<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER 21, 1997
REGISTRATION NOS. 333-35137
333-35137-01
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------------
AMENDMENT NO. 2
TO
FORM S-4
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
---------------------
BEVERLY ENTERPRISES, INC.
NEW BEVERLY HOLDINGS, INC.
(Exact Name of Registrants as Specified in their Charters)
<TABLE>
<S> <C> <C>
DELAWARE 8051 95-4100309
DELAWARE 8051 62-1691861
(State or Other Jurisdiction of (Primary Standard Industrial (IRS Employer
Incorporation or Organization) Classification Code Number) Identification No.)
</TABLE>
5111 ROGERS AVENUE, SUITE 40-A
FORT SMITH, ARKANSAS 72919-0155
(501) 452-6712
(Address, Including Zip Code, And Telephone Number, Including Area Code,
of Registrants' Principal Executive Offices)
---------------------
See Table of Additional Co-Registrants Included Herewith
---------------------
ROBERT W. POMMERVILLE, ESQ.
EXECUTIVE VICE PRESIDENT, GENERAL COUNSEL AND SECRETARY
BEVERLY ENTERPRISES, INC.
NEW BEVERLY HOLDINGS, INC.
5111 ROGERS AVENUE, SUITE 40-A
FORT SMITH, ARKANSAS 72919-0155
(501) 452-6712
(Name, Address, Including Zip Code, and Telephone Number, Including Area Code,
of Agent for Service)
---------------------
Copies to:
H. WATT GREGORY, III, ESQ.
MICHAEL E. KARNEY, ESQ.
GIROIR, GREGORY, HOLMES & HOOVER, PLC
111 CENTER STREET, SUITE 1900
LITTLE ROCK, ARKANSAS 72201
(501) 372-3000
<TABLE>
<C> <C>
WARREN T. BUHLE, ESQ. MARK C. SMITH, ESQ.
DAVID G. SCHWARTZ, ESQ. SKADDEN, ARPS, SLATE,
WEIL, GOTSHAL & MANGES, LLP MEAGHER & FLOM LLP
767 FIFTH AVENUE 919 THIRD AVENUE
NEW YORK, NY 10153 NEW YORK, NY 10022
(212) 310-8000 (212) 735-3000
</TABLE>
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after this Registration Statement becomes effective and all other
conditions described herein have been satisfied or are waived.
If the securities being registered on this Form are being offered in
connection with the formation of a holding company and there is compliance with
General Instruction G, check the box. [ ]
---------------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
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<PAGE> 2
TABLE OF ADDITIONAL CO-REGISTRANTS
<TABLE>
<CAPTION>
(STATE OR OTHER
JURISDICTION OF
INCORPORATION OR (I.R.S. EMPLOYER
(EXACT NAME OF CO-REGISTRANT AS SPECIFIED IN ITS CHARTER) ORGANIZATION) IDENTIFICATION NO.)
--------------------------------------------------------- ---------------- -------------------
<S> <C> <C>
A-1 Home Health Services, Inc. ............................. Georgia 58-1935144
A.B.C. Health Equipment Corp................................ New York 13-3043192
AdviNet, Inc................................................ Delaware 71-0758986
AGI-Camelot, Inc............................................ Missouri 43-1253376
AGI-McDonald County Health Care, Inc........................ Missouri 43-1253385
Amco Medical Service, Inc................................... Texas 75-1288363
American Transitional Care Dallas -- Ft. Worth, Inc......... Texas 76-0322331
American Transitional Hospitals of East Tennessee, Inc. .... Delaware 62-1704901
American Transitional Health Care, Inc...................... Delaware 76-0292237
American Transitional Hospitals, Inc........................ Delaware 76-0232151
American Transitional Hospitals of Indiana, Inc............. Indiana 35-1903972
American Transitional Hospitals of Oklahoma, Inc............ Oklahoma 74-2689039
American Transitional Hospitals of Tennessee, Inc........... Tennessee 62-1562740
American Transitional Hospitals -- Texas Medical Center,
Inc....................................................... Delaware 71-0779078
ATH -- Clear Lake, Inc...................................... Delaware 71-0776296
ATH Columbus, Inc........................................... Delaware 71-0776295
ATH Del Oro, Inc............................................ Texas 62-1578954
ATH Heights, Inc............................................ Texas 76-0442017
ATH -- Little Rock, Inc. ................................... Delaware 62-1682209
ATH -- Memphis, Inc. ....................................... Delaware 62-1682212
ATH Oklahoma City, Inc...................................... Oklahoma 73-1465199
ATH Tucson, Inc............................................. Arizona 71-0765364
Beverly Assisted Living, Inc................................ Delaware 71-0777901
Beverly -- Bella Vista Holding, Inc. ....................... Delaware 71-0797481
Beverly Health and Rehabilitation Services, Inc............. California 95-2301514
Beverly Enterprises -- Alabama, Inc......................... California 95-3742145
Beverly Enterprises -- Arizona, Inc......................... California 95-3750871
Beverly Enterprises -- Arkansas, Inc........................ California 95-3751272
Beverly Enterprises -- California, Inc...................... California 95-3750879
Beverly Enterprises -- Colorado, Inc........................ California 95-3750882
Beverly Enterprises -- Connecticut, Inc..................... California 95-3849642
Beverly Enterprises -- Delaware, Inc........................ California 95-3849628
Beverly Enterprises -- Distribution Services, Inc........... California 95-4081567
Beverly Enterprises -- District of Columbia, Inc............ California 95-3750889
Beverly Enterprises -- Florida, Inc......................... California 95-3742251
Beverly Enterprises -- Garden Terrace, Inc.................. California 95-3849648
Beverly Enterprises -- Georgia, Inc......................... California 95-3750880
Beverly Enterprises -- Hawaii, Inc.......................... California 95-3750890
Beverly Enterprises -- Idaho, Inc........................... California 95-3750886
Beverly Enterprises -- Illinois, Inc........................ California 95-3750883
Beverly Enterprises -- Indiana, Inc......................... California 95-3744258
Beverly Enterprises -- Iowa, Inc............................ California 95-3751271
Beverly Enterprises -- Kansas, Inc.......................... California 95-3751269
Beverly Enterprises -- Kentucky, Inc........................ California 95-3750894
Beverly Enterprises -- Louisiana, Inc....................... California 95-3849633
Beverly Enterprises -- Maine, Inc........................... California 95-3849627
</TABLE>
<PAGE> 3
<TABLE>
<CAPTION>
(STATE OR OTHER
JURISDICTION OF
INCORPORATION OR (I.R.S. EMPLOYER
(EXACT NAME OF CO-REGISTRANT AS SPECIFIED IN ITS CHARTER) ORGANIZATION) IDENTIFICATION NO.)
