<PAGE>
As filed with the Securities and Exchange Commission on October 5, 1995
Registration No. 33-
-----------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
Form S-8 -- Registration Statement Under The Securities Act of 1933
--------------------
HBO & COMPANY
(Exact name of registrant 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)
--------------------
CLINICOM INCORPORATED
NONEMPLOYEE DIRECTOR STOCK OPTION 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 9
-----
Page 1 of 18 Pages
<PAGE>
<TABLE>
<CAPTION>
Calculation of Registration Fee
- ----------------------------------------------------------------------------------------------------
Proposed maximum Proposed maximum
Title of securities Amount to be offering price aggregate offering Amount of
to be registered registered price per share price registration fee
- ----------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock $.05
par value and 18,500 18.76 (1) 347,060 (1) $119.67
Preferred Share ------------ ------------ ------------ -------------
Purchase Rights(2) shares
<FN>
(1) Estimated solely for calculating the amount of the registration fee,
pursuant to Rule 457(h) under the Securities Act of 1933, as amended. Since all
shares are presently subject to options, the offering price is based upon the
actual weighted average exercise price.
(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.
</TABLE>
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 18 Pages
<PAGE>
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 on Form 10-K for the fiscal year ended
December 31, 1994.
(b) All other reports filed with the Securities and Exchange Commission
(the "Commission") pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934, as amended (the "1934 Act"), since December 31,
1994.
(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.
Set forth below is a description of certain provisions of the
Certificate of Incorporation of the Company, the By-Laws, as amended (the
"By-Laws") of the Company and the General Corporation Law of the State of
Delaware, as such provisions relate to the indemnification of the directors and
officers of the Company. This description is intended only as a summary and is
qualified in its entirety by reference to the Certificate of Incorporation, the
By-Laws and the General Corporation Law of the State of Delaware.
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 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
Page 3 of 18 Pages
<PAGE>
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 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 case, 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.
Page 4 of 18 Pages
<PAGE>
Item 7. EXEMPTION FROM REGISTRATION CLAIMED.
Inapplicable.
Item 8. EXHIBITS.
Exhibit
Number Description
- ------ -----------
Included in Part II of the Registration Statement:
4 CliniCom Incorporated Nonemployee Director Stock Option 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 (included in signature page)
Item 9. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, as amended
(the "1933 Act"), each filing of the registrant's annual report
pursuant to Section 13(a) or Section 15(d) of the 1934 Act (and, where
applicable, each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the 1934 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 Commission such
indemnification is against public policy as expressed in the 1933 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 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.
Page 5 of 18 Pages
<PAGE>
(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 6 of 18 Pages
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Atlanta, State of Georgia, on the 4th day of October,
1995.
HBO & COMPANY
By:/s/ Charles W. McCall
------------------------------------------
Charles W. McCall
President and Chief Executive Officer
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
and agents, each with full power of substitution and resubstitution, for him and
in his name, place and stead, in any and all capacities, to sign any and all
amendments 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, granting unto said attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite or 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 each of said attorneys-in-fact and agents, or
his 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:
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Charles W. McCall Director, President and Chief Executive October 4, 1995
- -------------------------------- Officer (Principal Executive Officer)
Charles W. McCall
/s/ Jay P. Gilbertson Vice President - Finance, Chief Financial October 4, 1995
- -------------------------------- Officer, Treasurer and Assistant
Jay P. Gilbertson Secretary (Principal Financial Officer)
(Signatures continued)
</TABLE>
Page 7 of 18 Pages
<PAGE>
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Timothy S. Heyerdahl Vice President - Controller and Chief October 4, 1995
-------------------------------- Accounting Officer (Principal Accounting
Timothy S. Heyerdahl Officer)
/s/ Holcombe T. Green, Jr. Chairman of the Board of Directors October 4, 1995
- --------------------------------
Holcombe T. Green, Jr.
