<PAGE>
As filed with the Securities and Exchange Commission on May 19, 1998
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)
<TABLE>
<S> <C> <C>
101 East State Street
Pennsylvania Kennett Square, Pennsylvania 19348 06-1132947
(State or other jurisdiction of (Address of Principal Executive Offices) (I.R.S. Employer
incorporation or organization) (Zip Code) Identification Number)
</TABLE>
GENESIS HEALTH VENTURES, INC.
AMENDED AND RESTATED EMPLOYEE
STOCK OPTION PLAN
Michael R. Walker,
Chairman and Chief Executive Officer
Genesis Health Ventures, Inc.
101 East State Street
Kennett Square, Pennsylvania 19348
(610) 444-6350
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Copies of Communications to:
Richard J. McMahon, Esquire
Blank Rome Comisky & McCauley LLP
One Logan Square
Philadelphia, Pennsylvania 19103
(215) 569-5554
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
=========================================================================================================================
Proposed Proposed
maximum maximum Amount of
Title of securities Amount to be offering price aggregate registration
to be registered registered (2) per share offering price fee
- -------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par value $.02 per share (1) 1,750,000 shares $ 27.09 (3) $ 47,407,500 (3) $ 13,986
=========================================================================================================================
</TABLE>
(1) Includes associated purchase rights.
(2) Plus such indeterminate number of shares as may be issued pursuant to
certain anti-dilution provisions contained in the Plan.
(3) Pursuant to Rule 457(h), based upon the average of the high and low sale
prices of Genesis Health Ventures, Inc. Common Stock, par value $.02 per
share, reported on the New York Stock Exchange on May 13, 1998.
===============================================================================
<PAGE>
PART I. INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.
The document(s) containing the information specified in Item 1 will be
sent or given to employees as specified in Rule 428(b)(1) and are not required
to be filed as part of this Registration Statement.
Item 2. Registrant Information and Employee Plan Annual Information.
The document(s) containing the information specified in Item 2 will be
sent or given to employees as specified in Rule 428(b)(1) and are not required
to be filed as part of this Registration Statement.
PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference.
The following documents filed with the Commission are incorporated herein
by reference:
(i) The Company's Annual Report on Form 10-K/A for the fiscal
year ended September 30, 1997;
(ii) All other reports filed pursuant to Section 13(a) or 15(d) of
the Securities Exchange Act of 1934, as amended, since the end of the fiscal
year covered by the Annual Report on Form 10-K/A referred to in (i) above;
(iii) The description of the Company's Common Stock is incorporated
by reference to the Company's Registration Statement on Form 8-A (File No.
1-11666) filed on April 16, 1992 under the Securities Exchange Act of 1934, as
amended; and
(iv) The description of the Company's Series A Junior
Participating Preferred Share Purchase Rights is incorporated by reference to
the Company's Registration Statement on Form 8-A (File No. 1-11666) filed on May
11, 1995 under the Securities Exchange Act of 1934, as amended.
All reports and other documents subsequently filed by the Company with the
Commission pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities
Exchange Act of 1934, as amended, after the date of this Registration Statement
but prior to the filing of a post-effective amendment which indicates that all
securities offered hereunder have been sold or which deregisters all securities
then remaining unsold hereunder, shall be deemed to be incorporated by reference
in this Registration Statement and to be a part hereof from the date of filing
of such documents.
Item 4. Description of Securities.
Not Applicable.
-2-
<PAGE>
Item 5. Interests of Named Experts and Counsel.
Certain legal matters with respect to the legality of the Common Stock
offered hereby will be passed upon for the Company by Blank Rome Comisky &
McCauley LLP, Philadelphia, Pennsylvania. Stephen Luongo, a partner in Blank
Rome Comisky & McCauley LLP, is the beneficial owner of 45,018 shares of Common
Stock, including shares relating to 27,000 options received under the Genesis
Health Ventures, Inc. 1992 Stock Option Plan for Non-Employee Directors (the
"Director Plan"), and will receive future option grants under the Director Plan.
Item 6. Indemnification of Directors and Officers.
Sections 1741 through 1750 of Subchapter D, Chapter 17, of the
Pennsylvania Business Corporation Law of 1988, as amended (the "BCL"), contain
provisions for mandatory and discretionary indemnification of a 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.
-3-
<PAGE>
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.
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 Company's Bylaws provide in general that the Company shall indemnify
its officers and directors to the fullest extent authorized by law.
Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
The following exhibits are filed as part of this Registration Statement
or, where so indicated, have been previously filed and are incorporated herein
by reference.
Exhibit No. Description
----------- ------------
5.1 Opinion of Counsel regarding legality
10.1 Amended and Restated Employee Stock Option Plan
23.1 Consents of KPMG Peat Marwick LLP
23.2 Consent of Counsel (included as part of Exhibit 5.1)
24.1 Power of Attorney (included on pages 7 and 8)
-4-
<PAGE>
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, as amended:
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the Registration Statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth in the
Registration Statement;
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in the Registration
Statement or any material change to such information in the Registration
Statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply
if the Registration Statement is on Form S-3 or S-8 and the information required
to be included in a post-effective amendment by those paragraphs is contained in
periodic reports filed by the registrant pursuant to section 13 or section 15(d)
of the Securities Exchange Act of 1934, as amended, that are incorporated by
reference in the Registration Statement.
