-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, UvFG+dz2Aei7jenFlCIB9zlCTaP6CsQxYjnXGFKifHNM8VgOIeUTWdzurKmvsuBb qePl30EMAIorfTmAafrpng== 0000895345-05-000458.txt : 20050420 0000895345-05-000458.hdr.sgml : 20050420 20050420171047 ACCESSION NUMBER: 0000895345-05-000458 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 2 FILED AS OF DATE: 20050420 DATE AS OF CHANGE: 20050420 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: 05762574 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 pr13da7.txt SCHEDULE 13D (AMENDMENT #7) SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 Schedule 13D/A (Amendment No. 7) 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) April 18, 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) 3.2% 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) 3.2% 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) 3.2% 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 75,000 BENEFICIALLY 8 SHARED VOTING POWER OWNED BY 125,000 EACH 9 SOLE DISPOSITIVE POWER REPORTING 75,000 PERSON 10 SHARED DISPOSITIVE POWER WITH 125,000 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY REPORTING PERSON 200,000 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 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. 7 amends the Schedule 13D originally filed on January 24, 2005, as amended by Amendment No. 1 filed on January 25, 2005, by Amendment No. 2 filed on January 27, 2005, by Amendment No. 3 filed on February 4, 2005, by Amendment No. 4 filed on February 22, 2005 by Amendment No. 5 filed on March 14, 2005 and Amendment No. 6 filed on April 12, 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 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT TO SECURITIES OF THE ISSUER ITEM 6 IS HEREBY SUPPLEMENTED BY THE FOLLOWING: On April 18, 2005, Formation Capital and Northbrook entered into an agreement setting forth the terms on which they would work together in relation to the acquisition of the outstanding shares of Beverly Enterprises, Inc. (the "Company") and the management of the Company following the acquisition (the "Agreement"). Pursuant to the Agreement, Formation Capital and Northbrook have each committed to provide $25,000,000 of the $50,000,000 that Formation Capital is committed to provide in connection with the transaction pursuant to the term sheet, dated December 14, 2004, among Appaloosa, Eureka Capital Markets, LLC, Formation Capital and Franklin Mutual. In addition the Agreement provides for (a) the division between Formation Capital and Northbrook of their profits and losses and fees they receive in connection with an acquisition of the Company, including any break-up fee they receive, and (b) the division between Formation Capital and Northbrook, on a 50-50 basis, of third-party fees and expenses incurred by Formation Capital and Northbrook in connection with their evaluation of a possible transaction with the Company. The description of the Agreement is qualified in its entirety by reference to the Agreement, dated April 18, 2005, filed as Exhibit P attached hereto and incorporated herein by reference. 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.*** M. Complaint, filed by Formation and Arnold M. Whitman***** N. Confidentiality Agreement, dated as of April 11, 2005, between the Consortium Parties and the Company.****** O. Settlement Agreement, dated as of April 11, 2005, between the Consortium Parties and the Company.****** P. Agreement, dated as of April 18, 2005, between Formation Capital and Northbrook.++ - -------------------------------- *Filed on January 24, 2005 +Filed with Amendment No. 1 on January 25, 2005 **Filed with Amendment No. 2 on January 27, 2005 ***Filed with Amendment No. 3 on February 4, 2005 ****Filed with Amendment No. 4 on February 22, 2005 *****Filed with Amendment No. 5 on March 14, 2005 ******Filed with Amendment No. 6 on April 12, 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: April 20, 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: April 20, 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: April 20, 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: April 20, 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: April 20, 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: April 20, 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: April 20, 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: April 20, 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: April 20, 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: April 20, 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: April 20, 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: April 20, 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: April 20, 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: April 20, 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: April 20, 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: April 20, 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: April 20, 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: April 20, 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: April 20, 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.*** M. Complaint, filed by Formation and Arnold M. Whitman***** N. Confidentiality Agreement, dated as of April 11, 2005, between the Consortium Parties and the Company.