exv10w89



 






Exhibit 10.89




THE BEVERLY ENTERPRISES 1988 EMPLOYEE STOCK PURCHASE PLAN

(as Amended and Restated effective July 1, 2000)





		
	1. 	Plan





      Beverly Enterprises, Inc. (the “Company”) hereby establishes the Beverly Enterprises 1988
Employee Stock Purchase Plan (the “Plan”) to afford Participants (as defined in Section 2) a
convenient means for regular and systematic purchases of the Common Stock, $.10 par value, of the
Company (“Common Stock”).



      The purpose of the Plan is to assist the Company in attracting and retaining personnel of
outstanding abilities and to motivate them to dedicate their maximum productive effort on behalf of
the Company.



      The Board of Directors of the Company or its delegates shall have full power and authority to
interpret and construe any provisions of the Plan finally and conclusively as to all persons who
have any interest hereunder, to adopt rules and regulations not inconsistent with the Plan for
carrying out the Plan or for providing for matters not specifically covered in the Plan and to
alter, amend and revoke any rules or regulations so adopted.




		
	2. 	Participants





      Each regular “full-time” (i.e. averages 60 hours or more per 14-day pay period) employee of
the Company or any of its wholly owned subsidiaries (including any such person who may also be an
Officer of the Company or any such subsidiary) who has completed one (1) year of continuous service
and elects to participate at the inception of the Plan, or who so elects during the calendar month
following the month such employee has completed the one (1) year of continuous service (hereinafter
identified as a “Participant” or collectively as “Participants”), is eligible to participate in the
Plan. The term “Officer” as used herein shall have the meaning set forth in Section 240.16a-1(f)
of the General Rules and Regulations promulgated by the Securities and Exchange Commission,
pursuant to the Securities Exchange Act of 1934. An employee who does not elect to participate at
the inception of the Plan or during the calendar month following his or her first year of
continuous service must wait until any subsequent month of March to enter the Plan as a
Participant.




		
	3. 	Broker





      3.1 Appointment of Broker. The Company hereby appoints Merrill Lynch, Pierce, Fenner & Smith
Incorporated, as Broker, to open and maintain an account in the name of each Participant and to
make purchases of shares of Common Stock on the New York Stock Exchange for the accounts of
Participants. The Broker has been appointed by the Board of Directors of the Company to administer
the Plan and may be removed from such appointment at any time in the sole discretion of such Board
of Directors or its delegate. Consequently, nothing in the Plan



 








 




shall be deemed to create an obligation on the part of the Company that the Broker shall
continue to administer the Plan.




      3.2 Payment of Fees and Other Charges. The Company will pay the Broker’s administrative
charges for maintaining accounts under the Plan and will pay for brokerage commissions on purchases
of securities made under the Plan. The Company shall deduct funds from each Participant’s pay as
authorized in writing and shall forward the amount deducted and the Company’s contributions, after
required tax withholding, to the Broker, together with a list of Participants and the amount
allocable to their accounts.




		
	4. 	Payroll Deductions and Company Contributions





      4.1 Enrollment. Eligible employees may enroll as Participants by completing and signing a
form of payroll authorization instructing the Company to deduct a certain amount from their
compensation. This authorization requires that funds deducted be transmitted to the Broker for the
purchase of shares of Common Stock on the New York Stock Exchange for the account of the
Participant. Enrollment becomes effective pursuant to Section 2 hereof after the authorization
forms are received by the Company.



      4.2 Decreasing, Increasing or Terminating Payroll Deductions; Reentry. Payroll deduction
authorizations shall remain effective until terminated in writing by the Participant or until
otherwise terminated as provided below. Each Participant shall specify the amount to be withheld
from his or her compensation, with a minimum of $10 per pay period and a maximum of $150 per weekly
or $300 per biweekly pay period. A payroll deduction may be decreased at any time in $10
increments, but not below $10 per pay period, by the Participant giving written notice to the
Company. A payroll deduction may be terminated at any time by the Participant giving written
notice to the Company. The decrease or termination shall be effective at the beginning of the next
pay period after the notice is received. A Participant who terminates his or her payroll deduction
may not reenter the Plan until the next March following the effectiveness of his or her
termination, and the reentry may be made only during that month or any succeeding March. A payroll
deduction may be increased only during the month of March each year and only in increments of $10.



