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EXHIBIT 10.22
BEVERLY ENTERPRISES, INC.
EXECUTIVE DEFERRED COMPENSATION PLAN
AS AMENDED AND RESTATED
EFFECTIVE JULY 1, 2000
* * * * *
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).
The Plan was originally effective on January 1, 1997. This Amendment
and Restatement is being effected to make various technical changes to the Plan.
The effective date of this Amendment and Restatement is January 1, 2000.
SECTION 2. DEFINITIONS.
(a) "Account(s)" means the Deferral Account, the Supplemental
Contributions Account and/or the Matching Contributions Account, as the context
requires.
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(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.
(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.
Beverly Enterprises, Inc. Executive Deferred Compensation Plan
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Notwithstanding anything to the contrary contained herein, a Change in
Control shall not include any transfer to a consolidated subsidiary,
reorganization, spin-off, split-up, distribution, or other similar or related
transaction(s) or any combination of the foregoing in which the core business
and assets of the Company and its subsidiaries (taken as a whole) are
transferred to another entity ("Controlled") with respect to which (1) the
majority of the Board of Directors of the Company (as constituted immediately
prior to such transaction(s)) also serve as directors of Controlled and
immediately after such transaction(s) constitute a majority of Controlled's
board of directors, and (2) more than 70% of the shareholders of the Company
(immediately prior to such transaction(s)) become shareholders or other owners
of Controlled and immediately after the transaction(s) control more than 70% of
the ownership and voting rights of Controlled.
(d) "Committee" means the Compensation Committee of the Company's Board
of Directors.
(e) "Company" means Beverly Enterprises, Inc., which shall mean "Old
Beverly" prior to the date of the Transaction, and shall mean New Beverly
Holdings, Inc. ("NBHI") (which has changed its name to Beverly Enterprises,
Inc.) subsequent to said date.
(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 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.
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(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.
(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.
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(n) "Participant" means an employee of the Company who has at any time
made elective Salary and/or Bonus deferrals to the Plan and for whom an Account
has been created under 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 (e.g., Pre-Tax
Premium Plan, 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.
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(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.
(w) "Transaction" means, collectively, those transactions which are
described in the Agreement and Plan of Distribution by and between Beverly
Enterprises, Inc. ("Old Beverly"), New Beverly Holdings, Inc. ("NBHI") and
Capstone Pharmacy Services, Inc. ("Capstone"), dated as of April 15, 1997, and
the Agreement and Plan of Merger by and between Old Beverly and Capstone dated
as of April 15, 1997.
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(x) "Capstone Stock" means the common stock, par value $0.01 per share,
of Capstone Pharmacy Services, Inc., a Delaware corporation, (which has changed
its name to PharMerica, Inc.).
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 Executive at any time which shall result in the
immediate termination of such individual's participation in the Plan and the
cancellation of such individual's Deferred Compensation Election Form with
respect to any Compensation which is unearned at such time. The Committee may
establish one or more criteria upon which eligibility to participate in the Plan
is based, and in such case, an Eligible Executive's failure to continue to meet
such criteria shall be deemed a termination of eligibility, whether or not
specifically so determined or considered by the Committee. Furthermore, unless
otherwise provided by the Committee, an individual's fulfillment of such
criteria shall not render such individual eligible to participate in the Plan
absent a specific designation of such individual as an Eligible Executive by the
Committee.
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
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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 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
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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 (unless canceled due to loss of Eligible
Executive status during the Plan Year pursuant to Section 3).
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. The Company shall
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maintain such Account for each individual who has made any
contribution to the Plan until such Account is paid to the
Participant pursuant to Section 6 or 9, or forfeited pursuant
to Section 11.
(b) the Company shall, if on the first day of any such month
the Eligible Executive is employed by the Company, credit matching
contributions to the Eligible Executive'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 Eligible Executive in respect
to the preceding month as soon as is administratively feasible.
Notwithstanding the foregoing, no further Company matching
contributions will be made to the Plan with respect to any Salary
and/or Bonus deferred to the Plan on or after July 1, 2000.