--------------------------------------------------------- ---------------- -------------------
<S> <C> <C>
Beverly Enterprises -- Maryland, Inc........................ California 95-3750892
Beverly Enterprises -- Massachusetts, Inc................... California 95-3750893
Beverly Enterprises -- Michigan, Inc........................ California 95-3898661
Beverly Enterprises -- Minnesota, Inc....................... California 95-3742698
Beverly Enterprises -- Mississippi, Inc..................... California 95-3742144
Beverly Enterprises -- Missouri, Inc........................ California 95-3750895
Beverly Enterprises -- Montana, Inc......................... California 95-3849636
Beverly Enterprises -- Nebraska, Inc........................ California 95-3750873
Beverly Enterprises -- Nevada, Inc.......................... California 95-3750896
Beverly Enterprises -- New Hampshire, Inc................... California 95-3849630
Beverly Enterprises -- New Jersey, Inc...................... California 95-3750884
Beverly Enterprises -- New Mexico, Inc...................... California 95-3750869
Beverly Enterprises -- North Carolina, Inc.................. California 95-3642257
Beverly Enterprises -- North Dakota, Inc.................... California 95-3751270
Beverly Enterprises -- Ohio, Inc............................ California 95-3750867
Beverly Enterprises -- Oklahoma, Inc........................ California 95-3849624
Beverly Enterprises -- Oregon, Inc.......................... California 95-3750881
Beverly Enterprises -- Pennsylvania, Inc.................... California 95-3750870
Beverly Enterprises -- Rhode Island, Inc.................... California 95-3849621
Beverly Enterprises -- South Carolina, Inc.................. California 95-3750866
Beverly Enterprises -- Tennessee, Inc....................... California 95-3742261
Beverly Enterprises -- Texas, Inc........................... California 95-3744256
Beverly Enterprises -- Utah, Inc............................ California 95-3751089
Beverly Enterprises -- Vermont, Inc......................... California 95-3750885
Beverly Enterprises -- Virginia, Inc........................ California 95-3742694
Beverly Enterprises -- Washington, Inc...................... California 95-3750868
Beverly Enterprises -- West Virginia, Inc................... California 95-3750888
Beverly Enterprises -- Wisconsin, Inc....................... California 95-3742696
Beverly Enterprises -- Wyoming, Inc......................... California 95-3849638
Beverly Enterprises International Limited................... California 95-3982125
Beverly Enterprises Medical Equipment Corporation........... California 95-3849617
Beverly Holdings I, Inc..................................... Delaware 71-0768985
Beverly Manor Inc. of Hawaii................................ California 99-0144750
Beverly -- Missouri Valley Holding, Inc. ................... Delaware 71-0797485
Beverly -- Rapid City Holding, Inc. ........................ Delaware 71-0797483
Beverly Real Estate Holdings, Inc........................... Delaware 71-0768984
Beverly Savana Cay Manor, Inc............................... California 95-4217381
Columbia-Valley Nursing Home, Inc........................... Ohio 34-1262298
Commercial Management, Inc.................................. Iowa 42-0891358
Continental Care Centers of Council Bluffs, Inc............. Iowa 41-1413442
Forest City Building Ltd.................................... Missouri 43-1102460
Hallmark Convalescent Homes, Inc............................ Michigan 41-1413478
Home Medical Systems, Inc................................... Delaware 23-2271050
HomeCare Preferred Choice, Inc. ............................ Delaware 62-1702864
Hospice Preferred Choice, Inc............................... Delaware 71-0761314
Hospital Facilities Corporation............................. California 95-2499218
Kenwood View Nursing Home, Inc. ............................ Kansas 48-6111286
Liberty Nursing Homes, Incorporated......................... Virginia 54-0784334
MATRIX HealthCare Network, Inc. ............................ Delaware 16-1702866
MATRIX Rehabilitation, Inc. ................................ Delaware 71-0783147
</TABLE>
<PAGE> 4
<TABLE>
<CAPTION>
(STATE OR OTHER
JURISDICTION OF
INCORPORATION OR (I.R.S. EMPLOYER
(EXACT NAME OF CO-REGISTRANT AS SPECIFIED IN ITS CHARTER) ORGANIZATION) IDENTIFICATION NO.)
--------------------------------------------------------- ---------------- -------------------
<S> <C> <C>
Medical Arts Health Facility of Lawrenceville, Inc. ........ Georgia 58-1329700
Moderncare of Lumberton, Inc. .............................. North Carolina 56-1217025
Nebraska City S-C-H, Inc. .................................. Nebraska 41-1413481
Nursing Home Operators, Inc. ............................... Ohio 34-0949279
Petersen Health Care, Inc. ................................. Florida 59-2043392
Salem No. 1, Inc. .......................................... Missouri 43-1130257
South Alabama Nursing Home, Inc. ........................... Alabama 95-3809397
South Dakota -- Beverly Enterprises, Inc. .................. California 95-3750887
Spectra Healthcare Alliance, Inc. .......................... Delaware 71-0759298
Synergos, Inc. ............................................. California 33-0203515
Synergos -- Scottsdale, Inc. ............................... Arizona 94-3085083
TMD Disposition Company..................................... Florida 59-3151568
Vantage Healthcare Corporation.............................. Delaware 35-1572998
</TABLE>
<PAGE> 5
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 20. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the DGCL applies to Beverly and New Beverly, and the
relevant portion of the DGCL provides as follows:
145. Indemnification of Officers, Directors, Employees and Agents;
Insurance.
(a) A corporation may indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative
(other than an action by or in the right of the corporation) by reason of the
fact that he is or was a director, officer, employee or agent of the
corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding if he acted
in good faith and in a manner he reasonably believed to be in or not opposed to
the best interests of the corporation, and, with respect to any criminal action
or proceeding, had no reasonable cause to believe his conduct was unlawful. The
termination of any action, suit or proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its equivalent, shall not, of
itself, create a presumption that the person did not act in good faith and in a
manner which he reasonably believed to be in or not opposed to the best
interests of the corporation, and, with respect to any criminal action or
proceeding, had reasonable cause to believe that his conduct was unlawful.
