-----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, Q4PXZvg0ft9018ErsmHgYB4p+veDc9hVVNOGpFCOCLfk0RBj1vOGylimguf86zFg Mq+qqi3NZjIKPzbSCF/s9g== 0000950134-97-007542.txt : 19971022 0000950134-97-007542.hdr.sgml : 19971022 ACCESSION NUMBER: 0000950134-97-007542 CONFORMED SUBMISSION TYPE: S-4/A PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 19971021 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-4/A SEC ACT: SEC FILE NUMBER: 333-35137 FILM NUMBER: 97698663 BUSINESS ADDRESS: STREET 1: 5111 ROGERS AVE STREET 2: STE 40 A CITY: FORT SMITH STATE: AR ZIP: 72919-0155 BUSINESS PHONE: 5014526712 FILER: COMPANY DATA: COMPANY CONFORMED NAME: NEW BEVERLY HOLDINGS INC CENTRAL INDEX KEY: 0001040441 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-SKILLED NURSING CARE FACILITIES [8051] FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-4/A SEC ACT: SEC FILE NUMBER: 333-35137-01 FILM NUMBER: 97698664 BUSINESS ADDRESS: STREET 1: 5111 ROGERS AVE STREET 2: SUITE 40-A CITY: FORT SMITH STATE: AR ZIP: 72903 BUSINESS PHONE: 5014526712 MAIL ADDRESS: STREET 1: 511 ROGERS AVE STREET 2: SUITE 40-A CITY: FORT SMITH STATE: AR ZIP: 72903 S-4/A 1 AMENDMENT NO. 2 TO FORM S-4 1 AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER 21, 1997 REGISTRATION NOS. 333-35137 333-35137-01 ================================================================================ SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 --------------------- AMENDMENT NO. 2 TO FORM S-4 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 --------------------- BEVERLY ENTERPRISES, INC. NEW BEVERLY HOLDINGS, INC. (Exact Name of Registrants as Specified in their Charters) DELAWARE 8051 95-4100309 DELAWARE 8051 62-1691861 (State or Other Jurisdiction of (Primary Standard Industrial (IRS Employer Incorporation or Organization) Classification Code Number) Identification No.)
5111 ROGERS AVENUE, SUITE 40-A FORT SMITH, ARKANSAS 72919-0155 (501) 452-6712 (Address, Including Zip Code, And Telephone Number, Including Area Code, of Registrants' Principal Executive Offices) --------------------- See Table of Additional Co-Registrants Included Herewith --------------------- ROBERT W. POMMERVILLE, ESQ. EXECUTIVE VICE PRESIDENT, GENERAL COUNSEL AND SECRETARY BEVERLY ENTERPRISES, INC. NEW BEVERLY HOLDINGS, INC. 5111 ROGERS AVENUE, SUITE 40-A FORT SMITH, ARKANSAS 72919-0155 (501) 452-6712 (Name, Address, Including Zip Code, and Telephone Number, Including Area Code, of Agent for Service) --------------------- Copies to: H. WATT GREGORY, III, ESQ. MICHAEL E. KARNEY, ESQ. GIROIR, GREGORY, HOLMES & HOOVER, PLC 111 CENTER STREET, SUITE 1900 LITTLE ROCK, ARKANSAS 72201 (501) 372-3000 WARREN T. BUHLE, ESQ. MARK C. SMITH, ESQ. DAVID G. SCHWARTZ, ESQ. SKADDEN, ARPS, SLATE, WEIL, GOTSHAL & MANGES, LLP MEAGHER & FLOM LLP 767 FIFTH AVENUE 919 THIRD AVENUE NEW YORK, NY 10153 NEW YORK, NY 10022 (212) 310-8000 (212) 735-3000
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as practicable after this Registration Statement becomes effective and all other conditions described herein have been satisfied or are waived. If the securities being registered on this Form are being offered in connection with the formation of a holding company and there is compliance with General Instruction G, check the box. [ ] --------------------- THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A), MAY DETERMINE. ================================================================================ 2 TABLE OF ADDITIONAL CO-REGISTRANTS
(STATE OR OTHER JURISDICTION OF INCORPORATION OR (I.R.S. EMPLOYER (EXACT NAME OF CO-REGISTRANT AS SPECIFIED IN ITS CHARTER) ORGANIZATION) IDENTIFICATION NO.) --------------------------------------------------------- ---------------- ------------------- A-1 Home Health Services, Inc. ............................. Georgia 58-1935144 A.B.C. Health Equipment Corp................................ New York 13-3043192 AdviNet, Inc................................................ Delaware 71-0758986 AGI-Camelot, Inc............................................ Missouri 43-1253376 AGI-McDonald County Health Care, Inc........................ Missouri 43-1253385 Amco Medical Service, Inc................................... Texas 75-1288363 American Transitional Care Dallas -- Ft. Worth, Inc......... Texas 76-0322331 American Transitional Hospitals of East Tennessee, Inc. .... Delaware 62-1704901 American Transitional Health Care, Inc...................... Delaware 76-0292237 American Transitional Hospitals, Inc........................ Delaware 76-0232151 American Transitional Hospitals of Indiana, Inc............. Indiana 35-1903972 American Transitional Hospitals of Oklahoma, Inc............ Oklahoma 74-2689039 American Transitional Hospitals of Tennessee, Inc........... Tennessee 62-1562740 American Transitional Hospitals -- Texas Medical Center, Inc....................................................... Delaware 71-0779078 ATH -- Clear Lake, Inc...................................... Delaware 71-0776296 ATH Columbus, Inc........................................... Delaware 71-0776295 ATH Del Oro, Inc............................................ Texas 62-1578954 ATH Heights, Inc............................................ Texas 76-0442017 ATH -- Little Rock, Inc. ................................... Delaware 62-1682209 ATH -- Memphis, Inc. ....................................... Delaware 62-1682212 ATH Oklahoma City, Inc...................................... Oklahoma 73-1465199 ATH Tucson, Inc............................................. Arizona 71-0765364 Beverly Assisted Living, Inc................................ Delaware 71-0777901 Beverly -- Bella Vista Holding, Inc. ....................... Delaware 71-0797481 Beverly Health and Rehabilitation Services, Inc............. California 95-2301514 Beverly Enterprises -- Alabama, Inc......................... California 95-3742145 Beverly Enterprises -- Arizona, Inc......................... California 95-3750871 Beverly Enterprises -- Arkansas, Inc........................ California 95-3751272 Beverly Enterprises -- California, Inc...................... California 95-3750879 Beverly Enterprises -- Colorado, Inc........................ California 95-3750882 Beverly Enterprises -- Connecticut, Inc..................... California 95-3849642 Beverly Enterprises -- Delaware, Inc........................ California 95-3849628 Beverly Enterprises -- Distribution Services, Inc........... California 95-4081567 Beverly Enterprises -- District of Columbia, Inc............ California 95-3750889 Beverly Enterprises -- Florida, Inc......................... California 95-3742251 Beverly Enterprises -- Garden Terrace, Inc.................. California 95-3849648 Beverly Enterprises -- Georgia, Inc......................... California 95-3750880 Beverly Enterprises -- Hawaii, Inc.......................... California 95-3750890 Beverly Enterprises -- Idaho, Inc........................... California 95-3750886 Beverly Enterprises -- Illinois, Inc........................ California 95-3750883 Beverly Enterprises -- Indiana, Inc......................... California 95-3744258 Beverly Enterprises -- Iowa, Inc............................ California 95-3751271 Beverly Enterprises -- Kansas, Inc.......................... California 95-3751269 Beverly Enterprises -- Kentucky, Inc........................ California 95-3750894 Beverly Enterprises -- Louisiana, Inc....................... California 95-3849633 Beverly Enterprises -- Maine, Inc........................... California 95-3849627
3
(STATE OR OTHER JURISDICTION OF INCORPORATION OR (I.R.S. EMPLOYER (EXACT NAME OF CO-REGISTRANT AS SPECIFIED IN ITS CHARTER) ORGANIZATION) IDENTIFICATION NO.) --------------------------------------------------------- ---------------- ------------------- Beverly Enterprises -- Maryland, Inc........................ California 95-3750892 Beverly Enterprises -- Massachusetts, Inc................... California 95-3750893 Beverly Enterprises -- Michigan, Inc........................ California 95-3898661 Beverly Enterprises -- Minnesota, Inc....................... California 95-3742698 Beverly Enterprises -- Mississippi, Inc..................... California 95-3742144 Beverly Enterprises -- Missouri, Inc........................ California 95-3750895 Beverly Enterprises -- Montana, Inc......................... California 95-3849636 Beverly Enterprises -- Nebraska, Inc........................ California 95-3750873 Beverly Enterprises -- Nevada, Inc.......................... California 95-3750896 Beverly Enterprises -- New Hampshire, Inc................... California 95-3849630 Beverly Enterprises -- New Jersey, Inc...................... California 95-3750884 Beverly Enterprises -- New Mexico, Inc...................... California 95-3750869 Beverly Enterprises -- North Carolina, Inc.................. California 95-3642257 Beverly Enterprises -- North Dakota, Inc.................... California 95-3751270 Beverly Enterprises -- Ohio, Inc............................ California 95-3750867 Beverly Enterprises -- Oklahoma, Inc........................ California 95-3849624 Beverly Enterprises -- Oregon, Inc.......................... California 95-3750881 Beverly Enterprises -- Pennsylvania, Inc.................... California 95-3750870 Beverly Enterprises -- Rhode Island, Inc.................... California 95-3849621 Beverly Enterprises -- South Carolina, Inc.................. California 95-3750866 Beverly Enterprises -- Tennessee, Inc....................... California 95-3742261 Beverly Enterprises -- Texas, Inc........................... California 95-3744256 Beverly Enterprises -- Utah, Inc............................ California 95-3751089 Beverly Enterprises -- Vermont, Inc......................... California 95-3750885 Beverly Enterprises -- Virginia, Inc........................ California 95-3742694 Beverly Enterprises -- Washington, Inc...................... California 95-3750868 Beverly Enterprises -- West Virginia, Inc................... California 95-3750888 Beverly Enterprises -- Wisconsin, Inc....................... California 95-3742696 Beverly Enterprises -- Wyoming, Inc......................... California 95-3849638 Beverly Enterprises International Limited................... California 95-3982125 Beverly Enterprises Medical Equipment Corporation........... California 95-3849617 Beverly Holdings I, Inc..................................... Delaware 71-0768985 Beverly Manor Inc. of Hawaii................................ California 99-0144750 Beverly -- Missouri Valley Holding, Inc. ................... Delaware 71-0797485 Beverly -- Rapid City Holding, Inc. ........................ Delaware 71-0797483 Beverly Real Estate Holdings, Inc........................... Delaware 71-0768984 Beverly Savana Cay Manor, Inc............................... California 95-4217381 Columbia-Valley Nursing Home, Inc........................... Ohio 34-1262298 Commercial Management, Inc.................................. Iowa 42-0891358 Continental Care Centers of Council Bluffs, Inc............. Iowa 41-1413442 Forest City Building Ltd.................................... Missouri 43-1102460 Hallmark Convalescent Homes, Inc............................ Michigan 41-1413478 Home Medical Systems, Inc................................... Delaware 23-2271050 HomeCare Preferred Choice, Inc. ............................ Delaware 62-1702864 Hospice Preferred Choice, Inc............................... Delaware 71-0761314 Hospital Facilities Corporation............................. California 95-2499218 Kenwood View Nursing Home, Inc. ............................ Kansas 48-6111286 Liberty Nursing Homes, Incorporated......................... Virginia 54-0784334 MATRIX HealthCare Network, Inc. ............................ Delaware 16-1702866 MATRIX Rehabilitation, Inc. ................................ Delaware 71-0783147
4
(STATE OR OTHER JURISDICTION OF INCORPORATION OR (I.R.S. EMPLOYER (EXACT NAME OF CO-REGISTRANT AS SPECIFIED IN ITS CHARTER) ORGANIZATION) IDENTIFICATION NO.) --------------------------------------------------------- ---------------- ------------------- Medical Arts Health Facility of Lawrenceville, Inc. ........ Georgia 58-1329700 Moderncare of Lumberton, Inc. .............................. North Carolina 56-1217025 Nebraska City S-C-H, Inc. .................................. Nebraska 41-1413481 Nursing Home Operators, Inc. ............................... Ohio 34-0949279 Petersen Health Care, Inc. ................................. Florida 59-2043392 Salem No. 1, Inc. .......................................... Missouri 43-1130257 South Alabama Nursing Home, Inc. ........................... Alabama 95-3809397 South Dakota -- Beverly Enterprises, Inc. .................. California 95-3750887 Spectra Healthcare Alliance, Inc. .......................... Delaware 71-0759298 Synergos, Inc. ............................................. California 33-0203515 Synergos -- Scottsdale, Inc. ............................... Arizona 94-3085083 TMD Disposition Company..................................... Florida 59-3151568 Vantage Healthcare Corporation.............................. Delaware 35-1572998