****** O. Settlement Agreement, dated as of April 11, 2005, between the Consortium Parties and the Company.****** P. Agreement, dated as of April 18, 2005, between Formation Capital and Northbrook.++ - -------------------------------- *Filed on January 24, 2005 +Filed with Amendment No. 1 on January 25, 2005 **Filed with Amendment No. 2 on January 27, 2005 ***Filed with Amendment No. 3 on February 4, 2005 ****Filed with Amendment No. 4 on February 22, 2005 *****Filed with Amendment No. 5 on March 14, 2005 ******Filed with Amendment No. 6 on April 12, 2005 ++ Filed herewith EX-99.P 2 agreement.txt AGREEMENT Exhibit P AGREEMENT THIS AGREEMENT, dated as of April 18, 2005, is entered into by and between FORMATION CAPITAL, LLC, a Pennsylvania limited liability company ("Formation"), and NORTHBROOK NBV, LLC, a Delaware limited liability company ("Northbrook"), provides: RECITALS WHEREAS, Formation has entered into that certain Term Sheet dated December 14, 2004 by and among Appaloosa Management L.P., Franklin Mutual Advisers, LLC, Eureka Capital Markets, LLC and Formation (the "Term Sheet"), a copy of which is attached hereto as Exhibit A, pursuant to which FC has certain rights and obligations in a newly formed Delaware limited liability company ("Newco") which will acquire Beverly Enterprises, Inc. ("Beverly"); and WHEREAS, Northbrook has agreed to participate with Formation in the transactions envisaged by the Term Sheet; and WHEREAS, the parties shall form a new company, FC BEV Acquisition Co., LLC, a Delaware limited liability company ("FC BEV") for the purpose of investing in Newco. NOW THEREFORE, the parties hereto, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, agree as follows: AGREEMENT Capitalized terms used but not defined herein shall have the meanings ascribed to them in the Term Sheet. 1. Newco Contribution. ------------------ (a) Formation has agreed pursuant to the Term Sheet to make an equity contribution to Newco in an amount equal to $50,000,000 (the "Newco Contribution"). Formation and Northbrook hereby agree to provide equal amounts of $25,000,000 each to FC BEV for the purpose of funding the Newco Contribution. Such contributions shall be in exchange for identical interests in FC BEV calculated on a pro rata basis, except as provided herein. (b) The parties acknowledge that the amounts used to fund Northbrook's portion of the Newco Contribution (the "Northbrook Contribution") do not need to be provided from Northbrook's own resources and that Northbrook may raise the necessary equity to fund the Northbrook Contribution in such manner as it deems necessary and appropriate. Any preferred returns, promotes, fees or other amounts payable to Northbrook by any party that agrees to contribute a portion of the Northbrook Contribution in connection with such capital raising activities shall remain the exclusive property of Northbrook and Formation shall not have any claim to such preferred returns or fees. (c) The parties acknowledge that the amounts used to fund Formation's portion of the Newco Contribution (the "Formation Contribution") do not need to be provided from Formation's own resources and that Formation may raise the necessary equity to fund the Formation Contribution in such manner as it deems necessary and appropriate. Any preferred returns, promotes, fees or other amounts payable to Formation by any party that agrees to contribute a portion of the Formation Contribution in connection with such capital raising activities shall remain the exclusive property of Formation and Northbrook shall not have any claim to such preferred returns or fees. (d) In the event Newco requires an equity contribution greater than $50,000,000 from FC BEV and Formation agrees to contribute such amount, Northbrook shall have the right to participate pari passu with Formation. (e) Notwithstanding anything herein to the contrary, each party's obligation to fund the Newco Contribution is conditioned upon mutual agreement between the parties as to all economic terms of the Beverly transaction. The parties acknowledge and agree that they have previously agreed to the economic terms set forth in the Term Sheet attached hereto as Exhibit A. 2. Carried Interest. Carried Interest will be distributed to FC BEV in accordance with the terms and conditions of the Term Sheet. Any such Carried Interest received by FC BEV will then be distributed in accordance with Exhibit B. 3. Financial Advisory Fee. A Financial Advisory fee will be distributed to Formation in accordance with the terms and conditions of the Term Sheet. A minimum of 50% of the Financial Advisory fees received by Formation will be contributed by Formation to Newco in return for Class A Membership Interests. Northbrook shall receive 10% of all such Class A shares received by Formation. The remainder of the Financial Advisory fees received by Formation shall be distributed in accordance with Exhibit B. 4. Class A Distributions. All distributions from Newco to the Class A Members in respect of their capital contributions shall be applied by FC BEV first to pay FC BEV Expenses (as defined below) and the balance shall be distributed to Formation and Northbrook in proportion to their equity contributions. There shall be no deductions or withholdings for any "carry", "promote", other performance based fees, "structuring fee", "asset management fee" or similar fee, except as provided in Section 2 above. 