As Filed with the Securities and Exchange Commission on October 28, 2002
Registration No. 333-_____
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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GENESIS HEALTH VENTURES, INC.
(Exact name of registrant as specified in its charter)
Pennsylvania 06-1132947
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(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.
401(k) Plan for Collective Bargaining Unit Employees
GENESIS HEALTH VENTURES, INC.
Union Retirement Savings Plan
(Full title of the Plans)
George V. Hager, Jr.
Executive Vice President and Chief Financial 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
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CALCULATION OF REGISTRATION FEE
==================================================================================================================
Proposed
Maximum Proposed Maximum Amount Of
Amount To Be Offering Price Aggregate Offering Registration
Title Of Securities To Be Registered Registered (1) Per Share (2) Price (2) Fee
--------------------------------------------- ------------------ ----------------- -------------------- --------------
Common Stock, par value $0.02, issuable
under the 401(k) Plan for Collective
Bargaining Unit Employees................ 3,000 $13.40 $ 40,200 $ 3.70
--------------------------------------------- ------------------ ----------------- -------------------- --------------
Common Stock, par value $0.02, issued under
the Union Retirement Savings Plan........ 7,000 $13.40 $ 93,800 $ 8.63
--------------------------------------------- ------------------ ----------------- -------------------- --------------
Total 10,000 $13.40 $134,000 $12.33
======================================================================================================================
(1) The number of shares being registered represents the number of
shares that may be acquired by (i) the 401(k) Plan for
Collective Bargaining Unit Employees in connection with a
participant's election to invest a portion of his or her
interest in such plan in a fund that invests in the Company's
common stock, par value $0.02 ("Common Stock"); and (ii) the
Union Retirement Savings Plan in connection with a
participant's election to invest a portion of his or her
interest in such plan in a fund that invests in Common Stock.
(2) Pursuant to Rule 457(h) of the Securities Act, based upon the
average of the bid and ask price of the registrant's common
stock reported on the Nasdaq National Market on October 24,
2002.
Pursuant to Rule 416(c) under the Securities Act of 1933, as
amended (the "Securities Act"), this registration statement
also covers an indeterminate amount of interests to be offered
or sold pursuant the 401(k) Plan for Collective Bargaining
Unit Employees and the Union Retirement Savings Plan.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.
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Genesis Health Ventures, Inc. (the "Company") is filing this
registration statement on Form S-8 (the "Registration Statement") in
connection with the Company's 401(k) Plan for Collective Bargaining
Unit Employees and the Company's Union Retirement Savings Plan.
The document(s) containing the information specified in Part I
of Form S-8 will be sent or given to participants in the Company's
401(k) Plan for Collective Bargaining Unit Employees and the Company's
Union Retirement Savings Plan as specified by Rule 428(b)(1)
promulgated by the Securities and Exchange Commission (the
"Commission") under the Securities Act.
Such documents are not being filed with the Commission, but
constitute (along with the documents incorporated by reference into
this Registration Statement pursuant to Item 3 of Part II hereof) a
prospectus that meets the requirements of Section 10(a) of the
Securities Act.
Item 2. Registration Information and Employee Plan Annual Information.
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The Company will furnish without charge to each participant in
the Company's 401(k) Plan for Collective Bargaining Unit Employees and
the Company's Union Retirement Savings Plan, upon the written or oral
request of such person, a copy of any or all of the documents (i)
incorporated by reference in Item 3 of Part II of this Registration
Statement, which are incorporated by reference into the prospectus for
each of the Company's 401(k) Plan for Collective Bargaining Unit
Employees and the Company's Union Retirement Savings Plan, and (ii) any
other documents required to be delivered pursuant to Rule 428(b)
promulgated by the Commission under the Securities Act. Requests should
be directed to James J. Wankmiller, Secretary, Genesis Health Ventures,
Inc., 101 East State Street, Kennett Square, PA 19348, telephone (610)
444-6350.