      4.3 Company Contribution. Prior to July 1, 2000, the Company will make contributions on
behalf of each Participant in the amount of thirty percent (30%) of the funds deducted from such
Participant’s pay as authorized by the Participant in writing. Effective July 1, 2000, the Company
contribution shall be 15% of the funds deducted from a Participant’s pay. The amount of the
Company’s contribution to be forwarded to the Broker for each Participant shall be reduced by any
required Federal, state and/or local tax withholding.




		
	5. 	Purchases, Sales and Withdrawals





      Upon receipt of funds from the Company for such purpose hereunder, the Broker, as agent for
the Participants, shall, as promptly as practicable, purchase on the New York Stock Exchange as
many whole shares of Common Stock as the aggregate of such funds will permit. Certain conditions
imposed upon the Broker by regulatory agencies could cause delay from time to time in the purchase
of shares. The aggregate of all such purchases shall be allocated, on the



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basis of the average cost thereof, to the respective accounts of the Participants together
with the Company’s contribution for such purchases in proportion to the portion of funds which was
withheld with respect to each Participant. Allocations shall be made in full shares and in
fractional interests in shares to one ten-thousandth of a share.




      At the time of purchase of shares of Common Stock under the Plan, each Participant for whose
account funds were received shall immediately acquire full ownership of all shares and of any
fractional interests in shares purchased for his or her account. Unless otherwise requested by the
Participant, all shares shall be registered in the name of the Broker or its nominee and will
remain so registered until delivery is requested. Subject to the provisions of the next paragraph
and Section 9, a Participant may request that a certificate for any or all full shares of Common
Stock in his or her account be delivered at any time at the Broker’s usual transfer charge.



      A participant may instruct the Broker to sell any or all of the full shares of Common Stock or
any fractional interests held in his or her account at any time. Upon sale the Broker shall, if
requested, mail a check for the proceeds to the Participant, less the regular brokerage commission
or fee and any transfer taxes or other normal charges which are payable by the Participant. Except
as otherwise provided in Section 9, any instruction to sell shares, or any request for delivery of
certificates, shall automatically terminate the Participant’s payroll deduction authorization
effective upon the commencement of the next pay period following the Broker’s receipt of any such
instruction. Any Participant whose payroll deduction authorization is so terminated shall not be
entitled to reenter the Plan until the next March following the effectiveness of such termination,
and the reentry may be made only during that month or any succeeding March, provided, however, that
the Board of Directors shall have discretion, on a case by case basis for reasons of hardship, to
make exceptions to the termination or reentry rule contained in this Section 5. The Broker shall
immediately notify the Company of any instructions received by it to sell shares or deliver
certificates.




		
	6. 	Confirmations





      Each Participant shall receive a quarterly statement of activity from the Broker reflecting
any change in the number of shares of Common Stock held for his or her account. The relationship
between the Participant and the Broker shall be the normal relationship of client and broker and
the Company shall assume no responsibility except as to the payment of the Company’s contribution,
the payment of commissions on purchases under the Plan, and administrative fees.




		
	7. 	Closing Accounts





      Participants who terminate their payroll authorization or who have such authorization
automatically terminated may request the Broker to maintain or to close their accounts.
Participants may direct that all full shares of Common Stock and any fractional interests in their
accounts be sold and the net proceeds remitted to them, or request that the full shares of Common
Stock in their account be delivered to them together with a check representing the net proceeds of
the sale of the fractional interest in shares of Common Stock. The net proceeds are determined
after deducting the regular brokerage commission and any transfer taxes or other



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normal charges which are payable by the Participant. Once the payroll deduction is
terminated, re-entry into the Plan is permitted in accordance with the provisions of Section 4.





