<PAGE>
As filed with the Securities and Exchange Commission on May 12, 1997
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)
--------------------
HBO & Company
Omnibus Stock Incentive 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>
Calculation of Registration Fee
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
Proposed maxi- Proposed maxi-
Title of securities Amount to be mum offering mum aggregate Amount of
to be registered registered price per share offering price registration fee
- ------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, 8,799,395 $57.25(1) $503,765,363.70(1) $152,656.02(2)
$.05 par value, and shares
Preferred Share
Purchase Rights(3)
- ------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------
</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. Based
upon the closing market price per share of $57.25 for the common stock on
the Nasdaq Stock Market on May 8, 1997, a date within 5 business days of the
filing of this registration statement.
(2) The registration fee is calculated by multiplying the product of
$57.25, the closing market price per share, and 8,799,395, the number of
shares being registered, 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
[INFORMATION REQUIRED IN THE REGISTRATION STATEMENT]
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, 1996.
(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, 1996.
(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 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 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 HBO & Company Omnibus Stock Incentive Plan
5 Opinion of Counsel re: legality
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 12 day of May,
1997.
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 Chief Executive May 12, 1997
- ---------------------- Officer (Principal Executive Officer)
Charles W. McCall
/s/ Jay P. Gilbertson Executive Vice President, Chief May 12, 1997
- ---------------------- Financial Officer, Principal
Jay P. Gilbertson Accounting Officer, Treasurer and
Secretary (Principal Financial
Officer and Principal Accounting
Officer)
/s/ Holcombe T. Green, Jr
- ---------------------- Chairman of the Board of May 12, 1997
Holcombe T. Green, Jr. Directors
Page 8 of 23 Pages
<PAGE>
Signature Title Date
--------- ----- ----
/s/ Alfred C. Eckert III
- ---------------------- Director May 12, 1997
Alfred C. Eckert III
/s/ Philip A. Incarnati
- ---------------------- Director May 12, 1997
Philip A. Incarnati
/s/ Alton F. Irby III
- ---------------------- Director May 12, 1997
Alton F. Irby III
/s/ Gerald E. Mayo
- ---------------------- Director May 12, 1997
Gerald E. Mayo
/s/ James V. Napier
- ---------------------- Director May 12, 1997
James V. Napier
/s/ Donald C. Wegmiller
- ---------------------- Director May 12, 1997
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 HBO & Company Omnibus Stock Incentive Plan 11
5 Opinion of Counsel re: legality 22
23(a) Consent of Counsel (contained in Exhibit 5) 22
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
HBO & COMPANY OMNIBUS STOCK INCENTIVE PLAN
Page 11 of 23 Pages
<PAGE>
HBO & COMPANY
OMNIBUS STOCK INCENTIVE PLAN
1. Purpose. The purpose of the HBO & Company Omnibus Stock Incentive
Plan (the "Plan") is to attract and retain employees and directors for HBO &
Company (the "Company") and its subsidiaries and to provide such persons with
incentives and rewards for superior performance.
2. Definitions. As used in this Plan, the following terms shall be
defined as set forth below:
"AWARD" means any Stock Appreciation Right, Deferred Shares, Option, Performance
Shares and Restricted Shares.
"BASE PRICE" means the price to be used as the basis for determining the Spread
upon the exercise of a Freestanding Stock Appreciation Right.
"BOARD" means the Board of Directors of the Company.
"CODE" means the Internal Revenue Code of 1986, as amended from time to time.
"COMMITTEE" means the committee described in Section 4 of this Plan.
"COMPANY" means HBO & Company, a Delaware corporation, or any successor
corporation.
"DEFERRAL PERIOD" means the period of time during which Deferred Shares are
subject to deferral limitations under Section 8 of this Plan.
"DEFERRED SHARES" means an Award pursuant to Section 8 of this Plan of the right
to receive Shares at the end of a specified Deferral Period.
"EMPLOYEE" means any person, including an officer, employed by the Company or a
Subsidiary.
"FAIR MARKET VALUE" means the fair market value of the Shares as determined by
the Committee from time to time.
"FREESTANDING STOCK APPRECIATION RIGHT" means a Stock Appreciation Right granted
pursuant to Section 6 of this Plan that is not granted in tandem with an Option
or similar right.
