<PAGE>
As filed with the Securities and Exchange Commission on March 31, 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
1994 UK Sharesave Scheme
(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
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Calculation of Registration Fee
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Proposed maxi- Proposed maxi- Amount of
Title of securities Amount to be mum offering mum aggregate registration
to be registered registered price per share offering price fee
- --------------------------------------------------------------------------------
Common Stock,
$.05 par value, and 200,000 $46.9991786(1) $9,399,835.72(1) $2,848.43(2)
Preferred Share shares
Purchase Rights(3)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(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 weighted average price of $18.1646 with respect to 31,428 shares
presently subject to options and with respect to the remaining 168,572
shares, based upon the closing market price per share of $52.375 for the
common stock on the Nasdaq Stock Market on March 26, 1997, a date within 5
business days of the filing of this registration statement. Resulting in a
weighted average price of $46.9991786
(2) The registration fee is calculated by multiplying the product of
$46.9991786, the weighted average exercise price per share, and 200,000, 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
[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 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 1994 UK Sharesave Scheme
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.
(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
Page 6 of 23 Pages
<PAGE>
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
27 day of March, 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:
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ Charles W. McCall Director, President and Chief March 27, 1997
- ---------------------- Executive Officer (Principal
Charles W. McCall Executive Officer)
/s/ Jay P. Gilbertson Executive Vice President, March 27, 1997
- ---------------------- Chief Financial Officer,
Jay P. Gilbertson Principal Accounting
Officer, Treasurer and Secretary
(Principal Financial Officer
and Principal Accounting Officer)
/s/ Holcombe T. Green, Jr.
- -------------------------- Chairman of the Board of Directors March 27, 1997
Holcombe T. Green, Jr.
</TABLE>
Page 8 of 23 Pages
<PAGE>
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ Alfred C. Eckert III
- ------------------------ Director March 27, 1997
Alfred C. Eckert III
/s/ Philip A. Incarnati
- ------------------------ Director March 27, 1997
Philip A. Incarnati
/s/ Alton F. Irby III
- ------------------------ Director March 27, 1997
Alton F. Irby III
/s/ Gerald E. Mayo
- ------------------------ Director March 27, 1997
Gerald E. Mayo
/s/ James V. Napier
- ---------------------- Director March 27, 1997
James V. Napier
/s/ Donald C. Wegmiller
- ---------------------- Director March 27, 1997
Donald C. Wegmiller
</TABLE>
Page 9 of 23 Pages
<PAGE>
EXHIBIT INDEX
EXHIBIT PAGE
NUMBER DESCRIPTION NUMBER
- ------- ----------- ------
Included in Part II of the Registration Statement:
4 HBO & Company 1994 UK Sharesave Scheme 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
THE HBO & COMPANY 1994 UK SHARESAVE SCHEME
Page 11 of 23 Pages
<PAGE>
CONTENTS
Page
1. Definitions and Interpretation............................................1
2. Eligibility...............................................................1
3. Grant of Options..........................................................2
4. Monthly Contribution and Repayment........................................4
5. Exercise of Options.......................................................5
6. Takeover, Reconstruction and Winding Up...................................7
7. Variation of Capital......................................................8
8. Alterations...............................................................8
9. Miscellaneous.............................................................8
Page 12 of 23 Pages
<PAGE>
1. DEFINITIONS AND INTERPRETATION
(1) In this Scheme, unless the context otherwise requires:-
"the Board" means the board of directors of the Company or a committee
appointed by such board of directors;
"Bonus Date", in relation to an option, means, where in accordance with the
Scheme the repayment under the Savings Contract made in connection with the
option is taken as including the maximum bonus, the earliest date on which
the maximum bonus is payable thereunder, and, in any other case, the
earliest date on which a bonus is payable thereunder;
"the Company" means HBO & Company, a company organised under the laws of
the State of Delaware in the USA;
"Participant" means a person who holds an option granted under the Scheme;
"Participating Company" means the Company or any Subsidiary to which the
Board has resolved that the Scheme shall for the time being extend;
"Savings Body" means the Department for National Savings and any building
society or institution authorised under the Banking Act 1987 with which a
Savings Contract can be made;
"Savings Contract" means an agreement to pay monthly contributions under
the terms of a certified contractual savings scheme, within the meaning of
section 326 of the Taxes Act 1988, which has been approved by the Inland
Revenue for the purposes of Schedule 9;
"the Scheme" means the HBO & Company 1994 UK Sharesave Scheme as herein set
out but subject to any alterations or additions made under Rule 8 below;
"Schedule 9" means Schedule 9 to the Taxes Act 1988;
"Subsidiary" means a body corporate which is a subsidiary of the Company
within the meaning of section 736 of the Companies Act 1985 and of which
the Company has control;
"the Taxes Act 1988" means the Income and Corporation Taxes Act 1988;
and expressions not otherwise defined herein have the same meanings as they
have in Schedule 9.