/s/ John P. Crecine Director October 4, 1995
- --------------------------------
John P. Crecine
/s/ Alfred C. Eckert III Director October 4, 1995
- --------------------------------
Alfred C. Eckert III
/s/ Alton F. Irby III Director October 4, 1995
- --------------------------------
Alton F. Irby III
/s/ Gerald E. Mayo Director October 4, 1995
- --------------------------------
Gerald E. Mayo
/s/ James V. Napier Director October 4, 1995
- --------------------------------
James V. Napier
/s/ Charles E. Thoele Director October 4, 1995
- --------------------------------
Charles E. Thoele
/s/ Donald C. Wegmiller Director October 4, 1995
- --------------------------------
Donald C. Wegmiller
</TABLE>
Page 8 of 18 Pages
<PAGE>
EXHIBIT INDEX
Exhibit Page
Number Description Number
- ------- ----------- ------
Included in Part II of the Registration Statement:
4 CliniCom Incorporated Nonemployee Director Stock Option Plan 10
5 Opinion of Counsel re: legality 16
15 Letter re: unaudited interim financial information 17
23(a) Consent of Counsel (contained in Exhibit 5) 16
23(b) Consent of independent public accountants 18
24 Power of Attorney (included in signature page) 7
Page 9 of 18 Pages
<PAGE>
EXHIBIT 4
CLINICOM INCORPORATED
NONEMPLOYEE DIRECTOR STOCK OPTION PLAN
I. PURPOSE
The CliniCom Incorporated Nonemployee Director Stock Option Plan (the
"Plan") provides for the grant of Stock Options to Nonemployee Directors of
CliniCom Incorporated (the "Company") in order to advance the interests of the
Company through the motivation, attraction and retention of its Nonemployee
Directors.
II. NON-INCENTIVE STOCK OPTIONS
The Stock Options granted under the Plan shall be nonstatutory stock
options ("NSOs") which are intended to be options that do not qualify as
"incentive stock options" under Section 422 of the Internal Revenue Code of
1986, as amended (the "Code").
III. ADMINISTRATION
3.1 COMMITTEE. The Plan shall be administered by the Board of
Directors of the Company (the "Board") or by a committee of two or more
directors (the "Committee"). The Committee or the Board, as the case may be,
shall have full authority to administer the Plan, including authority to
interpret and construe any provision of the Plan and any Stock Option granted
thereunder, and to adopt such rules and regulations for administering the Plan
as it may deem necessary in order to comply with the requirements of the Code or
in order to conform to any regulation or to any change in any law or regulation
applicable thereto. The Board of Directors may reserve to itself any of the
authority granted to the Committee as set forth herein, and it may perform and
discharge all of the functions and responsibilities of the Committee at any time
that a duly constituted Committee is not appointed and serving. All references
in this Plan to the "Committee" shall be deemed to refer to the Board of
Directors whenever the Board is discharging the powers and responsibilities of
the Committee.
3.2 ACTIONS OF COMMITTEE. All actions taken and all
interpretations and determinations made by the Committee in good faith
(including determinations of Fair Market Value) shall be final and binding upon
all Participants, the Company and all other interested persons. No member of
the Committee shall be personally liable for any action, determination or
interpretation made in good faith with respect to the Plan, and all members of
the Committee shall, in addition to their rights as directors, be fully
protected by the Company with respect to any such action, determination or
interpretation.
IV. DEFINITIONS
4.1 "STOCK OPTION." A Stock Option is the right granted under the
Plan to a Nonemployee Director to purchase, at such time or times and at such
price or prices ("Option Price") as are determined pursuant to the Plan, the
number of shares of Common Stock determined pursuant to the Plan.
Page 10 of 18 Pages
<PAGE>
4.2 "COMMON STOCK." A share of Common Stock means a share of
authorized but unissued or reacquired Common Stock (par value $.001 per share)
of the Company.
