<PAGE>
As filed with the Securities and Exchange Commission on December 10, 1998
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)
--------------------
Access Health, Inc.
Nonqualified Stock Option Agreements
(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 SunTrust Plaza
303 Peachtree Street, N.E.
Atlanta, Georgia 30308-3242
(404) 521-3939
Exhibit Index Appears on Page 9
Page 1 of 17 Pages
<PAGE>
Calculation of Registration Fee
<TABLE>
<CAPTION>
Proposed maxi- Proposed maxi-
Title of securities to Amount to be mum offering price mum aggregate Amount of
be registered registered per share offering price registration fee
- ----------------------- ----------------------- ----------------------- ----------------------- ----------------------
<S> <C> <C> <C> <C>
Common Stock,
$.05 par value, and 181,250 shares $28.3138(1) $5,131,876.25(1) $1,426.66(2)
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. Because
all shares are presently subject to options, the offering price is based upon
the actual weighted average exercise price.
(2) The registration fee of $1,426.66 is calculated by multiplying the product
of $28.3138, the weighted average exercise price per share, and 181,250, the
number of shares subjected to option, by .000278.
(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 17 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 17 Pages
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 3. Incorporation of Documents by Reference.
HBO & Company (the "Company") hereby incorporates by reference into this
Registration Statement the following documents:
(a) The Company's Annual Report on Form 10-K for the fiscal year ended December
31, 1997.
(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, 1997.
(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 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,
Page 4 of 17 Pages
<PAGE>
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 to contain provisions
substantially similar to those contained in the amended Delaware General
Corporation Law.
Item 7. Exemption from Registration Claimed.
Inapplicable.
Page 5 of 17 Pages
<PAGE>
Item 8. Exhibits.
<TABLE>
<CAPTION>
Exhibit
Number Description
- ------ -----------
Included in Part II of the Registration Statement:
<S> <C>
4.1 Access Health, Inc. Stock Option Agreement with Thomas E. Gardner
(incorporated by reference to Exhibit 4.1 to the Registration Statement on Form
S-8 of Access Health Inc. (file no. 333-24561) filed April 4, 1997.
4.2 Access Health Inc. Stock Option Agreement with Julie A. Brooks
5 Opinion of Counsel re: legality
15 Letter re: unaudited interim financial information
23(a) Consent of Counsel (included in Exhibit 5)
23(b) Consent of independent public accountants
24 Power of Attorney (included in signature page)
</TABLE>
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 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 6 of 17 Pages
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Atlanta, State of Georgia, on the 10th day of
December, 1998.
HBO & COMPANY
By: /s/ Charles W. McCall
----------------------
Charles W. McCall
Chairman, 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 David Held, 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 Chairman, President and Chief Executive December 10, 1998
- -------------------- Officer (Principal Executive Officer)
Charles W. McCall
/s/ David Held Senior Vice President, Chief December 10, 1998
- -------------- Financial Officer and Treasurer
David Held (Principal Financial Officer and Principal
Accounting Officer)
/s/ Alfred C. Eckert III Director December 10, 1998
- ------------------------
Alfred C. Eckert III
/s/ Philip A. Incarnati Director December 10, 1998
- -----------------------
Philip A. Incarnati
</TABLE>
Page 7 of 17 Pages
<PAGE>
Signature Title Date
--------- ----- -----
/s/ Alton F. Irby III Director December 10, 1998
- ---------------------
Alton F. Irby III
/s/ M. Christine Jacobs Director December 10, 1998
- -----------------------
M. Christine Jacobs
/s/ Gerald E. Mayo Director December 10, 1998
- ------------------
Gerald E. Mayo
/s/ James V. Napier Director December 10, 1998
- -------------------
James V. Napier
/s/ Donald C. Wegmiller Director December 10, 1998
- -----------------------
Donald C. Wegmiller
Page 8 of 17 Pages
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit Page
Number Description Number
- ------ ----------- ------
Included in Part II of the Registration Statement:
<S> <C> <C>
4.1 Access Health, Inc. Stock Option Agreement with Thomas E. Gardner
(incorporated by reference to Exhibit 4.1 to the Registration Statement
on Form S-8 of Access Health Inc. (file no. 333-24561) filed April 4,
1997.
