<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER 30, 1996
REGISTRATION NO. 333-
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------------
HBO & COMPANY
(Exact Name of Registrant as Specified in Its Charter)
<TABLE>
<S> <C>
DELAWARE 37-0986839
(State or Other Jurisdiction
of (I.R.S. Employer
Incorporation or Organization) Identification Number)
</TABLE>
------------------------------
301 PERIMETER CENTER NORTH
ATLANTA, GEORGIA 30346
(770) 393-6000
(Address, including zip code, and telephone number, including
area code, of registrant's principal executive offices)
------------------------------
CHARLES W. MCCALL
PRESIDENT AND
CHIEF EXECUTIVE OFFICER
HBO & COMPANY
301 PERIMETER CENTER NORTH
ATLANTA, GEORGIA 30346
(770) 393-6000
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
------------------------------
COPIES TO:
<TABLE>
<S> <C>
LISA A. STATER, ESQ. RICHARD M. HULL, ESQ.
Jones, Day, Reavis & Pogue Gardere & Wynne, L.L.P.
3500 One Peachtree Center 1601 Elm Street
303 Peachtree Street, N.E. Suite 3000
Atlanta, Georgia 30308-3242 Dallas, Texas 75201
(404) 521-3939 (214) 999-3000
</TABLE>
------------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
AS SOON AS PRACTICABLE AFTER THE EFFECTIVE DATE OF THIS REGISTRATION STATEMENT.
------------------------------
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. / /
If any of the securities being registered on this form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. /X/
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. / /
- ------------------------------
If this form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / /
- ------------------------------
If delivery of a prospectus is expected to be made pursuant to Rule 434,
please check the following box. / /
------------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TITLE OF EACH CLASS OF AMOUNT TO OFFERING PRICE AGGREGATE REGISTRATION
SECURITIES TO BE REGISTERED BE REGISTERED PER SHARE(1) OFFERING PRICE(1) FEE(2)
<S> <C> <C> <C> <C>
Common Stock, par value $.05 per share, and
Preferred Share Purchase Rights (3)....... 893,748 shares $56.50 $50,496,762 $15,302
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c) of the Securities Act of 1933, as amended (the
"Securities Act"), based upon the average of the reported high and low sales
prices of the Common Stock of the registrant on the Nasdaq Stock Market
National Market ("Nasdaq NM") on October 29, 1996 of $56.50 per share.
(2) The registration fee for the securities registered hereby, $15,302, is
calculated pursuant to Rule 457(c) under the Securities Act, as follows: one
thirty-third of one percent of the product of $56.50, the average of the
reported high and low sales prices of the Common Stock of the registrant on
the Nasdaq NM on October 29, 1996, multiplied by 893,748, the number of
shares of Common Stock to be registered.
(3) The Preferred Share Purchase Rights, which are attached to the shares of the
Common Stock of the registrant being registered, will be issued for no
additional consideration; no additional registration fee is required.
------------------------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE SECURITIES AND EXCHANGE COMMISSION, ACTING
PURSUANT TO SAID SECTION 8(A), MAY DETERMINE.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
EXPLANATORY NOTE
HBO & Company has submitted a request for waiver to the Office of Chief
Accountant of the Securities and Exchange Commission (the "Commission") of
inclusion of certain financial information in the Registration Statement
pursuant to the rules adopted by the Commission in Release Nos. 33-7355 and
34-37802. Accordingly, pending the response to such request, such financial
information has not been included herein.
ii
<PAGE>
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES
IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR
TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
<PAGE>
SUBJECT TO COMPLETION DATED OCTOBER 30, 1996
PROSPECTUS
893,748 SHARES
HBO & COMPANY
COMMON STOCK
------------------
This Prospectus relates to 893,748 shares (the "Shares") of common stock,
par value $.05 per share (the "Common Stock"), of HBO & Company, a Delaware
corporation ("HBOC" or the "Company"), to be offered for the account of certain
stockholders of the Company (the "Selling Stockholders"). The Shares being
offered hereby were issued to the Selling Stockholders on September 19, 1996 in
connection with the acquisition by HBOC of all of the issued and outstanding
shares of capital stock of Management Software, Inc., a Missouri corporation
("MSI").
The Common Stock is quoted on the Nasdaq Stock Market National Market
("Nasdaq NM") under the symbol "HBOC." The Company has been advised by the
Selling Stockholders that any or all of the Shares may be offered for sale and
sold by or on behalf of the Selling Stockholders from time to time in varying
amounts, including in block transactions, on the Nasdaq NM or the
over-the-counter market, in privately negotiated transactions, or otherwise, at
prices prevailing in such market or as may be negotiated at the time of the
sale. The Shares may be sold by the Selling Stockholders directly to one or more
purchasers, through agents designated from time to time or to or through
broker-dealers designated from time to time. In the event the Shares are
publicly offered through broker-dealers or agents, the Selling Stockholders may
enter into agreements with respect thereto. In order to comply with the
securities laws of certain states, sales of Shares offered hereby to the public
in such states may be made only through broker-dealers who are registered or
licensed in such states. To the extent required, the number of Shares to be
sold, the purchase price, the public offering price, if applicable, the name of
any such agent or broker-dealer, and any applicable commissions, discounts or
other items constituting compensation to such agents or broker-dealers with
respect to a particular offering will be set forth in a supplement or
supplements to this Prospectus (each, a "Prospectus Supplement"). As of the date
of this Prospectus, the Company is not aware of any selling arrangement between
any agent or broker-dealer and the Selling Stockholders. The aggregate proceeds
to the Selling Stockholders from the sale of the Shares so offered will be the
purchase price of the Shares sold, less the aggregate commissions, discounts and
other compensation, if any, paid by the Selling Stockholders to agents or
broker-dealers. See "Plan of Distribution." The Company will not receive any
proceeds directly from the sale of the Shares, but will bear certain expenses
thereof. See "Use of Proceeds" and "Plan of Distribution."
The Selling Stockholders and any broker-dealers or agents that participate
with the Selling Stockholders in the distribution of any of the Shares may be
deemed to be "underwriters" within the meaning of the Securities Act of 1933, as
amended (the "Securities Act"), and any discount or commission received by
<PAGE>
them and any profits on the resale of the Shares purchased by them may be deemed
to be underwriting commissions or discounts under the Securities Act.
------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION, NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF
THIS PROSPECTUS. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
------------------------
THE DATE OF THIS PROSPECTUS IS , 1996.
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
-----
<S> <C>
AVAILABLE INFORMATION AND SOURCES OF INFORMATION......................... 3
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE........................ 4
SUMMARY.................................................................. 5
USE OF PROCEEDS.......................................................... 7
SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT OF HBOC... 7
SELLING STOCKHOLDERS..................................................... 9
PLAN OF DISTRIBUTION..................................................... 9
CERTAIN LEGAL MATTERS.................................................... 10
EXPERTS.................................................................. 10
</TABLE>
2
<PAGE>
AVAILABLE INFORMATION AND SOURCES OF INFORMATION
HBOC is subject to the informational requirements of the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), and in accordance therewith files
reports, proxy statements and other information with the Securities and Exchange
Commission (the "Commission"). The reports, proxy statements and other
information filed by HBOC with the Commission can be inspected and copied at the
public reference facilities maintained by the Commission at Room 1024, 450 Fifth
Street, N.W., Washington, D.C. 20549, and at the Commission's Regional Offices
at 7 World Trade Center, 13th Floor, New York, New York 10048, and Citicorp
Center, 500 West Madison Street, Suite 1400, Chicago, Illinois 60661. Copies of
such material also may be obtained by mail from the Public Reference Section of
the Commission, Room 1024, 450 Fifth Street, N.W., Washington, D.C. 20549, at
prescribed rates. Additionally, the Commission maintains a Web site on the
Internet that contains reports, proxy and information statements and other
information regarding registrants that file electronically with the Commission
and that is located at http://www.sec.gov.
HBOC has filed with the Commission a Registration Statement on Form S-3
(including the exhibits and amendments thereto, the "Registration Statement")
under the Securities Act with respect to the Common Stock offered hereby. This
Prospectus does not contain all the information set forth in the Registration
Statement, certain portions of which are omitted in accordance with the rules
and regulations of the Commission and to which reference is hereby made.
Statements contained in this Prospectus as to the contents of any contract,
agreement or other document referred to are not necessarily complete. With
respect to each such contract, agreement or other document filed as an exhibit
to the Registration Statement or otherwise filed with the Commission, reference
is made to the exhibit or other filing for a more complete description of the
matter involved, and each such statement shall be deemed qualified in its
entirety by such reference. Copies of the Registration Statement together with
exhibits may be inspected at the office of the Commission in Washington, D.C.,
as indicated above, without charge and copies thereof may be obtained therefrom
upon payment of a prescribed fee.
All information contained in this Prospectus relating to the Selling
Stockholders and to the proposed or potential methods of distribution of Common
Stock being offered hereby has been supplied by the Selling Stockholders.
NO PERSONS HAVE BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATION, OTHER THAN THOSE CONTAINED IN THIS PROSPECTUS, AND, IF GIVEN OR
MADE, SUCH INFORMATION OR REPRESENTATION MUST NOT BE RELIED UPON AS HAVING BEEN
AUTHORIZED BY HBOC. THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO SELL, OR A
SOLICITATION OF AN OFFER TO BUY, ANY SECURITIES IN ANY JURISDICTION TO OR FROM
ANY PERSON TO WHOM IT IS NOT LAWFUL TO MAKE ANY SUCH OFFER OR SOLICITATION IN
SUCH JURISDICTION. NEITHER THE DELIVERY OF THIS PROSPECTUS NOR ANY DISTRIBUTION
OF SECURITIES MADE HEREUNDER SHALL UNDER ANY CIRCUMSTANCES CREATE AN IMPLICATION
THAT THERE HAS BEEN NO CHANGE IN THE AFFAIRS OF THE COMPANY SINCE THE DATE
HEREOF OR THAT THE INFORMATION HEREIN IS CORRECT AS OF ANY TIME SUBSEQUENT TO
THE DATE HEREOF.