4.3 "FAIR MARKET VALUE." If the Common Stock is not traded
publicly, the Fair Market Value of a share of Common Stock on any date shall be
determined, in good faith, by the Board or the Committee after such consultation
with outside legal, accounting and other experts as the Board or the Committee
may deem advisable, and the Board or the Committee shall maintain a written
record of its method of determining such value. If the Common Stock is traded
publicly, the Fair Market Value of a share of Common Stock on any date shall be
the average of the representative closing bid and asked prices, as quoted by the
National Association of Securities Dealers through NASDAQ (its automated system
for reporting quotes), for the date in question or, if the Common Stock is
listed on the NASDAQ National Market System or is listed on a national stock
exchange, the officially quoted closing price on NASDAQ or such exchange, as the
case may be, on the date in question.
4.4 "NONEMPLOYEE DIRECTOR". A Nonemployee Director is a director
of the Company who is not also an employee of the Company.
4.5 "PARTICIPANT". A Participant is a Nonemployee Director to whom
a Stock Option is granted.
V. OPTION GRANTS
5.1 NUMBER OF SHARES. Each Nonemployee Director who is a member of
the Board on November 12, 1992, the effective date of this Plan (the "Effective
Date"), shall be granted Stock Options to purchase 5,000 shares of Common Stock
(subject to adjustment pursuant to Section 6.2 hereof), effective as of such
date. Upon the initial election or appointment of a Nonemployee Director to the
Board, the Nonemployee Director shall be granted Stock Options to purchase 5,000
shares of Common Stock (subject to adjustment pursuant to Section 6.2 hereof)
effective as of the date such person is elected or appointed to the Board.
Thereafter, the Nonemployee Director shall be granted Stock Options to purchase
1,000 shares of Common Stock (subject to adjustment pursuant to Section 6.2
hereof) at the completion of each year of service as a director of the Company,
which year shall begin for the Nonemployee Directors who are members of the
Board on the Effective Date, upon their re-election to the Board at the
Company's annual meeting of stockholders in 1993, and which year shall begin for
the Nonemployee Directors appointed by the Board to fill vacancies or newly
created directorships, upon their re-election to the Board at the Company's next
annual meeting of stockholders.
5.2 PRICE. The purchase price per share of Common Stock for the
shares to be purchased pursuant to the exercise of any Stock Option shall be
100% of the Fair Market Value of a share of Common Stock on the date the Stock
Option is granted.
5.3 OTHER TERMS. Except for the limitations set forth in Sections
5.1 and 5.2, the terms and provisions of Stock Options shall be as determined
from time to time by the Committee, and each Stock Option issued may contain
terms and provisions different from other Stock Options granted to the same or
other Stock Option recipients. Each Stock Option shall be evidenced by a
written agreement ("Option Agreement") containing such terms and provisions as
the Committee may determine, subject to the provisions of the Plan.
VI. SHARES OF COMMON STOCK SUBJECT TO THE PLAN
6.1 MAXIMUM NUMBER. The maximum aggregate number of shares of
Common Stock that may be made subject to Stock Options shall be 50,000
authorized but unissued shares. If any shares of Common Stock subject to Stock
Options are not purchased or otherwise paid for before such Stock Options
expire, such shares may again be made subject to Stock Options.
Page 11 of 18 Pages
<PAGE>
6.2 CAPITAL CHANGES. In the event any changes are made to the
shares of Common Stock (whether by reason of merger, consolidation,
reorganization, recapitalization, stock dividend (in excess of ten percent (10%)
at any single time), stock split, combination of shares, exchange of shares,
change in corporate structure or otherwise), appropriate adjustments shall be
made in: (i) the number of shares of Common Stock theretofore made subject to
Stock Options, and in the purchase price of said shares; and (ii) the aggregate
number of shares which may be made subject to Stock Options. If any of the
foregoing adjustments shall result in a fractional share, the fraction shall be
disregarded, and the Company shall have no obligation to make any cash or other
payment with respect to such a fractional share.
