As Filed with the Securities and Exchange Commission on February 26, 2002
Registration No. 333-_____
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------------------------------
GENESIS HEALTH VENTURES, INC.
--------------------------------------------------------------------------------
(Exact name of registrant as specified in its charter)
Pennsylvania 06-1132947
----------------------------------------- ------------------------
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification Number)
101 East State Street
Kennett Square, PA 19348
(610) 444-6350
(Address, including telephone number, zip code
of Principal Executive Offices)
GENESIS HEALTH VENTURES, INC.
2001 STOCK INCENTIVE PLAN
(Full title of the Plans)
Michael R. Walker
Chairman and Chief Executive Officer
101 East State Street Kennett Square, PA 19348
(610) 444-6350
(Name, address, including zip code, and telephone number, including
area code, of agent for service)
Copies to:
Richard J. McMahon, Esquire
Blank Rome Comisky & McCauley LLP
One Logan Square
Philadelphia, PA 19103
(215) 569-5554
---------------------------------
CALCULATION OF REGISTRATION FEE
======================================================================================================================
Proposed Proposed
Maximum Maximum
Amount To Be Offering Price Aggregate Amount Of
Title Of Securities To Be Registered Registered Per Share Offering Price Registration Fee
----------------------------------------------------------------------------------------------------------------------
Common Stock ($0.02 par value) issuable
under the 2001 Stock Incentive Plan...... 750,000 $14.85 (1) $11,137,500 (1) $1,025.00
======================================================================================================================
(1) Pursuant to Rule 457(h), based upon the average of the high and low price
of the registrant's common stock reported on the NASDAQ National Market on
February 21, 2002.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents, as filed with the Securities and Exchange Commission,
are incorporated by reference in this registration statement:
(a) our Annual Report on Form 10-K for the fiscal year ended September 30,
2001, filed December 28, 2001;
(b) our Current Report on Form 8-K dated September 24, 2001;
(c) our Current Report on Form 8-K dated September 20, 2001;
(d) our Quarterly Report on Form 10-Q for the quarterly period ended
December 31, 2001, filed February 14, 2002; and
(e) the description of our common stock, par value $0.02 per share,
contained in our Form 8-A12G, File No. 000-33217, filed on October 2,
2001 pursuant to Section 12(g) of the Securities Exchange Act of 1934,
and all amendments or reports filed for the purpose of updating such
description.
All documents filed by the registrant pursuant to Section 13(a), 13(c), 14 and
15(d) of the Securities Exchange Act of 1934, as amended, after the date of this
registration statement and prior to the filing of a post-effective amendment
which indicates that all securities offered have been sold or which deregisters
all securities then remaining unsold, shall be deemed to be incorporated by
reference in this registration statement and to be part of this registration
statement from the date of the filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
As permitted by the Pennsylvania Business Corporation Law of 1988, as amended
(the "BCL"), our amended and restated bylaws ("Bylaws") provide that a director
shall not be personally liable in such capacity for monetary damages for any
action taken, or any failure to take any action, unless the director breaches or
fails to perform the duties of his or her office under the BCL, and the breach
or failure to perform constitutes self-dealing, willful misconduct or
recklessness. These provisions of the Bylaws, however, do not apply to the
responsibility or liability of a director pursuant to any criminal statute, or
to the liability of a director for the payment of taxes pursuant to local,
Pennsylvania or federal law.
II-1
Our bylaws also provide that we must indemnify our current and former officers
and directors to the fullest extent permitted by law against all expenses and
liabilities reasonably incurred by or imposed upon him or her, in connection
with any threatened, pending or completed action, suit or proceeding to which he
or she was or are a party, or are threatened to be made a party, by reason of
his or her being or having been a director or executive officer of us, or
serving or having served any other business enterprise or trust as a director,
officer, employee, general partner, agent or fiduciary at our request. However,
no indemnification shall be provided to any of our current or former directors
or officers (i) for liabilities arising under Section 16(b) of the Securities
Exchange Act of 1934, as amended; (ii) if a final unappealable judgment or award
establishes that such director or officer engaged in self-dealing, willful
misconduct or recklessness; (iii) for expenses or liabilities which have been
paid directly to, or for the benefit of, such person by an insurance carrier and
(iv) for amounts paid in settlement of actions without the written consent of
our board of directors. The Bylaws also permit the Company to indemnify any
person in any situation not covered by the Bylaws to the extent permitted by
applicable law.