(2) That for the purpose of determining any liability under the
Securities Act of 1933, as amended, 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 undertakes that, for purposes of
determining any liability under the Securities Act of 1933, as amended, each
filing of the registrant's annual report pursuant to section 13(a) or section
15(d) of the Securities Exchange Act of 1934, as amended (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, as amended) 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.
-5-
<PAGE>
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933, as amended, 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 Act and is, therefore, unenforceable. In the event that a claim
for indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
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 Act and will
be governed by the final adjudication of such issue.
-6-
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
the registrant certifies that it has reasonable grounds to believe that it meets
all 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 Kennett Square, Pennsylvania, on the date indicated.
Date: May 18, 1998 GENESIS HEALTH VENTURES, INC.
By: /s/ Michael R. Walker
-------------------------------------
Michael R. Walker
Chairman, Chief Executive Officer and
Director
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Michael R. Walker and Richard R. Howard and each
of them, his true and lawful attorneys-in-fact and agents, with full power of
substitution of resubstitution, for him and in his name, place and stead, in any
and all capacities, to sign any and all 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 and confirming 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, as amended,
this Registration Statement has been signed below by the following persons in
the capacities and on the dates indicated.
<TABLE>
<CAPTION>
Name Capacity Date
- ----------------------------------------- ---------------------------- ------------
<S> <C> <C>
/s/ Michael R. Walker Chairman, Director and Chief May 18, 1998
- ------------------------------------------ Executive Officer
Michael R. Walker
/s/ Richard R. Howard President and Director May 18, 1998
- ------------------------------------------
Richard R. Howard
/s/ George V. Hager, Jr. Senior Vice President and Chief May 18, 1998
- ------------------------------------------ Financial Officer
George V. Hager, Jr.
/s/ James V. McKeon Vice President and Corporate May 18, 1998
- ------------------------------------------ Controller
James V. McKeon
</TABLE>
-7-
<PAGE>
<TABLE>
<CAPTION>
Name Capacity Date
- ----------------------------------------- ---------------------------- ------------
<S> <C> <C>
Director
- ------------------------------------------
Allen R. Freedman
/s/ Roger C. Lipitz Director May 18, 1998
- ------------------------------------------
Roger C. Lipitz
Director
- ------------------------------------------
Alan B. Miller
/s/ Samuel H. Howard Director May 18, 1998
- ------------------------------------------
Samuel H. Howard
/s/ Stephen E. Luongo Director May 18, 1998
- ------------------------------------------
Stephen E. Luongo
</TABLE>
-8-
<PAGE>
EXHIBIT 5.1
[LETTERHEAD OF BLANK ROME COMISKY & McCAULEY LLP]
May 18, 1998
Genesis Health Ventures, Inc.
101 East State Street
Kennett Square, PA 19348
Gentlemen:
We have acted as counsel to Genesis Health Ventures, Inc. (the "Company") in
connection with the preparation of the Registration Statement on Form S-8 (the
"Registration Statement") to be filed by the Company with the Securities and
Exchange Commission under the Securities Act of 1933, as amended, relating to
the offer of up to 1,750,000 shares of common stock, par value $.02 per share
(the "Common Stock"), by the Company pursuant to the Company's Amended and
Restated Employee Stock Option Plan (the "Plan"). This opinion is furnished
pursuant to the requirement of Item 601(b)(5) of Regulation S-K.
Although as counsel to the Company we have advised the Company in connection
with a variety of matters referred to us by it, our services are limited to
specific matters so referred. Consequently, we may not have knowledge of many
transactions in which the Company has engaged or of its day-to-day operations.
In rendering this opinion, we have examined the following documents: (i) the
Company's Articles of Incorporation and Bylaws, as amended and restated since
the inception of the Company; (ii) the Company's Minute Books; (iii) the
Registration Statement; and (iv) a certification from the Company's transfer
agent. We have assumed and relied, as to questions of fact and mixed questions
of law and fact, on the truth, completeness, authenticity and due authorization
of all documents and records examined and the genuineness of all signatures.
We have not made any independent investigation in rendering this opinion other
than the document examination described. Our opinion is therefore qualified in
all respects by the scope of that document examination. We make no
representation as to the sufficiency of our investigation for your purposes.
This opinion is limited to the laws of the Commonwealth of Pennsylvania. In
rendering this opinion we have assumed (i) compliance with all other laws,
including federal laws and (ii) compliance with all Pennsylvania securities and
antitrust laws.
Based upon and subject to the foregoing, we are of the opinion that:
The shares of Common Stock of the Company which are being offered by the Company
pursuant to the Registration Statement, when sold in the manner and for the
consideration contemplated by the Registration Statement, will be legally
issued, fully paid and non-assessable.
<PAGE>
Genesis Health Ventures, Inc.
May 18, 1998
Page 2
This opinion is given as of the date hereof. We assume no obligation to update
or supplement this opinion to reflect any facts or circumstances which may
hereafter come to our attention or any changes in laws which may hereafter
occur.
This opinion is strictly limited to the matters stated herein and no other or
more extensive opinion is intended, implied or to be inferred beyond the matters
expressly stated herein.
We consent to the filing of this opinion as an exhibit to the Registration
Statement and to the reference to us under "Item 5. Interests of Named Experts
and Counsel" in the Registration Statement.
