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SECURITIES AND EXCHANGE COMMISSION
Washington D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES EXCHANGE ACT OF 1934
MAY 21, 1996
Date of Report
(MAY 14, 1996)
(Date of earliest event reported)
HBO & COMPANY
(Exact name of registrant as specified in its charter)
DELAWARE
(State or other jurisdiction of incorporation)
0-9900 37-0986839
- ------------------------ ---------------------------------
(Commission File Number) (IRS Employer Identification No.)
301 PERIMETER CENTER NORTH
ATLANTA, GA 30346
- ---------------------------------------- ----------
(Address of principal executive offices) (Zip Code)
(770) 393-6000
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Registrant's telephone number, including area code
Exhibit Index on page 2 of 19
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ITEM 5: OTHER EVENTS
On May 14, 1996, the stockholders of HBO & Company (the "Company"or "HBOC")
approved an amendment to the Company's Certificate of Incorporation to increase
the number of shares of authorized common stock from 60 million to 250 million.
The amended Certificate of Incorporation was filed with the state of Delaware on
May 15, 1996.
On May 14, 1996, the Board of Directors of the Company declared a two-for-
one stock split to be effected in the form of a stock dividend. The dividend
will be payable on June 10, 1996 to all stockholders of record as of May 27,
1996.
On May 20, 1996, the Company announced that it has signed a definitive
agreement to acquire CyCare Systems, Inc. in a transaction to be accounted for
as a pooling of interests. Terms of the agreement call for CyCare's
shareholders to receive 0.43 of a share of HBOC common stock for each share of
CyCare common stock if the average HBOC share price remains between $104.50 and
$130.00 during the 20 trading days shortly before the date of the special
meeting of CyCare shareholders (all amounts are before adjustment for HBOC's
two-for-one split in the form of a stock dividend payable June 10,1996) .
Should the average HBOC share price during that pricing period be above $130.00
or below $104.50, CyCare shareholders will receive a fraction of a share of HBOC
common stock with a value of $55.90 or $44.935, respectively, per CyCare share.
ITEM 7: FINANCIAL STATEMENTS AND EXHIBITS
(c) Exhibits.
EXHIBIT NO. DESCRIPTION PAGE
----------- ----------- ----
3(i) HBO & Company Certificate of Incorporation, 4
as amended
99(a) Certificate of Authenticity re: Resolution
of Board of Directors 18
99(b) HBO & Company News Release dated May 20, 1996 19
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
HBO & COMPANY
(Registrant)
Date: May 21, 1996
/s/ Jay P. Gilbertson
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Jay P. Gilbertson
Senior Vice President - Finance,
Chief Financial Officer,
Principal Accounting Officer,
Treasurer and Assistant Secretary
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EXHIBIT 3(i)
CERTIFICATE OF INCORPORATION
OF
HBO & COMPANY
* * * * *
1. The name of the corporation is
HBO & COMPANY
2. The address of its registered office in the State of Delaware is No.
100 West Tenth Street, in the City of Wilmington, County of New Castle. The
name of its registered agent at such address is The Corporation Trust Company.
3. The nature of the business or purposes to be conducted or promoted is
to engage in any lawful act or activity for which corporations may be organized
under the General Corporation Law of Delaware.
4. The total number of shares of stock which the Company shall have
authority to issue is two hundred fifty one million (251,000,000), two hundred
fifty million (250,000,000) of which shall be common stock with a par value of
five cents ($.05) per share, amounting in the aggregate to twelve million five
hundred thousand dollars ($12,500,000), and one million (1,000,000) of which
shall be preferred stock without par value.
The preferred stock may be issued from time to time in one or more
series. The powers, designations, preferences, and other rights and
qualifications, limitations or restrictions of the preferred stock of each
series shall be such as are stated and expressed in this Article 4 and, to the
extent not stated and expressed herein, shall be such as may be fixed by the
board of directors (authority so to do being hereby expressly granted) and
stated and expressed in a resolution or resolutions adopted by the board of
directors, providing for the initial issue of preferred stock of such series.
Such resolution or resolutions shall (a) fix the dividend rights of holders of
shares of such series, (b) fix the terms on which stock of such series may be
redeemed if the shares of such series are to be redeemable, (c) fix the rights
of the holders of stock of such series upon dissolution or any distribution of
assets, (d) fix the terms or amount of the sinking fund, if any, to be provided
for the purchase or redemption of stock of such series, (e) fix the terms upon
which the stock of such series may be converted into or exchanged for stock of
any other class or classes or of any one or more series of preferred stock if
the shares of such series are to be convertible or exchangeable, (f) fix the
voting rights, if any, of shares of such series, and (g) fix such other powers,
designations, preferences and relative, participating, optional, or other
special rights and qualifications, limitations, or restrictions thereof desired
to be so fixed.
Except to the extent otherwise provided in the resolution or
resolutions of the board of directors providing for the initial issue of shares
of a particular series or expressly required by law, holders of shares of
preferred stock of any series shall be entitled to one vote for each share
thereof so held, shall vote share for share with the holders of the common stock
without distinction as to class, and shall not be entitled to vote separately as
a class or series of a class. The number of shares of preferred stock
authorized to be issued may be increased or decreased from time to time by the
affirmative vote of the holders of a majority of the stock of the Corporation
entitled to vote, and the holders of the preferred stock shall not be entitled
to vote separately as a class or series of a class on any such increase or
decrease.