"GRANT DATE" means the date specified by the Committee on which a grant of an
Award shall become effective, which shall not be earlier than the date on which
the Committee takes action with respect thereto.
"INCENTIVE STOCK OPTIONS" means any Option that is intended to qualify as an
"incentive stock option" under Section 422 of the Code or any successor
provision.
"NONEMPLOYEE DIRECTOR" means a member of the Board who is not an Employee.
"NONQUALIFIED STOCK OPTION" means an Option that is not intended to qualify as
an Incentive Stock Option.
"OPTION" means any option to purchase Common Shares granted under Section 5 of
this Plan.
"OPTIONEE" means the person so designated in an agreement evidencing an
outstanding Option.
"OPTION PRICE" means the purchase price payable upon the exercise of an Option.
Page 12 of 23 Pages
<PAGE>
"PARTICIPANT" means an Employee or Nonemployee Director who is selected by the
Committee to receive benefits under this Plan, provided that Nonemployee
Directors shall not be eligible to receive grants of Incentive Stock Options.
"PERFORMANCE OBJECTIVES" means the achievement or performance objectives
established pursuant to this Plan for Participants who have received grants
of Performance Shares or, when so determined by the Committee, Deferred
Shares or Restricted Shares. Performance Objectives may be described in
terms of Company-wide objectives or objectives that are related to the
performance of the individual Participant or the Subsidiary, division,
department or function within the Company or Subsidiary in which the
Participant is employed. Any Performance Objectives applicable to Awards
intended to qualify as "performance-based compensation" under Section 162(m)
of the Code shall be limited to specified levels of or increases in the
Company's or Subsidiary's return on equity, earnings per share, total
earnings, earnings growth, return on capital, return on assets, or increase
in the Fair Market Value of the Shares. Except in the case of such an Award
intended to qualify under Section 162(m) of the Code, if the Committee
determines that a change in the business, operations, corporate structure or
capital structure of the Company, or the manner in which it conducts its
business, or other events or circumstances render the Performance Objectives
unsuitable, the Committee may modify such Performance Objectives or the
related minimum acceptable level of achievement, in whole or in part, as the
Committee deems appropriate and equitable.
"PERFORMANCE PERIOD" means a period of time established under Section 9 of
this Plan within which the Performance Objectives relating to Performance
Shares, Deferred Shares or Restricted Shares are to be achieved.
"PERFORMANCE SHARE" means a bookkeeping entry that records the equivalent of
one Share awarded pursuant to Section 9 of this Plan.
"PREDECESSOR PLANS" means the HBO & Company 1990 Executive Incentive Plan and
the HBO & Company 1993 Stock Option Plan for Nonemployee Directors.
"RESTRICTED SHARES" mean Shares granted under Section 7 of this Plan subject
to a substantial risk of forfeiture.
"RULE 16b-3" means Rule 16b-3 of the Securities and Exchange Commission (or
any successor rule to the same effect), as in effect from time to time.
"SHARES" means shares of the common stock of the Company, $.05 par value, or
any security into which Shares may be converted by reason of any transaction
or event of the type referred to in Section 11 of this Plan.
"SPREAD" means, in the case of a Freestanding Stock Appreciation Right, the
amount by which the Fair Market Value on the date when any such right is
exercised exceeds the Base Price specified in such right or, in the case of a
Tandem Stock Appreciation Right, the amount by which the Fair Market Value on
the date when any such right is exercised exceeds the Option Price specified
in the related Option.
"STOCK APPRECIATION RIGHT" means a right granted under Section 6 of this
Plan, including a Freestanding Stock Appreciation Right or a Tandem Stock
Appreciation Right.
"SUBSIDIARY" means a corporation or other entity (i) more than 50 percent of
whose outstanding shares or securities (representing the right to vote for
the election of directors or other managing authority) are, or (ii) which
does not have outstanding shares or securities (as may be the case in a
partnership, joint venture or unincorporated association), but more than 50
percent of whose ownership interest (representing the right generally to make
decisions for such other entity) is, now or hereafter owned or controlled
directly or indirectly by the Company, provided that for purposes of
determining whether any person may be a Participant for purposes of any grant
of Incentive Stock Options, "Subsidiary" means any corporation in which
Page 13 of 23 Pages
<PAGE>
the Company owns or controls directly or indirectly more than 50 percent of
the total combined voting power represented by all classes of stock issued by
such corporation at the time of such grant.
