woltil Financial Officer July 24, 1995
/s/ SCOTT M. TABAKIN Senior Vice President,
- ------------------------------------------- Controller and Chief
Scott M. Tabakin Accounting Officer July 24, 1995
</TABLE>
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<PAGE> 10
<TABLE>
<S> <C> <C>
/s/ BERYL F. ANTHONY, JR. Director July 24, 1995
- -------------------------------------------
Beryl F. Anthony, Jr.
/s/ JAMES R. GREENE Director July 24, 1995
- -------------------------------------------
James R. Greene
/s/ EDITH E. HOLIDAY Director July 24, 1995
- -------------------------------------------
Edith E. Holiday
Director July __, 1995
- -------------------------------------------
Jon E. M. Jacoby
/s/ RISA J. LAVIZZO-MOUREY Director July 24, 1995
- -------------------------------------------
Risa J. Lavizzo-Mourey
/s/ LOUIS W. MENK Director July 24, 1995
- -------------------------------------------
Louis W. Menk
/s/ MARILYN R. SEYMANN Director July 24, 1995
- -------------------------------------------
Marilyn R. Seymann
</TABLE>
<PAGE> 11
INDEX TO EXHIBITS
4.1* Pharmacy Management Services, Inc. 1990 Incentive and Non-statutory
Stock Option Plan, dated December 23, 1989, assumed by Beverly
Enterprises, Inc.
4.2* Pharmacy Management Services, Inc. Amendment to 1990 Incentive and
Non-statutory Stock Option Plan, dated December 5, 1991, assumed by
Beverly Enterprises, Inc.
4.3* Pharmacy Management Services, Inc. Second Amendment to 1990 Incentive
and Non-statutory Stock Option Plan, dated June 4, 1993, assumed by
Beverly Enterprises, Inc.
4.4* Insta-Care Holdings, Inc. First Employees Stock Option Plan assumed by
Beverly Enterprises, Inc.
4.5* Assumption Agreement by and between Beverly Enterprises, Inc. and
Insta-Care Holdings, Inc. dated as of November 15, 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
PHARMACY MANAGEMENT SERVICES, INC.
1990 INCENTIVE AND NON-STATUTORY
STOCK OPTION PLAN
SECTION 1. PURPOSE
This 1990 Incentive and Non-Statutory Stock Option Plan (the "Plan")
is intended as a performance incentive for officers and employees of PHARMACY
MANAGEMENT SERVICES, INC., a Florida corporation (the "Company") or its
Subsidiaries (as hereinafter defined) and for certain other individuals
providing services to or acting as directors of the Company or its
Subsidiaries, to enable the persons to whom options are granted (an "Optionee"
or "Optionees") to acquire or increase a proprietary interest in the success of
the Company. The Company intends that this purpose will be effected by the
granting of incentive stock options ("Incentive Options") as defined in Section
422A(b) of the Internal Revenue Code of 1986 (the "Code") and other stock
options ("Non-statutory Options") under the Plan. The term "Subsidiaries" means
any corporations in which stock possessing 50% or more of the total combined
voting power of all classes of stock is owned directly or indirectly by the
Company.
SECTION 2. OPTIONS TO BE GRANTED AND ADMINISTRATION
2.1 Options to the Granted. Options granted under the Plan may be
either Incentive Options or Non-statutory Options.
2.2 Administration by the Board. This Plan shall be administered
by the Board of Directors of the Company (the "Board"). The Board shall have
full and final authority to operate, manage and administer the Plan on behalf
of the Company. This authority includes, but is not limited to: (i) the power
to grant options conditionally or unconditionally; (ii) the power to prescribe
the form or forms of the instruments evidencing options granted under this
Plan; (iii) the power to interpret the Plan; (iv) the power to provide
regulations for the operation of the incentive features of the Plan, and
otherwise to prescribe regulations for interpretation, management and
administration of the Plan; (v) the power to delegate responsibility for Plan
operation, management and administration on such terms, consistent with the
Plan, as the Board may establish; (vi) the power to delegate to other persons
the responsibility for performing ministerial acts in furtherance of the Plan's
purpose; and (vii) the power to engage the services of persons or organizations
in furtherance of the Plan's purpose, including but not limited to, banks,
insurance companies, brokerage firms and consultants.
In addition, as to each option, the Board shall have full and final
authority in its discretion: (i) to determine the number of shares subject to
each option; (ii) to determine the time or times at which options will be
granted; (iii) to determine the option price for the shares subject to each
option, which price shall be subject to the applicable requirements, if any, of
Section 10(d) hereof; and (iv) to determine the time or times when each option
shall become exercisable and the duration of the exercise period, which shall
not exceed the limitations specified in Section 10(a).
2.3 Appointment and Proceedings of Committee. The Board may
appoint a Stock Option Committee (the "Committee") which shall consist of at
least three members of the Board. The Board may from time to time appoint
members of the Committee in substitution for or in addition to members
previously appointed, and may fill vacancies, however caused, in the Committee.
The Committee shall select one of its members as its chairman and shall hold
its meetings at such times and places as it shall deem advisable. A majority of
its members shall constitute a quorum, and all
<PAGE> 2
actions of the Committee shall be taken by a majority of its members. Any
action may be taken by a written instrument signed by all of the members, and
any action so taken shall be as fully effective as if it had been taken by a
vote of a majority of the members at a meeting duly called and held.
4. Powers of Committee. Subject to the provisions of this Plan
and the approval of the Board, the Committee shall have the power to make
recommendations to the Board as to whom options should be granted, the number
of shares to be covered by each option, the time or times of option grants, and
the terms and conditions of each option. In addition, the Committee shall have
authority to interpret the Plan, to prescribe, amend and rescind rules and
regulations relating to the Plan, and to exercise the administrative and
ministerial powers of the Board with regard to aspects of the Plan other than
the granting of options. The interpretation and construction by the Committee
of any provisions of the Plan or of any option granted hereunder and the
exercise of any power delegated to it hereunder shall be final, unless
otherwise determined by the Board. No member of the Board or the Committee
shall be liable for any action or determination made in good faith with respect
to the Plan or any option granted hereunder.
STOCK
5. Shares Subject to Plans. The stock subject to the options
granted under the Plan shall be shares of the Company's authorized but unissued
common stock, par value $.01 per share ("Common Stock"). The total number of
shares that may be issued pursuant to options granted under the Plan shall not
exceed an aggregate of 400,000 shares of Common Stock.
6. Lapsed or Unexercised Options. Whenever any outstanding option
under the Plan expires, is cancelled or is otherwise terminated (other than by
exercise), the shares of Common Stock allocable to the unexercised portion of
such option shall be restored to the Plan and be available for the grant of
other options under the Plan.
