<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JANUARY 24, 1997
REGISTRATION NO. 333-
------
================================================================================
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 5111 ROGERS AVENUE, SUITE 40-A 95-4100309
(State or Other FORT SMITH, ARKANSAS 72919 (I.R.S. Employer
Jurisdiction of Identification No.)
Incorporation or
Organization)
(Address of Principal Executive Offices Including Zip Code)
--------------------
BEVERLY ENTERPRISES, INC.
EXECUTIVE DEFERRED COMPENSATION PLAN
(Full Title of the Plan)
--------------------
ROBERT W. POMMERVILLE
EXECUTIVE VICE PRESIDENT,
GENERAL COUNSEL & SECRETARY
BEVERLY ENTERPRISES, INC.
5111 ROGERS AVENUE, SUITE 40-A
FORT SMITH, ARKANSAS 72919
(Name and Address of Agent For Service)
--------------------
(501) 452-6712
(Telephone Number, Including Area Code, of Agent For Service)
--------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------------------------------------
PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF SECURITIES AMOUNT TO BE OFFERING PRICE AGGREGATE AMOUNT OF
TO BE REGISTERED REGISTERED PER SHARE(1) OFFERING PRICE REGISTRATION FEE
- ----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
BEVERLY ENTERPRISES, $14,000,000 100% $14,000,000 $4,243
INC. EXECUTIVE
DEFERRED COMPENSATION
PLAN OBLIGATIONS (2)
- ----------------------------------------------------------------------------------------------------------------------
COMMON STOCK, PAR (3) -- -- NONE
VALUE $.10 PER SHARE
- ----------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) Estimated solely for the purposes of calculating the registration fee
pursuant to Rule 457(o).
(2) The Beverly Enterprises, Inc. Executive Deferred Compensation Plan
Obligations are unsecured obligations of Beverly Enterprises, Inc. to
pay deferred compensation in the future in accordance with the terms
of the Beverly Enterprises, Inc. Executive Deferred Compensation
Plan.
(3) Pursuant to Rule 457(i), such indeterminate number of shares of Common
Stock as may be issuable upon payment of the Beverly Enterprises, Inc.
Executive Deferred Compensation Plan Obligations, including such
additional shares as may be issuable as a result of stock splits,
stock dividends or similar transactions.
================================================================================
<PAGE> 2
INTRODUCTION
This Registration Statement on Form S-8 is filed by Beverly
Enterprises, Inc., a Delaware corporation (the "Registrant"), relating to
$14,000,000 of unsecured obligations of the Registrant to pay deferred
compensation in the future (the "Obligations") and Beverly Enterprises, Inc.
Common Stock, par value $0.10 per share, issuable in satisfaction of the
Obligations in accordance with the terms of the Registrant's Executive Deferred
Compensation Plan (the "Plan").
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The information requested in Part I of this Registration
Statement is included in the prospectus for the Plan, which the Company has
excluded from this Registration Statement in accordance with the instructions
to Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents that the Company has previously filed
with the Commission are hereby incorporated by reference into this Registration
Statement:
1. The Registrant's latest annual report filed pursuant to
Section 13(a) or 15(d) of the Securities Exchange Act of
1934, as amended (the "Exchange Act");
2. All other reports filed by the Registrant pursuant to Section
13(a) or 15(d) of the Exchange Act since the end of the fiscal
year covered by Registrant's latest annual report referred to
in 1. above; and
3. The description of the Shares set forth in the Company's
Registration Statement on Form 8-A, filed with the Commission
on August 21, 1990, under which the Company registered the
Shares under Section 12(g) of the Securities and Exchange Act
of 1934, as amended (the "Exchange Act").
All reports and other documents that the Company subsequently
files with the Securities and Exchange Commission (the "Commission") pursuant
to Sections 13(a), 13(c), 14, or 15(d) of the Exchange Act, prior to the filing
of a post-effective amendment indicating that the Company has sold all of the
securities offered under this Registration Statement or that deregisters the
distribution of all such securities then remaining unsold, shall be deemed to
be incorporated by reference into this Registration Statement from the date
that the Company files such report or document. Any statement contained in
this Registration Statement or any report or document incorporated into this
Registration Statement by reference, however, shall be deemed to be modified or
superseded for purposes of this Registration Statement to the extent that a
statement contained in a subsequently dated report or document that is also
considered part of this Registration Statement, or in any amendment to this
Registration Statement, is inconsistent with such prior statement. The
Company's file number with the Commission is 1-9550.
2
<PAGE> 3
ITEM 4. DESCRIPTION OF SECURITIES.
The Common Stock of the Registrant is registered under Section
12 of the Exchange Act.
$14,000,000 of Plan Obligations are being registered under
this Registration Statement to be offered to certain eligible employees of the
Registrant pursuant to the Plan. The Obligations are general unsecured
obligations of the Registrant to pay deferred compensation in the future in
accordance with the terms of the Plan from the general assets of the
Registrant, and rank pari passu with other unsecured and unsubordinated
indebtedness of the Registrant from time to time outstanding.
The amount of compensation deferred by each participant
("Participant") in the Plan is determined in accordance with the Plan based
upon elections by each Participant. Obligations will consist of an amount
equal to each Participant's deferral account under the Plan, consisting of
deferred salary (up to 25% per year) and bonus amounts (up to 100% per year)
and any appreciation or depreciation in value thereon. In addition, the
Registrant shall generally, as of the first day of any month in which the
Participant is employed and during the preceding month had deferred salary or
bonus amounts, credit matching contributions to a matching contributions
account in an amount equal to 25% of the first 6% of salary and bonus actually
deferred in the preceding month under the Plan by the Participant. The
Registrant may also, in its sole discretion, credit supplemental matching
contributions to a supplemental contributions account in such amounts as the
Registrant shall determine in its sole discretion.
The vested accrued balances in a Participant's Account under
the Plan shall be paid in shares of Common Stock in one lump sum commencing as
soon as administratively feasible after the month in which termination of
Participant's employment occurs. If a Participant's employment ends due to the
Participant's retirement, however, payment will be made or commence within the
first 15 days of the following calendar year, in the form of either (i) a
single lump sum of shares of Common Stock, or (ii) in annual installments, up to
15 years, of shares of Common Stock, pursuant to a Participant's advance
written election received at least 24 months prior to such Participant's
retirement.
A Participant's Obligations cannot be alienated, sold,
transferred, assigned, pledged, attached or otherwise encumbered by the
Participant, and pass only to a survivor beneficiary under the Plan, or by will
or the laws of descent and distribution, or pursuant to a qualified domestic
relations order which recognizes the rights of a spouse or former spouse to
share in such Obligations.
The Obligations are not subject to redemption, in whole or in
part, prior to the payout to the Participant. However, the Registrant reserves
the right to amend or terminate the Plan at any time, except that no such
amendment or termination shall adversely affect a Participant's right to
Obligations in the amount of the Participant's vested Plan Account as of the
date of such amendment or termination.
The Obligations are not convertible into any other security of
the Registrant. The Obligations will not have the benefit of a negative pledge
or any other affirmative or negative covenant on the part of the Registrant.
Except with respect to a so-called "rabbi trust," which the Registrant may
establish pursuant to the Plan, no trustee will be appointed having the
authority to take action with respect to the Obligations and each Participant
will be responsible for acting independently with respect to, among other
things, the giving of notices, responding to any requests for consents, waivers
or amendments pertaining to the Obligations, and taking action upon a default.
3
<PAGE> 4
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The validity of the Common Stock has been passed upon for the
Registrant by John W. MacKenzie, its Deputy General Counsel and Assistant
Secretary. Mr. MacKenzie owns approximately 13,000 shares of Common Stock and
options to purchase 15,000 shares of Common Stock. It is currently anticipated
that Mr. MacKenzie will be eligible to participate in the Plan.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Delaware General Corporation Law, the Company's
certificate of incorporation and bylaws, and the Company's indemnification
agreements between the Company and its officers and directors provide that the
Company will indemnify them to the full extent permitted by the Delaware
General Corporation Law for liabilities and expenses that they may incur in
their capacities as directors and officers of the Company. Generally, the
Company will indemnify its directors and officers with respect to actions taken
in good faith in a manner reasonably believed to be in, or not opposed to, the
best interests of the Company. With respect to any criminal action or
proceeding, the director or officer must also not have had any reasonable cause
to believe that his or her actions were unlawful.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Inapplicable.
ITEM 8. EXHIBITS.
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
<S> <C>
4.1 Beverly Enterprises, Inc. Executive Deferred Compensation Plan
4.2 Beverly Enterprises, Inc. Restated Certificate of Incorporation
(incorporated by reference to Exhibit 4.1 of the Registrant's Current
Report on Form 8-K dated July 31, 1987)
4.3 Beverly Enterprises, Inc. Amended Bylaws
5.1 Opinion of John W. MacKenzie, Esq.
23.1 Consent of John W. MacKenzie, Esq. (contained in Exhibit 5.1)
23.2 Consent of Ernst & Young LLP
</TABLE>
ITEM 9. UNDERTAKINGS.
A. RULE 415 OFFERING. 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, (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
4
<PAGE> 5
information set forth in the Registration Statement, and (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 clauses (i)
and (ii) do not apply if the information required to be
included in a post-effective amendment by those clauses is
contained in periodic reports filed with or furnished to the
Commission by the Registrant pursuant to Section 13 or 15(d)
of the Exchange Act that are incorporated by reference in the
Registration Statement;
(2) That, for the purpose of determining any
liability under the Securities Act, 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; and
(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. FILINGS INCORPORATING SUBSEQUENT EXCHANGE ACT
DOCUMENTS BY REFERENCE. The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act, each filing of
the Registrant's annual report pursuant to Section 13(a) or Section 15(d) of
the Exchange Act 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. REQUEST FOR ACCELERATION OF EFFECTIVE DATE OR FILING
OF REGISTRATION STATEMENT ON FORM S-8. Insofar as indemnification for
liabilities arising under the Securities 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 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 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 Act and
will be governed by the final adjudication of such issue.
[SIGNATURES ON THE NEXT PAGE]
5
<PAGE> 6
SIGNATURES
Pursuant to the requirements of the Securities Act, 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 this 24th day
of January, 1997.
BEVERLY ENTERPRISES, INC.
By: /s/ David R. Banks
---------------------------------
Name: David R. Banks
Title: Chairman of the Board,
Chief Executive Officer and
Director
POWER OF ATTORNEY
Pursuant to the requirements of the Securities Act of 1933,
this Registration Statement has been signed by the following persons in the
capacities and on the date indicated. Each of the directors and/or officers of
the Registrant whose signature appears below hereby appoints Robert W.
Pommerville and John W. MacKenzie, and each of them severally as his or her
attorney-in-fact to sign his or her name and on his or her behalf, in any and
all capacities stated below, and to file with the Securities and Exchange
Commission any and all amendments, including post-effective amendments to this
Registration Statement as appropriate, and generally to do all such things in
their behalf in their capacities as officers and directors to enable Registrant
to comply with the provisions of the Securities Act of 1933, and all
requirements of the Securities and Exchange Commission.
