exv10w88



 






Exhibit 10.88




EMPLOYMENT CONTRACT




          AGREEMENT made as of December 4, 2003 between BEVERLY ENTERPRISES, INC., a Delaware
corporation (the “Company”), and CINDY SUSIENKA (the “Executive”).



          WHEREAS, Executive is employed by the Company or by one of its wholly-owned consolidated
subsidiaries; and



          WHEREAS, the Company desires to assure itself of the management services of the Executive by
directly engaging the Executive as the Executive Vice President of the Company; and



          WHEREAS, the Company wishes to encourage the Executive to remain with and devote full time and
attention to the business affairs of the Company and wishes to provide income protection to the
Executive for a period of time in the event of an involuntary Termination of Employment not for
Cause or a voluntary Termination of Employment for Good Reason within the Term of this Agreement;



          NOW, THEREFORE, in consideration of the mutual agreements and understandings set forth herein
and for other good and valuable consideration, the receipt and adequacy of which is hereby
acknowledged, the Company and the Executive hereby agree as follows:



          1. Definitions.




          (a) “Base Salary” shall mean the Executive’s regular annual rate of base pay,
as set forth in Paragraph 4(a), as of the date in question.




          (b) The “Benefit Multiplier” shall be equal to 2.0 except that if Executive’s
Termination of Employment is pursuant to Paragraphs 6(b) or 6(c) it shall be equal to 3.0.




          (c) The Benefit Period” shall be the period of years equal to the Benefit
Multiplier which follows the Executive’s Termination of Employment.




          (d) “Cause” shall mean the Executive’s (i) conviction of a crime involving
moral turpitude or theft or embezzlement of property from the Company or (ii) willful
misconduct or willful failure substantially to perform the duties of his position, but only
if such has continued after receipt of notice from the Company’s Board of Directors and
such reasonable cure period as is set forth in such notice.




          (e) A “Change in Control” shall be deemed to have taken place if: (i) any
person, corporation, or other entity or group, including any “group” as defined in Section
l3(d)(3) of the Securities Exchange Act of 1934, other than any employee benefit plan then
maintained by the Company, becomes the beneficial owner of shares of the Company having 30
percent or more of the total number of votes that may be cast for the election of Directors
of the Company; (ii) as the result of, or in connection with, any contested election for
the Board of Directors of the Company, or any tender or exchange offer, merger or other
business combination or sale of assets, or any combination of the foregoing (a
“Transaction”), the persons who were Directors of the Company before the Transaction shall
cease to constitute a majority of the Board of Directors of the Company or any successor to
the Company or its assets, or (iii) at any time (a) the Company shall consolidate with, or
merge with, any other Person and the Company shall not be the continuing or surviving
corporation, (b) any Person shall consolidate with, or merge with the



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Company, and the Company shall be the continuing or surviving corporation and in
connection therewith, all or part of the outstanding Company stock shall be changed into or
exchanged for stock or other securities of any other Person or cash or any other property,
(c) the Company shall be a party to a statutory share exchange with any other Person after
which the Company is a subsidiary of any other Person, or (d) the Company shall sell or
otherwise transfer 50% or more of the assets or earning power of the Company and its
subsidiaries (taken as a whole) to any Person or Persons; provided, however, that
notwithstanding anything to the contrary herein, a Change in Control shall not
include either any transfer to a consolidated subsidiary, reorganization, spin-off,
split-up, distribution, or other similar or related transaction(s) or any combination of
the foregoing in which the core business and assets of the Company and its subsidiaries
(taken as a whole) are transferred to another entity (“Controlled”) with respect to which
(1) the majority of the Board of Directors of the Company (as constituted immediately prior
to such transaction(s)) also serve as directors of Controlled and immediately after such
transaction(s) constitute a majority of Controlled’s board of directors, and (2) more than
70% of the shareholders of the Company (immediately prior to such transaction(s)) become
shareholders or other owners of Controlled and immediately after the transaction(s) control
more than 70% of the ownership and voting rights of Controlled.