5. Asset Management Fees. Formation or its designee Formation Capital Asset Management, LLC ("FCAM") will be paid an asset management fee by Newco in accordance with the Term Sheet. Formation agrees to consider a proposal from Northbrook to provide a portion of the asset management services provided that such services are provided (i) at current market rates and (ii) at a cost no greater than that at which Formation or FCAM can supply such services. In the event Northbrook is able to provide the services in accordance with the foregoing requirements, the asset management fee will be allocated between Formation and Northbrook in proportion to the portion of services actually rendered by Formation and Northbrook. 6. Break-Up Fee. To the extent the members of Newco enter into an agreement with Beverly whereby Newco or its members become entitled to a Break-Up Fee, any portion of fees distributed to the Class A Members will be distributed in accordance with Exhibit B. 7. Expenses. All (a) third party fees and expenses incurred by FC BEV, Formation or Northbrook that are reimbursable by Newco or the parties to the Term Sheet relating to the acquisition of Beverly, including, without limitation, sums paid to or for the benefit of Newco in accordance with the Term Sheet, reasonable legal fees and expenses related to Beverly; (b) Losses (as defined in the Indemnification Agreement) paid in accordance with the Indemnification Agreement dated February 3, 2005 (the "Indemnification Agreement") by and among Appaloosa Management L.P., Franklin Mutual Advisers, LLC, Formation, Jeffrey A. Brodsky, Guy Sanson, Mohsin Y. Meghji, Charles M. Masson, John J. Durso and Philip Maslowe (the "Indemnification Costs"); and (c) third party fees and expenses paid by Formation or Northbrook and approved in advance by Formation and Northbrook that are not reimbursed by Newco (collectively, "FC BEV Expenses") shall be paid in accordance with Exhibit B. The parties acknowledge that as of the date of execution of this Agreement, the expenses falling into item (c) and listed on Schedule 7 to this Agreement have been approved. 8. Management Committee. The Management Committee of Newco will initially have six members, two of which shall be appointed by Formation. Formation agrees to appoint one member chosen by Northbrook, in its sole discretion, to the Management Committee. 9. Management and Voting. FC Bev shall be managed by its members provided that for convenience, the parties may appoint an officer or manager to manage day-to-day matters. With respect to any matter submitted to a vote of Newco's members, Formation and Northbrook shall be entitled to vote their proportionate share of the Class A shares and shall use their best efforts to structure Newco's operating agreement to permit such vote sharing. Northbrook shall not be a member of or participate in the management or voting of FCAM or any entity formed by Formation to serve as manager of Newco. 10. Material Obligations. Formation shall not cause FC BEV to take on any material obligations or liabilities with respect to Newco in addition to those set forth in the Term Sheet without the prior written consent of Northbrook. The parties acknowledge that they have accepted all of the terms and conditions of the Term Sheet attached hereto. Formation shall not agree to amend the Term Sheet without the prior written consent of Northbrook. Other than with respect to the foregoing, if prior to closing the Beverly transaction, the Members of Newco are asked to make a material decision regarding the Beverly transactions, including, but not limited to, structure, financing, or strategy as a result of which additional material obligations would be imposed upon FC BEV, Formation or Northbrook, and Formation and Northbrook are deadlocked on such issue for more than five Business Days (the "Discussion Period") then Northbrook may not later than five Business Days following the Discussion Period notify Formation in writing that Northbrook has elected to terminate its interest in FC BEV from the date of such notice and shall only be liable for FC BEV Expenses incurred prior to the date of delivery of such termination notice. In such event, any membership interests in FC BEV issued to Northbrook shall be immediately and without further action on the part of FC BEV or its members cancelled and Formation shall be entitled to offer membership interests in FC BEV to any other party. Northbrook's entitlement to any portion of any of the other fees and distributions payable as provided above shall terminate upon receipt of such termination notice, except that to the extent that FC BEV or Formation are reimbursed, whether from Newco, Beverly or the parties to the Term Sheet, all or any portion of any fees and expenses paid by FC BEV during the period that Northbrook was a party to this Agreement or a member of FC BEV, Northbrook shall be reimbursed its proportionate share of such expenses paid by Northbrook as if Northbrook were a member of FC BEV. 11. Business Opportunity Outgrowth. In the event that any business opportunity for Formation results directly from the termination of Newco's business activities, Formation agrees that it will extend to Northbrook an offer to participate in such opportunity on substantially the same terms and conditions as set forth in this Agreement. 