-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: keymaster@town.hall.org Originator-Key-Asymmetric: MFkwCgYEVQgBAQICAgADSwAwSAJBALeWW4xDV4i7+b6+UyPn5RtObb1cJ7VkACDq pKb9/DClgTKIm08lCfoilvi9Wl4SODbR1+1waHhiGmeZO8OdgLUCAwEAAQ== MIC-Info: RSA-MD5,RSA, BXmKqs22p5/CTvUIiKPpg+SveBzLQF5VBGHot+ohWq0Duj4OUFyGpcCtUzwFw6p3 MIxhLTwlLuQ8az9BFdj4ow== 0000950134-95-001680.txt : 19950725 0000950134-95-001680.hdr.sgml : 19950725 ACCESSION NUMBER: 0000950134-95-001680 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 8 FILED AS OF DATE: 19950724 EFFECTIVENESS DATE: 19950812 SROS: NYSE FILER: COMPANY DATA: COMPANY CONFORMED NAME: BEVERLY ENTERPRISES INC /DE/ CENTRAL INDEX KEY: 0000812305 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-SKILLED NURSING CARE FACILITIES [8051] IRS NUMBER: 954100309 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 033-61269 FILM NUMBER: 95555601 BUSINESS ADDRESS: STREET 1: 1200 S WALDRON RD STREET 2: STE 155 CITY: FORT SMITH STATE: AR ZIP: 72903 BUSINESS PHONE: 5014526712 S-8 1 FORM S-8 1 As filed with the Securities and Exchange Commission on July 24, 1995 Registration No.33-_____ - -------------------------------------------------------------------------------- SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 ------------------------ FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ------------------------ BEVERLY ENTERPRISES, INC. (Exact name of registrant as specified in its charter) Delaware 95-4100309 (State or other jurisdiction of (I.R.S. Employer incorporation or organization) Identification No.) 1200 South Waldron Road, No. 155 Fort Smith, Arkansas 72903 (Address of principal executive offices) (Zip Code) ------------------------ PHARMACY MANAGEMENT SERVICES, INC. 1990 INCENTIVE AND NON-STATUTORY STOCK OPTION PLAN, AS AMENDED, ASSUMED BY BEVERLY ENTERPRISES, INC.; AND INSTA-CARE HOLDINGS, INC. FIRST EMPLOYEES STOCK OPTION PLAN, ASSUMED BY BEVERLY ENTERPRISES, INC. (Full Titles of the Plans) ------------------------ Robert W. Pommerville, Executive Vice President, General Counsel & Secretary 5111 Rogers Avenue, Suite 40-A Fort Smith, Arkansas 72919-0155 (501) 452-6712 (Name, address and telephone number of agent for service) Copy to: H. Watt Gregory, III, Esq. Michael E. Karney, Esq. Giroir & Gregory, Professional Association 111 Center Street, Suite 1900 Little Rock, Arkansas 72201 (501) 372-3000 ------------------------ CALCULATION OF REGISTRATION FEE
================================================================================================================= Proposed Maximum Proposed Maximum Title of Securities Amount to be Offering Price Per Aggregate Offering Amount of to be Registered Registered(1) Share(2) Price(2) Registration(2) - ----------------------------------------------------------------------------------------------------------------- Fee(2) Common Stock, $.10 par value 436,024 shares $ 12.875 $ 5,613,809 $ 1935.80 =================================================================================================================
(1) The maximum amount of shares issuable pursuant to the PMSI Plan (as defined) is 342,311 shares of the Registrant's $.10 par value per share common stock (the "Common Stock" or "Beverly Common Stock"). 2 The maximum amount of shares issuable pursuant to the Insta-Care Plan (as defined) is 93,713 shares of the Registrant's Common Stock. (2) Estimated solely for the purpose of determining the registration fee pursuant to Rule 457(c) and (h)(1), based upon the average of the high and low sales prices of the Registrant's Common Stock on July 19, 1995 as reported on the New York Stock Exchange. 3 PART I GENERAL NOTE This Registration Statement on Form S-8 relates to two different employee benefit plans (the "Plans") of Beverly Enterprises, Inc., a Delaware corporation ("Beverly"): the Pharmacy Management Services, Inc. ("PMSI") 1990 Incentive and Non-statutory Stock Option Plan, as amended, assumed by Beverly (the "PMSI Plan"); and the Insta-Care Holdings, Inc.("Insta-Care") First Employees Stock Option Plan, assumed by Beverly (the "Insta-Care Plan"). The PMSI Plan. On June 27, 1995, pursuant to an Agreement and Plan of Merger dated December 26, 1994, as amended by Amendment No. 1 to Agreement and Plan of Merger dated May 19, 1995 (the "Merger Agreement"), PMSI was merged with and into Beverly, with Beverly being the surviving corporation. Pursuant to the Merger Agreement, Beverly assumed the PMSI Plan which assumption included modification with respect to the number of shares of Beverly Common Stock issuable upon exercise of the outstanding options thereunder and the modification of the exercise price for shares of Beverly Common Stock issuable upon exercise of the outstanding options thereunder. The PMSI Plan assumed by Beverly has 342,311 shares of Beverly Common Stock reserved for issuance thereunder. The Insta-Care Plan. On November 15, 1994, pursuant to a Stock Purchase Agreement dated as of September 12, 1994 (the "Purchase Agreement"), between Eckerd Corporation ("Eckerd") and Pharmacy Corporation of America, a California corporation and a wholly-owned subsidiary of Beverly ("PCA"), PCA purchased all of the issued and outstanding shares of common stock of Insta-Care from Eckerd. Pursuant to the Purchase Agreement, on November 15, 1994, Beverly assumed the Insta-Care Plan which assumption included modification with respect to the number of shares of Beverly Common Stock issuable upon exercise of the outstanding options thereunder, modification of the exercise price for shares of Beverly Common Stock underlying the options, as well as designating the Beverly Compensation Committee (as defined) to administer the Insta-Care Plan, as assumed. The Insta-Care Plan assumed by Beverly has 93,713 shares of Beverly Common Stock reserved for issuance thereunder. RULE 428(B)(1) The document(s) containing the information specified in Items 1 and 2 of Part I of Form S-8 will be sent or given to plan participants in the Plans as specified in Rule 428(b)(1) and, in accordance with the instructions to Part I, are not filed with the Commission as part of this Registration Statement. 4 PART II Item 3. Incorporation of Documents by Reference. The following documents previously filed with the Securities and Exchange Commission are hereby incorporated by reference: 1. Annual Report on Form 10-K for the year ended December 31, 1994, as amended May 19, 1995 on Form 10-K/A (the "1994 Beverly 10-K"); 2. Quarterly Report on Form 10-Q for the quarter ended March 31, 1995; 3. The portions of the Proxy Statement for the Annual Meeting of Stockholders held May 18, 1995 that have been incorporated by reference in the 1994 Beverly 10-K; 4. Current Report on Form 8-K dated June 27, 1995; 5. Current Report on Form 8-K dated May 30, 1995; 6. Current Report on Form 8-K dated April 6, 1995; 7. Current Report on Form 8-K dated December 14, 1994, as amended February 10, 1995, on Form 8-K/A; 8. Registration Statement on Form 8-A relating to the Registrant's Common Stock dated August 21, 1990, and any amendment or report filed for the purpose of updating such description; and 9. Registration Statement on Form 8-A relating to the Registrant's Common Stock Purchase Rights (as defined) dated September 29, 1994, and any amendment or report filed for the purpose of updating such description. All documents subsequently filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended, after the date hereof and prior to the filing of a post-effective amendment which indicates that all securities offered have been sold or which deregisters all securities then remaining unsold shall be deemed to be incorporated by reference in this Registration Statement and to be a part hereof from the date of filing of such documents. Any statement contained herein or in the Prospectus covering the securities registered by this Registration Statement shall be deemed to be modified or superseded for purposes of this Registration Statement or the Prospectus to the extent that a statement contained herein or therein or in any other subsequently filed document which also is or is deemed to be incorporated by reference herein or therein supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement or the Prospectus. Item 4. Description of Securities. Not applicable. Item 5. Interests of Named Experts and Counsel. Not applicable. Item 6. Indemnification of Directors and Officers. The Registrant's Restated Certificate of Incorporation and Amended Bylaws and indemnification agreements between the Registrant and its officers and directors contain provisions regarding the indemnification of officers and directors. The Registrant's Restated Certificate of Incorporation and Amended Bylaws provide that the Registrant, to the full extent permitted, and in the manner required by the laws of the State of Delaware as in effect at the time II-1 5 of the adoption of the certificate and bylaw provision regarding indemnification or as the same may be amended from time to time, shall (i) indemnify any person (and the heirs and legal representatives of such person) who is made or is threatened to be made a party to any threatened, pending, or completed action, suit or proceeding, whether in nature civil, criminal, administrative or investigative, by reason of the fact that he or she is or was a director, officer, employee or agent of the Registrant or of any constituent corporation absorbed into the Registrant by consolidation or merger or serves or served with another corporation, partnership, joint venture, trust or enterprise, or non-profit entity, including service with respect to employee benefit plans, at the request of the Registrant or of any such constituent corporation against all liability and (ii) provide to any such person (and the heirs and legal representatives of such person) advances for expenses incurred in defending any such action, suit or proceeding, upon receipt of an undertaking by or on behalf of such person (and the heirs and legal representatives of such person) to repay such advances unless it is ultimately determined that he or she is not entitled to indemnification by the Registrant. Section 145 of the Delaware General Corporation Law provides the following: (a) A corporation shall have power to indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the corporation) by reason of the fact that he is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him in connection with such action, suit or proceeding if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the person did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, had reasonable cause to believe that his conduct was unlawful. (b) A corporation shall have power to indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the corporation to procure a judgment in its favor by reason of the fact that he is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against expenses (including attorneys' fees) actually and reasonably incurred by him in connection with the defense or settlement of such action or suit if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the corporation and except that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable to the corporation unless and only to the extent that the Court of Chancery or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the Court of Chancery or such other court shall deem proper. (c) To the extent that a director, officer, employee or agent of a corporation has been successful on the merits or otherwise in defense of any action, suit or proceeding referred to in subsections (a) and (b), or in defense of any claim, issue or matter therein, he shall be indemnified against expenses (including attorneys' fees) actually and reasonably incurred by him in connection therewith. (d) Any indemnification under subsections (a) and (b) (unless ordered by a court) shall be made by the corporation only as authorized in the specific case upon a determination that indemnification of the director, officer, employee or agent is proper in the circumstances because he has met the applicable standard of conduct set forth in subsections (a) and (b). Such determination shall be made (1) by the board of directors by a majority vote of a quorum consisting of directors who were not parties to such action, suit or proceeding, or (2) if such a quorum is not obtainable, or, even if obtainable, a quorum of disinterested directors so directs, by independent legal counsel in a written opinion, or (3) by the stockholders. II-2 6 (e) Expenses (including attorneys' fees) incurred by an officer or director in defending any civil, criminal, administrative, or investigative action, suit or proceeding may be paid by the corporation in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such director or officer to repay such amount if it is ultimately determined that he is not entitled to be indemnified by the corporation as authorized in this Section. Such expenses (including attorneys' fees) incurred by other employees and agents may be so paid upon such terms and conditions, if any, as the board of directors deems appropriate. (f) The indemnification and advancement of expenses provided by, or granted pursuant to, the other subsections of this Section shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under any by-law, agreement, vote of stockholder or disinterested directors or otherwise, both as to action in his official capacity and as to action in another capacity while holding such office. (g) A corporation shall have power to purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against any liability asserted against him and incurred by him in any such capacity, or arising out of his status as such, whether or not the corporation would have the power to indemnify him against such liability under the provisions of this Section. (h) For purposes of this Section, references to "the corporation" shall include, in addition to the resulting corporation, any constituent corporation (including any constituent of a constituent) absorbed in a consolidation or merger which, if its separate existence had continued, would have had power and authority to indemnify its directors, officers, and employees or agents, so that any person who is or was a director, officer, employee or agent of such constituent corporation, or is or was serving at the request of such constituent corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, shall stand in the same position under the provisions of this Section with respect to the resulting or surviving corporation as he would have with respect to such constituent corporation if its separate existence had continued. (i) For purposes of this Section, references to "other enterprises" shall include employee benefit plans; references to "fines" shall include any excise taxes assessed on a person with respect to any employee benefit plan; and references to "serving at the request of the corporation" shall include any service as a director, officer, employee or agent of the corporation which imposes duties on, or involves services by, such director, officer, employee, or agent with respect to any employee benefit plan, its participants, or beneficiaries; and a person who acted in good faith and in a manner he reasonably believed to be in the interest of the participants and beneficiaries of any employee benefit plan shall be deemed to have acted in a manner "not opposed to the best interests of the corporation" as referred to in this Section. (j) The indemnification and advancement of expenses provided by, or granted pursuant to, this Section shall, unless otherwise provided when authorized or ratified, continue as to a person who has ceased to be a director, officer, employee or agent and shall inure to the benefit of the heirs, executors and administrators of such a person. Item 7. Exemption from Registration Claimed. Not applicable. Item 8. Exhibits. Exhibit 4.1* Pharmacy Management Services, Inc. 1990 Incentive and Non-statutory Stock Option Plan, dated December 23, 1989, assumed by Beverly Enterprises, Inc. II-3 7 Exhibit 4.2* Pharmacy Management Services, Inc. Amendment to 1990 Incentive and Non-statutory Stock Option Plan, dated December 5, 1991, assumed by Beverly Enterprises, Inc. Exhibit 4.3* Pharmacy Management Services, Inc. Second Amendment to 1990 Incentive and Non-statutory Stock Option Plan, dated June 4, 1993, assumed by Beverly Enterprises, Inc. Exhibit 4.4* Insta-Care Holdings, Inc. First Employees Stock Option Plan assumed by Beverly Enterprises, Inc. Exhibit 4.5* Assumption Agreement by and between Beverly Enterprises, Inc. and Insta-Care Holdings, Inc., dated as of November 15, 1994. Exhibit 5.1* Opinion and Consent of Giroir & Gregory, Professional Association, as to the legality of the common stock offered pursuant to the Plans. Exhibit 23.1* Consent of Giroir & Gregory, Professional Association (included in Exhibit 5.1). Exhibit 23.2* Consent of Ernst & Young LLP, Independent Auditors. Exhibit 24.1* The Power of Attorney of officers and directors of the Registrant is found on the signature page hereof. _________________ *Filed herewith. Item 9. Undertakings. (a) The undersigned registrant hereby undertakes: (1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement: (i) To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933; (ii) To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) II-4 8 which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement; (iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement; Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the registration statement is on Form S-3 or Form S-8 and the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed by the registrant pursuant to section 13 or section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement. (2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. (b) The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant's annual report pursuant to section 13(a) or section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan's annual report pursuant to section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (c) Insofar as indemnification for liabilities arising under the Securities Act of 1933, as amended (the "Act") may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person connected with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue. II-5 9 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized in the City of Fort Smith, State of Arkansas, on July 24, 1995. BEVERLY ENTERPRISES, INC. By: /s/ DAVID R. BANKS David R. Banks Chairman of the Board, President and Chief Executive Officer POWER OF ATTORNEY KNOW ALL BY THESE PRESENTS, that each of the undersigned hereby constitutes and appoints David R. Banks, Robert W. Pommerville, and John W. MacKenzie, and each or any of them, his true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him and on his behalf and in his name, place and stead, in any and all capacities, to sign, execute, and file with the Securities and Exchange Commission and any state securities regulatory board or commission any documents relating to the proposed issuance and registration of the securities offered pursuant to this Registration Statement on Form S-8 under the Securities Act of 1933, as amended, including any and all amendments relating thereto, with all exhibits and any and all documents required to be filed with respect thereto with any regulatory authority, granting unto said attorney, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises in order to effectuate the same as fully to all intents and purposes as he might or could do if personally present, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or his substitute or substitutes, may lawfully do or cause to be done. Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by the following persons in the capacities and on the date indicated:
Signatures Title Date ---------- ----- ---- /s/ DAVID R. BANKS Chairman of the Board, - ------------------------------------------- President, Chief Executive David R. Banks Officer and Director July 24, 1995 /s/ ROBERT D. WOLTIL Executive Vice President, - ------------------------------------------- Finance and Chief Robert D. Woltil Financial Officer July 24, 1995 /s/ SCOTT M. TABAKIN Senior Vice President, - ------------------------------------------- Controller and Chief Scott M. Tabakin Accounting Officer July 24, 1995
II-6 10 /s/ BERYL F. ANTHONY, JR. Director July 24, 1995 - ------------------------------------------- Beryl F. Anthony, Jr. /s/ JAMES R. GREENE Director July 24, 1995 - ------------------------------------------- James R. Greene /s/ EDITH E. HOLIDAY Director July 24, 1995 - ------------------------------------------- Edith E. Holiday Director July __, 1995 - ------------------------------------------- Jon E. M. Jacoby /s/ RISA J. LAVIZZO-MOUREY Director July 24, 1995 - ------------------------------------------- Risa J. Lavizzo-Mourey /s/ LOUIS W. MENK Director July 24, 1995 - ------------------------------------------- Louis W. Menk /s/ MARILYN R. SEYMANN Director July 24, 1995 - ------------------------------------------- Marilyn R. Seymann