ELIGIBILITY
7. Eligible Optionees. Incentive options may be granted only to
officers and other employees of the Company or its Subsidiaries, including
members of the Board who are also employees of the Company or a Subsidiary.
Non-statutory options may be granted to officers or other employees of the
Company or its Subsidiaries, to members of the Board or the board of directors
of any Subsidiary whether or not employees of the Company or such Subsidiary,
and to certain other individuals providing services to the Company or its
Subsidiaries.
8. Limitations on 10% Stockholders. No Incentive Option shall be
granted to an individual who, at the time the Incentive Option is granted, owns
(including ownership attributed pursuant to Section 425(d) of the Code) more
than 10% of the total combined voting power of all classes of stock of the
Company or any parent or Subsidiary of the Company (a "greater-than-10%
stockholder"), unless such Incentive Option provides that (i) the purchase
price per share shall not be less than 110% of the fair market value of the
Common Stock at the time such Incentive Option is granted, and (ii) that such
Incentive Option shall not be exercisable to any extent after the expiration of
five years from the date it is granted.
9. Limitation on Exercisable Options. The aggregate fair market
value (determined at the time the Incentive Option is granted) of the Common
Stock with respect to which Incentive Options are exercisable for the first
time by any person during any calendar year under the Plan and
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<PAGE> 3
under any other option plan of the Company (or a parent or subsidiary as
defined in Section 425 of the Code) shall not exceed $100,000. Any option
granted in excess of the foregoing limitation shall be specifically designated
as being a Non-statutory Option.
TERMS OF THE OPTION AGREEMENTS
10. Mandatory Terms. Each option agreement shall contain such
provisions as the Board or the Committee shall from time to time deem
appropriate, and shall include provisions relating to the method of exercise,
payment of exercise price, adjustments on changes in the Company's
capitalization and the effect of a merger, consolidation, liquidation, sale or
other disposition of or involving the Company. Option agreements need not be
identical, but each option agreement by appropriate language shall include the
substance of all of the following provisions:
(a) Expiration. Notwithstanding any other provision of
the Plan or of any option agreement, each option shall expire on the date
specified in the option agreement, which date shall not be later than the tenth
anniversary of the date on which the option was granted (fifth anniversary in
the case of a greater-than-11% stockholder).
(b) Exercise. Each option shall be deemed exercised when
(i) the Company has received written notice of such exercise in accordance with
the terms of the option, (ii) full payment of the aggregate option price of the
shares of Common Stock as to which the option is exercised has been made, and
(iii) arrangements that are satisfactory to the Board or the Committee in its
sole discretion have been made for the optionee's payment to the Company of the
amount that is necessary for the Company or Subsidiary employing the optionee
to withhold in accordance with applicable Federal or state tax withholding
requirements. Unless further limited by the Board or the Committee in any
option, the option price of any shares of Common Stock purchased shall be paid
in cash, by certified or official bank check, by money order, with shares of
Common Stock or by a combination of the above; provided further, however, that
the Board or the Committee in its sole discretion may accept a personal check
in full or partial payment of any shares of Common Stock. If the exercise price
is paid in whole or in part with shares, the value of the shares surrendered
shall be their fair market value on the date the option is exercised as
determined in accordance with Section 5.1(d) hereof. No optionee shall be
deemed to be a holder of any shares of Common Stock subject to an option unless
and until a stock certificate or certificates for such shares of Common Stock
are issued to such person(s) under the terms of the Plan. No adjustment shall
be made for dividends (ordinary or extraordinary, whether in cash, securities
or other property) or distributions or other rights for which the record date
is prior to the date such stock certificate is issued, except as expressly
provided in Section 6 hereof. No optionee shall be deemed to be a holder of any
shares of Common Stock subject to an option unless and until a stock
certificate or certificates for such shares of Common Stock are issued to such
person(s) under the terms of the Plan.
(c) Events Causing Immediate Exercise. Unless otherwise
provided in any option, each outstanding option shall become immediately fully
exercisable.
(i) if there occurs any transaction (which shall
include a series of transactions occurring within 60 days or occurring pursuant
to a plan), that has the result that stockholders of the Company immediately
before such transaction cease to own at least 51 percent of the voting stock of
the Company or of any entity that results from the participation of the Company
in a reorganization, consolidation, merger, liquidation or any other form of
corporate transaction;
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<PAGE> 4
(ii) if the stockholders of the Company shall
approve a plan of merger, consolidation, reorganization, liquidation or
dissolution in which the Company does not survive (unless the approved merger,
consolidation, reorganization, liquidation or dissolution is subsequently
abandoned);or
(iii) if the stockholders of the Company shall
approve a plan for the sale, lease, exchange or other disposition of all or
substantially all the property and assets of the Company (unless such plan is
subsequently abandoned).
The Board or the Committee may in its sole discretion accelerate the
date on which any option may be exercised and may accelerate the vesting of any
shares of Common Stock subject to any option or previously acquired by the
exercise of any option.
(d) Purchase Price. The purchase price per share of the
Common Stock under each incentive Option shall be not less than the fair market
value of the Common Stock on the date the option is granted (110% of the fair
market value in the case of a greater-than-10% stockholder). The price at which
shares may be purchased pursuant to Non-statutory Options shall be specified
by the Board at the time the option is granted, and may be less than, equal to
or greater than the fair market value of the shares of Common Stock on the date
such Non-statutory Option is granted, but shall not be less than the par value
of shares of Common Stock.
For the purpose of the Plan, the "fair market value" per share of
Common Stock on any date of reference shall be the Closing Price of the Common
Stock of the Company which is referred to in either clause (i), (ii) or (iii)
below, on the business day immediately preceding such date, or if not referred
to in either clause (i), (ii) or (iii) below, "fair market value" per share of
Common Stock shall be such value as shall be determined by the Board or the
Committee, unless the Board or the Committee in its sole discretion shall
determine otherwise in a fair and uniform manner. For this purpose, the Closing
Price of the Common Stock on any business day shall be (i) if the Common Stock
is listed or admitted for trading on any United States national securities
exchange, or if actual transactions are otherwise reported on a consolidated
transaction reporting system, the last reported sale price of Common Stock on
such exchange or reporting system, as reported in any newspaper of general
circulation, (ii) if the Common Stock is quoted on the National Association of
Securities Dealers Automated Quotations System ("NASDAQ"), or any similar
system of automated dissemination of quotations of securities prices in common
use, the mean between the closing high bid and low asked quotations for such
day of Common Stock on such system, or (iii) if neither clause (i) or (ii) is
applicable, the mean between the high bid and low asked quotations for the
Common Stock as reported by the National Quotation Bureau, Incorporated if at
least two securities dealers have inserted both bid and asked quotations for
Common Stock on at least five of the ten preceding days.
