0000895345-05-000135.txt : 20120705
0000895345-05-000135.hdr.sgml : 20120704
20050204155452
ACCESSION NUMBER: 0000895345-05-000135
CONFORMED SUBMISSION TYPE: SC 13D/A
PUBLIC DOCUMENT COUNT: 5
FILED AS OF DATE: 20050204
DATE AS OF CHANGE: 20050204
GROUP MEMBERS: 1995 DAVID REIS FAMILY TRUST
GROUP MEMBERS: 1995 DONNA REIS FAMILY TRUST
GROUP MEMBERS: AARON REIS SPRAY TRUST
GROUP MEMBERS: ALEXANDER REIS SPRAY TRUST
GROUP MEMBERS: ANNA REIS SPRAY TRUST
GROUP MEMBERS: APPALOOSA INVESTMENT LIMITED PARTNERSHIP I
GROUP MEMBERS: APPALOOSA MANAGEMENT L.P.
GROUP MEMBERS: APPALOOSA PARTNERS INC.
GROUP MEMBERS: ARNOLD M. WHITMAN
GROUP MEMBERS: BAYLOR ENTERPRISES LLC
GROUP MEMBERS: DAVID A. TEPPER
GROUP MEMBERS: DAVID HOKIN
GROUP MEMBERS: DAVID REIS
GROUP MEMBERS: DAVID REIS FAMILY TRUST
GROUP MEMBERS: FRANKLIN MUTUAL ADVISERS, LLC
GROUP MEMBERS: NORTHBROOK NBV, LLC
GROUP MEMBERS: PALOMINO FUND LTD.
GROUP MEMBERS: ROB RUBIN
GROUP MEMBERS: ROBERT HARTMAN
SUBJECT COMPANY:
COMPANY DATA:
COMPANY CONFORMED NAME: BEVERLY ENTERPRISES INC
CENTRAL INDEX KEY: 0001040441
STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-SKILLED NURSING CARE FACILITIES [8051]
IRS NUMBER: 621691861
STATE OF INCORPORATION: DE
FISCAL YEAR END: 1231
FILING VALUES:
FORM TYPE: SC 13D/A
SEC ACT: 1934 Act
SEC FILE NUMBER: 005-52627
FILM NUMBER: 05577226
BUSINESS ADDRESS:
STREET 1: ONE THOUSAND BEVERLY WAY
CITY: FORT SMITH
STATE: AR
ZIP: 72919
BUSINESS PHONE: 5014526712
MAIL ADDRESS:
STREET 1: ONE THOUSAND BEVERLY WAY
CITY: FORT SMITH
STATE: AR
ZIP: 72919
FORMER COMPANY:
FORMER CONFORMED NAME: NEW BEVERLY HOLDINGS INC
DATE OF NAME CHANGE: 19970604
FILED BY:
COMPANY DATA:
COMPANY CONFORMED NAME: APPALOOSA MANAGEMENT LP
CENTRAL INDEX KEY: 0001006438
IRS NUMBER: 223220835
STATE OF INCORPORATION: DE
FISCAL YEAR END: 1231
FILING VALUES:
FORM TYPE: SC 13D/A
BUSINESS ADDRESS:
STREET 1: 26 MAIN ST
STREET 2: 1ST FLOOR
CITY: CHATHAM
STATE: NJ
ZIP: 07928
BUSINESS PHONE: 9737017000
MAIL ADDRESS:
STREET 1: 26 MAIN ST
STREET 2: 1ST FLOOR
CITY: CHATAM
STATE: NJ
ZIP: 07928
SC 13D/A
1
pr13da3.txt
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
Schedule 13D/A
(Amendment No. 3)
Under the Securities Exchange Act of 1934
Beverly Enterprises, Inc.
-----------------------------------------
(Name of Issuer)
Common Stock, $0.10 par value per share
------------------------------------------
(Title of class of securities)
087851309
-----------------------------------------
(CUSIP Number)
Kenneth Maiman, Esq. Bradley Takahashi, Esq.
Appaloosa Management L.P. Franklin Mutual Advisers, LLC
26 Main Street, First Floor 51 John F. Kennedy Parkway
Chatham, NJ 07928 Short Hills, NJ 07078
(973) 701-7000 (973) 912-2000
Arnold M. Whitman Richard Marks, Esq.
Formation Capital, LLC Northbrook NBV, LLC
1035 Powers Place 500 Skokie Blvd, Ste. 310
Alpharetta, GA 30004 Northbrook, IL 60062
(770) 754-9660 (847) 559-1002
Robert C. Schwenkel, Esq.
Fried, Frank, Harris, Shriver & Jacobson LLP
One New York Plaza
New York, NY 10004-1980
(212) 859-8000
(Persons Authorized to Receive Notices and Communications)
February 3, 2005
-----------------------------------------
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to
report the acquisition that is the subject of this Schedule 13D, and is
filing this schedule because of ss.ss.240.13d-1(e), 240.13d-1(f) or
240.13d-1(g), check the following box. [ ]
CUSIP NO. 087851309 13D PAGE 2 OF 42 PAGES
NAME OF REPORTING PERSON
SS. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
1 Appaloosa Investment Limited Partnership I
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) |X|
2 (b) |_|
3 SEC USE ONLY
SOURCE OF FUNDS
4 OO
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEM 2(d) OR 2(e)
5 N/A
CITIZENSHIP OR PLACE OF ORGANIZATION
6 Delaware
NUMBER OF 7 SOLE VOTING POWER
SHARES -0-
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY 1,873,122
EACH 9 SOLE DISPOSITIVE POWER
REPORTING -0-
PERSON 10 SHARED DISPOSITIVE POWER
WITH 1,873,122
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY REPORTING PERSON
1,873,122
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
N/A
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
1.7%
TYPE OF REPORTING PERSON
14 PN
CUSIP NO. 087851309 13D PAGE 3 OF 42 PAGES
NAME OF REPORTING PERSON
SS. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
1 Palomino Fund Ltd.
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) |X|
2 (b) |_|
3 SEC USE ONLY
SOURCE OF FUNDS
4 OO
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEM 2(d) OR 2(e)
5 N/A
CITIZENSHIP OR PLACE OF ORGANIZATION
6 British Virgin Islands
NUMBER OF 7 SOLE VOTING POWER
SHARES -0-
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY 1,641,178
EACH 9 SOLE DISPOSITIVE POWER
REPORTING -0-
PERSON 10 SHARED DISPOSITIVE POWER
WITH 1,641,178
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY REPORTING PERSON
1,641,178
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
N/A
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
1.5%
TYPE OF REPORTING PERSON
14 CO
CUSIP NO. 087851309 13D PAGE 4 OF 42 PAGES
NAME OF REPORTING PERSON
SS. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
1 Appaloosa Management L.P.
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) |X|
2 (b) |_|
3 SEC USE ONLY
SOURCE OF FUNDS
4 OO
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEM 2(d) OR 2(e)