Sincerely,
BLANK ROME COMISKY & McCAULEY LLP
<PAGE>
EXHIBIT 10.1
GENESIS HEALTH VENTURES, INC.
AMENDED AND RESTATED EMPLOYEE STOCK OPTION PLAN
1. Purpose of Plan
The purpose of this Amended and Restated Employee Stock Option
Plan (the "Plan") is to provide additional incentive to officers and key
employees of Genesis Health Ventures, Inc. (the "Company") and each present or
future parent or subsidiary corporation by encouraging them to invest in shares
of the Company's common stock, par value $.02 per share ("Common Stock"), and
thereby acquire a proprietary interest in the Company and an increased personal
interest in the Company's continued success and progress, to the mutual benefit
of directors, officers, employees and stockholders.
2. Aggregate Number of Shares
6,250,000 shares of the Company's Common Stock shall be the
aggregate number of shares which may be issued under this Plan. Notwithstanding
the foregoing, in the event of any change in the outstanding shares of the
Common Stock of the Company by reason of a stock dividend, stock split,
combination of shares, recapitalization, merger, consolidation, transfer of
assets, reorganization, conversion or what the Compensation Committee,
hereinafter referred to, deems in its sole discretion to be similar
circumstances, the aggregate number and kind of shares which may be issued under
this Plan shall be appropriately adjusted in a manner determined in the sole
discretion of the Compensation Committee. Reacquired shares of the Company's
Common Stock, as well as unissued shares, may be used for the purpose of this
Plan. Common Stock of the Company subject to options which have terminated
unexercised, either in whole or in part, shall be available for future options
granted under this Plan.
3. Class of Persons Eligible to Receive Options
All officers and key employees of, and consultants and
advisors to, the Company and any present or future Company parent or subsidiary
corporation are eligible to receive an option or options under this Plan,
provided that Incentive Stock Options (as described below) may be issued only to
employees. The individuals who shall, in fact, receive an option or options
shall be selected by the Compensation Committee, in its sole discretion, except
as otherwise specified in Section 4 hereof. The maximum number of options which
may be granted to any participant in any one year is options for 750,000 shares
of Common Stock subject to appropriate adjustment in the event of any change in
the outstanding shares of the Common Stock of the Company by reason of a stock
dividend, stock split, combination of shares, recapitalization, merger,
consolidation, transfer of assets, reorganization, conversion or what the
Compensation Committee deems in its sole discretion to be similar circumstances.
<PAGE>
4. Administration of Plan
(a) This Plan shall be administered by the Compensation
Committee (the "Committee") appointed by the Company's Board of Directors. The
Committee shall consist of a minimum of two and a maximum of seven members of
the Board of Directors, each of whom shall be a "disinterested person" as
defined in Rule 16b-3(d)(3) under the Securities Exchange Act of 1934, as
amended, of the Securities and Exchange Commission (the "SEC") or any future
corresponding rule. The Committee shall, in addition to its other authority and
subject to the provisions of this Plan, determine which individuals are eligible
to receive options under this Plan, which individuals shall in fact be granted
an option or options, whether the option shall be an incentive stock option or a
non-qualified stock option, the number of shares to be subject to each of the
options, the time or times at which the options shall be granted, the rate of
option exercisability, and, subject to Section 5 hereof, the price at which each
of the options is exercisable and the duration of the option.
(b) The Committee shall adopt such rules for the conduct of
its business and administration of this Plan as it considers desirable. A
majority of the members of the Committee shall constitute a quorum for all
purposes. The vote or written consent of a majority of the members of the
Committee on a particular matter shall constitute the act of the Committee on
such matter. The Committee shall have the right to construe the Plan and the
options issued pursuant to it, to correct defects and omissions and to reconcile
inconsistencies to the extent necessary to effectuate the Plan and the options
issued pursuant to it, and such action shall be final, binding and conclusive
upon all parties concerned. No member of the Committee or the Board of Directors
shall be liable for any act or omission (whether or not negligent) taken or
omitted in good faith, or for the exercise of an authority or discretion granted
in connection with the Plan to a Committee or the Board of Directors, or for the
acts or omissions of any other members of a Committee or the Board of Directors.
Subject to the numerical limitations on Committee membership set forth in
Section 4(a) hereof, the Board of Directors may at any time appoint additional
members of the Committee and may at any time remove any member of the Committee
with or without cause. Vacancies in the Committee, however caused, may be filled
by the Board of Directors, if it so desires.