VII. EXERCISE OF STOCK OPTIONS
7.1 TIME OF EXERCISE. Subject to the provisions of the Plan, the
Committee, in its discretion, shall determine the time when a Stock Option, or a
portion of a Stock Option, shall become exercisable, and the time when a Stock
Option, or a portion of a Stock Option, shall expire. Such time or times shall
be set forth in the Option Agreement evidencing such Stock Option. A Stock
Option shall expire, to the extent not exercised, no later than five years after
the date on which it was granted. The Committee may accelerate the vesting of
any Participant's Stock Option by giving written notice to the Participant.
Upon receipt of such notice, the Participant and the Company shall amend the
Option Agreement to reflect the new vesting schedule. The acceleration of the
exercise period of a Stock Option shall not affect the expiration date of that
Stock Option.
7.2 EXCHANGE OF OUTSTANDING STOCK. The Committee, in its sole
discretion, may permit a Participant to surrender to the Company shares of
Common Stock previously acquired by the Participant as part or full payment for
the exercise of a Stock Option. Such surrendered shares shall be valued at
their Fair Market Value on the date of exercise.
7.3 USE OF PROMISSORY NOTE. The Committee may, in its sole
discretion, impose terms and conditions, including conditions relating to the
manner and timing of payments, on the exercise of Stock Options. Such terms and
conditions may include, but are not limited to, permitting a Participant to
deliver to the Company his promissory note as full or partial payment for the
exercise of a Stock Option.
7.4 STOCK RESTRICTION AGREEMENT. The Committee may provide that
shares of Common Stock issuable upon the exercise of a Stock Option shall, under
certain conditions, be subject to restrictions whereby the Company has a right
of first refusal with respect to such shares or a right or obligation to
repurchase all or a portion of such shares, which restrictions may survive a
Participant's term as a director of the Company. The acceleration of time or
times at which a Stock Option becomes exercisable may be conditioned upon the
Participant's agreement to such restrictions.
7.5 TERMINATION OF DIRECTOR STATUS BEFORE EXERCISE. If a
Participant's term as a director of the Company shall terminate for any reason
other than the Participant's death or disability, any Stock Option then held by
the Participant, to the extent then exercisable under the applicable Option
Agreement(s), shall remain exercisable after the termination of his director
status for a period of three months (but in no event beyond five years from the
date of grant of the Stock Option). If the Participant's director status is
terminated because the Participant dies or is disabled within the meaning of
Section 22(e)(3) of the Code, any Stock Option then held by the Participant, to
the extent then exercisable under the applicable Option Agreement(s), shall
remain exercisable after the termination of his employment for a period of
twelve months (but in no event beyond five years from the date of grant of the
Stock Option). If the Stock Option is not exercised during the applicable
period, it shall be deemed to have been forfeited and of no further force or
effect.
7.6 DISPOSITION OF FORFEITED STOCK OPTIONS. Any shares of Common
Stock subject to Stock Options forfeited by a Participant shall not thereafter
be eligible for purchase by the Participant but may be made subject to Stock
Options granted to other Participants.
Page 12 of 18 Pages
<PAGE>
VIII. NO EFFECT UPON STOCKHOLDER RIGHTS
Nothing in this Plan shall interfere in any way with the right of the
stockholders of the Company to remove the Participant from the Board pursuant to
the Delaware General Corporation Law and the Company's Certificate of
Incorporation and Bylaws.
IX. NO RIGHTS AS A STOCKHOLDER
A Participant shall have no rights as a stockholder with respect to
any shares of Common Stock subject to a Stock Option. Except as provided in
Section 6.2, no adjustment shall be made in the number of shares of Common Stock
issued to a Participant, or in any other rights of the Participant upon exercise
of a Stock Option by reason of any dividend, distribution or other right granted
to stockholders for which the record date is prior to the date of exercise of
the Participant's Stock Option.