"TANDEM STOCK APPRECIATION RIGHT" means a Stock Appreciation Right granted
pursuant to Section 6 of this Plan that is granted in tandem with an Option
or any similar right granted under any other plan of the Company.
3. Shares Available Under the Plan.
(a) Subject to adjustment as provided in Section 11 of this Plan, the
number of Shares that may be (i) issued or transferred upon the exercise of
Options or Stock Appreciation Rights, (ii) awarded as Restricted Shares and
released from substantial risk of forfeiture, or (iii) issued or transferred in
payment of Deferred Shares or Performance Shares, shall not in the aggregate
exceed (x) 2,375,000 Shares not previously authorized for issuance under any
plan of the Company, plus (y) 1,049,921 Shares available for award under the
Predecessor Plans that were not the subject of outstanding awards under the
Predecessor Plans as of March 12, 1997, plus (z) the number of Shares subject to
awards under the Predecessor Plans as of March 12, 1997 (a maximum of 5,374,474
Shares) but only to the extent that such awards are forfeited or cancelled after
March 12, 1997 without such Shares being issued or, in the case of Shares issued
subject to a risk of forfeiture, such Shares are forfeited. In no event shall
the number of Shares available under the Plan exceed 8,799,395 Shares or be less
than 3,424,921 Shares. Such Shares may be Shares of original issuance, Shares
held in treasury, or Shares that have been reacquired by the Company.
(b) Upon the payment of any Option Price by the transfer to the Company of
Shares or upon satisfaction of tax withholding obligations under the Plan by the
transfer or relinquishment of Shares, there shall be deemed to have been issued
or transferred only the number of Shares actually issued or transferred by the
Company, less the number of Shares so transferred or relinquished. In any
event, the number of Shares actually issued or transferred by the Company upon
the exercise of Incentive Stock Options may not exceed 3,424,921, subject to
adjustment as provided in Section 11 of the Plan. Upon the payment in cash of a
benefit provided by any Award under the Plan, any Shares that were subject to
such Award shall again be available for issuance or transfer under the Plan.
(c) No participant may receive Awards during any two consecutive calendar-
year period representing more than 1,000,000 Shares.
4. Administration of the Plan.
(a) This Plan shall be administered by one or more committees appointed by
the Board. Any grants of Awards to officers who are subject to Section 16 of
the Securities Exchange Act of 1934 shall be made by a Committee composed of not
less than two members of the Board, each of whom shall be a "non-employee
director" within the meaning of Rule 16b-3. Any grant of an Award that is
intended to qualify as "performance-based compensation" under Section 162(m) of
the Code shall be made by a Committee composed of not less than two members of
the Board, each of whom shall be an "outside director" within the meaning of the
regulations under Section 162(m). For purposes of grants of Awards to
Nonemployee Directors, the Board shall serve as the Committee.
(b) The interpretation and construction by the Committee of any provision
of this Plan or of any agreement or document evidencing the grant of any Award
and any determination by the Committee pursuant to any provision of this Plan or
any such agreement, notification or document shall be final and conclusive. No
member of the Committee shall be liable to any person for any such action taken
or determination made in good faith.
5. Options. The Committee may from time to time authorize grants to
Participants of options to purchase Shares upon such terms and conditions as the
Committee may determine in accordance with the following provisions:
Page 14 of 23 Pages
<PAGE>
(a) Each grant shall specify the number of Shares to which it pertains.
(b) Each grant shall specify an Option Price per Share, which shall be
equal to or greater than the Fair Market Value on the Grant Date.
(c) Each grant shall specify the form of consideration to be paid in
satisfaction of the Option Price and the manner of payment of such
consideration, which may include (i) cash in the form of currency or check or
other cash equivalent acceptable to the Company, (ii) nonforfeitable,
unrestricted Shares that have been owned by the Optionee for at least six
months and have a value at the time of exercise that is equal to the Option
Price, (iii) any other legal consideration that the Committee may deem
appropriate, including without limitation any form of consideration
authorized under Section 5(d) below, on such basis as the Committee may
determine in accordance with this Plan, or (iv) any combination of the
foregoing.