3
<PAGE>
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The information in the following documents filed by HBOC with the Commission
(File No. 0-9900) pursuant to the Exchange Act is incorporated by reference in
this Prospectus:
1. Annual Report on Form 10-K for the fiscal year ended December 31, 1995
filed with the Commission on March 13, 1996;
2. Quarterly Reports on Form 10-Q for the quarter ended March 31, 1996
filed with the Commission on May 3, 1996 and for the quarter ended June 30, 1996
filed with the Commission on July 31, 1996;
3. Current Reports on Form 8-K: (i) dated and filed with the Commission on
June 23, 1995, as amended by Form 8-K(A), dated and filed with the Commission on
July 31, 1995, as amended by Form 8-K(A)(2), dated and filed with the Commission
on August 8, 1995, and as amended by Form 8-K(A)(3), dated and filed with the
Commission on June 5, 1996; (ii) dated and filed with the Commission on February
27, 1996; (iii) dated and filed with the Commission on May 21, 1996; (iv) dated
and filed with the Commission on August 27, 1996; (v) dated and filed with the
Commission on September 11, 1996; (vi) dated and filed with the Commission on
September 23, 1996; and (vii) dated and filed with the Commission on September
27, 1996;
4. Proxy Statement, dated as of April 3, 1996, filed in definitive form on
April 3, 1996 with the Commission with respect to the information required to be
included herein by Items 401 (management), 402 (executive compensation) and 404
(certain relationships and related transactions) of Regulation S-K promulgated
under the Securities Act and the Exchange Act; and
5. The description of Common Stock and Preferred Share Purchase Rights
contained in HBOC's Registration Statements on Form 8-A, filed with the
Commission on August 19, 1981, as amended, and February 19, 1991, as amended,
respectively.
All documents filed by HBOC pursuant to Sections 13(a), 13(c), 14 or 15(d)
of the Exchange Act after the date of this Prospectus and prior to the
termination of the offering of the Shares made hereby, shall be deemed to be
incorporated by reference in this Prospectus and to be a part hereof from the
date of filing of such documents. Any statement contained herein or in a
document incorporated or deemed to be incorporated by reference herein shall be
deemed to be modified or superseded for purposes of this Prospectus to the
extent that a statement contained herein or in any other subsequently filed
document which also is or was deemed to be incorporated by reference herein
modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Prospectus.
The information relating to HBOC contained in this Prospectus should be read
together with the information in the documents incorporated by reference.
THIS PROSPECTUS INCORPORATES DOCUMENTS BY REFERENCE WHICH ARE NOT PRESENTED
HEREIN OR DELIVERED HEREWITH. SUCH DOCUMENTS (OTHER THAN EXHIBITS TO SUCH
DOCUMENTS UNLESS SUCH EXHIBITS ARE SPECIFICALLY INCORPORATED BY REFERENCE) ARE
AVAILABLE WITHOUT CHARGE TO ANY PERSON, INCLUDING ANY BENEFICIAL OWNER, TO WHOM
THIS PROSPECTUS IS DELIVERED, UPON WRITTEN OR ORAL REQUEST. REQUESTS FOR SUCH
DOCUMENTS SHOULD BE DIRECTED TO HBO & COMPANY, 301 PERIMETER CENTER NORTH,
ATLANTA, GEORGIA 30346, ATTENTION: ANNE DAVENPORT, TELEPHONE: (800) 426-2411.
4
<PAGE>
SUMMARY
THE FOLLOWING SUMMARY SHOULD BE READ IN CONJUNCTION WITH, AND IS QUALIFIED
IN ITS ENTIRETY BY, THE MORE DETAILED INFORMATION AND CONSOLIDATED FINANCIAL
STATEMENTS, INCLUDING NOTES THERETO, AND PRO FORMA FINANCIAL INFORMATION
INCLUDED OR INCORPORATED BY REFERENCE IN THIS PROSPECTUS. ALL SHARE AND PER
SHARE DATA REGARDING THE COMMON STOCK IN THIS PROSPECTUS HAVE BEEN ADJUSTED TO
GIVE EFFECT TO A TWO-FOR-ONE STOCK SPLIT OF THE COMMON STOCK, EFFECTED IN THE
FORM OF A STOCK DIVIDEND PAID JUNE 10, 1996 TO STOCKHOLDERS OF RECORD ON MAY 27,
1996.
THE COMPANY
GENERAL
HBOC develops integrated patient care, clinical, financial and strategic
management software solutions for the healthcare industry. These open systems
applications facilitate the integration of clinical, financial and
administrative data from a wide range of customer systems and software. HBOC's
broad product portfolio can be implemented in a variety of combinations from
stand-alone to enterprisewide, enabling customers to add incremental
capabilities to existing information systems without making prior capital
investments obsolete. HBOC also provides a full complement of network
communications technologies, including wireless capabilities, as well as
outsourcing services that are offered under contract management agreements
whereby its staff manages and operates data centers, information systems,
organizations and business offices of healthcare institutions of various sizes
and structures.
HBOC markets its products and services to integrated health delivery
networks, hospitals, physicians' offices, home health providers, pharmacies,
reference laboratories, managed care providers and payers. At December 31, 1995,
HBOC had 2,700 customers of which 2,200 were United States community hospitals.
There were a total of 5,300 community hospitals in the United States at December
31, 1995. HBOC also sells its products and services internationally through
subsidiaries and/or distribution agreements in the United Kingdom, Canada,
Ireland, Saudi Arabia, Australia, Puerto Rico and New Zealand.
The address and telephone number of the principal executive offices of HBOC
are 301 Perimeter Center North, Atlanta, Georgia 30346, (770) 393-6000.
RECENT DEVELOPMENTS
CYCARE TRANSACTION. On August 21, 1996, the Company acquired all of the
outstanding capital stock of CyCare Systems, Inc. ("CyCare") in exchange for
approximately 4,400,000 shares of HBOC Common Stock. CyCare was a leading
provider of physician practice management software systems and electronic data
interchange services to the healthcare industry, including physicians, medical
group practices, faculty practice plans and medical enterprises.
MSI TRANSACTION. On September 19, 1996, the Company acquired all of the
issued and outstanding shares of capital stock of MSI from the Selling
Stockholders in exchange for the 893,748 Shares and cash in lieu of two
additional shares. MSI was a Missouri based provider of software solutions for
the homecare industry with approximately 600 customers. The Company has filed
the Registration Statement of which this Prospectus is a part in satisfaction of
its obligations to register such Shares for resale by the Selling Stockholders.
CONCURRENT OFFERING. On September 23, 1996, the Company, HBO & Company of
Georgia, a wholly owned subsidiary of the Company ("HBOC-GA"), and GMIS Inc.
("GMIS") entered into an Agreement of Merger (the "Merger Agreement") pursuant
to which GMIS is to be merged (the "Merger") with and into HBOC-GA and each
outstanding share of the common stock of GMIS is to be converted into .42 of a
share of Common Stock of HBOC, subject to certain adjustments. GMIS, a
Pennsylvania based company, is a developer of data quality and decision support
software for the payer marketplace. On October 18, 1996, the Company filed a
registration statement registering 4,932,624 shares of Common Stock, the maximum
number of shares to be issued in connection with the GMIS transaction. The
availability for sale of a substantial number of shares of HBOC Common Stock as
a result of such offering or otherwise could have a significant adverse effect
on the market price for the HBOC Common Stock.
5
<PAGE>
SUMMARY FINANCIAL DATA
The following summary historical financial data for HBOC should be read in
conjunction with the financial statements and notes thereto of HBOC,
incorporated by reference in this Prospectus.
HBO & COMPANY (1)
(FROM CONTINUING OPERATIONS)
(000 OMITTED EXCEPT FOR PER SHARE DATA)
<TABLE>
<CAPTION>
AT AND FOR THE SIX
AT AND FOR THE YEAR ENDED DECEMBER 31, MONTHS ENDED JUNE 30,
---------------------------------------------------------- ----------------------
1991(2) 1992 1993 1994 1995(3) 1995(4) 1996
---------- ---------- ---------- ---------- ---------- ---------- ----------
<S> <C> <C> <C> <C> <C> <C> <C>
Income Statement Data:
Revenue............................. $ 184,859 $ 228,988 $ 267,147 $ 357,436 $ 495,595 $ 209,099 $ 307,202
Operating Income.................... $ 6,560 $ 22,600 $ 31,883 $ 53,042 $ 95,722 $ 39,622 $ 69,763
Income Before Income Taxes.......... $ 5,129 $ 22,165 $ 31,495 $ 52,592 $ 94,423 $ 38,837 $ 70,821
Net Income.......................... $ 3,949 $ 14,629 $ 18,897 $ 31,555 $ 56,654 $ 23,302 $ 42,493
Primary Earnings Per Share.......... $ .06 $ .21 $ .27 $ .43 $ .72 $ .31 $ .51
Fully Diluted Earnings Per Share.... $ .06 $ .21 $ .26 $ .43 $ .72 $ .31 $ .50
Weighted Average Shares Outstanding
(Fully Diluted)................... 64,148 69,904 72,020 73,334 79,023 75,136 84,513
Cash Dividends Per Share............ $ .075 $ .075 $ .075 $ .08 $ .08 $ .04 $ .04
Balance Sheet Data:
Working Capital..................... $ 18,369 $ 23,969 $ 34,627 $ 11,160 $ 47,250 $ 11,779 $ 105,621
Total Assets........................ $ 114,490 $ 125,689 $ 156,182 $ 264,132 $ 535,134 $ 475,656 $ 574,950
Long-Term Debt...................... $ 20,752 $ -- $ -- $ 252 $ 582 $ 880 $ 340
Stockholders' Equity................ $ 25,706 $ 61,608 $ 83,182 $ 124,777 $ 318,730 $ 278,014 $ 371,735
</TABLE>
- ------------------------
(1) Does not give effect to the acquisitions of CyCare and MSI in pooling
transactions after June 30, 1996. All share and per share amounts have been
restated to reflect the 1996 two-for-one stock split effected in the form of
a stock dividend.