X. ASSIGNABILITY
No Stock Option granted under this Plan, nor any other rights acquired
by a Participant under this Plan, shall be assignable or transferable by a
Participant, other than by will or the laws of descent and distribution or
pursuant to a qualified domestic relations order as defined by the Code, Title I
of the Employee Retirement Income Security Act ("ERISA"), or the rules
thereunder. In the event of a Participant's death, the Stock Option may be
exercised by the Personal Representative of the Participant's estate or, if no
Personal Representative has been appointed, by the successor or successors in
interest determined under the Participant's will or under the applicable laws of
descent and distribution.
XI. REORGANIZATION/LIQUIDATION/CHANGE OF CONTROL
11.1 In the event of a change of control of the Company, the Board
of Directors of the Company shall have the power and discretion to prescribe the
terms and conditions for the exercise of, or modification of, the Stock Options
granted hereunder. By way of illustration, and not by way of limitation, the
Board may provide for the complete or partial acceleration of the dates of
exercise of the Stock Options, or may provide that such Stock Options will be
exchanged or converted into options to acquire securities of the surviving or
acquiring corporation, or may provide for payment or distribution in respect of
outstanding Stock Options (or the portion thereof that is currently exercisable)
in cancellation thereof. The Board of Directors may provide that Stock Options
or other rights granted hereunder must be exercised in connection with the
closing of such transaction, and that if not so exercised such Options will
expire. Any such determinations by the Board of Directors may be made generally
with respect to all Participants, or may be made on a case-by-case basis with
respect to particular Participants. Provided, however, that if the Board
determines that any or all outstanding Stock Options should be cancelled, the
Company shall be required to provide for a payment or distribution in respect of
the then exercisable portion of the Stock Options which are cancelled, equal to
the difference between the Option Price and the Fair Market Value of such Stock
Options on the date of cancellation thereof, which payment or distribution must
be provided to all Participants whose outstanding Stock Options are cancelled.
11.2 For the purposes of this Plan, a "change of control" shall be
deemed to have occurred if (a) any "person" or "group" (within the meaning of
Sections 13(d) and 14(d)(2) of the 1934 Act), other than a trustee or other
fiduciary holding securities under an employee benefit plan of the Company or
Marshall D. Miller, David J. Miller, Steven L. Miller, Susan D. Lyons, or Dorado
Investment Company, is or becomes the "beneficial owner" (as defined in Rule
13d-3 under the 1934 Act), directly or indirectly, of more than 33-1/3% of the
then outstanding voting stock of the Company; or (b) the stockholders of the
Company approve a merger or consolidation of the Company with any other
corporation, other than a merger or
Page 13 of 18 Pages
<PAGE>
consolidation which would result in the voting securities of the Company
outstanding immediately prior thereto continuing to represent (either by
remaining outstanding or by being converted into voting securities of the
surviving entity) at least 80% of the combined voting power of the voting
securities or the Company or such surviving entity outstanding immediately after
such merger or consolidation, or the stockholders approve a reorganization
(other than a reorganization under the United States Bankruptcy Code), or a plan
of complete liquidation or dissolution of the Company, or an agreement for the
sale or disposition by the Company of all or substantially all of the Company's
assets. A "change of control" shall not include any transaction undertaken for
the purposes of reincorporating the Company under the laws of another
jurisdiction, if such transaction does not materially affect the beneficial
ownership of the Company's capital stock.
XII. AMENDMENT
The Board may from time to time alter, amend, suspend or discontinue
the Plan, including, where applicable, any modifications or amendments as it
shall deem advisable in order to conform to any regulation or to any change in
any law or regulation applicable thereto; provided, however, and except as
provided in Article XI, that no such action shall adversely affect the rights
and obligations with respect to Stock Options at any time outstanding under the
Plan; and provided further that no such action shall, without the approval of
the stockholders of the Company, (i) materially increase the maximum number of
shares of Common Stock that may be made subject to Stock Options (unless
necessary to effect the adjustments required by Section 6.2), (ii) materially
increase the benefits accruing to Participants under the Plan, or (iii)
materially modify the requirements as to eligibility for participation in the
Plan. Subject to the foregoing, the provisions of Article V of the Plan which
set forth the number of shares of Common Stock for which Stock Options shall be
granted, the timing of Stock Option grants and the Stock Option exercise price
shall not be amended more than once every six (6) months other than to comport
with changes in the Code, ERISA, or the rules thereunder.