5 N/A
CITIZENSHIP OR PLACE OF ORGANIZATION
6 Delaware
NUMBER OF 7 SOLE VOTING POWER
SHARES -0-
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY 3,514,300
EACH 9 SOLE DISPOSITIVE POWER
REPORTING -0-
PERSON 10 SHARED DISPOSITIVE POWER
WITH 3,514,300
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY REPORTING PERSON
3,514,300
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
N/A
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
3.3%
TYPE OF REPORTING PERSON
14 PN;IA
CUSIP NO. 087851309 13D PAGE 5 OF 42 PAGES
NAME OF REPORTING PERSON
SS. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
1 Appaloosa Partners Inc.
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) |X|
2 (b) |_|
3 SEC USE ONLY
SOURCE OF FUNDS
4 OO
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEM 2(d) OR 2(e)
5 N/A
CITIZENSHIP OR PLACE OF ORGANIZATION
6 Delaware
NUMBER OF 7 SOLE VOTING POWER
SHARES -0-
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY 3,514,300
EACH 9 SOLE DISPOSITIVE POWER
REPORTING -0-
PERSON 10 SHARED DISPOSITIVE POWER
WITH 3,514,300
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY REPORTING PERSON
3,514,300
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
N/A
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
3.3%
TYPE OF REPORTING PERSON
14 CO
CUSIP NO. 087851309 13D PAGE 6 OF 42 PAGES
NAME OF REPORTING PERSON
SS. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
1 David A. Tepper
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) |X|
2 (b) |_|
3 SEC USE ONLY
SOURCE OF FUNDS
4 OO
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEM 2(d) OR 2(e)
5 N/A
CITIZENSHIP OR PLACE OF ORGANIZATION
6 USA
NUMBER OF 7 SOLE VOTING POWER
SHARES -0-
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY 3,514,300
EACH 9 SOLE DISPOSITIVE POWER
REPORTING -0-
PERSON 10 SHARED DISPOSITIVE POWER
WITH 3,514,300
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY REPORTING PERSON
3,514,300
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
N/A
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
3.3%
TYPE OF REPORTING PERSON
14 IN;HC
CUSIP NO. 087851309 13D PAGE 7 OF 42 PAGES
NAME OF REPORTING PERSON
SS. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
1 Franklin Mutual Advisers, LLC
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) |X|
2 (b) |_|
3 SEC USE ONLY
SOURCE OF FUNDS
4 OO
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEM 2(d) OR 2(e)
5 N/A
CITIZENSHIP OR PLACE OF ORGANIZATION
6 Delaware
NUMBER OF 7 SOLE VOTING POWER
SHARES 3,508,900
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY -0-
EACH 9 SOLE DISPOSITIVE POWER
REPORTING 3,508,900
PERSON 10 SHARED DISPOSITIVE POWER
WITH -0-
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY REPORTING PERSON
3,508,900
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
N/A
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
3.2%
TYPE OF REPORTING PERSON
14 IA
CUSIP NO. 087851309 13D PAGE 8 OF 42 PAGES
NAME OF REPORTING PERSON
SS. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
1 Northbrook NBV, LLC
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) |X|
2 (b) |_|
3 SEC USE ONLY
SOURCE OF FUNDS
4 WC
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEM 2(d) OR 2(e)
5 N/A
CITIZENSHIP OR PLACE OF ORGANIZATION
6 Delaware
NUMBER OF 7 SOLE VOTING POWER
SHARES -0-
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY 1,487,200
EACH 9 SOLE DISPOSITIVE POWER
REPORTING -0-
PERSON 10 SHARED DISPOSITIVE POWER
WITH 1,487,200
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY REPORTING PERSON
1,487,200
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
N/A
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
1.4%
TYPE OF REPORTING PERSON
14 OO
CUSIP NO. 087851309 13D PAGE 9 OF 42 PAGES
NAME OF REPORTING PERSON
SS. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
1 David Hokin
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) |X|
2 (b) |_|
3 SEC USE ONLY
SOURCE OF FUNDS
4 OO
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEM 2(d) OR 2(e)
5 N/A
CITIZENSHIP OR PLACE OF ORGANIZATION
6 USA
NUMBER OF 7 SOLE VOTING POWER
SHARES -0-
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY 1,487,200
EACH 9 SOLE DISPOSITIVE POWER
REPORTING -0-
PERSON 10 SHARED DISPOSITIVE POWER
WITH 1,487,200
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY REPORTING PERSON
1,487,200
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
N/A
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
1.4%
TYPE OF REPORTING PERSON
14 IN;HC
CUSIP NO. 087851309 13D PAGE 10 OF 42 PAGES
NAME OF REPORTING PERSON
SS. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
1 Rob Rubin
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) |X|
2 (b) |_|
3 SEC USE ONLY
SOURCE OF FUNDS
4 OO
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEM 2(d) OR 2(e)
5 N/A
CITIZENSHIP OR PLACE OF ORGANIZATION
6 USA
NUMBER OF 7 SOLE VOTING POWER
SHARES -0-
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY 1,487,200
EACH 9 SOLE DISPOSITIVE POWER
REPORTING -0-
PERSON 10 SHARED DISPOSITIVE POWER
WITH 1,487,200
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY REPORTING PERSON
1,487,200
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
N/A
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
1.4%
TYPE OF REPORTING PERSON
14 IN
CUSIP NO. 087851309 13D PAGE 11 OF 42 PAGES
NAME OF REPORTING PERSON
SS. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
1 Robert Hartman
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) |X|
2 (b) |_|
3 SEC USE ONLY
SOURCE OF FUNDS
4 OO
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEM 2(d) OR 2(e)
5 N/A
CITIZENSHIP OR PLACE OF ORGANIZATION
6 USA
NUMBER OF 7 SOLE VOTING POWER
SHARES -0-
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY 1,487,200
EACH 9 SOLE DISPOSITIVE POWER
REPORTING -0-
PERSON 10 SHARED DISPOSITIVE POWER
WITH 1,487,200
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY REPORTING PERSON
1,487,200
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
N/A
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
1.4%
TYPE OF REPORTING PERSON
14 IN
CUSIP NO. 087851309 13D PAGE 12 OF 42 PAGES
NAME OF REPORTING PERSON
SS. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
1 1995 David Reis Family Trust
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) |X|
2 (b) |_|
3 SEC USE ONLY
SOURCE OF FUNDS
4 OO
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEM 2(d) OR 2(e)
5 N/A
CITIZENSHIP OR PLACE OF ORGANIZATION
6 Connecticut
NUMBER OF 7 SOLE VOTING POWER
SHARES -0-
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY 10,000
EACH 9 SOLE DISPOSITIVE POWER
REPORTING -0-
PERSON 10 SHARED DISPOSITIVE POWER
WITH 10,000
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY REPORTING PERSON
10,000
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
N/A
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
Less than 1.0%
TYPE OF REPORTING PERSON
14 OO
CUSIP NO. 087851309 13D PAGE 13 OF 42 PAGES
NAME OF REPORTING PERSON
SS. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
1 1995 Donna Reis Family Trust
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) |X|
2 (b) |_|
3 SEC USE ONLY
SOURCE OF FUNDS
4 OO
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEM 2(d) OR 2(e)
5 N/A
CITIZENSHIP OR PLACE OF ORGANIZATION
6 Connecticut
NUMBER OF 7 SOLE VOTING POWER
SHARES -0-
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY 25,000
EACH 9 SOLE DISPOSITIVE POWER
REPORTING -0-
PERSON 10 SHARED DISPOSITIVE POWER
WITH 25,000
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY REPORTING PERSON
25,000
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
N/A
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
Less than 1.0%
TYPE OF REPORTING PERSON
14 OO
CUSIP NO. 087851309 13D PAGE 14 OF 42 PAGES
NAME OF REPORTING PERSON
SS. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
1 Aaron Reis Spray Trust
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) |X|
2 (b) |_|
3 SEC USE ONLY
SOURCE OF FUNDS
4 OO
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEM 2(d) OR 2(e)
5 N/A
CITIZENSHIP OR PLACE OF ORGANIZATION
6 Connecticut
NUMBER OF 7 SOLE VOTING POWER
SHARES -0-
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY 20,000
EACH 9 SOLE DISPOSITIVE POWER
REPORTING -0-
PERSON 10 SHARED DISPOSITIVE POWER
WITH 20,000
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY REPORTING PERSON
20,000
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
N/A
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
Less than 1.0%
TYPE OF REPORTING PERSON
14 OO
CUSIP NO. 087851309 13D PAGE 15 OF 42 PAGES
NAME OF REPORTING PERSON
SS. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
1 Anna Reis Spray Trust
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) |X|
2 (b) |_|
3 SEC USE ONLY
SOURCE OF FUNDS
4 OO
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEM 2(d) OR 2(e)
5 N/A
CITIZENSHIP OR PLACE OF ORGANIZATION
6 Connecticut
NUMBER OF 7 SOLE VOTING POWER
SHARES -0-
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY 22,500
EACH 9 SOLE DISPOSITIVE POWER
REPORTING -0-
PERSON 10 SHARED DISPOSITIVE POWER
WITH 22,500
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY REPORTING PERSON
22,500
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
N/A
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
Less than 1.0%
TYPE OF REPORTING PERSON
14 OO
CUSIP NO. 087851309 13D PAGE 16 OF 42 PAGES
NAME OF REPORTING PERSON
SS. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
1 Alexander Reis Spray Trust
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) |X|
2 (b) |_|
3 SEC USE ONLY
SOURCE OF FUNDS
4 OO
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEM 2(d) OR 2(e)
5 N/A
CITIZENSHIP OR PLACE OF ORGANIZATION
6 Connecticut
NUMBER OF 7 SOLE VOTING POWER
SHARES -0-
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY 22,500
EACH 9 SOLE DISPOSITIVE POWER
REPORTING -0-
PERSON 10 SHARED DISPOSITIVE POWER
WITH 22,500
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY REPORTING PERSON
22,500
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
N/A
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
Less than 1.0%
TYPE OF REPORTING PERSON
14 OO
CUSIP NO. 087851309 13D PAGE 17 OF 42 PAGES
NAME OF REPORTING PERSON
SS. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
1 David Reis Family Trust
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) |X|
2 (b) |_|
3 SEC USE ONLY
SOURCE OF FUNDS
4 OO
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEM 2(d) OR 2(e)
5 N/A
CITIZENSHIP OR PLACE OF ORGANIZATION
6 Connecticut
NUMBER OF 7 SOLE VOTING POWER
SHARES -0-
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY 25,000
EACH 9 SOLE DISPOSITIVE POWER
REPORTING -0-
PERSON 10 SHARED DISPOSITIVE POWER
WITH 25,000
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY REPORTING PERSON
25,000
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
N/A
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
Less than 1.0%
TYPE OF REPORTING PERSON
14 OO
CUSIP NO. 087851309 13D PAGE 18 OF 42 PAGES
NAME OF REPORTING PERSON
SS. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
1 David Reis
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) |X|
2 (b) |_|
3 SEC USE ONLY
SOURCE OF FUNDS
4 PF
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEM 2(d) OR 2(e)
5 N/A
CITIZENSHIP OR PLACE OF ORGANIZATION
6 United States
NUMBER OF 7 SOLE VOTING POWER
SHARES 95,000[1]
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY 125,000
EACH 9 SOLE DISPOSITIVE POWER
REPORTING 95,000[1]
PERSON 10 SHARED DISPOSITIVE POWER
WITH 125,000
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY REPORTING PERSON
220,000
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
N/A
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
Less than 1.0%
TYPE OF REPORTING PERSON
14 IN
-----------------
[1] Includes 20,000 Beverly Enterprises Shares which may be purchased
pursuant to currently exercisable call options.
CUSIP NO. 087851309 13D PAGE 19 OF 42 PAGES
NAME OF REPORTING PERSON
SS. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
1 Baylor Enterprises LLC
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) |X|
2 (b) |_|
3 SEC USE ONLY
SOURCE OF FUNDS
4 AF
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEM 2(d) OR 2(e)
5 N/A
CITIZENSHIP OR PLACE OF ORGANIZATION
6 Georgia
NUMBER OF 7 SOLE VOTING POWER
SHARES -0-
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY 21,900
EACH 9 SOLE DISPOSITIVE POWER
REPORTING -0-
PERSON 10 SHARED DISPOSITIVE POWER
WITH 21,900
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY REPORTING PERSON
21,900
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
N/A
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
Less than 1.0%
TYPE OF REPORTING PERSON
14 OO
CUSIP NO. 087851309 13D PAGE 20 OF 42 PAGES
NAME OF REPORTING PERSON
SS. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
1 Arnold M. Whitman
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) |X|
2 (b) |_|
3 SEC USE ONLY
SOURCE OF FUNDS
4 PF
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEM 2(d) OR 2(e)
5 N/A
CITIZENSHIP OR PLACE OF ORGANIZATION
6 USA
NUMBER OF 7 SOLE VOTING POWER
SHARES 4,700
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY 21,900
EACH 9 SOLE DISPOSITIVE POWER
REPORTING 4,700
PERSON 10 SHARED DISPOSITIVE POWER
WITH 21,900
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY REPORTING PERSON
26,600
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
N/A
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
Less than 1%
TYPE OF REPORTING PERSON
14 IN;HC
This Amendment No. 3 amends the Schedule 13D originally filed on
January 24, 2005, as amended by Amendment No. 1 filed on January 25, 2005
and by Amendment No. 2 filed on January 27, 2005 (as amended, the
"Statement"), by (i) Appaloosa Investment Limited Partnership I, (ii)
Palomino Fund Ltd., (iii) Appaloosa Management L.P., (iv) Appaloosa
Partners, Inc., (v) David A. Tepper, (vi) Franklin Mutual Advisers, LLC,
(vii) Northbrook NBV, LLC, (viii) David Hokin, (ix) Rob Rubin, (x) Robert
Hartman, (xi) 1995 David Reis Family Trust, (xii) 1995 Donna Reis Family
Trust, (xiii) Aaron Reis Spray Trust, (xiv) Anna Reis Spray Trust, (xv)
Alexander Reis Spray Trust, (xvi) David Reis Family Trust, (xvii) David
Reis, (xviii) Baylor Enterprises LLC and (xix) Arnold Whitman, relating to
the common stock, $0.10 par value per share, of Beverly Enterprises, Inc.