(2) 1991 Income Statement related items exclude the nonrecurring charge of
$10,883 and include the dilutive effect of stock options. The net loss was
($4,442) and fully diluted loss per share was ($.07) including the
nonrecurring charge.
(3) 1995 Income Statement related items exclude the nonrecurring charge of
$136,481 and include the dilutive effect of stock options. The net loss was
($25,235) and fully diluted loss per share was ($.33) including the
nonrecurring charge.
(4) June 1995 Income Statement related items exclude the nonrecurring charge of
$125,520 and include the dilutive effect of stock options. The net loss was
($52,010) and fully diluted loss per share was ($.73) including the
nonrecurring charge.
6
<PAGE>
USE OF PROCEEDS
The Company will not receive any proceeds directly from the sale of any of
the Shares offered hereby. A portion of the proceeds, at the option of the
Selling Stockholders, may be used to replace any of the 89,373 Shares which are
currently held in escrow pursuant to the terms of the Stock Purchase Agreement,
dated September 10, 1996, by and among HBOC, MSI and the Selling Stockholders
(the "Stock Purchase Agreement"). Under the terms of the Stock Purchase
Agreement, if HBOC is entitled to indemnification thereunder, it shall first
collect the amount of such indemnification from the funds in escrow. See
"Selling Stockholders."
SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT OF HBOC
The following table sets forth, as of September 30, 1996, unless otherwise
indicated, certain information with respect to all stockholders known to HBOC to
beneficially own more than five percent of the HBOC Common Stock, and
information with respect to HBOC Common Stock beneficially owned by each
director of HBOC, the Chief Executive Officer of HBOC, HBOC's other executive
officers who were the most highly compensated for the year ended December 31,
1995 and who continued to be employed by HBOC on September 30, 1996 and all
directors and executive officers of HBOC as a group. Except as otherwise
indicated, the stockholders listed in the table have sole voting and investment
powers with respect to HBOC Common Stock owned by them.
<TABLE>
<CAPTION>
AMOUNT AND NATURE OF
NAME AND ADDRESS OF BENEFICIAL OWNER BENEFICIAL OWNERSHIP PERCENT OF CLASS
- ------------------------------------------------------------------------- ---------------------- -------------------
<S> <C> <C>
American Express Financial Corporation................................... 5,035,614(1) 5.8%
IDS Tower 10
Minneapolis, Minnesota 55440
FMR Corp................................................................. 5,166,500(2) 6.0%
82 Devonshire Street
Boston, Massachusetts 02109
Putnam Investments, Inc.................................................. 5,196,136(3) 6.0%
One Post Office Square
Boston, Massachusetts 02109
Alfred C. Eckert III..................................................... 30,000(4) *
Holcombe T. Green, Jr.................................................... 1,238,860(5) 1.4%
Philip A. Incarnati...................................................... 35,000(4) *
Alton F. Irby III........................................................ 30,000(4) *
Gerald E. Mayo........................................................... 82,000(4) *
Charles W. McCall........................................................ 1,476,120(6) 1.7%
James V. Napier.......................................................... 67,088(7) *
Charles E. Thoele........................................................ 22,000(8) *
Donald C. Wegmiller...................................................... 15,000(4) *
Jay P. Gilbertson........................................................ 25,098(9) *
Albert J. Bergonzi....................................................... 50,372(10) *
Russell G. Overton....................................................... 10,198 *
All Directors and Executive Officers as a Group (12 persons)............. 3,081,736 3.6%
</TABLE>
- --------------------------
* Less than 1%
(1) According to the joint Schedule 13G as of December 31, 1995, of American
Express Company ("AEC") and American Express Financial Corporation ("AEFC"),
each of AEC and AEFC has shared voting
7
<PAGE>
power with respect to 2,123,814 shares and has shared dispositive power with
respect to 5,035,614 shares. Neither has sole voting nor sole dispositive
power with respect to such shares. AEC, the parent holding company of AEFC,
disclaims beneficial ownership of all such shares.
(2) According to the Schedule 13G as of December 31, 1995, of FMR Corp.
("FMR"), FMR has sole dispositive power with respect to all of such shares
and sole voting power with respect to 499,700 shares.
(3) According to the joint Schedule 13G as of December 31, 1995, of Putnam
Investments, Inc. ("PI"), its parent, Marsh & McLennan Companies, Inc. and
PI's subsidiaries, Putnam Investment Management, Inc. ("PIM") and The Putnam
Advisory Company, Inc. ("PAC"), PAC has shared voting and shared dispositive
power with respect to 4,419,136 of such shares and PI has shared voting and
shared dispositive power with respect to 535,300 and 5,196,136 of such
shares.
(4) Represents shares that may be acquired through the exercise of presently
exercisable stock options.
(5) Includes 440,000 shares that Mr. Green may acquire through the exercise of
presently exercisable stock options; 11,460 shares held in an IRA for the
benefit of Mr. Green; 663,300 shares held by a limited partnership of which
Mr. Green's wife is a general partner and with respect to which beneficial
ownership is disclaimed, except to the extent of his pecuniary interest
therein; and 124,100 shares held by HTG Corp. which is wholly owned by Mr.
Green.
(6) Includes 845,322 shares that may be acquired through the exercise of
presently exercisable stock options.
(7) Includes 600 shares owned by Mr. Napier's daughter and 40,000 shares that
may be acquired through the exercise of presently exercisable stock options.
(8) Includes 20,000 shares that may be acquired through the exercise of
presently exercisable stock options.
(9) Includes 16,000 shares that may be acquired through the exercise of
presently exercisable stock options.
(10) Includes 48,400 shares that may be acquired through the exercise of
presently exercisable stock options.
8
<PAGE>
SELLING STOCKHOLDERS
All of the 893,748 Shares offered hereby are being sold by the Selling
Stockholders. Such Shares were issued to the Selling Stockholders on September
19, 1996 in connection with the sale of all of the outstanding capital stock of
MSI to the Company. The Company has filed the Registration Statement in
satisfaction of its obligations to register the Shares for resale by the Selling
Stockholders. HBOC has agreed to indemnify the Selling Stockholders against
certain liabilities, including liabilities under the Securities Act. HBOC is
entitled to indemnification from the Selling Stockholders in the event of a
breach of certain representations, warranties and covenants set forth in the
Stock Purchase Agreement, and an aggregate of 89,373 Shares are presently held
in escrow pursuant to the Stock Purchase Agreement, which Shares may be used to
satisfy any indemnification obligations of the Selling Stockholders. The Selling
Stockholders may elect to sell such escrowed Shares and substitute the proceeds
of such sale in the escrow.
The following table sets forth certain information as of the date of this
Prospectus regarding the beneficial ownership of Common Stock by the Selling
Stockholders:
<TABLE>
<CAPTION>
BENEFICIAL OWNERSHIP PRIOR TO
THE OFFERING BENEFICIAL OWNERSHIP AFTER
------------------------------------- THE OFFERING(1)
NUMBER OF --------------------------------------------
SHARES OF PERCENTAGE OF NUMBER OF SHARES OF PERCENTAGE OF
NAME COMMON STOCK COMMON STOCK(2) SHARES OFFERED COMMON STOCK COMMON STOCK(2)
- ------------------------------ ---------------- ------------------- -------------- ----------------------- -------------------
<S> <C> <C> <C> <C> <C>
Jim Atteberry................. 288,979 * 288,979 0 --
Wayne W. Clements............. 288,979(3) * 288,979 0 --
Russell L. Still.............. 288,979(4) * 288,979 0 --
Stanley Bell.................. 8,937 * 8,937 0 --
Dan Cobb...................... 8,937 * 8,937 0 --
Charles Daniels............... 8,937 * 8,937 0 --
-
------- --- ------- ---
Total................... 893,748 1.0% 893,748 0 --
-
-
------- --- ------- ---
------- --- ------- ---
</TABLE>
- ------------------------
* Less than 1%.
(1) Assuming that each Selling Stockholder sells all of the Shares owned by such
person in this offering.
(2) Represents the number of Shares beneficially owned by each Selling
Stockholder, expressed as a percentage of all shares of Common Stock
actually outstanding as of September 30, 1996.
(3) Represents Shares held as tenants in common with Susan Clements.
(4) Represents Shares held as tenants in common with Sara S. Still.
Each of the Selling Stockholders is employed by HBOC-GA, a wholly owned
subsidiary of HBOC, and is subject to a Confidentiality and Noncompetition
Agreement in favor of HBOC-GA. Prior to the acquisition of MSI by HBOC, the
Selling Stockholders were stockholders, and Messrs. Atteberry, Clements and
Still were executive officers, of MSI.
In connection with the sale of the Shares to the Selling Stockholders, HBOC,
MSI and Messrs. Atteberry, Still and Clements entered into an agreement dated
September 10, 1996, pursuant to which HBOC agreed to grant to each of Messrs.
Atteberry, Still and Clements incentive stock options to purchase 15,000 shares
and to grant to each of Messrs. Bell, Cobb and Daniels incentive stock options
to purchase 6,000 shares. Each option will vest over a period of five (5) years
at twenty percent (20%) per year and is conditioned upon the option holder's
compliance with the terms of the Confidentiality and Noncompetition Agreement.