		
	8. 	Voting and Other Rights





      The Broker shall deliver to each Participant as promptly as practicable, by mail or otherwise,
all notices of meetings, proxy statements and other material distributed by the Company to its
stockholders. The whole shares in each Participant’s account shall be voted in accordance with the
Participant’s signed proxy instructions duly delivered to the Broker in a timely fashion, or
otherwise, in accordance with rules applicable to stock listed on the New York Stock Exchange.
There shall be no charge to the Participants in connection with stock certificates left on deposit
with the Broker, or with notices, proxies or other such material.




		
	9. 	Dividends and Other Proceeds





      Cash dividends received in respect of shares of Common Stock held in the accounts of
Participants shall be credited by the Broker to such accounts. All such cash shall be reinvested
in shares of Common Stock as promptly as practicable following receipt thereof. The Company shall
pay all regular commissions in connection with the purchases constituting such reinvestment. Stock
dividends or stock splits in respect of shares of Common Stock held in the accounts of Participants
shall be credited to such accounts without charge. Other securities and rights to subscribe
received in respect of shares of Common Stock, if any, may be held in kind in the accounts of
Participants and shall be subject to the terms and conditions of the Plan the same as shares of
Common Stock, or, at the direction of the Participant, may be either distributed in kind or sold
and the proceeds either distributed or treated the same as cash dividends, except that any
instructions to sell such securities and/or rights to subscribe, or to issue certificates with
respect to same, shall not cause the termination of a Participant’s payroll deduction authorization
or otherwise affect a Participant’s right to participate in the Plan.




		
	10. 	Transfer of Rights





      The Plan does not restrict the ability of a Participant to sell, assign, hypothecate or
otherwise deal with shares of the Company acquired under the Plan. However, the Participant may
not assign or hypothecate his or her interest in the Plan as such. The shares held for
Participants’ accounts become the sole property of the respective Participants, and no person has
or may create a lien under the Plan on any of such shares.




		
	11. 	Termination





      If a Participant shall die, retire, be totally or permanently disabled or cease to be
continuously employed by the Company, such Participant’s interest in the Plan shall thereupon
automatically terminate. The Company will notify the Broker of any such termination. Securities
held by the Broker for the account of any Participant whose interest in the Plan shall be
terminated shall continue to be so held by the Broker and the reinvestment of dividends continued
until the Broker shall have received other instructions from such Participant or his or her estate.



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      Upon the receipt of appropriate instructions from the Participant or his or her estate, the
Broker shall sell or transfer any whole shares of Common Stock or other securities credited to the
account of the Participant as directed. All Federal or state transfer taxes, if any, which may be
due upon transfer of such shares to the Participant, his or her estate, or to any other person
shall be paid by the Participant or his beneficiary or estate, and the Broker may require the
deposit of funds sufficient to cover such taxes in advance of making any such transfer.



      No Participant shall have any right to receive any fractional share credited to his or her
account in the Plan, nor shall any provision herein be construed to give such right. Upon
termination, any fractional share interest subject to transfer to the Participant or other person
shall be paid thereto to the Participant or other person in cash by the Broker. Any such payment
in respect of a fractional share shall be in an amount equal to the appropriate fraction of the
opening price of Common Stock on the New York Stock Exchange on the day following the receipt of
instructions.




		
	12. 	Amendments, Suspensions and Terminations





      The Board of Directors of the Company or its delegate may from time to time amend, suspend or
terminate in whole or in part, and if terminated my reinstate, any or all of the provisions of the
Plan, except that no amendments, suspension or termination may be made which, in the judgment of
such Board of Directors or its delegate, will retroactively affect adversely the rights of
Participants in the Plan. No part of the funds or shares of Common Stock credited to the account
of any Participant shall be subject to forfeiture for any reason. Notwithstanding the above, any
amendment to the Plan shall become effective only when approved by the stockholders of the Company,
if such shareholder approval is required under applicable federal securities laws, federal tax
laws, or stock exchange listing rules.




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