FORM 8-A
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
Genesis Health Ventures, Inc.
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(Exact name of registrant as specified in its charter)
Pennsylvania 06-1132947
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(State of incorporation or organization) (I.R.S. Employer Identification No.)
101 East State Street, Kennett Square, Pennsylvania 19348
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(Address of principal executive offices) (Zip Code)
Securities to be registered to Section 12(b) of the Act:
Title of each class to be so registered Name of each exchange on which
each class is to be registered
None Not Applicable
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If this form relates to the registration of a class of securities
pursuant to Section 12(b) of the Exchange Act and is effective pursuant to
General Instruction A.(c), check the following box. [ ]
If this form relates to the registration of a class of securities
pursuant to Section 12(g) of the Exchange Act and is effective pursuant to
General Instruction A.(d),check the following box. [x]
Securities Act registration statement file number to which this form relates:
(if applicable)
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Securities to be registered pursuant to Section 12(g) of the Act:
Common Stock, $.02 par value per share
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(Title of class)
Warrants to purchase Common Stock, $.02 par value per share,
exercisable until October 2, 2002
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(Title of class)
Item 1. Description of Registrant's Securities to be Registered.
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Common Stock
Genesis Health Ventures, Inc., a Pennsylvania corporation (the
"Company") is authorized to issue 200,000,000 shares of Common Stock, $.02 par
value per share (the "Common Stock").
The holders of Common Stock are entitled to one vote per share on all
matters to be voted upon by shareholders. Subject to the relative rights,
limitations and preferences of the holders of any then outstanding preferred
stock, holders of Common Stock are entitled, among other things, (i) to share
ratably in dividends if, when and as declared by the board of directors out of
funds legally available therefor and (ii) in the event of liquidation,
dissolution or winding-up of the Company, to share ratably in the distribution
of assets legally available therefor, after payment of debts and expenses. The
holders of Common Stock do not have cumulative voting rights in the election of
directors and have no preemptive rights to subscribe for additional shares of
capital stock of the Company. The rights, preferences and privileges of holders
of Common Stock are subject to the terms of any series of preferred stock which
the Company may issue in the future.
Warrants
In connection with the financial restructuring of the Company,
pursuant to the Joint Plan of Reorganization, of the Company, The Multicare
Companies, Inc. and certain of their respective subsidiaries, dated as of June
5, 2001 (the "Plan"), the Company is issuing warrants which are exercisable to
purchase up to 4,559,475 shares of Common Stock, subject to adjustment (the
"Warrants"), to the holders of certain allowed claims of the Company (the
"Claims") in partial exchange for such Claims and in accordance with the Plan.
The Warrants are exercisable for a period commencing on October 2,
2001 (the "Effective Date") and ending at 5:00 p.m., New York time, on the first
anniversary of the Effective Date. The exercise price of each Warrant is $20.33
per share of Common Stock, subject to adjustment. The number of shares of Common
Stock which may be acquired upon exercise of each Warrant and the exercise price
are each subject to adjustment in certain circumstances, including but not
limited to, if the Company (a) declares or pays a dividend, (b) subdivides,
combines or reclassifies its Common Stock, (c) distributes to all holders of its
Common Stock evidences of its indebtedness, shares of another class of capital
stock, assets or rights to subscribe for shares of Common Stock, or (d) merges
or consolidates with another person.
Anti-Takeover Provisions
The Company is governed by the Pennsylvania Business Corporation Law
of 1988, as amended (the "BCL") which provides that the board of directors of a
corporation in discharging its duties, including its response to a potential
merger or takeover, may consider the effect of any action upon employees,
suppliers and customers of the corporation, communities in which offices or
other establishments of the corporation are located and all other pertinent
factors.