(d) On or after the Grant Date of any Option other than an Incentive
Stock Option, the Committee may determine that payment of the Option Price
may also be made in whole or in part in the form of Restricted Shares or
other Shares that are subject to risk of forfeiture or restrictions on
transfer. Unless otherwise determined by the Committee, whenever any Option
Price is paid in whole or in part by means of any of the forms of
consideration specified in this Section 5(d), the Shares received by the
Optionee upon the exercise of the Options shall be subject to the same risks
of forfeiture or restrictions on transfer as those that applied to the
consideration surrendered by the Optionee, provided that such risks of
forfeiture and restrictions on transfer shall apply only to the same number
of Shares received by the Optionee as applied to the forfeitable or
restricted Shares surrendered by the Optionee.
(e) Any grant may provide for deferred payment of the Option Price from
the proceeds of sale through a bank or broker on the date of exercise of some
or all of the Shares to which the exercise relates.
(f) On or after the Grant Date of any Option, the Committee may provide
for the automatic grant to the Optionee of a "reload" Option in the event the
Optionee surrenders Shares in satisfaction of the Option Price upon the
exercise of an Option as authorized under Sections 5(c) and (d) above. Each
reload Option shall pertain to a number of Shares equal to the number of
Shares utilized by the Optionee to exercise the original Option. Each reload
Option shall have an exercise price equal to Fair Market Value on the date it
is granted and shall expire on the stated exercise date of the original
Option.
(g) Each Option grant may specify a period of continuous employment of
the Optionee by the Company or any Subsidiary (or, in the case of a
Nonemployee Director, service on the Board) that is necessary before the
Options or installments thereof shall become exercisable, and any grant may
provide for the earlier exercise of such rights in the event of a change in
control of the Company or other similar transaction or event.
(h) Options granted under this Plan may be Incentive Stock Options,
Nonqualified Stock Options or a combination of the foregoing, provided that
only Nonqualified Stock Options may be granted to Nonemployee Directors.
Each grant shall specify whether (or the extent to which) the Option is an
Incentive Stock Option or a Nonqualified Stock Option. Notwithstanding any
such designation, to the extent that the aggregate Fair Market Value of the
Shares with respect to which Options designated as Incentive Stock Options
are exercisable for the first time by an Optionee during any calendar year
(under all plans of the Company) exceeds $100,000, such Options shall be
treated as Nonqualified Stock Options.
(i) No Option granted under this Plan may be exercised more than 10
years from the Grant Date.
(j) Each grant shall be evidenced by an agreement executed on behalf of
the Company by any officer thereof and delivered to and accepted by the
Optionee and containing such terms and provisions as the Committee may
determine consistent with this Plan.
Page 15 of 23 Pages
<PAGE>
6. Stock Appreciation Rights. The Committee may also authorize grants to
Participants of Stock Appreciation Rights. A Stock Appreciation Right is the
right of the Participant to receive from the Company an amount, which shall be
determined by the Committee and shall be expressed as a percentage (not
exceeding 100 percent) of the Spread at the time of the exercise of such right.
Any grant of Stock Appreciation Rights under this Plan shall be upon such terms
and conditions as the Committee may determine in accordance with the following
provisions:
(a) Any grant may specify that the amount payable upon the exercise of a
Stock Appreciation Right may be paid by the Company in cash, Shares or any
combination thereof and may (i) either grant to the Participant or reserve to
the Committee the right to elect among those alternatives or (ii) preclude the
right of the Participant to receive and the Company to issue Shares or other
equity securities in lieu of cash.
(b) Any grant may specify that the amount payable upon the exercise of a
Stock Appreciation Right shall not exceed a maximum specified by the Committee
on the Grant Date.
(c) Any grant may specify (i) a waiting period or periods before Stock
Appreciation Rights shall become exercisable and (ii) permissible dates or
periods on or during which Stock Appreciation Rights shall be exercisable.