(2) The specified age for the purpose of the Scheme is 60.
(3) Any reference in the Scheme to any enactment includes a reference to that
enactment as from time to time modified, extended or re-enacted.
2. ELIGIBILITY
(1) Subject to sub-rule (5) below, an individual is eligible to be granted an
option under the Scheme on any day ("the grant day") if (and only if):-
(a) he is on the grant day an employee or director of a company which is a
Participating Company, and
(b) he either satisfies the conditions specified in sub-rule (2) below or
is nominated by the Board for this purpose.
Page 13 of 23 Pages Exhibit 4: page 1
<PAGE>
(2) The conditions referred to in sub-rule (1)(b) above are that the
individual:-
(a) shall at all times during the qualifying period (if any) have been a
full-time employee or full-time director of the Company or a company
which was for the time being a Subsidiary; and
(b) was at the relevant time chargeable to tax in respect of his
employment or office under Case I of Schedule E.
(3) For the purposes of sub-rule (2) above:-
(a) the relevant time is the date on which any invitation is given under
Rule 3(2)(a) below or such other time during the period of 5 years
ending with the grant day as the Board may determine (provided that no
such determination may be made if it would have the effect that the
qualifying period would not fall within the said 5-year period);
(b) there shall be no qualifying period prior to the relevant time unless
the Board determines otherwise, in which case the qualifying period
shall be such period ending at the relevant time and falling within
the 5-year period mentioned in paragraph (a) above as the Board may
determine;
(c) an individual shall be treated as a full-time employee or full-time
director of a company if (and only if) he is obliged to devote to the
performance of the duties of his employment or office with the company
not less than 20 hours a week;
(d) subject to paragraph (c) above, Schedule 13 to the Employment
Protection (Consolidation) Act 1978 shall have effect, mutatis
mutandis, for ascertaining the length of the period during which an
individual shall have been a full-time employee or full-time director
and whether he shall have been such an employee or director at all
times during that period.
(4) Any determination of the Board under paragraph (a) or (b) of sub-rule (3)
above shall have effect in relation to every individual for the purpose of
ascertaining whether he is eligible to be granted an option under the
Scheme on the grant day.
(5) An individual is not eligible to be granted an option under the Scheme at
any time if:-
(a) he is at that time ineligible to participate in the Scheme by virtue
of paragraph 8 of Schedule 9; or
(b) the amount of the monthly contribution to be paid under the Savings
Contract proposed to be made in connection with the option, determined
in accordance with Rule 4(1) below, would be less than the minimum
permitted amount, that is to say (pound sterling)10 or such other
minimum amount as may for the time being be permitted by paragraph
24(2)(b) of Schedule 9.
3. GRANT OF OPTIONS
(1) Subject to sub-rules (2) and (4) below and to Rule 4(4)(e) below, the Board
may grant to any individual who is eligible to be granted and has applied
for an option under the Scheme an option to acquire shares in the Company
which fulfil the conditions specified in paragraphs 10 to 14 of Schedule 9,
upon the terms set out in the Scheme; and for this purpose an option to
acquire includes an option to purchase and an option to subscribe.
Page 14 of 23 Pages Exhibit 4: page 2
<PAGE>
(2) The Board shall ensure that, in relation to the grant of options under the
Scheme on any day:-
(a) every individual who is eligible to be granted an option thereunder on
that day by virtue of satisfying the conditions specified in Rule 2(2)
above has been given an invitation to apply for such an option within
a period of not less than 14 days from the date on which the
invitation was given;
(b) every such invitation is given on the same date and specifies the
matters set out in sub-rule (3) below; and
(c) every individual who is eligible to be granted such an option on the
day in question, has applied therefor in such form and manner as the
Board may prescribe, and has proposed to make a Savings Contract in
connection therewith (with a Savings Body approved by the Board for
this purpose) under which the monthly contributions are determined in
accordance with Rule 4(1) below, is in fact granted such an option on
that day.