          (f) The “Change in Control Date” shall mean the date immediately prior to the
effectiveness of the Change in Control.




          (g) The “Committee” shall mean the Compensation Committee of the Company’s
Board of Directors.




          (h) The “Competitive Businesses” shall mean any of the health care businesses
in which the Company is engaged on the Effective Date.




          (i) The Executive shall have “Good Reason” to terminate employment if: (i) the
Executive is not elected, reelected, or otherwise continued in the office of the Company or
any of its subsidiaries which he held immediately prior to the Change in Control Date, or
he is removed as a member of the Board of Directors of the Company or any of its
subsidiaries if the Executive was a director immediately prior to the Change in Control
Date; (ii) the Executive’s duties, responsibilities or authority as an employee are
materially reduced or diminished from those in effect on the Change in Control Date without
the Executive’s consent; (iii) the Executive’s duties, responsibilities, or authority as an
employee are materially reduced or diminished from those in effect on the Effective Date
without the Executive’s consent; (iv) the Executive’s compensation or benefits are reduced
without the Executive’s consent, unless all Executive-level officers have their
compensation or benefits reduced in the same percentage amount; (v) the Company reduces the
potential earnings of the Executive under any performance-based bonus or incentive plan of
the Company in effect immediately prior to the Change in Control Date; (vi) the Company
requires that the Executive’s employment be based other than at its location on the
Effective Date without his consent; (vii) any purchaser, assign, surviving corporation, or
successor of the Company or its business or assets (whether by acquisition, merger,
liquidation, consolidation, reorganization, sale or transfer of assets or business, or
otherwise) fails or refuses to expressly assume in writing this Agreement and all of the
duties and obligations of the Company hereunder pursuant to Section 16 hereof; or (viii)
the Company breaches any of the provisions of this Agreement.




          (j) “Person” shall have the meaning ascribed to such term in Section 3(a)(9)
of the Securities Exchange Act of 1934 and used in Sections 13(d) and 14(d) thereof,
including a “group” as defined in Section 13(d).



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          (k) “Target Bonus” shall mean the target bonus (100% level) established for
the Executive for the year in question under the Company’s “Annual Incentive Plan.”



          (l) “Termination of Employment” shall mean the termination of the Executive’s
employment by the Company other than such a termination in connection with an offer of
immediate reemployment by a successor or assign of the Company or purchaser of the Company
or its assets under terms and conditions which would not permit the Executive to terminate
his employment for Good Reason.



          2. Term. The initial term of this Agreement shall be for the period commencing on the
Effective Date and ending on the third anniversary thereof. The Term shall be automatically
extended by one additional day for each day beyond the Effective Date of this Agreement that the
Executive remains employed by the Company until such time as the Company elects to cease such
extension by giving written notice of such to the Executive. (In such event, the Agreement shall
thus terminate on the third anniversary of the effective date of such notice).



          3. Position and Duties. During the Term, the Executive shall serve, as an employee,
as the Executive Vice President of the Company and shall have such duties, functions,
responsibilities and authority as are consistent with the Executive’s position.



          4. Compensation and Related Matters.




          (a) Annual Base Salary. The Executive shall receive a Base Salary at a rate
of $385,000 per annum and thereafter at any such greater rate as is determined by the
Committee.




          (b) Benefits. During the Term, the Executive shall be entitled to all of the
following and any other benefits and prerequisites offered by the Company to executives
generally:




          (i) Participate in the Company’s present and future stock option, restricted
stock, phantom stock and other similar equity-based incentive plans, pursuant to
their terms.