(d) Any grant may specify that a Stock Appreciation Right may be exercised
only in the event of a change in control of the Company or other similar
transaction or event.
(e) On or after the Grant Date of any Stock Appreciation Rights, the
Committee may provide for the payment to the Participant of dividend equivalents
thereon in cash or Shares on a current, deferred or contingent basis.
(f) Each grant shall be evidenced by an agreement executed on behalf of
the Company by any officer thereof and delivered to and accepted by the
Optionee, which shall describe the subject Stock Appreciation Rights, identify
any related Options, state that the Stock Appreciation Rights are subject to all
of the terms and conditions of this Plan and contain such other terms and
provisions as the Committee may determine consistent with this Plan.
(g) Each grant of a Tandem Stock Appreciation Right shall provide that
such Tandem Stock Appreciation Right may be exercised only (i) at a time when
the related Option (or any similar right granted under any other plan of the
Company) is also exercisable and the Spread is positive; and (ii) by surrender
of the related Option (or such other right) for cancellation.
(h) Regarding Freestanding Stock Appreciation Rights only:
(i) Each grant shall specify in respect of each Freestanding Stock
Appreciation Right a Base Price per Share, which shall be equal to or
greater than the Fair Market Value on the Grant Date;
(ii) Successive grants may be made to the same Participant
regardless of whether any Freestanding Stock Appreciation Rights previously
granted to such Participant remain unexercised;
(iii) Each grant shall specify the period or periods of continuous
employment of the Participant by the Company or any Subsidiary that are
necessary before the Freestanding Stock Appreciation Rights or installments
thereof shall become exercisable, and any grant may provide for the earlier
exercise of such rights in the event of a change in control of the Company
or other similar transaction or event; and
Page 16 of 23 Pages
<PAGE>
(iv) No Freestanding Stock Appreciation Right granted under this
Plan may be exercised more than 10 years from the Grant Date.
7. Restricted Shares. The Committee may also authorize grants to
Participants of Restricted Shares upon such terms and conditions as the
Committee may determine in accordance with the following provisions:
(a) Each grant shall constitute an immediate transfer of the ownership
of Shares to the Participant in consideration of the performance of services,
entitling such Participant to dividend, voting and other ownership rights,
subject to the substantial risk of forfeiture and restrictions on transfer
hereinafter referred to.
(b) Each grant may be made without additional consideration from the
Participant or in consideration of a payment by the Participant that is less
than the Fair Market Value on the Grant Date.
(c) Each grant shall provide that the Restricted Shares covered thereby
shall be subject to a "substantial risk of forfeiture" within the meaning of
Section 83 of the Code for a period to be determined by the Committee on the
Grant Date, and any grant or sale may provide for the earlier termination of
such risk of forfeiture in the event of a change in control of the Company or
other similar transaction or event.
(d) Each grant shall provide that, during the period for which such
substantial risk of forfeiture is to continue, the transferability of the
Restricted Shares shall be prohibited or restricted in the manner and to the
extent prescribed by the Committee on the Grant Date. Such restrictions may
include, without limitation rights of repurchase or first refusal by the
Company or provisions subjecting the Restricted Shares to a continuing
substantial risk of forfeiture in the hands of any transferee.
(e) Any grant or the vesting thereof may be further conditioned upon
the attainment of Performance Objectives established by the Committee in
accordance with the applicable provisions of Section 9 of this Plan regarding
Performance Shares.
(f) Any grant may require that any or all dividends or other
distributions paid on the Restricted Shares during the period of such
restrictions be automatically sequestered and reinvested on an immediate or
deferred basis in additional Shares, which may be subject to the same
restrictions as the underlying Award or such other restrictions as the
Committee may determine.
(g) Each grant shall be evidenced by an agreement executed on behalf of
the Company by any officer thereof and delivered to and accepted by the
Participant and containing such terms and provisions as the Committee may
determine consistent with this Plan. Unless otherwise directed by the
Committee, all certificates representing Restricted Shares, together with a
stock power that shall be endorsed in blank by the Participant with respect
to such Shares, shall be held in custody by the Company until all
restrictions thereon lapse.
