-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, VZ29bq9r1G9jnXaPkL+t4HEag1XGFY7gbgA1PXn32hqRerKnnBpK/re9HiWsXcNZ hNPgaDMgjKotU+duF/aBww== 0000912057-96-012138.txt : 19960613 0000912057-96-012138.hdr.sgml : 19960613 ACCESSION NUMBER: 0000912057-96-012138 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 5 FILED AS OF DATE: 19960612 EFFECTIVENESS DATE: 19960701 SROS: NASD FILER: COMPANY DATA: COMPANY CONFORMED NAME: HBO & CO CENTRAL INDEX KEY: 0000310377 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-COMPUTER INTEGRATED SYSTEMS DESIGN [7373] IRS NUMBER: 370986839 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 333-05759 FILM NUMBER: 96579824 BUSINESS ADDRESS: STREET 1: 301 PERIMETER CTR N CITY: ATLANTA STATE: GA ZIP: 30346 BUSINESS PHONE: 4043936000 MAIL ADDRESS: STREET 1: 301 PERIMETER CTR N CITY: ATLANTA STATE: GA ZIP: 30346 S-8 1 FORM S-8 As filed with the Securities and Exchange Commission on June 12, 1996 Registration No. 333-__________ SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 Form S-8 -- Registration Statement Under The Securities Act of 1933 _____________ HBO & COMPANY (Exact name of issuer as specified in its charter) Delaware (State or other jurisdiction of incorporation or organization) 37-0986839 (I.R.S. Employer Identification No.) 301 Perimeter Center North Atlanta, Georgia 30346 (Address of principal executive offices) (zip code) __________ HBO & COMPANY 1990 EXECUTIVE INCENTIVE PLAN (Full title of the plan) __________ James A. Gilbert HBO & Company 301 Perimeter Center North Atlanta, Georgia 30346 (Name and address of agent for service) __________ (770) 393-6000 (Telephone number, including area code, of agent for service) __________ WITH COPY TO: Lisa A. Stater, Esq. Jones, Day, Reavis & Pogue 3500 One Peachtree Center 303 Peachtree Street, N.E. Atlanta, Georgia 30308-3242 (404) 521-3939 Exhibit Index Appears on Page 10 Page 1 of 14 Pages (continued)
Calculation of Registration Fee - -------------------------------------------------------------------------------- Title of Proposed maxi- Proposed maxi- Amount of securities to Amount to be mum offering mum aggregate registra- be registered registered price per share offering price tion fee - -------------------------------------------------------------------------------- Common Stock $.05 par value 1,208,000 $51.39114235(1) $ 62,080,500.00(1) $21,407.03 and Preferred Share Purchase Rights (2) Common Stock $.05 par value 1,792,000 $ 66.50(1) $119,168,000.00(1) $41,092.34 and Preferred Share Purchase Rights (2) TOTAL 3,000,000 $62,499.37 shares
(1) Estimated solely for calculating the amount of the registration fee, pursuant to Rule 457(h) under the Securities Act of 1933, as amended ("1933 Act"). With respect to 1,208,000 shares presently subject to options or awards, the offering price is based upon the actual weighted average exercise price and with respect to the remaining 1,792,000 shares, the offering price has been calculated on the basis of the last sale price of such securities on NASDAQ on June 10, 1996, a date within 5 business days prior to the filing of this Registration Statement. The foregoing calculations give effect to the two-for-one stock split effected in the form of a stock dividend paid June 10, 1996. (2) The Preferred Share Purchase Rights, which are attached to the shares of Common Stock being registered, will be issued for no additional consideration; no additional registration fee is required. EXPLANATORY NOTE In accordance with the Note to Part I of the Form S-8, the information specified by Part I has been omitted from this Registration Statement. Page 2 of 14 Pages PART II INFORMATION NOT REQUIRED IN PROSPECTUS Item 3. Incorporation of Documents by Reference The Company hereby incorporates by reference into this Registration Statement the following documents: (a) The Company's Annual Report Form 10-K for the fiscal year ended December 31, 1995. (b) All other reports filed with the Commission pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended ("1934 Act"), since December 31, 1995. (c) The description of the Common Stock and Preferred Share Purchase Rights contained in the Company's Registration Statement on Form 8-A filed with the Commission on August 19, 1981, as amended and February 19, 1991, as amended, respectively. All documents subsequently filed by the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the 1934 Act prior to the filing of a