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All shares of any one series of preferred stock shall be identical
with each other in all respects except that shares of any one series issued at
different times may differ as to the dates from which dividends thereon shall
accumulate, and all series of preferred stock shall rank equally and be
identical in all respects except as specified in the respective resolutions of
the board of directors providing for the initial issue thereof.
Subject to the prior and superior rights of the preferred stock as set
forth in any resolution or resolutions of the board of directors providing for
the initial issuance of any particular series of preferred stock, such dividends
(payable in cash, stock or otherwise) as may be determined by the board of
directors may be declared and paid on the common stock from time to time out of
any funds legally available therefor, and the preferred stock shall not be
entitled to participate in any such dividend.
5. The name and mailing address of each incorporator is as follows:
NAME MAILING ADDRESS
---- ---------------
B.A. Pennington 100 West Tenth Street
Wilmington, Delaware 19801
W.J. Reif 100 West Tenth Street
Wilmington, Delaware 19801
R.F. Andrews 100 West Tenth Street
Wilmington, Delaware 19801
6. The corporation is to have perpetual existence.
7. In furtherance and not in limitation of the powers conferred by
statute, the board of directors is expressly authorized to make, alter or repeal
the Bylaws of the corporation.
8. Meetings of stockholders may be held within or without the State of
Delaware, as the Bylaws may provide. The books of the corporation may be kept
(subject to any provision contained in the statutes) outside the State of
Delaware at such place or places as may be designated from time to time by the
board of directors or in the Bylaws of the corporation. Elections of directors
need not be by written ballot unless the Bylaws of the corporation shall so
provide.
9. Whenever a compromise or arrangement is proposed between this
corporation and its creditors or any class of them and/or between this
corporation and its stockholders or any class of them, any court of equitable
jurisdiction within the State of Delaware may, on the application in a summary
way of this corporation or of any creditor or stockholder thereof or on the
application of any receiver or receivers appointed for this corporation under
the provisions of Section 291 of Title 8 of the Delaware Code or on the
application of trustees in dissolution or of any receiver or receivers appointed
for this corporation under the provisions of Section 279 of Title 8 of the
Delaware Code order a meeting of the creditors or class of creditors, and/or of
the stockholders or class of stockholders of this corporation, as the case may
be, to be summoned in such manner as the said court directs. If a majority in
number representing three-fourths in value of the creditors or class of
creditors, and/or of the stockholders or class of stockholders of this
corporation, as the case may be, agree to any compromise or arrangement and to
any reorganization of this corporation as consequence of such compromise or
arrangement, the said compromise or arrangement and the said reorganization
shall, if sanctioned by the court to which the said application has been made,
be binding on all the creditors or class of creditors, and/or on all the
stockholders or class of stockholders, of this corporation, as the case may be,
and also on this corporation.
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10. Except as set forth in paragraphs 11 and 12 hereof, the corporation
reserves the right to amend, alter, change or repeal any provision contained in
this certificate of incorporation, in the manner now or hereafter prescribed by
statute, and all rights conferred upon stockholders herein are granted subject
to this reservation.
11. In addition to the requirements of law and paragraph 12 hereof:
(A) The affirmative vote of the holders of at least four-fifths of
the outstanding shares of Common Stock (whether or not the holders of such
shares are present or represented at any meeting) not Beneficially Owned by
Controlling Persons shall be required for the approval of a Business
Combination unless:
(1) all of the following conditions have been met:
(a) the Business Combination will result in an involuntary
sale, redemption, cancellation, or other termination of ownership
of all shares of Common Stock of the corporation owned by
stockholders who do not vote in favor of the Business
Combination;
(b) the consideration to be received by such stockholders
for such shares shall be in cash or in the same form as the
Controlling Person, Affiliate of a Controlling Person, Associate
of a Controlling Person, or Affiliate has previously paid for
such shares or if the Controlling Person, Affiliate of a
Controlling Person, Associate of a Controlling Person, or
Affiliate has paid for such shares with varying forms of
consideration, the form of consideration for such shares shall be
either cash or the form used to acquire the largest number of
such shares previously acquired by it;
(c) the cash or Fair Market Value as of the date of
consummation of the Business Combination or consideration other
than cash to be received by such stockholders for such shares
shall be at least equal to the Minimum Price Per Share;
(d) a proxy or information statement responsive to the
requirements of the Securities Exchange Act of 1934 shall be
mailed to all stockholders of the corporation at least 30 days
prior to the consummation of such Business Combination for the
purpose of soliciting stockholder approval of the Business
Combination; and
(e) after such Controlling Person has become a Controlling
Person, such Controlling Person shall not have received the
benefit, directly or indirectly (except proportionately as a
shareholder of the corporation) of any loans, advances,
guarantees, pledges or other financial assistance or any tax
credits or other tax advantages provided by the corporation or a
Subsidiary, whether in anticipation of or in connection with such
Business Combination or otherwise; or
(2) both of the following conditions shall have been met: (a)
the Continuing Directors of the corporation shall by a majority vote
at a meeting at which a Continuing Director Quorum was present have
adopted a resolution approving the Business Combination and have
determined to recommend it for approval by the holders of Common Stock
of the corporation; and (b) at the time of adoption of such
resolution, Continuing Directors shall have comprised at least a
majority of the Board of Directors.