          (ii) Participate in the Company’s Employee Stock Purchase Plan, pursuant to
its terms;




          (iii) Participate in the Company’s Executive Deferred Compensation Plan,
pursuant to its terms;




          (iv) Participate in the Company’s Executive Savings Plus Plan, pursuant to its
terms;




          (vi) Participate in the group term life insurance coverage as provided by the
Company;




          (vii) Participate in the business travel accident insurance coverage when
traveling on Company business;




          (viii) Participate in the Company’s Medical Plan, and Dental Plan, pursuant to
their terms, except that the premium cost for such shall be treated as a benefit
under the Company’s Executive Medical Reimbursement Plan, described below, (and
therefore at the present time, there shall be no payroll deduction as a condition
of coverage in the Medical Plan and Dental Plan);



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          (ix) Participate in the Company’s Executive Medical Reimbursement Plan
pursuant to its terms;




          (x) Participate in the Company’s group Long-Term Disability Plan, at the
maximum benefit level, pursuant to its terms, and participate in the Company’s
Supplemental Long-Term Disability Plan, according to its terms;




          (xi)
4 weeks of paid vacation;




          (xii) Participate in or receive benefits under any other employee benefit plan
or other arrangement made available by the Company to any of its employees, subject
to and on a basis consistent with the terms, conditions and overall administration
of such plan or arrangement.




          (c) Annual Bonus. As additional compensation for services rendered, the
Executive shall be eligible to receive an annual bonus in cash pursuant to the Company’s
Annual Incentive Plan.




          (d) Expenses. The Company shall promptly reimburse the Executive for all
reasonable travel and other business expenses incurred by the Executive in the performance
of his duties to the Company hereunder.




          (e) Reporting. The Executive shall report directly to the Chairman and Chief
Executive Officer of the Company.



          5. Non-Solicitation.




          (a) Executive shall not at any time during the period of his employment with the
Company, or during the one (1) year period immediately following his Termination of
Employment with the Company (“Non-Solicitation Period”), without the prior written consent
of the Company, on behalf of himself or any other person, solicit for employment or employ
any of the current officers or employees of the Company; provided, however, that nothing
contained herein shall prohibit Executive from hiring employees of the Company when such
employment results from general solicitations for employment.




          (b) Executive shall not at any time during the period of his employment with the
Company, or during the Non-Solicitation Period, without the prior written consent of the
Company, solicit for his own use, or for the use of any company or person by whom he is
employed, or for whom he may be acting, any of the current customers of the Company, nor
shall he divulge to any other person any information or fact relating to the management,
business (including prospective business), finances, its customers or the terms of any of
the contracts of the Company which has heretofore or which may hereafter come to the
knowledge of Executive which is not freely available to the public.




          (c) Executive shall not, during the Non-Solicitation Period, in any way defame the
Company or disparage its business capabilities, products, plans or management to any
customer, potential customer, vendor, supplier, contractor, subcontractor of the Company so
as to affect adversely the goodwill or business of the Company.




          (d) Executive covenants and agrees that a breach of these subparagraphs (a), (b) or
(c) would immediately and irreparably harm the Company and that a remedy at law would be
inadequate to compensate the Company for its losses by reason of such breach and therefore
that the Company shall, in addition to any rights and remedies available under this
Agreement, at



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law or otherwise, be entitled to any injunction to be issued by any court of competent
jurisdiction enjoining and restraining Executive from committing any violation of these
subparagraphs (a), (b) or (c), and Executive hereby consent to the issuance of such
injunction.




          (e) For purposes of this Section 5 and in consideration of this Agreement, this
non-solicitation agreement has been separately negotiated and bargained for, and
constitutes a substantial portion of the consideration for this Agreement.