post-effective amendment which indicates that all securities have been sold or which deregisters all securities then remaining unsold shall be deemed to be incorporated by reference in this Registration Statement and to be a part hereof from the date of filing such documents. Item 4. Description of Securities Inapplicable Item 5. Interests of Named Experts and Counsel Inapplicable Item 6. Indemnification of Directors and Officers The Company's By-Laws (Article, IX, Section 1) provides that every person who was or is a party or is threatened to be made a party to or is involved in any action, suit, or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that he or a person of whom he is the legal representative is or was a director or officer of the corporation or is or was serving at the request of the corporation or for its benefit as a Page 3 of 14 Pages director or officer of another corporation, or as its representative in a partnership, joint venture, trust or other enterprise, shall be indemnified and held harmless to the fullest extent legally permissible under and pursuant to any procedure specified in the General Corporation Law of the State of Delaware, as amended from time to time, against all expenses, liabilities and losses (including attorneys' fees, judgments, fines and amounts paid or to be paid in settlement) reasonably incurred or suffered by him in connection therewith. Such right of indemnification shall be a contract right that may be enforced in any manner by such person. Such right of indemnification shall not be exclusive of any other right which such directors, officers or representatives may have or hereafter acquire and, without limiting the generality of such statement, they shall be entitled to their respective rights of indemnification under any bylaw, agreement, vote of stockholders, provision of law or otherwise, as well as their rights under this article. Article IX, Section 2 of the Company's By-Laws provides that the Board of Directors may cause the corporation to purchase and maintain insurance on behalf of any person who is or was a director or officer of the corporation, or is or was serving at the request of the corporation as a director or officer of another corporation, or as its representative in a partnership, joint venture, trust or other enterprise against any liability asserted against such person and incurred in any such capacity or arising out of such status, whether or not the corporation would have the power to indemnify such person. With respect to indemnification of officers and directors, Section 145 of the Delaware General Corporation Law provides that a corporation shall have power to indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative, or investigative (other than an action by or in the right of the corporation) by reason of the fact that he is or was a director, officer, employee, or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee, or agent of another corporation, partnership, joint venture, trust, or other enterprise, against expenses (including attorneys' fees), judgments, fines, and amounts paid in settlement actually and reasonably incurred by him in connection with such action, suit or proceeding if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful. Under this provision of the Delaware General Corporation Law, the termination of any action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the person did not act in good faith and in a manner which he reasonably believed to be in or not Page 4 of 14 Pages opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, had reasonable cause to believe that his conduct was unlawful. Furthermore, the Delaware General Corporation Law provides that a corporation shall have power to indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending, or completed action or suit by or in the right of the corporation to procure a judgment in its favor by reason of the fact that he is or was a director, officer, employee, or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee, or agent of another corporation, partnership, joint venture, trust, or other enterprise, against expenses (including attorneys' fees), actually and reasonably incurred by him in connection with the defense or settlement of such action or suit if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the corporation except that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable to the corporation unless