<PAGE>
As filed with the Securities and Exchange Commission on December 10, 1996
Registration No. 333-___________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
Form S-8
Registration Statement Under The Securities Act of 1933
____________________
HBO & COMPANY
(Exact name of registrant as specified in its charter)
Delaware
(State or other jurisdiction of incorporation or organization)
37-0986839
(I.R.S. Employer Identification No.)
301 Perimeter Center North
Atlanta, Georgia 30346
(Address of principal executive offices) (zip code)
____________________
GMIS INC.
1991 STOCK OPTION PLAN
(Full title of the plan)
____________________
Charles W. McCall
HBO & Company
301 Perimeter Center North
Atlanta, Georgia 30346
(Name and address of agent for service)
____________________
(770) 393-6000
(Telephone number, including area code, of agent for service)
____________________
WITH COPY TO:
Lisa A. Stater, Esq.
Jones, Day, Reavis & Pogue
3500 One Peachtree Center
303 Peachtree Street, N.E.
Atlanta, Georgia 30308-3242
(404) 521-3939
Exhibit Index Appears on Page 10
Page 1 of 23 Pages
<PAGE>
<TABLE>
<CAPTION>
Calculation of Registration Fee
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
Proposed maxi- Proposed maxi-
Title of securities Amount to be mum offering mum offering Amount of
to be registered registered price per share price per share registration fee
- -----------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $.05
par value, and
Preferred Share
Purchase Rights(3) 189,854 $29.7301(1) $5,644,378.41(1) $1,710.42(2)
shares
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
</TABLE>
(1) Estimated solely for calculating the amount of the registration fee,
pursuant to Rule 457(h) under the Securities Act of 1933, as amended.
Because all shares are presently subject to options, the offering price is
based upon the actual weighted average exercise price, of $29.7301 per
share.
(2) The registration fee is calculated by multiplying the product of
$29.7301, the weighted average exercise price per share, and 189,854, the
number of shares subject to option, by 1/33 of 1%.
(3) The Preferred Share Purchase Rights, which are attached to the shares of
Common Stock being registered, will be issued for no additional
consideration; no additional registration fee is required.
Page 2 of 23 Pages
<PAGE>
EXPLANATORY NOTE
In accordance with the Note to Part I of Form S-8, the information specified
by Part I has been omitted from this Registration Statement.
Page 3 of 23 Pages
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
HBO & Company (the "Company") hereby incorporates by reference into this
Registration Statement the following documents:
(a) The Company's Annual Report on Form 10-K for the fiscal year ended December
31, 1995.
(b) All other reports filed with the Securities and Exchange Commission (the
"Commission") pursuant to Section 13(a) or 15(d) of the Securities Exchange
Act of 1934, as amended (the "1934 Act"), since December 31, 1995.
(c) The description of the Common Stock and Preferred Share Purchase Rights
contained in the Company's Registration Statement on Form 8-A filed with
the Commission on August 19, 1981, as amended, and February 19, 1991, as
amended, respectively.
All documents subsequently filed by the Company pursuant to Sections 13(a),
13(c), 14 and 15(d) of the 1934 Act prior to the filing of a post-effective
amendment which indicates that all securities have been sold or which
deregisters all securities then remaining unsold shall be deemed to be
incorporated by reference in this Registration Statement and to be a part hereof
from the date of filing such documents.
Item 4. DESCRIPTION OF SECURITIES.
Inapplicable.
Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Inapplicable.
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Set forth below is a description of certain provisions of the Certificate
of Incorporation of the Company, the By-Laws, as amended (the "By-Laws") of the
Company and the General Corporation Law of the State of Delaware (the "Delaware
General Corporation Law"), as such provisions relate to the indemnification of
the directors and officers of the Company. This description is intended only as
a summary and is qualified in its entirety by reference to the Certificate of
Incorporation, the By-Laws and the Delaware General Corporation Law.