Unless otherwise indicated, all capitalized terms used herein shall have
the meanings given to them in the Statement, and unless amended hereby, all
information previously filed remains in effect.
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION
Item No. 3 is hereby supplemented by the following:
Mr. Whitman purchased an additional 100 Beverly Enterprises Shares in
a market transaction on January 28, 2005 for an aggregate amount of $1,197,
using his personal funds, and acquired an additional 100 Beverly
Enterprises Shares on February 1, 2005 through a transfer from Baylor.
ITEM 4. PURPOSE OF TRANSACTION
Item No. 4 is hereby supplemented by the following:
On February 3, 2005, Arnold M. Whitman, Chief Executive Officer of
Formation, sent to William R. Floyd, Chairman of the Board, President and
Chief Executive Officer of the Company, a letter on behalf of the
Consortium Members. As indicated in the letter, the Consortium Members
intend to nominate a slate of nominees for election to the Company's Board
of Directors at the Company's 2005 annual meeting of stockholders. This
letter is included in the press release attached as Exhibit J.
On February 4, 2005, Mr. Whitman submitted to the Secretary of the
Company a notice of the business and proposals he intends to bring before
the Company's 2005 annual meeting of stockholders. As indicated in the
notice, Mr. Whitman intends to nominate for election to the Board of
Directors of the Company a slate consisting of the following nominees:
Jeffrey A. Brodsky, John J. Durso, Philip L. Maslowe, Charles M. Masson,
Mohsin Y. Meghji and Guy Sansone. Information about each of the nominees is
contained in the notice, which is attached hereto as Exhibit K and
incorporated herein by reference.
The identity of each person who may be deemed to be a participant in
the solicitation (as defined in Instruction 3 to Item 4 of Schedule 14A
(ss.240.14a-101 of the Securities Exchange Act of 1934, as amended)) of the
Company's stockholders in connection with the Company's 2005 annual meeting
of stockholders and a description of such person's direct or indirect
interests in the solicitation, to the extent not otherwise described in the
Statement, is set forth on attached Exhibit L hereto.
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER
The first sentence in paragraph (a) of Item 5 is amended and restated
in its entirety as follows:
The Filing Persons beneficially own, as defined in Rule 13d-3 under
the Securities Exchange Act of 1934 (the "1934 Act"), 8,757,000 Beverly
Enterprises Shares in the aggregate.
Clauses (xiii) through (xv) in Item 5(a) and the last paragraph in
Item 5(a) are amended and restated in their entirety as follows:
(xiii) Baylor is the owner of 21,900 Beverly Enterprises Shares
(or less than 1% of the outstanding Beverly Enterprises
Shares). Each Filing Person (other than Baylor and Mr.
Whitman) disclaims beneficial ownership of the Beverly
Enterprises Shares owned by Baylor;
(xiv) Mr. Arnold M. Whitman has sole beneficial ownership of
4,700 Beverly Enterprises Shares (or less than 1% of the
outstanding Beverly Enterprises Shares) and, solely by
virtue of his controlling interest in Baylor, may be deemed
to share beneficial ownership of 26,600 Beverly Enterprises
Shares with Baylor in the aggregate (or less than 1% of the
outstanding Beverly Enterprises Shares). Each Filing Person
(other than Mr. Whitman) disclaims beneficial ownership of
the 4,700 Beverly Enterprises Shares owned by Mr. Whitman
in his personal capacity, and each Filing Person (other
than Mr. Whitman and Baylor) disclaims beneficial ownership
of the 21,900 Beverly Enterprises Shares held directly by
Baylor, which Mr. Whitman may be deemed to own by virtue of
his controlling interest in Baylor; and
(xv) Formation does not own any of the aggregate 1,733,800
Beverly Enterprises Shares (or 1.6% of the outstanding
Beverly Enterprises Shares) beneficially owned by
Northbrook, Messrs Hokin, Rubin and Hartman, any of the
Reis Trusts, Mr. Reis, Baylor and Mr. Whitman and disclaims
beneficial ownership of such shares.
By virtue of the Term Sheet, filed as Exhibit G to this
Statement, and the Agreement among Stockholders, filed as Exhibit
H to this Statement, each as described in Item 6 below, the
Filing Persons may be deemed to be members of a group as defined
in Rule 13d-5(b) and share beneficial ownership of the aggregate
8,757,000 Beverly Enterprises Shares reported herein.
The last sentence of Item 5(b) is amended and restated in its
entirety as follows:
By virtue of Mr. Whitman's controlling interest in Baylor as described
in Item 2, Baylor and Mr. Whitman have shared power to vote and direct the
disposition of the 21,900 Beverly Enterprises Shares held by Baylor, and
Mr. Whitman has the sole power to vote and direct the disposition of 4,700
Beverly Enterprises Shares held by himself.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS
A. Joint Filing Agreement dated January 24, 2005.*
B. Executive Officers of Franklin Mutual.*
C. Transactions in Beverly Enterprises Shares Since November 18, 2004.***
D. Letter dated December 22, 2004 from Formation to the Company.*
E. Letter dated January 5, 2005 from the Company to Formation.*
F. Letter dated January 19, 2005 from Formation to the Company.*
G. Term Sheet dated December 14, 2004.*
H. Agreement among Stockholders dated January 24, 2005.+
I. Letter dated January 27, 2005 from Fried, Frank, Harris, Shriver &
Jacobson LLP to Douglas J. Babb, Executive Vice President, Chief
Administrative and Legal Officer of the Company.**
J. Press Release issued on February 3, 2005 (including Letter dated
February 3, 2005 from Mr. Whitman to Mr. Floyd).***
K. Notice of Business and Proposals to be Brought before the 2005 Annual
Meeting of Stockholders.***
L. List of Participants in Solicitation of Company Stockholders.***
--------------------------------
* Filed on January 24, 2005
+ Filed with Amendment No. 1 on January 25, 2005
** Filed with Amendment No. 2 on January 27, 2005
*** Filed herewith
SIGNATURE
After reasonable inquiry and to the best of our knowledge and belief,
the Reporting Person certifies that the information set forth in this
statement is true, complete and correct.
Dated: February 4, 2005
APPALOOSA INVESTMENT LIMITED PARTNERSHIP I
By: Appaloosa Management L.P.,
its General Partner
By: Appaloosa Partners Inc.,
its General Partner
By: /s/ David A. Tepper
-------------------------
Name: David A. Tepper
Title: President
SIGNATURE
After reasonable inquiry and to the best of our knowledge and belief,
the Reporting Person certifies that the information set forth in this
statement is true, complete and correct.
Dated: February 4, 2005
PALOMINO FUND LTD.
By: Appaloosa Management L.P.,
its Investment Adviser
By: Appaloosa Partners Inc.,
its General Partner
By: /s/ David A. Tepper
-------------------------
Name: David A. Tepper
Title: President
SIGNATURE
After reasonable inquiry and to the best of our knowledge and belief,
the Reporting Person certifies that the information set forth in this
statement is true, complete and correct.
Dated: February 4, 2005
APPALOOSA MANAGEMENT L.P.
By: Appaloosa Partners Inc.,
its General Partner
By: /s/ David A. Tepper
-------------------------
Name: David A. Tepper
Title: President
SIGNATURE
After reasonable inquiry and to the best of our knowledge and belief,
the Reporting Person certifies that the information set forth in this
statement is true, complete and correct.
Dated: February 4, 2005
APPALOOSA PARTNERS INC.
By: /s/ David A. Tepper
-------------------------
Name: David A. Tepper
Title: President
SIGNATURE
After reasonable inquiry and to the best of our knowledge and belief,
the Reporting Person certifies that the information set forth in this
statement is true, complete and correct.
Dated: February 4, 2005
/s/ David A. Tepper
-------------------------------
DAVID A. TEPPER
SIGNATURE
After reasonable inquiry and to the best of our knowledge and belief,
the Reporting Person certifies that the information set forth in this
statement is true, complete and correct.
Dated: February 4, 2005
FRANKLIN MUTUAL ADVISERS, LLC
By: /s/ David J. Winters
------------------------
Name: David J. Winters
Title: President, Chief Executive
Officer and Chief Investment
Officer
SIGNATURE
After reasonable inquiry and to the best of our knowledge and belief,
the Reporting Person certifies that the information set forth in this
statement is true, complete and correct.
Dated: February 4, 2005
NORTHBROOK NBV, LLC
By: /s/ Rob Rubin
------------------------
Name: Rob Rubin
Title: Manager
SIGNATURE
After reasonable inquiry and to the best of our knowledge and belief,
the Reporting Person certifies that the information set forth in this
statement is true, complete and correct.
Dated: February 4, 2005
/a/ David Hokin
-------------------------------
DAVID HOKIN
SIGNATURE
After reasonable inquiry and to the best of our knowledge and belief,
the Reporting Person certifies that the information set forth in this
statement is true, complete and correct.
Dated: February 4, 2005
/s/ Rob Rubin
-------------------------------
ROB RUBIN
SIGNATURE
After reasonable inquiry and to the best of our knowledge and belief,
the Reporting Person certifies that the information set forth in this
statement is true, complete and correct.
Dated: February 4, 2005
/s/ Robert Hartman
-------------------------------
ROBERT HARTMAN
SIGNATURE
After reasonable inquiry and to the best of our knowledge and belief,
the Reporting Person certifies that the information set forth in this
statement is true, complete and correct.
Dated: February 4, 2005
1995 DAVID REIS FAMILY TRUST
By: /s/ David Reis
-------------------------------
Name: David Reis
Title: Trustee
SIGNATURE
After reasonable inquiry and to the best of our knowledge and belief,
the Reporting Person certifies that the information set forth in this
statement is true, complete and correct.
Dated: February 4, 2005
1995 DONNA REIS FAMILY TRUST
By: /s/ David Reis
-------------------------------
Name: David Reis
Title: Trustee
SIGNATURE
After reasonable inquiry and to the best of our knowledge and belief,
the Reporting Person certifies that the information set forth in this
statement is true, complete and correct.