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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:
o Annual Report on Form 10-K for the year ended September 30,
2001;
o Quarterly Report on Form 10-Q for the quarter ended December
31, 2001;
o Quarterly Report on Form 10-Q for the quarter ended March 30,
2002;
o Quarterly Report on Form 10-Q for the quarter ended June 30,
2002;
o Current Report on Form 8-K filed on July 1, 2002;
o Current Report on Form 8-K filed on July 29, 2002;
o Current Report on Form 8-K filed on August 16, 2002;
o Current Report on Form 8-K filed on October 4, 2002; and
o the description of our common stock, par value $0.02 per
share, contained in our Form 8-A, 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 the 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 each of the
prospectuses for the Company's 401(k) Plan for Collective Bargaining Unit
Employees and the Company's Union Retirement Savings Plan (other than reports
furnished pursuant to Item 9 of Form 8-K) and to be part of this Registration
Statement and each of the prospectuses for the Company's 401(k) Plan for
Collective Bargaining unit Employees and the Company's Union Retirement Savings
Plan from the date of the filing of such documents. Any statement contained in
the documents incorporated, or deemed to be incorporated, by reference herein or
therein shall be deemed to be modified or superseded for purposes of this
Registration Statement and each of the prospectuses for the Company's 401(k)
Plan for Collective Bargaining Unit Employees and the Company's Union Retirement
Savings Plan to the extent that a statement contained herein or therein or in
any other subsequently filed document which also is, or is deemed to be,
incorporated by reference herein or therein modifies or supersedes such
statement. Any such statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this Registration
Statement and each of the prospectuses for the Company's 401(k) Plan for
Collective Bargaining Unit Employees and the Company's Union Retirement Savings
Plan.
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All information appearing in this Registration Statement and each of
the prospectuses for the Company's 401(k) Plan for Collective Bargaining Unit
Employees and the Company's Union Retirement Savings Plan is qualified in its
entirety by the detailed information, including financial statements, appearing
in the documents incorporated herein or therein by reference.
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 Pennsylvania corporation law, Genesis' bylaws provide
that a director will not be personally liable 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 Pennsylvania corporation
law, and the breach or failure to perform constitutes self-dealing, willful
misconduct or recklessness. These provisions of Genesis' 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.
Genesis' bylaws provide that Genesis must indemnify its directors and
officers to the fullest extent permitted by law against expenses reasonably
incurred by them in connection with any threatened, pending or completed action,
suit or proceeding to which they are or were a party, or are threatened to be
made a party, by reason of being or having been a director or officer of
Genesis, or serving or having served any other business enterprise or trust as a
director, officer, employee, general partner, agent or fiduciary at Genesis'
request. Genesis' bylaws also permit Genesis to indemnify any person in any
situation not covered by Genesis' bylaws to the extent permitted by applicable
law. However, under Genesis' bylaws, no indemnification will be provided to any
of Genesis' directors or officers (i) for liabilities arising under Section
16(b) of the Exchange Act; (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 such person by an insurance carrier and (iv) for amounts paid
in settlement of any action, suit, or proceeding without the written consent of
Genesis.
Sections 1741 through 1750 of Subchapter 17D of Pennsylvania
corporation law contain provisions for mandatory and discretionary
indemnification of a representative of the corporation, including, but not
limited to, its directors and officers. 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 (excluding derivative actions) to which any of
them is a party by reason of his or her being a representative 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.
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Section 1742 provides for indemnification in derivative actions except
in respect of any claim, issue or matter as to which an officer or director 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.
Under Section 1743, indemnification is mandatory to the extent that an
officer or director has been successful on the merits or otherwise in defense of
any action or proceeding referred to in Section 1741 or 1742 above if the
appropriate standards of conduct are met.
Section 1744 provides that, unless ordered by a court, any
indemnification under Section 1741 or 1742 will be made by the corporation only
as authorized in the specific case upon a determination that an officer or
director met the applicable standard of conduct set forth in those sections, and
such determination will be made by (i) the board of directors 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 or director
in defending any action or proceeding referred to in Subchapter 17D of
Pennsylvania corporation law may be paid by a 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 is ultimately determined
that he or she is not entitled to be indemnified by the corporation.