5 PART II INFORMATION NOT REQUIRED IN PROSPECTUS ITEM 20. INDEMNIFICATION OF DIRECTORS AND OFFICERS Section 145 of the DGCL applies to Beverly and New Beverly, and the relevant portion of the DGCL provides as follows: 145. Indemnification of Officers, Directors, Employees and Agents; Insurance. (a) A corporation may 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 may 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) of this section, 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) of this section (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) of this section. 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. (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 shall ultimately be determined that he is not entitled to be II-1 6 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 bylaw, agreement, vote of stockholders 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 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 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 an 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 an 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. (k) The Court of Chancery is hereby vested with exclusive jurisdiction to hear and determine all actions for advancement of expenses or indemnification brought under this section or under any bylaw, agreement, vote of stockholders or disinterested directors, or otherwise. The Court of Chancery may summarily determine a corporation's obligation to advance expenses (including attorneys' fees). The Certificates of Incorporation of Beverly and New Beverly limit the liability of directors (in their capacity as directors, but not in their capacity as officers) to the Registrants or their stockholders to the fullest extent permitted by the DGCL, as amended. Specifically, no director of the Registrants will be personally liable to the Registrant or their stockholders for monetary damages for breach of the director's fiduciary duty as a director, except as provided in Section 102 of the DGCL for liability: (i) for any breach of the director's duty of loyalty to the Registrant or its stockholders; (ii) for acts or omissions not in good faith and which involve intentional misconduct or knowing violation of law; (iii) under Section 174 of the DGCL, which relates to unlawful payments of dividends or unlawful stock repurchases or redemptions; or (iv) for any transaction from which the director derived an improper personal benefit. The inclusion of this provision in the Certificates of Incorporation of Beverly and New Beverly may have the effect of reducing the likelihood of II-2 7 derivative litigation against directors, and may discourage or deter stockholders or management from bringing a lawsuit against directors for breach of their duty of care, even though such action, if successful, might otherwise have benefitted the Registrants and their stockholders. Under the Certificates of Incorporation and in accordance with Section 145 of the DGCL, the Registrants will 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 a "derivative" action by or in the right of a Registrant) by reason of the fact that such person was or is a director or officer of a Registrant, against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred in connection with such action, suit or proceeding if such person acted in good faith and in a manner such person reasonably believed to be in or not opposed to the best interests of the Registrant, and, with respect to any criminal action or proceeding, had no reasonable cause to believe such acts were unlawful. A similar standard of care is applicable in the case of derivative actions, except that indemnification only extends to expenses (including attorneys' fees) actually and reasonably incurred in connection with the defense or settlement of such an action and then, where the person is adjudged to be liable to a Registrant, only if and to the extent that the Court of Chancery of the State of Delaware or the court in which such action was brought determines that such person is fairly and reasonably entitled to such indemnity and then only for such expenses as the court deems proper. The Registrants will each indemnify, pursuant to the standard enumerated in Section 145 of the DGCL, any past or present officer or director who was or is a party, or is threatened to be made a party, to any threatened, pending or completed derivative action by or in the right of such Registrant. The Certifications of Incorporation of the Registrants provides that each Registrant may pay for the expenses incurred by an indemnified director or officer in defending the proceedings specified above in advance of their final disposition, provided that, if the DGCL so requires, such indemnified person agrees to reimburse such Registrant if it is ultimately determined that such person is not entitled to indemnification. The Registrants Certificates of Incorporation also allows each Registrant, in their sole discretion, to indemnify any person who is or was one of its employees and agents to the same degree as the foregoing indemnification of directors and officers. To the extent that a director, officer, employee or agent of a Registrant has been successful on the merits or otherwise in defense of any action, suit or proceeding referred to in subsections (a) and (b) of Section 145 of the DGCL, or in defense of any claim, issue or matter therein, such person shall be indemnified against expenses (including attorneys' fees) actually and reasonably incurred by such person in connection therewith. In addition, each Registrant may purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of such Registrant or another corporation, partnership, joint venture, trust or other enterprise against any liability asserted against and incurred by such person in such capacity, or arising out of the person's status as such whether or not such Registrant would have the power or obligation to indemnify such person against such liability under the provisions of the DGCL. Each Registrant maintains insurance for the benefit of the Registrants' officers and directors insuring such persons against certain liabilities, including civil liabilities under the Securities laws. Additionally, each Registrant has entered into indemnification agreements with each of the Directors of such Registrant, which, among other things, provides that each Registrant will indemnify such Directors to the fullest extent permitted by the respective Certificates of Incorporation and the DGCL and will advance expenses of defending claims against such Directors. ITEM 21. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES (a) Reference is made to the exhibit index immediately following the signature page to the Registration Statement. (b) The Schedules for which provision is made in the applicable accounting regulations of the Securities and Exchange Commission are not required under the related instructions or are inapplicable and, therefore, have been omitted. (c) The following opinions are included in the Prospectus/Consent Solicitation Statement as indicated: None II-3 8 ITEM 22. UNDERTAKINGS The undersigned registrants hereby undertake: 1. (a) 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) 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 (1)(a)(i) and (1)(a)(ii) do not apply if the registration statement is on Form S-3, Form S-8 or Form F-3, 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 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement. (b) 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. (c) 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. 2. 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 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. 3. That prior to any public reoffering of the Securities registered hereunder through use of a prospectus which is a part of this registration statement, by any person or party who is deemed to be an underwriter within the meaning of Rule 145(c), the issuer undertakes that such reoffering prospectus will contain the information called for by the applicable registration form with respect to reofferings by persons who may be deemed underwriters, in addition to the information called for by the other items of the applicable form. 4. That every prospectus (i) that is filed pursuant to the paragraph immediately preceding, or (ii) that purports to meet the requirements of section 10(a)(3) of the Securities Act and is used in connection with an offering of securities subject to Rule 415, will be filed as a part of an amendment to the registration statement and will not be used until such amendment is effective, and that, for purposes 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. 5. Insofar as indemnification for liabilities arising under the Securities Act of 1933 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 Securities 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 II-4 9 person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the Securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue. 6. The undersigned registrant hereby undertakes to respond to requests for information that is incorporated by reference into the prospectus pursuant to Items 4, 10(b), 11, or 13 of this Form S-4, within one business day of receipt of such request, and to send the incorporated documents by first class mail or other equally prompt means. This includes information contained in documents filed subsequent to the effective date of the registration statement through the date of responding to the request. 7. The undersigned registrant hereby undertakes to supply by means of a post-effective amendment all information concerning a transaction, and the company being acquired involved therein, that was not the subject of and included in the registration statement when it became effective. II-5 10 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the Registrant has duly caused this Registration Statement on Form S-4 to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Fort Smith, State of Arkansas, on the 21st day of October, 1997. For the Registrants set forth on the Registration Statement Facing Page and on the table of additional Co-Registrants By: /s/ SCOTT M. TABAKIN ---------------------------------- Scott M. Tabakin Executive Vice President, Chief Financial Officer of Beverly Enterprises, Inc. Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed on the dates indicated by the following persons in the capacities indicated.
SIGNATURE TITLE DATE --------- ----- ---- * Chairman of the Board, Chief October 21, 1997 - ----------------------------------------------------- Executive Officer and David R. Banks Director * President, Chief Operating October 21, 1997 - ----------------------------------------------------- Officer and Director Boyd W. Hendrickson /s/ SCOTT M. TABAKIN Executive Vice President, October 21, 1997 - ----------------------------------------------------- Chief Financial Officer Scott M. Tabakin * Vice President, Controller October 21, 1997 - ----------------------------------------------------- and Chief Accounting Officer Pamela H. Daniels * Director October 21, 1997 - ----------------------------------------------------- Beryl F. Anthony, Jr. * Director October 21, 1997 - ----------------------------------------------------- James R. Greene * Director October 21, 1997 - ----------------------------------------------------- Edith E. Holiday * Director October 21, 1997 - ----------------------------------------------------- Jon E. M. Jacoby * Director October 21, 1997 - ----------------------------------------------------- Risa J. Lavizzo-Mowery * Director October 21, 1997 - ----------------------------------------------------- Marilyn R. Seymann /s/ *JOHN W. MACKENZIE - ----------------------------------------------------- John W. MacKenzie As Attorney-in-Fact
II-6 11 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the Registrant has duly caused this Registration Statement on Form S-4 to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Fort Smith, State of Arkansas, on the 21st day of October, 1997. For the Registrants set forth on the Registration Statement Facing Page and on the table of additional Co-Registrants By: /s/ SCOTT M. TABAKIN ---------------------------------- Scott M. Tabakin Executive Vice President, Chief Financial Officer and Director of New Beverly Holdings, Inc. Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed on the dates indicated by the following persons in the capacities indicated.