(e) Transferability of Options. Incentive options granted
under the Plan and the rights and privileges conferred thereby may not be
transferred, assigned, pledged or hypothecated in any manner (whether by
operation of law or otherwise) other than by will or by applicable laws of
descent and distribution, and shall not be subject to execution, attachment or
similar process. Upon any attempt so to transfer, assign, pledge, hypothecate
or otherwise dispose of any Incentive Option under the Plan or any right or
privilege conferred hereby, contrary to the provisions of the Plan, or upon the
sale or levy or any attachment or similar process upon the rights and
privileges conferred hereby, such option shall thereupon terminate and become
null and void. Non-statutory Options shall be transferable to the extent
provided in the option agreements under which they are granted.
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<PAGE> 5
(f) Termination of Employment or Death of Optionee. Except
as may be otherwise expressly provided in the terms and conditions of the
option granted to an Optionee, options granted hereunder shall terminate on the
earlier to occur of:
(i) the date of expiration thereof; or
(ii) other than the case of death of the Optionee
or disability of the Optionee within the meaning of Section 22(e)(3) of the
Code ("disability"), (A) 90 days after termination of the employment between
the Company and the Optionee in the case of an Incentive Option, and (B) 90
days after termination of the employment or other relationship between the
Company and the Optionee, unless such termination provision is waived by
resolution adopted by the Board within 30 days of the termination of such
relationship, in the case of a Non-statutory Option.
An employment relationship between the Company and the Optionee shall
be deemed to exist during any period during which the Optionee is employed by
the Company or by any Subsidiary. Whether authorized leave of absence or
absence on military government service shall constitute termination of the
employment relationship between the Company and the Optionee shall be
determined by the Board at the time thereof.
Except as may otherwise be expressly provided in the terms and
conditions of the option granted to an Optionee, in the event of the death of
an Optionee while in an employment or other relationship with the Company and
before the date of expiration of such option, such option shall terminate on
the earlier of such date of expiration or 180 days following the date of such
death. After the death of the Optionee, his executors, administrators or any
person or persons to whom his option may be transferred by will or by laws of
descent and distribution, shall have the right, at any time prior to such time
termination, to exercise the option to the extent the Optionee was entitled to
exercise such option immediately prior to his death.
Except as may otherwise be expressly provided in the terms and
conditions of the option granted to an Optionee, if an Optionee's employment or
other relationship with the Company terminates because of a disability, the
Optionee's option shall terminate on the earlier of the date of expiration
thereof or 12 months following the termination of such relationship; and unless
by its terms it sooner terminates and expires during such 12-month period, the
Optionee may exercise that portion of his or her option which is exercisable at
the time of termination of such relationship.
(g) Rights of Optionees. No Optionee shall be deemed for
any purpose to be the owner of any shares of Common Stock subject to any option
unless and until (i) the option shall have been exercised pursuant to the terms
thereof, (ii) the Company shall have issued and delivered the shares of the
Optionee, and (iii) the Optionee's name shall have been entered as a
stockholder of record on the books of the Company. Thereupon, the Optionee
shall have full voting, dividend and other ownership rights with respect to
such shares of Common Stock.
11. Certain Optional Terms. The Board may in its discretion
provide, upon the grant of any option hereunder, that the Company shall have an
option to repurchase all or any number of shares purchased upon exercise of
such option. The repurchase price per share payable by the Company shall be
such amount or be determined by such formula as is fixed by the Board at the
time the option for the shares subject to repurchase was granted. The Board may
also provide that the Company shall have a right of first refusal with respect
to the transfer or proposed transfer of any shares purchased upon exercise of
an option granted hereunder. In the event the Board shall grant
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<PAGE> 6
options subject to the Company's repurchase rights or rights of first refusal,
the certificate or certificates representing the shares purchased pursuant to
such option shall carry a legend satisfactory to counsel for the Company
referring to the Company's repurchase option.
ADJUSTMENT OF SHARES OF COMMON STOCK
12. Increase or Decrease of Outstanding Shares. If at any time
while the Plan is in effect or unexercised options are outstanding, there shall
be any increase or decrease in the number of issued and outstanding shares of
Common Stock through the declaration of a stock dividend or through any
recapitalization resulting in a stock split-up, combination or exchange of
shares of Common Stock, then and in such event (i) appropriate adjustment shall
be made in the maximum number of shares of Common Stock available for grant
under the Plan, so that the same percentage of the Company's issued and
outstanding shares of Common Stock shall continue to be subject to being so
optionee, and (ii) appropriate adjustment shall be made in the number of shares
and the exercise price per share of Common Stock thereof then subject to any
outstanding option, so that the same percentage of the Company's issued and
outstanding shares of Common Stock shall remain subject to purchase at the same
aggregate exercise price.
13. Discretionary Adjustment. Subject to the specific terms of any
option, the Board or the Committee may change the terms of options outstanding
under this Plan, with respect to the option price or the number of shares of
Common Stock subject to the options, or both, when, in the sole discretion of
the Board or the Committee, such adjustments become appropriate by reason of a
corporate transaction described in Section 5.1(c) hereof.
14. Conversion of Shares. Except as otherwise expressly provided
herein, the issuance by the Company of shares of its capital stock of any
class, or securities convertible into shares of capital stock of any class,
either in connection with direct sale or upon the exercise of rights or
warrants to subscribe therefor, or upon conversion of shares or obligations of
the Company convertible into such shares or other securities, shall not affect,
and no adjustment by reason thereof shall be made with respect to the number of
or exercise price of shares of Common Stock then subject to outstanding options
granted under the Plan.
15. General. Without limiting the generality of the foregoing, the
existence of outstanding options granted under the Plan shall not affect in any
manner the right or power of the Company to make, authorize or consummate (i)
any or all adjustments, recapitalizations, reorganizations or other changes in
the Company's capital structure or its business; (ii) any merger or
consolidation of the Company, (iii) any issue by the Company of debt
securities, or preferred or preference stock that would rank above the shares
subject to outstanding options; (iv) the dissolution or liquidation of the
Company; (v) any sale, transfer or assignment of all or any part of the assets
or business of the Company; or (vi) any other corporate act or proceeding,
whether of a similar character or otherwise.