          6. Eligibility for Severance Benefits. The Executive shall be eligible for the
benefits described in Paragraph 7 (the “Severance Benefits”) if:




          (a) during the Term, the Executive has a Termination of Employment initiated (i) by
the Company without Cause, or (ii) by the Executive for Good Reason, and, in either case,
subsections (b) or (c) do not apply,




          (b) during the Term there has been a Change in Control and during the 31 day period
commencing on the first day of the 13th calendar month following the Change in Control Date
(e.g. the period April 1, 1999 — May 1, 1999, inclusive, for a Change in Control
which is effective in the month of March, 1998), the Executive has a Termination of
Employment initiated by the Executive without Good Reason, or




          (c) during the Term either (i) there has been a Change in Control and during
the two year period commencing on the Change in Control Date the Executive has a
Termination of Employment which is initiated by the Company without Cause or by the
Executive for Good Reason, or (ii) the Executive has a Termination of Employment initiated
by the Company without Cause or by the Executive for Good Reason following the commencement
of any discussion with a third person that ultimately results in a Change in Control with
such third person within 12 months of the commencement of such discussions (in which case,
the date of such discussion shall be substituted for the Change in Control Date wherever
appropriate, including in the definition of “Good Reason” and in Paragraph 7 hereof).



          7. Severance Benefit. Upon satisfaction of the requirements set forth in Paragraph 6,
and subject to Paragraphs 8 and 11, the Executive shall be entitled to the following Severance
Benefits:




          (a) Cash Payment. The Executive shall be entitled to receive an amount of
cash equal to the Benefit Multiplier times the greater of:




          (i) the sum of the Executive’s Base Salary as in effect upon the Termination
of Employment, and the greater of




          (A) the Executive’s Target Bonus as in effect upon the Termination of
Employment or,




          (B) the Executive’s actual bonus under the Company’s “Annual Incentive
Plan” for the year prior to the year of the Executive’s Termination of
Employment; or




          (ii) the sum of the Executive’s Base Salary as in effect on the Change in
Control Date, and the greater of




          (A) the Executive’s Target Bonus as in effect upon the Change in
Control Date or,



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          (B) the Executive’s actual bonus under the Company’s “Annual Incentive
Plan” for the year prior to the Change in Control Date.


The payment shall be made in a single lump sum within ten days following the Executive’s
Termination of Employment.





          (b) Long-Term Incentive Award; Equity-Based Compensation. The Executive’s
interest under the Company’s long-term incentive plans shall be fully vested. Any and all
(i) options, phantom units, and other awards granted to Executive to purchase Company stock
or which is measured by the current market value of Company stock and (ii) restricted stock
of the Company, owned by the Executive shall be fully vested.




          (c) Continuation of Benefits.




          (i) For the Benefit Period, the Executive shall be treated as if he had
continued to be an employee for all purposes under the Company’s Medical Plan,
Executive Medical Reimbursement Plan and Dental Plan. Following this period, the
Executive shall be entitled to receive continuation coverage under Part Six of
Title I of ERISA (“COBRA Benefits”) treating the end of this period as a
termination of the Executive’s employment (other than for gross misconduct).




          (ii) The Company shall maintain in force, at its own expense, for the
remainder of the Executive’s life, the vested life insurance in effect under the
Company’s Executive Split Dollar Life Insurance Plan (as described in Paragraph
4(b)) as of the Change in Control Date or as of the date of Termination of
Employment, whichever is greater.




          (d) Relocation Benefit. If, within the Benefit Period after the Executive’s
Termination of Employment, the Executive gives the Company written notice that he desires
to relocate within the continental United States, the Company will reimburse the Executive
for any reasonable relocation expenses (in accordance with the Company’s general relocation
policy for executives as then in effect, or, at the Executive’s election, as in effect on
the Change in Control Date) in connection with such relocation.




          (e) Executive Savings Plus Plan. For the year of the Executive’s Termination
of Employment, the Company will make the contribution to the Executive Savings Plus Plan on
behalf of the Executive that it would have made if the Executive had not had a Termination
of Employment, but in no event less than the percentage contribution it made for the
Executive in the immediately preceding year (and increased to take account of the
additional year of service), in each case taking account of the Executive’s annualized rate
of “Compensation” (as defined in the Executive Savings Plus Plan) and the percentage of
such Compensation that the Executive is contributing to the Executive Savings Plus Plan, as
of the date of Termination of Employment, and the Company’s matching contribution rate for
such year (or, if greater, the preceding year). The portion of the Company’s matching
contribution which is based on the preceding year’s contribution percentage shall be
contributed to the Executive Savings Plus Plan on behalf of the Executive immediately upon
the Executive’s Termination of Employment and any additional contribution required shall be
paid as soon as the amount is determined.