SIGNATURE TITLE DATE --------- ----- ---- * Chairman of the Board, Chief October 21, 1997 - ----------------------------------------------------- Executive Officer and David R. Banks Director * President, Chief Operating October 21, 1997 - ----------------------------------------------------- Officer and Director Boyd W. Hendrickson * Executive Vice President, October 21, 1997 - ----------------------------------------------------- General Counsel, Secretary Robert W. Pommerville and Director * Executive Vice President -- October 21, 1997 - ----------------------------------------------------- Asset Management and Bobby W. Stephens Director /s/ SCOTT M. TABAKIN Executive Vice President, October 21, 1997 - ----------------------------------------------------- Chief Financial Officer Scott M. Tabakin and Director * Vice President, Controller October 21, 1997 - ----------------------------------------------------- and Chief Accounting Pamela H. Daniels Officer /s/ *JOHN W. MACKENZIE - ----------------------------------------------------- John W. MacKenzie As Attorney-in-Fact
II-7 12 INDEX TO EXHIBITS
EXHIBIT NUMBER DESCRIPTION ------- ----------- 2.1 -- Agreement and Plan of Merger dated April 15, 1997 by and between Beverly Enterprises, Inc. and Capstone Pharmacy Services, Inc. (incorporated by reference to Exhibit 2.1 to Beverly Enterprises, Inc.'s Current Report on Form 8-K dated April 15, 1997). 2.2 -- Agreement and Plan of Distribution by and among Beverly Enterprises, Inc., New Beverly Holdings, Inc. and Capstone Pharmacy Services, Inc. dated as of April 15, 1997 (incorporated by reference to Exhibit 2.2 to Beverly Enterprises, Inc.'s Current Report on Form 8-K dated April 15, 1997). 3.1 -- Restated Certificate of Incorporation of Beverly Enterprises, Inc. (incorporated by reference to Exhibit 4.1 to Beverly Enterprises, Inc.'s Current Report on Form 8-K dated July 31, 1987) 3.2 -- By-Laws of Beverly Enterprises, Inc. (incorporated by reference to Exhibit 3 to Beverly Enterprises, Inc.'s Quarterly Report on Form 10-Q for the quarter ended June 30, 1992) 3.3 -- Certificate of Incorporation of New Beverly Holdings, Inc. dated April 15, 1997 (incorporated by reference to Exhibit 3.1 to New Beverly Holdings, Inc.'s Registration Statement on Form S-1 filed June 4, 1997 (File No. 333-28521)). 3.4 -- Amended Certificate of Incorporation of New Beverly Holdings, Inc. dated May 29, 1997 (incorporated by reference to Exhibit 3.2 to New Beverly Holdings, Inc.'s Registration Statement on Form S-1 filed June 4, 1997 (File No. 333-28521)). 3.6 -- Bylaws of New Beverly Holdings, Inc. (incorporated by reference to Exhibit 3.4 to New Beverly Holdings, Inc.'s Registration Statement on Form S-1 filed June 4, 1997 (File No. 333-28521)). 4.1 -- Indenture dated as of February 1, 1996 between Beverly Enterprises, Inc. and Chemical Bank, as Trustee, with respect to Beverly Enterprises, Inc.'s 9% Senior Notes due February 15, 2006 (incorporated by reference to Exhibit 4.1 to Beverly Enterprises, Inc.'s Annual Report on Form 10-K for the year ended December 31, 1995). 4.2** -- Form of Second Supplemental Indenture dated , 1997 between Beverly Enterprises, Inc., New Beverly Holdings, Inc., certain subsidiaries of Beverly Enterprises, Inc. as guarantors and The Chase Manhattan Bank, as Trustee, with respect to Beverly's 9% Senior Notes due February 15, 2006. 4.3 -- Indenture dated as of August 1, 1993 between Beverly Enterprises, Inc. and Chemical Bank, as Trustee, with respect to Beverly Enterprises, Inc.'s 5 1/2% Convertible Subordinated Debentures due August 1, 2018, issuable upon exchange of Beverly Enterprises, Inc.'s $2.75 Cumulative Convertible Exchangeable Preferred Stock (the "Subordinated Debenture Indenture") (incorporated by reference to Exhibit 4.10 to Beverly Enterprises, Inc.'s Quarterly Report on Form 10-Q for the quarter ended June 30, 1993). 4.4 -- Indenture dated as of April 1, 1993 (the "First Mortgage Bond Indenture"), among Beverly Enterprises, Inc., Delaware Trust Company, as Corporate Trustee, and Richard N. Smith, as Individual Trustee, with respect to First Mortgage Bonds (incorporated by reference to Exhibit 4.1 to Beverly Enterprises, Inc.'s Quarterly Report on Form 10-Q for the quarter ended March 31, 1993).
13
EXHIBIT NUMBER DESCRIPTION ------- ----------- 4.5 -- First Supplemental Indenture dated as of April 1, 1993 to the First Mortgage Bond Indenture, with respect to 8 3/4% First Mortgage Bonds due 2008 (incorporated by reference to Exhibit 4.2 to Beverly Enterprises, Inc.'s Quarterly Report on Form 10-Q for the quarter ended March 31, 1993). 4.6 -- Second Supplemental Indenture dated as of July 1, 1993 to the First Mortgage Bond Indenture, with respect to 8 5/8% First Mortgage Bonds due 2008 (replaces Exhibit 4.1 to Beverly Enterprises, Inc.'s Current Report on Form 8-K dated July 15, 1993) (incorporated by reference to Exhibit 4.15 to Beverly Enterprises, Inc.'s Quarterly Report on Form 10-Q for the quarter ended June 30, 1993). 4.7 -- Indenture dated as of December 30, 1993 (the "Notes Indenture"), between Beverly Enterprises, Inc. and Boatmen's Trust Company, as Trustee, with respect to the Notes (incorporated by reference to Exhibit 4.2 to Beverly Enterprises, Inc.'s Registration Statement on Form S-3 filed on November 9, 1993 (File No. 33-50965)). 4.8 -- First Supplemental Indenture dated as of December 30, 1993 to the Notes Indenture, with respect to 8 3/4% Notes due 2003 (incorporated by reference to Exhibit 4.4 to Beverly Enterprises, Inc.'s Current Report on Form 8-K dated January 4, 1994). 4.9 -- Rights Agreement dated as of September 29, 1994, between Beverly Enterprises, Inc. and The Bank of New York, as Rights Agent (incorporated by reference to Exhibit 1 to Beverly Enterprises, Inc.'s Registration Statement on Form 8-A filed on October 18, 1994). 4.10 -- Amendment, dated as of April 6, 1995, to the Rights Agreement between Beverly Enterprises, Inc. and The Bank of New York, as Rights Agent (incorporated by reference to Exhibit 4.20 to Beverly Enterprises, Inc.'s Quarterly Report on Form 10-Q for the quarter ended June 30, 1995). In accordance with item 601(b)(4)(iii) of Regulation S-K, certain instruments pertaining to Beverly Enterprises, Inc.'s long-term obligations have not been filed; copies thereof will be furnished to the Securities and Exchange Commission upon request. 5.1* -- Opinion of Weil, Gotshal & Manges LLP as to certain legal matters. 5.2* -- Opinion of John W. MacKenzie, Deputy General Counsel of Beverly Enterprises, Inc. and New Beverly Holdings, Inc., as to certain legal matters. 10.1 -- Executive Medical Reimbursement Plan assumed by New Beverly Holdings, Inc. (incorporated by reference to Exhibit 10.5 to Beverly Enterprises, Inc.'s Annual Report on Form 10-K for the year ended December 31, 1987). 10.2 -- Amended and Restated Beverly Enterprises, Inc. Executive Life Insurance Plan and Summary Plan Description (the "Executive Life Plan") assumed by New Beverly Holdings, Inc. (incorporated by reference to Exhibit 10.7 to Beverly Enterprises, Inc.'s Annual Report on Form 10-K for the year ended December 31, 1993). 10.3 -- Amendment No. 1, effective September 29, 1994, to the Executive Life Plan assumed by New Beverly Holdings, Inc. (incorporated by reference to Exhibit 10.10 to Beverly Enterprises, Inc.'s Registration Statement on Form S-4 filed on February 13, 1995 (File No. 33-57663)). 10.4 -- Executive Physicals Policy assumed by New Beverly Holdings, Inc. (incorporated by reference to Exhibit 10.8 to Beverly Enterprises, Inc.'s Quarterly Report on Form 10-Q for the quarter ended June 30, 1993).