(B) Nothing contained in this paragraph 11 shall be construed to
relieve any Controlling Person, Affiliate of a Controlling Person,
Associate of a Controlling Person,
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or Affiliate from any fiduciary obligation imposed by law.
(C) A majority of the Continuing Directors at a meeting at which a
Continuing Director Quorum was present shall have the power and duty to
determine in good faith, on the basis of information known to them after
reasonable inquiry, all facts necessary to determine compliance with this
paragraph 11.
(D) The vote required for any amendment to, or repeal of, all or any
portion of this paragraph 11 shall be the affirmative vote of the holders
of at least four-fifths of the outstanding shares of Common Stock (whether
or not the holders of such shares are present or represented at any
meeting) not Beneficially Owned by Controlling Persons; provided, however,
that if (i) the Continuing Directors of the corporation shall by a majority
vote at a meeting at which a Continuing Directors Quorum was present have
adopted a resolution approving the amendment or repeal proposal and have
determined to recommend it for approval by the holders of Common Stock of
the corporation, and (ii) at the time of adoption of such resolution,
Continuing Directors shall have comprised at least a majority of the Board
of Directors, then the vote required shall be the affirmative vote of the
holders of at least a majority of the outstanding shares of Common Stock of
the corporation.
(E) Capitalized terms used in this paragraph 11 shall have the
meanings assigned to them in paragraph 14 hereof.
12. In addition to the requirements of law and paragraph 11 hereof, the
affirmative vote of the holders of at least four-fifths of the outstanding
shares of Common Stock (whether or not the holders of such shares are present or
represented at any meeting) shall be required for the following transactions:
(A) Any plan of merger or consolidation of the corporation with
another corporation, with respect to which a stockholder vote is required
by law;
(B) Any sale, lease, or exchange of all or substantially all of the
property and assets of the corporation, with respect to which a stockholder
vote is required by law;
(C) Any dissolution of the corporation;
(D) Shareholder adoption of any amendment to, repeal of, or
establishment of, a Bylaw; or
(E) Any amendment to, or repeal of, all or any portion of this
paragraph 12;
provided, however, that if (i) the Continuing Directors of the corporation shall
by majority vote at a meeting at which a Continuing Director Quorum was present
have adopted a resolution approving one of the enumerated matters and have
determined to recommend it for approval by the holders of Common Stock of the
corporation, and (ii) at the time of adoption of such resolution, Continuing
Directors shall have comprised at least a majority of the Board of Directors,
then the vote required shall be the affirmative vote of the holders of at least
a majority of the outstanding Common Stock of the corporation. Capitalized
terms used in this paragraph 12 shall have the meanings assigned to them in
paragraph 14 hereof.
13. STOCKHOLDER ACTION.
(A) Any action by the stockholders of the corporation shall be taken
at a meeting of stockholders and no corporate action may be taken by
written consent of the stockholders entitled to vote upon such action.
(B) Special meetings of the stockholders, for any purpose or
purposes, unless otherwise prescribed by statute, (i) may be called by the
Chairman of the Board or the President, or by the holders of four-fifths of
the outstanding shares of Common Stock of the corporation; and (ii) shall
be called by the Chairman of the Board or President at the
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request in writing of three-fourths of the directors then in office. Such
request shall state the purpose or purposes of the proposed meeting.
(C) The vote required for any amendment to, or repeal of, all or any
portion of this paragraph 13 shall be the affirmative vote of the holders
of at least four-fifths of the outstanding shares of Common Stock of the
corporation (whether or not the holders of such shares are present or
represented at any meeting); provided, however, that if (i) the Continuing
Directors of the corporation shall by a majority vote at a meeting at which
a Continuing Director Quorum was present have adopted a resolution
approving the amendment or repeal proposal and have determined to recommend
it for approval by the holders of Common Stock of the corporation, and (ii)
at the time of such recommendation, Continuing Directors shall have
comprised at least a majority of the Board of Directors, then the vote
required shall be the affirmative vote of the holders of at least a
majority of the outstanding Common Stock of the corporation.
(D) Capitalized terms used in this paragraph 13 shall have the
meanings assigned to them in paragraph 14 hereof.
14. DEFINITIONS. The following definitions are to be incorporated in the
appropriate provisions of the foregoing paragraphs:
"Affiliate" shall mean a Person that directly, or indirectly,
through one or more intermediaries, controls, or is controlled by, or
is under common control with another Person.
"Associate" shall mean: (i) any corporation or organization of
which a Person is an officer or partner or is, directly or indirectly,
the Beneficial Owner of five percent or more of any class of equity
securities; (ii) any trust or other estate in which a Person has a
five percent or larger beneficial interest of any nature or as to
which a Person serves as trustee or in a similar fiduciary capacity;
or (iii) the immediate family of a Person, including without
limitation, a spouse, parents, children (even if of legal age and
living independently), siblings, fathers- and mothers-in-law, sons-
and daughters-in-law, and brothers- and sisters-in-law.