The Company's 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 Delaware General Corporation Law, 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
Page 4 of 23 Pages
<PAGE>
suffered by him in connection therewith. Such right of indemnification shall
be a contract right that may be enforced in any manner by such person. Such
right of indemnification shall not be exclusive of any other right which such
directors, officers or representatives may have or hereafter acquire and,
without limiting the generality of such statement, they shall be entitled to
their respective rights of indemnification under any bylaw, agreement, vote
of stockholders, provision of law or otherwise, as well as their rights under
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 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 Delaware General Corporation Law was amended in 1986 to
enable a Delaware corporation to include in its certificate of incorporation a
provision eliminating or limiting a director's liability to the corporation or
its stockholders for monetary damages for breaches of a director's fiduciary
duty of care. The statutory amendment provides, however, that (a) liability for
duty or loyalty, (b) acts or omissions not in good faith or involving
intentional misconduct or knowing violations of law, (c) the unlawful purchase
or redemption of stock or unlawful dividends or (d) the right of improper
personal benefits could not be eliminated or limited in this manner. The
Company's Certificate of Incorporation has been amended
Page 5 of 23 Pages
<PAGE>
to contain provisions substantially similar to those contained in the amended
Delaware General Corporation Law.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED.
Inapplicable.
Item 8. EXHIBITS.
Exhibit
Number Description
- ------- -----------
Included in Part II of the Registration Statement:
4 GMIS 1991 Stock Option Plan
5 Opinion of Counsel re: legality
15 Letter re: unaudited interim financial information
23(a) Consent of Counsel (contained in Exhibit 5)
23(b) Consent of independent public accountants
24 Power of Attorney (included in signature page)
Item 9. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, as amended (the
"1933 Act"), each filing of the registrant's annual report pursuant to
Section 13(a) or Section 15(d) of the 1934 Act (and, where applicable, each
filing of an employee benefit plan's annual report pursuant to Section
15(d) of the 1934 Act) that is incorporated by reference in the
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide
offering thereof.
(b) Insofar as indemnification for liabilities arising under the 1933 Act may
be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the 1933 Act and
is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or
controlling person of the registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, the
registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against
public policy as expressed in the 1933 Act and will be governed by the
final adjudication of such issue.
(c) The undersigned registrant undertakes to include any material information
with respect to the plan of distribution not previously disclosed in the
registration statement or any material change to such information in the
registration statement.
Page 6 of 23 Pages
<PAGE>
(d) The undersigned registrant undertakes that, for the purpose of determining
any liability under the 1933 Act, each such post-effective amendment shall
be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(e) The undersigned registrant undertakes to remove from registration by means
of a post-effective amendment any of the securities being registered which
remain unsold at the termination of the offering.
Page 7 of 23 Pages
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Atlanta, State of Georgia, on the 10th day of
December, 1996.
HBO & COMPANY
By: /s/ Charles W. McCall
------------------------------------
Charles W. McCall
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Charles W. McCall and Jay P. Gilbertson, jointly
and severally, each in his own capacity, his true and lawful attorneys-in-fact
and agents, each with full power of substitution and resubstitution, for him and
in his name, place and stead, in any and all capacities, to sign any and all
amendments to this Registration Statement, and to file the same, with all
exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite or necessary to be done in and about the premises,
as fully to all intents and purposes as he might or could do in person, hereby
ratifying and confirming all that each of said attorneys-in-fact and agents, or
his substitute or substitutes, may lawfully do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the date indicated:
Signature Title Date
--------- ----- -----
/s/ Charles W. McCall Director, President and December 10, 1996
- -------------------------- Chief Executive Officer
Charles W. McCall (Principal Executive
Officer)
/s/ Jay P. Gilbertson Senior Vice President - December 10, 1996
- -------------------------- Finance, Chief Financial
Jay P. Gilbertson Officer, Principal
Accounting Officer,
Treasurer and Secretary
(Principal Financial
Officer and Principal
Accounting Officer)
/s/ Holcombe T. Green, Jr. Chairman of the Board of December 10, 1996
- -------------------------- Directors
Holcombe T. Green, Jr.
Page 8 of 23 Pages
<PAGE>
Signature Title Date
--------- ----- -----
/s/ Alfred C. Eckert III Director December 10, 1996
- --------------------------
Alfred C. Eckert III
/s/ Philip A. Incarnati Director December 10, 1996
- --------------------------
Philip A. Incarnati
/s/ Alton F. Irby III Director December 10, 1996
- --------------------------
Alton F. Irby III
/s/ Gerald E. Mayo Director December 10, 1996
- --------------------------
Gerald E. Mayo
/s/ James V. Napier Director December 10, 1996
- --------------------------
James V. Napier
/s/ Charles E. Thoele Director December 10, 1996
- --------------------------
Charles E. Thoele
/s/ Donald C. Wegmiller Director December 10, 1996
- --------------------------
Donald C. Wegmiller
Page 9 of 23 Pages
<PAGE>
EXHIBIT INDEX
Exhibit Page
Number Description Number
- ------- ----------- -------
Included in Part II of the Registration Statement:
4 GMIS Inc. 1991 Stock Option Plan 11
5 Opinion of Counsel re: legality 21
15 Letter re: unaudited interim financial information 22
23(a) Consent of Counsel (contained in Exhibit 5) 21
23(b) Consent of independent public accountants 23
24 Power of Attorney (included in signature page) 8
Page 10 of 23 Pages
<PAGE>
EXHIBIT 4
GMIS INC.