(b) A corporation may indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action or
suit by or in the right of the corporation to procure a judgment in its favor by
reason of the fact that he is or was a director, officer, employee or agent of
the corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against expenses (including attorneys' fees)
actually and reasonably incurred by him in connection with the defense or
settlement of such action or suit if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
corporation and except that no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been adjudged to be
liable to the corporation unless and only to the extent that the Court of
Chancery or the court in which such action or suit was brought shall determine
upon application that, despite the adjudication of liability but in view of all
the circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses which the Court of Chancery or such other court
shall deem proper.
(c) To the extent that a director, officer, employee or agent of a
corporation has been successful on the merits or otherwise in defense of any
action, suit or proceeding referred to in subsections (a) and (b) of this
section, or in defense of any claim, issue or matter therein, he shall be
indemnified against expenses (including attorneys' fees) actually and reasonably
incurred by him in connection therewith.
(d) Any indemnification under subsections (a) and (b) of this section
(unless ordered by a court) shall be made by the corporation only as authorized
in the specific case upon a determination that indemnification of the director,
officer, employee or agent is proper in the circumstances because he has met the
applicable standard of conduct set forth in subsections (a) and (b) of this
section. Such determination shall be made (1) by the board of directors by a
majority vote of a quorum consisting of directors who were not parties to such
action, suit or proceeding, or (2) if such a quorum is not obtainable, or, even
if obtainable a quorum of disinterested directors so directs, by independent
legal counsel in a written opinion, or (3) by the stockholders.
(e) Expenses (including attorneys' fees) incurred by an officer or director
in defending any civil, criminal, administrative or investigative action, suit
or proceeding may be paid by the corporation in advance of the final disposition
of such action, suit or proceeding upon receipt of an undertaking by or on
behalf of such director or officer to repay such amount if it shall ultimately
be determined that he is not entitled to be
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<PAGE> 6
indemnified by the corporation as authorized in this section. Such expenses
(including attorneys' fees) incurred by other employees and agents may be so
paid upon such terms and conditions, if any, as the board of directors deems
appropriate.
(f) The indemnification and advancement of expenses provided by, or granted
pursuant to, the other subsections of this section shall not be deemed exclusive
of any other rights to which those seeking indemnification or advancement of
expenses may be entitled under any bylaw, agreement, vote of stockholders or
disinterested directors or otherwise, both as to action in his official capacity
and as to action in another capacity while holding such office.
(g) A corporation shall have power to purchase and maintain insurance on
behalf of any person who is or was a director, officer, employee or agent of the
corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against any liability asserted against him
and incurred by him in any such capacity, or arising out of his status as such,
whether or not the corporation would have the power to indemnify him against
such liability under this section.
(h) For purposes of this section, references to "the corporation" shall
include, in addition to the resulting corporation, any constituent corporation
(including any constituent of a constituent) absorbed in a consolidation or
merger which, if its separate existence had continued, would have had power and
authority to indemnify its directors, officers and employees or agents, so that
any person who is or was a director, officer, employee or agent of such
constituent corporation, or is or was serving at the request of such constituent
corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, shall stand in the same
position under this section with respect to the resulting or surviving
corporation as he would have with respect to such constituent corporation if its
separate existence had continued.
(i) For purposes of this section, references to "other enterprises" shall
include employee benefit plans; references to "fines" shall include any excise
taxes assessed on a person with respect to any employee benefit plan; and
references to "serving at the request of the corporation" shall include any
service as a director, officer, employee or agent of the corporation which
imposes duties on, or involves services by, such director, officer, employee, or
agent with respect to an employee benefit plan, its participants or
beneficiaries; and a person who acted in good faith and in a manner he
reasonably believed to be in the interest of the participants and beneficiaries
of an employee benefit plan shall be deemed to have acted in a manner "not
opposed to the best interests of the corporation" as referred to in this
section.
(j) The indemnification and advancement of expenses provided by, or granted
pursuant to, this section shall, unless otherwise provided when authorized or
ratified, continue as to a person who has ceased to be a director, officer,
employee or agent and shall inure to the benefit of the heirs, executors and
administrators of such a person.
(k) The Court of Chancery is hereby vested with exclusive jurisdiction to
hear and determine all actions for advancement of expenses or indemnification
brought under this section or under any bylaw, agreement, vote of stockholders
or disinterested directors, or otherwise. The Court of Chancery may summarily
determine a corporation's obligation to advance expenses (including attorneys'
fees).
The Certificates of Incorporation of Beverly and New Beverly limit the
liability of directors (in their capacity as directors, but not in their
capacity as officers) to the Registrants or their stockholders to the fullest
extent permitted by the DGCL, as amended. Specifically, no director of the
Registrants will be personally liable to the Registrant or their stockholders
for monetary damages for breach of the director's fiduciary duty as a director,
except as provided in Section 102 of the DGCL for liability: (i) for any breach
of the director's duty of loyalty to the Registrant or its stockholders; (ii)
for acts or omissions not in good faith and which involve intentional misconduct
or knowing violation of law; (iii) under Section 174 of the DGCL, which relates
to unlawful payments of dividends or unlawful stock repurchases or redemptions;
or (iv) for any transaction from which the director derived an improper personal
benefit. The inclusion of this provision in the Certificates of Incorporation of
Beverly and New Beverly may have the effect of reducing the likelihood of
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<PAGE> 7
derivative litigation against directors, and may discourage or deter
stockholders or management from bringing a lawsuit against directors for breach
of their duty of care, even though such action, if successful, might otherwise
have benefitted the Registrants and their stockholders.
Under the Certificates of Incorporation and in accordance with Section 145
of the DGCL, the Registrants will indemnify any person who was or is a party, or
is threatened to be made a party, to any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than a "derivative" action by or in the right of a
Registrant) by reason of the fact that such person was or is a director or
officer of a Registrant, against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably incurred
in connection with such action, suit or proceeding if such person acted in good
faith and in a manner such person reasonably believed to be in or not opposed to
the best interests of the Registrant, and, with respect to any criminal action
or proceeding, had no reasonable cause to believe such acts were unlawful. A
similar standard of care is applicable in the case of derivative actions, except
that indemnification only extends to expenses (including attorneys' fees)
actually and reasonably incurred in connection with the defense or settlement of
such an action and then, where the person is adjudged to be liable to a
Registrant, only if and to the extent that the Court of Chancery of the State of
Delaware or the court in which such action was brought determines that such
person is fairly and reasonably entitled to such indemnity and then only for
such expenses as the court deems proper. The Registrants will each indemnify,
pursuant to the standard enumerated in Section 145 of the DGCL, any past or
present officer or director who was or is a party, or is threatened to be made a
party, to any threatened, pending or completed derivative action by or in the
right of such Registrant.