14
EXHIBIT NUMBER DESCRIPTION ------- ----------- 10.5 -- Amended and Restated Deferred Compensation Plan effective July 18, 1991 assumed by New Beverly Holdings, Inc. (incorporated by reference to Exhibit 10.6 to Beverly Enterprises, Inc.'s Annual Report on Form 10-K for the year ended December 31, 1991). 10.6 -- Amendment No. 1, effective September 29, 1994, to the Deferred Compensation Plan assumed by New Beverly Holdings, Inc. (incorporated by reference to Exhibit 10.13 to Beverly Enterprises, Inc.'s Registration Statement on Form S-4 filed on February 13, 1995 (File No. 33-57663)). 10.7 -- Executive Retirement Plan assumed by New Beverly Holdings, Inc. (incorporated by reference to Exhibit 10.9 to Beverly Enterprises, Inc.'s Annual Report on Form 10-K for the year ended December 31, 1987). 10.8 -- Amendment No. 1, effective as of July 1, 1991, to the Executive Retirement Plan assumed by New Beverly Holdings, Inc. (incorporated by reference to Exhibit 10.8 to Beverly Enterprises, Inc.'s Annual Report on Form 10-K for the year ended December 31, 1991). 10.9 -- Amendment No. 2, effective as of December 12, 1991, to the Executive Retirement Plan assumed by New Beverly Holdings, Inc. (incorporated by reference to Exhibit 10.9 to Beverly Enterprises, Inc.'s Annual Report on Form 10-K for the year ended December 31, 1991). 10.10 -- Amendment No. 3, effective as of July 31, 1992, to the executive Retirement Plan assumed by New Beverly Holdings, Inc. (incorporated by reference to Exhibit 10.10 to Beverly Enterprises, Inc.'s Annual Report on Form 10-K for the year ended December 31, 1992). 10.11 -- Amendment No. 4, effective as of January 1, 1993, to the Executive Retirement Plan assumed by New Beverly Holdings, Inc. (incorporated by reference to Exhibit 10.18 to Beverly Enterprises, Inc.'s Annual Report on Form 10-K for the year ended December 31, 1994). 10.12 -- Amendment No. 5, effective as of September 29, 1994, to the Executive Retirement Plan assumed by New Beverly Holdings, Inc. (incorporated by reference to Exhibit 10.19 to Beverly Enterprises, Inc.'s Annual Report on Form 10-K for the year ended December 31, 1994). 10.13 -- Beverly Enterprises, Inc. Executive Deferred Compensation Plan assumed by New Beverly Holdings, Inc. (incorporated by reference to Exhibit 10.23 to Beverly Enterprises, Inc.'s Annual Report on Form 10-K for the year ended December 31, 1996). 10.14 -- Beverly Enterprises, Inc. Supplemental Long-Term Disability Plan assumed by New Beverly Holdings, Inc. (incorporated by reference to Exhibit 10.24 to Beverly Enterprises, Inc.'s Annual Report on Form 10-K for the year ended December 31, 1996). 10.15 -- Severance Plan for Corporate and Regional Employees effective December 1, 1989 assumed by New Beverly Holdings, Inc. (incorporated by reference to Exhibit 10.21 to Amendment No. 1 to Beverly Enterprises, Inc.'s Registration Statement on Form S-1 filed on February 26, 1990 (File No. 33-33052)). 10.16 -- Employment Contract, made as of December 8, 1995, between Beverly Enterprises, Inc. and David R. Banks (incorporated by reference to Exhibit 10.2 to Beverly Enterprises, Inc.'s Quarterly Report on Form 10-Q for the quarter ended June 30, 1996).