PLAN OF DISTRIBUTION
Any or all of the Shares offered by the Selling Stockholders hereby may be
offered for sale and sold by or on behalf of the Selling Stockholders from time
to time in varying amounts, including in block
9
<PAGE>
transactions, on the Nasdaq NM or the over-the-counter market, in privately
negotiated transactions, or otherwise, at prices prevailing in such market or as
may be negotiated at the time of the sale. The Shares may be sold by the Selling
Stockholders directly to one or more purchasers, through agents designated from
time to time or to or through broker-dealers designated from time to time. In
the event the Shares are publicly offered through broker-dealers or agents, the
Selling Stockholders may enter into agreements with respect thereto. Such
broker-dealers or agents may receive compensation in the form of discounts,
concessions or commissions from the Selling Stockholders and/or the purchasers
of the Shares. The Selling Stockholders and any such broker-dealers or agents
that participate in the distribution of the Shares may be deemed to be
underwriters within the meaning of the Securities Act, and any profit on the
sale of the Shares by them and any discounts, commissions or concessions
received by them may be deemed to be underwriting discounts and commissions
under the Securities Act. Any such broker-dealers and agents may engage in
transactions with, and perform services for, the Company. At the time a
particular offer of Shares is made by the Selling Stockholders, to the extent
required, a Prospectus Supplement will be distributed which will set forth the
aggregate number of Shares being offered, and the terms of the offering,
including the public offering price thereof, the name or names of any
broker-dealers or agents, any discounts, commissions and other items
constituting compensation from, and the resulting net proceeds to, the Selling
Stockholders.
In order to comply with the securities laws of certain states, sales of
Shares offered hereby to the public in such states may be made only through
broker-dealers who are registered or licensed in such states. Sales of Shares
offered hereby must also be made by the Selling Stockholders in compliance with
other applicable state securities laws and regulations.
The Company has been advised by the Selling Stockholders that they have not,
as of the date of this Prospectus, entered into any arrangement with an agent or
broker-dealer for the sale of the Shares owned by them being offered hereby.
CERTAIN LEGAL MATTERS
The validity of the Shares of HBOC Common Stock offered hereby will be
passed upon for HBOC by Jones, Day, Reavis & Pogue, Atlanta, Georgia.
EXPERTS
The audited financial statements and schedule of HBOC incorporated by
reference in this Prospectus and elsewhere in the Registration Statement of
which this Prospectus is a part, to the extent and for the periods indicated in
their reports, have been audited by Arthur Andersen LLP, independent public
accountants, and are included herein in reliance upon the authority of said firm
as experts in giving said reports.
With respect to the unaudited interim financial information of HBOC for the
quarters ended March 31, and June 30, 1995 and 1996, which are incorporated by
reference herein, Arthur Andersen LLP has applied limited procedures in
accordance with professional standards for a review of that information.
However, their separate report thereon states that they did not audit and they
do not express an opinion on that interim financial information. Accordingly,
the degree of reliance on their report on that information should be restricted
in light of the limited nature of the review procedure applied. In addition, the
accountants are not subject to the liability provisions of Section 11 of the
Securities Act, for their report on the unaudited interim financial information
because that report is not a "report" or a "part" of the Registration Statement
prepared or certified by the accountants within the meaning of Sections 7 and 11
of the Securities Act.
The financial statements of the Health Services Business of First Data
Health Systems Corporation at December 31, 1993 and 1994, and for each of the
three years in the period ended December 31, 1994 incorporated herein and in the
Registration Statement of which this Prospectus is a part have been audited by
Ernst & Young LLP, independent auditors, as set forth in their reports thereon,
and are incorporated herein in reliance upon such reports given upon the
authority of such firm as experts in accounting and auditing.
10
<PAGE>
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
Estimated expenses in connection with the issuance and distribution of the
securities to be registered, other than underwriting discounts and commissions,
are as follows:
<TABLE>
<CAPTION>
ITEM AMOUNT*
- ----------------------------------------------------------------------------------- ---------
<S> <C>
Registration fee................................................................... $ 15,302
Printing and engraving expenses.................................................... 10,000
Legal fees and expenses............................................................ 30,000
Accounting fees and expenses....................................................... 9,000
Miscellaneous expenses............................................................. 5,698
---------
Total.......................................................................... $ 70,000
---------
---------
</TABLE>
- ------------------------
* All amounts estimated except the Registration fee.
All such expenses will be borne by the Company.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
HBO & Company's (the "Company") By-Laws (Article IX, Section 1) provide 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 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 thereafter 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 such 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 the
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
II-1
<PAGE>
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 enables 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 as
a director. The statute provides, however, that liability for (a) breach of the
director's duty of 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) transactions from which a
director derived an improper personal benefit cannot be eliminated or limited in
this manner. The Company's Certificate of Incorporation contains such
provisions.
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
(a) Exhibits. The following exhibits are filed as part of this Registration
Statement.
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- ------- -----------------------------------------------------------------------
<S> <C>
4 Registration Rights Agreement, dated September 19, 1996, by and among
HBO & Company and the Shareholders (as defined therein).
5 Form of opinion of Jones, Day, Reavis & Pogue re legality.
23(a) Consent of Arthur Andersen LLP.
23(b) Consent of Ernst & Young LLP.
23(c) Consent of Jones, Day, Reavis & Pogue (included in Exhibit 5).
24 Power of Attorney (included in signature page).
</TABLE>
II-2
<PAGE>
The following exhibits filed with the Securities and Exchange Commission are
incorporated by reference as shown below.
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- ------ ----------------------------------------------------------------------
<C> <S>
ON MAY 13, 1981, AS PART OF ITS REGISTRATION STATEMENT ON FORM S-1
(REGISTRATION NUMBER 2-72275):
4 a) -- Specimen forms of certificates for Common Stock of Registrant.
ON FEBRUARY 15, 1991, AS PART OF ITS FORM S-8 (REGISTRATION NUMBER
2-75987):
4 -- HBO & Company 1981 Incentive Stock Option Plan, as amended.
ON FEBRUARY 22, 1991, AS PART OF ITS FORM 8-K:
4 -- HBO & Company Rights Agreement.
ON MARCH 26, 1991, AS PART OF ITS FORM S-8 (REGISTRATION NUMBER
2-92030):
4 -- HBO & Company Nonqualified Stock Option Plan, as amended.
ON MARCH 27, 1991, AS PART OF ITS FORM S-8 (REGISTRATION NUMBER
33-12051):
4 -- HBO & Company 1986 Employee Nonqualified Stock Option Plan, as
amended.
ON AUGUST 12, 1993, AS PART OF ITS FORM S-8 (REGISTRATION NUMBER
33-67300):
4 -- HBO & Company 1993 Stock Option Plan for Nonemployee Directors.
ON JUNE 14, 1994, AS PART OF ITS FORM 8-K REPORT DATED JUNE 13, 1994,
AS AMENDED BY FORM 8-KA DATED JUNE 30, 1994 AND FILED WITH THE
COMMISSION ON JULY 1, 1994:
2 -- Asset Purchase Agreement among IBAX Healthcare Systems, Baxter
Healthcare Corporation, International Business Machines Corporation,
Baxter Systems, Inc., HCPG Corporation, HBO & Company and HBO &
Company of Georgia dated May 31, 1994.
ON JULY 20, 1994, AS PART OF THE FORM S-4 REGISTRATION STATEMENT DATED
JULY 19, 1994, AS AMENDED BY AMENDMENT NO. 1 TO FORM S-4 DATED
AUGUST 10, 1994, AND FILED WITH THE COMMISSION ON AUGUST 11, 1994,
AND FURTHER AMENDED BY AMENDMENT NO. 2 TO FORM S-4 DATED AUGUST 10,
1994, AND FILED WITH THE COMMISSION AUGUST 11, 1994:
2 -- Agreement of Merger dated June 30, 1994, by and among HBO & Company,
HBO & Company of Georgia and Serving Software, Inc.
3 -- Amended Bylaws.
ON AUGUST 17, 1994, AS PART OF ITS FORM S-8 (REGISTRATION NUMBER
33-82962):
4 -- HBO & Company 1990 Executive Incentive Plan, as amended.
ON SEPTEMBER 15, 1994, AS PART OF ITS FORM S-8 (REGISTRATION NUMBER
33-84034):
4 -- 1986 Incentive Stock Option Plan of Serving Software, Inc.
ON MARCH 17, 1995, AS PART OF ITS FORM 10-K FOR THE YEAR ENDED
DECEMBER 31, 1994:
4 -- Chief Executive Officer Incentive Plan.
ON MAY 9, 1995, AS PART OF ITS FORM S-8 (REGISTRATION NUMBER
33-59173):
4 -- HBO & Company 1986 Nonqualified Stock Option Agreement, HBO & Company
1991 Nonqualified Stock Option Agreement 1 and HBO & Company 1991
Nonqualified Stock Option Agreement 2.
ON JUNE 23, 1995, AS PART OF ITS FORM 8-K DATED JUNE 23, 1995, AS
AMENDED BY FORM 8-KA DATED JULY 31, 1995, AND FILED WITH THE
COMMISSION ON JULY 31, 1995, AS FURTHER AMENDED BY FORM 8-KA2 DATED
AUGUST 8, 1995 AND FILED WITH THE COMMISSION ON AUGUST 8, 1995:
2 -- Stock Purchase Agreement, dated as of May 16, 1995, among First Data
Corporation, FDC Health, Inc., First Data Health Systems
Corporation, HBO & Company, and HBO & Company of Georgia, as amended
by letter agreement dated June 17, 1995.
</TABLE>
II-3
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- ------ ----------------------------------------------------------------------
<C> <S>
ON AUGUST 17, 1995, AS PART OF ITS FORM S-4 REGISTRATION STATEMENT
DATED AUGUST 17, 1995, AS AMENDED BY AMENDMENT NO. 1 TO FORM S-4
DATED SEPTEMBER 1, 1995, AND FILED WITH THE COMMISSION ON SEPTEMBER
1, 1995:
2 -- Agreement of Merger dated July 14, 1995, by and among HBO & Company,
HBO & Company of Georgia and CliniCom Incorporated.
ON OCTOBER 5, 1995, AS PART OF ITS FORM S-8 (REGISTRATION NUMBER
33-63213):
4 -- 1985 Employee Stock Option Plan of CliniCom Incorporated.
ON MARCH 13, 1996, AS PART OF ITS FORM 10-K FOR THE YEAR ENDED
DECEMBER 31, 1995:
4 -- HBO & Company 1983 Employee Discount Stock Purchase Plan, as restated.
ON MAY 21, 1996, AS PART OF ITS FORM 8-K DATED MAY 21, 1996, AND FILED
WITH THE COMMISSION ON MAY 21, 1996:
3 i) -- Amended and Restated Certificate of Incorporation of Registrant.