11 INDEX TO EXHIBITS 4.1* Pharmacy Management Services, Inc. 1990 Incentive and Non-statutory Stock Option Plan, dated December 23, 1989, assumed by Beverly Enterprises, Inc. 4.2* Pharmacy Management Services, Inc. Amendment to 1990 Incentive and Non-statutory Stock Option Plan, dated December 5, 1991, assumed by Beverly Enterprises, Inc. 4.3* Pharmacy Management Services, Inc. Second Amendment to 1990 Incentive and Non-statutory Stock Option Plan, dated June 4, 1993, assumed by Beverly Enterprises, Inc. 4.4* Insta-Care Holdings, Inc. First Employees Stock Option Plan assumed by Beverly Enterprises, Inc. 4.5* Assumption Agreement by and between Beverly Enterprises, Inc. and Insta-Care Holdings, Inc. dated as of November 15, 1994. 5.1* Opinion and Consent of Giroir & Gregory, Professional Association, as to the legality of the common stock offered pursuant to the Plans. 23.1* Consent of Giroir & Gregory, Professional Association (included in Exhibit 5.1). 23.2* Consent of Ernst & Young LLP, Independent Auditors. 24.1* The Power of Attorney of officers and directors of the Registrant is found on the signature page hereof. _________________ *Filed herewith. EX-4.1 2 1990 INCENTIVE AND NON-STATUTORY STOCK OPTION PLAN 1 EXHIBIT 4.1 PHARMACY MANAGEMENT SERVICES, INC. 1990 INCENTIVE AND NON-STATUTORY STOCK OPTION PLAN SECTION 1. PURPOSE This 1990 Incentive and Non-Statutory Stock Option Plan (the "Plan") is intended as a performance incentive for officers and employees of PHARMACY MANAGEMENT SERVICES, INC., a Florida corporation (the "Company") or its Subsidiaries (as hereinafter defined) and for certain other individuals providing services to or acting as directors of the Company or its Subsidiaries, to enable the persons to whom options are granted (an "Optionee" or "Optionees") to acquire or increase a proprietary interest in the success of the Company. The Company intends that this purpose will be effected by the granting of incentive stock options ("Incentive Options") as defined in Section 422A(b) of the Internal Revenue Code of 1986 (the "Code") and other stock options ("Non-statutory Options") under the Plan. The term "Subsidiaries" means any corporations in which stock possessing 50% or more of the total combined voting power of all classes of stock is owned directly or indirectly by the Company. SECTION 2. OPTIONS TO BE GRANTED AND ADMINISTRATION 2.1 Options to the Granted. Options granted under the Plan may be either Incentive Options or Non-statutory Options. 2.2 Administration by the Board. This Plan shall be administered by the Board of Directors of the Company (the "Board"). The Board shall have full and final authority to operate, manage and administer the Plan on behalf of the Company. This authority includes, but is not limited to: (i) the power to grant options conditionally or unconditionally; (ii) the power to prescribe the form or forms of the instruments evidencing options granted under this Plan; (iii) the power to interpret the Plan; (iv) the power to provide regulations for the operation of the incentive features of the Plan, and otherwise to prescribe regulations for interpretation, management and administration of the Plan; (v) the power to delegate responsibility for Plan operation, management and administration on such terms, consistent with the Plan, as the Board may establish; (vi) the power to delegate to other persons the responsibility for performing ministerial acts in furtherance of the Plan's purpose; and (vii) the power to engage the services of persons or organizations in furtherance of the Plan's purpose, including but not limited to, banks, insurance companies, brokerage firms and consultants. In addition, as to each option, the Board shall have full and final authority in its discretion: (i) to determine the number of shares subject to each option; (ii) to determine the time or times at which options will be granted; (iii) to determine the option price for the shares subject to each option, which price shall be subject to the applicable requirements, if any, of Section 10(d) hereof; and (iv) to determine the time or times when each option shall become exercisable and the duration of the exercise period, which shall not exceed the limitations specified in Section 10(a). 2.3 Appointment and Proceedings of Committee. The Board may appoint a Stock Option Committee (the "Committee") which shall consist of at least three members of the Board. The Board may from time to time appoint members of the Committee in substitution for or in addition to members previously appointed, and may fill vacancies, however caused, in the Committee. The Committee shall select one of its members as its chairman and shall hold its meetings at such times and places as it shall deem advisable. A majority of its members shall constitute a quorum, and all 2 actions of the Committee shall be taken by a majority of its members. Any action may be taken by a written instrument signed by all of the members, and any action so taken shall be as fully effective as if it had been taken by a vote of a majority of the members at a meeting duly called and held. 4. Powers of Committee. Subject to the provisions of this Plan and the approval of the Board, the Committee shall have the power to make recommendations to the Board as to whom options should be granted, the number of shares to be covered by each option, the time or times of option grants, and the terms and conditions of each option. In addition, the Committee shall have authority to interpret the Plan, to prescribe, amend and rescind rules and regulations relating to the Plan, and to exercise the administrative and ministerial powers of the Board with regard to aspects of the Plan other than the granting of options. The interpretation and construction by the Committee of any provisions of the Plan or of any option granted hereunder and the exercise of any power delegated to it hereunder shall be final, unless otherwise determined by the Board. No member of the Board or the Committee shall be liable for any action or determination made in good faith with respect to the Plan or any option granted hereunder. STOCK 5. Shares Subject to Plans. The stock subject to the options granted under the Plan shall be shares of the Company's authorized but unissued common stock, par value $.01 per share ("Common Stock"). The total number of shares that may be issued pursuant to options granted under the Plan shall not exceed an aggregate of 400,000 shares of Common Stock. 6. Lapsed or Unexercised Options. Whenever any outstanding option under the Plan expires, is cancelled or is otherwise terminated (other than by exercise), the shares of Common Stock allocable to the unexercised portion of such option shall be restored to the Plan and be available for the grant of other options under the Plan. ELIGIBILITY 7. Eligible Optionees. Incentive options may be granted only to officers and other employees of the Company or its Subsidiaries, including members of the Board who are also employees of the Company or a Subsidiary. Non-statutory options may be granted to officers or other employees of the Company or its Subsidiaries, to members of the Board or the board of directors of any Subsidiary whether or not employees of the Company or such Subsidiary, and to certain other individuals providing services to the Company or its Subsidiaries. 8. Limitations on 10% Stockholders. No Incentive Option shall be granted to an individual who, at the time the Incentive Option is granted, owns (including ownership attributed pursuant to Section 425(d) of the Code) more than 10% of the total combined voting power of all classes of stock of the Company or any parent or Subsidiary of the Company (a "greater-than-10% stockholder"), unless such Incentive Option provides that (i) the purchase price per share shall not be less than 110% of the fair market value of the Common Stock at the time such Incentive Option is granted, and (ii) that such Incentive Option shall not be exercisable to any extent after the expiration of five years from the date it is granted. 9. Limitation on Exercisable Options. The aggregate fair market value (determined at the time the Incentive Option is granted) of the Common Stock with respect to which Incentive Options are exercisable for the first time by any person during any calendar year under the Plan and 2 3 under any other option plan of the Company (or a parent or subsidiary as defined in Section 425 of the Code) shall not exceed $100,000. Any option granted in excess of the foregoing limitation shall be specifically designated as being a Non-statutory Option. TERMS OF THE OPTION AGREEMENTS 10. Mandatory Terms. Each option agreement shall contain such provisions as the Board or the Committee shall from time to time deem appropriate, and shall include provisions relating to the method of exercise, payment of exercise price, adjustments on changes in the Company's capitalization and the effect of a merger, consolidation, liquidation, sale or other disposition of or involving the Company. Option agreements need not be identical, but each option agreement by appropriate language shall include the substance of all of the following provisions: (a) Expiration. Notwithstanding any other provision of the Plan or of any option agreement, each option shall expire on the date specified in the option agreement, which date shall not be later than the tenth anniversary of the date on which the option was granted (fifth anniversary in the case of a greater-than-11% stockholder). (b) Exercise. Each option shall be deemed exercised when (i) the Company has received written notice of such exercise in accordance with the terms of the option, (ii) full payment of the aggregate option price of the shares of Common Stock as to which the option is exercised has been made, and (iii) arrangements that are satisfactory to the Board or the Committee in its sole discretion have been made for the optionee's payment to the Company of the amount that is necessary for the Company or Subsidiary employing the optionee to withhold in accordance with applicable Federal or state tax withholding requirements. Unless further limited by the Board or the Committee in any option, the option price of any shares of Common Stock purchased shall be paid in cash, by certified or official bank check, by money order, with shares of Common Stock or by a combination of the above; provided further, however, that the Board or the Committee in its sole discretion may accept a personal check in full or partial payment of any shares of Common Stock. If the exercise price is paid in whole or in part with shares, the value of the shares surrendered shall be their fair market value on the date the option is exercised as determined in accordance with Section 5.1(d) hereof. No optionee shall be deemed to be a holder of any shares of Common Stock subject to an option unless and until a stock certificate or certificates for such shares of Common