Sections 1741 through 1750 of Subchapter D, Chapter 17, of the BCL, contain
provisions for mandatory and discretionary indemnification of a Pennsylvania
corporation's directors, officers and other personnel, and related matters.
Under Section 1741, subject to certain limitations, a corporation has the power
to indemnify directors and officers under certain prescribed circumstances
against expenses (including attorneys' fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred in connection with an action or
proceeding, whether civil, criminal, administrative or investigative, to which
any of them is a party by reason of his or her being a representative, director
or officer of the corporation or serving at the request of the corporation as a
representative of another corporation, partnership, joint venture, trust or
other enterprise, if he or she acted in good faith and in a manner he or she
reasonably believed to be in, or not opposed to, the best interests of the
corporation and, with respect to any criminal proceeding, had no reasonable
cause to believe his or her conduct was unlawful.
Under Section 1743, indemnification is mandatory to the extent that the officer
or director has been successful on the merits or otherwise in defense of any
action or proceeding if the appropriate standards of conduct are met.
Section 1742 provides for indemnification in derivative actions except in
respect of any claim, issue or matter as to which the person has been adjudged
to be liable to the corporation unless and only to the extent that the proper
court determines upon application that, despite the adjudication of liability
but in view of all the circumstances of the case, the person is fairly and
reasonably entitled to indemnity for the expenses that the court deems proper.
Section 1744 provides that, unless ordered by a court, any indemnification under
Section 1741 or 1742 shall be made by the corporation only as authorized in the
specific case upon a determination that the representative met the applicable
standard of conduct, and such determination will be made by the board of
directors (i) by a majority vote of a quorum of directors not parties to the
action or proceeding; (ii) if a quorum is not obtainable, or if obtainable and a
majority of disinterested directors so directs, by independent legal counsel; or
(iii) by the shareholders.
Section 1745 provides that expenses incurred by an officer, director, employee
or agent in defending a civil or criminal action or proceeding may be paid by
the corporation in advance of the final disposition of such action or proceeding
upon receipt of an undertaking by or on behalf of such person to repay such
amount if it shall ultimately be determined that he or she is not entitled to be
indemnified by the corporation.
II-2
Section 1746 provides generally that, except in any case where the act or
failure to act giving rise to the claim for indemnification is determined by a
court to have constituted willful misconduct or recklessness, the
indemnification and advancement of expenses provided by Subchapter 17D of the
BCL shall not be deemed exclusive of any other rights to which a person seeking
indemnification or advancement of expenses may be entitled under any bylaw,
agreement, vote of shareholders or disinterested directors or otherwise, both as
to action in his or her official capacity and as to action in another capacity
while holding that office.
Section 1747 grants to a corporation the power to purchase and maintain
insurance on behalf of any director or officer against any liability incurred by
him or her in his or her capacity as officer or director, whether or not the
corporation would have the power to indemnify him or her against the liability
under Subchapter 17D of the BCL.
Section 1748 and 1749 extend the indemnification and advancement of expenses
provisions contained in Subchapter 17D of the BCL to successor corporations in
fundamental changes and to representatives serving as fiduciaries of employee
benefit plans.
Section 1750 provides that the indemnification and advancement of expenses
provided by, or granted pursuant to, Subchapter 17D of the BCL, 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 and personal representative of such person.
The above discussion of the registrant's Amended and Restated Bylaws and the BCL
is not intended to be exhaustive and is respectfully qualified in its entirety
by the registrant's Amended and Restated Bylaws and the BCL.
The registrant has obtained insurance policies insuring its directors and
officers and those of its subsidiaries against some liabilities they may incur
in their capacities as directors or officers. Under such insurance policies, the
insurer, on behalf of the registrant, may also pays amounts for which the
registrant has granted indemnification to the directors or officers.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
4.1* Amended and Restated Articles of Incorporation of Genesis Health
Ventures, Inc.
4.2** Amended and Restated Bylaws of Genesis Health Ventures, Inc.