1991 STOCK OPTION PLAN
1. PURPOSE. The purpose of the GMIS Inc. 1991 Stock Option Plan (the
"Plan") is to advance the interests of GMIS Inc., a Delaware corporation (the
"Company"), by providing an opportunity to selected key employees, consultants
and directors of the Company to purchase shares of Common Stock, $.01 par value,
of the Company (the "Common Stock"). By encouraging such stock ownership, the
Company seeks to attract, retain and motivate certain employees, consultants and
directors of experience and ability. It is intended that this purpose will be
effected by the granting of nonqualified stock options ("nonqualified options")
the federal income tax treatment of which is determined under Section 83 of the
Internal Revenue Code of 1986, as amended from time to time, and regulations
thereunder (the "Code") and incentive stock options intended to qualify under
Section 422 of the Code ("incentive options").
2. EFFECTIVE DATE. This Plan was adopted by the Board of Directors of
the Company on June 3, 1991 and is effective as of the 4th day of June, 1991,
the date it was approved by its Stockholders.
3. STOCK SUBJECT TO THE PLAN. The number of shares with respect to which
options may be granted under the Plan shall not exceed 160,000 shares of Common
Stock. Any shares of Common Stock subject to an option under the Plan which for
any reason expires or is terminated unexercised may again be the subject of an
option under the Plan. In addition, any shares purchased by an optionee upon
exercise of an option under the Plan that are subsequently reacquired by the
Company pursuant to a repurchase right under the terms of such option may again
be the subject of an option under the Plan. The shares of Common Stock
delivered upon exercise of options granted under the Plan may, in whole or in
part, be authorized but unissued shares, treasury shares, or any other issued
shares subsequently reacquired by the Company.
4. ADMINISTRATION. The Plan shall be administered by a stock option
committee (the "Committee") comprised of two or more directors of the Company
who are not employees of the Company or any parent or subsidiary of the Company
("nonemployee directors") and who qualify as "disinterested persons" within the
meaning of Section 16(b) of the Securities Exchange Act of 1934, as amended from
time to time and the rules promulgated thereunder (the "Exchange Act"). The
members of the Committee shall be elected by the Board of Directors of the
Company (the "Board"), which shall have the discretion to remove any member of
the Committee for any reason. Subject to the provisions of the Plan, the
Committee shall have full power to construe and interpret the Plan and to
establish, amend and rescind rules and regulations for its administration. Any
decisions made with respect thereto shall be final and binding on the Company,
the optionee and all other persons. In addition, no employee, director or
consultant shall have a right to be granted an option or, having received an
option, a right to again be granted an option, except to the extent provided in
Paragraph 9.
5. ELIGIBLE PARTICIPANTS. In its sole discretion, the Committee may
grant incentive options or nonqualified options, or both, to key employees of
the Company or any parent or subsidiary of the Company, including members of the
Board of Directors who are also key employees of the Company or any subsidiary
of the Company. Each nonemployee director shall be granted nonqualified options
only in accordance with Paragraph 9.
6. DURATION OF THE PLAN. The Plan shall terminate when all shares of
Common Stock that may be made subject to options under the Plan have been
acquired, or, in the case of incentive options only, ten (10) years from the
effective date of this Plan, if earlier, unless terminated earlier pursuant to
Paragraph 14 hereof, and no options may be granted thereafter.
Page 11 of 23 Pages
<PAGE>
7. RESTRICTIONS ON INCENTIVE OPTIONS. Incentive options (but not
nonqualified options) granted under this Plan shall be subject to the following
restrictions:
(a) LIMITATION ON NUMBER OF SHARES. Ordinarily, the aggregate fair
market value, determined as of the date an incentive stock option is granted, of
the shares of Common Stock with respect to which incentive options are
exercisable for the first time by an individual during any calendar year shall
not exceed $100,000. If an incentive option is granted pursuant to which the
aggregate fair market value of shares with respect to which it first becomes
exercisable in any calendar year by an individual exceeds the aforementioned
$100,000 limitation, the portion of such option which is in excess of the
$100,000 limitation shall be treated as a nonqualified option pursuant to
Section 422(d)(1) of the Code. In the event that an individual is eligible to
participate in any other stock option plan of the Company or any parent or
subsidiary of the Company which is also intended to comply with the provisions
of Section 422 of the Code, the $100,000 limitation shall apply to the aggregate
number of shares for which incentive stock options may be granted under all such
plans.
