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EXHIBIT 10.24
AMENDMENT NUMBER TWO TO THE
BEVERLY ENTERPRISES, INC.
EXECUTIVE DEFERRED COMPENSATION PLAN
Amendment made this 11th day of December, 1997, by Beverly
Enterprises, Inc. (the "Corporation")
W I T N E S S E T H:
WHEREAS, during the first week of December, 1997, Beverly Enterprises,
Inc. (as in existence prior to the "Transaction" referenced below) (hereinafter
referred to as "Old Beverly") transferred its healthcare business to a
wholly-owned subsidiary of Old Beverly, i.e., New Beverly Holdings, Inc.
("NBHI"), which was then spun-off to the shareholders of Old Beverly, all
pursuant to the Agreement and Plan of Distribution by and between Old Beverly,
NBHI and Capstone Pharmacy Services, Inc. ("Capstone") dated as of April 15,
1997; and
WHEREAS, immediately following such spin-off, Old Beverly merged with
and into Capstone, with Capstone as the surviving corporation, all pursuant to
the Agreement and Plan of Merger by and between Old Beverly and Capstone dated
as of April 15, 1997 (all the aforementioned transactions to be referred to
herein collectively as the "Transaction"); and
WHEREAS, pursuant to the Transaction, the Corporation changed its name
from NBHI to Beverly Enterprises, Inc. and assumed the sponsorship of the
Beverly Enterprises, Inc. Executive Deferred Compensation Plan (as adopted by
Old Beverly effective January 1, 1997) (the "Plan"); and
WHEREAS, the Corporation desires, in light of the Transaction, to
amend the Plan (i) to reflect adjustments to the deemed investment credits
under Section 7 of the Plan, and (ii) to allow those employees who will remain
employed by Old Beverly after the Transaction to receive a December, 1997
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matching contribution under the Plan; and (iii) to modify the definition of
"Change of Control;" and
WHEREAS, Section 13 of the Plan provides that it may be amended,
modified or terminated at any time by the Compensation Committee, which is a
subset of the full Board;
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NOW, THEREFORE, the Plan is hereby amended as follows, effective as of
the closing date of the Transaction:
1. Section 2(c) of the Plan is amended by adding a new
paragraph at the end of the existing Section 2(c) to read as follows:
"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."
2. Section 2(e) of the Plan is amended to read as
follows:
"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.
3. The Plan is amended by adding a new Section 2(w) to
read as follows:
"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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4. The Plan is amended to add a new Section 2(x) to read
as follows:
"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.)
5. The Plan is amended to add Section 5(d) as follows:
Those Participants 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.
6. Section 6 of the Plan is amended by adding the
following sentence at the end thereof:
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.
7. Section 7 of the Plan is amended by adding the
following new paragraphs as follows:
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
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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.
IN WITNESS WHEREOF, the Corporation has caused this Amendment to be
executed by a duly authorized representative, as of the day and year first
written above.
BEVERLY ENTERPRISES, INC.
By:
Its:
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