          (f) Executive Deferred Compensation Plan. For the year of the Executive’s
Termination of Employment, the Company will make the contribution to its Executive Deferred



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Compensation Plan (the “EDC Plan”) that it would have made if the Executive had not
had a Termination of Employment determined based on the Executive’s deferral for such year.
At Executive’s election, the Company contribution shall be paid to the Executive
immediately upon his Termination of Employment.




          (g) Disability. For the Benefit Period, the Company shall provide long-term
disability insurance benefits coverage to Executive equivalent to the coverage that the
Executive would have had had he remained employed under the Company’s Long-Term Disability
Plan and Supplemental Long-Term Disability Plan applicable to Executive on the date of
Termination of Employment, or, at the Executive’s election, the plan or plans applicable to
Executive as of the Change in Control Date. Should Executive become disabled during such
period, Executive shall be entitled to receive such benefits, and for such duration, as the
applicable plan(s) provide.




          (h) Plan Amendments. The Company shall adopt such amendments to its employee
benefit plans and insurance policies as are necessary to effectuate the provisions of this
Agreement. If and to the extent any benefits under this Paragraph 7 are not paid or
payable or otherwise provided to the Executive or his dependents or beneficiaries under any
such plan or policy (whether due to the terms of the plan or policy, the termination
thereof, applicable law, or otherwise), then the Company itself shall pay or provide for
such benefits.



          8. Golden Parachute Gross-Up. If, in the written opinion of a Big 6 accounting
firm engaged by either the Company or the Executive for this purpose (at the Company’s expense), or
if so alleged by the Internal Revenue Service, the aggregate of the benefit payments under
Paragraph 7 would cause the payment of one or more of such benefits to constitute an “excess
parachute payment” as defined in Section 280G(b) of the Internal Revenue Code (“Code”), then the
Company will pay to the Executive an additional amount in cash (the “Gross-Up Payment”) equal to
the amount necessary to cause the net amount retained by the Executive, after deduction of any (i)
excise tax on the payments under Paragraph 7, (ii) federal, state or local income tax on the
Gross-Up Payment, and (iii) excise tax on the Gross-Up Payment, to be equal to the aggregate
remuneration the Executive would have received under Section 7, excluding such Gross-Up Payment
(net of all federal, state and local excise and income taxes), as if Sections 280G and 4999 of the
Code (and any successor provisions thereto) had not been enacted into law. The Gross-Up Payment
provided for in this Paragraph shall be made within ten (10) days after the termination of
Executive’s employment, provided however that if the amount of the payment cannot be finally
determined at the time, the Company shall pay to Executive an estimate as determined in good faith
by the Company of such payments (together with interest at the rate provided in section
1274(b)(2)(B) of the Code) as soon as the amount thereof can be determined but in no event later
than the thirtieth (30th) day after the date of termination. Any dispute concerning the
application of this Paragraph shall be resolved pursuant to Paragraph 10, and if Paragraph 11
applies, any reference in this Paragraph and to Paragraph 7 shall also be deemed to include a
reference to Paragraph 11 as well.



          9. Waiver of Other Severance Benefits. The benefits payable pursuant to this
Agreement are in lieu of any other severance benefits which may otherwise be payable to the
Executive upon termination of employment with the Company, whether or not in connection with a
Change in Control (including without limitation, any benefits to which Executive might otherwise
have been entitled under any employment, change in control, or severance agreement or other
compensation or employee benefit plan to which the Company was a party or which was assumed by the
Company), except those benefits which are to be made available to the Executive as required by
applicable law.