(b) 10% STOCKHOLDER. If any employee to whom an incentive option is
granted pursuant to the provisions of the Plan is on the date of grant the owner
of stock (as determined under Section 424(d) of the Code) possessing more than
10% of the total combined voting power of all classes of stock of the Company or
any parent or subsidiary of the Company, then the following special provisions
shall be applicable to the incentive option granted to such individual:
(i) The option price per share subject to such incentive option shall
not be less than 110% of the fair market value of one share on
the date of grant; and
(ii) The incentive option shall not have a term in excess of five (5)
years from the date of grant.
8. TERMS AND CONDITIONS OF GRANTS. Subject to Paragraph 9, options
granted under this Plan shall be evidenced by stock option agreements in such
form and containing such terms and conditions not inconsistent with the Plan as
the Committee shall approve from time to time, which agreements shall evidence
the following terms and conditions:
(a) PRICE. Subject to the conditions on incentive options in
Paragraph 7(b), if applicable, the purchase price per share payable upon the
exercise of each incentive option granted hereunder shall be as determined by
the Committee in its discretion, and shall be at least 100% of the fair market
value per share on the date of grant. The purchase price per share payable upon
exercise of each nonqualified option granted hereunder (other than options
granted to nonemployee directors) shall be as determined by the Committee in its
discretion and shall be at least 85% of the fair market value per share on the
date of grant. The Committee, in its discretion, also may establish (but need
not) a purchase price payable upon acquisition of a nonqualified option.
(b) NUMBER OF SHARES. Each stock option grant agreement or stock
purchase grant agreement shall specify the number of shares of Common Stock to
which it pertains.
(c) EXERCISE. Subject to Paragraph 9, Paragraph 11 and to the
conditions on incentive options in subparagraph (b)(ii) of Paragraph 7, if
applicable, each option grant shall be exercisable for the full amount or for
any part thereof and at such intervals or in such installments as the Committee
may determine at the time it grants such option; provided, however, that no
option grant shall be exercisable with respect to any share of Common Stock
later than ten (10) years after the date of such grant.
(d) NOTICE OF EXERCISE AND PAYMENT. An option shall be exercisable
only by delivery of a written notice to the Company's Treasurer or any other
officer of the Company designated by the Committee to accept such notices on its
behalf, specifying the number of shares of Common Stock for which it is
exercised. If said shares are not at that time effectively registered under the
Securities Act of 1933, as
Page 12 of 23 Pages
<PAGE>
amended, the optionee shall include with such notice
a letter, in form and substance satisfactory to the Company, confirming that the
shares are being purchased for the optionee's own account for investment and not
with a view to distribution. Payment shall be made in full at the time the
option grant or purchase right grant is exercised. Payment shall be made (i) by
cash or by check, (ii) if permitted by the Committee and stated in the stock
option agreement, by delivery and assignment to the Company of shares of Common
Stock having a value equal to the option price, or (iii) by any combination of
(i) and (ii). The value of the Company Stock for such purpose shall be its fair
market value as of the date the option or purchase right is exercised.
(e) WITHHOLDING TAXES; DELIVERY OF SHARES. The Company's obligation
to deliver shares of Common Stock upon exercise of options, in whole or in part,
shall be subject to the optionee's satisfaction of all applicable federal, state
and local income and employment tax withholding obligations. The Committee, in
its discretion, may permit the optionee to satisfy the obligation, in whole or
in part, by irrevocably electing to have the Company withhold shares of Common
Stock, or to deliver to the Company shares of Common Stock that he already owns,
having a value equal to the amount required to be withheld. The value of shares
to be withheld, or delivered to the Company, shall be based on the fair market
value of the shares, as determined in accordance with procedures to be
established by the Committee, on the date the amount of tax to be withheld is to
be determined (the "Tax Date"). The optionee's election to have shares
withheld, or delivered to the Company, for this purpose will be subject to the
following restrictions:
(1) the election must be made prior to the Tax Date; (2) the election
must be irrevocable; (3) the election will be subject to the
disapproval of the Committee; and (4) if an optionee is a person whose
transactions in stock of the Company are subject to Section 16(b) of
the Exchange Act, such election may only be made if the Company meets
the requirements relating to dissemination of "Information About the
Issuer" continued in Rule 16(b)-3(e)(1) under the Exchange Act and in
any event may not be made within six months of the date the option is
granted and must be made during the period beginning on the third
business day and ending on the twelfth business day that follows the
release of the Company's quarterly or annual summary statement of
sales and earnings.