5. Incentive Stock Options and Non-Qualified Stock Options
(a) Options issued pursuant to this Plan may be either
Incentive Stock Options granted pursuant to Section 5(b) hereof or Non-Qualified
Stock Options granted pursuant to Section 5(c) hereof, as determined by the
Committee. An "Incentive Stock Option" is an option which satisfies all of the
requirements of Section 422A of the Code and the regulations thereunder, and a
"Non-Qualified Stock Option" is an option which either does not satisfy all of
those requirements or the terms of the option provide that it will not be
treated as an Incentive Stock Option. The Committee may grant both an Incentive
Stock Option and a Non-Qualified Stock Option to the same person, or more than
one of each type of option to the same person. The option price for Incentive
Stock Options issued under this Plan shall be equal at least to the fair market
value (as defined below) of the Company's Common Stock on the date of the grant
of the option. The option price for Non-Qualified Stock Options issued under
this Plan shall be at least equal to the fair market value of the Common Stock
on the date of the grant of the option except that the minimum option price may
be equal to or greater than 85% of the fair market value of the Company's Common
Stock as of the date of the grant of the option if the discount is expressly
granted in lieu of a reasonable amount of salary or cash bonus. If an Incentive
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<PAGE>
Stock Option is granted to an individual who, at the time the option is granted,
owns shares of Common Stock equal to more than 10 percent of the total combined
voting power of the Common Stock of the Company or any subsidiary corporation of
the Company (a "10% Stockholder"), the option price shall not be less than 110
percent of the fair market value, as determined by the Committee in accordance
with its interpretation of the requirements of Section 422A of the Code and the
regulations thereunder, of the Company's Common Stock on the date of grant of
the option, and such option shall not be exercisable after the expiration of
five years from the date the option is granted. The fair market value of the
Company's Common Stock on any particular date shall mean the last reported sale
price of a share of the Company's Common Stock on any stock exchange on which
such stock is then listed or admitted to trading, or on the NASDAQ National
Market System, on such date, or if no sale took place on such day, the last such
date on which a sale took place, or if the Common Stock is not then quoted on
the NASDAQ National Market System, or listed or admitted to trading on any stock
exchange, the average of the bid and asked prices in the over-the-counter market
on such date, or if none of the foregoing, a price determined by the Committee.
(b) Subject to the authority of the Committee set forth in
Section 4(a) hereof, Incentive Stock Options issued pursuant to this Plan shall
be issued substantially in the form set forth in Appendix I hereof, which form
is hereby incorporated by reference and made a part hereof, and shall contain
substantially the terms and conditions set forth therein. Incentive Stock
Options shall not be exercisable after the expiration of ten years (five years
in the case of 10% Stockholders) from the date such options are granted, unless
terminated earlier under the terms of the option. At the time of the grant of an
Incentive Stock Option hereunder, the Committee may, in its discretion, modify
or amend any of the option terms contained in Appendix I for any particular
optionee, provided that the option as modified or amended satisfies the
requirements of Section 422A of the Code and the regulations thereunder. Each of
the options granted pursuant to this Section 5(b) is intended, if possible, to
be an "Incentive Stock Option" as that term is defined in Section 422A of the
Code and the regulations thereunder. In the event this Plan or any option
granted pursuant to this Section 5(b) is in any way inconsistent with the
applicable legal requirements of the Code or the regulations thereunder for an
Incentive Stock Option, this Plan and such option shall be deemed automatically
amended as of the date hereof to conform to such legal requirements, if such
conformity may be achieved by amendment.
(c) Subject to the authority of the Committee set forth in
Section 4(a) hereof, Non-Qualified Stock Options issued pursuant to this Plan
shall be issued substantially in the form set forth in Appendix II hereof, which
form is hereby incorporated by reference and made a part hereof, and shall
contain substantially the terms and conditions set forth therein. Non-Qualified
Stock Options shall expire ten years after the date they are granted, unless
terminated earlier under the option terms. At the time of granting a
Non-Qualified Stock Option hereunder, the Committee may, in its discretion,
modify or amend any of the option terms contained in Appendix II for any
particular optionee.
(d) Neither the Company nor any of its current or future
parent, subsidiaries or affiliates, nor their officers, directors, stockholders,
stock option plan committees, employees or agents shall have any liability to
any optionee in the event (i) an option granted pursuant to Section 5(b) hereof
does not qualify as an "Incentive Stock Option" as that term is used in Section
422A of the Code and the regulations thereunder; (ii) any optionee does not
obtain the tax treatment pertaining to an Incentive Stock Option; or (iii) any
option granted pursuant to Section 5(c) hereof is an "Incentive Stock Option."
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<PAGE>
6. Modification, Amendment, Suspension and Termination
Options shall not be granted pursuant to this Plan after
August 1, 2004. The Board of Directors reserves the right at any time, and from
time to time, to modify or amend this Plan in any way, or to suspend or
terminate it, effective as of such date, which date may be either before or
after the taking of such action, as may be specified by the Board of Directors;
provided, however, that such action shall not affect options granted under the
Plan prior to the actual date on which such action occurred. If a modification
or amendment of this Plan is required by the Code or the regulations thereunder
to be approved by the stockholders of the Company in order to permit the
granting of "Incentive Stock Options" (as that term is defined in Section 422A
of the Code and regulations thereunder) pursuant to the modified or amended
Plan, such modification or amendment shall also be approved by the stockholders
of the Company in such manner as is prescribed by the Code and the regulations
thereunder. If the Board of Directors voluntarily submits a proposed
modification, amendment, suspension or termination for stockholder approval,
such submission shall not require any future modifications, amendments (whether
or not relating to the same provision or subject matter), suspensions or
terminations to be similarly submitted for stockholder approval.
7. Effectiveness of Plan
This Plan shall become effective on the date of its adoption
by the Company's Board of Directors, subject however to approval by the holders
of the Company's Common Stock in the manner as prescribed in the Code and the
regulations thereunder. Options may be granted under this Plan prior to
obtaining stockholder approval, provided such options shall not be exercisable
until stockholder approval is obtained.
8. General Conditions
(a) Nothing contained in this Plan or any option granted
pursuant to this Plan shall confer upon any employee the right to continue in
the employ of the Company or any affiliated or subsidiary corporation or
interfere in any way with the rights of the Company or any affiliated or
subsidiary corporation to terminate his employment in any way.