<TABLE>
<CAPTION>
NAME AND SIGNATURE TITLE DATE
- ----------------------- ---------------------------------- ------------------
<S> <C> <C>
/s/ David R. Banks Chairman of the Board, Chief January 24, 1997
- ----------------------- Executive Officer and Director
David R. Banks
/s/ Boyd W. Hendrickson President, Chief Operating Officer January 24, 1997
- ----------------------- and Director
Boyd W. Hendrickson
/s/ Scott M. Tabakin Executive Vice President and Chief January 24, 1997
- ----------------------- Financial Officer
Scott M. Tabakin
/s/ Pamela H. Daniels Vice President, Controller, and January 24, 1997
- ----------------------- Chief Accounting Officer
Pamela H. Daniels
</TABLE>
6
<PAGE> 7
<TABLE>
<S> <C> <C>
/s/ Beryl F. Anthony, Jr. Director January 14, 1997
- --------------------------------
Beryl F. Anthony, Jr.
/s/ James R. Greene Director January 24, 1997
- --------------------------------
James R. Greene
/s/ Edith E. Holiday Director January 15, 1997
- --------------------------------
Edith E. Holiday
/s/ Jon E. M. Jacoby Director January 24, 1997
- --------------------------------
Jon E. M. Jacoby
/s/ Risa J. Lavizzo-Mourey, M.D. Director January 24, 1997
- --------------------------------
Risa J. Lavizzo-Mourey, M.D.
/s/ Louis W. Menk Director January 14, 1997
- --------------------------------
Louis W. Menk
/s/ Marilyn R. Seymann Director January 14, 1997
- --------------------------------
Marilyn R. Seymann
</TABLE>
7
<PAGE> 8
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
----------- --------------------------------------------------------------
<S> <C>
4.1 Beverly Enterprises, Inc. 1996 Executive Deferred
Compensation Plan
4.2 Beverly Enterprises, Inc. Restated Certificate of
Incorporation (incorporated by reference to Exhibit 4.1
of the Registrant's Current Report on Form 8-K dated
July 31, 1987)
4.3 Beverly Enterprises, Inc. Amended Bylaws
5.1 Opinion of John W. MacKenzie, Esq.
23.1 Consent of John W. MacKenzie, Esq. (included in
Exhibit 5.1)
23.2 Consent of Ernst & Young LLP
</TABLE>
8
<PAGE> 1
EXHIBIT 4.1
BEVERLY ENTERPRISES, INC.
EXECUTIVE DEFERRED COMPENSATION PLAN
<PAGE> 2
BEVERLY ENTERPRISES, INC.
EXECUTIVE DEFERRED COMPENSATION PLAN
Effective January 1, 1997
* * * * *
SECTION 1. PURPOSE. The purpose of the Plan is for the Company to
provide certain select executives of the Company with an opportunity to defer
receipt of compensation for services rendered to the Company. It is intended
that the Plan shall aid the Company in retaining and attracting employees whose
abilities, experience and judgment can contribute to the continued progress of
the Company. The Plan is intended to be a so-called "top hat plan" under
ERISA, i.e., an unfunded plan of deferred compensation for the benefit of a
select group of highly compensated or management employees. The Plan is also a
nonqualified deferred compensation arrangement under Internal Revenue Code
Section 3121 (v).
SECTION 2. DEFINITIONS.
(a) "Account(s)" means the Deferral Account, the Supplemental
Contributions Account and/or the Matching Contributions Account, as the context
requires.
(b) "Bonus" means any special and/or discretionary cash
compensation amounts in excess of Salary, determined by the Company to be
payable to a Participant with respect to services rendered.
1
<PAGE> 3
(c) A "Change of Control" shall be deemed to have taken place
if: (i) any person, corporation, or other entity or group, including any
"group" as defined in Section 13(d)(3) of the Securities Exchange Act of 1934,
other than any employee benefit plan then maintained by the Company, becomes
the beneficial owner of shares of the Company having 30 percent or more of the
total number of votes that may be cast for the election of Directors of the
Company; (ii) as the result of, or in connection with, any contested election
for the Board of Directors of the Company, or any tender or exchange offer,
merger or other business combination or sale of assets, or any combination of
the foregoing (a "Transaction"), the persons who were Directors of the Company
before the Transaction shall cease to constitute a majority of the Board of
Directors of the Company or any successor to the Company or its assets, or
(iii) at any time a the Company shall consolidate or merge with any other
Person and the Company shall not be the continuing or surviving corporation, b
any Person shall consolidate or merge with the Company, and the Company shall
be the continuing or surviving corporation and in connection therewith, all or
part of the outstanding Company stock shall be changed into or exchanged for
stock or other securities of any other Person or cash or any other property, c
the Company shall be a party to a statutory share exchange with any other
Person after which the Company is a subsidiary of any other Person, or d the
Company shall sell or otherwise transfer fifty percent (50%) or more of the
assets or earning power of the Company and its subsidiaries (taken as a whole)
to any Person or Persons.
(d) "Committee" means the Compensation Committee of the Company's
Board of Directors.
(e) "Company" means Beverly Enterprises, Inc.
(f) "Continuous Service" means a Participant's uninterrupted
services with the Company or any affiliate. Service shall not be deemed
interrupted by a leave of absence authorized by the Committee, an absence due
to mandatory military service or an
2
<PAGE> 4
absence due to disability while the Participant is receiving benefits under any
short-term or long-term disability plan or arrangement maintained or sponsored
by the Company.
(g) "Deferred Compensation" means the sum of Salary and Bonus
that are the subject of an elective deferral under Section 5.
(h) "Deferred Compensation Plan" means the Beverly Enterprises,
Inc. Deferred Compensation Plan that was amended and restated effective July
17, 1991.
(i) "Deferral Account" means the bookkeeping account established
for a Participant under the Plan and to which Deferred Compensation amounts
with respect to such Participant are credited from time to time, as adjusted
from time to time as provided in the Plan.
(j) "Deferred Compensation Election Form" means the form pursuant
to which Eligible Executives elect to become Participants in the Plan and defer
compensation thereunder, in such form as the Committee determines from time to
time in its sole discretion.
(k) "Disability" means total and permanent mental or physical
disability as determined by the Committee in its sole discretion in accordance
with standards and procedures similar to those under the Company's broad-based
regular long-term disability plan, if any. At any time that the Company does
not maintain such a long-term disability plan, Disability shall mean the
inability of a Participant, as determined by the Committee in its sole
discretion, substantially to perform such Participant's regular duties and
responsibilities due to a medically determinable physical or mental illness
which has lasted (or can reasonably be expected to last) for a period of three
(3) consecutive months.
3
<PAGE> 5
(l) "Eligible Executive" means any employee of the Company who is
selected for participation by the Committee.
(m) "Matching Contributions Account" means the bookkeeping
account established for a Participant under the Plan and to which the Company's
matching contributions under Section 5(b) of the Plan are credited from time to
time, as adjusted from time to time under the Plan.
(n) "Participant" means an Eligible Executive who has elected to
defer Salary and/or Bonus amounts pursuant to the Plan.
(o) "Person" shall have the meaning ascribed to such term in
section 3(a)(9) of the Securities Exchange Act of 1934 and used in Sections
13(d) and 14(d) thereof, including a "group" as defined in Section 13 (d).
(p) "Plan" means the Beverly Enterprises, Inc. Executive Deferred
Compensation Plan, as set forth herein and as amended from time to time.
(q) "Plan Year" means the calendar year.
(r) "Retirement" means attainment of sixty (60) years of age and
termination of employment.
(s) "Rollover Account" means the bookkeeping account established
for a Participant under the Plan and to which the Deferred Compensation Plan
balance is credited under Section 12.
(t) "Salary" means the regular base compensation paid by the
Company to an employee (without regard to any reduction thereof pursuant to the
Plan or any other elective salary deferral arrangement under any other plan
(eg. Pre-Tax Premium Plan,
4
<PAGE> 6
Dependent Care Assistance Plan, Health Care Spending Account) maintained by the
Company), exclusive of Bonus payments and any other incentive payments made by
the Company to such employee.
(u) "Supplemental Contributions Account" means the bookkeeping
account established for the Participant under the Plan and to which the
Company's supplemental contributions under Section 5(c) of the Plan are
credited from time to time, as adjusted from time to time under the Plan.
(v) "Unforeseeable Emergency" means a severe financial hardship
to the Participant resulting from a sudden and unexpected illness or accident
of the Participant or a dependent of the Participant, loss of the Participant's
property due to casualty, or other similar extraordinary unforeseeable
circumstances arising as a result of events beyond the control of the
Participant. The circumstances that will constitute an "Unforeseeable
Emergency" would depend on the facts of each case, but, in any case, payment
may not be made in the event that such hardship is or may be relieved:
(1) through reimbursement or compensation by insurance or otherwise,
(2) by liquidation of the Participant's assets, to the extent that
liquidation of such assets would not itself cause severe financial hardship, or
(3) by cessation of Deferred Compensation under the Plan (or cessation
of elective deferrals under any other Company Retirement or Savings Plan). The
need to send a Participant's child to college or the desire to purchase a home
shall not be an Unforeseeable Emergency.
SECTION 3. ELIGIBILITY. Individuals eligible to participate in the
Plan shall consist of the Eligible Executives of the Company, as determined
from time to time by the Committee. The Committee may terminate an
individual's designation as an Eligible
5
<PAGE> 7
Executive at any time.
SECTION 4. ADMINISTRATION.
(a) The Plan shall be administered by the Committee. The
Committee has complete fiduciary discretion and authority to construe and
interpret the Plan; promulgate, amend and rescind rules and regulations
relating to the implementation, administration and maintenance of the Plan;
decide all questions of eligibility and benefits (including underlying factual
determinations); and adjudicate all claims and appeals. The Committee may
designate persons other than members of the Committee to carry out the day-to-
day ministerial administration of the Plan under such conditions and
limitations as it may prescribe; provided, however, that the Committee shall
not delegate its authority with regard to the determination of Eligible
Employees. The Committee's determinations under the Plan need not be uniform
and may be made selectively among Participants, whether or not such
Participants are similarly situated. Any determination, decision or action of
the Committee in connection with the construction, interpretation,
administration, implementation or maintenance of the Plan shall be final,
conclusive and binding upon all Participants and any person(s) claiming under
or through any Participants.
(b) The Company will indemnify and hold harmless the Committee
and each member thereof against any cost or expense (including without
limitation attorney's fees) or liability (including without limitation any sum
paid in settlement of a claim with the approval of the Company) arising out of
any act or omission to act, except in the case of willful misconduct or gross
negligence.
SECTION 5. PARTICIPATION; ELECTIVE DEFERRALS; MATCHING CONTRIBUTIONS.