AMENDMENT OF THE PLAN
The Board may amend the Plan at any time, and from time to time,
subject to the limitation that no amendment shall be effective unless approved
by the stockholders of the Company in accordance with applicable law and
regulations at an annual or special meeting held within 12 months before or
after the special meeting held within 12 months before or after the date of
adoption of such amendment, in any instance in which such amendment would: (i)
increase the number of shares of
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<PAGE> 7
Common Stock as to which options may be granted under the Plan; of (ii) change
in substance the provisions of Section 4 hereof relating to eligibility to
participate in the Plan.
Rights and obligations under any option granted before any amendment
of the Plan shall not be altered or impaired by such amendment, except with the
consent of the Optionee.
NON-EXCLUSIVITY OF THE PLAN
Neither the adoption of the Plan by the Board nor the approval of the
Plan by the stockholders of the Company shall be construed as creating any
limitations on the power of the Board to adopt such other incentive
arrangements as it may deem desirable, including without limitation the
granting the stock options otherwise than under the Plan, and such arrangements
may be either applicable generally or only in specific cases.
GOVERNMENT AND OTHER REGULATIONS; GOVERNING LAW
The obligation of the Company to sell and delivery shares of Common
Stock with respect to options granted under the Plan shall be subject to all
applicable laws, rules and regulations, including all applicable federal and
state securities laws, and the obtaining of all such approvals by government
agencies as may be deemed necessary or appropriate by the Board or the
Committee. All shares sold under the Plan shall bear appropriate legends. The
Plan shall be governed by and construed in accordance with the laws of the
State of Florida.
EFFECTIVE DATE OF PLAN
The effective date of the Plan is December 23, 1989, the date on which
it was approved by the Board and by the stockholders of the Company. No option
may be granted under the Plan after the tenth anniversary of such effective
date.
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EXHIBIT 4.2
AMENDMENT
TO
PHARMACY MANAGEMENT SERVICES, INC.
1990 INCENTIVE AND NON-STATUTORY
STOCK OPTION PLAN
At the Annual Meeting of Shareholders held on December 5, 1991, the
shareholders approved an amendment to the Company's 1990 Incentive and
Non-Statutory Stock Option Plan (the "Plan") as follows: The total number of
shares covered by the Plan is hereby increased from 400,000 to 800,000 shares.
All other provisions of the Plan remain the same.
Dated: December 5, 1991
<PAGE> 1
EXHIBIT 4.3
PHARMACY MANAGEMENT SERVICES, INC.
SECOND AMENDMENT To 1990 INCENTIVE AND
NON-STATUTORY STOCK OPTION PLAN
June 4, 1993
This Second Amendment to 1990 Incentive and Non-Statutory Stock Option
Plan (this "Amendment") is executed by an authorized officer of Pharmacy
Management Services, Inc. (the "Company") to record the following amendments to
the Company's 1990 Incentive and Non-Statutory Stock Option Plan (the "Plan")
that were approved on June 4, 1993, by the Board of Directors of the Company:
1. INCORPORATION BY REFERENCE. Unless otherwise expressly defined
in this Amendment, all capitalized terms used in this Amendment have the
respective meanings ascribed to them in the Plan, and the definitions of those
terms in the Plan are incorporated by reference in this Amendment.
2. AMENDMENT OF SECTION 1. Section 1 of the Plan is amended to
substitute "Section 422(b)" for "Section 422A(b)" where it appears in the
second sentence of that section.
3. AMENDMENT REGARDING PLAN ADMINISTRATION. The Plan is amended
to delete Sections 2.2, 2.3, and 4 of the Plan and to add the following in
substitution therefor as sections 2.2 through 2.5:
2.2 ADMINISTRATIVE COMMITTEE. This Plan will be
administered by an administrative committee (the "Committee")
consisting of two or more members of the Board of Directors. The
members of the Committee will serve for unspecified terms at the
discretion of the Board of Directors of the Company (the "Board). The
Board may remove a member of the Committee (as such) at any time, with
or without cause, and has the exclusive power to appoint a successor
to fill any vacancy on the Committee. The Board shall not appoint to
the Committee any director who, during the one year before his
appointment, was awarded or granted any equity securities of the
Company pursuant to the Plan or any other plan of the Company or any
of its affiliates, except Pursuant to (a) a formula plan meeting the
conditions of Rule 16b-3(c)(2)(ii) of the Securities and Exchange
Commission (the "SEC"), or (b) an ongoing securities acquisition plan
meeting the conditions of SEC Rule 16b-3(d)(2)(i), or (c) an election
to receive all or a portion of an annual retainer fee in an equivalent
amount of equity securities of the Company. A member of the Committee
is ineligible to receive a grant of an option under this Plan or any
other plan of the Company or any of its affiliates while serving as a
member of the Committee.
2.3 POWER AND AUTHORITY. Except as otherwise provided in
the last sentence of this section, the Committee has the exclusive
power and authority, and the sole and absolute discretion, to do the
following: (a) to construe and interpret the Plan and amend,
prescribe, and rescind rules and regulations relating to this Plan;
(b) to select the officers, directors, and employees who will be
granted options under the Plan; (c)
<PAGE> 2
to grant options under the Plan, either conditionally or
unconditionally, and designate whether they constitute incentive or
non-statutory options; (d) to determine when options will be granted
under the Plan: (e) to determine the number of shares subject to each
option; (f) to determine the terms and conditions of each option,
including the exercise price of each option (which must comply with
Section 10(d) of this Plan), the time or times when the option will
become exercisable and the duration of the exercise Period (which must
not exceed the limitations specified in Section 10(a) of this Plan),
the conditions under which the option will vest and become
exercisable, the methods of exercising options, and the methods for
payment of the exercise price and any applicable tax withholding; (g)
to approve and recommend amendments to the Plan for adoption by the
Board and (if necessary or desirable) the shareholders of the Company;
(h) to prescribe the form or forms of agreement or instrument
evidencing options granted under the Plan; (i) to engage the services
of, any agent, expert, or professional advisor in furtherance of the
Plan's purpose; and (j) to take all other actions, and make all other
determinations, that are advisable or necessary for the Plan's
administration. In the absence of fraud or mistake, any action or
determination by the Committee will be final and binding on all
persons.
2.4 APPROVAL PROCEDURES. All actions and determinations
of the Committee must be unanimous. Every action or determination of
the Committee that is expressly required or permitted under the Plan
will be valid only if undertaken pursuant to a vote, consent, or
approval that is evidenced by either (a) a resolution adopted by the
affirmative vote of all the members of the Committee at a meeting, or
(b) a written consent signed by all the members of the Committee. The
members of the Committee may execute a written consent in
counterparts. Each executed counterpart will constitute an original
document, and all of them, together, will constitute the same
document. A properly executed written consent will be effective as of
the date specified in it or, if an effective date is not so specified,
on the date when it is signed by the last person necessary to
validate it, and will be valid if it is executed before, after or
concurrently with the action or determination to which it applies.