(3) The matters which must be specified in an invitation as mentioned in
sub-rule (2)(b) above are:-
(a) what the repayment for the purposes of sub-rule (7) below is, by
virtue of Rule 4(2) below, to be taken as including; and
(b) the maximum amount (if any) referred to in Rule 4(1)(c) below.
(4) The consideration for the grant to any individual of an option under the
Scheme shall be his proposing to make a Savings Contract in connection
therewith and in all other respects agreeing to be bound by the provisions
of the Scheme.
(5) The price at which shares may be acquired by the exercise of options
granted on any day under the Scheme shall be a price denominated in US
dollars which is determined by the Board and stated on that day, provided
that:-
(a) the price shall not be less than the specified percentage of the
market value (within the meaning of Part VIII of the Taxation of
Chargeable Gains Act 1992) of shares of that class, as agreed in
advance for the purposes of the Scheme with the Shares Valuation
Division of the Inland Revenue, on the date on which invitations to
apply for such options were given pursuant to sub-rule (2)(a) above
or, if that date does not fall within the period of 30 days ending
with the day on which such options are granted, on the day on which
such options are granted or such other day as may be agreed with the
Inland Revenue; and
(b) except in the case of an option to acquire shares otherwise than by
subscription, the price shall not be less than the nominal value of
those shares;
and for this purpose "the specified percentage" is 80 per cent. or such
other percentage as may be specified in paragraph 25 of Schedule 9.
(6) The number of shares in respect of which an option shall be granted to any
individual under the Scheme shall be the maximum number which can be paid
for, at the price determined under sub-rule (5) above, with monies equal to
the amount of the repayment due on the Bonus Date under the Savings
Contract to be made in connection with the option (as ascertained in
accordance with Rule 4 below).
Page 15 of 23 Pages Exhibit 4: page 3
<PAGE>
(7) Subject to Rule 5(3) below, an option granted under the Scheme to any
individual shall not be capable of being transferred by him and shall lapse
forthwith if it is so transferred or if he is adjudged bankrupt.
(8) The grant of any option under the Scheme shall be subject to any approval
or consent required under the terms of any relevant document, regulation or
enactment.
4. MONTHLY CONTRIBUTION AND REPAYMENT
(1) Subject to sub-rule (4)(c) below, for the purposes of Rule 3(2)(c) above,
the amount of the monthly contribution shall be the amount which the
individual shall have specified in his application for the option that he
is willing to pay under the Savings Contract or, if lower, the maximum
permitted amount, that is to say the maximum amount which:-
(a) when aggregated with the amount of his monthly contributions under any
other Savings Contract linked to the Scheme or to any other
savings-related share option scheme approved under Schedule 9, does
not exceed (pound sterling)250,
(b) does not exceed the maximum amount for the time being permitted under
the terms of the Savings Contract, and
(c) when aggregated with the amount of his monthly contributions under any
other Savings Contract linked to the Scheme, does not exceed such
maximum amount as may from time to time be determined by the Board.
(2) Subject to paragraphs (a) and (b) of sub-rule (4) below, for the purposes
of Rule 3(6) above, the repayment shall be taken as including a bonus (but
not the maximum bonus) unless the Board shall have determined, in relation
to every option to be granted on the day in question, that it shall be
taken:-
(a) as including the maximum bonus,
(b) as not including a bonus, or
(c) as including such bonus as the individual shall have specified for
this purpose in his application for the option.
(3) If the grant of options under the Scheme on any day in accordance with the
preceding provisions of this Rule would cause the number of shares which
may be acquired on the exercise thereof to exceed such number as may have
been determined by the Board for this purpose, then, in relation to options
so granted on that day, the provisions set out in sub-rule (4) below shall
be successively applied (in the order in which they are therein set out) so
far as is necessary to ensure that those limits are not exceeded.