Stock are issued to such person(s) under the terms of the Plan. No adjustment shall be made for dividends (ordinary or extraordinary, whether in cash, securities or other property) or distributions or other rights for which the record date is prior to the date such stock certificate is issued, except as expressly provided in Section 6 hereof. No optionee shall be deemed to be a holder of any shares of Common Stock subject to an option unless and until a stock certificate or certificates for such shares of Common Stock are issued to such person(s) under the terms of the Plan. (c) Events Causing Immediate Exercise. Unless otherwise provided in any option, each outstanding option shall become immediately fully exercisable. (i) if there occurs any transaction (which shall include a series of transactions occurring within 60 days or occurring pursuant to a plan), that has the result that stockholders of the Company immediately before such transaction cease to own at least 51 percent of the voting stock of the Company or of any entity that results from the participation of the Company in a reorganization, consolidation, merger, liquidation or any other form of corporate transaction; 3 4 (ii) if the stockholders of the Company shall approve a plan of merger, consolidation, reorganization, liquidation or dissolution in which the Company does not survive (unless the approved merger, consolidation, reorganization, liquidation or dissolution is subsequently abandoned);or (iii) if the stockholders of the Company shall approve a plan for the sale, lease, exchange or other disposition of all or substantially all the property and assets of the Company (unless such plan is subsequently abandoned). The Board or the Committee may in its sole discretion accelerate the date on which any option may be exercised and may accelerate the vesting of any shares of Common Stock subject to any option or previously acquired by the exercise of any option. (d) Purchase Price. The purchase price per share of the Common Stock under each incentive Option shall be not less than the fair market value of the Common Stock on the date the option is granted (110% of the fair market value in the case of a greater-than-10% stockholder). The price at which shares may be purchased pursuant to Non-statutory Options shall be specified by the Board at the time the option is granted, and may be less than, equal to or greater than the fair market value of the shares of Common Stock on the date such Non-statutory Option is granted, but shall not be less than the par value of shares of Common Stock. For the purpose of the Plan, the "fair market value" per share of Common Stock on any date of reference shall be the Closing Price of the Common Stock of the Company which is referred to in either clause (i), (ii) or (iii) below, on the business day immediately preceding such date, or if not referred to in either clause (i), (ii) or (iii) below, "fair market value" per share of Common Stock shall be such value as shall be determined by the Board or the Committee, unless the Board or the Committee in its sole discretion shall determine otherwise in a fair and uniform manner. For this purpose, the Closing Price of the Common Stock on any business day shall be (i) if the Common Stock is listed or admitted for trading on any United States national securities exchange, or if actual transactions are otherwise reported on a consolidated transaction reporting system, the last reported sale price of Common Stock on such exchange or reporting system, as reported in any newspaper of general circulation, (ii) if the Common Stock is quoted on the National Association of Securities Dealers Automated Quotations System ("NASDAQ"), or any similar system of automated dissemination of quotations of securities prices in common use, the mean between the closing high bid and low asked quotations for such day of Common Stock on such system, or (iii) if neither clause (i) or (ii) is applicable, the mean between the high bid and low asked quotations for the Common Stock as reported by the National Quotation Bureau, Incorporated if at least two securities dealers have inserted both bid and asked quotations for Common Stock on at least five of the ten preceding days. (e) Transferability of Options. Incentive options granted under the Plan and the rights and privileges conferred thereby may not be transferred, assigned, pledged or hypothecated in any manner (whether by operation of law or otherwise) other than by will or by applicable laws of descent and distribution, and shall not be subject to execution, attachment or similar process. Upon any attempt so to transfer, assign, pledge, hypothecate or otherwise dispose of any Incentive Option under the Plan or any right or privilege conferred hereby, contrary to the provisions of the Plan, or upon the sale or levy or any attachment or similar process upon the rights and privileges conferred hereby, such option shall thereupon terminate and become null and void. Non-statutory Options shall be transferable to the extent provided in the option agreements under which they are granted. 4 5 (f) Termination of Employment or Death of Optionee. Except as may be otherwise expressly provided in the terms and conditions of the option granted to an Optionee, options granted hereunder shall terminate on the earlier to occur of: (i) the date of expiration thereof; or (ii) other than the case of death of the Optionee or disability of the Optionee within the meaning of Section 22(e)(3) of the Code ("disability"), (A) 90 days after termination of the employment between the Company and the Optionee in the case of an Incentive Option, and (B) 90 days after termination of the employment or other relationship between the Company and the Optionee, unless such termination provision is waived by resolution adopted by the Board within 30 days of the termination of such relationship, in the case of a Non-statutory Option. An employment relationship between the Company and the Optionee shall be deemed to exist during any period during which the Optionee is employed by the Company or by any Subsidiary. Whether authorized leave of absence or absence on military government service shall constitute termination of the employment relationship between the Company and the Optionee shall be determined by the Board at the time thereof. Except as may otherwise be expressly provided in the terms and conditions of the option granted to an Optionee, in the event of the death of an Optionee while in an employment or other relationship with the Company and before the date of expiration of such option, such option shall terminate on the earlier of such date of expiration or 180 days following the date of such death. After the death of the Optionee, his executors, administrators or any person or persons to whom his option may be transferred by will or by laws of descent and distribution, shall have the right, at any time prior to such time termination, to exercise the option to the extent the Optionee was entitled to exercise such option immediately prior to his death. Except as may otherwise be expressly provided in the terms and conditions of the option granted to an Optionee, if an Optionee's employment or other relationship with the Company terminates because of a disability, the Optionee's option shall terminate on the earlier of the date of expiration thereof or 12 months following the termination of such relationship; and unless by its terms it sooner terminates and expires during such 12-month period, the Optionee may exercise that portion of his or her option which is exercisable at the time of termination of such relationship. (g) Rights of Optionees. No Optionee shall be deemed for any purpose to be the owner of any shares of Common Stock subject to any option unless and until (i) the option shall have been exercised pursuant to the terms thereof, (ii) the Company shall have issued and delivered the shares of the Optionee, and (iii) the Optionee's name shall have been entered as a stockholder of record on the books of the Company. Thereupon, the Optionee shall have full voting, dividend and other ownership rights with respect to such shares of Common Stock. 11. Certain Optional Terms. The Board may in its discretion provide, upon the grant of any option hereunder, that the Company shall have an option to repurchase all or any number of shares purchased upon exercise of such option. The repurchase price per share payable by the Company shall be such amount or be determined by such formula as is fixed by the Board at the time the option for the shares subject to repurchase was granted. The Board may also provide that the Company shall have a right of first refusal with respect to the transfer or proposed transfer of any shares purchased upon exercise of an option granted hereunder. In the event the Board shall grant 5 6 options subject to the Company's repurchase rights or rights of first refusal, the certificate or certificates representing the shares purchased pursuant to such option shall carry a legend satisfactory to counsel for the Company referring to the Company's repurchase option. ADJUSTMENT OF SHARES OF COMMON STOCK 12. Increase or Decrease of Outstanding Shares. If at any time while the Plan is in effect or unexercised options are outstanding, there shall be any increase or decrease in the number of issued and outstanding shares of Common Stock through the declaration of a stock dividend or through any recapitalization resulting in a stock split-up, combination or exchange of shares of Common Stock, then and in such event (i) appropriate adjustment shall be made in the maximum number of shares of Common Stock available for grant under the Plan, so that the same percentage of the Company's issued and outstanding shares of Common Stock shall continue to be subject to being so optionee, and (ii) appropriate adjustment shall be made in the number of shares and the exercise price per share of Common Stock thereof then subject to any outstanding option, so that the same percentage of the Company's issued and outstanding shares of Common Stock shall remain subject to purchase at the same aggregate exercise price. 13. Discretionary Adjustment. Subject to the specific terms of any option, the Board or the Committee may change the terms of options outstanding under this Plan, with respect to the option price or the number of shares of Common Stock subject to the options, or both, when, in the sole discretion of the Board or the Committee, such adjustments become appropriate by reason of a corporate transaction described in Section 5.1(c) hereof. 