ON OCTOBER 18, 1995, AS PART OF ITS FORM S-4 REGISTRATION STATEMENT AS
FILED WITH THE COMMISSION ON OCTOBER 18, 1996:
4 -- Agreement of Merger dated September 23, 1996, by and among HBO &
Company, HBO & Company of Georgia and GMIS Inc.
</TABLE>
(b) Financial Statement Schedules.
No financial statement schedules are required to be filed herewith.
ITEM 17. UNDERTAKINGS.
The undersigned Registrant hereby undertakes:
(1) 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;
(2) That, for the purpose of determining any liability under the
Securities Act of 1933 each such post-effective amendment shall be deemed to
be a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof;
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
Registration Statement shall be deemed to be a new Registration Statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the Registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the 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
II-4
<PAGE>
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.
II-5
<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-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Atlanta, in the State of Georgia, on the 29th day of
October, 1996.
HBO & COMPANY
By: _______/s/_CHARLES W. MCCALL______
Charles W. McCall
PRESIDENT AND CHIEF EXECUTIVE
OFFICER
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Charles W. McCall and Jay P. Gilbertson, jointly
and severally, 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 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 below by the following persons in the
capacities and on the dates indicated:
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------ -------------------------- -------------------
<S> <C> <C>
/s/ CHARLES W. MCCALL Director, President and
- ------------------------------ Chief Executive Officer October 29, 1996
(Charles W. McCall) (Principal Executive
Officer)
/s/ JAY P. GILBERTSON Senior Vice
- ------------------------------ President--Finance, October 29, 1996
(Jay P. Gilbertson) Chief Financial Officer,
Principal Accounting
Officer, Treasurer and
Assistant Secretary
(Principal Financial
Officer and Principal
Accounting Officer)
/s/ HOLCOMBE T. GREEN, JR.
- ------------------------------ Chairman of the Board of October 29, 1996
(Holcombe T. Green, Jr.) Directors
/s/ ALFRED C. ECKERT III
- ------------------------------ Director October 29, 1996
(Alfred C. Eckert III)
</TABLE>
II-6
<PAGE>
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------ -------------------------- -------------------
<S> <C> <C>
/s/ PHILIP A. INCARNATI
- ------------------------------ Director October 29, 1996
(Philip A. Incarnati)
/s/ ALTON F. IRBY III
- ------------------------------ Director October 29, 1996
(Alton F. Irby III)
/s/ GERALD E. MAYO
- ------------------------------ Director October 29, 1996
(Gerald E. Mayo)
/s/ JAMES V. NAPIER
- ------------------------------ Director October 29, 1996
(James V. Napier)
/s/ CHARLES E. THOELE
- ------------------------------ Director October 29, 1996
(Charles E. Thoele)
/s/ DONALD C. WEGMILLER
- ------------------------------ Director October 29, 1996
(Donald C. Wegmiller)
</TABLE>
II-7
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBITS PAGE
- --------- ---------
<S> <C> <C>
4 Registration Rights Agreement, dated September 19, 1996, by and among HBO & Company and the
Shareholders (as defined therein).
5 Form of opinion of Jones, Day, Reavis & Pogue re legality.
23(a) Consent of Arthur Andersen LLP.
23(b) Consent of Ernst & Young LLP.
23(c) Consent of Jones, Day, Reavis & Pogue (included in Exhibit 5).
24 Power of Attorney (included in signature page).
</TABLE>
<PAGE>
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement dated September 19, 1996 (the
"Agreement") by and among HBO & Company, a Delaware corporation ("Parent"), and
the Shareholders as defined in Section 2.11 hereof is an exhibit to and
incorporated by reference in that certain Stock Purchase Agreement (the "SPA")
of even date herewith by and among Parent, Management Software, Inc., a Missouri
Corporation ("MSI"), and the Shareholders. Capitalized terms used in this
Agreement and not otherwise defined shall have the meanings ascribed to them in
the SPA. Certain capitalized terms used herein are defined in Section 2.11 of
this Agreement.
1.1 DEMAND REGISTRATIONS.
(a) DEMAND REGISTRATIONS. With the exception of the anticipated procedure
set forth in the second sentence of this Section 1.1(a), at any time after the
date on which Parent shall have published combined results of operations of
Parent and MSI for not less than a 30 day period following the acquisition of
MSI, as required by Section 2.26 of the SPA (the "Commencement Date") and prior
to the termination of this Agreement, upon receipt of a written request (the
"DEMAND NOTICE"), given by one or more Shareholders that own an aggregate of 60%
or more of the Registrable Securities, to register Registrable Securities held
by such Shareholders, the Parent shall, as promptly as practicable after
receiving such Demand Notice, file a Registration Statement and shall include in
the Registration Statement the Registrable Securities requested to be registered
by the Shareholders. It is the current intention of the parties that, the first
sentence of this Section 1.1(a) notwithstanding, at the Closing (as defined in
the SPA), the Shareholders will submit to Parent a Demand Notice requesting that
all of the Registrable Securities be registered under the Securities Act and any
applicable State securities laws. In that event, and subject to the provisions
of Section 1.1(e), Parent agrees to file a Registration Statement covering the
Registrable Securities on or before November 1, 1996, and shall use its best
efforts to have such Registration Statement declared effective as soon as
<PAGE>
possible after the Commencement Date. A registration effected pursuant to this
Section 1.1(a) is referred to as a "Demand Registration."
(b) NUMBER OF DEMAND REGISTRATIONS. The Shareholders shall be entitled to
one (1) Demand Registration PROVIDED that if the Demand Registration is not
declared effective other than by reason of the actions of the Shareholders, then
the Shareholders shall be entitled to an additional Demand Registration in lieu
thereof.
(c) MINIMUM AMOUNT OF REGISTRABLE SECURITIES. The Parent shall not be
required to effect any Demand Registration unless the aggregate number of shares
of Registrable Securities requested to be registered by the Shareholders shall
equal at least 50% of the total number of shares of Registrable Securities
(adjusted to take account of any stock splits, combinations or other similar
events).
(d) FILING AND EFFECTIVENESS. Each Demand Registration shall be on Form
S-3 or other available form permitting registration of such securities for
resale by such Shareholders in the manner or manners designated by them (but NOT
including an underwritten offering). Subject to the provisions of the second
sentence of Section 1.1(a) and the obligations of the Parent set forth therein,
the Parent shall promptly use its best efforts to file the Demand Registration
and shall use its best efforts to cause the same to be declared effective by the
SEC (in each case, the "EFFECTIVENESS DATE").
Subject to the provisions of the second sentence of Section 1.1(a) and the
obligations of the Parent set forth therein, within ten days after receipt of
such Demand Notice, the Parent shall provide written notice (the "Registration
Notice") of such registration request to all other Shareholders and shall
include in such registration all Registrable Securities with respect to which
the Parent received written requests for inclusion therein within thirty (30)
days after the date of delivery of the Demand Notice.
Subject to the provisions of Section 1.1(e), the Parent hereby agrees to
comply with all necessary provisions of the federal securities laws in order to
keep such Registration Statement effective until the earlier of: (i) the date
upon which all Registrable Securities which are the subject of such Registration
Statement have been sold or (ii) the date which is 30 calendar days from its
Effectiveness Date; PROVIDED, HOWEVER, if the average closing price of Parent's
Common Stock on the NASDAQ Stock Market National Market for such 30 calendar day
period is less than $55 per share and Registrable Securities
2
<PAGE>
remain unsold at the end of such period, the Parent will, subject to the
provisions of Section 1.1(e), keep such Registration Statement effective
until the earlier of an additional 30 calendar days or the date upon which
all Registrable Securities which are the subject of such Registration
Statement have been sold.
(e) POSTPONEMENT OF REGISTRATION. Notwithstanding anything to the
contrary contained herein, the Parent may postpone for up to seventy-five (75)
days the filing or the effectiveness of a Registration Statement for a Demand
Registration that has been requested, or suspend transfers of Registrable
Securities pursuant to an effective Demand Registration Statement, in either
case if its Board of Directors reasonably believes the requested registration
might (i) affect or interfere with any proposal or plan by the Parent to engage
in any transaction contemplated by the Company (other than in the ordinary
course of business), or (ii) involve disclosure obligations which might not be
in the best interests of the Parent or its stockholders and where the failure to
disclose would result in a material omission, provided, however, that in the
case of a postponement or suspension under (ii) above the period of such
postponement or suspension shall be for up to fifteen (15) days and; provided
further that the period of any such postponement or suspension will be added to
the period specified under 1(d), which Parent will use its Best Efforts to
minimize;
(f) OTHER SHAREHOLDERS. The Shareholders understand that registration
rights similar to those contained in this Agreement may be extended in the
future to other holders of securities of the Parent. The Demand Registration
may include other securities of Parent that are held by persons who, by virtue
of agreements with Parent, are entitled to include their securities in a Demand
Registration effected pursuant to this Agreement; PROVIDED, HOWEVER, that any
such other registration rights shall not modify the obligations of Parent with
respect to the filing of the Demand Registration Statement as provided for
herein.