(4) The said provisions are:-
(a) for the purposes of Rule 3(7) above, if the repayment would otherwise
be taken as including the maximum bonus, it shall be taken as
including a bonus (but not the maximum bonus);
(b) for those purposes, if the repayment would otherwise be taken as
including a bonus, it shall be taken as not including a bonus;
Page 16 of 23 Pages Exhibit 4: page 4
<PAGE>
(c) unless paragraph (d) below applies, the amount of the monthly
contribution determined under sub-rule (1) above shall be taken as
successively reduced by 0.5 per cent. thereof, 1 per cent. thereof,
1.5 per cent. thereof and so on and then rounded up to the nearest
pound, but shall not be reduced to less than the minimum permitted
amount mentioned in Rule 2(b)(5) above;
(d) if the Board shall have determined that this paragraph is to apply,
for the purpose of determining the amount of the said monthly
contribution, the maximum permitted amount referred to in sub-rule (1)
above shall be taken as successively reduced by (pound sterling)1,
(pound sterling)2, (pound sterling)3 and so on, but shall not be
reduced to less than the said minimum permitted amount;
(e) the Board shall not grant any options under the Scheme on the day in
question.
5. EXERCISE OF OPTIONS
(1) The exercise of any option under the Scheme shall be effected in such form
and manner as the Board may prescribe, provided that the monies paid for
shares on such exercise shall not exceed the amount of the repayment made
and any interest paid under the Savings Contract made in connection with
the option.
(2) Subject to sub-rules (3) to (5) below and to Rule 6 below, an option
granted under the Scheme shall not be capable of being exercised before the
Bonus Date.
(3) Subject to sub-rule (7) below, if any Participant dies before the Bonus
Date and at a time when he either holds the office or employment by virtue
of which he is eligible to participate in the Scheme or is entitled to
exercise the option by virtue of sub-rule (4) below, the option may (and
must, if at all) be exercised by his personal representatives within 12
months after the date of his death, and if he dies within 6 months after
the Bonus Date and at such time as aforesaid, the option may be exercised
within 12 months after the Bonus Date.
(4) Subject to sub-rule (7) below, if any Participant ceases to hold the office
or employment by virtue of which he is eligible to participate in the
Scheme (otherwise than by reason of his death), the following provisions
apply in relation to any option granted to him under the Scheme:-
(a) if he so ceases by reason of injury, disability, redundancy within the
meaning of the Employment Protection (Consolidation) Act 1978, or
retirement on reaching the specified age or any other age at which he
is bound to retire in accordance with the terms of his contract of
employment, the option may (and subject to sub-rule (3) above must, if
at all) be exercised within 6 months of his so ceasing;
(b) if he so ceases by reason only that the office or employment is in a
company of which the Company ceases to have control or relates to a
business or part of a business which is transferred to a person who is
neither an associated company of the Company (within the meaning given
to that expression by section 187(2) of the Taxes Act 1988 for the
purposes of paragraph 23 of Schedule 9) nor a company of which the
Company has control, the option may (and subject to sub-rule (3) above
must, if at all) be exercised within 6 months of his so ceasing;
(c) if he so ceases for any other reason within three years of the grant
of the option, the option may not be exercised at all;
(d) if he so ceases for any other reason (except dismissal for misconduct)
more than 3 years after the grant of the option, the option may (and
subject to sub-rule (3) above must, if at all) be exercised within 6
months of his so ceasing.
Page 17 of 23 Pages Exhibit 4: page 5
<PAGE>
(5) Subject to sub-rule (7) below, where any Participant continues to hold the
office or employment by virtue of which he is eligible to participate in
the Scheme after the date on which he reaches the specified age, he may
exercise any option granted to him under the Scheme within 6 months of that
date.
(6) Subject to sub-rule (3) above, an option granted under the Scheme shall not
be capable of being exercised later than 6 months after the Bonus Date.
(7) Where, before an option granted under the Scheme has become capable of
being exercised, the Participant gives notice that he intends to stop
paying monthly contributions under the Savings Contract made in connection
with the option, or is deemed under the terms thereof to have given such
notice, or makes an application for repayment of the monthly contributions
paid thereunder, the option may not be exercised at all.
(8) A Participant shall not be treated for the purposes of sub-rules (3) and
(4) above as ceasing to hold the office or employment by virtue of which he
is eligible to participate in the Scheme until he ceases to hold an office
or employment in the Company or any associated company (within the meaning
given to that expression by section 187(2) of the Taxes Act 1988 for the
purposes of paragraph 23 of Schedule 9) or company of which the Company has
control, and a female Participant who ceases to hold the office or
employment by virtue of which she is eligible to participate in the Scheme
by reason of pregnancy or confinement and who exercises her right to return
to work under section 45 of the Employment Protection (Consolidation) Act
1978 before exercising her option shall be treated for the purposes of
sub-rule (4) above as not having so ceased to hold her said office or
employment.