(f) TERMINATION OF SERVICE. Each option agreement shall contain
provisions for the termination of the options granted thereunder if the optionee
ceases for any reason to be an employee or director of or consultant to the
Company or any subsidiary of the Company, no more favorable to the optionee than
the following:
(i) if the optionee ceases to perform services for the Company or any
parent or subsidiary of the Company by reason of resignation or
other voluntary action of the optionee, or if the Company or any
parent or subsidiary of the Company determines that it no longer
wishes to engage the optionee's services and makes such
determination based on cause, the option shall terminate at the
time of such resignation or termination and may not be exercised
thereafter;
(ii) if the optionee ceases to perform services for the Company or any
parent or subsidiary of the Company for any reason other than
cause, resignation or other voluntary action before retirement
(as defined in (v) below), death or disability (as defined in
(iii) below), he may, at any time within a period of three (3)
months after he ceased to perform services, exercise each of his
options to the extent that the option was exercisable by him on
the date on which he ceased to perform services for the Company
or any parent or subsidiary of the Company;
(iii) if the optionee ceases to perform services for the Company
or any parent or subsidiary of the Company because of
disability within the meaning of Section 22(e)(3) of the
Code, he may, at any time within a period of one (1) year
after
Page 13 of 23 Pages
<PAGE>
he ceases to perform services, exercise the option to
the extent that the option was exercisable by him on the
date he ceased to perform services;
(iv) if the optionee dies at a time when he might have exercised the
option, then his estate, personal representative or beneficiary
to whom it has been transferred pursuant to Paragraph 8(h) hereof
may at any time within a period of one (1) year after the
optionee's death exercise the option to the extent the optionee
might have exercised it at the time of his death; and
(v) if the optionee ceases to perform services for the Company or any
parent or subsidiary of the Company because of his retirement at
or after attainment of age 60, he may exercise incentive options
within three months, and nonqualified stock options within a
period of one (1) year after his retirement date;
provided, however, that the Committee may provide specifically in a nonqualified
option agreement (other than an option granted to a nonemployee director, which
shall contain the provisions in (i) through (v) above), but not an incentive
option agreement, for such other period of time during which an optionee may
exercise an option after termination of services as the Committee may approve,
subject to the overriding limitation that no option may be exercised to any
extent by anyone after the date of expiration of the option.
(g) RIGHTS AS STOCKHOLDER. The optionee shall have no rights as a
stockholder with respect to any shares of Common Stock covered by an option
until the date the option has been exercised and the full purchase price for
such shares has been received by the Company.
(h) NON-TRANSFERABILITY. No option shall be transferable by the
optionee otherwise than by will or the laws of descent and distribution, and
each option shall be exercisable during the grantee's lifetime only by the
optionee (or the optionee's guardian or legal representative).
(i) REPURCHASE OF SHARES BY THE COMPANY. Any shares of Common Stock
repurchased by an optionee upon exercise of an option may, in the discretion of
the Committee, be subject to repurchase by the Company if and to the extent
specifically set forth in the stock option agreement or stock purchase agreement
pursuant to which shares of Common Stock were purchased.
9. GRANTS TO NONEMPLOYEE DIRECTORS. Each nonemployee director who is a
nonemployee director of the Company on the last day of a calendar year or who
has ceased to be a director during the calendar year due to his death or
retirement ay an age greater than 65 shall automatically be granted nonqualified
options to purchase 750 shares of Common Stock on January 1 of the next
following calendar year at a purchase price per share equal to 100% of the fair
market value per share on the date of grant. Payment of the purchase price for
the shares to be delivered upon exercise of any nonemployee director's option
may be made in whole or in part by delivery and assignment to the Company of
shares of Common Stock. A nonemployee director may satisfy all applicable
federal, state and local income and employment tax withholding obligations, in
whole or in part, by irrevocably electing to have the Company withhold shares of
Common Stock, or to deliver to the Company shares of Common Stock that he
already owns, having a value equal to the amount required to be withheld;
provided that to the extent not inconsistent herewith, such election otherwise
complies with those requirements of Paragraph 8(e) hereof. Any option granted
to a nonemployee director shall terminate on the nonemployee director's
termination of service in accordance with the provisions of Paragraph 8(f)(i)
through (v) without regard to any discretion otherwise granted to the Committee
to vary said provisions. Nonemployee directors' options shall otherwise be
subject to the terms and conditions of this Plan.