1.2 INCIDENTAL REGISTRATIONS.
(a) "PIGGY-BACK" REGISTRATIONS. If the Parent at any time after the
Commencement Date and prior to the termination of this Agreement proposes to
register its Common Stock under the Securities Act (other than a registration on
Form S-8, S-4 or any successor or similar forms) for a public offering for cash,
whether or not for its own account, it will, each such time, give prompt written
notice to all Shareholders of record of Registrable Securities of its intention
to do so and of such Shareholders' rights under this Section 1.2, at least 30
calendar days prior to the anticipated date of the initial filing of the
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registration statement relating to such registration. Upon the written request
of any such Shareholder made within 20 calendar days after the receipt of the
Parent's notice (which request shall specify the number of Registrable
Securities intended to be disposed of by such Shareholder), the Parent shall use
its best efforts to effect the registration under the Securities Act of all
Registrable Securities which the Parent has been so requested to register by the
Shareholders (subject to Section 1.2(b) hereof), to permit the disposition of
the Registrable Securities so to be registered, PROVIDED that: (i) if such
registration involves an underwritten offering, all Shareholders requesting
Registrable Securities to be included in the Parent's registration must sell
their Registrable Securities to the underwriters selected by the Parent or other
party entitled thereto on the same terms and conditions as have been agreed to
by Parent or such other party; (ii) if, at any time after giving written notice
of its intention to register its Common Stock pursuant to this Section 1.2 and
prior to the effective date of the registration statement filed in connection
with such registration, the Parent or other party on whose behalf such
registration statement has been filed shall determine for any reason not to
register such Common Stock, the Parent shall give written notice to all
Shareholders and, thereupon, shall be relieved of its obligation to register any
Registrable Securities in connection with such registration. A registration
effected pursuant to this Section 1.2(a) is referred to herein as an "INCIDENTAL
REGISTRATION."
(b) PRIORITY IN INCIDENTAL REGISTRATIONS. If a registration pursuant to
this Section 1.2 involves an underwritten offering and the managing Underwriter
advises the Parent that, in its opinion, the number of securities (including all
Registrable Securities) which the Parent, the Shareholders and any other persons
propose to include in such registration exceeds the largest number of securities
which can be sold without having an adverse effect on such offering, including
the price at which such securities can be sold, the Parent will include in such
registration up to such maximum number of securities (i) in the case such
registration was undertaken initially by Parent for its own account: (1) FIRST,
all the securities the Parent initially proposes to sell for its own account,
and (2) SECOND, to the extent that the number of securities referred to in
clause (i)1 is less than the number of securities which the Parent has been
advised can be sold in such offering without having the adverse effect referred
to above, then all Registrable Securities requested to be included in such
registration by the Shareholders pursuant to Section 1.2(a) or by any other
holder of securities electing to register securities pursuant to any similar
registration rights agreement pro rata on the basis of the relative number of
securities requested by each
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of them to be included in such registration or (ii) in the case such
registration was undertaken on behalf of holders (the "Demanding Holders")
other than the Shareholders: (1) FIRST, all of the securities such Demanding
Holders propose to include and (2) SECOND, to the extent that the number of
securities referred to in clause (ii)1 is less than the number of securities
which the Parent has been advised can be sold in such offering without having
the adverse effect referred to above, then all Registrable Securities
requested to be included in such registration by the Shareholders pursuant to
Section 1.2(a) or by any other holder of securities electing to register
securities pursuant to any similar registration rights agreement pro rata on
the basis of the relative number of securities requested by each of them to
be included in such registration.
(c) HOLD-BACK AGREEMENTS. Each Shareholder whose Registrable Securities
are covered by a Registration Statement filed pursuant to Section 1.2 hereof
agrees, if requested (pursuant to a timely written notice) by the managing
Underwriter if there is an underwritten offering, not to effect any public sale
or distribution of any of the issue being registered or a similar security of
the Parent or any securities convertible or exchangeable or exercisable for such
securities, including a sale pursuant to Rule 144 (except as part of such
underwritten offering), during the period beginning 10 days prior to, and ending
up to 180 days (as may be requested by the managing Underwriter) after, the
closing date of such underwritten offering made pursuant to such Registration
Statement (or such shorter period as the managing Underwriter may agree), to the
extent timely notified in writing by the Parent or by the managing Underwriter.
1.3 REGISTRATION PROCEDURES. In connection with the registration of any
Registrable Securities, the Parent shall effect such registration to permit the
sale of such Registrable Securities in accordance with the intended method or
methods of disposition thereof, and pursuant thereto the Parent shall as
expeditiously as possible:
(a) Prepare and file with the SEC a Registration Statement on Form
S-3 or such other form available for the sale of the Registrable
Securities by the Shareholders in accordance with the intended method of
distribution thereof, and use its best efforts to cause such Registration
Statement to become effective and remain effective as provided herein, and
in any event, to file the Registration Statement relating to the Demand
Registration and use its best efforts to cause such Registration Statement
to become effective in accordance with Section 1.1(a) and to keep such
Registration Statement effective for the effective period as
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set forth in Section 1.1(d), subject to the provisions of Section 1.1(e).
(b) Prepare and file with the SEC such amendments and post-effective
amendments to such Registration Statement as may be necessary to keep such
Registration Statement continuously effective for the effectiveness period
as set forth in Section 1.1(d); cause the related Prospectus to be
supplemented by any required prospectus supplement, and as so supplemented
to be filed pursuant to Rule 424 (or any similar provisions then in force)
under the Securities Act; and comply with the provisions of the Securities
Act, the Exchange Act and the rules and regulations of the SEC promulgated
thereunder applicable to it with respect to the disposition of all
securities covered by such Registration Statement as so amended or in such
Prospectus as so supplemented.
(c) Prior to any public offering of Registrable Securities, register
or qualify, and cooperate with the Shareholders selling Registrable
Securities, the Underwriter, if any, and their respective counsel in
connection with the registration or qualification (or exemption from such
registration or qualification) of, such Registrable Securities for offer
and sale under the securities or "blue sky" laws of such jurisdictions
within the United States as any such selling Shareholder or the managing
Underwriter, if any, reasonably request in writing, and the Parent agrees
to cause its counsel to perform "blue sky" investigations and file
registrations and qualifications required to be filed pursuant to this
Section 1.3(c) (unless the Registrable Securities are offered through an
underwritten offering); to keep each such registration or qualification (or
exemption therefrom) effective during the period during which the related
Registration Statement is required to be kept effective as provided in
Section 1.1(d); and do any and all other acts or things necessary or
advisable to enable the disposition in such jurisdictions of the
Registrable Securities covered by the applicable Registration Statement;
PROVIDED, HOWEVER, that the Parent will not be required to (A) qualify
generally to do business in any jurisdiction where it is not then so
qualified or (B) take any action that would subject it to general service
of process in any such jurisdiction where it is not then so subject.
(d) Notify the Shareholders who are selling Registrable Securities,
their counsel and the managing or sole Underwriter, if any, promptly (i) of
the issuance by the SEC of any stop order suspending the effectiveness of a
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Registration Statement or of any order preventing or suspending the use of
any Prospectus or the initiation of any proceedings for that purpose or
(ii) of the receipt by the Parent of any notification with respect to the
suspension of the qualification or exemption from qualification of a
Registration Statement or any of the Registrable Securities for offer or
sale in any jurisdiction, or the initiation or threatening of any
proceeding for such purpose and use its best efforts (including, if
necessary, the filing of any amendments or supplements to the Registration
Statement or the Prospectus) to prevent the issuance of any order
suspending the effectiveness of a Registration Statement or of any order
preventing or suspending the use of a Prospectus or suspending the
qualification (or exemption from qualification) of a Registration Statement
for any of the Registrable Securities for sale in any jurisdiction. If a
stop-order or suspension of qualification is issued, the Parent shall use
its best efforts to obtain as soon as possible the withdrawal thereof.
(e) Notify the Shareholders who are selling Registrable Securities,
their counsel and the managing or sole underwriter, if any, promptly if at
any time when a Prospectus is required by the Securities Act to be
delivered in connection with sales of the Registrable Securities there
occurs any development or any event that makes any statement made in such
Registration Statement or related Prospectus or any document incorporated
or deemed to be incorporated therein by reference untrue in any material
respect or that requires the making of any changes in such Registration
Statement, Prospectus or document so that it will not contain any untrue
statement of a material fact or omit to state any material fact required to
be stated therein or necessary to make the statements, in light of the
circumstances under which they were made, not misleading, and, as soon as
reasonably possible, prepare a post-effective amendment to the Registration
Statement or a supplement to the related Prospectus or any document
incorporated or deemed to be incorporated therein by reference, or file any
such document or other required document so that, as thereafter delivered
to the purchasers of the Registrable Securities being sold thereunder, such
Registration Statement, Prospectus or documents will not contain an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading. Each
Shareholder agrees that upon receipt of any notice from the Parent pursuant
to this Section 1.3(e), such holder
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shall forthwith discontinue disposition of Registrable Securities until
it shall have received copies of such amended or supplemented Prospectus;
PROVIDED, HOWEVER, that in such event, the period of time from such notice
until delivery of such amended or supplemented Prospectus shall be added
to the period of effectiveness as set forth in Section 1.1(d).
(f) If requested by the managing or sole Underwriter, if any, or the
Shareholders owning a majority of the Registrable Securities being sold in
connection with an underwritten offering, (i) promptly incorporate in a
prospectus supplement or post-effective amendment such information as the
managing or sole Underwriter, if any, or such Shareholders reasonably
request to be included therein to comply with applicable law, (ii) make all
required filings of such prospectus supplement or such post-effective
amendment as soon as practicable after the Parent has received notification
of the matters to be incorporated in such prospectus supplement or post-
effective amendment, and (iii) supplement or make amendments to such
Registration Statement; PROVIDED, HOWEVER, that the Parent shall not be
required to take any actions under this Section 1.3(f) that are not, in the
opinion of counsel for the Parent, in compliance with applicable law.
(g) Furnish to each Shareholder selling Registrable Securities who so
requests and to his counsel and each managing Underwriter, if any, without
charge, one conformed copy of the Registration Statement and each post-
effective amendment thereto, including financial statements and schedules,
all documents incorporated or deemed to be incorporated therein by
reference and all exhibits.
(h) Furnish to the Representative as soon as is reasonable
practicable, copies of all documents proposed to be filed, which documents
will be subject to the review of the Representative, and Parent will not
file any Registration Statement or amendment thereto, or any Prospectus or
any supplement thereto, if the Representative shall reasonably object on
the basis of the requirements of the Securities Act and any other
applicable laws and regulations.
(i) Deliver to each Shareholder selling Registrable Securities, their
counsel, and the managing Underwriter, if any, without charge, as many
copies of the Prospectus (including each form of prospectus) and each
amendment or supplement thereto as they may reasonably request.