8. Deferred Shares. The Committee may authorize grants of Deferred
Shares to Participants upon such terms and conditions as the Committee may
determine in accordance with the following provisions:
(a) Each grant shall constitute the agreement by the Company to issue
or transfer Shares to the Participant in the future in consideration of the
performance of services, subject to the fulfillment during the Deferral
Period of such conditions as the Committee may specify.
(b) Each grant may be made without additional consideration from the
Participant or in consideration of a payment by the Participant that is less
than the Fair Market Value on the Grant Date.
Page 17 of 23 Pages
<PAGE>
(c) Each grant shall provide that the Deferred Shares covered thereby
shall be subject to a Deferral Period, which shall be fixed by the Committee
on the Grant Date, and any grant or sale may provide for the earlier
termination of such period in the event of a change in control of the Company
or other similar transaction or event.
(d) During the Deferral Period, the Participant shall not have any
right to transfer any rights under the subject Award, shall not have any
rights of ownership in the Deferred Shares and shall not have any right to
vote such Shares, but the Committee may on or after the Grant Date authorize
the payment of dividend equivalents on such shares in cash or additional
Shares on a current, deferred or contingent basis.
(e) Any grant or the vesting thereof may be further conditioned upon
the attainment of Performance Objectives established by the Committee in
accordance with the applicable provisions of Section 9 of this Plan regarding
Performance Shares.
(f) Each grant shall be evidenced by an agreement executed on behalf of
the Company by any officer thereof and delivered to and accepted by the
Participant and containing such terms and provisions as the Committee may
determine consistent with this Plan.
9. Performance Shares. The Committee may also authorize grants of
Performance Shares, which shall become payable to the Participant upon the
achievement of specified Performance Objectives, upon such terms and
conditions as the Committee may determine in accordance with the following
provisions:
(a) Each grant shall specify the number of performance Shares to which
it pertains, which may be subject to adjustment to reflect changes in
compensation or other factors.
(b) The Performance Period with respect to each Performance Share shall
commence on the Grant Date and may be subject to earlier termination in the
event of a change in control of the Company or other similar transaction or
event.
(c) Each grant shall specify the Performance Objectives that are to be
achieved by the Participant.
(d) Each grant may specify in respect of the specified Performance
Objectives a minimum acceptable level of achievement below which no payment
will be made and may set forth a formula for determining the amount of any
payment to be made if performance is at or above such minimum acceptable
level but falls short of the maximum achievement of the specified Performance
Objectives.
(e) Each grant shall specify the time and manner of payment of
Performance Shares that shall have been earned, and any grant may specify
that any such amount may be paid by the Company in cash, Shares or any
combination thereof and may either grant to the Participant or reserve to the
Committee the right to elect among those alternatives.
(f) Any grant of Performance Shares may specify that the amount payable
with respect thereto may not exceed a maximum specified by the Committee on
the Grant Date.
(g) Any grant of Performance Shares may provide for the payment to the
Participant of dividend equivalents thereon in cash or additional Shares on a
current, deferred or contingent basis.
(h) If provided in the terms of the grant, the Committee may adjust
Performance Objectives and the related minimum acceptable level of
achievement if in the sole judgment of the Committee, events or transactions
have occurred after the Grant Date that are unrelated to the performance of
the Participant and result in distortion of the Performance Objectives or the
related minimum acceptable level of achievement.
Page 18 of 23 Pages
<PAGE>
(i) Each grant shall be evidenced by an agreement executed on behalf of
the Company by any officer thereof and delivered to and accepted by the
Participant, which shall state that the Performance Shares are subject to all
of the terms and conditions of this Plan and such other terms and provisions
as the Committee may determine consistent with this Plan.
10. Transferability.
(a) Except as provided in Section 10(b), no Award granted under this
Plan shall be transferable by a Participant other than by will or the laws of
descent and distribution, and Options and Stock Appreciation Rights shall be
exercisable during a Participant's lifetime only by the Participant or, in
the event of the Participant's legal incapacity, by his guardian or legal
representative acting in a fiduciary capacity on behalf of the Participant
under state law.