4.2 Access Health Inc. Stock Option Agreement with Julie A.
Brooks 10
5 Opinion of Counsel re: legality 15
15 Letter re: unaudited interim financial information 16
23(a) Consent of Counsel (included in Exhibit 5)
23(b) Consent of independent public accountants 17
24 Power of Attorney (included in signature page) 7
</TABLE>
Page 9 of 17 Pages
<PAGE>
Exhibit 4.2
ACCESS HEALTH, INC.
STOCK OPTION AGREEMENT
I. NOTICE OF STOCK OPTION GRANT
Julie A. Brooks
You have been granted an option to purchase Common Stock of Access
Health, Inc., a Delaware corporation (the "Company"), subject to the terms and
conditions of this Option Agreement, as follows:
<TABLE>
<S> <C>
Grant Number 000455
-----------
Date of Grant 05/01/97
-----------
Vesting Commencement Date 05/01/98
-----------
Exercise Price per Share $ 14,375
-----------
Total Number of Shares Granted 33,000
-----------
Total Exercise Price $474,375.00
-----------
Type of Option: NSO
-----------
Term/Expiration Date 05/01/07
-----------
</TABLE>
Vesting Schedule:
This Option shall be exercisable cumulatively to the extent of
one-fifth of the total number of shares subject to the Option on the Vesting
Commencement Date set forth above and an additional one-fifth of the total
shares subject to the Option at the end of each 12-month period thereafter.
Notwithstanding the foregoing the Option shall become fully exercisable
in the event of any of the following (1) the stockholders of the Company approve
a merger or consolidation of the Company with any other corporation or entity,
other than a merger or consolidation which would result in the voting securities
of the Company outstanding immediately prior thereto continuing to represent
(either by remaining outstanding or by being converted into voting securities of
the surviving entity) at least fifty percent (50%) of the total voting power
represented by the voting securities of the Company or such surviving entity
outstanding immediately after such merger or consolidation, or the stockholders
of the Company approve a plan of complete liquidation of the Company or an
agreement for the sale or disposition by the Company of all or substantially all
the Company's assets, except a sale to an entity of which at least fifty percent
(50%) of the total voting power represented by the voting securities of such
entity are held by stockholders of the Company at the time of such sale, (ii)
the acquisition by a Person as beneficial owner (as such terms are defined in
the Securities Exchange Act of 1934, as amended), directly or indirectly, of
securities of the Company representing fifty percent (50%) or more of the total
voting power represented by the Company's then outstanding voting securities, or
1999) a majority of the Board of Directors of the Company in office at the
beginning of any twenty-four (24) month period is replaced during the course of
such twenty-four (24) month period other than by voluntary resignation of
individual directors in the ordinary course of business and such replacement was
not initiated by the Board of Directors of the Company as
Page 10 of 17 Pages
<PAGE>
constituted at the beginning of such twenty-four (24) month period and as
changed during such period to add directors approved by the incumbent Board of
Directors.
Termination Period:
This Option may be exercised to the extent exercisable or the date of
termination for one (1) year after the date of termination of employment or
consulting relationship, or such longer period as may be applicable upon death
or Disability of Optionee as provided in Sections 8 and 9 of this Agreement, but
in no event later than the Term/Expiration Date as provided above.
II. AGREEMENT
1. Definitions. As used herein, the following definitions shall
apply:
(a) "Administrator" means the Board or any of its
Committees, which Committees shall be constituted to satisfy Applicable Laws.
(b) "Applicable Law" means the legal requirements
relating to the administration of stock option plans under U. S. state corporate
laws, U.S. federal and state securities laws, the Code and the applicable laws
of any foreign country or jurisdiction where Options are, or will be, granted
under the Plan.
(c) "Board" means the Board of Directors of the Company.
(d) "Code" means the Internal Revenue Code of 1986, as
amended.
(e) "Committee" means a Committee appointed by the Board.
(f) "Common Stock" means the Common Stock of the Company.
(g) "Consultant" means any person, including an advisor,
engaged by the Company to render services and who is compensated for such
services.
(h) "Director" means a member of the Board.
(i) "Disability" means total and permanent disability as
defined in Section 22(c)(3) of the Code.
(j) "Employee" means any person employed by the Company.
(k) "Fair Market Value" means, as of any date, the
closing sales price (or the closing bid, if no sales were reported) as quoted on
such exchange or system for the last market trading day prior to the time of
determination, as reported in The Wall Street Journal or such other source as
the Administrator deems reliable.