(a) To elect to participate in the Plan for a particular Plan
Year, an Eligible Executive must execute a Deferred Compensation Election Form
and file such form with the Committee (or its designee) before the Commencement
of such Plan Year. To
6
<PAGE> 8
participate in the Plan during the year in which the Plan is first implemented,
the Eligible Executive must make an election to defer Salary compensation for
services to be performed subsequent to the election and/or to defer Bonus
compensation, in each case, within 30 days after the effective date of the
Plan. To participate in the Plan during the first year in which an individual
becomes eligible to participate in the Plan, the new Eligible Executive must
make an election to defer Salary compensation for services to be performed
subsequent to the election and/or to defer Bonus compensation, in each case,
within 30 days after the date the new Eligible Executive becomes eligible.
Such election shall:
(i) contain a statement that the Eligible Executive elects to
defer a portion of the Eligible Executive's Salary (up to 25% thereof, in
increments of 1% or in fixed dollar amounts per pay period) and/or Bonus (up to
100% thereof, in increments of 1% or a fixed dollar amount) for a specified
Plan Year that becomes payable to the Eligible Executive after the filing of
such election;
(ii) apply only to the Salary otherwise payable to the Eligible
Executive during the Plan Year for which such election is made and to any Bonus
payment that is attributable to the Eligible Executive's services rendered to
the Company during the Plan Year for which such election is made (whether or
not actually payable in such Plan Year); and
(iii) be irrevocable with respect to the Plan Year to which it
applies. Upon receipt of an Eligible Executive's deferral election, the
Company shall establish as an accounting entry an individual Deferral Account
for such Eligible Executive and such Eligible Executive shall become a
Participant under the Plan. Thereafter, the Company shall credit the
Executive's Deferral Account with all Deferred Compensation which would
otherwise have been payable to the Eligible Executive in the absence of an
election under the Plan. The Deferral Account shall be credited monthly in an
amount equal to the sum of the Deferred Compensation that would otherwise have
been paid by the Company in accordance with the Company's normal payroll
practices for the immediately preceding month as soon as is administratively
feasible.
7
<PAGE> 9
(b) the Company shall, if on the first day of any such month the
Participant is employed by the Company, credit matching contributions to the
Participant's Matching Contributions Account in an amount equal to 25% of the
first 6% of Salary and Bonus actually deferred under the Plan by the
Participant in respect to the preceding month as soon as is administratively
feasible.
(c) From time to time, the Company may, in its sole discretion,
credit supplemental contributions to the Participant's Supplemental and
Matching Contributions Account in such amounts as the Company shall determine
in its sole discretion.
SECTION 6. PAYMENT OF DEFERRED COMPENSATION. The vested accrued
balances in a Participant's Accounts shall be paid to a Participant, or, in the
case of any Participant's death prior to payment, the Participant's designated
beneficiary(ies), in stock in one lump sum commencing as soon as it is
administratively feasible after the month in which the termination of the
Participant's employment occurs. However, if employment ends due to the
Participant's Retirement, then payment will be made or commence within the
first fifteen (15) days of the following calendar year, in the form of either a
single lump sum of company stock or in annual installments of company stock or
with the Committee's consent in cash, up to fifteen (15) years, pursuant to
the participant's advance written election received at least twenty four (24)
months prior to said Retirement. Such election of distribution method shall be
made at the time of deferral and may be changed at any time prior to the
Participant's Retirement as long as it is made at least twenty four (24) months
prior to the Participant's Retirement.
SECTION 7. INVESTMENT OF ACCOUNT BALANCES. During and for each Plan
Year, the accrued balances in each Deferral Account, Supplemental Contributions
Account and Matching Contributions Account will be deemed to be invested, as
soon as is administratively feasible during the month following the month in
which elective deferrals, supplemental contributions and matching contributions
are credited to their respective
8
<PAGE> 10
Accounts under the Plan, in the Company's Common stock, including dividends.
At the end of each Plan Year, the Accounts shall be adjusted and increased or
decreased by the results of such deemed investment for such Plan Year pursuant
to Section 8 .
If a Participant elects to defer the distribution of his or her Account balance
under the Plan pursuant the installment distribution election, the
undistributed vested portion of the Participant's Account will continue to be
credited with investment gains or losses as described under this Section 7
unless the Participant elects to have the undistributed vested Account balances
deemed invested at a fixed rate of interest as determined by the Committee.
Such an investment election must be made in the same manner, and subject to the
same restrictions, as the Participants Distribution Election described in
Section 6.
SECTION 8. VALUATION. At the end of each Plan Year, the vested and
unvested balances in the Deferral Account, Supplemental Contributions Account
and the Matching Contributions Account of each Participant shall be determined
by the Company, taking into account any increase or decrease therein for such
Plan Year under Section 7, including dividends. The balance determined, as of
the end of each Plan Year, shall be communicated in writing to each Participant
as soon as practicable after the end of the Plan Year. In the case of any
termination under Section 6 above, the vested and unvested balances in the
Deferral Account, Supplemental Contributions Account and the Matching
Contributions Account of any affected Participant shall be determined by the
Company as of the date of any such termination.
SECTION 9. DISTRIBUTION IN CASES OF HARDSHIP. The Committee may make
distributions to a Participant from the vested balances in such Participant's
Deferral Account, Supplemental Contributions Account or Matching Contributions
Account upon a showing by such Participant that an Unforeseeable Emergency has
occurred. Such distributions shall be limited to the amount shown to be
necessary to meet the Unforeseeable Emergency.
9
<PAGE> 11
SECTION 10. VESTING. Notwithstanding anything contained herein to the
contrary, a Participant's accrued balance in such Participant's Deferral
Account (and the amounts payable with respect thereto) shall be fully vested at
all times. A Participant's accrued balance in such Participant's Matching
Contributions Account (and the amounts payable with respect thereto) and in
such Participant's Supplemental Contributions Account (and the amounts payable
with respect thereto) shall, in each case, become 100% vested after a
Participant completes five years of continuous service with the Company.
Notwithstanding the immediately preceding sentence, if (a) the Participant
dies, (b) the Participant's employment with the Company is terminated due to
Disability or (c) a Change of Control occurs, such Participant's accrued
balance in the Matching Contributions Account and Supplemental Contributions
Account shall be fully vested as of the date of death, the date of such
termination or the date of any such Change of Control, as the case may be.
SECTION 11. FORFEITURE. If a Participant's employment with the Company
is terminated for any reason (other than death) prior to such Participant's
vesting under Section 10, such unvested Participant's accrued balance in such
Participant's Matching Contributions Accounts (and the amounts payable with
respect thereto) and in such Participant's Supplemental Contributions Account
(and the amounts payable with respect thereto) shall, in each case, be
forfeited by such Participant.
SECTION 12. ROLL OVER OF DEFERRED COMPENSATION PLAN BALANCES. Those
Participants in this Plan who also have balances in the Deferred Compensation
Plan can elect to have the value of their Deferred Compensation Plan credited
to this Plan at any time. The amount credited will not be eligible for the
Matching Contributions under section 5 (b). The balance of the Participant's
Deferred Compensation Plan will be credited to the Participants Rollover
Account as soon as is administratively feasible during the month following the
month in which the election to roll over the balance is made, at the same time
as other contributions are credited pursuant to Section 7.
10
<PAGE> 12
SECTION 13. AMENDMENT. The Plan may be amended, modified or terminated
at any time, for any reason, without notice, by the Committee except that no
such amendment, modification or termination shall have a material adverse
effect on the vested accrued balance of any Participant's Deferral Account,
Supplemental Contributions Account and/or Matching Contributions Account as of
the effective date of any such amendment, modification or termination (without
the consent of the Participant (or, if the Participant is dead, his or her
beneficiary (ies))).
SECTION 14. PARTICIPANT'S RIGHT UNSECURED; NO DUTY TO INVEST. The
right of a Participant to receive any distribution hereunder shall be an
unsecured claim against the general assets of the Company. No Company assets
shall in any way be subject to any prior claim by any Participant. The Company
shall have no duty whatsoever to set aside or invest any amounts credited to
any Deferral Account, Supplemental Contributions Account or Matching
Contributions Account established under the Plan. Nothing in the Plan shall
confer upon any employee of the Company any right to continued employment with
the Company, nor shall it interfere in any way with the right of the Company to
terminate the employment of any employee at any time for any reason. A
Participant shall have no right, title, or interest whatsoever in or to any
specific assets of the Company, nor any investments, if any, which the Company
may make to aid it in meeting its obligations hereunder. Nothing contained in
this Plan, and no action taken pursuant to its provisions, shall create or be
construed to create a trust of any kind, or a fiduciary relationship, between
the Company and any Participant or any other person. The Company will maintain
a "rabbi" trust agreement to provide for a source of funds out of which all or
any portion of the benefits under the Plan may be satisfied.
SECTION 15. RESTRICTIONS ON ALIENATION. No amount deferred or credited
to any Account under the Plan shall be subject in any manner to anticipation,
alienation, sale, transfer, assignment, pledge, encumbrance, levy or charge.
Any attempt to so anticipate, alienate, sell, transfer, assign, pledge,
encumber, levy or charge the same shall be void; nor shall any amount be in any
manner be subject to any claims for the debts, contracts,
11
<PAGE> 13
liabilities, engagements or torts of the Participant (or the Participant's
beneficiary or personal representative) entitled to such benefit. No
Participant shall be entitled to borrow at any time any portion of the
Participant's Account balances under the Plan.
SECTION 16. WITHHOLDING. There shall be deducted from all payments
under the Plan the amount of any taxes required to be withheld by any Federal,
state or local taxing authority. The Participants, their beneficiaries and
personal representatives shall bear any and all Federal, foreign, state or
local income or any other tax imposed on amounts paid under the Plan.
Employment taxes on amounts allocated to Participant's Accounts will be
withheld when services are rendered or later, when such amounts vest.
SECTION 17. PARTICIPANTS BOUND BY TERMS OF THE PLAN. By electing to
become a Participant, each Eligible Executive shall be deemed conclusively to
have accepted and consented to all terms of the Plan and all actions or
decisions made by the Company with regard to the Plan. Such terms and consent
shall also apply to and be binding upon the beneficiaries, personal
representatives and other successors in interest of each Participant. Each
Participant shall receive a copy of the Plan.
SECTION 18. DESIGNATION OF BENEFICIARY(IES). Each Participant under
the Plan may designate a beneficiary or beneficiaries to receive any payment
which under the terms of the Plan becomes payable on, after or as a result of
the Participant's death. At any time, and from time to time, any such
designation may be changed or canceled by the Participant without the consent
of any such beneficiary. Any such designation, change or cancellation must be
on a form provided for that purpose by the Committee and shall not be effective
until received by the Committee. If no beneficiary has been designated by a
deceased Participant, the beneficiary shall be the Participant's estate. If
the Participant designates more than one beneficiary, any payments under the
Plan to such beneficiaries shall be made in equal shares unless the Participant
has expressly designated otherwise, in which case the payments shall be made in
the shares designated by the Participant.