10. STOCK DIVIDENDS; STOCK SPLITS; STOCK COMBINATIONS; RECAPITALIZATIONS.
Appropriate adjustment shall be made by the Committee in the maximum number of
shares of Common Stock subject to the Plan to give effect to any stock
dividends, stock splits, stock combinations, recapitalizations and other similar
changes in the capital structure of the Company. Appropriate adjustment shall
be made in the
Page 14 of 23 Pages
<PAGE>
number, kind, and option price of shares covered by any
outstanding option hereunder to give effect to any stock dividends, stock
splits, stock combinations, recapitalizations and other similar changes in the
capital structure of the Company after the date such option is granted.
11. ACCELERATION OF EXERCISABILITY UNDER CERTAIN CIRCUMSTANCES. Upon the
occurrence of any of the events listed below, all outstanding incentive options
and nonqualified options held all optionees may, at the option of the Board or
if specified in the specific option agreement, become immediately exercisable in
full and no longer subject to any right of the Company (or any designee) to
repurchase shares purchased pursuant thereto at a price less than fair market
value on the date of repurchase. The events are:
(a) delivery of written notice of a stockholders' meeting to the
stockholders of the Company announcing a stockholders' meeting at which the
stockholders will consider a proposed acquisition of the Company by merger or
other combination, a proposed sale of substantially all the Company's assets or
similar proposed reorganization of the Company;
(b) the acquisition of beneficial ownership (as such term is defined
in Rule 13d-3 as promulgated under the Exchange Act) by any "person" (as such
term is used in Section 13(d) and 14(d) of the Exchange Act), other than the
Company, directly or indirectly, of securities representing 33 1/3% or more of
the total number of votes that may be cast for the election of directors of the
Company; or
(c) commencement (within the meaning of Rule 14d-2 as promulgated
under the Exchange Act) of a "tender offer" for Common Stock of the Company
subject to Section 14(d)(2) of the Exchange Act, other than self-tender by the
Company.
12. MERGER; SALE OF ASSETS; DISSOLUTION. In the event of a change of the
Common Stock of the Company resulting from a merger or similar reorganization as
to which the Company is the surviving corporation, the number and kind of shares
which thereafter may be optioned and sold under the Plan and the number and kind
of shares then subject to options granted hereunder and the price per share
thereof shall be appropriately adjusted in such manner as the Board may deem
equitable to prevent substantial dilution or enlargement of the rights available
or granted hereunder. Except as otherwise determined by the Board, a merger or
a similar reorganization which the Company does not survive, a liquidation or
distribution of the Company, or a sale of all or substantially all of the assets
of the Company, shall cause every option outstanding hereunder to terminate, to
the extent not then exercised, unless any surviving entity agrees to assume the
obligations hereunder.
13. DEFINITIONS.
(a) The term "employee" shall have, for purposes of this Plan, the
meaning ascribed to "employee" under Section 3401(c) of the Code and the
regulations promulgated thereunder; the term "key employees" means those
employees who are determined by the Committee to be in a position to contribute
materially to the Company's continued growth and development and to its
long-term financial success.
(b) The term "fair market value" shall mean, in the case of stock for
which there is a generally recognized market, the price of the stock prevailing
on a national securities exchange which is registered under the Exchange Act,
and in the case of stock not traded on such national securities exchange, the
price as determined in accordance with procedures to be established in good
faith by the Committee. With respect to incentive options, the Committee shall
determine fair market value in conformance with regulations issued by the
Internal Revenue Service with regard to incentive stock options.
(c) The term "option," unless otherwise indicated, means either an
incentive option or a nonqualified option.
(d) The term "optionee" means a key employee, director of or
consultant to the Company to whom an option is granted under the Plan.
Page 15 of 23 Pages
<PAGE>
(e) The term "parent" shall have, for the purpose of this Plan, the
meaning prescribed to it under Section 424(e) of the Code, as amended from time
to time, and regulations promulgated thereunder.
(f) The term "subsidiary" shall have, for purposes of this Plan, the
meaning ascribed to it under Section 424(f) of the Code, as amended from time to
time, and regulations promulgated thereunder.