12. Further Assurances. The parties hereto agree to execute, acknowledge, deliver, file and record such further certificates, amendments, instruments and documents, and to do all such other acts and things, as may be required by law or as, in the reasonable judgment of the parties hereto, may be necessary or advisable to carry out the intent and purpose of this Agreement. 13. Notices. All notices and other communications hereunder shall be in writing and shall be deemed given when delivered personally or when received if sent by registered or certified mail to the parties at the following addresses (or such other address as a party may specify by written notice): If to Formation: Formation Capital, LLC 1035 Powers Place Alpharetta, GA 30004 Fax: 770-754-3085 With copy to: Lawrence R. Siegel, Esq. Williams Mullen 222 Central Park Avenue, Suite 1700 Virginia Beach, VA 23462-3035 Fax: 757-473-0395 If to Northbrook: David Hokin 500 Skokie Blvd., Suite 310 Northbrook, IL 60062 Fax: 847-559-1347 and Robert Hartman 6633 N. Lincoln Lincolnwood, IL 60712 Fax: 847-679-1820 With copy to: Richard Marks 500 Skokie Boulevard Suite 310 Northbrook, IL 60062 Fax: 847-919-4410 14. Headings and Captions. All headings and captions contained in this Agreement and the table of contents hereto is inserted for convenience only and shall not be deemed a part of this Agreement. 15. Variance of Pronouns. All pronouns and variations thereof shall be deemed to refer to the masculine, feminine or neuter, singular or plural, as the identity of the person or entity may require. 16. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall constitute an original and all of which, when taken together, shall constitute one Agreement. 17. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT REGARD TO CONFLICT OF LAW PROVISIONS THEREOF. 18. Validity. Every provision of this Agreement is intended to be severable. The invalidity and unenforceability of any particular provision of this Agreement in any jurisdiction shall not affect the other provisions hereof, and this Agreement shall be construed in all respects as if such invalid or unenforceable provision were omitted. 19. Entire Agreement. This Agreement supersedes all prior agreements among the parties with respect to the subject matter hereof and contains the entire Agreement among the parties with respect to such subject matter. 21. Amendment/Waivers. This Agreement may only be amended, supplemented or otherwise modified (including any waiver of any provision hereof) with the prior written consent of all parties hereto. 22. No Brokers. Each of the parties hereto warrants to each other that there are no brokerage commissions or finders' fees (or any basis therefor) resulting from any action taken by such party or any Person acting or purporting to act on their behalf upon entering into this Agreement. 23. No Third Party Beneficiaries. Except as expressly stated herein, this Agreement is not intended and shall not be construed as granting any rights, benefits or privileges to any Person not a party to this Agreement. 24. Construction of Documents. The parties hereto acknowledge that they were represented by separate and independent counsel in connection with the review, negotiation and drafting of this Agreement and that this Agreement shall not be subject to the principle of construing its meaning against the party that drafted same. 25. Time is of the Essence. Time is of the essence with respect to any of the matters set forth in this Agreement. 26. Successor and Assigns. This Agreement shall be binding upon the parties hereto and their respective successor, executors, administrators, legal representative, heir and legal assigns and shall inure to the benefit of the parties hereto and, except as otherwise provided herein, their respective successors, executors, administrators, legal representatives, heirs and legal assigns. No person or entity other than the parties hereto and their respective successors, executors, administrators, legal representatives, heirs and permitted assigns shall have any rights or claims under this Agreement. 27. Waiver of Jury Trial. EACH PARTY TO THIS AGREEMENT HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION (A) ARISING UNDER THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY PRESENT OR FUTURE MODIFICATION HEREOF OR (B) IN ANY WAY CONNECTED OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR ANY OF THEM WITH RESPECT TO THIS AGREEMENT (AS NOW OR HEREAFTER MODIFIED) OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH, OR THE TRANSACTIONS RELATED HERETO OR THERETO, IN EACH CASE WHETHER SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION IS NOW EXISTING OR HEREAFTER ARISING, AND WHETHER SOUNDING IN CONTRACT OR TORT OR OTHERWISE; AND THE COMPANY HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY, AND THAT ANY PARTY TO THIS AGREEMENT MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE PARTIES HERETO TO THE WAIVER OF ANY RIGHT THEY MIGHT OTHERWISE HAVE TO TRIAL BY JURY. [REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK. EXECUTION PAGE TO FOLLOW] IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above written. FORMATION CAPITAL, LLC By: /s/ Chris Sertich -------------------------- Name: Chris Sertich Title: Chief Operating Officer NORTHBROOK NBV, LLC By: /s/ Rob Rubin -------------------------- Name: Rob Rubin Title: Manager -----END PRIVACY-ENHANCED MESSAGE-----