14. Conversion of Shares. Except as otherwise expressly provided herein, the issuance by the Company of shares of its capital stock of any class, or securities convertible into shares of capital stock of any class, either in connection with direct sale or upon the exercise of rights or warrants to subscribe therefor, or upon conversion of shares or obligations of the Company convertible into such shares or other securities, shall not affect, and no adjustment by reason thereof shall be made with respect to the number of or exercise price of shares of Common Stock then subject to outstanding options granted under the Plan. 15. General. Without limiting the generality of the foregoing, the existence of outstanding options granted under the Plan shall not affect in any manner the right or power of the Company to make, authorize or consummate (i) any or all adjustments, recapitalizations, reorganizations or other changes in the Company's capital structure or its business; (ii) any merger or consolidation of the Company, (iii) any issue by the Company of debt securities, or preferred or preference stock that would rank above the shares subject to outstanding options; (iv) the dissolution or liquidation of the Company; (v) any sale, transfer or assignment of all or any part of the assets or business of the Company; or (vi) any other corporate act or proceeding, whether of a similar character or otherwise. AMENDMENT OF THE PLAN The Board may amend the Plan at any time, and from time to time, subject to the limitation that no amendment shall be effective unless approved by the stockholders of the Company in accordance with applicable law and regulations at an annual or special meeting held within 12 months before or after the special meeting held within 12 months before or after the date of adoption of such amendment, in any instance in which such amendment would: (i) increase the number of shares of 6 7 Common Stock as to which options may be granted under the Plan; of (ii) change in substance the provisions of Section 4 hereof relating to eligibility to participate in the Plan. Rights and obligations under any option granted before any amendment of the Plan shall not be altered or impaired by such amendment, except with the consent of the Optionee. NON-EXCLUSIVITY OF THE PLAN Neither the adoption of the Plan by the Board nor the approval of the Plan by the stockholders of the Company shall be construed as creating any limitations on the power of the Board to adopt such other incentive arrangements as it may deem desirable, including without limitation the granting the stock options otherwise than under the Plan, and such arrangements may be either applicable generally or only in specific cases. GOVERNMENT AND OTHER REGULATIONS; GOVERNING LAW The obligation of the Company to sell and delivery shares of Common Stock with respect to options granted under the Plan shall be subject to all applicable laws, rules and regulations, including all applicable federal and state securities laws, and the obtaining of all such approvals by government agencies as may be deemed necessary or appropriate by the Board or the Committee. All shares sold under the Plan shall bear appropriate legends. The Plan shall be governed by and construed in accordance with the laws of the State of Florida. EFFECTIVE DATE OF PLAN The effective date of the Plan is December 23, 1989, the date on which it was approved by the Board and by the stockholders of the Company. No option may be granted under the Plan after the tenth anniversary of such effective date. 7 EX-4.2 3 AMENDMENT TO 1990 INCENTIVE AND NON-STATUTORY 1 EXHIBIT 4.2 AMENDMENT TO PHARMACY MANAGEMENT SERVICES, INC. 1990 INCENTIVE AND NON-STATUTORY STOCK OPTION PLAN At the Annual Meeting of Shareholders held on December 5, 1991, the shareholders approved an amendment to the Company's 1990 Incentive and Non-Statutory Stock Option Plan (the "Plan") as follows: The total number of shares covered by the Plan is hereby increased from 400,000 to 800,000 shares. All other provisions of the Plan remain the same. Dated: December 5, 1991 EX-4.3 4 SECOND AMEND TO 1990 INCENTIVE AND NON-STATUTORY 1 EXHIBIT 4.3 PHARMACY MANAGEMENT SERVICES, INC. SECOND AMENDMENT To 1990 INCENTIVE AND NON-STATUTORY STOCK OPTION PLAN June 4, 1993 This Second Amendment to 1990 Incentive and Non-Statutory Stock Option Plan (this "Amendment") is executed by an authorized officer of Pharmacy Management Services, Inc. (the "Company") to record the following amendments to the Company's 1990 Incentive and Non-Statutory Stock Option Plan (the "Plan") that were approved on June 4, 1993, by the Board of Directors of the Company: 1. INCORPORATION BY REFERENCE. Unless otherwise expressly defined in this Amendment, all capitalized terms used in this Amendment have the respective meanings ascribed to them in the Plan, and the definitions of those terms in the Plan are incorporated by reference in this Amendment. 2. AMENDMENT OF SECTION 1. Section 1 of the Plan is amended to substitute "Section 422(b)" for "Section 422A(b)" where it appears in the second sentence of that section. 3. AMENDMENT REGARDING PLAN ADMINISTRATION. The Plan is amended to delete Sections 2.2, 2.3, and 4 of the Plan and to add the following in substitution therefor as sections 2.2 through 2.5: 2.2 ADMINISTRATIVE COMMITTEE. This Plan will be administered by an administrative committee (the "Committee") consisting of two or more members of the Board of Directors. The members of the Committee will serve for unspecified terms at the discretion of the Board of Directors of the Company (the "Board). The Board may remove a member of the Committee (as such) at any time, with or without cause, and has the exclusive power to appoint a successor to fill any vacancy on the Committee. The Board shall not appoint to the Committee any director who, during the one year before his appointment, was awarded or granted any equity securities of the Company pursuant to the Plan or any other plan of the Company or any of its affiliates, except Pursuant to (a) a formula plan meeting the conditions of Rule 16b-3(c)(2)(ii) of the Securities and Exchange Commission (the "SEC"), or (b) an ongoing securities acquisition plan meeting the conditions of SEC Rule 16b-3(d)(2)(i), or (c) an election to receive all or a portion of an annual retainer fee in an equivalent amount of equity securities of the Company. A member of the Committee is ineligible to receive a grant of an option under this Plan or any other plan of the Company or any of its affiliates while serving as a member of the Committee. 2.3 POWER AND AUTHORITY. Except as otherwise provided in the last sentence of this section, the Committee has the exclusive power and authority, and the sole and absolute discretion, to do the following: (a) to construe and interpret the Plan and amend, prescribe, and rescind rules and regulations relating to this Plan; (b) to select the officers, directors, and employees who will be granted options under the Plan; (c) 2 to grant options under the Plan, either conditionally or unconditionally, and designate whether they constitute incentive or non-statutory options; (d) to determine when options will be granted under the Plan: (e) to determine the number of shares subject to each option; (f) to determine the terms and conditions of each option, including the exercise price of each option (which must comply with Section 10(d) of this Plan), the time or times when the option will become exercisable and the duration of the exercise Period (which must not exceed the limitations specified in Section 10(a) of this Plan), the conditions under which the option will vest and become exercisable, the methods of exercising options, and the methods for payment of the exercise price and any applicable tax withholding; (g) to approve and recommend amendments to the Plan for adoption by the Board and (if necessary or desirable) the shareholders of the Company; (h) to prescribe the form or forms of agreement or instrument evidencing options granted under the Plan; (i) to engage the services of, any agent, expert, or professional advisor in furtherance of the Plan's purpose; and (j) to take all other actions, and make all other determinations, that are advisable or necessary for the Plan's administration. In the absence of fraud or mistake, any action or determination by the Committee will be final and binding on all persons. 2.4 APPROVAL PROCEDURES. All actions and determinations of the Committee must be unanimous. Every action or determination of the Committee that is expressly required or permitted under the Plan will be valid only if undertaken pursuant to a vote, consent, or approval that is evidenced by either (a) a resolution adopted by the affirmative vote of all the members of the Committee at a meeting, or (b) a written consent signed by all the members of the Committee. The members of the Committee may execute a written consent in counterparts. Each executed counterpart will constitute an original document, and all of them, together, will constitute the same document. A properly executed written consent will be effective as of the date specified in it or, if an effective date is not so specified, on the date when it is signed by the last person necessary to validate it, and will be valid if it is executed before, after or concurrently with the action or determination to which it applies. 2.5 INDEMNIFICATION. A member of the Committee is not liable for, and the Company releases each member of the Committee from all liability for, any punitive, incidental, consequential, or other damages or obligation to the Company or any employee, Plan participant, or other person for any act or omission by the member of the Committee (including his own negligence), or by any agent, employee, professional advisor, or other expert used or engaged by the Committee, if the act or omission does not constitute gross negligence or willful misconduct and is done or omitted in good faith, on behalf of the Company, and in a manner reasonably believed by him to be both in the best interests of the Company and within the scope of the authority granted to the Committee by this Plan. The Company shall indemnify each member of the Committee, and shall reimburse him from the Company's assets, for any cost, loss, damage, expense, or liability (including fines, amounts -2- 3 paid in settlement, and legal fees and expenses) incurred by him by reason of any act or omission for which he is released from liability pursuant to this section. 