15
EXHIBIT NUMBER DESCRIPTION ------- ----------- 10.17 -- Employment Contract, made as of December 8, 1995, between Beverly Enterprises, Inc. and Boyd W. Hendrickson (incorporated by reference to Exhibit 10.3 to Beverly Enterprises, Inc.'s Quarterly Report on Form 10-Q for the quarter ended June 30, 1996). 10.18 -- Form of Change In Control Severance Agreement, made as of December 8, 1995, between Beverly Enterprises, Inc. and its Executive Vice Presidents (incorporated by reference to Exhibit 10.31 to Beverly Enterprises, Inc.'s Annual Report on Form 10-K for the year ended December 31, 1995). 10.19 -- Form of Change In Control Severance Agreement, made as of December 8, 1995, between Beverly Enterprises, Inc. and certain of its officers (incorporated by reference to Exhibit 10.32 to Beverly Enterprises, Inc.'s Annual Report on Form 10-K for the year ended December 31, 1995). 10.20 -- Amended and Restated Credit Agreement, dated as of December 20, 1996, among Beverly Enterprises, Inc., the Banks listed therein, and Morgan Guaranty Trust Company of New York, as Issuing Bank and as Agent (incorporated by reference to Exhibit 10.44 to Beverly Enterprises, Inc.'s Annual Report on Form 10-K for the year ended December 31, 1996). 10.21 -- Trust Indenture dated as of December 1, 1994 from Beverly Funding Corporation, as Issuer, to Chemical Bank, as Trustee (the "Chemical Indenture") (incorporated by reference to Exhibit 10.45 to Beverly Enterprises, Inc.'s Registration Statement on Form S-4 filed on February 13, 1995 (File No. 33-57663)). 10.22 -- Series Supplement dated as of December 1, 1994 to the Chemical Indenture (incorporated by reference to Exhibit 10.46 to Beverly Enterprises, Inc.'s Registration Statement on Form S-4 filed on February 13, 1995 (File No. 33-57663)). 10.23 -- Data Processing Agreement, dated as of August 1, 1992, by and between Systematics Telecommunications Services, Inc. and Beverly California Corporation (incorporated by reference to Exhibit 10 to Beverly Enterprises, Inc.'s Quarterly Report on Form 10-Q for the quarter ended June 30, 1992). 10.24 -- Form of Irrevocable Trust Agreement for the Beverly Enterprises, Inc. Executive Benefits Plan (incorporated by reference to Exhibit 10.55 to Beverly Enterprises, Inc.'s Registration Statement on Form S-4 filed on February 13, 1995 (File No. 33-57663)). 11.1 -- Computation of Net Income (Loss) Per Share for the years ended December 31, 1996, 1995, 1994, 1993 and 1992 (incorporated by reference to Exhibit 11.1 to Beverly Enterprises, Inc.'s Annual Report on Form 10-K for the year ended December 31, 1996). 12.1** -- Beverly Enterprises, Inc. Computation of Ratio of Earnings to Fixed Charges.
16 21.1 -- Subsidiaries of Registrant (incorporated by reference to Exhibit 21.1 to Beverly Enterprises, Inc.'s Annual Report on Form 10-K for the year ended December 31, 1996). 23.1** -- Consent of Ernst & Young LLP, Independent Auditors. 23.2* -- Consent of Weil, Gotshal & Manges LLP (included as part of Exhibit 5.1). 23.3* -- Consent of John W. MacKenzie, Deputy General Counsel of Beverly Enterprises, Inc. and New Beverly Holdings, Inc. (included as part of Exhibit 5.2). 24.1 -- Power of Attorney (incorporated by reference to the signature page of New Beverly Holdings, Inc.'s Registration Statement on Form S-1 Filed June 4, 1997 (File No. 333-28521)). 25.1** -- Form T-1 Statement of Eligibility of Trustee. 27.1 -- New Beverly Holdings, Inc. Financial Data Schedule (incorporated by reference to Exhibit 27.1 to New Beverly Holdings, Inc.'s Registration Statement on Form S-1 filed on June 4, 1997 (File No. 333-28521)). 99.1** -- Consent with respect to the Proposed Amendments.
- --------------- * Filed herewith. ** Previously filed. EX-5.1 2 OPINION OF WEIL, GOTSHAL & MANGES LLP 1 EXHIBIT 5.1 [WEIL, GOTSHAL & MANGES LLP LETTERHEAD] October 21, 1997 Beverly Enterprises, Inc. 5111 Rogers Avenue -- Suite 40A Fort Smith, Arkansas 72919-0155 New Beverly Holdings, Inc. 5111 Rogers Avenue -- Suite 40A Fort Smith, Arkansas 72919-0155 Gentlemen: We have acted as counsel to Beverly Enterprises, Inc. ("Beverly") and New Beverly Holdings, Inc. ("New Beverly" and together with Beverly, the "Companies"), in connection with the preparation, authorization, execution and delivery of, and the consummation of the transactions contemplated by the Registration Statement on Form S-4 as filed with the Securities and Exchange Commission under the Securities Act of 1933, as amended (the "Registration Statement"), relating to the solicitation of consents of the holders of the 9% Senior Notes due 2006 of Beverly (the "Notes") to the amendment of the Indenture related to such Notes (the "Indenture") and the guarantees of the Notes set forth in the Indenture (the "Guarantees") by the entities set forth in the table of additional co-registrants contained in the Registration Statement (the "Guarantors" and together with the Companies herein called the "Issuers"), pursuant to a Supplemental Indenture (the "Supplemental Indentures" and the Notes as issued under the Indenture as modified by the Supplemental Indenture being herein called the "Securities"). In connection with such representation, we have examined originals or copies, certified or otherwise identified to our satisfaction, of the following: (a) the Registration Statement; (b) the form of the Securities; (c) the Indenture; and (d) the form of the Supplemental Indenture. 2 [Weil Gotshal & Manges LLP Letterhead] Beverly Enterprises, Inc. New Beverly Holdings, Inc. The Securities, the Indenture, the Supplemental Indenture and the Guarantees are hereinafter referred to in this opinion as the "Restructuring Documents". Capitalized terms defined in herein are used herein as so defined. In so acting, we have examined originals or copies, certified or otherwise identified to our satisfaction, of each of the Restructuring Documents and such corporate records, agreements, documents and other instruments, and such certificates or comparable documents of public officials and of officers and representatives of the Issuers, and have made such inquiries of such officers and representatives as we have deemed relevant and necessary as a basis for the opinions hereinafter set forth. In such examination, we have assumed the genuineness of all signatures, the legal capacity of natural persons, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as certified, conformed or photostatic copies and the authenticity of the originals of such latter documents. As to all questions of fact material to this opinion that have not been independently established, we have relied upon certificates or comparable documents of officers and representatives of the Issuers and upon the representations and warranties of the Issuers contained in the Restructuring Documents. We have also assumed (i) the due incorporation and valid existence of the Issuers, (ii) that each Issuer has the requisite corporate power and authority to enter into and perform each of the Restructuring Documents to which it is a party and (iii) the due authorization, execution and delivery of each of the Restructuring Documents by each party thereto. Based on the foregoing, and subject to the qualifications stated herein, we are of the opinion that: 1. The Securities constitute the legal, valid and binding obligations of Beverly enforceable against Beverly in accordance with their terms, and upon their assumption by New Beverly as contemplated by the Supplemental Indenture, the Securities will constitute the legal, valid and binding obligation of New Beverly enforceable against New Beverly in accordance with their respective terms, in each case subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors' rights and remedies generally, and subject, as to enforceability, to general principles of equity, including 2 3 [Weil Gotshal & Manges LLP Letterhead] principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity). 