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(j) If the offering is to be underwritten, enter into an underwriting
agreement in form, scope and substance as is customary in underwritten
offerings and take all such other actions as are reasonably requested by
the managing or sole Underwriter in order to expedite or facilitate the
registration or the disposition of such Registrable Securities.
(k) Cause all Registrable Securities covered by such Registration
Statement to be (i) listed on each securities exchange on which securities
issued by the Parent are then listed, or (ii) authorized to be quoted on
the NASDAQ or the National Market System of the NASDAQ.
Each Shareholder who is selling Registrable Securities as to which any
registration is being effected shall furnish to the Parent such information
regarding such Shareholder and the distribution of such Registrable Securities
as the Parent may, from time to time, reasonably request, PROVIDED that such
information shall be used only in connection with such registration. The Parent
may exclude from such registration the Registrable Securities of any Shareholder
who unreasonably fails to furnish such information as promptly as practicable
after receiving such request.
1.4 REGISTRATION EXPENSES.
(a) All fees and expenses incident to the performance of or compliance
with this Agreement by the Parent shall be borne by the Parent whether or not
any Registration Statement is filed or becomes effective, including, without
limitation, (i) all registration and filing fees (including, without limitation,
(A) fees with respect to filings required to be made with the National
Association of Securities Dealers, Inc. in connection with an underwritten
offering and (B) fees and expenses of compliance with state securities or "blue
sky" laws (including, without limitation, fees and disbursements of counsel for
the Underwriters or counsel for the Parent, in connection with "blue sky"
qualifications of the Registrable Securities and determination of the
eligibility of the Registrable Securities for investment under the laws of such
jurisdictions as provided in Section 1.4(c), in the case of Registrable
Securities), (ii) printing expenses, (iii) fees and disbursements of counsel for
the Parent, (iv) fees and disbursements of the Company's independent certified
public accountants (including, without limitation, the expenses of any special
audit and "cold comfort" letters required by or incident to such performance),
and (v) the fees and expenses incurred in connection with the listing of the
securities to be registered on any securities exchange or NASDAQ.
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(b) In connection with any Registration Statement hereunder, the
Shareholders selling the Registrable Securities being registered shall bear the
discounts, commissions, or fees of Underwriters, selling brokers, dealer
managers or similar securities industry professionals relating to the
distribution of the Registrable Securities and the fees and disbursements of any
counsel engaged by the Shareholders.
(c) The Parent shall not be required to pay for the expenses of any
registration proceeding begun pursuant to a Demand Registration if the
registration is subsequently withdrawn at the request of the Shareholders who
delivered the Demand Notice and, in such event, the Shareholders will promptly
reimburse Parent for such expenses. If the Shareholders fail to promptly
reimburse the Company, then such registration, even though, subsequently
withdrawn, shall be deemed to have satisfied Parent's obligations under Section
1.1 hereof.
1.5 INDEMNIFICATION, CONTRIBUTION.
(a) INDEMNIFICATION BY THE PARENT. The Parent shall indemnify and hold
harmless, to the full extent permitted by law, each Shareholder selling
Registrable Securities (each, a "SHAREHOLDER INDEMNIFIED PARTY"), from and
against any and all losses, claims, damages, liabilities, actions or proceedings
(whether commenced or threatened), reasonable costs (including, without
limitation, reasonable costs of preparation and reasonable attorneys' fees and
reasonable expenses) (collectively, "LOSSES"), as incurred, arising out of or
based upon (i) any untrue or alleged untrue statement of a material fact
contained in any Registration Statement, Prospectus or form of prospectus or in
any amendments or supplements thereto or in any preliminary prospectus, or
arising out of or based upon any omission or alleged omission of a material fact
required to be stated therein or necessary to make the statements therein (in
the case of any Prospectus or form of prospectus or any amendment or supplement
thereto or any preliminary prospectus, in light of the circumstances under which
they were made) not misleading, except to the extent that the same arise out of
or are based upon information furnished in writing to the Parent by such
Indemnified Party for use therein or (ii) any violation by the Parent of any
federal, state or common law rule or regulation applicable to the Parent and
relating to action required of or inaction by the Parent in connection with any
such registration; PROVIDED, HOWEVER, that the Parent shall not be liable to any
Indemnified Party to the extent that any such Losses arise out of or are based
upon an untrue statement or alleged untrue statement or omission or alleged
omission made in any preliminary prospectus if (x) such Shareholder Indemnified
Party failed to send or deliver a copy of the Prospectus with or prior to the
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delivery of written confirmation of the sale by such Indemnified Party to the
Person asserting the claim from which such Losses arise, and the Prospectus
would have corrected such untrue statement or alleged untrue statement or such
omission or alleged omission. Such indemnity and reimbursement of costs and
expenses shall remain in full force and effect regardless of any investigation
made by or on behalf of such Shareholder Indemnified Party.
(b) INDEMNIFICATION BY SHAREHOLDER SELLING REGISTRABLE SECURITIES. In
connection with any Registration Statement in which a Shareholder is offering
Registrable Securities, such Shareholder shall furnish to the Parent in writing
such information as the Parent reasonably requests for use in connection with
any Registration Statement or Prospectus and such Shareholder shall, severally
and not jointly, indemnify, to the full extent permitted by law, the Parent and
its respective directors, officers, agents and employees, each Person who
controls the Parent (within the meaning of Section 15 of the Securities Act and
Section 20 of the Exchange Act), and the directors officers, agents or employees
of such controlling persons (each a "PARENT INDEMNIFIED PARTY"), from and
against all Losses arising out of or based upon any untrue or alleged untrue
statement of a material fact contained in any Registration Statement,
Prospectus, or form of prospectus, or arising out of or based upon any omission
or alleged omission of a material fact required to be stated therein or
necessary to make the statements therein not misleading, to the extent, but only
to the extent, that such untrue or alleged untrue statement is contained in, or
such omission or alleged omission is required to be contained in, any
information furnished in writing by such Shareholder to the Parent expressly for
use in such Registration Statement or Prospectus. Such indemnity shall remain
in full force and effect regardless of any investigation made by or on behalf of
any such Parent Indemnified Party.
(c) CONDUCT OF INDEMNIFICATION PROCEEDINGS. If any Person shall be
entitled to indemnity hereunder (for purposes of this Section 1.5(c) an
"INDEMNIFIED PARTY"), such indemnified party shall give prompt notice to the
party or parties from which such indemnity is sought (for purposes of this
Section 1.6(c) the "INDEMNIFYING PARTIES") of the commencement of any action,
suit, proceeding or investigation or written threat thereof (a "PROCEEDING")
with respect to which such indemnified party seeks indemnification or
contribution pursuant hereto; PROVIDED, HOWEVER, that the failure to so notify
the indemnifying parties shall not relieve the indemnifying parties from any
obligation or liability except to the extent that the indemnifying parties have
been prejudiced by such failure. The indemnifying parties shall have the right,
exercisable by giving written notice to an
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indemnified party promptly after the receipt of written notice from such
indemnified party of such Proceeding, to assume, at the indemnifying parties'
expense, the defense of any such Proceeding, with counsel reasonably
satisfactory to such indemnified party; PROVIDED, HOWEVER, that an
indemnified party or parties (if more than one such indemnified party is
named in any Proceeding) shall have the right to employ separate counsel in
any such Proceeding and to participate in the defense thereof, but the fees
and expenses of such counsel shall be at the expense of such indemnified
party or parties unless: (1) the indemnifying parties agree to pay such fees
and expenses; (2) the indemnifying parties fail promptly to assume the
defense of such Proceeding or fail to employ counsel reasonably satisfactory
to such indemnified party or parties; or (3) the named parties to any such
Proceeding (including any impleaded parties) include both such indemnified
party or parties and the indemnifying parties or an affiliate of the
indemnifying parties or such indemnified parties, and there may be one or
more defenses available to such indemnified party or parties that are
different from or additional to those available to the indemnifying parties,
in which case, if such indemnified party or parties notifies the indemnifying
parties in writing that it elects to employ separate counsel at the expense
of the indemnifying parties, the indemnifying parties shall not have the
right to assume the defense thereof and such counsel shall be at the expense
of the indemnifying parties, it being understood, however, that, unless there
exists a conflict among indemnified parties, the indemnifying parties shall
not, in connection with any one such Proceeding but substantially similar or
related Proceedings in the same jurisdiction, arising out of the same general
allegations or circumstances, be liable for the fees and expenses of more
than one separate firm of attorneys (together with appropriate local counsel)
at any time for such indemnified party or parties. Whether or not such
defense is assumed by the indemnifying parties, such indemnifying parties or
indemnified party or parties will not be subject to any liability for any
settlement made without its or their consent (but such consent will not be
unreasonably withheld). The indemnifying parties shall not consent to entry
of any judgment or enter into any settlement (i) which provides for other
than monetary damages without the consent of the indemnified party or parties
(which consent shall not be unreasonably withheld or delayed) or (ii) that
does not include as an unconditional term thereof the giving by the claimant
or plaintiff to such indemnified party or parties of a release, in form and
substance satisfactory to the indemnified party or parties, from all
liability in respect of such Proceeding for which such indemnified party
would be entitled to indemnification hereunder.
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(d) CONTRIBUTION. If the indemnification provided for in this Section 1.5
is unavailable to an indemnified party, then the indemnifying party, in lieu of
indemnifying such indemnified party, shall have an obligation to contribute to
the amount paid or payable by such indemnified party as a result of such Losses,
in such proportion as is appropriate to reflect the relative fault of the
indemnifying party, on the one hand, and such indemnified party, on the other
hand, in connection with the actions, statements or omissions that resulted in
such Losses as well as any other relevant equitable considerations. The
relative fault of such indemnifying party, on the one hand, and indemnified
party, on the other hand, shall be determined by reference to, among other
things, whether any action in question, including any untrue or alleged untrue
statement of a material fact or omission or alleged omission to state a material
fact, has been taken by, or relates to information supplied by, such
indemnifying party or indemnified party, and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent any such
action, statement or omission. The amount paid or payable by a party as a
result of any Losses shall be deemed to include any legal or other fees or
expenses incurred by such party in connection with any Proceeding, to the extent
such party would have been indemnified for such expenses if the indemnification
provided for in Section 1.5(a) or 1.5(b) was available to such party.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 1.5(d) were determined by PRO RATA
allocation or by any other method of allocation that does not take account of
the equitable considerations referred to in the immediately preceding paragraph.