XIII. REGISTRATION OF OPTIONED SHARES
The Stock Options shall not be exercisable unless the purchase of such
optioned shares is pursuant to an applicable effective registration statement
under the Securities Act of 1933, as amended (the "Act"), or unless, in the
opinion of counsel to the Company, the proposed purchase of such optioned shares
would be exempt from the registration requirements of the Act and from the
registration or qualification requirements of applicable state securities laws.
XIV. BROKERAGE ARRANGEMENTS
The Committee, in its discretion, may enter into arrangements with one
or more banks, brokers or other financial institutions to facilitate the
disposition of shares acquired upon exercise of Stock Options including, without
limitation, arrangements for the simultaneous exercise of Stock Options and sale
of the shares acquired upon such exercise.
XV. NONEXCLUSIVITY OF THE PLAN
Neither the adoption of the Plan by the Board nor the submission of
the Plan to the stockholders of the Company for approval shall be construed as
creating any limitations on the power or authority of the Board to adopt such
other or additional compensation arrangements of whatever nature as the Board
may deem necessary or desirable or preclude or limit the continuation of any
other plan, practice or arrangement for the payment of compensation or fringe
benefits to Nonemployee Directors, which the Company now has lawfully put into
effect.
Page 14 of 18 Pages
<PAGE>
XVI. WITHHOLDING TAXES
The Company may take such steps as it may deem necessary or
appropriate for the withholding of any taxes which the Company is required by
any law or regulation or any governmental authority, whether federal, state or
local, domestic or foreign, to withhold in connection with any Stock Option
including, but not limited to, the withholding of all or any portion of any
payment or the withholding of issuance of Common Stock to be issued upon the
exercise of any Stock Option, until the Participant reimburses the Company for
the amount the Company is required to withhold with respect to such taxes, or
cancelling any portion of such payment or issuance in an amount sufficient to
reimburse itself for the amount it is required to so withhold.
XVII. EFFECTIVE DATE
This Plan was adopted by the Board of Directors and became effective
on November 12, 1992, and was approved by the Company's stockholders on
, .
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Page 15 of 18 Pages
<PAGE>
Exhibit 5
October 2, 1995
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 18,500 shares of Common
Stock, $.05 par value per share, of the Company (the "Shares"), to be issued by
the Company in accordance with the CliniCom Incorporated Nonemployee Director
Stock Option 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,
JONES, DAY, REAVIS & POGUE
Page 16 of 18 Pages
<PAGE>
EXHIBIT 15
ARTHUR ANDERSEN LLP
LETTER REGARDING UNAUDITED
INTERIM FINANCIAL INFORMATION
We are aware that HBO & Company has incorporated by reference in its Form S-8
Registration Statements relating to the CliniCom Incorporated 1985 Employee
Stock Option Plan and the CliniCom Incorporated Nonemployee Director Stock
Option Plan its Form 10-Q for the quarters ended March 31, 1995 and June 30,
1995, which include our reports dated April 19, 1995 and July 19, 1995,
respectively, covering the unaudited interim financial information contained
therein. Pursuant to Regulation C of the Securities Act of 1933 (the "Act"),
those reports are 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
September 29, 1995
Page 17 of 18
<PAGE>
EXHIBIT 23(B)
ARTHUR ANDERSEN LLP
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this Registration Statement of our report dated February 8, 1995
included in HBO & Company's Annual Report on Form 10-K for the year ended
December 31, 1994 and to all references to our firm included in this
Registration Statement.
/s/ Arthur Andersen LLP
Arthur Andersen LLP
Atlanta, Georgia
September 29, 1995
Page 18 of 18