4. AMENDMENT OF SECTION 8. Section 8 of the Plan is amended to substitute the phrase "Section 424(d) of the Code" for the phrase "Section 425(a) of the Code" where it appears, to reflect an amendment of the Code since the adoption of the Plan. 5. AMENDMENT OF SECTION 10. Section 10 of the Plan is amended as follows: (a) The words "the Board or" in the first sentence of the section are deleted; (b) The words "or withheld" are added after the word "surrendered" in the third sentence of subsection 10(b); (c) The phrase "Section 10(d)" is substituted for the phrase "Section 5.1(d)" where it appears in the third sentence of subsection 10(b); (d) The following is inserted after the end of the third sentence of subsection 10(b): If the optionee is a director or officer of the Company, payment of the exercise price of an option or of any tax withholding required in connection with the exercise of the option by electing for the Company to withhold shares issuable pursuant to the exercise of the option must be made either (A) pursuant to an irrevocable written election made by the optionee at least six months in advance of the exercise date, or (B) pursuant to an election that is effective during the period beginning on the third business day following the date when the Company releases for publication a regularly published annual or quarterly summary statement of sales and earnings and ending on the 12th business day after that date; (e) The phrase "Section 12" is substituted for the phrase "Section 6" where it appears in the fifth sentence of subsection 10(b); (f) The word "Incentive" is deleted from the first and second sentences of subsection 10(e); (g) The last sentence of subsection 10(e) is deleted; and (h) The following provision is added as subsection (h): (h) Holding Period. If the optionee is a director or officer of the Company, the optionee shall not dispose of the option (other than upon its exercise) or any stock acquired pursuant to exercise of the option for six months following the date of grant of the option. -3- 4 6. AMENDMENT OF PROVISIONS REGARDING AMENDMENT OF PLAN. The first sentence under the heading "Amendment of the Plan" is amended to substitute "Sections 7-9" for "Section 4" where it appears. In addition, the sentence is amended to add the following clauses to the end of it: ; (iii) materially increase the benefits accruing to participants under the Plan, or (iv) materially modify the requirements as to eligibility for participation in the Plan. 7. AMENDMENT REGARDING RULE 16b-3. The following savings clause is added to the end of the paragraph under the heading "Government and Other Regulations; Governing Law": With respect to persons subject to section 16 of the Securities Exchange Act of 1934, as amended (the Exchange Act), transactions under this Plan are intended to comply with all applicable conditions of SEC Rule 16b-3 or any rule promulgated by the SEC under the Exchange Act in substitution for that rule. To the extent any provision of the Plan or action by the Committee fails to so comply, it will be null and void, to the extent permitted by law and considered advisable by the Committee. 8. CONTINUED EFFECTIVENESS; EFFECTIVE DATE. Except as amended by this Amendment, the Plan continues in full force and effect. This Amendment will become effective when adopted by the Board and is applicable to all options granted in the future under the Plan and to each outstanding option under the Plan that is held by a director or officer of the Company. PHARMACY MANAGEMENT SERVICES, INC. WITNESSES: By: /s/ CECIL S. HARRELL Cecil S. Harrell /s/ DONNA M. PEREZ Chairman of the Board and /s/ D. R. MILL Chief Executive Officer (As to Mr. Harrell) -4- EX-4.4 5 INSTA-CARE HOLDINGS FIRST EMPLOYEES STK. OPT. PLAN 1 EXHIBIT 4.4 INSTA-CARE HOLDINGS, INC. FIRST EMPLOYEES STOCK OPTION PLAN (Effective February 15, 1990) 1. Purpose. The purpose of this Plan is to further the best interests of Insta-Care Holdings, Inc. and its subsidiaries (hereinafter called "Corporation") by encouraging its key employees and non-employee directors, as is more fully set forth in Paragraph 5 of this Plan, to continue association with the Corporation and by providing additional incentive for unusual industry and efficiency through offering an opportunity to acquire a proprietary stake in the Corporation and its future growth. It is the view of the Corporation that this goal may best be achieved by granting stock options to eligible key employees of the Corporation and its subsidiaries (hereinafter called "Employees") and to non-employee directors of the Corporation (hereinafter called "Non-Employee Directors") from time to time. The stock options to be granted pursuant to this Plan (hereinafter called "Options") may be Incentive Stock Options ("ISOs") as provided for in Section 422A of the Internal Revenue Code of 1954, as amended (the "Code") or may be Non- Incentive Stock Options ("Non-ISOs"), All Options which are intended to qualify as ISOs shall be clearly identified as such. The terms and conditions of ISOs shall comply with the provisions of this Plan which have been inserted herein to reflect the requirements of the aforementioned Section 422A of the Code. All ISOs granted 1 2 pursuant to this Plan, as well as the provisions of this Plan which pertain to ISOs, shall be construed and interpreted in a manner consistent with the requirements of the aforementioned Section 422A of the Code and the regulations thereunder, and any provisions of this Plan which would be in conflict with the requirements of Section 422A shall be inapplicable to such Options. The Non-ISOs will not be subject to such conditions and limitations and may be granted in annual amounts which may be in excess of or less than the permissible amounts of ISOs. All Non-ISOs shall be clearly identified as Non-ISOs. 2. Option Shares. The shares of the Corporation's stock which may be made subject to options granted pursuant to this Plan shall be no more than a total of 300,000 shares of the authorized but unissued $0.10 par value Common Stock of the Corporation (hereinafter called "Common Stock"). Any of such shares of Common Stock which may remain unissued at the termination of this Plan shall cease to be reserved for the purpose of the Plan, but until termination of the Plan, the Corporation shall at all times reserve a sufficient number of shares of Common Stock to meet the requirements of the Plan. 3. Effective Date of Plan. This Plan shall take effect upon the adoption by the Board of Directors of the Corporation ("Board of Directors"), provided that it is approved by the shareholders of the Corporation, as provided in Paragraph 17, within twelve (12) months after the date of its adoption by the Board. 2 3 4. Administration of the Plan. The Plan shall be administered by the Board of Directors or by a committee designated by the Board of Directors to administer the Plan (hereinafter called the "Committee"). The Board of Directors may authorize the Committee to exercise any and all of the powers and functions of the Board pursuant to the Plan. The interpretation and construction by the Committee or the Board of Directors of any provisions of the Plan or of any options granted under it shall be final and conclusive. No member of the Committee or of the Board of Directors shall be liable for any action or determination made in good faith with respect to the Plan or any options granted under it. 5. Eligibility. The persons eligible to participate in the Plan as recipients of Options shall include only the employees of the Corporation or of any subsidiary of the Corporation who hold executive or other responsible positions in the management of the affairs of the Corporation and of its subsidiaries (as such term is defined in Section 425 of the Code), including but not limited to officers, general managers, department heads, division heads, and supervisors. The word "employees" does not include directors of the Corporation as such, but does include directors of the Corporation who are otherwise employed by the Corporation and who qualify. Notwithstanding the preceding sentence, directors of the Corporation who are not otherwise employed by the Corporation and such other persons as may be designated from time to time by the Board shall be eligible for grants of Non-ISOs. 3 4 6. Grant of Options. The Corporation, by action of the Board of Directors or of the Committee and subject to the provisions of this Plan, may, from time to time, grant Options to purchase shares of Common Stock to such eligible persons as may be selected by the Board of Directors or the Committee and for such number or numbers of shares of Common Stock as may be determined by the Board of Directors or the Committee. Each grant of an Option pursuant to this Plan shall be made in writing and upon such terms and conditions as may be determined by the Board of Directors or by the Committee at the time of grant, subject to the provisions and limitations set forth in this Plan. The grant of such Option shall be evidenced by written notice executed by the Chairman of the Board of the Corporation, except that, in the event that the Chairman of the Board of the Corporation is the recipient of the Option, the notice of grant of the Option shall be executed by the Secretary of the Corporation. The aggregate fair market value (determined as of the time an Option is granted) of the Common Stock for which an Employee is granted ISOs in any calendar year under all plans of the Corporation and its subsidiaries shall not exceed $100,000 plus any unused limit carryover to such year permitted ISOs under Section 422A of the Code and the regulations thereunder. 7. Option Price. The purchase price for each share of Common Stock placed under Option pursuant to this Plan (hereinafter called "Option Price") shall be determined by the Board of Directors or by the Committee, but, in the case of grants of ISOs. shall in no event be less than the fair market 4 5 value of the share of Common Stock on the date the ISO is granted. The fair market value of the Common Stock per share shall be determined by a method consistent with the provisions of the Code and the regulations thereunder. 