The Certifications of Incorporation of the Registrants provides that each
Registrant may pay for the expenses incurred by an indemnified director or
officer in defending the proceedings specified above in advance of their final
disposition, provided that, if the DGCL so requires, such indemnified person
agrees to reimburse such Registrant if it is ultimately determined that such
person is not entitled to indemnification. The Registrants Certificates of
Incorporation also allows each Registrant, in their sole discretion, to
indemnify any person who is or was one of its employees and agents to the same
degree as the foregoing indemnification of directors and officers. To the extent
that a director, officer, employee or agent of a Registrant has been successful
on the merits or otherwise in defense of any action, suit or proceeding referred
to in subsections (a) and (b) of Section 145 of the DGCL, or in defense of any
claim, issue or matter therein, such person shall be indemnified against
expenses (including attorneys' fees) actually and reasonably incurred by such
person in connection therewith. In addition, each Registrant may purchase and
maintain insurance on behalf of any person who is or was a director, officer,
employee or agent of such Registrant or another corporation, partnership, joint
venture, trust or other enterprise against any liability asserted against and
incurred by such person in such capacity, or arising out of the person's status
as such whether or not such Registrant would have the power or obligation to
indemnify such person against such liability under the provisions of the DGCL.
Each Registrant maintains insurance for the benefit of the Registrants' officers
and directors insuring such persons against certain liabilities, including civil
liabilities under the Securities laws. Additionally, each Registrant has entered
into indemnification agreements with each of the Directors of such Registrant,
which, among other things, provides that each Registrant will indemnify such
Directors to the fullest extent permitted by the respective Certificates of
Incorporation and the DGCL and will advance expenses of defending claims against
such Directors.
ITEM 21. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
(a) Reference is made to the exhibit index immediately following the
signature page to the Registration Statement.
(b) The Schedules for which provision is made in the applicable accounting
regulations of the Securities and Exchange Commission are not required under the
related instructions or are inapplicable and, therefore, have been omitted.
(c) The following opinions are included in the Prospectus/Consent
Solicitation Statement as indicated:
None
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<PAGE> 8
ITEM 22. UNDERTAKINGS
The undersigned registrants hereby undertake:
1. (a) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement;
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the registration statement
or any material change to such information in the registration
statement.
Provided, however, that paragraphs (1)(a)(i) and (1)(a)(ii) do not apply
if the registration statement is on Form S-3, Form S-8 or Form F-3, 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 15(d) of the Securities Exchange
Act of 1934 that are incorporated by reference in the registration
statement.
(b) 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.
(c) 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.
2. 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 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.
3. That prior to any public reoffering of the Securities registered
hereunder through use of a prospectus which is a part of this registration
statement, by any person or party who is deemed to be an underwriter within
the meaning of Rule 145(c), the issuer undertakes that such reoffering
prospectus will contain the information called for by the applicable
registration form with respect to reofferings by persons who may be deemed
underwriters, in addition to the information called for by the other items
of the applicable form.
4. That every prospectus (i) that is filed pursuant to the paragraph
immediately preceding, or (ii) that purports to meet the requirements of
section 10(a)(3) of the Securities Act and is used in connection with an
offering of securities subject to Rule 415, will be filed as a part of an
amendment to the registration statement and will not be used until such
amendment is effective, and that, for purposes 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.
5. Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the registrant pursuant to the foregoing provisions,
or otherwise, the registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public
policy as expressed in the Securities Act and is, therefore, unenforceable.
In the event that a claim for indemnification against such liabilities
(other than the payment by the registrant of expenses incurred or paid by a
director, officer or controlling
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<PAGE> 9
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the Securities being registered, the registrant will,
unless in the opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public policy as
expressed in the Securities Act and will be governed by the final
adjudication of such issue.
6. The undersigned registrant hereby undertakes to respond to requests
for information that is incorporated by reference into the prospectus
pursuant to Items 4, 10(b), 11, or 13 of this Form S-4, within one business
day of receipt of such request, and to send the incorporated documents by
first class mail or other equally prompt means. This includes information
contained in documents filed subsequent to the effective date of the
registration statement through the date of responding to the request.
7. The undersigned registrant hereby undertakes to supply by means of
a post-effective amendment all information concerning a transaction, and
the company being acquired involved therein, that was not the subject of
and included in the registration statement when it became effective.
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<PAGE> 10
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
has duly caused this Registration Statement on Form S-4 to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Fort Smith,
State of Arkansas, on the 21st day of October, 1997.
For the Registrants set forth on the
Registration Statement Facing Page
and on the table of additional
Co-Registrants
By: /s/ SCOTT M. TABAKIN
----------------------------------
Scott M. Tabakin
Executive Vice President,
Chief Financial Officer
of Beverly Enterprises, Inc.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed on the dates indicated by the
following persons in the capacities indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<C> <S> <C>
* Chairman of the Board, Chief October 21, 1997
- ----------------------------------------------------- Executive Officer and
David R. Banks Director
* President, Chief Operating October 21, 1997
- ----------------------------------------------------- Officer and Director
Boyd W. Hendrickson
/s/ SCOTT M. TABAKIN Executive Vice President, October 21, 1997
- ----------------------------------------------------- Chief Financial Officer
Scott M. Tabakin
* Vice President, Controller October 21, 1997
- ----------------------------------------------------- and Chief Accounting Officer
Pamela H. Daniels
* Director October 21, 1997
- -----------------------------------------------------
Beryl F. Anthony, Jr.
* Director October 21, 1997
- -----------------------------------------------------
James R. Greene
* Director October 21, 1997
- -----------------------------------------------------
Edith E. Holiday
* Director October 21, 1997
- -----------------------------------------------------
Jon E. M. Jacoby
* Director October 21, 1997
- -----------------------------------------------------
Risa J. Lavizzo-Mowery
* Director October 21, 1997
- -----------------------------------------------------
Marilyn R. Seymann
/s/ *JOHN W. MACKENZIE
- -----------------------------------------------------
John W. MacKenzie
As Attorney-in-Fact
</TABLE>
II-6
<PAGE> 11
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
has duly caused this Registration Statement on Form S-4 to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Fort Smith,
State of Arkansas, on the 21st day of October, 1997.