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          10. Disputes. Any dispute or controversy arising under, out of, in connection with or
in relation to this Agreement shall, at the election and upon written demand of either party,
be finally determined and settled by binding arbitration in the city of Fort Smith, Arkansas, using
a single arbitrator, in accordance with the Labor Arbitration rules and procedures of the American
Arbitration Association, and judgment upon the award may be entered in any court having
jurisdiction thereof. The arbitrator shall have the power to order specific performance, mandamus,
or other appropriate legal or equitable relief to enforce the provisions of this Agreement. The
Company shall pay all costs of the arbitration and all reasonable attorney’s and accountant’s fees
of the Executive in connection therewith.



          11. Additional Payments Due to Dispute. Notwithstanding anything to the contrary
herein, and without limiting the Executive’s rights at law or in equity, if the Company fails or
refuses to timely pay to the Executive the benefits due under Paragraphs 7 and/or 8 hereof, then
the benefits under Paragraph 7(a) shall be increased and the benefits under Paragraphs 7(c), 7(d),
and 7(g) shall each be continued by one additional day for each day of any such failure or refusal
of the Company to pay. In addition, any Gross-Up Payment due under Paragraph 8 shall be increased
to take into account any increased benefits under this Paragraph.



          12. No Set-Off. There shall be no right of set-off or counterclaim in respect of any
claim, debt, or obligation against any payment to or benefit for the Executive provided for in this
Agreement.



          13. No Mitigation Obligation. The parties hereto expressly agree that the
payment of the benefits by the Company to the Executive in accordance with the terms of this
Agreement will be liquidated damages, and that the Executive shall not be required to mitigate the
amount of any payment provided for in this Agreement by seeking other employment or otherwise, nor
shall any profits, income, earnings or other benefits from any source whatsoever create any
mitigation, offset, reduction or any other obligation on the part of the Executive hereunder or
otherwise.



          14. Waiver of Rights. Executive hereby waives any rights against the Company,
including without limitation any rights under any employment, change in control, or severance
agreement; under any stock option or long-term incentive plan or any other compensation or employee
benefit plan.



          15. Non-disclosure of Proprietary Information, Surrender of Records;  Inventions
and Patents.




          (a) Proprietary Information. Executive shall not during the term of
employment or at any time thereafter (irrespective of the circumstances under which
Executive’s employment terminates), directly or indirectly use for his own purpose or for
the benefit of any person or entity other than Company, nor otherwise disclose, any
proprietary information, as defined below, to any individual or entity, unless such
disclosure has been authorized in writing by the Company or is otherwise required by law.
For purposes of this Agreement, the term “proprietary information” shall include, but is
not limited to: (a) the name or address of any client or affiliate of Company or any
information concerning the transactions or relations of any client or affiliate of Company
with Company or any of its shareholders; (b) any information concerning any product,
service, methodology, analysis, presentation, technology or procedure employed by Company
but not generally known to its clients or competitors, or under development by or being
tested by Company but not at the time offered generally to clients; (c) any information
relating to Company’s computer software, computer systems, pricing or marketing methods,
capital structure, operating results, borrowing arrangements or business plans; (d) any
information which is generally regarded as confidential or proprietary in any line of
business engaged in by Company;



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(e) any information contained in any of Company’s written or oral policies and
procedures or employee manuals; (f) any information belonging to clients or affiliates of
Company which Company has agreed to hold in confidence; (g) any inventions, innovations or
improvements covered by subsection 15(c) below; (h) any other information which Company has
reasonably determined to be confidential or proprietary; and (i) all written, graphic,
electronic and other material relating to any of the foregoing. Information that is not
novel or copyrighted or patented may nonetheless be proprietary information. Proprietary
information, however, shall not include any information that is or becomes generally known
to the industries in which Company competes through sources independent of Company or
Executive or through authorized publication by Company to persons other than Company’s
employees.