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
Pennsylvania corporation law will 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 its directors and officers against any liability incurred
by them in their capacity as such directors or officers, whether or not the
corporation would have the power to indemnify such person against that liability
under the provisions of Subchapter 17D of Pennsylvania corporation law.
Sections 1748 and 1749 extend the indemnification and advancement of
expenses provisions of Subchapter 17D 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 will, unless
otherwise provided when authorized or ratified, continue as to a person who has
ceased to be an officer or director of the corporation and will inure to the
benefit of the heirs and personal representative of such person.
Genesis provides insurance coverage to its directors and officers
for up to $50.0 million.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
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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 The registrant hereby undertakes that it will submit the 401(k)
Plan for Collective Bargaining Unit Employees and the Union
Retirement Savings Plan (and any amendments thereto) to the
Internal Revenue Service in a timely manner and will make all
changes required by the Internal Revenue Service in order to
qualify the 401(k) Plan for Collective Bargaining Unit Employees
and the Union Retirement Savings Plan.
23.1 Consent of Independent Auditors.
24.1 Power of Attorney (included on signature page of this registration
statement).
99.1 Genesis Health Ventures, Inc. 401(k) Plan for Collective
Bargaining Unit Employees, including the Adoption Agreement and
Basic Plan Document.
99.2 EGTRA Amendment to the Genesis Health Ventures, Inc. 401(k) Plan
for Collective Bargaining Unit Employees, including the Adoption
Agreement and Basic Plan Document.
99.3 Union Retirement Savings Plan.
99.4 Amendment No. 1 to Union Retirement Savings Plan.
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* 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 ended December 31, 2001.
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;
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(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.
(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.
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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
October 28, 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 Robert H. Fish 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 October 28, 2002.
SIGNATURE TITLE(S)
/s/ Robert H. Fish
--------------------------- Chief Executive Officer (Principal
Robert H. Fish Executive Officer) and
Director
/s/ Michael R. Walker
--------------------------- Chairman of the Board
Michael R. Walker
/s/ James H. Bloem
--------------------------- Director
James H. Bloem
--------------------------- Director
James E. Dalton, Jr.
/s/ James D. Dondero
--------------------------- Director
James D. Dondero
/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
George V. Hager, Jr. Accounting Officer and Principal
Financial Officer)
Pursuant to the requirements of the Securities Act of 1933, the
trustees (or other persons who administer the employee benefit plan) have 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 October 28, 2002.
GENESIS HEALTH VENTURES INC. 401(K) PLAN FOR
COLLECTIVE BARGAINING UNIT EMPLOYEES
By: Genesis Health Ventures, Inc. as administrator
By: /s/ George V. Hager, Jr.
Name: George V. Hager, Jr.
Title: CFO & Executive Vice President
GENESIS HEALTH VENTURES, INC. UNION RETIREMENT SAVINGS PLAN
By: Genesis Health Ventures, Inc. as administrator and primary employer
By: /s/ George V. Hager, Jr.
Name: George V. Hager, Jr.
Title: CFO & Executive Vice President
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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 The registrant hereby undertakes that it will submit the 401(k)
Plan for Collective Bargaining Unit Employees and the Union
Retirement Savings Plan (and any amendments thereto) to the
Internal Revenue Service in a timely manner and will make all
changes required by the Internal Revenue Service in order to
qualify the 401(k) Plan for Collective Bargaining Unit Employees
and the Union Retirement Savings Plan.
23.1 Consent of Independent Auditors.
24.1 Power of Attorney (included on signature page to this registration
statement).
99.1 Genesis Health Ventures, Inc. 401(k) Plan for Collective
Bargaining Unit Employees, including the Adoption Agreement and
Basic Plan Document.
99.2 EGTRA Amendment to the Genesis Health Ventures, Inc. 401(k) Plan
for Collective Bargaining Unit Employees, including the Adoption
Agreement and Basic Plan Document.
99.3 Union Retirement Savings Plan.
99.4 Amendment No. 1 to Union Retirement Savings 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 ended December 31, 2001.
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