2.5 INDEMNIFICATION. A member of the Committee is not
liable for, and the Company releases each member of the Committee from
all liability for, any punitive, incidental, consequential, or other
damages or obligation to the Company or any employee, Plan
participant, or other person for any act or omission by the member of
the Committee (including his own negligence), or by any agent,
employee, professional advisor, or other expert used or engaged by the
Committee, if the act or omission does not constitute gross negligence
or willful misconduct and is done or omitted in good faith, on behalf
of the Company, and in a manner reasonably believed by him to be both
in the best interests of the Company and within the scope of the
authority granted to the Committee by this Plan. The Company shall
indemnify each member of the Committee, and shall reimburse him from
the Company's assets, for any cost, loss, damage, expense, or
liability (including fines, amounts
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<PAGE> 3
paid in settlement, and legal fees and expenses) incurred by him by
reason of any act or omission for which he is released from liability
pursuant to this section.
4. AMENDMENT OF SECTION 8. Section 8 of the Plan is amended to
substitute the phrase "Section 424(d) of the Code" for the phrase "Section
425(a) of the Code" where it appears, to reflect an amendment of the Code since
the adoption of the Plan.
5. AMENDMENT OF SECTION 10. Section 10 of the Plan is amended as
follows:
(a) The words "the Board or" in the first sentence of the
section are deleted;
(b) The words "or withheld" are added after the word
"surrendered" in the third sentence of subsection 10(b);
(c) The phrase "Section 10(d)" is substituted for the
phrase "Section 5.1(d)" where it appears in the third sentence of
subsection 10(b);
(d) The following is inserted after the end of the third
sentence of subsection 10(b):
If the optionee is a director or officer of the Company,
payment of the exercise price of an option or of any tax
withholding required in connection with the exercise of the
option by electing for the Company to withhold shares issuable
pursuant to the exercise of the option must be made either (A)
pursuant to an irrevocable written election made by the
optionee at least six months in advance of the exercise date,
or (B) pursuant to an election that is effective during the
period beginning on the third business day following the date
when the Company releases for publication a regularly
published annual or quarterly summary statement of sales and
earnings and ending on the 12th business day after that date;
(e) The phrase "Section 12" is substituted for the phrase
"Section 6" where it appears in the fifth sentence of subsection
10(b);
(f) The word "Incentive" is deleted from the first and
second sentences of subsection 10(e);
(g) The last sentence of subsection 10(e) is deleted; and
(h) The following provision is added as subsection (h):
(h) Holding Period. If the optionee is a director
or officer of the Company, the optionee shall not dispose of
the option (other than upon its exercise) or any stock
acquired pursuant to exercise of the option for six months
following the date of grant of the option.
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<PAGE> 4
6. AMENDMENT OF PROVISIONS REGARDING AMENDMENT OF PLAN. The first
sentence under the heading "Amendment of the Plan" is amended to substitute
"Sections 7-9" for "Section 4" where it appears. In addition, the sentence is
amended to add the following clauses to the end of it:
; (iii) materially increase the benefits accruing to participants
under the Plan, or (iv) materially modify the requirements as to
eligibility for participation in the Plan.
7. AMENDMENT REGARDING RULE 16b-3. The following savings clause
is added to the end of the paragraph under the heading "Government and Other
Regulations; Governing Law":
With respect to persons subject to section 16 of the Securities
Exchange Act of 1934, as amended (the Exchange Act), transactions
under this Plan are intended to comply with all applicable conditions
of SEC Rule 16b-3 or any rule promulgated by the SEC under the
Exchange Act in substitution for that rule. To the extent any
provision of the Plan or action by the Committee fails to so comply,
it will be null and void, to the extent permitted by law and
considered advisable by the Committee.
8. CONTINUED EFFECTIVENESS; EFFECTIVE DATE. Except as amended by
this Amendment, the Plan continues in full force and effect. This Amendment
will become effective when adopted by the Board and is applicable to all
options granted in the future under the Plan and to each outstanding option
under the Plan that is held by a director or officer of the Company.
PHARMACY MANAGEMENT
SERVICES, INC.
WITNESSES: By: /s/ CECIL S. HARRELL
Cecil S. Harrell
/s/ DONNA M. PEREZ Chairman of the Board and
/s/ D. R. MILL Chief Executive Officer
(As to Mr. Harrell)
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<PAGE> 1
EXHIBIT 4.4
INSTA-CARE HOLDINGS, INC.
FIRST EMPLOYEES STOCK OPTION PLAN
(Effective February 15, 1990)
1. Purpose. The purpose of this Plan is to further the best
interests of Insta-Care Holdings, Inc. and its subsidiaries (hereinafter called
"Corporation") by encouraging its key employees and non-employee directors, as
is more fully set forth in Paragraph 5 of this Plan, to continue association
with the Corporation and by providing additional incentive for unusual industry
and efficiency through offering an opportunity to acquire a proprietary stake
in the Corporation and its future growth. It is the view of the Corporation
that this goal may best be achieved by granting stock options to eligible key
employees of the Corporation and its subsidiaries (hereinafter called
"Employees") and to non-employee directors of the Corporation (hereinafter
called "Non-Employee Directors") from time to time.
The stock options to be granted pursuant to this Plan (hereinafter
called "Options") may be Incentive Stock Options ("ISOs") as provided for in
Section 422A of the Internal Revenue Code of 1954, as amended (the "Code") or
may be Non- Incentive Stock Options ("Non-ISOs"), All Options which are
intended to qualify as ISOs shall be clearly identified as such. The terms and
conditions of ISOs shall comply with the provisions of this Plan which have
been inserted herein to reflect the requirements of the aforementioned Section
422A of the Code. All ISOs granted
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<PAGE> 2
pursuant to this Plan, as well as the provisions of this Plan which pertain to
ISOs, shall be construed and interpreted in a manner consistent with the
requirements of the aforementioned Section 422A of the Code and the regulations
thereunder, and any provisions of this Plan which would be in conflict with the
requirements of Section 422A shall be inapplicable to such Options. The
Non-ISOs will not be subject to such conditions and limitations and may be
granted in annual amounts which may be in excess of or less than the
permissible amounts of ISOs. All Non-ISOs shall be clearly identified as
Non-ISOs.