Dated: February 4, 2005
AARON REIS SPRAY TRUST
By: /s/ David Reis
-------------------------------
Name: David Reis
Title: Trustee
SIGNATURE
After reasonable inquiry and to the best of our knowledge and belief,
the Reporting Person certifies that the information set forth in this
statement is true, complete and correct.
Dated: February 4, 2005
ANNA REIS SPRAY TRUST
By: /s/ David Reis
-------------------------------
Name: David Reis
Title: Trustee
SIGNATURE
After reasonable inquiry and to the best of our knowledge and
belief, the Reporting Person certifies that the information set forth in
this statement is true, complete and correct.
Dated: February 4, 2005
ALEXANDER REIS SPRAY TRUST
By: /s/ David Reis
-------------------------------
Name: David Reis
Title: Trustee
SIGNATURE
After reasonable inquiry and to the best of our knowledge and
belief, the Reporting Person certifies that the information set forth in
this statement is true, complete and correct.
Dated: February 4, 2005
DAVID REIS FAMILY TRUST
By: /s/ David Reis
-------------------------------
Name: David Reis
Title: Trustee
SIGNATURE
After reasonable inquiry and to the best of our knowledge and
belief, the Reporting Person certifies that the information set forth in
this statement is true, complete and correct.
Dated: February 4, 2005
/S/ David Reis
-------------------------------
DAVID REIS
SIGNATURE
After reasonable inquiry and to the best of our knowledge and
belief, the Reporting Person certifies that the information set forth in
this statement is true, complete and correct.
Dated: February 4, 2005
BAYLOR ENTERPRISES LLC
By: /s/ Arnold M. Whitman
---------------------------
Name: Arnold M. Whitman
Title: Managing Member
SIGNATURE
After reasonable inquiry and to the best of our knowledge and
belief, the Reporting Person certifies that the information set forth in
this statement is true, complete and correct.
Dated: February 4, 2005
/s/ Arnold M. Whitman
-------------------------------
ARNOLD M. WHITMAN
EXHIBIT INDEX
EXHIBIT NAME
A. Joint Filing Agreement dated January 24, 2005.*
B. Executive Officers of Franklin Mutual.*
C. Transactions in Beverly Enterprises Shares Since November 18, 2004.***
D. Letter dated December 22, 2004 from Formation to the Company.*
E. Letter dated January 5, 2005 from the Company to Formation.*
F. Letter dated January 19, 2005 from Formation to the Company.*
G. Term Sheet dated December 14, 2004.*
H. Agreement among Stockholders dated January 24, 2005.+
I. Letter dated January 27, 2005 from Fried, Frank, Harris, Shriver &
Jacobson LLP to the Company.**
J. Press Release issued on February 3, 2005 (including Letter dated
February 3, 2005 from Mr. Whitman to Mr. Floyd).***
K. Notice of Business and Proposals to be Brought before the 2005 Annual
Meeting of Stockholders.***
L. List of Participants in Solicitation of Company Stockholders.***
--------------------------------
* Filed on January 24, 2005
+ Filed with Amendment No. 1 on January 25, 2005
** Filed with Amendment No. 2 on January 27, 2005
*** Filed herewith
EX-99
2
exhi99_3.txt
EXHIBIT C
Exhibit C
TRANSACTIONS IN BEVERLY ENTERPRISES SHARES SINCE NOVEMBER 18, 2004
The transactions in Beverly Enterprises Shares by any Filing
Person, Formation, any API Officer or Palomino Director or any person
listed on Exhibit B attached hereto are listed below with (unless otherwise
noted) the dates of the transaction, amount of shares purchased and
approximate price per share (including commissions), if any:
Date of Amount of Buy/Sell Price Per
Transaction Shares Share or
Option
AILP January 7, 2005 73,074 Buy 8.9341
January 13, 2005 68,224 Buy 8.6452
January 14, 2005 87,945 Buy 9.0330
January 18, 2005 213,200 Buy 9.2586
January 19, 2005 213,200 Buy 9.5761
January 20, 2005 139,433 Buy 9.6044
January 21, 2005 39,229 Buy 9.5893
January 24, 2005 45,891 Buy 9.5302
Palomino January 7, 2005 64,026 Buy 8.9341
January 13, 2005 59,776 Buy 8.6452
January 14, 2005 77,055 Buy 9.0330
January 18, 2005 186,800 Buy 9.2586
January 19, 2005 186,800 Buy 9.5761
January 20, 2005 122,167 Buy 9.6044
January 21, 2005 34,371 Buy 9.5893
January 24, 2005 40,209 Buy 9.5302
Appaloosa January 7, 2005 137,100 Buy 8.9341
January 13, 2005 128,000 Buy 8.6452
January 14, 2005 165,000 Buy 9.0330
January 18, 2005 400,000 Buy 9.2586
January 19, 2005 400,000 Buy 9.5761
January 20, 2005 261,600 Buy 9.6044
January 21, 2005 73,600 Buy 9.5893
January 24, 2005 86,100 Buy 9.5302
API January 7, 2005 137,100 Buy 8.9341
January 13, 2005 128,000 Buy 8.6452
January 14, 2005 165,000 Buy 9.0330
January 18, 2005 400,000 Buy 9.2586
January 19, 2005 400,000 Buy 9.5761
January 20, 2005 261,600 Buy 9.6044
January 21, 2005 73,600 Buy 9.5893
January 24, 2005 86,100 Buy 9.5302
David Tepper January 7, 2005 137,100 Buy 8.9341
January 13, 2005 128,000 Buy 8.6452
January 14, 2005 165,000 Buy 9.0330
January 18, 2005 400,000 Buy 9.2586
January 19, 2005 400,000 Buy 9.5761
January 20, 2005 261,600 Buy 9.6044
January 21, 2005 73,600 Buy 9.5893
January 24, 2005 86,100 Buy 9.5302
Franklin January 13, 2005 128,000 Buy $8.6452
Mutual
January 14, 2005 165,000 Buy $9.0430
January 18, 2005 400,000 Buy $9.2586
January 19, 2005 400,000 Buy $9.5811
January 20, 2005 261,600 Buy $9.6094
Northbrook
NBV LLC
Footnote [1] December 1, 2004 2,000 Sell $9.147
Footnote [1] December 1, 2004 300[2] Sell $0.853
Footnote [1] December 2, 2004 17,000 Sell $9.292
Footnote [1] December 3, 2004 10,000 Buy $9.153
Footnote [1] December 6, 2004 14,000 Buy $8.909
Footnote [1] December 7, 2004 15,000 Buy $8.754
Footnote [1] December 8, 2004 3,000[2] Sell $0.74
Footnote [1] December 9, 2004 1,000[2] Sell $0.8235
Footnote [1] December 10, 2004 1,000[2] Sell $0.723
Footnote [1] December 13, 2004 1,000[2] Sell $0.773
Footnote [1] December 15, 2004 1,000[2] Sell $0.523
Footnote [1] December 17, 2004 1,000 Sell $8.98
Footnote [1] December 17, 2004 1,000[2] Sell $0.774
Footnote [1] December 20, 2004 1,000 Buy $8.81
Footnote [1] December 20, 2004 300[2] Sell $0.752
Footnote [1] December 21, 2004 1,000[2] Sell $0.773
Footnote [1] January 12, 2005 5,000 Sell $8.747
Footnote [1] January 13, 2005 5,000 Buy $8.653
Northbrook[3] January 13, 2005 750,000 Buy $8.60
Footnotes[1],[3] January 13, 2005 750,000 Sell $8.60
Northbrook January 13, 2005 64,000 Buy $8.6452
Northbrook January 14, 2005 82,500 Buy $9.033
Northbrook January 18, 2005 200,000 Buy $9.2586
Northbrook January 19, 2005 200,000 Buy $9.5761
Footnote [1] January 19, 2005 1,000[2] Sell $0.8735
Northbrook January 20, 2005 130,800 Buy $9.6044
Footnote [1] January 20, 2005 10,600[2] Buy $0.7514
Northbrook January 20, 2005 10,600[2] Sell $0.7514
Northbrook January 21, 2005 10,600[2] Buy $1.05
Northbrook January 21, 2005 36,800 Buy $9.5893
Northbrook January 24, 2005 23,100 Buy $9.5302
ANNA REIS January 4, 2005 2,500 Buy $8.84
SPRAY TRUST
ALEXANDER January 4, 2005 2,500 Buy $8.84
REIS SPRAY
TRUST
DAVID REIS January 21, 2005 20,000[4] Buy $0.7205
BAYLOR December 20, 2004 22,000 Buy $9.001
ENTERPRISES (excluding
LLC commissions)
February 1, 2005 100 Transfer[5] $0
ARNOLD M. December 20, 2004 1,100 Buy $8.98
WHITMAN
December 20, 2004 3,400 Buy $8.99
January 28, 2005 100 Buy $11.97
(excluding
commissions)
February 1, 2005 100 Transfer[5] $0
-------------------
[1] An entity controlled by Messrs. Hokin and Rubin effected this
transaction. Each of the Beverly Enterprises Shares purchased by this
entity were sold to Northbrook NBV, LLC on January 13, 2005 in a
private transaction at a price of $8.60 per share. See Note 3.
[2] Consists of a transaction in respect of July 2005 Call Options
exercisable for Beverly Enterprises Shares at a strike price of
$10.00.
[3] Northbrook NBV, LLC acquired these shares of common stock in a private
transaction from an entity managed by Messrs. Hokin and Rubin. See
Note 1.
[4] Consists of a transaction in respect of April 2005 Call Options
exercisable for Beverly Enterprises Shares at a strike price of $10.00.
[5] These shares were transferred from Baylor to Arnold M. Whitman.
EX-99
3
exhi99_10.txt
EXHIBIT J
FOR IMMEDIATE RELEASE
---------------------
CONTACTS: MEDIA:
Jim Barron/Debbie Miller
Citigate Sard Verbinnen
(212) 687-8080
INVESTORS & ANALYSTS:
MacKenzie Partners, Inc.
Larry Dennedy 212-929-5239
Bob Marese 212-929-5405
Dan Burch 212-929-5748
FORMATION CAPITAL GROUP ANNOUNCES INTENTION TO NOMINATE
SLATE OF INDEPENDENT DIRECTORS FOR BOARD
OF BEVERLY ENTERPRISES INC.