(9) A Participant shall not be eligible to exercise an option under the Scheme
at any time:-
(a) unless, subject to sub-rule (4) above, he is at that time a director
or employee of a Participating Company;
(b) if he is not at that time eligible to participate in the Scheme by
virtue of paragraph 8 of Schedule 9.
(10) An option granted under the Scheme shall not be capable of being
exercised more than once.
(11) Subject to sub-rule (12) below, within 30 days after an option under
the Scheme has been exercised by any person, the Board on behalf of
the Company shall allot to him (or his nominee) or, as appropriate,
procure the transfer to him (or his nominee) of the number of shares
in respect of which the option has been exercised.
(12) All shares allotted under the Scheme shall rank pari passu in all
respects with the shares of the same class for the time being in
issue save as regards any rights attaching to such shares by
reference to a record date prior to the date of the allotment.
(13) If shares of the same class as those allotted under the Scheme are
listed on any stock exchange, the Company shall apply to that stock
exchange for any shares so allotted to be admitted thereto.
(14) The allotment or transfer of any shares under the Scheme shall be
subject to obtaining any such approval or consent as is mentioned in
Rule 3(8) above.
Page 18 of 23 Pages Exhibit 4: page 6
<PAGE>
6. TAKEOVER, RECONSTRUCTION AND WINDING UP
(1) If any person obtains control of the Company as a result of making a
general offer to acquire shares in the Company, or having obtained such
control makes such an offer, the Board shall within 7 days of becoming
aware thereof notify every Participant thereof and an option granted under
the Scheme may, subject to sub-rules (3), (4), (6) and (7) of Rule 5 above,
be exercised within one month (or such longer period as the Board may
permit) of such notification, but not later than 6 months after such person
has obtained such control.
2) For the purposes of sub-rule (1) above, a person shall be deemed to have
obtained control of the Company if he and others acting in concert with him
have together obtained control of it.
(3) If a compromise or arrangement is effected for the purposes of or in
connection with a scheme for the reconstruction of the Company or its
amalgamation with any other company or companies, or if the Company passes
a resolution for voluntary winding up, the Board shall forthwith notify
every Participant thereof and an option granted under the Scheme may,
subject to sub-rules (3), (4), (6) and (7) of Rule 5 above, be exercised
within one month of such notification, but to the extent that it is not
exercised within that period shall (notwithstanding any other provision of
the Scheme) lapse on the expiration thereof.
(4) If any company ("the acquiring company") obtains control of the Company as
a result of making-
(a) a general offer to acquire the whole of the issued ordinary share
capital of the Company which is made on a condition such that if it is
satisfied the acquiring company will have control of the Company, or
(b) a general offer to acquire all the shares in the Company which are of
the same class as the shares which may be acquired by the exercise of
options granted under the Scheme,
any Participant may at any time within the appropriate period (which
expression shall be construed in accordance with paragraph 15(2) of
Schedule 9), by agreement with the acquiring company, release any option
granted under the Scheme which has not lapsed ("the old option") in
consideration of the grant to him of an option ("the new option") which
(for the purposes of that paragraph) is equivalent to the old option but
relates to shares in a different company (whether the acquiring company
itself or some other company falling within paragraph 10(b) or (c) of
Schedule 9).
(5) The new option shall not be regarded for the purposes of sub-rule (4) above
as equivalent to the old option unless the conditions set out in paragraph
15(3) of Schedule 9 are satisfied, but so that the provisions of the Scheme
shall for this purpose be construed as if:-
(a) the new option were an option granted under the Scheme at the same
time as the old option;
(b) except for the purposes of the definitions of "Participating Company"
and "Subsidiary" in Rule 1(1) and Rule 5(4)(b) and (8) above, the
expression "the Company" were defined as "a company whose shares may
be acquired by the exercise of options granted under the Scheme";
(c) the Savings Contract made in connection with the old option had been
made in connection with the new option;
(d) the Bonus Date in relation to the new option were the same as that in
relation to the old option.