For the Registrants set forth on the
Registration Statement Facing Page
and on the table of additional
Co-Registrants
By: /s/ SCOTT M. TABAKIN
----------------------------------
Scott M. Tabakin
Executive Vice President,
Chief Financial Officer
and Director
of New Beverly Holdings, Inc.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed on the dates indicated by the
following persons in the capacities indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<C> <S> <C>
* Chairman of the Board, Chief October 21, 1997
- ----------------------------------------------------- Executive Officer and
David R. Banks Director
* President, Chief Operating October 21, 1997
- ----------------------------------------------------- Officer and Director
Boyd W. Hendrickson
* Executive Vice President, October 21, 1997
- ----------------------------------------------------- General Counsel, Secretary
Robert W. Pommerville and Director
* Executive Vice President -- October 21, 1997
- ----------------------------------------------------- Asset Management and
Bobby W. Stephens Director
/s/ SCOTT M. TABAKIN Executive Vice President, October 21, 1997
- ----------------------------------------------------- Chief Financial Officer
Scott M. Tabakin and Director
* Vice President, Controller October 21, 1997
- ----------------------------------------------------- and Chief Accounting
Pamela H. Daniels Officer
/s/ *JOHN W. MACKENZIE
- -----------------------------------------------------
John W. MacKenzie
As Attorney-in-Fact
</TABLE>
II-7
<PAGE> 12
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
------- -----------
<C> <S>
2.1 -- Agreement and Plan of Merger dated April 15, 1997 by and
between Beverly Enterprises, Inc. and Capstone Pharmacy
Services, Inc. (incorporated by reference to Exhibit 2.1
to Beverly Enterprises, Inc.'s Current Report on Form 8-K
dated April 15, 1997).
2.2 -- Agreement and Plan of Distribution by and among Beverly
Enterprises, Inc., New Beverly Holdings, Inc. and
Capstone Pharmacy Services, Inc. dated as of April 15,
1997 (incorporated by reference to Exhibit 2.2 to Beverly
Enterprises, Inc.'s Current Report on Form 8-K dated
April 15, 1997).
3.1 -- Restated Certificate of Incorporation of Beverly
Enterprises, Inc. (incorporated by reference to Exhibit
4.1 to Beverly Enterprises, Inc.'s Current Report on Form
8-K dated July 31, 1987)
3.2 -- By-Laws of Beverly Enterprises, Inc. (incorporated by
reference to Exhibit 3 to Beverly Enterprises, Inc.'s
Quarterly Report on Form 10-Q for the quarter ended June
30, 1992)
3.3 -- Certificate of Incorporation of New Beverly Holdings,
Inc. dated April 15, 1997 (incorporated by reference to
Exhibit 3.1 to New Beverly Holdings, Inc.'s Registration
Statement on Form S-1 filed June 4, 1997 (File No.
333-28521)).
3.4 -- Amended Certificate of Incorporation of New Beverly
Holdings, Inc. dated May 29, 1997 (incorporated by
reference to Exhibit 3.2 to New Beverly Holdings, Inc.'s
Registration Statement on Form S-1 filed June 4, 1997
(File No. 333-28521)).
3.6 -- Bylaws of New Beverly Holdings, Inc. (incorporated by
reference to Exhibit 3.4 to New Beverly Holdings, Inc.'s
Registration Statement on Form S-1 filed June 4, 1997
(File No. 333-28521)).
4.1 -- Indenture dated as of February 1, 1996 between Beverly
Enterprises, Inc. and Chemical Bank, as Trustee, with
respect to Beverly Enterprises, Inc.'s 9% Senior Notes
due February 15, 2006 (incorporated by reference to
Exhibit 4.1 to Beverly Enterprises, Inc.'s Annual Report
on Form 10-K for the year ended December 31, 1995).
4.2** -- Form of Second Supplemental Indenture dated , 1997
between Beverly Enterprises, Inc., New Beverly Holdings,
Inc., certain subsidiaries of Beverly Enterprises, Inc.
as guarantors and The Chase Manhattan Bank, as Trustee,
with respect to Beverly's 9% Senior Notes due February
15, 2006.
4.3 -- Indenture dated as of August 1, 1993 between Beverly
Enterprises, Inc. and Chemical Bank, as Trustee, with
respect to Beverly Enterprises, Inc.'s 5 1/2% Convertible
Subordinated Debentures due August 1, 2018, issuable upon
exchange of Beverly Enterprises, Inc.'s $2.75 Cumulative
Convertible Exchangeable Preferred Stock (the
"Subordinated Debenture Indenture") (incorporated by
reference to Exhibit 4.10 to Beverly Enterprises, Inc.'s
Quarterly Report on Form 10-Q for the quarter ended June
30, 1993).
4.4 -- Indenture dated as of April 1, 1993 (the "First Mortgage
Bond Indenture"), among Beverly Enterprises, Inc.,
Delaware Trust Company, as Corporate Trustee, and Richard
N. Smith, as Individual Trustee, with respect to First
Mortgage Bonds (incorporated by reference to Exhibit 4.1
to Beverly Enterprises, Inc.'s Quarterly Report on Form
10-Q for the quarter ended March 31, 1993).
</TABLE>
<PAGE> 13
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
------- -----------
<C> <S>
4.5 -- First Supplemental Indenture dated as of April 1, 1993 to
the First Mortgage Bond Indenture, with respect to 8 3/4%
First Mortgage Bonds due 2008 (incorporated by reference
to Exhibit 4.2 to Beverly Enterprises, Inc.'s Quarterly
Report on Form 10-Q for the quarter ended March 31,
1993).
4.6 -- Second Supplemental Indenture dated as of July 1, 1993 to
the First Mortgage Bond Indenture, with respect to 8 5/8%
First Mortgage Bonds due 2008 (replaces Exhibit 4.1 to
Beverly Enterprises, Inc.'s Current Report on Form 8-K
dated July 15, 1993) (incorporated by reference to
Exhibit 4.15 to Beverly Enterprises, Inc.'s Quarterly
Report on Form 10-Q for the quarter ended June 30, 1993).
4.7 -- Indenture dated as of December 30, 1993 (the "Notes
Indenture"), between Beverly Enterprises, Inc. and
Boatmen's Trust Company, as Trustee, with respect to the
Notes (incorporated by reference to Exhibit 4.2 to
Beverly Enterprises, Inc.'s Registration Statement on
Form S-3 filed on November 9, 1993 (File No. 33-50965)).
4.8 -- First Supplemental Indenture dated as of December 30,
1993 to the Notes Indenture, with respect to 8 3/4% Notes
due 2003 (incorporated by reference to Exhibit 4.4 to
Beverly Enterprises, Inc.'s Current Report on Form 8-K
dated January 4, 1994).