8. Duration of Options. The period for which each Option granted hereunder shall be effective shall commence upon the date of the grant of the Option and shall continue until such Option shall be terminated according to its terms or as hereinafter provided, but, in no event, shall such period exceed ten (10) years from the date of grant of the Option. In addition to and in limitation of the above, the Option Period of any Option granted pursuant to this Plan shall terminate upon the earliest of the following dates: a. On the date upon which the Employee holding such Option (hereinafter called the "Optionee") ceases to be an employee of the Corporation or its subsidiaries unless he ceases to be an employee by reason of death or in a manner described in c. below. b. On the date upon which the Non-Employee Director holding such Option ceases to be a director of the Corporation or its subsidiaries unless the Board of Directors otherwise determines. c. Three (3) months after the Optionee ceases to be an employee by reason of retirement pursuant to the Corporation's Profit Sharing Plan (the "Profit Sharing Plan") at or after the earliest voluntary retirement age provided for in such Profit 5 6 Sharing Plan or retirement at an earlier age with the consent of the Board of Directors. d. Twelve (12) months after the death of the Optionee if the Optionee dies while an employee of the Corporation or its subsidiaries. e. At the time of the commission of an intentional act by the Optionee determined by the Board of Directors or the Committee to be contrary to the interests of the Corporation or any of its subsidiaries. f. As a result of a change in the position of employment held by the Optionee with the Corporation or one of its subsidiaries, the Option Period for the exercise of all of the shares not exercisable upon the date of the change in the position shall terminate unless: (i) within thirty (30) days after the Optionee is notified of the change of position, he shall submit to the Board of Directors or the Committee a written request for a determination as to whether the responsibilities of the new position to which the Optionee is being assigned are equal to or greater than the responsibilities of the position held by the Optionee at the time the Option was granted; and (ii) the Board of Directors or the Committee shall thereafter determine that the Option Period shall remain unaltered with respect to all, or a portion, of the shares covered by such option which are not then exercisable. It is the intention of this provision that the Board of Directors or the Committee shall evaluate the relative responsibilities of the two (2) positions of the Optionee and on that basis shall determine to what extent 6 7 it is appropriate that the Option remain exercisable in the future with respect to shares not exercisable on the date of the change of position. Recognizing that such a determination may involve subjective judgments, the Board of Directors or the Committee shall have sole and complete authority to make the determination and its determination shall be conclusive and binding on the Corporation and the Optionee. It is the responsibility of the Optionee to obtain said written determination by the Board of Directors or the Committee and no communication or determination by any officer or employee other than the Board or Committee shall be binding upon the Corporation. Nothing contained herein shall limit whatever right the Corporation or its subsidiaries might otherwise have to terminate the employment of any Employee. Successive Options may be granted to the same Employee or Non-Employee Director whether or not the Option or Options first granted to such Employee or Non-Employee Director remain unexercised; provided, however, that the exercise of an ISO shall be limited as set forth in Paragraph 18 hereof. 9. Non-Transferability. No Option granted pursuant to this Plan may be transferred by the Optionee or Non-Employee Director unless the grant of the Option so provides and then only by will or the laws of descent and distribution, and, further, during the lifetime of the Optionee or Non-Employee Director, the Option may be exercised only by him. 10. Termination of the Plan. This Plan shall terminate upon the close of business on February 15, 2000 unless it shall 7 8 have sooner terminated by there having been granted and fully exercised Options covering the entire 300,000 shares of Common Stock subject to this Plan. 11. Termination of Employment. The employment of an optionee shall not be deemed to have terminated if the Optionee is an employee of the Corporation or one of its subsidiaries who is absent upon a bona fide leave of absence or who is transferred to and becomes an employee of a subsidiary corporation or if he is an employee of a subsidiary corporation who is transferred to and becomes an employee of the Corporation or another subsidiary of the Corporation; however, if a subsidiary corporation ceases to be a subsidiary, all employees of such subsidiary not theretofore transferred to and becoming employees of the Corporation or of another subsidiary of the Corporation shall be deemed to have ceased to be employees within the meaning of this Plan on the date such subsidiary ceases to be a subsidiary of the Corporation. The provisions of this paragraph shall, however, be subject to the provisions of Paragraph 14 hereof pertaining to the consequences of a merger or consolidation of the Corporation and/or a subsidiary with any other corporation. The provisions of this paragraph shall, however, be subject to the provisions of Paragraph 8.f. hereof pertaining to the consequences of a change in the Optionee's position. 12. Exercise of Options. An Option granted pursuant to this Plan may be exercised only within the time limits prescribed by the Board in the grant of the particular Option; provided that, in no event may any Option be exercised more than ten (10) 8 9 years from the date on which the Option is granted, as provided in Paragraph 8 hereof. Exercise shall be made by the giving of written notice to the Corporation by the Optionee or Non-Employee Director. Such written notice shall be deemed sufficient for this purpose only if delivered to the Corporation at its principal office and only if such written notice states the number of shares with respect to which the Option is being exercised and, further, states the date, not more than ninety (90) days after the date of such notice, upon which the shares of Common Stock shall be taken up and payment therefor shall be made. The payments for shares of Common Stock taken up pursuant to exercise of an option shall be made at the principal offices of the Corporation. Upon the exercise of any option, in compliance with the provisions of this paragraph and upon receipt by the Corporation of the payment for the Common Stock so taken up together with the payment of the amount of any taxes required to be collected or withheld as a result of the exercise of this Option, the Corporation shall deliver or cause to be delivered to the Optionee or Non-Employee Director so exercising his Option a certificate or certificates for the number of shares of Common Stock with respect to which the Option is so exercised and payment is so made. The shares of Common Stock shall be registered in the name of the exercising Optionee or Non-Employee Director, provided that, in no event, shall any shares of Common Stock of the Corporation be issued pursuant to exercise of an Option until full payment therefor shall have been made by cash or certified or cashier's check and not until the shares have 9 10 been issued shall the exercising Optionee or Non-Employee Director have any of the rights of a shareholder. For purposes of this paragraph, the date of issuance shall be the date upon which payment in full has been received by the Corporation as provided herein. Notwithstanding the above, payment shall be made either (i) in cash (including certified or cashier's check) or (ii) at the discretion of the Committee, by delivering shares of Common Stock owned by the Optionee or Non-Employee Director or a combination of Common Stock and cash together with an amount equal to any taxes required to be collected or withheld as a result of the exercise of the option, The Common Stock delivered by the Optionee or Non-Employee Director in accordance with (ii) above shall be properly endorsed to the Corporation by the owner(s) thereof and the signature(s) thereon guaranteed by a bank or member firm of the New York Stock Exchange. The fair market value of the Common Stock so delivered shall be the fair market value of the Stock as of the close of business on the date the option is exercised. 13. Requirements of Law. If any law, regulation of the Securities and Exchange Commission, or any regulation of any other commission or agency having jurisdiction shall require the Corporation or the exercising Optionee or Non-Employee Director to take any action with respect to the shares of Common Stock acquired by the exercise of an Option, then the date upon which the Corporation shall issue or cause to be issued the certificate or certificates for the shares of Common Stock shall be postponed 10 11 until full compliance has been made with all such requirements of law or regulation. Further, if requested by the Corporation, at or before the time of the issuance of the shares with respect to which exercise of Option has been made, the exercising Optionee or Non-Employee Director shall deliver to the Corporation his written statement satisfactory in form and content to the Corporation, that he intends to hold the shares, so acquired by him on exercise of his Option, for investment and not with a view to resale or other distribution thereof to the public in violation of the requirements of the exemption contained in Section 4(2) of the Securities Act of 1933, as amended. Moreover, in the event that the Corporation shall determine that, in compliance with the Securities Act of 1933, as amended, or other applicable statutes or regulations, it is necessary to register any of the shares of Common Stock with respect to which an exercise of an Option has been made, or to qualify any such shares for exemption from any of the requirements of the Securities Act of 1933, as amended, or any other applicable statute or regulation, no Options may be exercised and no Option shares shall be issued to the exercising Optionee or Non-Employee Director until the required action has been completed. 