BELIEVES BEVERLY SHAREHOLDERS SHOULD ELECT NEW BOARD
TO MAXIMIZE VALUE OF THEIR INVESTMENT
ALPHARETTA, GA, FEBRUARY 3, 2005 - Formation Capital LLC and its associates
Appaloosa Management L.P. and Franklin Mutual Advisers, LLC today announced
their intention to nominate a slate of directors to the Board of Beverly
Enterprises by the Company's February 5th deadline. Formation Capital also
disclosed that the following letter has been sent from Arnold M. Whitman,
CEO of Formation LLC to William R. Floyd, CEO of Beverly:
February 3, 2005
Mr. William R. Floyd
Chairman of the Board,
President and Chief Executive Officer
Beverly Enterprises, Inc.
One Thousand Beverly Way
Fort Smith, Arkansas 72919
Dear Bill:
I write on behalf of Formation Capital, LLC and my associates at Appaloosa
Management L.P. and Franklin Mutual Advisers, LLC to express disappointment
at the letter you sent to us earlier today. Your letter - similar to your
letter of January 27, 2005 -- is disingenuous and misleading, and it
underscores your entrenched position and attempt to thwart a very
attractive proposal that will benefit your Company and all of its
shareholders.
We note in particular that you have raised spurious questions about our
financing capabilities, which you have never even bothered to discuss with
us. We have $375 million of committed equity and numerous expressions of
interest from financial institutions willing to commit to debt financing.
There is no question about our ability to finance our proposals. We would
also note that, with regard to your comments about patient care, patient
care has always been important to Formation. Indeed, at the facilities we
bought from you in 2002, patient care metrics actually improved after the
transaction, as did financial performance.
To be clear, and as stated in previous letters, our initial proposal would
offer Beverly shareholders $11.50 per share in cash. This translates into a
premium of 46% to the average closing price for the Company's stock over
the period from the beginning of 2004 through January 24, 2005, the last
trading day before the announcement of our proposals. Indeed, before we
announced our proposals, your Company's stock had not closed above $10.00
since October 2001.
We are also prepared (as outlined in our letter of January 19, 2005), to
undertake a transaction whereby we would purchase Beverly's real estate
assets and nursing facilities operations only ($9.00 per share in cash for
the SNFs), and to consider entering into contractual agreements whereby
Beverly would continue to provide ancillary services to the nursing
facilities we purchase. This alternative would leave Beverly with a pure
play ancillary services company, which we believe would trade at an
approximate valuation of $4.00 per share, in line with public comparables.
Thus a transaction of this nature could result in a value to shareholders
of $13.00 per share.
WE HAVE SAID CONSISTENTLY THAT, IF JUSTIFIED BY DUE DILIGENCE, WE WOULD BE
PREPARED TO RAISE OUR OFFERS AND REVISE OUR PROPOSALS.
Since we made our first approach to you over six weeks ago -- putting our
proposals in writing as you requested -- you have avoided any dialogue and
worked behind the scenes to impede any fair consideration of our offer,
including accelerating the Company's 2005 annual meeting date and deadline
for submitting proposals and nominees, and adopting an aggressive poison
pill.
Moreover, while your public announcement to investors attributed the change
to your annual meeting date to a policy you purportedly adopted "to hold
the Company's Annual Meeting of Stockholders as early as practicable in
each calendar year," according to an article by Cristal Cody in the
Arkansas Democrat-Gazette, during a January 26th conference call with your
employees, you revealed your true motivations:
[MOVING THE SHAREHOLDER MEETING] "SHORT-CIRCUITS THE FORMATION CAPITAL
FINANCIAL GROUP...." FLOYD SAID. "IF THEY WANTED TO PUT THEIR
DIRECTORS UP FOR ELECTION, BY MOVING UP THE MEETING, IT WOULD
ELIMINATE SOME OF THE TIME THEY WOULD HAVE TO PREPARE."
Your willingness to manipulate the corporate machinery to block our
proposal without even a cursory meeting with us to discuss its merits
reveals the length to which you and your board are prepared to go to
sacrifice the interests of your shareholders.
Although we continue to prefer pursuing a negotiated transaction with the
Company, your actions have left us no choice but to nominate a slate of
directors for election at your upcoming annual meeting. Accordingly, we
will submit tomorrow, February 4, 2005, a slate of independent, highly
qualified nominees for election to the Beverly board. Our nominees, if
elected, will, subject to their fiduciary duties, be committed to going
forward with a process that would give due consideration to our offer as
well as any other proposals the Company may receive.
We are firmly convinced that pursuing our proposal would maximize value for
your shareholders and, at the same time, ensure high quality care for
patients.
As you know, Formation Capital has focused on the health care industry,
providing equity to the senior housing and long-term care industry, since
we were founded in 1999. We believe that creating value for shareholders
can only happen when high quality patient care comes first. Currently,
Formation manages assets in excess of $650 million in value. Over the last
three years, Formation and its partners have acquired an ownership interest
in 152 facilities in 20 states, including 49 skilled nursing facilities and
four assisted living centers we bought from Beverly in 2002. Again, as we
noted above, while you imply in your letter that patient care might suffer
in a transaction with us, we are prepared to stand on the record.
While we regret that we are forced to proceed in this manner directly to
the owners of Beverly, we remain open to a constructive dialogue. As noted
in my previous letters, we are prepared to immediately commence our
business, regulatory, legal and accounting due diligence review of the
Company, and believe that we could complete this work within 30 days after
being provided or given access to the modest number of items necessary to
complete our due diligence. Therefore, assuming cooperation by the Company,
we believe that our due diligence could be completed and a fully financed
definitive agreement could be negotiated and executed within four to six
weeks.
I urge you or your advisors to contact me at (770) 754-9600 to discuss an
appropriate process for achieving a negotiated agreement.
Sincerely,
Arnold M. Whitman
Chief Executive Officer
Cc: BEVERLY BOARD OF DIRECTORS
Melanie Creagan Dreher, Ph.D., RN, FAAN
John D. Fowler Jr.
John P. Howe III, M.D.
James W. McLane
Ivan R. Sabel
Donald L. Seeley
Marilyn R. Seymann, Ph.D.
IMPORTANT INFORMATION
Arnold Whitman and certain other persons may be deemed to be "participants
in the solicitation" (as defined in Instruction 3 to Item 4 of Schedule 14A
of the Securities and Exchange Act of 1934, as amended) of the stockholders
of Beverly Enterprises in connection with the Company's 2005 annual meeting
of stockholders. A list of these persons will be included in Exhibit L to
Amendment # 3 to a Schedule 13D filed with the Securities and Exchange
Commission (SEC) with respect to the common stock of Beverly Enterprises by
Mr. Whitman, Appaloosa Management L.P., Franklin Mutual Advisers, LLC. A
description of the interests in solicitation of these persons is contained
in the Schedule 13D as amended, including in Exhibit L. The Schedule 13D
was originally filed with the SEC on January 24, 2005. Exhibit L is
included in Amendment No. 3 to be filed with the SEC on February 4, 2005.
Mr. Whitman intends to file a proxy statement with the SEC for the
solicitation of the stockholders of Beverly Enterprises in connection with
the Company's 2005 annual meeting of stockholders. Security holders of
Beverly Enterprises are urged to read the proxy statement and any other
proxy solicitation materials filed by Mr. Whitman (when they become
available) because they will contain important information.
Investors will be able to obtain a free copy of the proxy statement and
other documents filed by Mr. Whitman with the SEC (when they become
available) at the SEC's website at www.sec.gov. Investors will also be able
to obtain a free copy of the proxy statement and these other documents
(when they become available) by contacting MacKenzie Partners, Inc., the
proxy solicitor retained in connection with the solicitation, at (212)
929-5500 (call collect) or (800) 322-2885 (call toll-free).
Consent has not been sought or obtained for the use of as proxy-soliciting
material of previously published material reproduced in this document.
###
EX-99
4
exhi99_11.txt
EXHIBIT K
ARNOLD M. WHITMAN
c/o Formation Capital, LLC
1035 Powers Place
Alpharetta, GA 30004
VIA FACSIMILE AND HAND DELIVERY
February 4, 2005
Beverly Enterprises, Inc.
One Thousand Beverly Way
Fort Smith, Arkansas 72919
Attention: Secretary
Re: Notice of Business and Proposals to be Brought before the 2005 Annual
Meeting of Stockholders
Dear Sir or Madam:
Pursuant to and in accordance with the requirements of Sections 15 and 16
of Article II of the By-Laws of Beverly Enterprises, Inc. (the "Company"),
the undersigned (the "Stockholder") hereby furnishes notice of the
Stockholder's intention (i) to bring before the Company's 2005 Annual
Meeting of Stockholders, or any other meeting of Stockholders held in lieu
thereof (including any adjournments, postponements, reschedulings or
continuations thereof, the "Annual Meeting"), the business and proposals
described below and (ii) to nominate for election to the Company's board of
directors at the Annual Meeting the persons named below.
Business and Proposals
The Stockholder intends to bring the following business and proposals
before the Annual Meeting for consideration and action by the Company's
stockholders in the sequence indicated and before any other business is
conducted:
PROPOSAL 1: To amend the Company's By-Laws to fix the number of
directors constituting the entire Board of Directors at
eight, by revising Article III, Section 2 of the Company's
By-Laws to read in its entirety as set forth in Exhibit A.
PROPOSAL 2: To repeal each provision of or amendment to the Company's
By-Laws (other than the provisions and amendments added or
effected pursuant to Proposal 1) adopted after the version
of the By-Laws, purportedly as of May 29, 1997, filed by the
Company with the Securities and Exchange Commission as
Exhibit 3.4 to the Company's Registration Statement on Form
S-1 filed on June 4, 1997 (File No. 333-28521).
PROPOSAL 3: To elect each of the Nominees referred to below to the
Company's Board of Directors, in lieu of any persons who may
be nominated by the Company's incumbent Board of Directors
or by any other person.
PROPOSAL 4: To require that action be taken at the Annual Meeting on
proposals 1 through 3 above in the sequence indicated and
before any other business is conducted.
Information in Support of Director Nominations
The Stockholder intends to nominate each of the following persons (the
"Nominees") for election as a director of the Company:
Jeffrey A. Brodsky
John J. Durso
Philip L. Maslowe
Charles M. Masson
Mohsin Y. Meghji
Guy Sansone
Annex I to this notice presents as to each Nominee:
(a) the name and business address and residence address of that
person; and
(b) such other information regarding that person 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 of the Company.