5.1 Opinion of Counsel
23.1 Consent of Independent Auditors
23.2 Consent of Counsel (included in Exhibit 5.1)
24.1 Power of Attorney (included on signature page of this
registration statement)
99.1 2001 Stock Incentive Plan
II-3
-------------
* Incorporated by reference to an exhibit to the Annual Report on Form 10-K
for the fiscal year ended September 30, 2001 and filed with the Securities
and Exchange Commission on December 28, 2001.
** Incorporated by reference to an exhibit to the Quarterly Report on Form
10-Q for the quarter period ended December 31, 2001 and filed with the
Securities and Exchange Commission on February 14, 2002.
ITEM 9. UNDERTAKINGS.
(a) The undersigned registrant, hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3) of
the Securities Act of 1933;
(ii) To reflect in the prospectus any events or facts 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. Notwithstanding the foregoing, any increase or decrease in the volume
of securities offered (if the total dollar value of securities offered would not
exceed that which was registered) and any deviation from the low or high end of
the estimated maximum offering range may be reflected in the form of prospectus
filed with the Securities and Exchange Commission pursuant to Rule 424(b) if, in
the aggregate, the changes in volume and price represent no more than a 20%
change in the maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the registration statement or
any material change to such information in the registration statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if the information required to be included in a post-effective amendment
by those paragraphs is contained in periodic reports filed with or furnished to
the Securities and Exchange Commission by the registrant pursuant to section 13
or section 15(d) of the Securities Exchange Act of 1934 that are incorporated by
reference in this registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
II-4
(b) The undersigned registrant hereby further undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section
13(a) or section 15(d) of the Securities Exchange Act of 1934 (and, where
applicable, each filing of an employee benefit plan's annual report pursuant to
Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by
reference in the registration statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(c) Insofar as indemnification for liabilities arising under the Securities Act
of 1933 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
of 1933 and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person 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 of 1933 and will be governed by the final adjudication of such issue.
II-5
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Kennett Square, Commonwealth of Pennsylvania, on
February 25, 2002.
GENESIS HEALTH VENTURES, INC.
By: /s/ George V. Hager, Jr.
-----------------------------
George V. Hager, Jr.
Executive Vice President
and Chief Financial Officer
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints Michael R. Walker and George V.
Hager, Jr., and each of them, his true and lawful attorneys-in-fact and agents,
with full power of substitution and resubstitution, for him and in his name,
place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this registration statement, and to
file the same, with all exhibits thereto, and other documentation in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying all that said attorneys-in-fact and agents, or their
substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons, in the
capacities indicated, as of February 22, 2002.
SIGNATURE TITLE(S)
------------ ----------
/s/ Michael R. Walker Chairman, Chief Executive Officer
------------------------------------ (Principal Executive Officer) and Director
Michael R. Walker
------------------------------------ Director
James H. Bloem
/s/ Edwin M. Crawford Director
------------------------------------
Edwin M. Crawford
Director
------------------------------------
James E. Dalton, Jr.
------------------------------------ Director
James D. Dondero
/s/ Robert H. Fish Director
------------------------------------
Robert H. Fish
/s/ Dr. Philip P. Gerbino Director
------------------------------------
Dr. Philip P. Gerbino
/s/ Joseph A. LaNasa, III Director
------------------------------------
Joseph A. LaNasa, III
/s/ George V. Hager, Jr. Chief Financial Officer
------------------------------------ (Principal Accounting Officer and
George V. Hager, Jr. Principal Financial Officer)
II-6
INDEX TO EXHIBITS
Exhibit No. Description of Exhibit
----------- ----------------------
4.1* Amended and Restated Articles of Incorporation of Genesis Health
Ventures, Inc.
4.2** Amended and Restated Bylaws of Genesis Health Ventures, Inc.
5.1 Opinion of Counsel
23.1 Consent of Independent Auditors
23.2 Consent of Counsel (included in Exhibit 5.1)
24.1 Power of Attorney (included on signature page to this
registration statement)
99.1 2001 Stock Incentive Plan
-------------
* Incorporated by reference to an exhibit to the Annual Report on Form 10-K
for the fiscal year ended September 30, 2001 and filed with the Securities
and Exchange Commission on December 28, 2001.
** Incorporated by reference to an exhibit to the Quarterly Report on Form
10-Q for the quarter period ended December 31, 2001 and filed with the
Securities and Exchange Commission on February 14, 2002.
II-7