4.9 -- Rights Agreement dated as of September 29, 1994, between
Beverly Enterprises, Inc. and The Bank of New York, as
Rights Agent (incorporated by reference to Exhibit 1 to
Beverly Enterprises, Inc.'s Registration Statement on
Form 8-A filed on October 18, 1994).
4.10 -- Amendment, dated as of April 6, 1995, to the Rights
Agreement between Beverly Enterprises, Inc. and The Bank
of New York, as Rights Agent (incorporated by reference
to Exhibit 4.20 to Beverly Enterprises, Inc.'s Quarterly
Report on Form 10-Q for the quarter ended June 30, 1995).
In accordance with item 601(b)(4)(iii) of Regulation S-K,
certain instruments pertaining to Beverly Enterprises,
Inc.'s long-term obligations have not been filed; copies
thereof will be furnished to the Securities and Exchange
Commission upon request.
5.1* -- Opinion of Weil, Gotshal & Manges LLP as to certain legal
matters.
5.2* -- Opinion of John W. MacKenzie, Deputy General Counsel of
Beverly Enterprises, Inc. and New Beverly Holdings, Inc.,
as to certain legal matters.
10.1 -- Executive Medical Reimbursement Plan assumed by New
Beverly Holdings, Inc. (incorporated by reference to
Exhibit 10.5 to Beverly Enterprises, Inc.'s Annual Report
on Form 10-K for the year ended December 31, 1987).
10.2 -- Amended and Restated Beverly Enterprises, Inc. Executive
Life Insurance Plan and Summary Plan Description (the
"Executive Life Plan") assumed by New Beverly Holdings,
Inc. (incorporated by reference to Exhibit 10.7 to
Beverly Enterprises, Inc.'s Annual Report on Form 10-K
for the year ended December 31, 1993).
10.3 -- Amendment No. 1, effective September 29, 1994, to the
Executive Life Plan assumed by New Beverly Holdings, Inc.
(incorporated by reference to Exhibit 10.10 to Beverly
Enterprises, Inc.'s Registration Statement on Form S-4
filed on February 13, 1995 (File No. 33-57663)).
10.4 -- Executive Physicals Policy assumed by New Beverly
Holdings, Inc. (incorporated by reference to Exhibit 10.8
to Beverly Enterprises, Inc.'s Quarterly Report on Form
10-Q for the quarter ended June 30, 1993).
</TABLE>
<PAGE> 14
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
------- -----------
<C> <S>
10.5 -- Amended and Restated Deferred Compensation Plan effective
July 18, 1991 assumed by New Beverly Holdings, Inc.
(incorporated by reference to Exhibit 10.6 to Beverly
Enterprises, Inc.'s Annual Report on Form 10-K for the
year ended December 31, 1991).
10.6 -- Amendment No. 1, effective September 29, 1994, to the
Deferred Compensation Plan assumed by New Beverly
Holdings, Inc. (incorporated by reference to Exhibit
10.13 to Beverly Enterprises, Inc.'s Registration
Statement on Form S-4 filed on February 13, 1995 (File
No. 33-57663)).
10.7 -- Executive Retirement Plan assumed by New Beverly
Holdings, Inc. (incorporated by reference to Exhibit 10.9
to Beverly Enterprises, Inc.'s Annual Report on Form 10-K
for the year ended December 31, 1987).
10.8 -- Amendment No. 1, effective as of July 1, 1991, to the
Executive Retirement Plan assumed by New Beverly
Holdings, Inc. (incorporated by reference to Exhibit 10.8
to Beverly Enterprises, Inc.'s Annual Report on Form 10-K
for the year ended December 31, 1991).
10.9 -- Amendment No. 2, effective as of December 12, 1991, to
the Executive Retirement Plan assumed by New Beverly
Holdings, Inc. (incorporated by reference to Exhibit 10.9
to Beverly Enterprises, Inc.'s Annual Report on Form 10-K
for the year ended December 31, 1991).
10.10 -- Amendment No. 3, effective as of July 31, 1992, to the
executive Retirement Plan assumed by New Beverly
Holdings, Inc. (incorporated by reference to Exhibit
10.10 to Beverly Enterprises, Inc.'s Annual Report on
Form 10-K for the year ended December 31, 1992).
10.11 -- Amendment No. 4, effective as of January 1, 1993, to the
Executive Retirement Plan assumed by New Beverly
Holdings, Inc. (incorporated by reference to Exhibit
10.18 to Beverly Enterprises, Inc.'s Annual Report on
Form 10-K for the year ended December 31, 1994).
10.12 -- Amendment No. 5, effective as of September 29, 1994, to
the Executive Retirement Plan assumed by New Beverly
Holdings, Inc. (incorporated by reference to Exhibit
10.19 to Beverly Enterprises, Inc.'s Annual Report on
Form 10-K for the year ended December 31, 1994).
10.13 -- Beverly Enterprises, Inc. Executive Deferred Compensation
Plan assumed by New Beverly Holdings, Inc. (incorporated
by reference to Exhibit 10.23 to Beverly Enterprises,
Inc.'s Annual Report on Form 10-K for the year ended
December 31, 1996).
10.14 -- Beverly Enterprises, Inc. Supplemental Long-Term
Disability Plan assumed by New Beverly Holdings, Inc.
(incorporated by reference to Exhibit 10.24 to Beverly
Enterprises, Inc.'s Annual Report on Form 10-K for the
year ended December 31, 1996).
10.15 -- Severance Plan for Corporate and Regional Employees
effective December 1, 1989 assumed by New Beverly
Holdings, Inc. (incorporated by reference to Exhibit
10.21 to Amendment No. 1 to Beverly Enterprises, Inc.'s
Registration Statement on Form S-1 filed on February 26,
1990 (File No. 33-33052)).
10.16 -- Employment Contract, made as of December 8, 1995, between
Beverly Enterprises, Inc. and David R. Banks
(incorporated by reference to Exhibit 10.2 to Beverly
Enterprises, Inc.'s Quarterly Report on Form 10-Q for the
quarter ended June 30, 1996).
</TABLE>
<PAGE> 15
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
------- -----------
<C> <S>
10.17 -- Employment Contract, made as of December 8, 1995, between
Beverly Enterprises, Inc. and Boyd W. Hendrickson
(incorporated by reference to Exhibit 10.3 to Beverly
Enterprises, Inc.'s Quarterly Report on Form 10-Q for the
quarter ended June 30, 1996).