2. Each of the Guarantees constitute the legal, valid and binding obligations of each Guarantor party thereto, enforceable against such Guarantor in accordance with their terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors' rights and remedies generally, and subject, as to enforceability, to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at low or in equity). The opinions expressed herein are limited to the laws of the State of New York and the federal laws of the United States, and we express no opinion as to the effect on the matters covered by this letter of the laws of any other jurisdiction. We hereby consent to the use of this letter as an exhibit to the Registration Statement. We further consent to any and all references to our firm in the Prospectus which is a part of said Registration Statement. Very truly yours, /s/ WEIL, GOTSHAL & MANGES LLP 3 EX-5.2 3 OPINION OF JOHN W. MCKENZIE 1 EXHIBIT 5.2 [BEVERLY ENTERPRISES, INC. LETTERHEAD] October 21, 1997 Beverly Enterprises, Inc. 5111 Rogers Avenue; Suite 40-A Fort Smith, Arkansas 72919-0155 New Beverly Holdings, Inc. 5111 Rogers Avenue; Suite 40-A Fort Smith, Arkansas 72919-0155 Gentlemen: I am Vice President, Deputy General Counsel and Assistant Secretary of Beverly Enterprises, Inc. ("Beverly") and New Beverly Holdings, Inc. ("New Beverly" and together with Beverly, the "Companies"), and in that capacity have acted as counsel to the Issuers, in connection with the preparation, authorization, execution and delivery of, and the consummation of the transactions contemplated by the Registration Statement on Form S-4 as filed with the Securities and Exchange Commission under the Securities Act of 1933, as amended (the "Registration Statement"), relating to the solicitation of consents of the holders of the 9% Senior Notes due 2006 of Beverly (the "Notes") to the amendment of the Indenture related to such Notes (the "Indenture") and the guarantees of the Notes set forth in the Indenture (the "Guarantees") by the entities set forth in the table of additional co-registrants contained in the Registration Statement (the "Guarantors" and together with the Companies herein called the "Issuers"), pursuant to a Supplemental Indenture (the "Supplemental Indenture" and the Notes as issued under the Indenture as modified by the Supplement Indenture being herein called the "Securities"). In connection with such representation, I have examined originals or copies, certified or otherwise identified to my satisfaction, of the following: (a) the Registration Statement; (b) the form of the Securities; (c) the Indenture; and (d) the form of the Supplemental Indenture. The Securities, the Indenture, the Supplemental Indenture and the Guarantees are hereinafter referred to in this opinion as the "Restructuring Documents". Capitalized terms defined in the Registration Statement and used but not otherwise defined herein are used herein as so defined. In so acting, I have examined originals or copies, certified or otherwise to my 2 [BEVERLY ENTERPRISES, INC. LETTERHEAD] satisfaction, of each of the Restructuring Documents and such corporate records, agreements, documents and other instruments, and such certificates of comparable documents of public officials and of officers and representatives of the Issuers, and have made such inquiries of such officers and representatives as I have deemed relevant and necessary as a basis for the opinions hereinafter set forth. In such examination, I have assumed the genuineness of all signatures, the legal capacity of natural persons, the authenticity of all documents submitted to me as originals, the conformity to original documents of all documents submitted to me as certified, conformed or photostatic copies and the authenticity of the originals of such latter documents. As to all questions of fact material to this opinion that have not been independently established, I have relied upon certificates or comparable documents of officers and representatives of the Issuers and upon the representations and warranties of the Issuers contained in the Restructuring Documents. Based on the foregoing, and subject to the qualifications stated herein, I am of the opinion that: 1. Each of the Issuers has been duly incorporated and in good standing in its respective state of incorporation; 2. Each of the Issuers has the corporate power and authority to enter into the Restructuring Documents to which it is a part and to perform its obligations thereunder; 3. The Restructuring Documents have been duly authorized by all necessary corporate action by the Issuers; and 4. When executed and delivered in accordance with their terms, each of the Restructuring Documents will have been duly executed and delivered by the Issuers party thereto. The opinions expressed herein are limited to the general corporate laws of the State of Delaware, and I express no opinion as to the effect on the matters covered by this letter of the laws of any other jurisdiction. Please be advised that several of the Issuers are incorporated in jurisdictions other than the State of Delaware. The opinions expressed above with regard to those Issuers incorporated in jurisdiction other than Delaware are based upon my general knowledge and experience rather than based upon opinions or advice of Counsel licensed to practice in those jurisdictions. This letter is being furnished to you in my capacity as Vice President, Deputy General Counsel and Assistant Secretary of the Issuers. 3 [BEVERLY ENTERPRISES, INC. LETTERHEAD] I hereby consent to the use of this letter as an exhibit to the Registration Statement. I further consent to any and all references to me in the Prospectus which is a part of said Registration Statement. Very truly yours, /s/ JOHN W. MACKENZIE ------------------------------- John W. MacKenzie Vice President, Deputy General Counsel and Assistant Secretary JWM/tlh -----END PRIVACY-ENHANCED MESSAGE-----