12
<PAGE> 14
SECTION 19. SEVERABILITY OF PROVISIONS. In the event any provision of
the Plan would serve to invalidate the Plan, that provision shall be deemed to
be null and void, and the Plan shall be construed as if it did not contain the
particular provision that would make it invalid. The Plan shall be binding
upon and inure to the benefit of (a) the Company and its respective successors
and assigns, and (b) each Participant, his or her designees and estate.
Nothing in the Plan shall preclude the Company from consolidating or merging
into or with, or transferring all or substantially all of its assets to,
another corporation, or engaging in any other corporate transaction.
SECTION 20. GOVERNING LAW AND INTERPRETATION. The Plan shall be
construed and enforced in accordance with, and the rights of the parties hereto
shall be governed by, the laws of the State of Delaware. This Plan shall not
be interpreted as either an employment or trust agreement.
SECTION 21. OTHER COMPANY BENEFIT AND COMPENSATION PROGRAMS. Payments
and other benefits received by a Participant under the Plan shall not be deemed
a part of a Participant's compensation for purposes of the determination of
benefits under any other employee benefit plans or arrangements, if any,
provided by the Company or any affiliate of the Company. The existence of the
Plan notwithstanding, the Company may adopt such other compensation plans or
programs and additional compensation arrangements as it deems necessary to
attract, retain and motivate employees. The Committee is authorized to cause
to be established a trust agreement or several trust agreements or similar
arrangements from which the Committee may make payments of amounts due or to
become due to any Participants under the Plan.
SECTION 22. ARBITRATION. Except as otherwise provided in this Plan,
any controversy between the parties arising out of this Plan shall be submitted
to the American Arbitration Association under its Commercial Arbitration Rules
for binding arbitration. The arbitration shall be held in Fort Smith, Arkansas
or such other location where the Company may have its corporate headquarters,
using a single arbitrator. The costs of the arbitration,
13
<PAGE> 15
including any American Arbitration Association administration fee, the
arbitrator's fee, and costs for the use of facilities during the hearings,
shall be borne equally by the parties to the arbitration. Each side shall bear
its own attorney's fees. The arbitrator shall not have any power to alter,
amend, modify or change any of the terms of this Plan nor to grant punitive,
special, extracontractual, on consequential damages or any other remedy which
is either prohibited by the terms of this Plan, or not available in a court of
law. Judgement on the award rendered by the arbitrator may be entered in any
court having jurisdiction thereof.
SECTION 23. EFFECTIVE DATE OF THE PLAN. The Plan shall be effective as
of January 1, 1997 upon its adoption by the Company.
IN WITNESS WHEREOF, the Plan is hereby adopted by the Company on
this 12th day of December, 1996.
Beverly Enterprises, Inc.
By:
-----------------------------------
Title:
--------------------------------
14
<PAGE> 1
EXHIBIT 4.3
AMENDED
BYLAWS
OF
BEVERLY ENTERPRISES, INC.
AS OF JULY 13, 1996
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<S> <C> <C>
ARTICLE I OFFICES
Section 1. Principal Office........................ 5
Section 2. Other Offices........................... 5
ARTICLE II MEETING OF STOCKHOLDERS
Section 1. Place of Meetings....................... 5
Section 2. Annual Meetings......................... 5
Section 3. Special Meetings........................ 5
Section 4. Notice of Stockholders' Meetings........ 6
Section 5. Manner of Giving Notice; Affidavit
of Notice............................. 6
Section 6. Quorum.................................. 7
Section 7. Organization............................ 7
Section 8. Adjourned Meeting and Notice Thereof.... 7
Section 9. Record Date............................. 8
Section 10. Voting.................................. 9
Section 11. Waiver of Notice by Absent Stockholders. 9
Section 12. Proxies................................. 10
Section 13. Inspectors of Election.................. 10
Section 14. List of Stockholders Entitled to Vote... 11
Section 15. Notice of Stockholder Business.......... 11
Section 16. Notification of Nominees................ 12
Section 17. Substitution of Nominees................ 13
Section 18. Compliance with Procedure............... 14
ARTICLE III DIRECTORS
Section 1. Powers.................................. 14
Section 2. Number of Directors..................... 14
Section 3. Election and Term of Office............. 14
Section 4. Vacancies............................... 14
Section 5. Removal................................. 15
Section 6. Place of Meetings....................... 15
Section 7. Organizational Meeting.................. 16
Section 8. Regular Meetings........................ 16
Section 9. Special Meetings........................ 16
Section 10. Notice of Special Meetings.............. 16
Section 11. Waiver of Notice........................ 16
Section 12. Quorum.................................. 17
Section 13. Organization............................ 17
Section 14. Adjourned Meetings...................... 17
Section 15. Participation in Meetings by Conference
Telephone............................. 18
Section 16. Action Without Meeting.................. 18
Section 17. Inspection by Directors................. 18
Section 18. Fees and Compensation................... 18
</TABLE>
2
<PAGE> 3
<TABLE>
<S> <C> <C>
ARTICLE IV COMMITTEES
Section 1. Committees of Directors................. 19
Section 2. Meetings and Action of Committees....... 20
ARTICLE V OFFICERS
Section 1. Officers................................ 20
Section 2. Election and Tenure..................... 20
Section 3. Subordinate Officers.................... 21
Section 4. Removal and Resignation................. 21
Section 5. Vacancies............................... 21
Section 6. Chairman of the Board................... 21
Section 7. President............................... 22
Section 8. Vice Presidents......................... 22
Section 9. Secretary............................... 22
Section 10. Chief Financial Officer................. 23
Section 11. Treasurer............................... 23
Section 12. Controller.............................. 24
ARTICLE VI INDEMNIFICATION
Section 1. Right of Indemnification................ 24
Section 2. Prepayment of Expenses.................. 25
Section 3. Claims.................................. 25
Section 4. Nonexclusivity of Rights................ 25
Section 5. Contracts and Arrangements.............. 26
Section 6. Amendment or Repeal..................... 26
ARTICLE VII STOCK CERTIFICATES; TRANSFER OF SHARES
Section 1. Certificates............................ 26
Section 2. Consideration for Issuance of Shares.... 26
Section 3. Transfer of Stock....................... 27
Section 4. Lost Certificates....................... 27
Section 5. Transfer Agents and Registrars.......... 27
ARTICLE VIII OTHER PROVISIONS
Section 1. Execution of Documents.................. 27
Section 2. Corporate Seal.......................... 28
Section 3. Employee Stock Purchase Plans........... 28
Section 4. Representation of Shares of Other
Corporations.......................... 29
Section 5. Loans and Guarantees to Directors,
Officers and Employees................ 29
Section 6. Miscellaneous........................... 29
ARTICLE IX AMENDMENTS TO BY-LAWS
Section 1. Amendment by Stockholders............... 29
Section 2. Amendment by Directors.................. 29
</TABLE>
3
<PAGE> 4
AMENDED
BY-LAWS
OF
BEVERLY ENTERPRISES, INC.
ARTICLE I
OFFICES
Section 1. Principal Office. The Board of Directors shall fix the
location of the principal executive office of the Corporation at any place
within or without the State of Delaware. The Board of Directors shall fix and
designate a principal business office in the State of California.
Section 2. Other Offices. The Corporation may also have offices at
such other places both within and without the State of Delaware as the Board of
Directors may from time to time determine or the business of the Corporation
may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. Place of Meeting. All annual meetings of stockholders and
all other meetings of stockholders shall be held at the principal executive
office of the Corporation or at such other place within or without the State of
Delaware which shall be designated by resolution of the Board of Directors from
time to time.
Section 2. Annual Meeting. An annual meeting of stockholders shall
be held for the election of Directors at such date and time as may be
designated by the Board of Directors. Any other proper business may be
transaction at the annual meeting.
Section 3. Special Meetings. Special meetings of stockholders for any
purpose or purposes whatsoever may be called at any time, but only by the Board
of Directors, the Chairman of the Board or the President of the Corporation.
Section 4. Notice of Stockholders' Meetings. Whenever stockholders are
required or permitted to take any action at a meeting, a written notice of the
meeting shall be given which shall state the place, date and hour of the
meeting, and, in the case of a special meeting, the purpose or purposes for
which the meeting is called. Unless otherwise provided by law, the written
4
<PAGE> 5
notice of any meeting shall be given not less than ten (10) nor more than sixty
(60) days before the date of the meeting to each stockholder entitled to vote
at such meeting. The notice of any meeting at which Directors are to be elected
shall include the name of any nominee or nominees whom, at the time of the
notice, management intends to present for election.
Section 5. Manner of Giving Notice; Affidavit of Notice. Notice of any
meeting of stockholders shall be given, either personally or by first-class
mail or telegraphic or other written communication, charges prepaid, addressed
to the stockholder at the address of such stockholder appearing on the books of
the Corporation or given by the stockholder to the Corporation for the purpose
of notice. If no such address appears on the Corporation's books or has been so
given, notice shall be deemed to have been given if sent by first-class mail or
telegraphic or other written communication to the Corporation's principal
executive office or if published at least once in a newspaper of general
circulation in the county where such office is located. Notice shall be deemed
to have been given at the time when delivered personally or deposited in the
mail or sent by telegram or other means of written communication.
Whenever notice is required to be given to any stockholder to whom (i)
notice of two consecutive annual meetings, or (ii) all, and at least two,
payments (if sent by first class mail) of dividends or interest on securities
during a twelve month period, have been mailed addressed to such person at his
or her address as shown on the records of the Corporation and have been
returned undeliverable, the giving of such notice to such person shall not be
required. Any action or meeting which shall be taken or held without notice to
such person shall have the same force and effect as if such notice had been
duly given. If any such person shall deliver to the Corporation a written
notice setting forth his or her then current address, the requirement that
notice be given to such person shall be reinstated.
An affidavit of the mailing or other means of giving any notice of any
stockholders' meeting shall be executed by the Secretary, any Assistant
Secretary or any transfer agent of the Corporation giving such notice, and
shall be filed and maintained in the Minute Book of the Corporation.
Section 6. Quorum. The presence in person or by proxy of the holders
of a majority of the shares entitled to vote at any meeting of stockholders
shall constitute a quorum for the transaction of business. The stockholders
present at a duly called or held meeting at which a quorum is present may
continue to do business until adjournment, notwithstanding the withdrawal of
enough stockholders to leave less than a quorum, if any action taken (other
than adjournment) is approved by at least a majority of the shares required to
constitute a quorum.
5
<PAGE> 6
In the absence of a quorum, the stockholders so present may, by
majority vote, adjourn the meeting from time to time in the manner provided in
Article II, Section 8 of these By-laws until a quorum shall attend. Shares of
its own stock belonging to the Corporation or to another corporation, if a
majority of the shares entitled to vote in the election of directors of such
other corporation is held, directly or indirectly, by the Corporation, shall
neither be entitled to vote nor be counted for quorum purposes; provided,
however, that the foregoing shall not limit the right of the Corporation to
vote stock, including but not limited to its own stock, held by it in a
fiduciary capacity.