10.18 -- Form of Change In Control Severance Agreement, made as of
December 8, 1995, between Beverly Enterprises, Inc. and
its Executive Vice Presidents (incorporated by reference
to Exhibit 10.31 to Beverly Enterprises, Inc.'s Annual
Report on Form 10-K for the year ended December 31,
1995).
10.19 -- Form of Change In Control Severance Agreement, made as of
December 8, 1995, between Beverly Enterprises, Inc. and
certain of its officers (incorporated by reference to
Exhibit 10.32 to Beverly Enterprises, Inc.'s Annual
Report on Form 10-K for the year ended December 31,
1995).
10.20 -- Amended and Restated Credit Agreement, dated as of
December 20, 1996, among Beverly Enterprises, Inc., the
Banks listed therein, and Morgan Guaranty Trust Company
of New York, as Issuing Bank and as Agent (incorporated
by reference to Exhibit 10.44 to Beverly Enterprises,
Inc.'s Annual Report on Form 10-K for the year ended
December 31, 1996).
10.21 -- Trust Indenture dated as of December 1, 1994 from Beverly
Funding Corporation, as Issuer, to Chemical Bank, as
Trustee (the "Chemical Indenture") (incorporated by
reference to Exhibit 10.45 to Beverly Enterprises, Inc.'s
Registration Statement on Form S-4 filed on February 13,
1995 (File No. 33-57663)).
10.22 -- Series Supplement dated as of December 1, 1994 to the
Chemical Indenture (incorporated by reference to Exhibit
10.46 to Beverly Enterprises, Inc.'s Registration
Statement on Form S-4 filed on February 13, 1995 (File
No. 33-57663)).
10.23 -- Data Processing Agreement, dated as of August 1, 1992, by
and between Systematics Telecommunications Services, Inc.
and Beverly California Corporation (incorporated by
reference to Exhibit 10 to Beverly Enterprises, Inc.'s
Quarterly Report on Form 10-Q for the quarter ended June
30, 1992).
10.24 -- Form of Irrevocable Trust Agreement for the Beverly
Enterprises, Inc. Executive Benefits Plan (incorporated
by reference to Exhibit 10.55 to Beverly Enterprises,
Inc.'s Registration Statement on Form S-4 filed on
February 13, 1995 (File No. 33-57663)).
11.1 -- Computation of Net Income (Loss) Per Share for the years
ended December 31, 1996, 1995, 1994, 1993 and 1992
(incorporated by reference to Exhibit 11.1 to Beverly
Enterprises, Inc.'s Annual Report on Form 10-K for the
year ended December 31, 1996).
12.1** -- Beverly Enterprises, Inc. Computation of Ratio of
Earnings to Fixed Charges.
</TABLE>
<PAGE> 16
<TABLE>
<C> <S>
21.1 -- Subsidiaries of Registrant (incorporated by reference to Exhibit 21.1 to Beverly
Enterprises, Inc.'s Annual Report on Form 10-K for the year ended December 31, 1996).
23.1** -- Consent of Ernst & Young LLP, Independent Auditors.
23.2* -- Consent of Weil, Gotshal & Manges LLP (included as part of Exhibit 5.1).
23.3* -- Consent of John W. MacKenzie, Deputy General Counsel of Beverly Enterprises, Inc. and
New Beverly Holdings, Inc. (included as part of Exhibit 5.2).
24.1 -- Power of Attorney (incorporated by reference to the signature page of New Beverly
Holdings, Inc.'s Registration Statement on Form S-1 Filed June 4, 1997 (File No.
333-28521)).
25.1** -- Form T-1 Statement of Eligibility of Trustee.
27.1 -- New Beverly Holdings, Inc. Financial Data Schedule (incorporated by reference to
Exhibit 27.1 to New Beverly Holdings, Inc.'s Registration Statement on Form S-1 filed
on June 4, 1997 (File No. 333-28521)).
99.1** -- Consent with respect to the Proposed Amendments.
</TABLE>
- ---------------
* Filed herewith.
** Previously filed.
<PAGE> 1
EXHIBIT 5.1
[WEIL, GOTSHAL & MANGES LLP LETTERHEAD]
October 21, 1997
Beverly Enterprises, Inc.
5111 Rogers Avenue -- Suite 40A
Fort Smith, Arkansas 72919-0155
New Beverly Holdings, Inc.
5111 Rogers Avenue -- Suite 40A
Fort Smith, Arkansas 72919-0155
Gentlemen:
We have acted as counsel to Beverly Enterprises, Inc. ("Beverly") and New
Beverly Holdings, Inc. ("New Beverly" and together with Beverly, the
"Companies"), in connection with the preparation, authorization, execution and
delivery of, and the consummation of the transactions contemplated by the
Registration Statement on Form S-4 as filed with the Securities and Exchange
Commission under the Securities Act of 1933, as amended (the "Registration
Statement"), relating to the solicitation of consents of the holders of the 9%
Senior Notes due 2006 of Beverly (the "Notes") to the amendment of the
Indenture related to such Notes (the "Indenture") and the guarantees of the
Notes set forth in the Indenture (the "Guarantees") by the entities set forth
in the table of additional co-registrants contained in the Registration
Statement (the "Guarantors" and together with the Companies herein called the
"Issuers"), pursuant to a Supplemental Indenture (the "Supplemental Indentures"
and the Notes as issued under the Indenture as modified by the Supplemental
Indenture being herein called the "Securities").
In connection with such representation, we have examined originals or
copies, certified or otherwise identified to our satisfaction, of the
following:
(a) the Registration Statement;
(b) the form of the Securities;
(c) the Indenture; and
(d) the form of the Supplemental Indenture.
<PAGE> 2
[Weil Gotshal & Manges LLP Letterhead]
Beverly Enterprises, Inc.
New Beverly Holdings, Inc.
The Securities, the Indenture, the Supplemental Indenture and the
Guarantees are hereinafter referred to in this opinion as the "Restructuring
Documents". Capitalized terms defined in herein are used herein as so defined.
In so acting, we have examined originals or copies, certified or
otherwise identified to our satisfaction, of each of the Restructuring
Documents and such corporate records, agreements, documents and other
instruments, and such certificates or comparable documents of public officials
and of officers and representatives of the Issuers, and have made such
inquiries of such officers and representatives as we have deemed relevant and
necessary as a basis for the opinions hereinafter set forth.