(b) Corporate action constituting an offer of stock for sale
to any employee under the terms of the options to be granted hereunder shall be
deemed complete as of the date when the Committee authorizes the grant of the
option to the employee, regardless of when the option is actually delivered to
the employee or acknowledged or agreed to by him or her.
(c) Except as provided below, the terms "parent corporation"
and "subsidiary corporation" as used throughout this Plan, and the options
granted pursuant to this Plan, shall (except as otherwise provided in the option
form) have the meaning that is ascribed to that term when contained in Section
422A(b) of the Code and the regulations thereunder, and the Company shall be
deemed to be the grantor corporation for purposes of applying such meaning. The
term "subsidiary corporation" shall also include The Multicare Companies, Inc.
(provided that only Non-Qualified Stock Options may be granted to officers and
key employees of, and consultant and advisors to The Multicare Companies, Inc.).
(d) References in this Plan to the Code shall be deemed to
also refer to the corresponding provisions of any future United States revenue
law.
(e) The use of the masculine pronoun shall include the
feminine gender whenever appropriate.
-4-
<PAGE>
APPENDIX I
INCENTIVE STOCK OPTION
To:
----------------------------------------------------------------------
Name
----------------------------------------------------------------------
Address
----------------------------------------------------------------------
Date of Grant:
-----------------------------
You are hereby granted an option, effective as of the date hereof, to
purchase shares of common stock, par value $.02 per share ("Common
Stock"), of Genesis Health Ventures, Inc. (the "Company") at a price of $
per share pursuant to the Company's Amended and Restated Employee Stock Option
Plan (the "Plan").
Your option may first be exercised on and after , but not
before that time. [On and after and prior to , your
option may be exercised for up to % of the total number of shares subject to
the option minus the number of shares previously purchased by exercise of the
option (as adjusted for any change in the outstanding shares of the Common Stock
of the Company by reason of a stock dividend, stock split, combination of
shares, recapitalization, merger, consolidation, transfer of assets,
reorganization, conversion or what the Compensation Committee deems in its sole
discretion to be similar circumstances). Each succeeding year thereafter, your
option may be exercised for up to an additional % of the total number of
shares subject to the option minus the number of shares previously purchased by
exercise of the option (as adjusted for any change in the outstanding shares of
the Common Stock of the Company by reason of a stock dividend, stock split,
combination of shares, recapitalization, merger, consolidation, transfer of
assets, reorganization, conversion or what the Compensation Committee deems in
its sole discretion to be similar circumstances).](1) No fractional shares shall
be issued or delivered.
This option shall terminate and is not exercisable after [five/ten]
years from the date of its grant (the "Scheduled Termination Date"), except if
terminated earlier as hereafter provided.
You may exercise your option by giving written notice to the Secretary
of the Company on forms supplied by the Company at its then principal executive
office, accompanied by payment of the option price for the total number of
shares you specify that you wish to purchase. The payment may be in any of the
following forms: (a) cash, which may be evidenced by a check; (b) certificates
representing shares of Common Stock of the Company, which will be valued by the
Secretary of the Company at the fair market value per share of the Company's
Common Stock (as determined in accordance with the Plan) on the last trading day
immediately preceding the delivery of such certificates to the Company,
accompanied by an assignment of the stock to the Company; or (c) any combination
of cash and Common Stock of the Company valued as provided in clause (b). Any
assignment of stock shall be in a form and substance satisfactory to the
Secretary of the Company, including guarantees of signature(s) and payment of
all transfer taxes if the Secretary deems such guarantees necessary or
desirable.
- --------
(1) The bracketed portion of this paragraph should be included if the number
of shares which may be acquired upon exercise of the option will increase over
time.
<PAGE>
Your option will, to the extent not previously exercised by you,
terminate three months after the date on which your employment by the Company or
a Company subsidiary corporation is terminated other than by reason of (i)
disability as defined in Section 22(e)(3) of the Internal Revenue Code of 1986,
as amended (the "Code"), and the regulations thereunder, in which case your
option will terminate one year from the onset of disability, or death (but in no
event later than the Scheduled Termination Date), whether such termination be
voluntary or not. After the date your employment is terminated, as aforesaid,
you may exercise this option only for the number of shares which you had a right
to purchase and did not purchase on the date your employment terminated. If you
are employed by a Company subsidiary corporation, your employment shall be
deemed to have terminated on the date your employer ceases to be a Company
subsidiary corporation, unless you are on that date transferred to the Company
or another Company subsidiary corporation. Your employment shall not be deemed
to have terminated if you are transferred from the Company to a Company
subsidiary corporation, or vice versa, or from one Company subsidiary
corporation to another Company subsidiary corporation.
If you die while employed by the Company or a Company subsidiary
corporation, your legatee(s), distributee(s), executor or administrator, as the
case may be, may, at any time within one year after the date of your death (but
in no event later than the Scheduled Termination Date), exercise the option as
to any shares which you had a right to purchase and did not purchase during your
lifetime. If your employment by the Company or a Company subsidiary corporation
is terminated by reason of your becoming disabled (within the meaning of Section
22(e)(3) of the Code and the regulations thereunder), you or your legal guardian
or custodian may at any time within one year after the date of such termination
(but in no event later than the Scheduled Termination Date), exercise the option
as to any shares, which you have a right to purchase and did not purchase prior
to such termination. Your executor, administrator, guardian or custodian must
present proof of his authority satisfactory to the Company prior to being
allowed to exercise this option.