(c) From time to time, the Company may, in its sole
discretion, credit supplemental contributions to the Eligible
Executive's Supplemental and Matching Contributions Account in such
amounts as the Company shall determine in its sole discretion.
(d) Those Eligible Executives who constitute Retained
Employees, as that term is defined in the documents describing the
Transaction, shall be entitled to receive a matching contribution with
respect to their deferrals which were made during the month containing
the date of the Transaction, regardless of whether such employees
remain employed by the Company as of the first day of the month
following the date of the Transaction.
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
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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. Notwithstanding the foregoing, that portion
of a Participant's Account balance which is deemed invested in Capstone
Stock will be payable pursuant to the terms of this Section 6 in either
cash or Capstone Stock, within the complete discretion of the
Committee.
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 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
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investment election must be made in the same manner, and subject to the
same restrictions, as the Participants Distribution Election described
in Section 6.
Notwithstanding the foregoing, as of the date of the
Transaction, the balances of each Participant's Deferral Account,
Rollover Account, Supplemental Contributions Account and Matching
Account shall be deemed invested in shares of New Beverly Holdings,
Inc. ("NBHI") and Capstone Pharmacy Services, Inc. ("Capstone") common
stock in the ratio of .44 shares of Capstone common stock and one (1)
share of NBHI common stock for each share of Old Beverly Common Stock
in which said Accounts were previously deemed invested under this
Section 7. Such adjusted Account balances shall be further adjusted
based upon the fluctuations in value of NBHI and Capstone Stock until
distributed to the Participant pursuant to the terms of the Plan.
Subsequent to the date of the Transaction, all further
additions to a Participant's Deferral Account, Supplemental
Contributions Account, Rollover Account, and Matching Account shall be
deemed invested solely in shares of NBHI common stock, in accordance
with the terms of this Section 7. Therefore, at the end of each Plan
Year, each Participant's total account value shall be the sum of (i)
the value of each of his accounts as of the date of the Transaction, as
adjusted for the performance of NBHI and Capstone common stock, plus
(ii) the value of all contributions made subsequent to the date of the
Transaction, as adjusted for the change in the value of NBHI common
stock.
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
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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
distribution 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 immediately prior to the date of any such
distribution or otherwise as close to such date as administratively
practicable.
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.
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.
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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. Any amounts so forfeited under the Plan shall be used to
offset other Plan liabilities or to pay administrative expenses under
the Plan.
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.
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).
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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 in any manner be subject to any claims
for the debts, contracts, 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.
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Notwithstanding the foregoing, a Participant's interest in the
Plan may be transferred pursuant to a domestic relations order which is
entered by a court of competent jurisdiction incident to a divorce,
however, the person claiming any share of a Participant's interest
pursuant to such an order shall not be entitled to receive a
distribution from the Plan until such time as distributions commence or
could have commenced to the affected Participant. Furthermore, such
transferred interest shall be subject to the same terms, conditions,
and restrictions of the Plan as were applicable to the Participant.
SECTION 16. WITHHOLDING. The Participants, their
beneficiaries, personal representatives and any transferee pursuant to
a domestic relations order ("Recipient") 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. All distributions from the Plan are
subject to applicable withholding taxes. Each Recipient is responsible
for satisfying his or her withholding obligations (whether by cash
payments to the Company, broker assisted sales under Federal Reserve
Regulation T whereby the broker forwards the required withholding to
the Company, or otherwise) prior to the Plan making any distributions.
In the absence of the Recipient satisfying such withholding
obligations, the Company shall deduct and withhold all required taxes
from any distribution hereunder and shall reduce and offset a
Recipient's distribution accordingly.
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,
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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.
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
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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, 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,
Beverly Enterprises, Inc. Executive Deferred Compensation Plan
AS AMENDED AND RESTATED EFFECTIVE JULY 1, 2000
Page 18
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or not available in a court of law. Judgment 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 ____ day of _______________, 199___.
BEVERLY ENTERPRISES, INC.
By:
------------------------
Title:
---------------------
Beverly Enterprises, Inc. Executive Deferred Compensation Plan
AS AMENDED AND RESTATED EFFECTIVE JULY 1, 2000
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