(b) The Committee may expressly provide in a Nonqualified Stock Option
agreement (or an amendment to such an agreement) that a Participant may
transfer such Nonqualified Stock Option to a spouse or lineal descendant (a
"Family Member"), a trust for the exclusive benefit of Family Members, a
partnership or other entity in which all the beneficial owners are Family
Members, or any other entity affiliated with the Participant that may be
approved by the Committee. Subsequent transfers of any such Nonqualified
Stock Option shall be prohibited except in accordance with this Section
10(b). All terms and conditions of any such Nonqualified Stock Option,
including provisions relating to the termination of the Participant's
employment or service with the Company or a Subsidiary, shall continue to
apply following a transfer made in accordance with this Section 10(b).
(c) Any Award made under this Plan may provide that all or any part of
the Shares that are (i) to be issued or transferred by the Company upon the
exercise of Options or Stock Appreciation Rights, upon the termination of the
Deferral Period applicable to Deferred Shares or upon payment under any grant
of Performance Shares, or (ii) no longer subject to the substantial risk of
forfeiture and restrictions on transfer referred to in Section 7 of this
Plan, shall be subject to further restrictions upon transfer.
11. Adjustments. The Committee may make or provide for such
adjustments in the (a) number of Shares covered by outstanding Options, Stock
Appreciation Rights, Deferred Shares, Restricted Shares and Performance
Shares granted hereunder, (b) prices per share applicable to such Options and
Stock Appreciation Rights, and (c) kind of shares covered by any Award, as
the Committee in its sole discretion may in good faith determine to be
equitably required in order to prevent dilution or enlargement of the rights
of Participants that otherwise would result from (x) any stock dividend,
stock split, combination or exchange of shares, recapitalization or other
change in the capital structure of the Company, (y) any merger,
consolidation, spin-off, spin-out, split-off, split-up, reorganization,
partial or complete liquidation or other distribution of assets (other than a
normal cash dividend), issuance of rights or warrants to purchase securities
or (z) any other corporate transaction or event having an effect similar to
any of the foregoing. Moreover, in the event of any such transaction or
event, the Committee may provide in substitution for any or all outstanding
Awards under this Plan such alternative consideration as it may in good faith
determine to be equitable under the circumstances and may require in
connection therewith the surrender of all Awards so replaced. The Committee
may also make or provide for such adjustments in the number of Shares
specified in Section 3 of this Plan as the Committee in its sole discretion
may in good faith determine to be appropriate in order to reflect any
transaction or event described in this Section 11.
12. Fractional Shares. The Company shall not be required to issue any
fractional Shares pursuant to this Plan. The Committee may provide for the
elimination of fractions or for the settlement thereof in cash.
13. Withholding Taxes. To the extent that the Company is required to
withhold federal, state, local or foreign taxes in connection with any
payment made or benefit realized by a Participant or other person under this
Plan, it shall be a condition to the receipt of such payment or the
realization of such benefit that the Participant or such other person make
arrangements satisfactory to the Company for
Page 19 of 23 Pages
<PAGE>
payment of all such taxes required to be withheld. At the discretion of the
Committee, such arrangements may include relinquishment of a portion of such
benefit.
14. Certain Terminations of Employment, Hardship and Approved Leaves of
Absence. Notwithstanding any other provision of this Plan to the contrary,
in the event of termination of employment by reason of death, disability,
normal retirement, early retirement with the consent of the Company or leave
of absence approved by the Company, or in the event of hardship or other
special circumstances, of a Participant who holds an Option or Stock
Appreciation Right that is not immediately and fully exercisable, any
Restricted Shares as to which the substantial risk of forfeiture or the
prohibition or restriction on transfer has not lapsed, any Deferred Shares as
to which the Deferral Period is not complete, any Performance Shares that
have not been fully earned, or any Shares that are subject to any transfer
restriction pursuant to Section 10(c) of this Plan, the Committee may in its
sole discretion take any action that it deems to be equitable under the
circumstances or in the best interests of the Company, including without
limitation waiving or modifying any limitation or requirement with respect to
any Award under this Plan.