Section 7. Organization. Meetings of stockholders shall be presided
over by the Chairman of the Board, or in the absence of the Chairman of the
Board, by the President, or in the absence of the President, by a Vice
President, or in the absence of the foregoing persons, by a chairman designated
by the Board of Directors, or in the absence of such designation, by a chairman
chosen at the meeting. The Secretary shall act as secretary of the meeting, but
in the absence of the Secretary, the chairman of the meeting may appoint any
person to act as secretary of the meeting.
Section 8. Adjourned Meeting and Notice Thereof. Any stockholders'
meeting, whether or not a quorum is present, may be adjourned from time to time
by the vote of a majority of the shares, the holders of which are either
present in person or represented by proxy thereat, but in the absence of a
quorum (except as provided in Section 6 of this Article) no other business may
be transacted at such meeting.
Notice need not be given of any such adjourned meeting if the time and
place thereof are announced at the meeting at which such adjournment is taken;
provided, however, when any stockholders' meeting is adjourned for more than
thirty (30) days, or, if after adjournment a new record date is fixed for the
adjourned meeting, notice of the adjourned meeting shall be given to each
stockholder of record entitled to vote at the meeting.
Section 9. Record Date. In order that the Corporation may determine
the stockholders entitled to notice of or to vote at any meeting of
stockholders or any adjournment thereof, or entitled to receive payment of any
dividend or other distribution or allotment of any rights, or entitled to
exercise any rights in respect of any change, conversion or exchange of stock
or for the purpose of any other lawful action, the Board of Directors may fix a
record date, which record date shall not precede the date upon which the
resolution fixing the record date is adopted by the Board of Directors and
which record date: (1) in the case of determination of stockholders entitled to
vote at any meeting of stockholders or adjournment thereof, shall not be more
than sixty (60) nor less than ten (10) days before the date of such
6
<PAGE> 7
meeting; and (2) in the case of any other action, shall not be more than sixty
(60) days prior to any other action. If no record date is fixed: (1) the record
date for determining stockholders entitled to notice of or to vote at a meeting
of stockholders shall be at the close of business on the day next preceding the
day on which notice is given, or, if notice is waived, at the close of business
on the day next preceding the day on which the meeting is held; and (2) the
record date for determining stockholders for any other purpose shall be at the
close of business on the day on which the Board of Directors adopts the
resolution relating thereto. A determination of stockholders of record entitled
to notice of or to vote at a meeting of stockholders shall apply to any
adjournment of the meeting; provided, however, that the Board of Directors may
fix a new record date for the adjourned meeting.
Section 10. Voting. Except as otherwise provided by the Restated
Certificate of Incorporation of the Corporation, each stockholder entitled to
vote at any meeting of stockholders shall be entitled to one vote for each
share of stock held by such stockholder which has voting power upon the matter
in question. Voting at meetings of stockholders need not be by written ballot
unless the holders of a majority of the outstanding shares of all classes of
stock entitled to vote thereon present in person or by proxy at such meeting
shall so determine. At all meetings of stockholders for the election of
directors a plurality of the votes cast shall be sufficient to elect. All other
elections and questions shall, unless otherwise provided by law or by the
Restated Certificate of Incorporation of the Corporation or these By-laws, be
decided by the vote of the holders of a majority of the shares of stock
entitled to vote thereon present in person or represented by proxy at the
meeting. On any matter other than election of Directors, any stockholder may
vote part of the shares in favor of the proposal and refrain from voting the
remaining shares or vote them against the proposal, but, if the stockholder
fails to specify the number of shares which the stockholder is voting
affirmatively, it will be conclusively presumed that the stockholder's
approving vote is with respect to all shares that the stockholder is entitled
to vote.
Section 11. Waiver of Notice by Absent Stockholders. The transactions
of any meeting of stockholders, either annual or special, however called and
noticed, and wherever held, shall be as valid as though had at a meeting duly
held after regular call and notice, if a quorum be present either in person or
by proxy, and if, either before or after the meeting, each person entitled to
notice, who was not present in person or by proxy, signs a written waiver of
notice to a holding of the meeting, or an approval of the minutes. The waiver
of notice need not specify either the business to be transacted or the purpose
of any annual or special meeting of stockholders. All such waivers or approvals
shall be filed with the records of the Corporation (the
7
<PAGE> 8
"Corporate Records") or made a part of the minutes of the meeting.
Attendance of a person at a meeting shall also constitute a waiver of
notice of that meeting, except when the person objects, at the beginning of the
meeting, to the transaction of any business because the meeting is not lawfully
called or convened, and except that attendance at a meeting is not a waiver of
any right to object to the consideration of matters not included in the notice
of the meeting if that objection is expressly made at the meeting.
Section 12. Proxies. Every person entitled to vote shares has the
right to do so either in person or by one or more persons authorized by a
written proxy executed by such stockholder and filed with the Secretary. Any
proxy duly executed is not revoked and continues in full force and effect until
revoked by the person executing it prior to the vote pursuant thereto by a
writing delivered to the Corporation stating that the proxy is revoked or by a
subsequent proxy executed by, or by attendance at the meeting and voting in
person by, the person executing the proxy; provided, however, that no proxy
shall be valid after the expiration of three (3) years from the date of its
execution unless otherwise provided in the proxy. A proxy is not revoked by the
death or incapacity of the maker unless, before the vote is counted, written
notice of such death or incapacity is received by the Corporation. A duly
executed proxy shall be irrevocable if it states that it is irrevocable and if,
and only as long as, it is coupled with an interest sufficient in law to
support an irrevocable power.
Section 13. Inspectors of Election. (a) In advance of any meeting of
stockholders, the Board of Directors may appoint inspectors of election to act
at the meeting and any adjournment thereof. If inspectors of election are not
so appointed, or if any persons so appointed fail to appear or refuse to act,
the chairman of the meeting of stockholders may, and on the request of the
holders of the majority of the outstanding shares of all classes of stock
entitled to vote shall, appoint inspectors of election (or persons to replace
those who so fail or refuse) at the meeting. The number of inspectors of
election shall be either one (1) or three (3). If appointed at a meeting at the
request of the holders of a majority of the outstanding shares of all classes
of stock entitled to vote, such shares shall determine whether one (1) or three
(3) inspectors are to be appointed.
(b) The inspectors of election shall determine the number of shares
outstanding and the voting power of each, the shares represented at the
meeting, the existence of a quorum and the authenticity, and validity and
effect of proxies, receive votes or ballots, hear and determine all challenges
and questions in
8
<PAGE> 9
any way arising in connection with the right to vote, count and tabulate all
votes, determine when the polls shall close, determine the result, and do such
acts as may be proper to conduct the election or vote with fairness to all
stockholders.
(c) If there are three (3) inspectors of election, the decision, act
or certificate of a majority is effective in all respects as the decision, act
or certificate of all. Any report or certificate made by the inspectors of
election is prima facie evidence of the facts stated herein.
Section 14. List of Stockholders Entitled to Vote. The Secretary shall
prepare and make, at least ten (10) days before every meeting of stockholders,
a complete list of the stockholders entitled to vote at the meeting, arranged
in alphabetical order, and showing the address of each stockholder and the
number of shares registered in the name of each stockholder. Such list shall be
open to the examination of any stockholder, for any purpose germane to the
meeting, during ordinary business hours, for a period of at least ten (10) days
prior to the meeting, either at a place within the city where the meeting is to
be held, which place shall be specified in the notice of the meeting, or, if
not so specified, at the place where the meeting is to be held. The list shall
also be produced and kept at the time and place of the meeting during the whole
time thereof and may be inspected by any stockholder who is present. Upon the
willful neglect or refusal of the Directors to produce such a list at any
meeting for the election of Directors, they shall be ineligible for election to
any office at such meeting. The stock ledger shall be the only evidence as to
who are the stockholders entitled to examine the stock ledger, the list of
stockholders or the books of the Corporation, or to vote in person or by proxy
at any meeting of stockholders.
Section 15. Notice of Stockholder Business. At an annual meeting of
the stockholders, only such business shall be conducted as shall have been
properly brought before the meeting. To be properly brought before an annual
meeting, business must be (a) specified in the notice of meeting (or any
supplement thereto) given by or at the direction of the Board of Directors, (b)
otherwise properly brought before the meeting by or at the direction of the
Board of Directors, or (c) otherwise properly requested to be brought before
the meeting by a stockholder. For business to be properly requested to be
brought before an annual meeting by a stockholder, the stockholder must have
given timely notice thereof in writing to the Secretary of the Corporation. To
be timely, a stockholder's notice must be delivered to or mailed and received
at the principal executive offices of the Corporation, not less than
seventy-five (75) days prior to the meeting; provided, however, that in the
event that the date of the meeting is not publicly announced by the Corporation
by mail, press release or otherwise more than ninety (90) days prior to
9
<PAGE> 10
the meeting, notice by the stockholder to be timely must be delivered to the
Secretary of the Corporation not later than the close of business on the
fifteenth day following the day on which such announcement of the date of the
meeting was communicated to stockholders. A stockholder's notice to the
Secretary shall set forth as to each matter the stockholder proposes to bring
before the annual meeting (a) a brief description of the business desired to be
brought before the annual meeting and the reasons for conducting such business
at the annual meeting, (b) the name and address, as they appear on the
Corporation's books, of the stockholder proposing such business, (c) the class,
series and number of shares of the Corporation which are beneficially owned by
the stockholder, and (d) any material interest of the stockholder in such
business. Notwithstanding anything in the By-laws to the contrary, no business
shall be conducted at an annual meeting except in accordance with the
procedures set forth in these By-laws. The chairman of an annual meeting shall,
if the facts warrant, determine and declare to the meeting that business was
not properly brought before the meeting and in accordance with the provisions
of these By-laws, and if the chairman should so determine, the chairman shall
so declare to the meeting, and any such business not properly brought before
the meeting shall not be transacted.
Section 16. Notification of Nominees. Subject to the rights of holders
of any class or series of stock having a preference over the Common Stock as to
dividends or upon liquidation, nominations for the election of Directors may be
made by the Board of Directors or a committee appointed by the Board of
Directors or by any stockholder entitled to vote in the election of Directors
generally. However, any stockholder entitled to vote in the election of
Directors generally may nominate one or more persons for election as Directors
at a meeting only if written notice of such stockholder's intent to make such
nomination or nominations has been received by the Secretary of the Corporation
not less than seventy-five (75) days prior to such meeting; provided, however,
that in the event that the date of the meeting was not publicly announced by
the Corporation by mail, press release or otherwise more than ninety (90) days
prior to the meeting, notice by the stockholder to be timely must be delivered
to the Secretary of the Corporation at the Corporation's principal executive
offices not later than the close of business on the fifteenth day following the
day on which such announcement of the date of the meeting was mailed or
publicly disclosed. Each such notice shall set forth: (a) the name and address
of the stockholder who intends to make the nomination and of the person or
persons to be nominated; (b) a representation that the stockholder is a holder
of record of stock of the Corporation entitled to vote for the election of
Directors on the date of such notice and intends to appear in person or by
proxy at the meeting to nominate the person or persons specified in the notice;
(c) a description of all
10
<PAGE> 11
arrangements or understandings between the stockholder and each nominee and any
other person or persons (naming such person or persons) pursuant to which the
nomination or nominations are to be made by the stockholder; such other
information regarding each nominee proposed by such (d) stockholder as would be
required to be included in a proxy statement filed pursuant to the proxy rules
of the Securities and Exchange Commission, had the nominee been nominated, or
intended to be nominated, by the Board of Directors; and (e) the consent of
each nominee to serve as a Director of the Corporation if so elected.