14. TERMINATION OR AMENDMENT OF PLAN. The Board may from time to time,
with respect to any shares at the time not subject to options, suspend or
terminate the Plan or amend or revise the terms of the Plan; provided that the
provisions of Paragraph 9 that relate to the granting of nonqualified options to
nonemployee directors may not be amended more than once every six months (other
than to comport with changes in the Code, the Employee Retirement Income
Security Act of 1974, as amended, or the rules thereunder); and provided further
that any amendment of the Plan shall be approved by stockholders representing a
majority of the outstanding shares of capital stock of the Company to the extent
that such stockholder approval is necessary to comply with applicable provisions
of the Code, rules promulgated pursuant to Section 16 of the Exchange Act,
applicable state law, or NASD or exchange listing requirements.
No amendment, suspension or termination of the Plan shall, without the
consent of any affected optionee, alter or impair any rights or obligations
under any option theretofore granted to such optionee under the Plan.
Page 16 of 23 Pages
<PAGE>
AMENDMENT NO. 1
TO
GMIS INC.
1991 STOCK OPTION PLAN
This Amendment No. 1 made as of the 20th day of February 1992, by GMIS
Inc. (the "Company"), amends the GMIS Inc. 1991 Stock Option Plan (the
"Plan").
W I T N E S S E T H:
WHEREAS, subject to the affirmative vote of holders representing a
majority of the outstanding Common Stock of the Company, the Company desires
to amend certain provisions of the Plan.
NOW, THEREFORE, subject to such stockholder approval, the Plan shall be
amended as follows:
FIRST: Capitalized terms used herein but not defined shall have the
meanings given to them in the Plan and paragraph references contained herein
are references to paragraphs in the Plan.
SECOND: Paragraph 3 is hereby amended to increase the number of
shares with respect to which options may be granted under the Plan to 410,000
shares.
THIRD: Paragraph 9 is hereby amended to change the reference to
"750" to "5,000" in the sixth line thereof and to add a new second sentence
after the first to read as follows:
"In addition, each nonemployee director who is a member of
the Executive Committee of the Board of Directors shall be
granted a nonqualified option to purchase an additional
5,000 shares of Common Stock on the same terms and
conditions provided for in this Paragraph 9."
All other terms and conditions of the Plan shall continue in full
force and effect. Terms used herein but not defined shall have the meanings
given to them in the Plan.
Page 17 of 23 Pages
<PAGE>
AMENDMENT NO. 2
TO
GMIS INC.
1991 STOCK OPTION PLAN
This Amendment No. 2 made as of the _____ day of December 1992, by GMIS
Inc. (the "Company"), amends the GMIS Inc. 1991 Stock Option Plan (the
"Plan").
W I T N E S S E T H:
WHEREAS, subject to the affirmative vote of holders representing a
majority of the outstanding Common Stock of the Company, the Company desires
to amend certain provisions of the Plan.
NOW, THEREFORE, subject to such stockholder approval, the Plan shall be
amended as follows:
FIRST: Capitalized terms used herein but not defined shall have the
meanings given to them in the Plan and paragraph references contained herein
are references to paragraphs in the Plan.
SECOND: Paragraph 9 is hereby amended to add a new third sentence after
the second, so that such Paragraph 9, as amended, reads in its entirety as
follows:
"9. GRANTS TO NONEMPLOYEE DIRECTORS. Each nonemployee
director who is a nonemployee director of the Company on the
last day of a calendar year or who has ceased to be a director
during the calendar year due to his death or retirement at an
age greater than 65 shall automatically be granted nonqualified
options to purchase 5,000 shares of Common Stock on January 1 of
the next following calendar year at a purchase price per share
equal to 100% of the fair market value per share on the date of
grant. In addition, each nonemployee director who is a member of
the Executive Committee of the Board of Directors shall be granted
a non-qualified option to purchase an additional 5,000 shares of
Common Stock on the same terms and conditions provided for in this
Paragraph 9. In addition, on the later of the date of adoption
hereof by the Board of Directors or the first anniversary of
such director's service on the Board of Directors, a one time
grant shall be made to each director who has served as a director
of the Company for more than one year of (i) nonqualified options
to purchase 5,000 shares of Common Stock on the same terms and
conditions provided for in this Paragraph 9 and (ii) if such
director is also a member of the Executive Committee of the Board
of Directors, an additional nonqualified option to purchase
5,000 shares of Common Stock, on the same terms and
conditions provided for in (i) above. Payment of the
purchase price for the shares to be delivered upon exercise
of any nonemployee director's option may be made in whole or
in part by delivery and assignment to the Company of shares
of Common Stock. A nonemployee director may satisfy all
applicable federal, state and local income and employment
tax withholding obligations, in whole or in part, by
irrevocably electing to have the Company withhold shares of
Common Stock, or to deliver to the Company shares of Common
Stock that he already owns, having a value equal to the
amount required to be withheld; provided that to the extent
not inconsistent herewith, such election otherwise complies
with those requirements of Paragraph 8(e) hereof. Any
Page 18 of 23 Pages
<PAGE>
option granted to a nonemployee director shall terminate on
the nonemployee director's termination of service in
accordance with the provisions of Paragraph 8(f)(i) through
(v) without regard to any discretion otherwise granted to
the Committee to vary said provisions. Nonemployee
directors' options shall otherwise be subject to the terms
and conditions of this Plan."