2. Option Shares. The shares of the Corporation's stock which may
be made subject to options granted pursuant to this Plan shall be no more than
a total of 300,000 shares of the authorized but unissued $0.10 par value Common
Stock of the Corporation (hereinafter called "Common Stock"). Any of such
shares of Common Stock which may remain unissued at the termination of this
Plan shall cease to be reserved for the purpose of the Plan, but until
termination of the Plan, the Corporation shall at all times reserve a
sufficient number of shares of Common Stock to meet the requirements of the
Plan.
3. Effective Date of Plan. This Plan shall take effect upon the
adoption by the Board of Directors of the Corporation ("Board of Directors"),
provided that it is approved by the shareholders of the Corporation, as
provided in Paragraph 17, within twelve (12) months after the date of its
adoption by the Board.
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<PAGE> 3
4. Administration of the Plan. The Plan shall be administered by
the Board of Directors or by a committee designated by the Board of Directors
to administer the Plan (hereinafter called the "Committee"). The Board of
Directors may authorize the Committee to exercise any and all of the powers and
functions of the Board pursuant to the Plan. The interpretation and
construction by the Committee or the Board of Directors of any provisions of
the Plan or of any options granted under it shall be final and conclusive. No
member of the Committee or of the Board of Directors shall be liable for any
action or determination made in good faith with respect to the Plan or any
options granted under it.
5. Eligibility. The persons eligible to participate in the Plan
as recipients of Options shall include only the employees of the Corporation or
of any subsidiary of the Corporation who hold executive or other responsible
positions in the management of the affairs of the Corporation and of its
subsidiaries (as such term is defined in Section 425 of the Code), including
but not limited to officers, general managers, department heads, division
heads, and supervisors. The word "employees" does not include directors of the
Corporation as such, but does include directors of the Corporation who are
otherwise employed by the Corporation and who qualify. Notwithstanding the
preceding sentence, directors of the Corporation who are not otherwise employed
by the Corporation and such other persons as may be designated from time to
time by the Board shall be eligible for grants of Non-ISOs.
3
<PAGE> 4
6. Grant of Options. The Corporation, by action of the Board of
Directors or of the Committee and subject to the provisions of this Plan, may,
from time to time, grant Options to purchase shares of Common Stock to such
eligible persons as may be selected by the Board of Directors or the Committee
and for such number or numbers of shares of Common Stock as may be determined
by the Board of Directors or the Committee. Each grant of an Option pursuant to
this Plan shall be made in writing and upon such terms and conditions as may be
determined by the Board of Directors or by the Committee at the time of grant,
subject to the provisions and limitations set forth in this Plan. The grant of
such Option shall be evidenced by written notice executed by the Chairman of
the Board of the Corporation, except that, in the event that the Chairman of
the Board of the Corporation is the recipient of the Option, the notice of
grant of the Option shall be executed by the Secretary of the Corporation. The
aggregate fair market value (determined as of the time an Option is granted) of
the Common Stock for which an Employee is granted ISOs in any calendar year
under all plans of the Corporation and its subsidiaries shall not exceed
$100,000 plus any unused limit carryover to such year permitted ISOs under
Section 422A of the Code and the regulations thereunder.
7. Option Price. The purchase price for each share of Common
Stock placed under Option pursuant to this Plan (hereinafter called "Option
Price") shall be determined by the Board of Directors or by the Committee, but,
in the case of grants of ISOs. shall in no event be less than the fair market
4
<PAGE> 5
value of the share of Common Stock on the date the ISO is granted. The fair
market value of the Common Stock per share shall be determined by a method
consistent with the provisions of the Code and the regulations thereunder.
8. Duration of Options. The period for which each Option granted
hereunder shall be effective shall commence upon the date of the grant of the
Option and shall continue until such Option shall be terminated according to
its terms or as hereinafter provided, but, in no event, shall such period
exceed ten (10) years from the date of grant of the Option. In addition to and
in limitation of the above, the Option Period of any Option granted pursuant to
this Plan shall terminate upon the earliest of the following dates:
a. On the date upon which the Employee holding such
Option (hereinafter called the "Optionee") ceases to be an employee of the
Corporation or its subsidiaries unless he ceases to be an employee by reason of
death or in a manner described in c. below.
b. On the date upon which the Non-Employee Director
holding such Option ceases to be a director of the Corporation or its
subsidiaries unless the Board of Directors otherwise determines.
c. Three (3) months after the Optionee ceases to be an
employee by reason of retirement pursuant to the Corporation's Profit Sharing
Plan (the "Profit Sharing Plan") at or after the earliest voluntary retirement
age provided for in such Profit
5
<PAGE> 6
Sharing Plan or retirement at an earlier age with the consent of the Board of
Directors.
d. Twelve (12) months after the death of the Optionee if
the Optionee dies while an employee of the Corporation or its subsidiaries.
e. At the time of the commission of an intentional act
by the Optionee determined by the Board of Directors or the Committee to be
contrary to the interests of the Corporation or any of its subsidiaries.
f. As a result of a change in the position of employment
held by the Optionee with the Corporation or one of its subsidiaries, the
Option Period for the exercise of all of the shares not exercisable upon the
date of the change in the position shall terminate unless: (i) within thirty
(30) days after the Optionee is notified of the change of position, he shall
submit to the Board of Directors or the Committee a written request for a
determination as to whether the responsibilities of the new position to which
the Optionee is being assigned are equal to or greater than the
responsibilities of the position held by the Optionee at the time the Option
was granted; and (ii) the Board of Directors or the Committee shall thereafter
determine that the Option Period shall remain unaltered with respect to all, or
a portion, of the shares covered by such option which are not then exercisable.
It is the intention of this provision that the Board of Directors or the
Committee shall evaluate the relative responsibilities of the two (2) positions
of the Optionee and on that basis shall determine to what extent
6
<PAGE> 7
it is appropriate that the Option remain exercisable in the future with respect
to shares not exercisable on the date of the change of position. Recognizing
that such a determination may involve subjective judgments, the Board of
Directors or the Committee shall have sole and complete authority to make the
determination and its determination shall be conclusive and binding on the
Corporation and the Optionee. It is the responsibility of the Optionee to
obtain said written determination by the Board of Directors or the Committee
and no communication or determination by any officer or employee other than the
Board or Committee shall be binding upon the Corporation.
Nothing contained herein shall limit whatever right the Corporation or
its subsidiaries might otherwise have to terminate the employment of any
Employee.
Successive Options may be granted to the same Employee or Non-Employee
Director whether or not the Option or Options first granted to such Employee or
Non-Employee Director remain unexercised; provided, however, that the exercise
of an ISO shall be limited as set forth in Paragraph 18 hereof.
9. Non-Transferability. No Option granted pursuant to this Plan
may be transferred by the Optionee or Non-Employee Director unless the grant
of the Option so provides and then only by will or the laws of descent and
distribution, and, further, during the lifetime of the Optionee or Non-Employee
Director, the Option may be exercised only by him.