Section 17. Substitution of Nominees. In the event that a person is
validly designated as a nominee by a stockholder entitled to vote in the
election of Directors in accordance with these By-laws and shall thereafter
become unable or unwilling to stand for election to the Board of Directors, the
stockholder who proposed such nominee may designate a substitute nominee upon
delivery, not fewer than five (5) days prior to the date of the meeting for the
election of such nominee, of a written notice to the Secretary setting forth
such information regarding such substitute nominee as would have been required
to be delivered to the Secretary pursuant to these By-laws had such substitute
nominee been initially proposed as a nominee. Such notice shall include a
signed consent to serve as a Director of the Corporation, if elected, of each
such substitute nominee.
Section 18. Compliance with Procedure. If the chairman of the meeting
for the election of Directors determines that a nomination of any candidate for
election as a Director at such meeting was not made in accordance with the
applicable provisions of Section 16 and Section 17, such nomination shall be
void; provided, however, that nothing in Section 16 and Section 17 shall be
deemed to limit any voting rights upon the occurrence of divided arrearage
provided to holders of Preferred Stock pursuant to the preferred stock
designation for any series of Preferred Stock.
ARTICLE III
DIRECTORS
Section 1. Powers. Subject to the provision of the General Corporation
Law of the State of Delaware and any limitations in the Restated Certificate of
Incorporation of the Corporation and these By-laws relating to action required
to be approved by the stockholders or by the outstanding shares, the business
and affairs of the Corporation shall be managed and all corporate powers shall
be managed by or under the direction of the Board of Directors.
Section 2. Number of Directors. The number of Directors of the
Corporation which shall comprise the full Board of Directors
11
<PAGE> 12
shall be fixed by resolution of the Board of Directors.
Section 3. Election and Term of Office. The Directors shall be elected
at each annual meeting of stockholders. Directors need not be stockholders.
Each Director, including a Director elected to fill a vacancy, shall hold
office until the next annual meeting and until a successor is elected and
qualified.
Section 4. Vacancies. Vacancies in the Board of Directors occurring
for any cause may be filled by a majority of the remaining Directors then in
office, whether or not less than a quorum, or by a sole remaining Director,
except that a vacancy created by the removal of a Director pursuant to Section
5 hereof may be filled only by the affirmative vote of a majority of the shares
entitled to vote represented at a duly held meeting at which a quorum is
present.
A vacancy or vacancies on the Board shall be deemed to exist in case
of the death, resignation or removal of any Director, or if the number of
Directors be increased, or if the stockholders fail, at any annual meeting of
stockholders at which any Director or Directors are elected, to elect the full
number of Directors to be voted for at the meeting, or in any other instance in
which any position of Director is not then filled by a duly elected Director.
No reduction of the number of Directors shall have the effect of removing any
Director prior to the expiration of his or her term of office.
The stockholders may elect a Director or Directors at any time to fill
any vacancy or vacancies not filled by the Directors.
Any Director may resign at any time upon giving written notice to the
Corporation. A resignation shall be effective upon the giving of the notice,
unless the notice specifies a later time for its effectiveness. If the
resignation of a Director is effective at a future time, the Board of Directors
may elect a successor to take office when the resignation becomes effective.
Section 5. Removal. The entire Board of Directors or any individual
Director may be removed, with or without cause, from office by the affirmative
vote of a majority of the outstanding shares entitled to vote. When by the
provisions of the Restated Certificate of Incorporation of the Corporation the
holders of the shares of any class or series, voting as a class or series, are
entitled to elect one or more Directors, any Director so elected may be removed
only by the applicable vote of the holders of the shares of that class or
series.
Section 6. Place of Meetings. Meetings of the Board of Directors may
be held at any place within or without the State of
12
<PAGE> 13
Delaware which has been designated from time to time by resolution of the Board
or, in case of special meetings of the Board of Directors, which has been
designated in the notice of the meeting. In the absence of such designation,
all meetings shall be held at the principal executive office of the
Corporation.
Section 7. Organizational Meeting. Immediately following each annual
meeting of stockholders, the Board of Directors shall hold an organizational
meeting for the purpose of election of officers and the transaction of other
business. Call and notice of such organizational meeting is hereby dispensed
with.
Section 8. Regular Meetings. Regular meetings of the Board of
Directors shall be held without call at such time as shall from time to time be
determined by the Board of Directors. Such regular meetings may be held without
notice, provided notice of any change in the determination of the time of such
meetings shall be sent to all of the Directors. Notice of a change in the
determination of the time shall be given to each Director in the same manner as
for special meetings of the Board of Directors.
Section 9. Special Meetings. Special meetings of the Board of
Directors for any purpose or purposes may be held at any time or place within
or without the State of Delaware whenever called by the Chairman of the Board,
the President, any Vice President, the Secretary or any two (2) Directors.
Section 10. Notice of Special Meetings. Notice of the time and place
of special meetings of the Board of Directors shall be delivered personally or
by telephone to each Director or sent by first-class mail or telegram, charges
prepaid, addressed to each Director at that Director's address as it is shown
on the records of the Corporation. In case the notice is mailed, it shall be
deposited in the United States mail at least four (4) days before the time of
the holding of the meeting. In case the notice is delivered personally, or by
telephone or telegram, it shall be delivered personally or by telephone or to
the telegraph company at least forty-eight (48) hours before the time of the
holding of the meeting. Any oral notice given personally or by telephone may be
communicated either to the Director or to a person at the office of the
Director whom the person giving the notice has reason to believe will promptly
communicate it to the Director. The notice need not specify the purpose of the
meeting, nor the place if the meeting is to be held at the principal executive
office of the Corporation.
Section 11. Waiver of Notice. The transactions of any meeting of the
Board of Directors, however called and noticed or wherever held, are as valid
as though had at a meeting duly held after regular call and notice, if a quorum
is present and if, either before or after the meeting, each of the Directors
13
<PAGE> 14
entitled to notice and not present signs a written waiver of notice, a consent
to holding the meeting or an approval of the minutes thereof. All such waivers,
consents and approvals shall be filed with the Corporate Records and made a
part of the minutes of the meeting. Attendance of a Director at a meeting shall
constitute a waiver of notice of such meeting, except when the Director attends
the meeting for the express purpose of objecting, at the beginning of the
meeting, to the transaction of any business because the meeting is not lawfully
called or convened.
Section 12. Quorum. A majority of the number of Directors constitutes
a quorum of the Board for the transaction of business. Every act or decision
done or made by a majority of the Directors present at a meeting duly held at
which a quorum is present is the act of the Board of Directors, unless the
General Corporation Law of the State of Delaware, the Restated Certificate of
Incorporation of the Corporation or these By-laws require a greater number. A
meeting at which quorum is initially present may continue to transact business
notwithstanding the withdrawal of Directors, if any action taken is approved by
at least a majority of the required quorum for such meeting.
Section 13. Organization. Meetings of the Board of Directors shall be
presided over by the Chairman of the Board, or in the absence of the Chairman
of the Board, by the President, or in their absence, by a chairman chosen at
the meeting. The Secretary shall act as secretary of the meeting, but in the
absence of the Secretary, the chairman of the meeting may appoint any person to
act as secretary of the meeting.
Section 14. Adjourned Meeting. A majority of the Directors present,
whether or not a quorum is present, may adjourn any meeting to another time and
place. If the meeting is adjourned for more than twenty-four (24) hours, notice
of any adjournment to another time or place shall be given prior to the time of
the adjourned meeting to the Directors who were not present at the time of the
adjournment.
Section 15. Participation in Meetings by Conference Telephone. Members
of the Board may participate in a meeting by means of conference telephone or
similar communications equipment, so long as all members participating in such
meeting can hear one another. Participation in a meeting pursuant to this
Section constitutes presence in person at such meeting.
Section 16. Action Without Meeting. Any action required or permitted
to be taken at any meeting of the Board of Directors under the provisions of
the General Corporation Law of the State of Delaware may be taken without a
meeting if all members of the Board shall, individually or collectively,
consent in writing to such action. Such written consent or consents shall be
filed
14
<PAGE> 15
with the minutes of the proceedings of the Board. Such action by written
consent shall have the same force and effect as a unanimous vote of such
Directors. Any certificate or other document filed under any provision of the
General Corporation Law of the State of Delaware which relates to action so
taken shall state that the action was taken by unanimous written consent of the
Board of Directors without a meeting, and that the By-laws authorize the
Directors to so act, and such statement shall be prima facie evidence of such
authority.
Section 17. Inspection by Directors. Every Director shall have the
absolute right at any reasonable time to inspect and copy all books, records
and documents of every kind and to inspect the physical properties of the
Corporation and also of its subsidiary corporations. Such inspection by a
Director may be made in person or by an agent or attorney and the right of
inspection includes the right to copy and make extracts.
Section 18. Fees and Compensation. Directors and members of committees
may receive such compensation, if any, for their services, and such
reimbursement for expenses, as may be fixed or determined by resolution of the
Board of Directors. Nothing herein contained shall be construed to preclude any
Director from serving the Corporation in any other capacity as an officer,
agent, employee or otherwise, and receiving compensation therefor.
ARTICLE IV
COMMITTEES
Section 1. Committees of Directors. The Board of Directors may, be
resolution, designate one (1) or more committees, each consisting of one (1) or
more Directors to serve at the pleasure of the Board. The Board may designate
one (1) or more Directors as alternate members of any committee, who may
replace any absent or disqualified member at any meeting of the committee.
The Executive Committee of the Board of Directors, if any, shall
advise and aid the Officers of the Corporation in all matters concerning its
interests and the management of its business and affairs, and shall have all
the authority of the Board, except as set forth below as limited by the Board
of Directors. Any other committee of the Board shall have or may exercise such
specific powers of the Board in the management of the business and affairs of
the Corporation as are set forth in resolutions of the Board. Neither the
Executive Committee nor any other committee of the Board shall have the power
or authority in reference to amending the Restated Certificate of Incorporation
of the Corporation (except that any such committee may, to the extent
authorized in the resolution or resolutions providing for the issuance of
shares of Preferred Stock adopted
15
<PAGE> 16
by the Board of Directors pursuant to Article IV of the Restated Certificate of
Incorporation of the Corporation, fix the designations and any of the
preferences or rights of such shares relating to dividends, redemption,
dissolution, any distribution of assets of the Corporation or the conversion
into, or the exchange of such shares for, shares of any other class or classes
or any other series of the same or any other class or classes of stock of the
Corporation and fix the number of shares of any series of stock or authorize
the increase or decrease of the shares of any series), adopting an agreement of
merger or consolidation under Section 251 and 252 of the General Corporation
Law of the State of Delaware, recommending to the stockholders the sale, lease
or exchange of all or substantially all of the Corporation's property and
assets recommending to the stockholders a dissolution of the Corporation or a
revocation of a dissolution, or amending these By-laws; and unless the
resolution or the Restated Certificate of Incorporation of the Corporation
expressly so provides, no such committee shall have the power or authority to
declare a dividend, to authorize the issuance of stock, or to adopt a
certificate of ownership and merger pursuant to Section 253 of the General
Corporation Law of the State of Delaware. The Board of Directors shall have the
power at any time to fill vacancies on, to change the membership of, or to
discharge any such committee.