"Beneficial Ownership" shall include without limitation: (i) all
shares directly or indirectly owned by a Person, by an Affiliate of a
Person, by an Associate of a Person, or an Affiliate; (ii) all shares
which such Person, Affiliate, or Associate has the right to acquire
(a) through the exercise of any option, warrant or right (whether or
not currently exercisable), (b) through the conversion of a security,
(c) pursuant to the power to revoke a trust, discretionary account, or
similar arrangement, or (d) pursuant to the automatic termination of a
trust, discretionary account, or similar arrangement; and (iii) all
shares as to which such Person, Affiliate, or Associate, directly or
indirectly, through any contract, arrangement, understanding,
relationship, or otherwise (including without limitation any written
or unwritten agreement to act in concert but specifically excluding
any participation agreement, arrangement, understanding or
relationship between or among any two or more commercial banks made or
established in connection with and in furtherance of a bona fide
lending arrangement with the corporation and/or one or more
Subsidiaries) has or shares voting power (which includes the power to
vote or to direct the voting of such shares) or investment power
(which includes the power to dispose or to direct the disposition of
such shares) or both.
"Business Combination" shall mean: (i) any merger or
consolidation of
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the corporation with or into a Controlling Person, Affiliate of a
Controlling Person, Associate of a Controlling Person, or Affiliate;
(ii) any sale, lease, exchange, transfer, or other disposition,
including without limitation, a mortgage or any other security device,
of all or any Substantial Part of the assets of the corporation or a
Subsidiary, including without limitation, any voting securities of a
Subsidiary, to or with a Controlling Person, Affiliate of a
Controlling Person, Associate of a Controlling Person, or Affiliate;
(iii) any merger into or consolidation with the corporation or a
Subsidiary, of a Controlling Person, an Affiliate of a Controlling
Person, an Associate of a Controlling Person, or Affiliate; (iv) any
sale, lease, exchange, transfer, or other disposition to the
corporation or a Subsidiary of all or any part of the assets of a
Controlling Person, Affiliate of a Controlling Person, Associate of a
Controlling Person, or Affiliate; (v) any reclassification of Common
Stock of the corporation or any recapitalization involving Common
Stock of the corporation, that would have the effect of increasing the
voting power of a Controlling Person, Affiliate of a Controlling
Person, Associate of a Controlling Person, or Affiliate; and (vi) any
agreement, contract, or other arrangement providing for any of the
transactions described in this definition of Business Combination.
"Common Stock" shall mean the common stock of the corporation.
"Continuing Director" shall mean any member of the Board of
Directors of the corporation who is unaffiliated with a Controlling
Person and was a member of the Board prior to the time that the
Controlling Person became a Controlling Person, and any successor of a
Continuing Director who is unaffiliated with a Controlling Person and
is recommended or elected to succeed a Continuing Director by a
majority of Continuing Directors, provided that such recommendation or
election shall only be effective if made at a meeting at which a
Continuing Director Quorum is present.
"Continuing Director Quorum" shall mean a majority of the
Continuing Directors capable of exercising the powers conferred upon
them under the provisions of the certificate of incorporation or the
Bylaws of the corporation or by law.
"Control" shall mean the possession, directly or indirectly, of
the power to direct or cause the direction of the management and
policies of a Person, whether through the ownership of voting
securities, by contract, or otherwise.
"Controlling Person" shall mean any Person who Beneficially Owns
a number of shares of Common Stock of the corporation, whether or not
such number includes shares not then issued which exceeds a number
equal to ten percent of the outstanding shares of Common Stock of the
corporation.
"Fair Market Value" shall mean: (i) in the case of stock, the
highest per share public market asked price, last, or closing price in
the event the shares of stock are not listed on a national securities
exchange or the highest per share closing public market price in the
event the shares of stock are listed on a national securities exchange
during the 30-day period immediately preceding the date in question or
if no such quoted prices are available, the fair market value on the
date in question of a share of such stock as determined by a majority
of the Continuing Directors in good faith at a meeting at which a
Continuing Director Quorum was present; and (ii) in the case of
property other than cash or stock, the fair market
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value of such property on the date in question as determined by a
majority of the Continuing Directors in good faith at a meeting at
which a Continuing Director Quorum was present.
"Minimum Price Per Share" shall mean the sum of (i) the higher of
(a) the highest gross per share price paid or agreed to be paid to
acquire any shares of Common Stock of the corporation Beneficially
Owned by a Controlling Person, provided such payment or agreement to
make payment was made within three years immediately prior to the
records date set to determine the stockholders entitled to vote on the
Business Combination in question, or, in the case of a Section 253
Merger, three years immediately prior to the effective date of such
Section 253 Merger, and (b) the highest per share public market asked
price, last or closing price in the event the shares are not listed on
a national securities exchange or the highest per share closing public
market price in the event the shares are listed on a national
securities exchange, for such shares during such three year period;
PLUS (ii) the aggregate amount, if any, by which five percent for each
year, beginning on the date on which such Controlling Person became a
Controlling Person, of such higher per share price exceeds the
aggregate amount of all Common Stock dividends per share paid in cash
since the date on which such Person became a Controlling Person. The
calculation of the Minimum Price Per Share shall require appropriate
adjustments for capital changes, including without limitation, stock
splits, stock dividends, reverse stock splits, and stock
distributions.