15. Foreign Employees. In order to facilitate the making of any grant
or combination of grants under this Plan, the Committee may provide for such
special terms for Awards to Participants who are foreign nationals, or who
are employed by the Company or any Subsidiary outside of the United States of
America, as the Committee may consider necessary or appropriate to
accommodate differences in local law, tax policy or custom. Moreover, the
Committee may approve such supplements to, or amendments, restatements or
alternative versions of this Plan as it may consider necessary or appropriate
for such purposes without thereby affecting the terms of this Plan as in
effect for any other purpose, provided that no such supplements, amendments,
restatements or alternative versions shall include any provisions that are
inconsistent with the terms of this Plan, as then in effect, unless this Plan
could have been amended to eliminate such inconsistency without further
approval by the stockholders of the Company.
16. Amendments and Other Matters.
(a) This Plan may be amended from time to time by the Board, but no
such amendment shall increase any of the limitations specified in Section 3
of this Plan, other than to reflect an adjustment made in accordance with
Section 11, without the further approval of the stockholders of the Company.
(b) With the concurrence of the affected Participant, the Committee may
cancel any agreement evidencing Options or any other Award granted under this
Plan. In the event of such cancellation, the Committee may authorize the
granting of new Options or other Awards hereunder, which may or may not cover
the same number of Shares that had been the subject of the prior Award, in
such manner, at such Option Price and subject to such other terms, conditions
and discretions as would have been applicable under this Plan had the
canceled Options or other Award not been granted.
(c) This Plan shall not confer upon any Participant any right with
respect to continuance of employment or other service with the Company or any
Subsidiary and shall not interfere in any way with any right that the Company
or any Subsidiary would otherwise have to terminate any Participant's
employment or other service at any time.
(d) To the extent that any provision of this Plan would prevent any
Option that was intended to qualify under particular provisions of the Code
from so qualifying such provision of this Plan shall be null and void with
respect to such Option, provided that such provision shall remain in effect
with respect to other Options, and there shall be no further effect on any
provision of this Plan.
17. Effective Date and Stockholder Approval. This Plan shall become
effective upon its approval by the Board, subject to approval by the
stockholders of the Company at the next annual meeting of stockholders. The
Committee may grant Awards subject to the condition that this Plan shall have
been approved by the stockholders of the Company.
Page 20 of 23 Pages
<PAGE>
18. Termination. This Plan shall terminate on March 31, 2007, and no
Award shall be granted after that date.
19. Governing Law. The validity, construction and effect of this Plan
and any Award hereunder will be determined in accordance with (i) the
Delaware General Corporation Law, and (ii) to the extent applicable, other
laws (including those governing contracts) of the State of Georgia.
Page 21 of 23 Pages
<PAGE>
JONES, DAY, REAVIS & POGUE
3500 One Peachtree Center
303 Peachtree Street
Atlanta, Georgia 30308-3242
EXHIBIT 5
May 7, 1997
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 8,799,395 shares of
Common Stock, $.05 par value per share, of the Company (the "Shares"), to be
issued by the Company in accordance with the HBO & Company Omnibus Stock
Incentive Plan pursuant to a Registration Statement on Form S-8 filed with the
Securities and Exchange Commission (the "Registration Statement") to which this
opinion appears as Exhibit 5.
We have examined originals or certified or photostatic copies of such
records of the Company, certificates of officers of the Company, and public
officials and such other documents as we have deemed relevant or necessary as
the basis of the opinion set forth below in this letter. In such examination,
we have assumed the genuineness of all signatures, the conformity to original
documents submitted as certified or photostatic copies, and the authenticity of
originals of such latter documents. Based on the foregoing, we are of the
following opinion:
The Shares, when issued in the manner contemplated by the
Registration Statement, will be validly issued, fully paid and
nonassessable.
We hereby consent to the filing of this opinion as Exhibit 5 to the
Registration Statement.
Sincerely,
/s/ Jones, Day, Reavis & Pogue
JONES, DAY, REAVIS & POGUE
Page 22 of 23 Pages
<PAGE> EXHIBIT 23(b)
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this Registration Statement on Form S-8 of our reports dated
February 6, 1997 included or incorporated by reference in HBO & Company's
Form 10-K for the year ended December 31, 1996.
Arthur Andersen LLP
/s/ Arthur Andersen LLP
Alanta, Georgia
May 3, 1997
Page 23 of 23 Pages