In the event of any change in the outstanding shares of the Common
Stock of the Company by reason of a stock dividend, stock split, combination of
shares, recapitalization, merger, consolidation, transfer of assets,
reorganization, conversion or what the Compensation Committee deems in its sole
discretion to be similar circumstances, the number and kind of shares subject to
this option and the option price of such shares shall be appropriately adjusted
in a manner to be determined in the sole discretion of the Compensation
Committee.
This option is not transferable otherwise than by will or the laws of
descent and distribution, and is exercisable during your lifetime only by you,
including, for this purpose, your legal guardian or custodian in the event of
disability. Until the option price has been paid in full pursuant to due
exercise of this option and the purchased shares are delivered to you, you do
not have any rights as a stockholder of the Company. The Company reserves the
right not to deliver to you the shares purchased by virtue of the exercise of
this option during any period of time in which the Company deems, in its sole
discretion, that such delivery would violate a federal, state, local or
securities exchange rule, regulation or law.
-2-
<PAGE>
Notwithstanding anything to the contrary contained herein, this option
is not exercisable until all the following events occur and during the following
periods of time:
(a) Until the Plan pursuant to which this option is granted is
approved by the stockholders of the Company in the manner prescribed by the Code
and the regulations thereunder;
(b) Until this option and the optioned shares are approved
and/or registered with such federal, state or local regulatory bodies or
agencies and securities exchanges as the Company may deem necessary or
desirable; or
(c) During any period of time in which the Company deems that
the exercisability of this option, the offer to sell the shares optioned
hereunder, or the sale hereof, may violate a federal, state, local or securities
exchange rule, regulation or law, or may cause the Company to be legally
obligated to issue or sell more shares than the Company is legally entitled to
issue or sell.
The following two paragraphs shall be applicable if, on the date of
exercise of this option, the Common Stock to be purchased pursuant to such
exercise has not been registered under the Securities Act of 1933, as amended,
and under applicable state securities laws, and shall continue to be applicable
for so long as such registration has not occurred:
(a) The optionee hereby agrees, warrants and represents that
he will acquire the Common Stock to be issued hereunder for his or her own
account for investment purposes only, and not with a view to, or in connection
with, any resale or other distribution of any of such shares, except as
hereafter permitted. The optionee further agrees that he or she will not at any
time make any offer, sale, transfer, pledge or other disposition of such Common
Stock to be issued hereunder without an effective registration statement under
the Securities Act of 1933, as amended, and under any applicable state
securities laws or an opinion of counsel acceptable to the Company to the effect
that the proposed transaction will be exempt from such registration. The
optionee shall execute such instruments, representations, acknowledgments and
agreements as the Company may, in its sole discretion, deem advisable to avoid
any violation of federal, state, local or securities exchange rule, regulation
or law.
(b) The certificates for Common Stock to be issued to the
optionee hereunder shall bear the following legend:
"The shares represented by this certificate have not been
registered under the Securities Act of 1933, as amended, or under
applicable state securities laws. The shares have been acquired for
investment and may not be offered, sold, transferred, pledged or
otherwise disposed of without an effective registration statement under
the Securities Act of 1933, as amended, and under any applicable state
securities laws or an opinion of counsel acceptable to the Company that
the proposed transaction will be exempt from such registration."
The foregoing legend shall be removed upon registration of the legended shares
under the Securities Act of 1933, as amended, and under any applicable state
laws or upon receipt of an opinion of counsel acceptable to the Company that
said registration is no longer required.
-3-
<PAGE>
The sole purpose of the agreements, warranties, representations and
legend set forth in the two immediately preceding paragraphs is to prevent
violations of the Securities Act of 1933, as amended, and any applicable state
securities laws.
It is the intention of the Company and you that this option shall, if
possible, be an "incentive stock option" as that term is used in Section 422A of
the Code and the regulations thereunder. In the event this option is in any way
inconsistent with the legal requirements of the Code or the regulations
thereunder for an "incentive stock option," this option shall be deemed
automatically amended as of the date hereof to conform to such legal
requirements, if such conformity may be achieved by amendment.
This option shall be subject to the terms of the Plan in effect on the
date this option is granted, which terms are hereby incorporated herein by
reference and made a part hereof. In the event of any conflict between the terms
of this option and the terms of the Plan in effect on the date of this option,
the terms of the Plan shall govern. This option constitutes the entire
understanding between the Company and you with respect to the subject matter
hereof and no amendment, modification or waiver of this option, in whole or in
part, shall be binding upon the Company unless in writing or signed by the
President of the Company. This option and the performances of the parties
hereunder shall be construed in accordance with and governed by the laws of the
Commonwealth of Pennsylvania.
Please sign the copy of this option and return it to the Company's
Secretary, thereby indicating your understanding of and agreement with its terms
and conditions.
GENESIS HEALTH VENTURES, INC.
By:
--------------------------------
I hereby acknowledge receipt of a copy of the foregoing stock option
and, having read it hereby signify my understanding of, and my agreement with,
its terms and conditions.