Each of the Nominees named in Annex I has consented to being named in the
proxy statement filed or distributed on behalf of the stockholder in
connection with the solicitation of proxies for the proposals described
above and to serve as a director of the Company if elected pursuant to that
solicitation. Each of the consents executed by the Nominees is attached
hereto as Exhibit B and incorporated herein by reference.
Appaloosa Management, L.P. ("Appaloosa Management"), on behalf of certain
funds for which it acts as investment adviser, Franklin Mutual Advisers,
LLC ("Franklin Mutual"), on behalf of certain funds for which it acts as
investment adviser, and Formation Capital, LLC ("Formation," together with
Appaloosa Management and Franklin Mutual, the "Indemnitors") entered into
an agreement with each of the Nominees (the "Indemnification Agreement").
The Stockholder is the Chief Executive Officer, Treasurer and Co-Chairman
of Formation.
The Indemnification Agreement provides that the Indemnitors will indemnify
each Nominee against any and all damages, judgments, fines, penalties,
losses and expenses ("Losses") suffered, incurred or sustained by such
Nominee or to which such Nominee becomes subject, resulting from, arising
out of or relating to a claim by reason of (a) the Nominee's being a
nominee for election to the Company's Board of Directors at the Annual
Meeting or (b) any event or occurrence relating to or arising out of, or
any action taken or omitted to be taken in connection with the solicitation
of proxies from the stockholders of the Company in support of the Nominee's
election as a director of the Company at the Annual Meeting. Under each
Indemnification Agreement, responsibility for payments or Losses for which
the Indemnitors are liable thereunder is allocated 40% to Appaloosa, 46.67%
to Franklin Mutual and 13.33% to Formation, and each Indemnitor's liability
under the Indemnification Agreement is limited to 40%, 46.67% and 13.33%,
respectively, of $25,000,000. This description of the Indemnification
Agreement is qualified in its entirety by reference to the Indemnification
Agreement, which is attached hereto as Exhibit C and incorporated herein by
reference.
If this notice shall be deemed for any reason by a court of competent
jurisdiction to be ineffective with respect to the nomination of any
individual Nominee at the Annual Meeting, or if any individual Nominee
shall be unable or unwilling to stand for election to the Board of
Directors of the Company for any reason, the Stockholder reserves the right
to designate a substitute Nominee and this notice shall continue to be
effective with respect to the remaining Nominees and as to any substitute
Nominees selected by the Stockholder.
Information Regarding the Stockholder
The name and address of the Stockholder, as the Stockholder believes it
appears on the Company's books, is Arnold Whitman, 1035 Powers Place,
Alpharetta, GA 30004. The address of the Stockholder is c/o Formation
Capital LLC, 1035 Powers Place, Alpharetta, GA 30004. The Stockholder
hereby represents that he is a holder of record of stock of the Company
entitled to vote for the election of directors on the date hereof and that
he intends to appear in person or by proxy at the Annual Meeting to
nominate the Nominees and to present the proposals set forth in this
letter.
As of the date of this letter, the Stockholder is a holder of record of 100
shares of the Company's stock, and the beneficial owner of 4,700 shares of
the Company's common stock (including the 100 shares held of record). The
Stockholder may also be the beneficial owner of 21,900 shares of the
Company's common stock owned by Baylor Enterprises LLC ("Baylor") of which
the Stockholder is the controlling member. The Stockholder may also be
deemed to be the beneficial owner of shares of the Company's common stock
beneficially owned by (i) Appaloosa Investment Limited Partnership I, (ii)
Palomino Fund Ltd., (iii) Appaloosa Management, (iv) Appaloosa Partners,
Inc., (v) David A. Tepper, (vi) Franklin Mutual Advisers, LLC, (vii)
Northbrook NBV, LLC, (viii) David Hokin, (ix) Rob Rubin, (x) Robert
Hartman, (xi) 1995 David Reis Family Trust, (xii) 1995 Donna Reis Family
Trust, (xiii) Aaron Reis Spray Trust, (xiv) Anna Reis Spray Trust, (xv)
Alexander Reis Spray Trust, (xvi) David Reis Family Trust, and (xvii) David
Reis (the persons listed in clauses (i) through (xvii), together with the
Stockholder and Baylor, the "13D Filers"). To the knowledge of the
Stockholder, as of the date of this letter, the 13D Filers beneficially
own, in the aggregate, 8,730,400 shares of common stock of the Company (not
including the 4,700 shares owned by the Stockholder and the 21,900 shares
owned by Baylor as described above).
Purpose of Proposals
The 13D Filers are interested in exploring the possibility of a negotiated
transaction (the "Proposed Transaction") with the Company that would
involve acquiring control of the Company or purchasing its real estate
assets and nursing facilities operations (the "SNF's").
In connection therewith, on December 14, 2004, Appaloosa Management, Eureka
Capital Markets, LLC ("Eureka"), Formation and Franklin Mutual executed a
term sheet setting forth terms on which they would work together to effect
a transaction acquiring the outstanding shares of the Company or the
Company's real estate assets and SNF's. Pursuant to this term sheet,
Appaloosa, Franklin Mutual and Formation would make an aggregate equity
contribution of $375 million to an entity newly formed by Formation,
consisting of $150 million from Appaloosa Management $175 million from
Franklin Mutual and $50 million from Formation. In addition, the term sheet
provides for the division of profits and losses and payment of fees and
expenses among Appaloosa Management, Franklin Mutual and Formation. The
description of this term sheet is qualified in its entirety by reference to
the term sheet, which is attached hereto as Exhibit D and incorporated
herein by reference.
On December 22, 2004, Formation sent a letter to William R. Floyd, the
Chairman of the Board, President and Chief Executive Officer of the
Company, offering to acquire the issued and outstanding shares of the
Company at a price of $11.50 per share in cash, subject to the terms and
conditions set forth in the letter. The letter stated that Formation is
prepared to immediately commence due diligence review of the Company, and
if due diligence suggests that there is more value in the Company,
Formation would be prepared to raise its offer price accordingly. The
letter also indicated that Formation is prepared to discuss a transaction
whereby Formation would purchase the Company's real estate assets and
SNF's.
On January 19, 2005, Formation expanded on its proposals as initially set
forth in the December 22 letter in a letter to the Company.
On February 3, 2004, the Company rejected Formation's proposals without
engaging in any discussion with Formation regarding its proposals or
permitting Formation to conduct due diligence.
The purpose of the proposals described above is to replace a majority of
the Company's directors with directors who will, subject to their fiduciary
duties, be committed to proceeding with a process that would give due
consideration to proposals made by Formation as well as any other proposals
the Company may receive from Formation or others with respect to a sale of
the Company or its assets ("Other Proposals"). As a stockholder of the
Company and as the Chief Executive Officer, Treasurer and Co-Chairman of
Formation, the Stockholder's interest in the business he intends to bring
before the Annual Meeting rests in electing directors committed to
proceeding with a process that would give due consideration to the
proposals made by Formation and any Other Proposals the Company may
receive.
The Stockholder is reserving the right, consistent with the requirements of
applicable law, to submit additional proposals, fewer proposals or
different proposals at the Annual Meeting.
The Stockholder, in furnishing the notice described above, does not concede
the validity or enforceability of the provisions of the Company's By-Laws
that purport to impose advance notice requirements or otherwise limit the
right of any stockholder to present business or nominees for consideration
at any meeting of the stockholders, and expressly reserves the right to
challenge the validity, application and interpretation of any such
provision. In addition, the Stockholder reserves the right to challenge the
legality, validity or enforceability of the Company's decision, announced
on January 21, 2005, to accelerate the date of the Annual Meeting and the
date for submission of proposals and nominees for presentation by
stockholders at the Annual Meeting.
Sincerely,
/s/ Arnold M. Whitman
Arnold M. Whitman
------------------------------------------------------------------------------
ANNEX I
INFORMATION REGARDING THE NOMINEES
The following table sets forth for each nominee named below (i) the name,
age, business address and residence address of such person, and (ii) the
principal occupation or employment and five-year business history of such
person, including all current directorships held in other public companies
or mutual funds.
------------------------------------------------------------------------
NAME, AGE, BUSINESS PRESENT PRINCIPAL OCCUPATION OR EMPLOYMENT
ADDRESS AND RESIDENCE (INCLUDING THE NAME, AND PRINCIPAL
ADDRESS BUSINESS AND ADDRESS OF ANY CORPORATION OR
OTHER ORGANIZATION IN WHICH SUCH EMPLOYMENT
IS CARRIED ON AND WHETHER SUCH CORPORATION
OR ORGANIZATION IS A PARENT, SUBSIDIARY, OR
OTHER AFFILIATE OF THE COMPANY) AND
BUSINESS EXPERIENCE DURING LAST FIVE YEARS;
CURRENT DIRECTORSHIPS
------------------------------------------------------------------------
JEFFREY A. BRODSKY Since 2000, Mr. Brodsky has been a Managing
Director of Quest Turnaround Advisors, LLC, a
turnaround management consulting services firm.
Age: 46 Since 2002, he has served as Chairman and Chief
Executive Officer of PTV, Inc. (formerly NTL
Business Address: Europe, Inc. and NTL Incorporated), a new media
Quest Turnaround company in the United Kingdom located at
Advisors, LLC Trafalgar House, 11 Waterloo Place, London SW1Y
RiverView at Purchase 4AU, United Kingdom.
287 Bowman Avenue
Purchase, NY 10577 Mr. Brodsky is currently a director of AboveNet,
Inc., a provider of fiber connectivity for
Residence Address: business. From 2002 to 2004, Mr. Brodsky served
10 Sunset Lane as a director of Comdisco Holding Company,
Harrison, NY 10528 Inc., a provider of equipment lease financing
of information and technology equipment to a
variety of industries. From 2002 to 2003, he
served as Chairman of Cablecom GmbH, a cable
network operator in Switzerland. From 1994 to
1996, he served as a director of Hawaiian
Airlines.
------------------------------------------------------------------------
JOHN J. DURSO Since 2002, Mr. Durso has been a partner of
the Chicago office of the law firm Michael
Age: 53 Best & Friedrich LLP, where he has chaired the
national Long-Term Care Practice Group. Prior
Business Address: to joining Michael Best, Mr. Durso was for 17
Michael Best & Friedrich years a partner with the law firm of Katten
LLP Muchin & Zavis, during which time he chaired
401 North Michigan Avenue the firm's national health care practice.
Suite 1900
Chicago, Illinois 60611
Residence Address:
222 N. Columbus #5103
Chicago, Illinois 60601
------------------------------------------------------------------------
------------------------------------------------------------------------
PHILIP L. MASLOWE From 1997 until 2002, Mr. Maslowe served as
Executive Vice President and Chief
Age: 57 Financial Officer of The Wackenhut
Corporation, a security, staffing and
Business and Residence privatized prisons corporation. Prior to that,
Address: from 1993 to 1997, Mr. Maslowe served as
12900 Brynwood Executive Vice President and Chief Financial
Palm Beach Gardens, Officer of KinderCare Learning Centers, Inc.,
Florida 33418 the largest preschool and childcare provider
in the U.S.