and only to the extent that the Court of Chancery or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability, but in view of all circumstances of the cases, such person is fairly and reasonably entitled to indemnity for such expenses which the Court of Chancery or such other court shall deem proper. In addition, the General Corporation Law of Delaware was amended in 1986 to enable a Delaware corporation to include in its certificate of incorporation a provision eliminating or limiting a director's liability to the corporation or its stockholders for monetary damages for breaches of a director's fiduciary duty of care. The statutory amendment provides, however, that (a) liability for duty or loyalty, (b) acts or omissions not in good faith or involving intentional misconduct or knowing violations of law, (c) the unlawful purchase or redemption of stock or unlawful dividends or (d) the right of improper personal benefits could not be eliminated or limited in this manner. The Company's Certificate of Incorporation has been amended to contain provisions substantially similar to those contained in the amended Corporation Law of Delaware. Item 7. Exemption from Registration Claimed Inapplicable. Item 8. Exhibits Page 5 of 14 Pages Exhibit Number Description Included in Part II of the Registration Statement: 4 HBO & Company 1990 Executive Incentive Plan (previously filed (as Exhibit 4 to Form S-8, File No. 33-82962)) 4(a) Amendment to Plan 5 Opinion of Counsel re: legality 15 Letter re: unaudited interim financial information 23(a) Consent of Counsel (contained in Exhibit 5) 23(b) Consent of independent public accountants 24 Power of Attorney Item 9. Undertakings (a) The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the 1933 Act, each filing of the Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act 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. (b) Insofar as indemnification for liabilities arising under the 1933 Act 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 1933 Act and will Page 6 of 14 Pages be governed by the final adjudication of such issue. (c) The undersigned Registrant undertakes 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. (d) The undersigned Registrant undertakes that, for the purpose of determining any liability under the 1933 Act, 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. (e) The undersigned Registrant undertakes 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. Page 7 of 14 Pages SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe 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 Atlanta, State of Georgia, on the 10th day of June, 1996. HBO & COMPANY By:/s/ Charles W. McCall ----------------------------- Charles W. McCall President, Chief Executive Officer and Director POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints James A. Gilbert, and Jay P. Gilbertson, jointly and severally, each in his own capacity, his true and lawful attorneys-in-fact, with full power of substitution, for him and in his name, place and stead, in any and all capacities, to sign any amendments to this Registration Statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, hereby ratifying and confirming all that said attorneys-in-fact, 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 and on the date indicated: Signature Title Date --------- ----- ---- /s/ Charles W. McCall President, Chief Executive June 10, 1996 - ------------------------- Officer and Director Charles W. McCall (Principal Executive Officer) (signatures continued) Page 8 of 14 Pages /s/ Jay P. Gilbertson Sr. Vice President - Finance, June 10, 1996 - ------------------------- Assistant Secretary, Jay P. Gilbertson Treasurer, Chief Financial Officer and Chief Accounting Officer (Principal Financial and Accounting Officer) /s/ Holcombe T. Green, Jr. - -------------------------- Chairman of the Board June 10, 1996 Holcombe T. Green, Jr. /s/ Alfred C. Eckert III - -------------------------- Director June 10, 1996 Alfred C. Eckert III /s/ Philip A. Incarnati - -------------------------- Director June 10, 1996 Philip A. Incarnati /s/ Alton F. Irby III - -------------------------- Director June 10, 1996 Alton F. Irby III /s/ Gerald E. Mayo - -------------------------- Director June 10, 1996 Gerald E. Mayo /s/ James V. Napier - -------------------------- Director June 10, 1996 James V. Napier /s/ Charles E. Thoele - -------------------------- Director June 10, 1996 