"Person" shall mean an individual, a corporation, a partnership,
an association, a joint-stock company, a trust, any unincorporated
organization, and any other entity or group. Without limiting the
generality of the foregoing, when two or more Persons act as a
syndicate or other group for the purpose of acquiring, holding or
disposing of any stock of the corporation, such syndicate or other
group shall be deemed a Person.
"Section 253 Merger" shall mean any Merger of the corporation
into another corporation which is a Controlling Person, Affiliate of a
Controlling Person, Associate of a Controlling Person, or an
Affiliate, pursuant to Section 253 of the Delaware General Corporation
Laws, as amended from time to time, or any successor or replacement
statute, provided, that such amended, successor or replacement statute
does not give voting rights to the stockholders of the corporation
with respect to the merger. While such voting rights are part of
Section 253 as amended, or of any successor or replacement statute, a
merger under such section shall not be deemed a Section 253 Merger for
purposes of this definition.
"Securities Exchange Act of 1934" shall mean the Securities
Exchange Act of 1934, as amended from time to time, as well as any
successor or replacement statute.
"Subsidiary" shall mean any corporation twenty percent or more of
whose outstanding securities representing the right to vote for the
election of directors is Beneficially Owned by the corporation and/or
one or more Subsidiaries.
"Substantial Part" shall mean more than ten percent of the total
assets of the corporation or a Subsidiary, as appropriate, as shown on
the audited balance sheet of the corporation as of the end of the most
recent fiscal year ended prior to
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the time the determination is being made.
15. To the fullest extent permitted by the Delaware General Corporation
Law as the same exists or may hereafter be amended, a Director of this
corporation shall not be liable to the corporation or its stockholders for
monetary damages for breach of fiduciary duty as a Director, except for
liability (i) for any breach of the Director's duty of loyalty to the
corporation or its stockholders, (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (iii) under
Section 174 of the Delaware General Corporation Law, or (iv) for any transaction
from which the Director derived any improper personal benefit.
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CERTIFICATE OF DESIGNATIONS
of
Series A Junior Participating Preferred Stock
of
HBO & Company
(Pursuant to Section 151 of the
General Corporation Law of the State of Delaware)
HBO & Company, a corporation organized and existing under the General
Corporation Law of the State of Delaware (hereinafter called the "Corporation"),
DOES HEREBY CERTIFY:
That, pursuant to authority vested in the Board of Directors of the
Corporation by its Certificate of Incorporation, and pursuant to the provisions
of Section 151 of the General Corporation Law, the Board of Directors of the
Corporation on February 12, 1991 adopted the following resolution providing for
the issuance of a series of Preferred Stock:
RESOLVED, that pursuant to the authority expressly vested in the Board of
Directors of the Corporation (hereinafter called the "Board of Directors" or the
"Board") by the Certificate of Incorporation of the Corporation, a series of
Preferred Stock, without par value (the "Preferred Stock"), of the Corporation
be, and it hereby is, created, and that the designation and amount thereof and
the powers, designations, preferences and relative, participating, optional and
other special rights of the shares of such series, and the qualifications,
limitations or restrictions thereof are as follows:
I. DESIGNATION AND AMOUNT
The shares of such series shall be designated as "Series A Junior
Participating Preferred Stock" (the "Series A Preferred Stock") and the number
of shares constituting the Series A Preferred Stock shall be 20,000. Such
number of shares may be increased or decreased by resolution of the Board of
Directors; PROVIDED, that no decrease shall reduce the number of shares of
Series A Preferred Stock to a number less than the number of shares then
outstanding plus the number of shares reserved for issuance upon the exercise of
outstanding options, rights or warrants or upon the conversion of any
outstanding securities issued by the Corporation convertible into Series A
Preferred Stock.
II. DIVIDENDS AND DISTRIBUTIONS
(A) Subject to the rights of the holders of any shares of any series of
Preferred Stock (or any similar stock) ranking prior and superior to the Series
A Preferred Stock with respect to dividends, the holders of shares of Series A
Preferred Stock, in preference to the holders of Common Stock, par value $.05
per share (the "Common Stock"), of the Corporation, and of any
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other junior stock, shall be entitled to receive, when, as and if declared by
the Board of Directors out of funds legally available for the purpose, quarterly
dividends payable in cash on the first day of March, June, September and
December in each year (each such date being referred to herein as a "Quarterly
Dividend Payment Date"), commencing on the first Quarterly Dividend Payment Date
after the first issuance of a share or fraction of a share of Series A Preferred
Stock (the "First Quarterly Dividend Payment Date"), in an amount per share
(rounded to the nearest cent) equal to the greater of (i) $1.00 or (ii) subject
to the provision for adjustment hereinafter set forth, 1,000 times the aggregate
per share amount of all cash dividends, and 1,000 times the aggregate per share
amount (payable in kind) of all non-cash dividends or other distributions, other
than a dividend payable in shares of Common Stock or a subdivision of the
outstanding shares of Common Stock (by reclassification or otherwise), declared
on the Common Stock since the immediately preceding Quarterly Dividend Payment
Date or, with respect to the First Quarterly Dividend Payment Date, since the
first issuance of any share or fraction of a share of Series A Preferred Stock.