All other terms and conditions of the Plan shall continue in full force
and effect. Terms used herein but not defined shall have the meanings given
to them in the Plan.
Page 19 of 23 Pages
<PAGE>
AMENDMENT NO. 3
TO
GMIS INC.
1991 STOCK OPTION PLAN
This Amendment No. 3 made as of the _____ day of March 1993, by GMIS Inc.
(the "Company"), amends the GMIS Inc. 1991 Stock Option Plan (the "Plan").
W I T N E S S E T H:
WHEREAS, subject to the affirmative vote of holders representing a majority
of the outstanding Common Stock of the Company, the Company desires to increase
the number of shares of Common Stock of the Company available under the Plan.
NOW, THEREFORE, subject to such stockholder approval, the Plan shall be
amended as follows:
FIRST: Capitalized terms used herein but not defined shall have the
meanings given to them in the Plan and paragraph references contained herein are
references to paragraphs in the Plan.
SECOND: Paragraph 3 is hereby amended to increase the number of shares
with respect to which options may be granted under the Plan to 915,000 shares.
All other terms and conditions of the Plan shall continue in full force and
effect. Terms used herein but not defined shall have the meanings given to them
in the Plan.
Page 20 of 23 Pages
<PAGE>
Exhibit 5
December 10, 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 189,854 shares of Common
Stock, $.05 par value per share, of the Company (the "Shares"), to be issued by
the Company in accordance with the GMIS Inc. 1991 Stock Option Plan pursuant to
a Registration Statement on Form S-8 filed with the Securities and Exchange
Commission (the "Registration Statement") to which this opinion appears as
Exhibit 5.
We have examined originals or certified or photostatic copies of such
records of the Company, certificates of officers of the Company, and public
officials and such other documents as we have deemed relevant or necessary as
the basis of the opinion set forth below in this letter. In such examination,
we have assumed the genuineness of all signatures, the conformity to original
documents submitted as certified or photostatic copies, and the authenticity of
originals of such latter documents. Based on the foregoing, we are of the
following opinion:
The Shares, when issued in the manner contemplated by the Registration
Statement, will be validly issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion as Exhibit 5 to the
Registration Statement.
Sincerely,
/s/ Jones, Day, Reavis & Pogue
JONES, DAY, REAVIS & POGUE
Page 21 of 23 Pages
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[LETTERHEAD] EXHIBIT 15
LETTER REGARDING UNAUDITED
INTERIM FINANCIAL INFORMATION
We are aware that HBO & Company has incorporated by reference in its Form S-8
Registration Statement for the GMIS Inc. 1991 Stock Option Plan, its Form 10-Qs
for the quarters ended March 31, 1996, June 30, 1996, and September 30, 1996
which include our reports dated April 16, 1996, July 16, 1996, and October 16,
1996, respectively, covering the unaudited interim financial information
contained therein. Pursuant to Regulation C of the Securities Act of 1933 (the
"Act"), those reports are not considered to be a part of the Registration
Statements prepared or certified by our firm or reports prepared or certified by
our firm within the meaning of Sections 7 and 11 of the Act.
/s/ Arthur Andersen LLP
Atlanta, Georgia
December 9, 1996
Page 22 of 23 Pages
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[LETTERHEAD] EXHIBIT 23(b)
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this Registration Statement of our reports dated February 6, 1996,
incorporated by reference or included in HBO & Company's Annual Report on Form
10-K for the year ended December 31, 1995 and to all references to our firm
included in this Registration Statement.
/s/ Arthur Andersen LLP
Atlanta, Georgia
December 9, 1996
Page 23 of 23 Pages