In such examination, we have assumed the genuineness of all signatures,
the legal capacity of natural persons, the authenticity of all documents
submitted to us as originals, the conformity to original documents of all
documents submitted to us as certified, conformed or photostatic copies and the
authenticity of the originals of such latter documents. As to all questions of
fact material to this opinion that have not been independently established, we
have relied upon certificates or comparable documents of officers and
representatives of the Issuers and upon the representations and warranties of
the Issuers contained in the Restructuring Documents. We have also assumed (i)
the due incorporation and valid existence of the Issuers, (ii) that each Issuer
has the requisite corporate power and authority to enter into and perform each
of the Restructuring Documents to which it is a party and (iii) the due
authorization, execution and delivery of each of the Restructuring Documents by
each party thereto.
Based on the foregoing, and subject to the qualifications stated
herein, we are of the opinion that:
1. The Securities constitute the legal, valid and binding
obligations of Beverly enforceable against Beverly in accordance with their
terms, and upon their assumption by New Beverly as contemplated by the
Supplemental Indenture, the Securities will constitute the legal, valid and
binding obligation of New Beverly enforceable against New Beverly in
accordance with their respective terms, in each case subject to applicable
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and
similar laws affecting creditors' rights and remedies generally, and subject,
as to enforceability, to general principles of equity, including
2
<PAGE> 3
[Weil Gotshal & Manges LLP Letterhead]
principles of commercial reasonableness, good faith and fair dealing (regardless
of whether enforcement is sought in a proceeding at law or in equity).
2. Each of the Guarantees constitute the legal, valid and binding
obligations of each Guarantor party thereto, enforceable against such Guarantor
in accordance with their terms, subject to applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and similar laws affecting
creditors' rights and remedies generally, and subject, as to enforceability, to
general principles of equity, including principles of commercial reasonableness,
good faith and fair dealing (regardless of whether enforcement is sought in a
proceeding at low or in equity).
The opinions expressed herein are limited to the laws of the State of
New York and the federal laws of the United States, and we express no opinion
as to the effect on the matters covered by this letter of the laws of any
other jurisdiction.
We hereby consent to the use of this letter as an exhibit to
the Registration Statement. We further consent to any and all references to our
firm in the Prospectus which is a part of said Registration Statement.
Very truly yours,
/s/ WEIL, GOTSHAL & MANGES LLP
3
<PAGE> 1
EXHIBIT 5.2
[BEVERLY ENTERPRISES, INC. LETTERHEAD]
October 21, 1997
Beverly Enterprises, Inc.
5111 Rogers Avenue; Suite 40-A
Fort Smith, Arkansas 72919-0155
New Beverly Holdings, Inc.
5111 Rogers Avenue; Suite 40-A
Fort Smith, Arkansas 72919-0155
Gentlemen:
I am Vice President, Deputy General Counsel and Assistant Secretary of
Beverly Enterprises, Inc. ("Beverly") and New Beverly Holdings, Inc. ("New
Beverly" and together with Beverly, the "Companies"), and in that capacity have
acted as counsel to the Issuers, in connection with the preparation,
authorization, execution and delivery of, and the consummation of the
transactions contemplated by the Registration Statement on Form S-4 as filed
with the Securities and Exchange Commission under the Securities Act of 1933,
as amended (the "Registration Statement"), relating to the solicitation of
consents of the holders of the 9% Senior Notes due 2006 of Beverly (the
"Notes") to the amendment of the Indenture related to such Notes (the
"Indenture") and the guarantees of the Notes set forth in the Indenture (the
"Guarantees") by the entities set forth in the table of additional
co-registrants contained in the Registration Statement (the "Guarantors" and
together with the Companies herein called the "Issuers"), pursuant to a
Supplemental Indenture (the "Supplemental Indenture" and the Notes as issued
under the Indenture as modified by the Supplement Indenture being herein called
the "Securities").
In connection with such representation, I have examined originals or
copies, certified or otherwise identified to my satisfaction, of the following:
(a) the Registration Statement;
(b) the form of the Securities;
(c) the Indenture; and
(d) the form of the Supplemental Indenture.
The Securities, the Indenture, the Supplemental Indenture and the
Guarantees are hereinafter referred to in this opinion as the "Restructuring
Documents". Capitalized terms defined in the Registration Statement and used
but not otherwise defined herein are used herein as so defined.
In so acting, I have examined originals or copies, certified or
otherwise to my
<PAGE> 2
[BEVERLY ENTERPRISES, INC. LETTERHEAD]
satisfaction, of each of the Restructuring Documents and such corporate
records, agreements, documents and other instruments, and such certificates of
comparable documents of public officials and of officers and representatives of
the Issuers, and have made such inquiries of such officers and representatives
as I have deemed relevant and necessary as a basis for the opinions hereinafter
set forth.
In such examination, I have assumed the genuineness of all signatures,
the legal capacity of natural persons, the authenticity of all documents
submitted to me as originals, the conformity to original documents of all
documents submitted to me as certified, conformed or photostatic copies and the
authenticity of the originals of such latter documents. As to all questions of
fact material to this opinion that have not been independently established, I
have relied upon certificates or comparable documents of officers and
representatives of the Issuers and upon the representations and warranties of
the Issuers contained in the Restructuring Documents.
Based on the foregoing, and subject to the qualifications stated
herein, I am of the opinion that:
1. Each of the Issuers has been duly incorporated and in good
standing in its respective state of incorporation;
2. Each of the Issuers has the corporate power and authority to
enter into the Restructuring Documents to which it is a part
and to perform its obligations thereunder;
3. The Restructuring Documents have been duly authorized by all
necessary corporate action by the Issuers; and
4. When executed and delivered in accordance with their terms,
each of the Restructuring Documents will have been duly
executed and delivered by the Issuers party thereto.
The opinions expressed herein are limited to the general corporate laws
of the State of Delaware, and I express no opinion as to the effect on the
matters covered by this letter of the laws of any other jurisdiction. Please be
advised that several of the Issuers are incorporated in jurisdictions other
than the State of Delaware. The opinions expressed above with regard to those
Issuers incorporated in jurisdiction other than Delaware are based upon my
general knowledge and experience rather than based upon opinions or advice of
Counsel licensed to practice in those jurisdictions.
This letter is being furnished to you in my capacity as Vice President,
Deputy General Counsel and Assistant Secretary of the Issuers.
<PAGE> 3
[BEVERLY ENTERPRISES, INC. LETTERHEAD]
I hereby consent to the use of this letter as an exhibit to the Registration
Statement. I further consent to any and all references to me in the Prospectus
which is a part of said Registration Statement.
Very truly yours,
/s/ JOHN W. MACKENZIE
-------------------------------
John W. MacKenzie
Vice President, Deputy General
Counsel and Assistant Secretary
JWM/tlh