In addition, under the BCL, subject to certain exceptions, a
business combination between a Pennsylvania corporation and a person owning 20%
or more of such corporation's voting stock (an "interested person") may be
accomplished only if: (i) the business combination is approved by the
corporation's directors prior to the date on which such person acquired 20% or
more of such stock or if the board approved such person's acquisition of 20% or
more of such stock prior to such acquisition; (ii) the interested person owns
shares entitled to cast at least 80% of the votes all shareholders would be
entitled to cast in the election of directors, the business combination is
approved by the vote of shareholders entitled to cast a majority of votes that
all shareholders would be entitled to cast in an election of directors
(excluding shares held by the interested person), which vote may occur no
earlier than three months after the interested person acquired its 80%
ownership, and the consideration received by shareholders in the business
combination satisfies certain minimum conditions; (iii) the business combination
is approved by the affirmative vote of all outstanding shares of common stock;
(iv) the business combination is approved by the vote of shareholders entitled
to cast a majority of the votes that all shareholders would be entitled to cast
in the election of directors (excluding shares held by the interested person),
which vote may occur no earlier than five years after the interested person
became an interested person; or (v) the business combination that meets certain
minimum conditions is approved at a shareholder's meeting called for such
purpose no earlier than five years after the interested person became an
interested person. A corporation may exempt itself from this provision by an
amendment to its articles of incorporation that requires shareholder approval.
The Company's Amended and Restated Articles of Incorporation ("Articles") do not
provide an exemption from this provision. Pennsylvania has also adopted other
anti-takeover legislation from which the Company has elected to exempt itself in
the Articles.
The Articles contain certain provisions which may impact upon a
person's decision to implement a takeover of the Company, including the
following provisions: (i) a classified board of directors, with each director
having a three-year term; (ii) a provision providing that certain business
combinations involving the Company, unless approved by at least 75% of the board
of directors, shall require the affirmative vote of at least 80% of the voting
stock of the Company; (iii) a provision permitting the board of directors to
oppose a tender or other offer for the Company's securities in light of the
fairness of the price, the impact on the Company's constituents, the reputation
of the offeror, the value of the offered securities and any applicable legal or
regulatory issues; (iv) a provision requiring the affirmative vote of at least
80% of the Company's voting stock to amend its provisions relating to
anti-takeover measures, unless the amendment is approved by at least 75% of the
board; and (v) preferred stock with rights to be designated by the board of
directors.
The overall effect of the foregoing provisions may be to deter a
future tender offer. Shareholders might view such an offer to be in their best
interest should the offer include a substantial premium over the market price of
the Common Stock at that time. In addition, these provisions may have the effect
of assisting the Company's management to retain its position and place it in a
better position to resist changes that the shareholders may want to make if
dissatisfied with the conduct of the Company's business.
Limitations on Directors' Liabilities and Indemnification
As permitted by the BCL, the Company's 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. These
provisions offer persons who serve on the board of directors of the Company
protection against awards of monetary damages for negligence in the performance
of their duties.
The Company's Bylaws also provide that every person who is or was a
director or executive officer of the Company, or of any corporation which he
served as such at the request of the Company, shall be indemnified by the
Company to the fullest extent permitted by law against all expenses and
liabilities reasonably incurred by or imposed upon him, in connection with any
proceeding to which he may be made, or threatened to be made, a party, or in
which he may become involved by reason of his being or having been a director or
executive officer of the Company, or of such other corporation, whether or not
he is a director or executive officer of the Company or such other corporation
at the time the expenses or liabilities are incurred. No indemnification shall
be provided, however, with respect to: (i) 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 officer or director 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 the board of directors.
Item 2. Exhibits.
1. Amended and Restated Articles of Incorporation (Incorporated by
Reference from Exhibit T3A-5 of the Company's Form T-3 filed on September 18,
2001).
2. Amended and Restated Bylaws (Incorporated by Reference from Exhibit
T3B-2 of the Company's Form T-3 filed on September 18, 2001).
3. Specimen of Common Stock Certificate.
4. Form of Warrant Agreement.
SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange
Act of 1934, the registrant has duly caused this registration statement to be
signed on its behalf by the undersigned, thereto duly authorized.
Genesis Health Ventures
Date: October 2, 2001 By: /s/ James V. McKeon
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Name: James V. McKeon
Title: Senior Vice President and
Corporate Controller