          (b) Confidentiality and Surrender of Records. Executive shall not during the
term of employment or at any time thereafter (irrespective of the circumstances under which
Executive’s employment terminates), except as required by law, directly or indirectly give
or disclose any “confidential records” (as hereinafter defined) to, or permit any
inspection or copying of confidential records by, any individual or entity other than in
the ordinary course and scope of such individual’s or entity’s employment or retention by
Company, nor shall he use or retain any of the same following termination of his
employment. Executive shall promptly return to Company all “confidential records” upon the
termination of Executive’s employment with Company. For purposes hereof, “confidential
records” means all correspondence, memoranda, files, analyses, studies, reports, notes,
documents, manuals, books, lists, financial, operating or marketing records, computer
software, magnetic tape, or electronic or other media or equipment of any kind which may be
in Executive’s possession or under his control or accessible to him which contain any
proprietary information as defined in subsection 15(a) above. All confidential records
shall be and remain the sole property of Company during the term of employment and
thereafter.




          (c) Inventions, Patents, and Copyrights. All inventions, innovations
or improvements in Company’s method of conducting its business (including policies,
procedures, products, improvements, software, ideas and discoveries, whether or not
patentable or copyrightable) conceived or made by Executive, either alone or jointly with
others, during the term of employment belong to Company. Executive will promptly disclose
in writing such inventions, innovations or improvements to Company and perform all actions
reasonably requested by Company to establish and confirm such ownership by Company,
including, but not limited to, cooperating with and assisting Company in obtaining patents
and copyrights for Company in the United States and in foreign countries. Any patent or
copyright application filed by Executive within a year after termination of his employment
hereunder shall be presumed to relate to an invention or work of authorship which was made
during the term of employment unless Executive can provide conclusive evidence to the
contrary.



          16. Successors; Binding Agreement.




          (a) This Agreement shall not be terminated by the voluntary or involuntary dissolution
of the Company or by any merger or consolidation where the Company is not the surviving
corporation, or upon any transfer of all or substantially all of the Company’s assets, or
any other Change in Control. The Company shall require any purchaser, assign, surviving
corporation or successor (whether direct or indirect, by purchase, merger, consolidation,
reorganization or otherwise) to all or substantially all of the business and/or assets of
the Company, by agreement in form and substance satisfactory to the Executive, expressly to
assume



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and agree to perform this Agreement in the same manner and to the same extent the
Company would be required to perform if no such succession had taken place. This Agreement
shall be binding upon and inure to the benefit of the Company and any purchaser, assign,
surviving corporation or successor to the Company, including without limitation any persons
acquiring directly or indirectly all or substantially all of the business and/or assets of
the Company whether by purchase, merger, consolidation, reorganization, transfer of all or
substantially all of the business or assets of the Company, or otherwise (and such
purchaser, assign, surviving corporation or successor shall thereafter be deemed the
“Company” for the purposes of this Agreement), but this Agreement shall not otherwise be
assignable, transferable or delegable by the Company.




          (b) This Agreement shall inure to the benefit of and be enforceable by the Executive’s
personal or legal representatives, executors, administrators, successors, heirs,
distributees and/or legatees.




          (c) This Agreement is personal in nature and neither of the parties hereto shall,
without the consent of the other, assign, transfer or delegate this Agreement or any rights
or obligations hereunder except as expressly provided in this Section 16. Without limiting
the generality of the foregoing, the Executive’s right to receive payments hereunder shall
not be assignable, transferable or delegable, whether by pledge, creation of a security
interest or otherwise, or otherwise subject to anticipation, alienation, sale, encumbrance,
charge, hypothecation, or set-off in respect of any claim, debt, or obligation, or to
execution, attachment, levy or similar process, or assignment by operation of law, other
than by a transfer by his will or by the laws of descent and distribution. Any attempt,
voluntarily or involuntarily, to effect any action prohibited by this Paragraph shall be
null, void, and of no effect.



