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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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BEVERLY ENTERPRISES, INC.
(FORMERLY NEW BEVERLY HOLDINGS, INC.)
(Exact Name of Registrant as Specified in Its Charter)
DELAWARE 5111 ROGERS AVENUE, SUITE 40-A 62-1691861
(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)
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BEVERLY ENTERPRISES, INC.
EXECUTIVE DEFERRED COMPENSATION PLAN
(Full Title of the Plan)
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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)
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(501) 452-6712
(Telephone Number, Including Area Code, of Agent For Service)
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CALCULATION OF REGISTRATION FEE
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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
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BEVERLY ENTERPRISES, $14,000,000 100% $14,000,000 $4,130
INC. EXECUTIVE
DEFERRED COMPENSATION
PLAN OBLIGATIONS (2)
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BEVERLY ENTERPRISES, (3) -- -- NONE
INC. COMMON STOCK, PAR
VALUE $.10 PER SHARE
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(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.
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INTRODUCTION
This Registration Statement on Form S-8 is filed by Beverly Enterprises,
Inc. (formerly "New Beverly Holdings, 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 ("Common
Stock"), 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 required 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 previously filed with the Commission
are hereby incorporated by reference into this Registration Statement:
1. The Company's Registration Statement on Form S-1 filed with
the Commission on June 4, 1997, as amended, under which the
Company registered Common Stock under the Securities Act of
1933, as amended.
2. The description of the Shares set forth in the Company's
Registration Statement on Form 8-A, filed with the Commission
on October 15, 1997, under which the Company registered the
Shares under Section 12(g) of the Securities and Exchange Act
of 1934, as amended (the "Exchange Act").
3. The Company's report on Form 10-Q for the quarter ended
September 30, 1997.
4. The Annual Report on Form 10-K for the year ended December 31,
1996, the report on Form 10-Q for the quarter ended March 31,
1997, the report on Form 10-Q for the quarter ended June 30,
1997, the report on Form 10-Q for the quarter ended September
30, 1997 and the current report on Form 8-K dated April 15,
1997, each filed by Beverly Enterprises, Inc., a Delaware
corporation and predecessor of the Company ("Old Beverly").
The Company is incorporating by reference the documents listed
in this Item 4 because the Company succeeded to all of the
business of Old Beverly, other than its institutional and mail
service pharmacy business.
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
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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.
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. With the
consent of the Committee, those Participants who elect to receive their
interest in installments may receive payment in cash. Furthermore, to the
extent a Participant maintained a balance in the Plan as of the closing date of
the Transaction as described in the proxy statement issued by Beverly
Enterprises, Inc. dated October 20, 1997, payment of his Accounts will also be
partially in the form of shares of Common Stock, par value $.01 per share, of
Capstone Pharmacy Services, Inc., a Delaware corporation.
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
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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.
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 29,758 shares of Common Stock and
options to purchase a number of shares of Common Stock equivalent to those
Options previously held by Mr. MacKenzie to purchase 23,000 shares of the
former Beverly Enterprises, Inc. Common Stock, as adjusted pursuant to the
terms of the Employee Benefit Matters Agreement relating to the Distribution
and Merger, as defined and as described in the Proxy Statement issued by the
former Beverly Enterprises, Inc. dated October 20, 1997. 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.
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ITEM 8. EXHIBITS.
EXHIBIT NO. DESCRIPTION
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4.1 Beverly Enterprises, Inc. Executive Deferred Compensation Plan
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
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
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
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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]
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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 5th day
of December, 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.
NAME AND SIGNATURE TITLE DATE
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/s/ David R. Banks Chairman of the Board, Chief December 5, 1997
- ------------------------------------------ Executive Officer and Director
David R. Banks
/s/ Boyd W. Hendrickson President, Chief Operating Officer December 5, 1997
- ------------------------------------------ and Director
Boyd W. Hendrickson
/s/ Scott M. Tabakin Executive Vice President and Chief December 5, 1997
- ------------------------------------------ Financial Officer
Scott M. Tabakin
/s/ Pamela H. Daniels Vice President, Controller, and December 5, 1997
- ------------------------------------------ Chief Accounting Officer
Pamela H. Daniels
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/s/ Beryl F. Anthony, Jr. Director December 5, 1997
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Beryl F. Anthony, Jr.
/s/ James R. Greene Director December 5, 1997
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James R. Greene
/s/ Edith E. Holiday Director December 5, 1997
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Edith E. Holiday
/s/ Jon E. M. Jacoby Director December 5, 1997
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Jon E. M. Jacoby
/s/ Risa J. Lavizzo-Mourey, M.D. Director December 5, 1997
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Risa J. Lavizzo-Mourey, M.D.
/s/ Louis W. Menk Director December 5, 1997
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Louis W. Menk
/s/ Marilyn R. Seymann Director December 5, 1997
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Marilyn R. Seymann
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EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION
4.1 Beverly Enterprises, Inc. Executive Deferred Compensation Plan
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