Notwithstanding the provision of this Section 1.5(d), an indemnifying party that
is a Shareholder selling Registrable Securities shall not be required to
contribute any amount in excess of the amount by which the net proceeds received
by such indemnifying party exceeds the amount of any damages that such
indemnifying party has otherwise been required to pay by reason of such untrue
or alleged untrue statement or omission or alleged omission. No person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any Person who was not
guilty of such fraudulent misrepresentation. [The suggested changes were not
made because the concept of risk sharing in this paragraph is applicable to
contribution but not to indemnification.]
(e) The provisions of Section 1.5 shall not be affected by termination of
this Agreement pursuant to Section 2.9.
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Section 2. MISCELLANEOUS.
2.1 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT GIVING REGARD TO THE
CONFLICT OF LAWS PRINCIPLES THEREOF.
2.2 NOTICES. All notices or other communications required or permitted
hereunder shall be in writing and shall be deemed given or delivered when
delivered personally or when sent by registered or certified mail or by private
courier addressed as follows:
If to Parent or HBO-GA, to:
HBO & Company
301 Perimeter Center North
Atlanta, Georgia 30346
Attention: Jay M. Lapine, Esq.
Vice President and General Counsel
With a copy to:
Jones, Day, Reavis & Pogue
3500 One Peachtree Center
303 Peachtree Street, N.E.
Atlanta, Georgia 30308-3242
Attention: Robert W. Smith, Esq.
If to the Shareholders, to:
Mr. Russell L. Still, as Representative
of the Shareholders
c/o Management Software, Inc.
1550 East Republic Road
Springfield, Missouri 65804
With a copy to:
Gardere & Wynne
1601 Elm Street, Suite 3000
Dallas, Texas 75201
Attention: Richard Hull, Esq.
or to such other address as such party may indicate by a notice delivered to the
other party hereto.
2.3 ENTIRE AGREEMENT; INTEGRATION. This Agreement supersedes all prior
agreements between or among any of the
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parties hereto with respect to the subject matter contained herein and
therein, and such agreements embody the entire understanding among the
parties relating to such subject matter with the exception of the SPA to
which this Agreement constitutes Exhibit 2.16.
2.4 INJUNCTIVE RELIEF. Each of the parties hereto acknowledges that in
the event of a breach by any of them of any material provision of this
Agreement, the aggrieved party may be without an adequate remedy at law. Each
of the parties therefore agrees that in the event of such a breach hereof the
aggrieved party may elect to institute and prosecute proceedings in any court of
competent jurisdiction to enforce specific performance or to enjoin the
continuing breach hereof. By seeking or obtaining any such relief, the
aggrieved party shall not be precluded from seeking or obtaining any other
relief to which it may be entitled.
2.5 SECTION HEADINGS. Section headings are for convenience of reference
only and shall not affect the meaning of any provision of this Agreement.
2.6 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be an original and all of which shall together
constitute one and the same instrument. All signatures need not be on the same
counterpart.
2.7 SEVERABILITY. If any provision of this Agreement shall be invalid or
unenforceable, such invalidity or unenforceability shall not affect the validity
and enforceability of the remaining provisions of this Agreement, unless the
result thereof would be unreasonable, in which case the parties hereto shall
negotiate in good faith as to appropriate amendments hereto.
2.8 FILING. A copy of this Agreement and of any amendments hereto shall
be filed at the principal executive office of the Parent with the corporate
recorder of the Parent.
2.9 TERMINATION. This Agreement may be terminated at any time by a
written instrument signed by all the parties hereto. Unless sooner terminated
in accordance with the preceding sentence, this Agreement shall terminate in its
entirety on the earlier of (a) such date as all Registrable Securities have been
sold by the Shareholders, (b) two years from the date hereof or (c) in the event
that the holding period for purposes of subsection (d) of Rule 144 is reduced
from two years, the date which ends on the period specified in Rule 144(d) as so
amended. The parties hereto agree that any shares of Common Stock previously
subject to this Agreement shall not be Registrable
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Securities following the sale of any such shares in an offering registered
pursuant to this Agreement.
2.10 ATTORNEYS' FEES. In any action or proceeding brought to enforce any
provision of this Agreement, or where any provision hereof is validly asserted
as a defense, the successful party shall be entitled to recover reasonable
attorneys' fees (including any fees incurred in any appeal) in addition to its
costs and expenses and any other available remedy.
2.11 DEFINITIONS. Capitalized terms used in this Agreement shall have the
meanings set forth below:
"COMMON STOCK" means the Parent's Common Stock, par value $.05 per share,
and shares of capital stock of the Parent issued in respect of or in exchange
for shares of such Common Stock in connection with any stock split or dividend
or distribution, recapitalization or exchange by Parent generally of such
shares.
"DEMAND NOTICE" shall have the meaning specified in Section 1.1(a).
"DEMAND REGISTRATION" shall have the meaning specified in Section 1.1(a).
"EFFECTIVENESS DATE" shall have the meaning specified in Section 1.1(d).
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended, and
the rules and regulations of the SEC promulgated thereunder.
"LOSSES" shall have the meaning specified in Section 1.5(a).
"NASDAQ" means the National Association of Securities Dealers Automated
Quotation System.
"PARENT INDEMNIFIED PARTY" shall have the meaning specified in 1.5(b).
"PERSON" means any individual, corporation, partnership, joint venture,
association, joint stock company, limited liability company, trust,
unincorporated organization, or government or other agency or political
subdivision thereof.
"PROCEEDING" shall have the meaning specified in Section 1.5(c).
"PROSPECTUS" means the prospectus included in the Registration Statement,
including any form of prospectus or any
16
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preliminary prospectus, as amended or supplemented by any prospectus
supplement and by all other amendments or supplements to such prospectus,
including all post-effective amendments and all material, if any,
incorporated by reference or deemed to be incorporated by reference into such
prospectus.
"REGISTRABLE SECURITIES" means, collectively, (a) the shares of Common
Stock acquired by the Shareholders on the date of the Closing under the SPA, and
(b) all securities issued in respect of, in exchange for, or in substitution of,
the securities described in clause (a).
"REGISTRATION NOTICE" shall have the meaning specified in Section 1.1(d).
"REGISTRATION STATEMENT" means any registration statement of the Parent
under which any of the Registrable Securities are included therein pursuant to
the provisions of this Agreement, including the Prospectus, amendments and
supplements to such registration statement, including post-effective amendments,
all exhibits, and all material incorporated by reference or deemed to be
incorporated by reference in such registration statement.
"RULE 144" means Rule 144 promulgated by the SEC under the Securities Act
as such rule may be amended from time to time, or any similar rule then in
force.
"SEC" means the Securities and Exchange Commission.
"SECURITIES ACT" means the Securities Act of 1933, as amended, and all
rules and regulations promulgated thereunder, as the same may be amended from
time to time.
"SHAREHOLDER" means each of Dr. Jim Atteberry, Russell L. Still and Sara S.
Still, as Tenants in Common, Wayne W. Clements and Susan Clements, as Tenants in
Common, Stanley Bell, Dan Cobb and Charlie Daniels who collectively shall be
termed the "Shareholders."
"SHAREHOLDER INDEMNIFIED PARTY" shall have the meaning specified in Section
1.5(a).
"UNDERWRITER" has the meaning set forth in Section 2(11) of the Securities
Act.
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IN WITNESS WHEREOF, this Agreement has been duly executed by the parties
hereof as of the date first written above.
HBO & COMPANY
By: /S/ JAY P. GILBERTSON
------------------------------------------
Its: Senior Vice President - Finance
SHAREHOLDERS
/s/ Jim Atteberry
------------------------------------------
Dr. Jim Atteberry
/s/ Russell L. Still
------------------------------------------
Russell L. Still and
Sara S. Still,
As Tenants in Common
/s/ Wayne W. Clements
------------------------------------------
Wayne W. Clements and
Susan Clements
As Tenants in Common
/s/ Stanley Bell
------------------------------------------
Stanley Bell
/s/ Dan Cobb
------------------------------------------
Dan Cobb
/s/ Charlie Daniels
------------------------------------------
Charlie Daniels
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<PAGE>
JONES, DAY, REAVIS & POGUE
3500 ONE PEACHTREE CENTER
303 PEACHTREE STREET
ATLANTA, GEORGIA 30308
November , 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 893,748 shares of Common
Stock, $.05 par value per share, of the Company (the "Shares"), pursuant to a
Registration Statement on Form S-3 (File No. 333- ) (the "Registration
Statement"), filed with the Securities and Exchange Commission, 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 have been duly authorized and are validly issued, fully paid
and nonassessable.
We hereby consent to the filing of this opinion as Exhibit 5 to the
Registration Statement and the reference to this Firm under the heading "Certain
Legal Matters" in the Prospectus constituting part of the Registration
Statement.
Sincerely,
JONES, DAY, REAVIS & POGUE
<PAGE>
EXHIBIT 23(A)
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
included or incorporated by reference in HBO & Company's 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
October 29, 1996
<PAGE>
EXHIBIT 23(B)
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement (Form S-3) and related Prospectus of HBO & Company for
the registration of 893,748 shares of its common stock and to the incorporation
by reference therein of our reports dated January 26, 1995 (except for Note 12,
as to which the date is June 17, 1995) and March 31, 1995 (except for Note 11,
as to which the date is June 17, 1995), with respect to the financial statements
of the Health Services Business of First Data Health Systems Corporation
included in the Current Report on Form 8-K of HBO & Company dated July 31, 1995,
filed with the Securities and Exchange Commission.
/s/ ERNST & YOUNG LLP
ERNST & YOUNG LLP
Denver, Colorado
October 29, 1996