Mr. Maslowe is currently a direct NorthWestern
Corporation, a public utility company. Mr.
Maslowe previously served as non-executive
Chairman of AMF Bowling Worldwide, Inc., the
world's largest owner and operator of bowling
centers. From August 2002 to December 2004,
Mr. Maslowe served on the Board of Directors
of Mariner Health Care, Inc., a publicly held
integrated health care services provider.
------------------------------------------------------------------------
CHARLES M. MASSON Since September 2002, Mr. Masson has been
managing partner of Masson & Company, LLC, a
Age: 51 firm providing interim and crisis management,
turnaround consulting and assessment, and
Business Address: financial restructuring services. From April
Masson & Company, LLC 1999 to September 2002, Mr. Masson was a
420 Lexington Avenue managing partner of Leary, Masson & Associates,
Suite 2045 LLC, a firm providing similar services. Since
New York, New York 10170 2005, he has been serving as Chairman and Chief
Restructuring Officer of Kinetic Systems, Inc.,
Residence Address: an engineering and construction provider of
200 E. 84th Street, #8G process piping to the semi-conductor and
New York, New York 10028 bio-pharmaceutical industries. In 2001, he
served as Chief Executive Officer of
Maidenform, Inc., an intimate apparel maker.
Mr. Masson is currently a director of
Algoma Steel Inc., an integrated steel
producer.
------------------------------------------------------------------------
MOHSIN Y. MEGHJI Since 2002, Mr. Meghji has been a Principal
of Loughlin Meghji + Company, a financial
Age: 40 advisory boutique specializing in advising
management, investors and lenders in
Business Address: relation to transactions involving
Loughlin Meghji + Company financially challenged companies. From
148 Madison Avenue 1998 to 2002, he was a member of the Global
New York, NY 10016 Corporate Finance Group of Arthur Andersen
LLP, the accounting firm.
Residence Address: From May 2002 when it emerged from Chapter 11
49 Carriage Road to December 2004 upon its sale, Mr. Meghji
Roslyn, NY 11576 served on the Board of Directors of Mariner
Health Care, Inc., a publicly held integrated
health care services provider. From July 1999
to May 2002, Mr. Meghji served as financial
advisor to various creditors in relation to
the restructuring of Mariner Health Care.
------------------------------------------------------------------------
GUY SANSONE Since 1999, Mr. Sansone has been with Alvarez &
Marsal, LLC, a global professional services
Age: 40 firm specializing in turnaround management and
corporate restructuring, where he has been a
Business Address: Managing Director since 2002. From March 2003 to
Alvarez & Marsal, Inc. September 2004, he served as Interim Chief
600 Lexington Avenue Financial Officer of Healthsouth Corporation, a
New York, NY 10022 provider of outpatient surgery, diagnostic
imaging and rehabilitative healthcare services.
Residence Address: In 2002, he served as Interim President and
2 Brier Lane Chief Executive Officer of Rotech Healthcare
Pelham Manor, NY 10803 Inc., a provider of home medical equipment,
respiratory equipment and services and
respiratory medications for home use. From 2000
to 2003, he served as Senior Vice President,
focusing on the restructuring of Integrated
Health Services Inc., a provider of post-acute
healthcare services. From 1999 to 2000, he
served as Chief Financial Officer of Telegroup,
Inc., an alternative provider of domestic and
international telecommunications services.
Mr. Sansone is currently a director of Rotech
Healthcare Inc.
------------------------------------------------------------------------
Except as set forth in this Annex I or the notice (or exhibits thereto) to
which this is attached, to the knowledge of the Stockholder, there is no
other information regarding any Nominee that is required to be disclosed in
a proxy statement filed pursuant to the proxy rules of the Securities and
Exchange Commission had the Nominees been nominated, or intended to be
nominated, by the Board of Directors of the Company.
EXHIBIT A
Article III, Section 2 of the Company's Bylaws shall be amended to
read in its entirety as follows:
Number of Directors. The number of Directors of the Corporation which
shall comprise the full Board of Directors shall be fixed at eight.
EXHIBIT B
NOMINEE CONSENTS
The undersigned hereby consents to be named as a nominee of Arnold M.
Whitman (the "Stockholder") for election as a director of Beverly
Enterprises, Inc. ("BEV") in the Stockholder's notice to BEV of its intent
to nominate directors for election at BEV's 2005 annual meeting of
stockholders (the "Annual Meeting"), and in any proxy materials filed or
distributed on behalf of the Stockholder in connection with the
solicitation of proxies for use at the Annual Meeting. The undersigned
further consents to serve as a director of BEV if so elected.
/s/ Jeffrey A. Brodsky
---------------------------
By: Jeffrey A. Brodsky
Dated: February 2, 2005
NOMINEE CONSENTS
The undersigned hereby consents to be named as a nominee of Arnold M.
Whitman (the "Stockholder") for election as a director of Beverly
Enterprises, Inc. ("BEV") in the Stockholder's notice to BEV of its intent
to nominate directors for election at BEV's 2005 annual meeting of
stockholders (the "Annual Meeting"), and in any proxy materials filed or
distributed on behalf of the Stockholder in connection with the
solicitation of proxies for use at the Annual Meeting. The undersigned
further consents to serve as a director of BEV if so elected.
/s/ John J. Durso
--------------------------
By: John J. Durso
Dated: February 3, 2005
NOMINEE CONSENTS
The undersigned hereby consents to be named as a nominee of Arnold M.
Whitman (the "Stockholder") for election as a director of Beverly
Enterprises, Inc. ("BEV") in the Stockholder's notice to BEV of its intent
to nominate directors for election at BEV's 2005 annual meeting of
stockholders (the "Annual Meeting"), and in any proxy materials filed or
distributed on behalf of the Stockholder in connection with the solicitation
of proxies for use at the Annual Meeting. The undersigned further consents
to serve as a director of BEV if so elected.
/s/ Philip L. Maslowe
----------------------------
By: Philip L. Maslowe
Dated: February 2, 2005
NOMINEE CONSENTS
The undersigned hereby consents to be named as a nominee of Arnold M.
Whitman (the "Stockholder") for election as a director of Beverly
Enterprises, Inc. ("BEV") in the Stockholder's notice to BEV of its intent
to nominate directors for election at BEV's 2005 annual meeting of
stockholders (the "Annual Meeting"), and in any proxy materials filed or
distributed on behalf of the Stockholder in connection with the
solicitation of proxies for use at the Annual Meeting. The undersigned
further consents to serve as a director of BEV if so elected.
/s/ Charles M. Masson
------------------------------
By: Charles M. Masson
Dated: February 3, 2005
NOMINEE CONSENTS
The undersigned hereby consents to be named as a nominee of Arnold M.
Whitman (the "Stockholder") for election as a director of Beverly
Enterprises, Inc. ("BEV") in the Stockholder's notice to BEV of its intent
to nominate directors for election at BEV's 2005 annual meeting of
stockholders (the "Annual Meeting"), and in any proxy materials filed or
distributed on behalf of the Stockholder in connection with the
solicitation of proxies for use at the Annual Meeting. The undersigned
further consents to serve as a director of BEV if so elected.
/s/ Mohsin Y. Meghji
------------------------------
By: Mohsin Y. Meghji
Dated: February 3, 2005
NOMINEE CONSENTS
The undersigned hereby consents to be named as a nominee of Arnold M.
Whitman (the "Stockholder") for election as a director of Beverly
Enterprises, Inc. ("BEV") in the Stockholder's notice to BEV of its intent
to nominate directors for election at BEV's 2005 annual meeting of
stockholders (the "Annual Meeting"), and in any proxy materials filed or
distributed on behalf of the Stockholder in connection with the
solicitation of proxies for use at the Annual Meeting. The undersigned
further consents to serve as a director of BEV if so elected.
/s/ Guy Sansone
-------------------------------
By: Guy Sansone
Dated: February 2, 2005
EXHIBIT C
INDEMNIFICATION AGREEMENT
AGREEMENT, dated as of February 3, 2005, by and among Appaloosa
Management L.P., on behalf of certain funds for which it acts as investment
adviser ("Appaloosa"), Franklin Mutual Advisers, LLC, on behalf of certain
funds for which it acts as investment adviser ("Franklin"), and Formation
Capital, LLC ("Formation", and together with Appaloosa and Franklin, the
"Indemnitors"), and each of Jeffrey A. Brodsky, Guy Sansone, Mohsin Y.
Meghji, Charles M. Masson, John J. Durso and Philip Maslowe (each an
"Indemnitee").
WHEREAS, the Indemnitors have asked the Indemnitees, and Indemnitees
have agreed, to be nominees for election to the Board of Directors of
Beverly Enterprises, Inc., a Delaware corporation ("Beverly"), at the 2005
annual meeting of stockholders of Beverly (the "Annual Meeting"); and
WHEREAS, one or more of the Indemnitors and/or their affiliates may,
in appropriate circumstances, solicit proxies from the stockholders of
Beverly in support of Indemnitees' election as directors of Beverly at the
Annual Meeting (the "Solicitation").
NOW, THEREFORE, in consideration of the foregoing and with the
understanding on the part of the Indemnitors that each of the Indemnitees
is relying on this Agreement in agreeing to be a nominee as aforesaid and
for other and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, the parties hereto agree as follows:
1. Certain Definitions. As used in this Agreement, the following
defined terms have the meanings indicated below:
"Claim" means any threatened, pending or completed action, suit or
proceeding (whether civil, criminal, administrative, formal or informal
investigative or other), whether instituted by Beverly or any other party,
or any inquiry or investigation that Indemnitee in good faith believes
might lead to the institution of any such action, suit or proceeding.
"Expenses" means all reasonable attorneys' fees and all other
reasonable fees, costs, expenses and obligations paid or incurred in
connection with the Solicitation or related matters, including without
limitation, investigating, defending or participating (as a party, witness
or otherwise) in (including on appeal), or preparing to defend or
participate in, any Claim relating to any Indemnifiable Event including the
costs and expenses of the Indemnitee seeking enforcement of this Agreement.