- ----------------------------------- ---------------------------------
(Signature) (Date)
-4-
<PAGE>
APPENDIX II
NON-QUALIFIED STOCK OPTION
To:
----------------------------------------------------------------------
Name
----------------------------------------------------------------------
Address
----------------------------------------------------------------------
Date of Grant:
----------------------------------
You are hereby granted an option, effective as of the date hereof, to
purchase shares of common stock, par value $.02 per share ("Common
Stock"), of Genesis Health Ventures, Inc. (the "Company") at a price of $
per share pursuant to the Company's Amended and Restated Employee Stock Option
Plan (the "Plan").
Your option may first be exercised on and after , but not
before that time. [On and after and prior to , your option
may be exercised for up to % of the total number of shares subject to the
option minus the number of shares previously purchased by exercise of the option
(as adjusted for any change in the outstanding shares of the Common Stock of the
Company by reason of a stock dividend, stock split, combination of shares,
recapitalization, merger, consolidation, transfer of assets, reorganization,
conversion or what the Compensation Committee deems in its sole discretion to be
similar circumstances). Each succeeding year thereafter, your option may be
exercised for up to an additional % of the total number of shares subject
to the option minus the number of shares previously purchased by exercise of the
option (as adjusted for any change in the outstanding shares of the Common Stock
of the Company by reason of a stock dividend, stock split, combination of
shares, recapitalization, merger, consolidation, transfer of assets,
reorganization, conversion or what the Compensation Committee deems in its sole
discretion to be similar circumstances).](1) No fractional shares shall be
issued or delivered.
This option shall terminate and is not exercisable after ten years from
the date of its grant (the "Scheduled Termination Date"), except if terminated
earlier as hereafter provided.
You may exercise your option by giving written notice to the Secretary
of the Company on forms supplied by the Company at its then principal executive
office, accompanied by payment of the option price for the total number of
shares you specify that you wish to purchase. The payment may be in any of the
following forms: (a) cash, which may be evidenced by a check; (b) certificates
representing Common Stock of the Company which will be valued by the Secretary
of the Company at the fair market value per share of the Company's Common Stock
(as determined in accordance with the Plan) on the last trading day immediately
preceding the delivery of such certificates to the Company, accompanied by an
assignment of the stock to the Company; or (c) any combination of cash and
Common Stock of the Company valued as provided in clause (b). Any assignment of
stock shall be in a form and substance satisfactory to the Secretary of the
Company, including guarantees of signature(s) and payment of all transfer taxes
if the Secretary deems such guarantees necessary or desirable.
- ----------
(1) The bracketed portion of this paragraph should be included if the number
of shares which may be acquired upon exercise of the option will increase over
time.
<PAGE>
Your option will, to the extent not previously exercised by you,
terminate three months after the date on which your employment by the Company or
a Company subsidiary corporation is terminated other than by reason of (i)
disability as defined in Section 22(e)(3) of the Internal Revenue Code of 1986,
as amended (the "Code"), and the regulations thereunder, in which case your
option will terminate one year from the onset of disability, or death (but in no
event later than the Scheduled Termination Date), whether such termination be
voluntary or not. After the date your service or employment is terminated, as
aforesaid, you may exercise this option only for the number of shares which you
had a right to purchase and did not purchase on the date you ceased to be a
director or your employment terminated. If you are employed by a Company
subsidiary corporation, your employment shall be deemed to have terminated on
the date your employer ceases to be a Company subsidiary corporation, unless you
are on that date transferred to the Company or another Company subsidiary
corporation. Your employment shall not be deemed to have terminated if you are
transferred from the Company to a Company subsidiary corporation, or vice versa,
or from one Company subsidiary corporation to another Company subsidiary
corporation.
If you die while employed by the Company or a Company subsidiary
corporation, your legatee(s), distributee(s), executor or administrator, as the
case may be, may, at any time within one year after the date of your death (but
in no event later than the Scheduled Termination Date), exercise the option as
to any shares which you had a right to purchase and did not purchase during your
lifetime. If your service with the Company or a Company parent or subsidiary
corporation is terminated by reason of your becoming disabled (within the
meaning of Section 22(e)(3) of the Code and the regulations thereunder), you or
your legal guardian or custodian may at any time within one year after the date
of such termination (but in no event later than the Scheduled Termination Date),
exercise the option as to any shares which you had a right to purchase and did
not purchase prior to such termination. Your executor, administrator, guardian
or custodian must present proof of his authority satisfactory to the Company
prior to being allowed to exercise this option.
In the event of any change in the outstanding shares of the Common
Stock of the Company by reason of a stock dividend, stock split, combination of
shares, recapitalization, merger, consolidation, transfer of assets,
reorganization, conversion or what the Compensation Committee deems in its sole
discretion to be similar circumstances, the number and kind of shares subject to
this option and the option price for such shares shall be appropriately adjusted
in a manner to be determined in the sole discretion of the Compensation
Committee.
This option is not transferable otherwise than by will or the laws of
descent and distribution, and is exercisable during your lifetime only by you,
including, for this purpose, tour legal guardian or custodian in the event of
disability. Until the option price has been paid in full pursuant to due
exercise of this option and the purchased shares are delivered to you, you do
not have any rights as a stockholder of the Company. The Company reserves the
right not to deliver to you the shares purchased by virtue of exercise of this
option during any period of time in which the Company deems, in its sole
discretion, that such delivery may not be consummated without violating a
federal, state, local or securities exchange rule, regulation or law.