14. Adjustments. In the event of the declaration of any stock dividend on the Common Stock or in the event of any reorganization, merger, consolidation, acquisition, separation, recapitalization, split-up, combination or exchange of shares of Common Stock or like adjustment, the number of shares of Common Stock and the class of shares of Common Stock available pursuant 11 12 to this Plan and the number and class of shares of Common Stock subject to any Option granted pursuant to this Plan, and the Option prices, may be adjusted by appropriate changes in this Plan and in any Options outstanding pursuant to this Plan. New stock options may be issued or assumed in a transaction to which Section 425(a) of the Code applies. Any such adjustment to the Plan or to Options or Option prices shall be made by action of the Board of Directors or the Committee, whose determination shall be conclusive; provided, however, that such Option granted pursuant to this Plan shall be so adjusted as to continue to qualify as an incentive stock option within the meaning of Section 422A of the Code. 15. Amendment or Discontinuance of the Plan. The Board of Directors may, insofar as permitted by law, amend, suspend, or discontinue this Plan at any time without restriction, provided, however, that the Board may not alter or amend or discontinue or revoke or otherwise impair any outstanding Options which have been granted pursuant to this Plan and which remain unexercised, except in the event of a merger, reorganization, or other adjustment referred to in Paragraph 14 above, or except in the event that there is secured the written consent of the holder of the outstanding Option proposed to be so altered or amended and, without approval of the stockholders, the Board may not amend, alter or revise the Plan to change the number of shares subject to the Plan, change the description of the class of employees eligible to receive Options or decrease the price at which Options may be granted. Nothing contained in this paragraph, 12 13 however, shall in any way condition or limit the termination of an Option as hereinabove provided in Paragraph 8 hereof, nor shall the Option Period of any outstanding Option be extended by any amendment or suspension or discontinuance of the Plan. 16. Liquidation of the Corporation. In the event of the complete liquidation or dissolution of the Corporation other than as an incident to a merger, reorganization, or other adjustment referred to in Paragraph 14 above, any Options granted pursuant to this Plan and remaining unexercised shall be deemed cancelled without regard to or limitation by any other provision of this Plan. In the event of a complete liquidation or dissolution of a subsidiary of the Corporation or in the event that such a subsidiary ceases to be a subsidiary corporation as defined hereinabove, any outstanding Options granted to employees of such subsidiary pursuant to this Plan and remaining unexercised shall be deemed cancelled unless the Optionee shall at or before the time of the liquidation or dissolution or cessation of subsidiary relationship be or become employed by the Corporation or by any other subsidiary of the Corporation. 17. Shareholders Approval. This Plan shall be submitted to the shareholders of the Corporation for the purpose of its approval and ratification by the shareholders as provided in Paragraph 3. 18. Sequential Exercise. Each ISO shall state that it is not exercisable while there is outstanding any ISO which was granted before the granting of such ISO to such individual to purchase Common Stock in the Corporation. For purposes of this 13 14 provision, an ISO shall be treated as outstanding until such Option is exercised in full or expires by reason of lapse of time. 14 EX-4.5 6 ASSUMPTION AGREEMENT 1 EXHIBIT 4.5 ASSUMPTION AGREEMENT THIS ASSUMPTION AGREEMENT (this "Agreement"), dated as of November 15, 1994, between Beverly Enterprises, Inc., a Delaware corporation (the "Company") and Insta-Care Holdings, Inc. a Florida corporation ("Insta-Care"). W I T N E S S E T H: WHEREAS, Eckerd Corporation, a Delaware corporation ("Seller") desires to sell to Pharmacy Corporation of America, a California corporation and an indirect wholly-owned subsidiary of the Company ("Purchaser"), and Purchaser desires to purchase from Seller all of the authorized, issued and outstanding shares of common stock, par value $.10 per share (the "Common Stock") of Insta-Care as more particularly specified in a certain Stock Purchase Agreement dated September 12, 1994 by and between Seller and Purchaser (the "Stock Purchase Agreement") upon such terms and conditions as set forth therein; and WHEREAS, the Company has agreed, pursuant to the Stock Purchase Agreement, to assume the Insta-Care First Employees Stock Option Plan (the "Plan") attached hereto and any options (the "Stock Options") that have been granted by Insta-Care thereunder prior to and as of the date hereof; NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, the parties hereby agree as follows: 1. Assumption of Plan. The Company hereby assumes all of the obligations of Insta-Care pursuant to the Plan and the Stock Options, except that (i) the Plan shall be administered by the Company's Compensation Committee; (ii) the number of shares issuable upon exercise of the of the Stock Options shall be modified in accordance with the Stock Purchase Agreement; (iii) the exercise price for the Stock Options shall be modified in accordance with the Stock Purchase Agreement; and (iv) stock option agreements reflecting items (i) through (iii) herein will be delivered to holders of the Stock Options on or after the date hereof, with option agreements that were issued by Insta-Care to holders of the Stock Options prior to consummation of the Stock Purchase Agreement, being superseded and canceled concurrently herewith. 2. Consent of Sellers. Insta-Care hereby consents to the Company's assumption of the Plan as provided herein. 3. Expenses. Insta-Care and the Company will each bear their own legal, accounting and other expenses incurred in connection with the preparation of this Agreement. 4. Waiver. No waiver of any term, provision or condition of this Agreement in any one or more instances, shall be deemed to be or construed as a further continuing waiver of any such 2 term, provision or condition or as a waiver of any other term, provision or condition of this Agreement or of the Stock Purchase Agreement. 5. Captions. Captions for the section of this Agreement are for convenience only and shall not be construed or referred to in resolving questions of interpretation. 6. Counterparts. This Agreement may be executed in multiple counterparts and any number of counterparts signed in the aggregate by all the parties shall constitute a single original agreement. 7. Choice of Law. This Agreement shall be governed in accordance with the laws of the State of New York. IN WITNESS WHEREOF, the parties have caused this Agreement to be duly exercised as of the date first above written. BEVERLY ENTERPRISES, INC., A DELAWARE corporation By: /s/ ROBERT D. WOLTIL Title: Robert D. Woltil Executive Vice President and Chief Financial Officer INSTA-CARE HOLDINGS, INC., a Florida corporation By: /s/ ROBERT D. GOODWIN Title: President EX-5.1 7 OPINION AND CONSENT OF GIROIR & GREGORY 1 EXHIBIT 5.1 [GIROIR & GREGORY LETTERHEAD] JULY 24, 1995 Beverly Enterprises, Inc. 1200 S. Waldron Road, No. 155 Fort Smith, Arkansas 72903 RE: Beverly Enterprises, Inc. - Registration Statement on Form S-8 Gentlemen: We have acted as securities counsel for Beverly Enterprises, Inc. (the "Company") in connection with the preparation of a registration statement on Form S-8 (the "Registration Statement") under the Securities Act of 1933 to be filed with the Securities and Exchange Commission (the "Commission") on July 24, 1995, in connection with the registration of 436,024 shares of Common Stock, $.10 par value (the "Shares"), issuable from time to time as a result of the assumption by Beverly of the following stock option plans (collectively, the "Plans"): the Pharmacy Management Services, Inc. 1990 Incentive and Nonstatutory Stock Option Plan, as amended (the "PMSI Plan"); and the Insta-Care Holdings, Inc. First Employees Stock Option Plan (the "Insta-Care Plan"). In connection with the preparation of the Registration Statement and the proposed issuance and sale of Shares in accordance with the respective Plans and the Form S-8 prospectus to be delivered to participants in each of the Plans, we have made certain legal and factual examinations and inquiries and examined, among other things, such documents, records, instruments, agreements, certificates and matters as we have considered appropriate and necessary for the rendering of this opinion. We have assumed for the purpose of this opinion the authenticity of all documents submitted to us as originals and the conformity with the originals of all documents submitted to us as copies, and the genuineness of the signatures thereon. As to various questions of fact material to this opinion, we have, when relevant facts were not independently established, relied, to the extent deemed proper by us, upon certificates and statements of officers and representatives of the Company. 2 Beverly Enterprises, Inc. July 24, 1995 Page 2 Based on the foregoing and in reliance thereon, it is our opinion that the Shares have been duly authorized and, after the Registration Statement becomes effective and after any post-effective amendment required by law is duly completed, filed and becomes effective, and when the applicable provisions of "Blue Sky" and other state securities laws shall have been complied with, and when the Shares are issued and sold in accordance with the respective Plans and the Form S-8 prospectus to be delivered to participants in the respective Plans, the Shares will be legally issued, fully paid and nonassessable. We hereby consent to the inclusion of our opinion as Exhibit 5.1 to the Registration Statement and further consent to the reference to this firm in the Registration Statement. In giving this consent, we do not hereby admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act of 1933 or the rules and regulations of the Commission thereunder. This opinion is rendered solely for your benefit in accordance with the subject transaction and is not to be otherwise used, circulated, quoted or referred to without our prior written consent. We are opining herein as to the effect on the subject transaction only of United States federal law and the General Corporation Law of the State of Delaware, without regard for choice of law principles, and we assume no responsibility as to the applicability thereto, or the effect thereon, of the laws of any other jurisdiction. Very truly yours, /s/ GIROIR & GREGORY GIROIR & GREGORY Professional Association EX-23.2 8 CONSENT OF ERNST & YOUNG LLP 1 EXHIBIT 23.2 CONSENT OF INDEPENDENT AUDITORS We consent to the incorporation by reference in the Registration Statement (Form S-8) pertaining to the Pharmacy Management Services, Inc. 1990 Incentive and Non-Statutory Stock Option Plan, as amended, assumed by Beverly Enterprises, Inc.; and the Insta-care Holdings, Inc. First Employees Stock Option Plan, assumed by Beverly Enterprises, Inc. of our report dated February 3, 1995, with respect to the consolidated financial statements and schedule of Beverly Enterprises, Inc. included in its Annual Report on Form 10-K, as amended for the year ended December 31, 1994, filed with the Securities and Exchange Commission. ERNST & YOUNG LLP Little Rock, Arkansas July 20, 1995 -----END PRIVACY-ENHANCED MESSAGE-----