10. Termination of the Plan. This Plan shall terminate upon the
close of business on February 15, 2000 unless it shall
7
<PAGE> 8
have sooner terminated by there having been granted and fully exercised Options
covering the entire 300,000 shares of Common Stock subject to this Plan.
11. Termination of Employment. The employment of an optionee shall
not be deemed to have terminated if the Optionee is an employee of the
Corporation or one of its subsidiaries who is absent upon a bona fide leave of
absence or who is transferred to and becomes an employee of a subsidiary
corporation or if he is an employee of a subsidiary corporation who is
transferred to and becomes an employee of the Corporation or another subsidiary
of the Corporation; however, if a subsidiary corporation ceases to be a
subsidiary, all employees of such subsidiary not theretofore transferred to and
becoming employees of the Corporation or of another subsidiary of the
Corporation shall be deemed to have ceased to be employees within the meaning
of this Plan on the date such subsidiary ceases to be a subsidiary of the
Corporation. The provisions of this paragraph shall, however, be subject to the
provisions of Paragraph 14 hereof pertaining to the consequences of a merger or
consolidation of the Corporation and/or a subsidiary with any other
corporation. The provisions of this paragraph shall, however, be subject to the
provisions of Paragraph 8.f. hereof pertaining to the consequences of a change
in the Optionee's position.
12. Exercise of Options. An Option granted pursuant to this Plan
may be exercised only within the time limits prescribed by the Board in the
grant of the particular Option; provided that, in no event may any Option be
exercised more than ten (10)
8
<PAGE> 9
years from the date on which the Option is granted, as provided in Paragraph 8
hereof. Exercise shall be made by the giving of written notice to the
Corporation by the Optionee or Non-Employee Director. Such written notice shall
be deemed sufficient for this purpose only if delivered to the Corporation at
its principal office and only if such written notice states the number of
shares with respect to which the Option is being exercised and, further, states
the date, not more than ninety (90) days after the date of such notice, upon
which the shares of Common Stock shall be taken up and payment therefor shall
be made. The payments for shares of Common Stock taken up pursuant to exercise
of an option shall be made at the principal offices of the Corporation. Upon
the exercise of any option, in compliance with the provisions of this paragraph
and upon receipt by the Corporation of the payment for the Common Stock so
taken up together with the payment of the amount of any taxes required to be
collected or withheld as a result of the exercise of this Option, the
Corporation shall deliver or cause to be delivered to the Optionee or
Non-Employee Director so exercising his Option a certificate or certificates
for the number of shares of Common Stock with respect to which the Option is so
exercised and payment is so made. The shares of Common Stock shall be
registered in the name of the exercising Optionee or Non-Employee Director,
provided that, in no event, shall any shares of Common Stock of the Corporation
be issued pursuant to exercise of an Option until full payment therefor shall
have been made by cash or certified or cashier's check and not until the shares
have
9
<PAGE> 10
been issued shall the exercising Optionee or Non-Employee Director have any of
the rights of a shareholder. For purposes of this paragraph, the date of
issuance shall be the date upon which payment in full has been received by the
Corporation as provided herein.
Notwithstanding the above, payment shall be made either (i) in cash
(including certified or cashier's check) or (ii) at the discretion of the
Committee, by delivering shares of Common Stock owned by the Optionee or
Non-Employee Director or a combination of Common Stock and cash together with
an amount equal to any taxes required to be collected or withheld as a result
of the exercise of the option, The Common Stock delivered by the Optionee or
Non-Employee Director in accordance with (ii) above shall be properly endorsed
to the Corporation by the owner(s) thereof and the signature(s) thereon
guaranteed by a bank or member firm of the New York Stock Exchange. The fair
market value of the Common Stock so delivered shall be the fair market value of
the Stock as of the close of business on the date the option is exercised.
13. Requirements of Law. If any law, regulation of the Securities
and Exchange Commission, or any regulation of any other commission or agency
having jurisdiction shall require the Corporation or the exercising Optionee or
Non-Employee Director to take any action with respect to the shares of Common
Stock acquired by the exercise of an Option, then the date upon which the
Corporation shall issue or cause to be issued the certificate or certificates
for the shares of Common Stock shall be postponed
10
<PAGE> 11
until full compliance has been made with all such requirements of law or
regulation. Further, if requested by the Corporation, at or before the time of
the issuance of the shares with respect to which exercise of Option has been
made, the exercising Optionee or Non-Employee Director shall deliver to the
Corporation his written statement satisfactory in form and content to the
Corporation, that he intends to hold the shares, so acquired by him on exercise
of his Option, for investment and not with a view to resale or other
distribution thereof to the public in violation of the requirements of the
exemption contained in Section 4(2) of the Securities Act of 1933, as amended.
Moreover, in the event that the Corporation shall determine that, in compliance
with the Securities Act of 1933, as amended, or other applicable statutes or
regulations, it is necessary to register any of the shares of Common Stock with
respect to which an exercise of an Option has been made, or to qualify any such
shares for exemption from any of the requirements of the Securities Act of
1933, as amended, or any other applicable statute or regulation, no Options may
be exercised and no Option shares shall be issued to the exercising Optionee or
Non-Employee Director until the required action has been completed.
14. Adjustments. In the event of the declaration of any stock
dividend on the Common Stock or in the event of any reorganization, merger,
consolidation, acquisition, separation, recapitalization, split-up, combination
or exchange of shares of Common Stock or like adjustment, the number of shares
of Common Stock and the class of shares of Common Stock available pursuant
11
<PAGE> 12
to this Plan and the number and class of shares of Common Stock subject to any
Option granted pursuant to this Plan, and the Option prices, may be adjusted by
appropriate changes in this Plan and in any Options outstanding pursuant to
this Plan. New stock options may be issued or assumed in a transaction to which
Section 425(a) of the Code applies. Any such adjustment to the Plan or to
Options or Option prices shall be made by action of the Board of Directors or
the Committee, whose determination shall be conclusive; provided, however, that
such Option granted pursuant to this Plan shall be so adjusted as to continue
to qualify as an incentive stock option within the meaning of Section 422A of
the Code.
15. Amendment or Discontinuance of the Plan. The Board of
Directors may, insofar as permitted by law, amend, suspend, or discontinue this
Plan at any time without restriction, provided, however, that the Board may not
alter or amend or discontinue or revoke or otherwise impair any outstanding
Options which have been granted pursuant to this Plan and which remain
unexercised, except in the event of a merger, reorganization, or other
adjustment referred to in Paragraph 14 above, or except in the event that there
is secured the written consent of the holder of the outstanding Option proposed
to be so altered or amended and, without approval of the stockholders, the
Board may not amend, alter or revise the Plan to change the number of shares
subject to the Plan, change the description of the class of employees eligible
to receive Options or decrease the price at which Options may be granted.