Section 2. Meetings and Action of the Committees. Meetings and action
of the committees shall be governed by, and held and taken in accordance with,
the applicable provisions of Article III of these By-laws, with such changes in
the context of those By-laws as are necessary to substitute the committee and
its members for the Board of Directors and its members, except that the time of
regular meetings of committees may be determined either by the Board of
Directors or by the committee; special meetings of committees may also be
called by the Board of Directors; and notice of special meetings of committees
shall also be given to alternate members, if any, who shall have the right to
attend all meetings of the committee. The Board of Directors may adopt rules
for the government of any committee not inconsistent with the provisions of
these By-laws. The Executive Committee, if any, and any other committees of the
Board of Directors shall keep regular minutes of their proceedings and report
the same to the Board as may be required by the Board.
ARTICLE V
OFFICERS
Section 1. Officers. The Board of Directors shall elect a Chairman of
the Board, a President, a Vice President, a Secretary, a Chief Financial
Officer, a Treasurer and a Controller. The Corporation may also have, at the
discretion of the Board of Directors, one or more additional Vice Presidents,
16
<PAGE> 17
one or more Assistant Vice Presidents, one or more Assistant Controllers, one
or more Assistant Secretaries, one or more Assistant Treasurers and such other
Officers as may be elected or appointed in accordance with the provisions of
Section 3 of this Article V. Officers, other than the Chairman of the Board and
the President, need not be Directors. The Board of Directors may designate a
Chief Executive Officer, a Chief Operating Officer, a Chief Legal Officer, and
a Chief Accounting Officer. Any number of offices may be held by the same
person.
Section 2. Election and Tenure. The Officers of the Corporation,
except such Officers as may be elected or appointed in accordance with the
provisions of Section 3 or Section 5 of this Article V, shall be chosen
annually, or at such other times as a vacancy may occur, by, and shall serve at
the pleasure of, the Board of Directors, and shall hold their respective
offices until their resignation, removal or other disqualification from
service, or until their respective successors shall be elected and qualified.
Section 3. Subordinate Officers. The Board of Directors may elect or
appoint such other Officers as the business of the Corporation may require,
each of whom shall hold office for such period, have such authority and perform
such duties as are provided in these By-laws or as the Board of Directors may,
from time to time, determine. The Chairman of the Board, the President or the
Secretary may appoint in writing any Assistant Secretary or Assistant
Treasurer, each of whom shall hold office for such period, have such authority
and perform such duties as are provided in these By-laws or as the Board of
Directors or the Chairman, may, from time to time, determine.
Section 4. Removal and Resignation. Any Officer may be removed, either
with or without cause, by a majority of the Directors at the time in office, at
any regular or special meeting of the Board, or, except in case of an Officer
chosen by the Board of Directors, by an Officer upon whom such power of removal
may be conferred by the Board of Directors. Any such removal shall be without
prejudice to the rights, if any, of the Officer under any contract of
employment.
Any Officer may resign at any time by giving written notice to the
Corporation, but without prejudice to the rights, if any, of the Corporation
under any employment contract to which the Officer is a party. Any such
resignation shall take effect at the date of the receipt of such notice or at
any later time specified therein; and, unless otherwise specified therein, the
acceptance of such resignation shall not be necessary to make it effective.
Section 5. Vacancies. A vacancy in any office because of death,
resignation, removal, disqualification or any other cause
17
<PAGE> 18
shall be filled in the manner prescribed in these By-laws for regular election
or appointment to such office.
Section 6. Chairman of the Board. The Chairman of the Board shall,
subject to the control of the Board of Directors, have general supervision,
direction and control of the business and affairs of the Corporation. The
Chairman of the Board shall exercise and perform such powers and duties as may
be, from time to time, assigned by the Board of Directors, or prescribed by
these By-laws.
Section 7. President. Subject to such supervisory powers as may be
given by the Board of Directors to the Chairman of the Board, and subject to
the control of the Chairman of the Board, the President shall have specific
supervision, direction and control of the operational affairs of the
Corporation. The President shall preside at all meetings of the stockholders
and Directors in the absence of the Chairman of the Board. The President shall
have the general powers and duties of the management usually vested in the
office of the President of the Corporation, and shall have such other powers
and duties as may be prescribed by the Board of Directors or these By-laws.
Section 8. Vice Presidents. In the absence or disability of the
President, the Vice Presidents in order of their rank as fixed by the Board of
Directors, or, if not ranked, the Vice President designated by the Board of
Directors, shall perform all the duties of the President, and when so acting
shall have all the powers of, and be subject to all the restrictions upon, the
President. The Vice Presidents shall have such other powers and perform such
other duties as, from time to time, may be prescribed for them respectively by
the Board of Directors or by these By-laws.
Section 9. Secretary. The Secretary shall keep, or cause to be kept at
the principal executive office or such other places as the Board of Directors
may order, a book of the minutes of all meetings of the stockholders, the Board
and its committees, with the time and place of holding, whether regular or
special, and if special, how authorized; the notice thereof given; the names of
those present at the Board and committee meetings; the number of shares present
or represented at stockholders' meetings; and the proceedings thereof. The
Secretary shall keep, or cause to be kept, a copy of the By-laws of the
Corporation, as the same may be amended, at the principal executive office of
the Corporation, which By-laws shall be open to inspection by the stockholders
at all reasonable times during office hours.
The Secretary shall keep, or cause to be kept, at the principal
executive office of the Corporation or at the office of the Corporation's
transfer agent or registrar, a share register, or a duplicate share register,
showing the names of the
18
<PAGE> 19
stockholders and their addresses; the number and classes of shares held by
each; the number and date of certificates issued for the same; and the number
and date of cancellation of every certificate surrendered for cancellation.
The Secretary shall give, or cause to be given, notice of all of the
meetings of the stockholders and of the Board of Directors and of any
committees thereof, required by the By-laws or by law to be given, and the
Secretary shall keep the seal of the Corporation in safe custody and shall have
such other powers and perform such other duties as may be prescribed by the
Board of Directors or these By-laws.
Section 10. Chief Financial Officer. The Chief Financial Officer shall
keep and maintain, or cause to be kept and maintained, adequate and correct
accounts of the properties and business transactions of the Corporation,
including accounts of its assets, liabilities, receipts, disbursements, gains,
losses, capital and shares. The Chief Financial Officer shall send or cause to
be sent to the stockholders of the Corporation such financial statements and
reports as are by law or these By-laws required to be sent to them. The books
of account at all reasonable times shall be open to inspection by any Director.
The Chief Financial Officer shall deposit all monies and other
valuables in the name and to the credit of the Corporation with such
depositories as may be designated by the Board of Directors. The Chief
Financial Officer shall disburse the funds of the Corporation as may be ordered
by the Board of Directors, shall render to the President and Directors,
whenever they request it, an account of all of his or her transactions as Chief
Financial Officer and of the financial condition of the Corporation, and shall
have such other powers and perform such other duties as may be prescribed by
the Board of Directors or by the By-laws.
Section 11. Treasurer. The Treasurer shall assist the Chief Financial
Officer in such duties as the Chief Financial Officer shall direct, and the
duties of the Treasurer shall include the following unless otherwise directed:
(a) deposit all monies and other valuables in the name and
to the credit of the Corporation with such depositories as may be
designated by the Board of Directors;
(b) disburse the funds of the Corporation as may be ordered
by the Board of Directors;
(c) invest excess funds of the Corporation as authorized by
the Board of Directors; and
(d) assist the Chief Financial Officer in obtaining debt or
19
<PAGE> 20
capital financing as may be directed by the Board of Directors.
Section 12. Controller. The Controller shall assist the Chief
Financial Officer in such duties as the Chief Financial Officer shall direct,
and the duties of the Controller shall include the following, unless otherwise
directed:
(a) keep and maintain, or cause to be kept and maintained, adequate
and correct accounts of the properties and business transactions of the
Corporation, including accounts of its assets, liabilities, receipts,
disbursements, gains, losses, capital and shares; and
(b) prepare or cause to be prepared and rendered to the Chief
Financial Officer, the President and the Directors such financial statements
and reports as are required by law or these By-laws.
ARTICLE VI
INDEMNIFICATION
Section 1. Right to Indemnification. The Corporation shall indemnify
and hold harmless, to the fullest extent permitted by applicable law as it
presently exists or may hereafter be amended, any person who was or is made or
is threatened to be made a party or is otherwise involved in any action, suit
or proceeding, whether civil, criminal, administrative or investigative (a
"proceeding") by reason of the fact that he or she, or a person for whom he or
she is the legal representative, is or was a Director or Officer of the
Corporation (or a Director or Officer of Beverly Enterprises, a California
corporation ("Beverly California"), prior to the merger of Beverly Merger,
Inc., a subsidiary of the Corporation organized under California law, into
Beverly California) or is or was serving at the request of the Corporation as a
Director, Officer, employee, fiduciary or agent of another corporation or of a
partnership, joint venture, trust, enterprise or nonprofit entity, including
service with respect to employee benefit plans, against all liability and loss
suffered and expenses reasonably incurred by such person. The Corporation shall
indemnify a person in connection with a proceeding initiated by such person
only if the proceeding was authorized by the Board of Directors of the
Corporation.
Section 2. Prepayment of Expenses. The Corporation shall pay the
expenses incurred in defending any proceeding in advance of its final
disposition, provided, however, that the payment of expenses incurred by a
Director or Officer in his or her capacity as a Director or Officer in advance
of the final disposition of the proceeding shall be made only upon receipt of
an undertaking by the Director or Officer to repay all amounts advanced if it
should be ultimately determined by that the Director or Officer
20
<PAGE> 21
is not entitled to be indemnified under this Article or otherwise.
Section 3. Claims. If a claim for indemnification or payment of
expenses under this Article VI is not paid in full within ninety (90) days
after a written claim therefor has been received by the Corporation, the
claimant may file suit to recover the unpaid amount of such claim and, if
successful in whole or in part, shall be entitled to be paid the expense of
prosecuting such claim. In any such action the Corporation shall have the
burden of proving that the claimant was not entitled to the requested
indemnification or payment of expenses under applicable law.
Section 4. Nonexclusivity of Rights. The rights conferred on any
person by this Article VI shall not be exclusive of any other right which such
person may have or hereafter acquire under any statute, provision of the
Restated Certificate of Incorporation of the Corporation, these By-laws,
agreement, vote of stockholders or disinterested directors or otherwise.