In the event the Corporation shall at any time (a) declare a dividend on the
outstanding shares of Common Stock payable in shares of Common Stock, (b)
subdivide the outstanding shares of Common Stock, (c) combine the outstanding
shares of Common Stock in a smaller number of shares, or (d) issue any shares of
its capital stock in a reclassification of the outstanding shares of Common
Stock (including any such reclassification in connection with a consolidation or
merger in which the Corporation is the continuing or surviving corporation),
then, in each such case and regardless of whether any shares of Series A
Preferred Stock are then issued or outstanding, the amount to which holders of
shares of Series A Preferred Stock would otherwise be entitled immediately prior
to such event under clause (ii) of the preceding sentence shall be adjusted by
multiplying such amount by a fraction, the numerator of which is the number of
shares of Common Stock outstanding immediately after such event and the
denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
(B) The Corporation shall declare a dividend or distribution on the Series
A Preferred Stock as provided in paragraph (A) of this Section II immediately
after it declares a dividend or distribution on the Common Stock (other than a
dividend payable in shares of Common Stock); PROVIDED, HOWEVER, that, in the
event no dividend or distribution shall have been declared on the Common Stock
during the period between any Quarterly Dividend Payment Date and the next
subsequent Quarterly Dividend Payment Date, a dividend of $1.00 per share on the
Series A Preferred Stock shall nevertheless be payable on such subsequent
Quarterly Dividend Payment Date.
(C) Dividends shall begin to accrue and be cumulative on outstanding
shares of Series A Preferred Stock from the Quarterly Dividend Payment Date next
preceding the date of issue of such shares, unless (i) the date of issue of such
shares is prior to the record date for the First Quarterly Dividend Payment
Date, in which case dividends on such shares shall begin to accrue from the date
of the first issuance of a share of Series A Preferred Stock, or (ii) the date
of issue is a Quarterly Dividend Payment Date or is a date after the record date
for the determination of holders of shares of Series A Preferred Stock entitled
to receive a quarterly dividend and before such Quarterly Dividend Payment Date,
in either of which events such dividends shall begin to accrue and be cumulative
from such Quarterly Dividend Payment Date. Accrued but unpaid dividends shall
not bear interest. Dividends paid on the shares of Series A Preferred Stock in
an amount less than the total amount of such dividends at the time accrued and
payable on such
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<PAGE>
shares shall be allocated pro rata on a share-by-share basis among all such
shares at the time outstanding. The Board of Directors may fix a record date
for the determination of holders of shares of Series A Preferred Stock entitled
to receive payment of a dividend or distribution declared thereon, which record
date shall be not more than 60 calendar days prior to the date fixed for the
payment thereof.
III. VOTING RIGHTS
The holders of shares of Series A Preferred Stock shall have the following
voting rights:
(A) Subject to the provision for adjustment hereinafter set forth, each
share of Series A Preferred Stock shall entitle the holder thereof to 1,000
votes on all matters submitted to a vote of the stockholders of the Corporation.
In the event the Corporation shall at any time (i) declare a dividend on the
outstanding shares of Common Stock payable in shares of Common Stock, (ii)
subdivide the outstanding shares of Common Stock, (iii) combine the outstanding
shares of Common Stock in a smaller number of shares, or (iv) issue any shares
of its capital stock in a reclassification of the outstanding shares of Common
Stock (including any such reclassification in connection with a consolidation or
merger in which the Corporation is the continuing or surviving corporation),
then, in each such case and regardless of whether any shares of Series A
Preferred Stock are then issued or outstanding, the number of votes per share to
which holders of shares of Series A Preferred Stock would otherwise be entitled
immediately prior to such event shall be adjusted by multiplying such number by
a fraction, the numerator of which is the number of shares of Common Stock
outstanding immediately after such event and the denominator of which is the
number of shares of Common Stock that were outstanding immediately prior to such
event.
(B) Except as otherwise provided herein, in any other Certificate of
Designations creating a series of Preferred Stock or any similar stock, or by
law, the holders of shares of Series A Preferred Stock and the holders of shares
of Common Stock and any other capital stock of the Corporation having general
voting rights shall vote together as one class on all matters submitted to a
vote of stockholders of the Corporation.
(C) Except as set forth herein, or as otherwise provided by law, holders
of Series A Preferred Stock shall have no voting rights.