Nothing contained in this paragraph,
12
<PAGE> 13
however, shall in any way condition or limit the termination of an Option as
hereinabove provided in Paragraph 8 hereof, nor shall the Option Period of any
outstanding Option be extended by any amendment or suspension or discontinuance
of the Plan.
16. Liquidation of the Corporation. In the event of the complete
liquidation or dissolution of the Corporation other than as an incident to a
merger, reorganization, or other adjustment referred to in Paragraph 14 above,
any Options granted pursuant to this Plan and remaining unexercised shall be
deemed cancelled without regard to or limitation by any other provision of this
Plan. In the event of a complete liquidation or dissolution of a subsidiary of
the Corporation or in the event that such a subsidiary ceases to be a
subsidiary corporation as defined hereinabove, any outstanding Options granted
to employees of such subsidiary pursuant to this Plan and remaining unexercised
shall be deemed cancelled unless the Optionee shall at or before the time of
the liquidation or dissolution or cessation of subsidiary relationship be or
become employed by the Corporation or by any other subsidiary of the
Corporation.
17. Shareholders Approval. This Plan shall be submitted to the
shareholders of the Corporation for the purpose of its approval and
ratification by the shareholders as provided in Paragraph 3.
18. Sequential Exercise. Each ISO shall state that it is not
exercisable while there is outstanding any ISO which was granted before the
granting of such ISO to such individual to purchase Common Stock in the
Corporation. For purposes of this
13
<PAGE> 14
provision, an ISO shall be treated as outstanding until such Option is
exercised in full or expires by reason of lapse of time.
14
<PAGE> 1
EXHIBIT 4.5
ASSUMPTION AGREEMENT
THIS ASSUMPTION AGREEMENT (this "Agreement"), dated as of November 15,
1994, between Beverly Enterprises, Inc., a Delaware corporation (the "Company")
and Insta-Care Holdings, Inc. a Florida corporation ("Insta-Care").
W I T N E S S E T H:
WHEREAS, Eckerd Corporation, a Delaware corporation ("Seller") desires
to sell to Pharmacy Corporation of America, a California corporation and an
indirect wholly-owned subsidiary of the Company ("Purchaser"), and Purchaser
desires to purchase from Seller all of the authorized, issued and outstanding
shares of common stock, par value $.10 per share (the "Common Stock") of
Insta-Care as more particularly specified in a certain Stock Purchase Agreement
dated September 12, 1994 by and between Seller and Purchaser (the "Stock
Purchase Agreement") upon such terms and conditions as set forth therein; and
WHEREAS, the Company has agreed, pursuant to the Stock Purchase
Agreement, to assume the Insta-Care First Employees Stock Option Plan (the
"Plan") attached hereto and any options (the "Stock Options") that have been
granted by Insta-Care thereunder prior to and as of the date hereof;
NOW, THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the receipt of which is hereby acknowledged, the
parties hereby agree as follows:
1. Assumption of Plan. The Company hereby assumes all of the
obligations of Insta-Care pursuant to the Plan and the Stock Options, except
that (i) the Plan shall be administered by the Company's Compensation
Committee; (ii) the number of shares issuable upon exercise of the of the Stock
Options shall be modified in accordance with the Stock Purchase Agreement;
(iii) the exercise price for the Stock Options shall be modified in accordance
with the Stock Purchase Agreement; and (iv) stock option agreements reflecting
items (i) through (iii) herein will be delivered to holders of the Stock
Options on or after the date hereof, with option agreements that were issued by
Insta-Care to holders of the Stock Options prior to consummation of the Stock
Purchase Agreement, being superseded and canceled concurrently herewith.
2. Consent of Sellers. Insta-Care hereby consents to the
Company's assumption of the Plan as provided herein.
3. Expenses. Insta-Care and the Company will each bear their own
legal, accounting and other expenses incurred in connection with the
preparation of this Agreement.
4. Waiver. No waiver of any term, provision or condition of this
Agreement in any one or more instances, shall be deemed to be or construed as a
further continuing waiver of any such
<PAGE> 2
term, provision or condition or as a waiver of any other term, provision or
condition of this Agreement or of the Stock Purchase Agreement.
5. Captions. Captions for the section of this Agreement are for
convenience only and shall not be construed or referred to in resolving
questions of interpretation.
6. Counterparts. This Agreement may be executed in multiple
counterparts and any number of counterparts signed in the aggregate by all the
parties shall constitute a single original agreement.
7. Choice of Law. This Agreement shall be governed in accordance
with the laws of the State of New York.
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/ ROBERT D. WOLTIL
Title: Robert D. Woltil
Executive Vice President
and Chief Financial Officer
INSTA-CARE HOLDINGS, INC., a Florida
corporation
By: /s/ ROBERT D. GOODWIN
Title: President
<PAGE> 1
EXHIBIT 5.1
[GIROIR & GREGORY LETTERHEAD]
JULY 24, 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 July
24, 1995, in connection with the registration of 436,024 shares of Common
Stock, $.10 par value (the "Shares"), issuable from time to time as a result of
the assumption by Beverly of the following stock option plans (collectively,
the "Plans"): the Pharmacy Management Services, Inc. 1990 Incentive and
Nonstatutory Stock Option Plan, as amended (the "PMSI Plan"); and the
Insta-Care Holdings, Inc. First Employees Stock Option Plan (the "Insta-Care
Plan").
In connection with the preparation of the Registration Statement and
the proposed issuance and sale of Shares in accordance with the respective
Plans and the Form S-8 prospectus to be delivered to participants in each of
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.
<PAGE> 2
Beverly Enterprises, Inc.
July 24, 1995
Page 2
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 Sky" and other state securities laws shall have been complied with, and
when the Shares are issued and sold in accordance with the respective Plans and
the Form S-8 prospectus to be delivered to participants in the respective
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
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,
/s/ GIROIR & GREGORY
GIROIR & GREGORY
Professional Association
<PAGE> 1
EXHIBIT 23.2
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement
(Form S-8) pertaining to the Pharmacy Management Services, Inc. 1990 Incentive
and Non-Statutory Stock Option Plan, as amended, assumed by Beverly
Enterprises, Inc.; and the Insta-care Holdings, Inc. First Employees Stock
Option Plan, assumed by Beverly Enterprises, Inc. 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
July 20, 1995