Page 19 of 23 Pages Exhibit 4: page 7
<PAGE>
7. VARIATION OF CAPITAL
(1) Subject to sub-rule (3) below, in the event of any increase or variation of
the share capital of the Company (whenever effected) the Board may make
such adjustments as it considers appropriate under sub-rule (2) below.
(2) An adjustment made under this sub-rule shall be to one or more of the
following:-
(a) the number of shares in respect of which any option granted under the
Scheme may be exercised;
(b) the price at which shares may be acquired by the exercise of any such
option;
(c) where any such option has been exercised but no shares have been
allotted or transferred pursuant to such exercise, the number of
shares which may be so allotted or transferred and the price at which
they may be acquired.
(3) No adjustment under paragraph (a), (b) or (c) of sub-rule (2) above shall
be made at a time when the Scheme is approved by the Inland Revenue under
Schedule 9 without the prior approval of the Inland Revenue.
(4) An adjustment under sub-rule (2) above may have the effect of reducing the
price at which shares may be acquired by the exercise of an option to less
than their nominal value, but only if and to the extent that the Board
shall be authorised to capitalise from the reserves of the Company a sum
equal to the amount by which the nominal value of the shares in respect of
which the option is exercised exceeds the price at which the same may be
subscribed for and to apply such sum in paying up such amount on such
shares; and so that on exercise of any option in respect of which such a
reduction shall have been made the Board shall capitalise such sum (if any)
and apply the same in paying up such amount as aforesaid.
(5) As soon as reasonably practicable after making any adjustment under
sub-rule (2) above, the Board shall give notice in writing thereof to any
Participant affected thereby.
8. ALTERATIONS
(1) The Board may at any time alter or add to all or any of the provisions of
the Scheme in any respect, provided that no alteration or addition shall be
made at a time when the Scheme is approved by the Inland Revenue under
Schedule 9 without the prior approval of the Inland Revenue.
(2) As soon as reasonably practicable after making any alteration or addition
under sub-rule (1) above, the Board shall give notice in writing thereof to
any Participant affected thereby.
9. MISCELLANEOUS
(1) The rights and obligations of any individual under the terms of his office
or employment with the Company or a Subsidiary shall not be affected by his
participation in the Scheme or any right which he may have to participate
therein, and an individual who participates therein shall waive all and any
rights to compensation or damages in consequence of the termination of his
office or employment for any reason whatsoever insofar as those rights
arise or may arise from his ceasing to have rights under or be entitled to
exercise any option under the Scheme as a result of such termination.
Page 20 of 23 Pages Exhibit 4: page 8
<PAGE>
(2) In the event of any dispute or disagreement as to the interpretation of the
Scheme, or as to any question or right arising from or related to the
Scheme, the decision of the Board shall be final and binding upon all
persons.
(3) The Company and any Subsidiary may provide money to the trustees of any
trust or any other person to enable them or him to acquire shares to be
held for the purposes of the Scheme, or enter into any guarantee or
indemnity for those purposes, to the extent permitted by any applicable
laws.
(4) Any notice or other communication under or in connection with the Scheme
may be given by personal delivery or by sending the same by post, in the
case of a company to its registered office, and in the case of an
individual to his last known address, or, where he is a director or
employee of the Company or a Subsidiary, either to his last known address
or to the address of the place of business at which he performs the whole
or substantially the whole of the duties of his office or employment, and
where a notice or other communication is given to a person in the United
Kingdom by first-class post sent in the UK, it shall be deemed to have been
received 48 hours after it was put into the post properly addressed and
stamped.
Page 21 of 23 Pages Exhibit 4: page 9
<PAGE>
JONES, DAY, REAVIS & POGUE
3500 One Peachtree Center
303 Peachtree Street
Atlanta, Georgia 30308-3242
EXHIBIT 5
March 27, 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 200,000 shares of Common
Stock, $.05 par value per share, of the Company (the "Shares"), to be issued by
the Company in accordance with the 1994 UK Sharesave Scheme 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>
[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 on Form S-8 of our report dated
February 6, 1997 included in HBO & Company's Form 10-K for the year ended
December 31, 1996.
/s/ Arthur Andersen LLP
ARTHUR ANDERSEN LLP
Atlanta, Georgia
March 27, 1997
Page 23 of 23 Pages