IV. CERTAIN RESTRICTIONS
(A) Whenever quarterly dividends or other dividends or distributions
payable on the Series A Preferred Stock as provided in Section II are in
arrears, thereafter and until all accrued and unpaid dividends and
distributions, whether or not declared, on shares of Series A Preferred Stock
outstanding shall have been paid in full, the Corporation shall not:
(i) declare or pay dividends, or make any other distributions, on any
shares of stock ranking junior (either as to dividends or upon liquidation,
dissolution or winding up) to the Series A Preferred Stock;
(ii) declare or pay dividends, or make any other distributions, on
any shares of
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<PAGE>
stock ranking on a parity (either as to dividends or upon liquidation,
dissolution or winding up) with the Series A Preferred Stock, except
dividends paid ratably on the Series A Preferred Stock and all such parity
stock on which dividends are payable or in arrears in proportion to the
total amounts to which the holders of all such shares are then entitled;
(iii) redeem or purchase or otherwise acquire for consideration
shares of any stock ranking junior (either as to dividends or upon
liquidation, dissolution or winding up) to the Series A Preferred Stock,
provided that the Corporation may at any time redeem, purchase or otherwise
acquire shares of any such junior stock in exchange for shares of any stock
of the Corporation ranking junior (either as to dividends or upon
dissolution, liquidation or winding up) to the Series A Preferred Stock; or
(iv) redeem or purchase or otherwise acquire for consideration any
shares of Series A Preferred Stock, or any shares of stock ranking on a
parity with the Series A Preferred Stock, except in accordance with a
purchase offer made in writing or by publication (as determined by the
Board of Directors) to all holders of such shares upon such terms as the
Board of Directors, after consideration of the respective annual dividend
rates and other relative rights and preferences of the respective series
and classes, shall determine in good faith will result in fair and
equitable treatment among the respective series or classes.
(B) The Corporation shall not permit any subsidiary of the Corporation to
purchase or otherwise acquire for consideration any shares of stock of the
Corporation unless the Corporation could, under paragraph (A) of this Section
IV, purchase or otherwise acquire such shares at such time and in such manner.
V. REACQUIRED SHARES
Any shares of Series A Preferred Stock purchased or otherwise acquired by
the Corporation in any manner whatsoever shall be retired and canceled promptly
after the acquisition thereof. All such shares shall upon their cancellation
become authorized but unissued shares of Preferred Stock and may be reissued as
part of a new series of Preferred Stock subject to the conditions and
restrictions on issuance set forth herein, in the Certificate of Incorporation,
or in any other Certificate of Designations creating a series of Preferred Stock
or any similar stock or as otherwise required by law.
VI. LIQUIDATION, DISSOLUTION OR WINDING UP
Upon any liquidation, dissolution or winding up of the Corporation, no
distribution shall be made (A) to the holders of shares of stock ranking junior
(either as to dividends or upon liquidation, dissolution or winding up) to the
Series A Preferred Stock unless, prior thereto, the holders of shares of Series
A Preferred Stock shall have received $1,000 per share, plus an amount equal to
accrued and unpaid dividends and distributions thereon, whether or not declared,
to the date of such payment; PROVIDED, HOWEVER, that the holders of shares of
Series A Preferred Stock shall be entitled to receive an aggregate amount per
share, subject to the provision for adjustment hereinafter set forth, equal to
1,000 times the aggregate amount to be distributed per
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<PAGE>
share to holders of shares of Common Stock, or (B) to the holders of shares of
stock ranking on a parity (either as to dividends or upon liquidation,
dissolution or winding up) with the Series A Preferred Stock, except
distributions made ratably on the Series A Preferred Stock and all such parity
stock in proportion to the total amounts to which the holders of all such shares
are entitled upon such liquidation, dissolution or winding up. In the event the
Corporation shall at any time (i) declare a dividend on the outstanding shares
of Common Stock payable in shares of Common Stock, (ii) subdivide the
outstanding shares of Common Stock, (iii) combine the outstanding shares of
Common Stock in a smaller number of shares, or (iv) issue any shares of its
capital stock in a reclassification of the outstanding shares of Common Stock
(including any such reclassification in connection with a consolidation or
merger in which the Corporation is the continuing or surviving corporation),
then, in each such case and regardless of whether any shares of Series A
Preferred Stock are then issued or outstanding, the aggregate amount to which
each holder of shares of Series A Preferred Stock would otherwise be entitled
immediately prior to such event under the proviso in clause (A) of the preceding
sentence shall be adjusted by multiplying such amount by a fraction, the
numerator of which in the number of shares of Common Stock outstanding
immediately after such event and the denominator of which is the number of
shares of Common Stock that were outstanding immediately prior to such event.
VII. CONSOLIDATION, MERGER, ETC.
In case the Corporation shall enter into any consolidation, merger,
combination or other transaction in which the shares of Common Stock are
exchanged for or changed into other stock or securities, cash and/or any other
property, then, in each such case, each share of Series A Preferred Stock shall
at the same time be similarly exchanged or changed into an amount per share,
subject to the provision for adjustment hereinafter set forth, equal to 1,000
times the aggregate amount of stock, securities, cash and/or any other property
(payable in kind), as the case may be, into which or for which each share of
Common Stock is changed or exchanged. In the event the Corporation shall at any
time (A) declare a dividend on the outstanding shares of Common Stock payable in
shares of Common Stock, (B) subdivide the outstanding shares of Common Stock,
(C) combine the outstanding shares of Common Stock in a smaller number of
shares, or (D) issue any shares of its capital stock in a reclassification of
the outstanding shares of Common Stock (including any such reclassification in
connection with a consolidation or merger in which the Corporation is the
continuing or surviving corporation), then, in each such case and regardless of
whether any shares of Series A Preferred Stock are then issued or outstanding,
the amount set forth in the preceding sentence with respect to the exchange or
change of shares of Series A Preferred Stock shall be adjusted by multiplying
such amount by a fraction, the numerator of which is the number of shares of
Common Stock outstanding immediately after such event and the denominator of
which is the number of shares of Common Stock that were outstanding immediately
prior to such event.