          17. Notices. Any notice, request, claim, demand, document and other communication
hereunder to any party shall be effective upon receipt (or refusal of receipt) and shall be in
writing and delivered personally or sent by telex, telecopy, or certified or registered mail,
postage prepaid, or other similar means of communication, as follows:




          (a) If to the Company, addressed to its principal executive offices to the attention
of its Secretary;




          (b) If to the Executive, to him at the address set forth below under the
Executive’s signature, or at any such other address as either party shall have specified by
notice in writing to the other.



          18. Amendments; Waivers. This Agreement may not be modified, amended, or terminated
except by an instrument in writing, signed by the Executive and by a duly authorized representative
of the Company. By an instrument in writing similarly executed, either party may waive compliance
by the other party with any provision of this Agreement that such other party was or is obligated
to comply with or perform; provided, however, that such waiver shall not operate as a waiver of, or
estoppel with respect to, any other or subsequent failure. No failure to exercise and no delay in
exercising any right, remedy, or power hereunder shall operate as a waiver thereof, nor shall any
single or partial exercise of any right, remedy, or power hereunder preclude any other or further
exercise thereof or the exercise of any other right, remedy, or power provided herein or by law or
in equity.



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          19. Entire Agreement. This Agreement sets forth the entire agreement of the parties
hereto in respect of the subject matter contained herein and supersedes all prior agreements,
promises, covenants, arrangements, communications, representations or warranties, whether oral or
written, by any officer, employee or representative of any party hereto. The parties further
intend that this Agreement shall constitute the complete and exclusive statement of its terms and
that no extrinsic evidence whatsoever may be introduced in any judicial, administrative, or other
legal proceeding involving this Agreement.



          20. Severability; Enforcement. If any provision of this Agreement, or the application
thereof to any person, place, or circumstance shall be held by a court of competent jurisdiction to
be invalid, unenforceable or void, the remainder of this Agreement and such provisions as applied
to other persons, places and circumstances shall remain in full force and effect.



          21. Indemnification. The Company shall indemnify, defend, and hold the Executive
harmless from and against any liability, damages, costs, or expenses (including attorney’s fees) in
connection with any claim, cause of action, investigation, litigation, or proceeding involving him
by reason of his having been an officer, director, employee, or agent of the Company, unless it is
judicially determined, in a final, nonappealable order that the Executive was guilty of gross
negligence or willful misconduct. The Company also agrees to maintain adequate directors and
officers liability insurance for the benefit of Executive for the term of this Agreement and for at
least three years, thereafter, to the extent such insurance is reasonably available and provided to
all executives of the Company.



          22. ERISA. This Agreement is pursuant to the Company’s Severance Plan for Executives
(the “Plan”) which is unfunded and maintained by the Company primarily for the purpose of providing
deferred compensation for a select group of management or highly compensated employees. The Plan
constitutes an employee welfare benefit plan (“Welfare Plan”) within the meaning of Section 3(1) of
the Employee Retirement Income Security Act of 1974, as amended (“ERISA”). Any payments pursuant
to this Agreement which could cause the Plan not to constitute a Welfare Plan shall be deemed
instead to be made pursuant to a separate “employee pension benefit plan” within the meaning of
Section 3(2) of ERISA as to which the applicable portions of the document constituting the Plan
shall be deemed to be incorporated by reference. None of the benefits hereunder may be assigned in
any way.



          23. Governing Law. This Agreement shall be interpreted, administered and enforced in
accordance with the law of the State of Arkansas, except to the extent pre-empted by Federal law.



          The parties have duly executed this Agreement to be effective as of the date first written
above.



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	BEVERLY ENTERPRISES, INC.
	 	EXECUTIVE
	

	 	 	 	 
	By:
	 	 	 	 
	

	 	 
	 	 
	

	 	William R. Floyd
	 	Cindy Susienka
	

	 	Chairman and Chief Executive Officer	 	 







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