Section 5. Contracts and Arrangements. The Corporation may enter into
contracts providing indemnification to the full extent authorized or permitted
by the General Corporation Law of the State of Delaware and may create a trust
fund, grant a security interest and/or use other means (including, without
limitation, letters of credit, surety bonds and other similar arrangements) to
ensure the payment of such amounts as may become necessary to effect
indemnification pursuant to such contracts or otherwise.
Section 6. Amendment or Repeal. Any repeal or modification of the
foregoing provisions of this Article VI shall not adversely affect any right or
protection of any person in respect of any act or omission occurring prior to
the time of such repeal or modification.
ARTICLE VII
STOCK CERTIFICATES; TRANSFER OF SHARES
Section 1. Certificates. Every holder of shares of the Corporation
shall be entitled to have a certificate signed in the name of the Corporation
by the Chairman of the Board, the President or a Vice President and by the
Treasurer or an Assistant Treasurer or the Secretary or an Assistant Secretary,
certifying the number of shares and the class or series of shares owned by the
stockholder. Any or all of the signatures on the certificate may be facsimile.
If any officer, transfer agent or registrar who has signed or whose facsimile
signature has been placed upon a certificate shall have ceased to be such
officer, transfer agent or registrar before such certificate is issued, it may
be issued by the Corporation with the same effect as if such
21
<PAGE> 22
person were an officer, transfer agent or registrar at the date of issue.
Section 2. Consideration for Issuance of Shares.
(a) Shares may be issued:
(1) For such consideration as is determined from time to time by
the Board of Directors; or
(2) As a share dividend or upon a stock split, reverse stock
split, reclassification of outstanding shares into shares of another class,
conversion of outstanding shares into shares of another class, exchange of
outstanding shares for shares of another class or other change affecting
outstanding shares.
Section 3. Transfer of Stock. Upon surrender to the Secretary or
transfer agent of the Corporation of a certificate for shares duly endorsed or
accompanied by proper evidence of succession, assignment or authority to
transfer, and in compliance with any legend or restrictive condition on the
share certificate applicable to its transfer, it shall be the duty of the
Corporation to issue a new certificate to the person entitled thereto, cancel
the old certificate and record the transaction upon its books. Except as
provided in Section 4 hereof, no new certificate for shares shall be issued to
replace an old certificate unless the latter is surrendered to the Corporation
and cancelled at the same time.
Section 4. Lost Certificates. The Corporation may, in case any share
certificate or certificate for any other security is alleged to have been lost,
stolen or destroyed, authorize the issuance of a replacement certificate on
such terms and conditions as the Corporation may require, including provision
for indemnification of the Corporation by giving a bond or other adequate
security sufficient to protect the Corporation against any claim that may be
made against it, including any expense or liability, on account of the alleged
loss, theft or destruction of the certificate or the issuance of the
replacement certificate.
Section 5. Transfer Agents and Registrars. The Board of Directors may
appoint one or more transfer agents or transfer clerks and one or more
registrars, which may be appointed at such times and places as the requirements
of the Corporation may necessitate and the Board of Directors may designate.
The Board may appoint the same bank or other financial company or institution
as both transfer agent and registrar.
22
<PAGE> 23
ARTICLE VIII
OTHER PROVISIONS
Section 1. Execution of Documents. Subject to the provisions of
applicable law, any note, mortgage, evidence of indebtedness, contract, share
certificate, conveyance, or other instrument in writing and any assignment or
endorsement thereof, executed or entered into between the Corporation and any
other person, when signed by the Chairman of the Board, the President, any Vice
President, the Secretary, any Assistant Secretary, the Treasurer, or any
Assistant Treasurer of the Corporation shall be valid and binding on the
Corporation in the absence of actual knowledge on the part of the other person
that the signing officers had no authority to execute the same. Any such
instruments may be signed by any other person or persons and in such manner as
from time to time shall be determined by the Board.
Section 2. Corporate Seal. The corporate seal shall have the name of
the Corporation inscribed thereon and shall be in such form as may be approved
from time to time by the Board of Directors. The failure to affix the corporate
seal does not affect the validity of any instrument.
Section 3. Employee Stock Purchase Plans. The Corporation may adopt
and carry out a stock purchase plan or agreement or stock option plan or
agreement providing for the issue and sale for such consideration as may be
fixed of its unissued shares, or of issued shares acquired or to be acquired,
to one or more of the employees or Directors of the Corporation or of a
subsidiary or to a trustee on their behalf and for the payment for such shares
in installments or at one time, and may provide for aiding any such persons in
paying for such shares by compensation for services rendered, promissory notes
or otherwise.
Any such stock purchase plan or agreement or stock option plan or
agreement may include, among other features, the fixing of eligibility for
participation under the plan or agreement, the number of shares which may be
subscribed for, the method of payment therefor, the reservation of title until
full payment therefor, the effect of the termination of employment, an option
or obligation on the part of the Corporation to repurchase the shares upon
termination of employment, subject to the provisions of the General Corporation
Law of the State of Delaware, restrictions upon transfer of the shares, the
time limits of and termination of the plan, and any other matters, not in
violation of applicable law, as may be included in the plan as approved or
authorized by the Board.
Section 4. Representation of Shares of Other Corporations. The
Chairman of the Board, the President or any Vice President, or any other person
authorized by resolution of the Board of Directors or by any of the foregoing
designated officers, is authorized to vote on behalf of the Corporation any and
all shares of any other corporation or corporations, foreign or
23
<PAGE> 24
domestic, standing in then name of the Corporation. The authority granted to
these officers to vote or represent on behalf of the Corporation any and all
shares held by the Corporation in any other corporation or corporations may be
exercised by any of these officers in person or by any person authorized to do
so by a proxy duly executed by these officers.
Section 5. Loans and Guarantees to Directors, Officers and Employees.
The Corporation may lend money to, or guarantee any obligation of, or otherwise
assist any Director, Officer or other employee of the Corporation or any of its
subsidiaries, whenever, in the judgment of the Directors, such loan guaranty or
assistance may reasonably be expected to benefit the Corporation. The loan,
guaranty or other assistance may be with or without interest, and may be
unsecured, or secured in such manner as the Board of Directors shall approve,
including, without limitation, a pledge of shares of stock of the Corporation.
Section 6. Miscellaneous. Effective upon adoption of this Section 6 by
the Board of Directors, the Corporation shall not be governed by Section 203 of
the General Corporation Law of the State of Delaware. Notwithstanding anything
in Article IX of these By-laws to the contrary, this Section 6 shall not be
further amended by the Board of Directors of the Corporation.
ARTICLE IX
AMENDMENTS TO BY-LAWS
Section 1. Amendment by Stockholders. New By-laws may be adopted or
these By-laws may be amended or repealed by the vote of holders of a majority
of the outstanding shares entitled to vote.
Section 2. Amendment by Directors. Subject to the right of the
stockholders as provided in Section 1 of this Article IX to adopt, amend or
repeal By-laws, By-laws may be adopted, amended or repealed by the Board of
Directors.
24
<PAGE> 1
EXHIBIT 5.1
OPINION OF JOHN W. MACKENZIE, ESQ.
<PAGE> 2
EXHIBIT 5.1
January 24, 1997
Beverly Enterprises, Inc.
5111 Rogers Avenue, Suite 40-A
Fort Smith, Arkansas 72919
Ladies and Gentlemen:
I am the Deputy General Counsel of Beverly Enterprises, Inc., a Delaware
corporation (the "Company"), and have acted as counsel for the Company in
connection with the proposed filing with the Securities and Exchange Commission
expected to be made on or about January 24, 1997 under the Securities Act of
1933, as amended, of a Registration Statement on Form S-8 (the "Registration
Statement") for the purpose of registering (i) $14,000,000 of obligations which
represent unsecured obligations of the Company to pay deferred compensation in
the future (the "Obligations") in accordance with the terms of the Beverly
Enterprises, Inc. Executive Deferred Compensation Plan for a select group of
eligible employees (the "Plan") and (ii) an indeterminate number of shares of
Common Stock of the Company as may be issuable upon payment of the Obligations,
including such shares as may be issuable as a result of stock splits, stock
dividends or similar transactions. In such capacity, I have examined the
Restated Certificate of Incorporation and By-Laws of the Company (as amended),
the Plan, and such other documents of the Company as I have deemed necessary or
appropriate for the purposes of the opinions expressed herein.
Based upon the foregoing, I advise you that, in my opinion, when issued
in accordance with the provisions of the Plan, (i) the Obligations will be
valid and binding obligations of the Company, enforceable in accordance with
their terms and (ii) the shares of Common Stock issuable under the Plan, when
delivered and paid for in accordance with the Plan, will be validly issued,
fully paid, and nonassessable. With respect to clause (i) of the preceding
sentence, the enforceability of the Obligations is limited by and subject to
(a) general principles of equity (regardless of whether considered and applied
in a proceeding in equity or at law) and (b) applicable bankruptcy, insolvency,
liquidation, moratorium, conservatorship, receivership, reorganization, or
similar laws (including without limitation statutory or other laws regarding
fraudulent transfers or conveyances or preferential transfers), and court
decisions of general application affecting the rights of creditors generally.
I am licensed to practice law in the Commonwealth of Kentucky. As I am
generally familiar with the Delaware General Corporation Law, however, I did
not consider obtaining special Delaware counsel to be necessary to render the
opinions expressed herein. Accordingly, this opinion letter is based on my
general knowledge and experience and not based on the advice or opinion of
counsel licensed to practice law in the State of Delaware. This opinion letter
is limited to the effect of the Delaware General Corporation Law and present
federal laws of the United States.
<PAGE> 3
This opinion letter and the matters addressed in this letter are as of
the date of this letter. I hereby disclaim any obligation to advise you of any
change in any matter set forth in this letter occurring after such date. This
opinion letter is limited to the matters stated in this letter and no opinion
is implied or may be inferred beyond the opinions expressly stated herein.
This opinion letter is solely for your benefit and no other person may
rely upon the opinions expressed herein. Without my prior written consent, this
letter may not be quoted in whole or in part or otherwise referred to in any
document and may not be furnished to any other person. I hereby consent to the
inclusion of this letter as an exhibit to the Registration Statement.
Very truly yours,
/s/ John W. MacKenzie
John W. MacKenzie
Deputy General Counsel and
Assistant Secretary
2
<PAGE> 1
EXHIBIT 23.2
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration
Statement (Form S-8 No. 333- ) pertaining to the Beverly Enterprises, Inc.
Executive Deferred Compensation Plan of our report dated February 2, 1996,
except for Note 4, paragraph 5 and Note 5, paragraph 5, as to which the date is
March 21, 1996, with respect to the consolidated financial statements and
schedule of Beverly Enterprises, Inc. included in its Annual Report (Form 10-K)
for the year ended December 31, 1995, filed with the Securities and Exchange
Commission.
ERNST & YOUNG LLP
January 23, 1997
Little Rock, Arkansas