VIII. REDEMPTION
The shares of Series A Preferred Stock shall not be redeemable.
IX. RANK
The Series A Preferred Stock shall rank, with respect to the payment of
dividends and the
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<PAGE>
distribution of assets, junior to all series of any other class of the
Corporation's Preferred Stock.
X. AMENDMENT
The Certificate of Incorporation of the Corporation shall not be amended in
any manner which would materially alter or change the powers, preferences or
special rights of the Series A Preferred Stock so as to affect then adversely
without the affirmative vote of the holders of at least two-thirds of the
outstanding shares of Series A Preferred Stock, voting together as a single
series
Page 17 of 19
<PAGE>
EXHIBIT 99(a)
CERTIFICATE OF AUTHENTICITY
I, James A. Gilbert, as Secretary of HBO & Company (the "Company") do hereby
certify that the following is a true copy of the Resolutions relating to the
stock split in the form of a stock dividend adopted by the Board of Directors of
the Company at a Board meeting held May 14, 1996.
May 14, 1996 /s/ James A. Gilbert
- --------------------- ------------------------------------
DATE JAMES A. GILBERT
Secretary
RESOLUTION NO. 1: TWO-FOR-ONE STOCK SPLIT IN THE FORM OF
A STOCK DIVIDEND
RESOLVED, that a two-for-one stock dividend in the form of fully paid and
nonassessable shares of the authorized and unissued shares of the common stock,
par value $.05 per shares (the "Common Stock") of the Corporation is hereby
declared payable, to the holders of record of Common Stock issued and
outstanding as of the close of business on May 27, 1996, in proportion to their
stockholdings at that time, that is to say, two shares of Common Stock for every
one share of Common Stock held of record by them respectively on said date,
payable on June 10, 1996;
FURTHER RESOLVED, that there be transferred from the retained earnings to
capital of the Corporation an amount equal to the par value of all shares of
Common Stock issued in respect of such dividend;
FURTHER RESOLVED, that the appropriate officers of the Corporation are hereby
authorized and directed to execute any and all documents or agreements as may be
required to be submitted to any agency or entity, including without limitation
the Securities and Exchange Commission, the National Association of Securities
Dealers Exchange and the transfer agent of the Corporation, and to take such
further action as they in their sole discretion deem necessary or appropriate in
order to effectuate the purposes and intent of the foregoing resolutions; and
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<PAGE>
EXHIBIT 99(b)
NEWS RELEASE
CONTACT: ANNE DAVENPORT, HBO & COMPANY 301 PERIMETER CENTER NORTH
INVESTOR RELATIONS ATLANTA, GA 30346
(770) 668-5968
CONTACT: MARK SCHONAU, CYCARE SYSTEMS, INC. 7001 NORTH SCOTTSDALE ROAD
CFO SUITE 100
(602) 596-4374 SCOTTSDALE, AZ 85253
HBOC SIGNS DEFINITIVE AGREEMENT TO ACQUIRE CYCARE SYSTEMS, INC.
ATLANTA, May 20, 1996 -- HBO & Company (Nasdaq:HBOC) and CyCare Systems,
Inc. (NYSE:CYS) today announced that they have signed a definitive agreement for
HBOC to acquire CyCare, a leading provider of management information systems
and electronic data interchange (EDI) services for medical group practices,
faculty practice plans and medical enterprises.
The acquisition, which is subject to certain conditions, including
regulatory and CyCare shareholder approval, will be accounted for as a pooling
of interests and is expected to close during the third quarter of 1996. Terms
of the agreement call for CyCare's shareholders to receive 0.43 of a share of
HBOC common stock for each share of CyCare common stock if the average HBOC
share price remains between $104.50 and $130.00 during the 20 trading days
shortly before the date of the special meeting of CyCare shareholders (all
amounts are before adjustment for HBOC's two-for-one split in the form of a
stock dividend payable June 10,1996) . Should the average HBOC share price
during that pricing period be above $130.00 or below $104.50, CyCare
shareholders will receive a fraction of a share of HBOC common stock with a
value of $55.90 or $44.935, respectively, per CyCare share.
"The addition of CyCare's client/server-based physician practice
management applications and EDI services to HBOC's current product portfolio is
an important step toward our goal of meeting the information needs of the entire
health enterprise," stated Charles W. McCall, HBOC president and chief executive
officer. "CyCare's customer base of 20,000 physicians provides HBOC with a
substantial presence in a $1.5 billion segment of the healthcare market that is
expected to increase its spending on information systems by more than 20% a
year."
"We are very pleased with the decision to merge with HBOC," noted Jim
Houtz, CyCare chairman and chief executive officer. "The growth opportunities
resulting from the combination of the two companies will be of great benefit to
CyCare's employees, shareholders and customers."
CyCare Systems, Inc. is one of the nation's leading providers of
information systems, related support services and electronic data interchange
(EDI) services to the healthcare industry including medical group practices,
faculty practice plans and integrated healthcare networks.
HBO & Company delivers enterprisewide patient care, clinical,
financial and strategic management software solutions, as well as networking
technologies, outsourcing and other services to healthcare organizations in the
United States, United Kingdom, Canada, Australia and New Zealand.
###
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