"Indemnification Amount" shall mean $25,000,000.
"Indemnifiable Event" means any event or occurrence relating to or
directly or indirectly arising out of, or any action taken or omitted to be
taken in connection with the Solicitation or related matters, but not in
Indemnitee's capacity as a director of Beverly if he is so elected.
"Indemnity Percentage" means, with respect to Appaloosa, 40%; with
respect to Franklin, 46.7%: and with respect to Formation, 13.33%.
"Loss" means any and all damages, judgments, fines, penalties,
amounts paid or payable in settlement, deficiencies, losses and Expenses
(including all interest, assessments, and other charges paid or payable in
connection with or in respect of such Losses).
2. Indemnification. (a) In the event any Indemnitee in his capacity
as a nominee for election to Beverly's Board of Directors at the Annual
Meeting was, is or becomes a party to or other participant in, or is
threatened to be made a party to or other participant in, a Claim by reason
of (or arising or allegedly arising in any manner out of or relating to in
whole or in part) an Indemnifiable Event or the Indemnitee's being a
nominee for election to Beverly's Board of Directors at the Annual Meeting,
the Indemnitors, to the fullest extent permitted by applicable law, shall
indemnify and hold harmless the Indemnitee from and against any and all
Losses suffered, incurred or sustained by Indemnitee or to which Indemnitee
becomes subject, resulting from, arising out of or relating to such Claim
(it being understood that except as provided in Section 2(c) with respect
to Expenses, reimbursements of any such Losses shall be made as soon as
practicable but in any event no later than 15 days after written request (a
"Claim Notice") is made to the Indemnitors accompanied by supporting
documentation). An Indemnitee shall give the Indemnitors written notice of
any Claim (accompanied by such reasonable supporting documentation as may
be in the Indemnitee's possession) as soon as practicable after the
Indemnitee becomes aware thereof; provided, that the failure of an
Indemnitee to give such notice shall not relieve the Indemnitors of their
indemnification obligations under this Agreement, except to the extent that
such failure materially prejudices the rights of the Indemnitors.
(b) In the case of the commencement of any action against an
Indemnitee in respect of which he may seek indemnification from the
Indemnitors hereunder, the Indemnitors (acting jointly) may, by written
notice to the Indemnitee, elect to assume the defense thereof (with counsel
reasonably satisfactory to the Indemnitee), including, without limitation,
the negotiation and approval of any settlement of such action. After notice
from the Indemnitors to the Indemnitee of the Indemnitors' election so to
assume the defense thereof, the Indemnitors will not be liable to
Indemnitee under this Agreement for any Expenses subsequently incurred by
him in connection with the defense thereof other than reasonable costs of
investigation and preparation therefor (including, without limitation,
appearing as a witness and reasonable fees and expenses of legal counsel in
connection therewith). If, in any action for which indemnity may be sought
hereunder, the Indemnitors shall not have timely assumed the defense
thereof with counsel reasonably satisfactory to the applicable Indemnitee,
or an Indemnitee shall have been advised by his counsel that it would
constitute a conflict of interest for the same counsel to represent both
him and the Indemnitors or both him and any other Indemnitee in such
action, or if an Indemnitee may have separate or additional defenses with
regard to such action, Indemnitee shall have the right to employ his own
counsel reasonably satisfactory to the Indemnitors in such action, in which
event the Indemnitors shall reimburse Indemnitee for all reasonable legal
fees and expenses incurred by him in connection with the defense thereof.
The Indemnitors shall in no event be liable for any settlement of any
action effected without their prior written consent (which consent shall
not be unreasonably withheld). The Indemnitors shall not settle any Claim
in any manner that would impose any expense, penalty, obligation or
limitation on an Indemnitee, or would contain language (other than a
recitation of any amounts to be paid in settlement) that could reasonably
be viewed as an acknowledgment of wrongdoing on the part of an Indemnitee
or as materially detrimental to the reputation of an Indemnitee, without
that Indemnitee's prior written consent (which consent shall not be
unreasonably withheld).
(c) Each Indemnitee's right to indemnification in Section 2 of this
Agreement shall include the right of the Indemnitee to be advanced by the
Indemnitors any Expenses incurred in connection with any Indemnifiable
Event as such expenses are incurred by the Indemnitee; provided, however,
that all amounts advanced in respect of such Expenses shall be repaid to
the Indemnitors by the Indemnitee if it shall ultimately be determined in a
final judgment that the Indemnitee is not entitled to be indemnified for
such Expenses.
3. Partial Indemnity, Etc. If an Indemnitee is entitled under any
provision of this Agreement to indemnification by the Indemnitors for some
or a portion of any Loss, but not for all of the total amount thereof, the
Indemnitors shall nevertheless indemnify the Indemnitee for the portion
thereof to which Indemnitee is entitled. Moreover, notwithstanding any
other provision of this Agreement, to the extent that the Indemnitee has
been successful on the merits or otherwise in defense of any or all Claims
relating in whole or in part to an Indemnifiable Event or in defense of any
issue or matter therein, including dismissal without prejudice, the
Indemnitee shall be indemnified against all Expenses incurred in connection
therewith pursuant to the terms of this Agreement.
4. No Presumptions. For purposes of this Agreement, the termination
of any claim, action, suit or proceeding, by judgment, order, settlement
(whether with or without court approval), or upon a plea of nolo
contendere, or its equivalent, shall not create a presumption that an
Indemnitee did not meet any particular standard of conduct or have any
particular belief or that a court has determined that indemnification is
not permitted by applicable law.
5. Amendments, Etc. No supplement, modification or amendment of this
Agreement shall be binding with respect to any party unless executed in
writing by such party. No waiver of any of the provisions of this Agreement
shall be deemed or shall constitute a waiver of any other provisions hereof
(whether or not similar) nor shall such waiver constitute a continuing
waiver.
6. Subrogation. In the event of payment under this Agreement, the
Indemnitors shall be subrogated to the extent of such payment to all of the
rights of recovery of the applicable Indemnitee, and that Indemnitee shall,
at the Indemnitors' expense, execute all papers reasonably required and
shall do everything that may be reasonably necessary to secure such rights,
including the execution of such documents reasonably necessary to enable
the Indemnitors effectively to bring suit to enforce such rights.
7. No Duplication of Payments. The Indemnitors shall not be liable
under this Agreement to make any payment in connection with a Claim made
against an Indemnitee to the extent the Indemnitee has otherwise actually
received payment (under any insurance policy, by-law or otherwise) of the
amounts otherwise indemnifiable hereunder provided that, if an Indemnitee
for any reason is required to disgorge any payment actually received by
him, the Indemnitors shall be obligated to pay such amount to the
Indemnitee in accordance with the other terms of this Agreement (i.e.,
disregarding the terms of this Section 7).
8. Allocation of Responsibility. Notwithstanding anything herein to
the contrary, each Indemnitor shall be liable only for such Indemnitor's
Indemnity Percentage of any payments, advances, Losses or Expenses for
which the Indemnitors are otherwise liable pursuant to this Agreement and
each Indemnitor's liability hereunder shall not, in the aggregate, exceed
such Indemnitor's Indemnity Percentage of the Indemnification Amount.
9. Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of Delaware, without giving effect
to principles of conflicts of laws.
10. Counterparts. This Agreement may be executed in counterparts,
each of which shall constitute an original, but which together shall
constitute one agreement.
11. Entire Agreement. This Agreement constitutes the entire
agreement among the parties with respect to the subject hereof.
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the date first above written.
FORMATION CAPITAL, LLC
By: /s/ Arnold M. Whitman
---------------------------------
Name: Arnold M. Whitman
Title: Chief Executive Officer
APPALOOSA MANAGEMENT L.P.,
on behalf of certain funds
for which it acts as
investment adviser
By: /s/ Kenneth Maiman
---------------------------------
Name: Kenneth Maiman
Title: Principal
FRANKLIN MUTUAL ADVISERS,
LLC, on behalf of certain
funds for which it acts as
investment adviser
By: /s/ Bradley Takahashi
---------------------------------
Name: Bradley Takahashi
Title: Vice President
/s/ Jeffrey A. Brodsky
------------------------------
Jeffrey A. Brodsky
/s/ Guy Sansone
------------------------------
Guy Sansone
/s/ Mohsin Y. Meghji
------------------------------
Mohsin Y. Meghji
/s/ Charles M. Masson
------------------------------
Charles M. Masson
/s/ John J. Durso
------------------------------
John J. Durso
/s/ Philip Maslowe
------------------------------
Philip Maslowe
EXHIBIT D
PROJECT SILLS
OPERATING AGREEMENT
SUMMARY TERM SHEET
[Filed as Exhibit G to the Statement]
EX-99
5
exhi99_12.txt
EXHIBIT L
Exhibit L
Each of the following persons may be deemed to be a "participant in the
solicitation" (as defined in Instruction 3 to Item 4 of Schedule 14A of the
Securities Exchange Act of 1934, as amended) of the stockholders of the
Company in connection with the Company's 2005 annual meeting of
stockholders. The following table sets out the interests of the following
persons in the solicitation to the extent not otherwise described in the
Statement. The fact that a person is listed below shall not be deemed an
admission that such person is a participant. Unless otherwise indicated,
all capitalized terms used in this Exhibit L shall have the meanings given
to them in the Statement to which this Exhibit L is an Exhibit.
INTERESTS IN THE SOLICITATION TO THE EXTENT NOT
NAME OTHERWISE DESCRIBED IN THE STATEMENT
-------------------- ---------------------------------------------------------
AILP
Palomino
Appaloosa
API
David Tepper
Ronald Goldstein Vice President and Secretary of API
Franklin Mutual
Michael J. Embler Senior Vice President of Franklin Mutual
Northbrook
David Hokin
Rob Rubin
Robert Hartman
David Reis
Baylor Enterprises LLC
Arnold M. Whitman
Steve Fishman President of Formation
Formation Capital, LLC
Eureka
Stephen A. Greene Managing Director of Eureka
Mark Hyman Managing Director of Eureka
Leslie Feldman Executive Director of Eureka
Jeffrey A. Brodsky Nominee of A. Whitman
John J. Durso Nominee of A. Whitman
Philip L. Maslowe Nominee of A. Whitman
Charles M. Masson Nominee of A. Whitman
Mohsin Y. Meghji Nominee of A. Whitman
Guy Sansone Nominee of A. Whitman