Charles E. Thoele /s/ Donald C. Wegmiller - -------------------------- Director June 10, 1996 Donald C. Wegmiller Page 9 of 14 Pages Exhibit Page Number Description Number - ------ ----------- ------ Included in Part II of the Registration Statement: 4 HBO & Company 1990 Executive Incentive Plan (previously filed (as Exhibit 4 to Form S-8, File No. 33-82962)) 4(a) Amendment to Plan 11 5 Opinion of Counsel re: legality 12 15 Letter re: unaudited interim financial information 13 23(a) Consent of Counsel (contained in Exhibit 5) 12 23(b) Consent of independent public accountants 14 24 Power of Attorney 8 Page 10 of 14 Pages EX-4.A 2 EXHIBIT 4A EXHIBIT 4(a) AMENDMENT TO THE HBO & COMPANY 1990 EXECUTIVE INCENTIVE PLAN THIS AMENDMENT is made to the HBO & Company 1990 Executive Incentive Plan (the "Plan"), to be effective as of the date this Amendment is approved by the stockholders of HBO & Company, a Delaware corporation. I. Section 5 of the Plan is amended to increase the number of shares of Stock not previously authorized for distribution that may be issued under the Plan from 3,357,452 to 6,357,452 and to increase the maximum number of shares available for distribution under the Plan from 12,000,000 to 15,000,000 and the minimum number of shares available for distribution under the Plan from 6,038,176 to 9,038,176. All other provisions of the Plan not inconsistent herewith are ratified and confirmed. Dated this 14th day of May , 1996. ------- -------- Page 11 of 14 Pages EX-5 3 EXHIBIT 5 [LETTERHEAD] Exhibit 5 June 11, 1996 HBO & Company 301 Perimeter Center North Atlanta, Georgia 30346 Gentlemen: We have acted as counsel to HBO & Company, a Delaware corporation (the ""Company''), in connection with the registration of 3,000,000 shares of Common Stock, $.05 par value per share, of the Company, which number of shares reflects a 2-for-1 stock dividend payable to holders of record on May 27, 1996 (the ""Shares''), to be issued by the Company in accordance with the HBO & Company 1990 Executive Incentive Plan pursuant to a Registration Statement on Form S-8 filed with the Securities and Exchange Commission (the ""Registration Statement'') to which this opinion appears as Exhibit 5. We have examined originals or certified or photostatic copies of such records of the Company, certificates of officers of the Company, and public officials and such other documents as we have deemed relevant or necessary as the basis of the opinion set forth below in this letter. In such examination, we have assumed the genuineness of all signatures, the conformity to original documents submitted as certified or photostatic copies, and the authenticity of originals of such latter documents. Based on the foregoing, we are of the following opinion: The Shares, when issued in the manner contemplated by the Registration Statement, will be validly issued, fully paid and nonassessable. We hereby consent to the filing of this opinion as Exhibit 5 to the Registration Statement. Sincerely, /s/ Jones, Day, Reavis & Pogue JONES, DAY, REAVIS & POGUE Page 12 of 14 Pages EX-15 4 EXHIBIT 15 [LETTERHEAD] EXHIBIT 15 LETTER REGARDING UNAUDITED INTERIM FINANCIAL INFORMATION We are aware that HBO & Company has incorporated by reference in its Form S-8 Registration Statement for the HBO & Company 1990 Executive Incentive Plan its Form 10-Q for the quarter ended March 31, 1996, which includes our report dated April 16, 1996 covering the unaudited interim financial information contained therein. Pursuant to Regulation C of the Securities Act of 1933 (the ""Act''), that report is not considered to be a part of the Registration Statements prepared or certified by our firm or reports prepared or certified by our firm within the meaning of Sections 7 and 11 of the Act. /s/ Arthur Andersen LLP ARTHUR ANDERSEN LLP Atlanta, Georgia June 10, 1996 Page 13 of 14 Pages EX-23.B 5 EXHIBIT 23(B) [LETTERHEAD] EXHIBIT 23(b) CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS As independent public accountants, we hereby consent to the incorporation by reference in this Registration Statement of our reports dated February 6, 1996 incorporated by reference or included in HBO & Company's Annual Report on Form 10-K for the year ended December 31, 1995 and to all references to our firm included in this Registration Statement. /s/ Arthur Andersen LLP ARTHUR ANDERSEN LLP Atlanta, Georgia June 10, 1996 Page 14 of 14 Pages -----END PRIVACY-ENHANCED MESSAGE-----