-2-
<PAGE>
Notwithstanding anything to the contrary contained herein, this option
is not exercisable until all the following events occur and during the following
periods of time:
(a) Until the Plan pursuant to which this option is granted is
approved by the stockholders of the Company in the manner prescribed by the Code
and the regulations thereunder;
(b) Until this option and the optioned shares are approved
and/or registered with such federal, state and local regulatory bodies or
agencies and securities exchanges as the Company may deem necessary or
desirable; or
(c) During any period of time in which the Company deems that
the exercisability of this option, the offer to sell the shares optioned
hereunder, or the sale thereof, may violate a federal, state, local or
securities exchange rule, regulation or law, or may cause the Company to be
legally obligated to issue or sell more shares than the Company is legally
entitled to issue or sell.
The following two paragraphs shall be applicable if, on the date of
exercise of this option, the Common Stock to be purchased pursuant to such
exercise has not been registered under the Securities Act of 1933, as amended,
and under applicable state securities laws, and shall continue to be applicable
for so long as such registration has not occurred:
(a) The optionee hereby agrees, warrants and represents that
he will acquire the Common Stock to be issued hereunder for his own account for
investment purposes only, and not with a view to, or in connection with, any
resale or other distribution of any of such shares, except as hereafter
permitted. The optionee further agrees that he will not at any time make any
offer, sale, transfer, pledge or other disposition of such Common Stock to be
issued hereunder without an effective registration statement under the
Securities Act of 1933, as amended, and under any applicable state securities
laws or an opinion of counsel acceptable to the Company to the effect that the
proposed transaction will be exempt from such registration. The optionee shall
execute such instruments, representations, acknowledgments and agreements as the
Company may, in its sole discretion, deem advisable to avoid any violation of
federal, state, local or securities exchange rule, regulation or law.
(b) The certificates for Common Stock to be issued to the
optionee hereunder shall bear the following legend:
"The shares represented by this certificate have not been
registered under the Securities Act of 1933, as amended, or under
applicable state securities laws. The shares have been acquired for
investment and may not be offered, sold, transferred, pledged or
otherwise disposed of without an effective registration statement under
the Securities Act of 1933, as amended, and under any applicable state
securities laws or an opinion of counsel acceptable to the Company that
the proposed transaction will be exempt from such registration."
-3-
<PAGE>
The foregoing legend shall be removed upon registration of the legended shares
under the Securities Act of 1933, as amended, and under any applicable state
laws or upon receipt of an opinion of counsel acceptable to the Company that
said registration is no longer required.
The sole purpose of the agreements, warranties, representations and
legend set forth in the two immediately preceding paragraphs is to prevent
violations of the Securities Act of 1933, as amended, and any applicable state
securities laws.
It is the intention of the Company and you that this option shall not
be an "incentive stock option" as that term is used in Section 422A of the Code
and the regulations thereunder.
This option shall be subject to the terms of the Plan in effect on the
date this option is granted, which terms are hereby incorporated herein by
reference and made a part hereof. In the event of any conflict between the terms
of this option and the terms of the Plan in effect on the date of this option,
the terms of the Plan shall govern. This option constitutes the entire
understanding between the Company and you with respect to the subject matter
hereof and no amendment, modification or waiver of this option, in whole or in
part, shall be binding upon the Company unless in writing and signed by the
President of the Company. This option and the performances of the parties
hereunder shall be construed in accordance with and governed by the laws of the
Commonwealth of Pennsylvania.
Please sign the copy of this option and return it to the Company's
Secretary, thereby indicating your understanding of and agreement with its terms
and conditions.
GENESIS HEALTH VENTURES, INC.
By:
---------------------------------
I hereby acknowledge receipt of a copy of the foregoing stock option and, having
read it hereby signify my understanding of, and my agreement with, its terms and
conditions.
- -------------------------------------- -----------------------------
(Signature) (Date)
-4-
<PAGE>
Exhibit 23.1
Consent of Independent Auditors
The Board of Directors
Genesis Health Ventures, Inc.:
We consent to incorporation by reference in the registration statement on Form
S-8 for the Genesis Health Ventures, Inc. Amended and Restated Employee Stock
Option Plan of our reports, dated November 19, 1997, relating to the
consolidated balance sheets of Genesis Health Ventures, Inc. and subsidiaries as
of September 30, 1997 and 1996 and the related consolidated statements of
operations, shareholders' equity and cash flows for each of the years in the
three-year period ended September 30, 1997 and the related schedule, which
reports appear in the September 30, 1997 annual report on Form 10-K/A of
Genesis Health Ventures, Inc.
/s/ KPMG Peat Marwick LLP
Philadelphia, Pennsylvania
May 18, 1998
<PAGE>
Exhibit 23.1
Consent of Independent Auditors
The Board of Directors
Genesis Health Ventures, Inc.:
We hereby consent to the incorporation by reference in the registration
statement on Form S-8 for the Genesis Health Ventures, Inc. Amended and Restated
Employee Stock Option Plan of our report dated February 4, 1997, relating to the
consolidated financial statements of The Multicare Companies, Inc. and
subsidiaries as of December 31, 1996 and for each of the years in the three-year
period ended December 31, 1996 which report is incorporated by reference in
Amendment No. 1 to Genesis Health Ventures, Inc.'s current report on Form 8-K/A
dated October 10, 1997 filed with the Securities and Exchange Commission.
/s/ KPMG Peat Marwick LLP
Philadelphia, Pennsylvania
May 14, 1998