(l) "Nonstatutory Stock Option" means an Option not
intended to qualify as an incentive stock option within the meaning of Section
422 of the Code.
(m) "Officer" means a person who is an officer of the
Company within the meaning of Section 16 of the Securities Exchange Act of 1934,
as amended.
(n) "Share" means a share of the Common Stock, as
adjusted in accordance with Section 11 of this Agreement.
2. Grant of Option. The Administrator hereby grants to the
Optionee named in the Notice of Grant attached as Part I of this Agreement (the
"Optionee"), an option (the "Option") to purchase a number of Shares, as set
forth in the Notice of Grant, at the exercise price per share set forth in the
Notice of Grant (the "Exercise Price").
Page 11 of 17 Pages
<PAGE>
This Option is not intended to qualify as an Incentive Stock Option
under Section 422 of the Code.
3. Exercise of Option.
(a) Right to Exercise. This Option is exercisable during its
term in accordance with the Vesting Schedule set out in the Notice of Grant and
the applicable provisions of this Option Agreement. In the event of Optionee's
death, disability or other termination of Optionee's employment or consulting
relationship, the exercisability of the Option is governed by the applicable
provisions of this Option Agreement and any employment agreement between
Optionee and the Company.
(b) Method of Exercise. This Option is exercisable by delivery
of an exercise notice, in the form attached as Exhibit A (the "Exercise
Notice"), which shall state the election to exercise the Option, the number of
Shares in respect of which the Option is being exercised (the "Exercised
Shares"), and such other representations and agreements as may be required by
the Company pursuant to the provisions of the Plan. The Exercise Notice shall be
signed by the Optionee and shall be delivered in person or by certified mail to
the Secretary of the Company. The Exercise Notice shall be accompanied by
payment of the aggregate Exercise Price as to all Exercised Shares. This Option
shall be deemed to be exercised upon receipt by the Company of such fully
executed Exercise Notice accompanied by such aggregate Exercise Price.
No Shares shall be issued pursuant to the exercise of this Option
unless such issuance and exercise complies with all relevant provisions of law
and the requirements of any stock exchange or quotation service upon which the
Shares are then fisted. Assuming such compliance, for income tax purposes the
Exercised Shares shall be considered transferred to the Optionee on the date the
Option is exercised with respect to such Exercised Shares.
4. Method of Payment. Payment of the aggregate Exercise Price shall be
by any of the following or a combination thereof at the election of the
Optionee:
(a) cash; or
(b) check; or
(c) delivery of a properly executed exercise notice
together with such other documentation as the Administrator and the broker, if
applicable, shall require to effect an exercise of the Option and delivery to
the Company of the sale or loan proceeds required to pay the exercise price; or
(d) surrender of other Shares which (i) in the case of
Shares acquired upon exercise of an option, have been owned by the Optionee for
mom than six (6) months on the date of surrender, and (ii) have a Fair Market
Value on the date of surrender equal to the aggregate Exercise Price of the
Exercised Shares.
5. Non-Transferability of Option. This Option may not be
transferred in any manner otherwise than by will or by the laws of descent or
distribution and may be, exercised during the lifetime of Optionee only by the
Optionee. The terms of this Option Agreement shall be binding, upon the
executors, administrators, heirs, successors and assigns of Optionee.
6. Term of Option. This Option may be exercised only within the
terms set out in the Notice of Grant, and may be exercised during such term only
in accordance with the terms of this Option Agreement.
7. Termination of Employment. Upon termination of an Optionee's
status as an Employee or Consultant (other than as a result of the Optionee's
death or Disability), the Optionee may exercise his or her Option, but only
within one (1) year of the last month of payments made by the Company to
Optionee in connection with termination of such status ("Termination Payment
Date") and only to the extent that the Optionee was entitled to exercise it at
the date of such Termination Payment Date (and in no event later than the
expiration of the term of such Option as set forth in this Agreement). To the
extent that Optionee was not entitled to exercise an Option at the date of such
Termination Payment Date, and to the extent that the Optionee does not exercise
such Option (to
Page 12 of 17 Pages
<PAGE>
the extent otherwise so entitled) within the time specified herein, the Option
shall terminate. For purposes of this Section 7, an Optionee's change in status
from: (i) Employee to Consultant, (ii) Consultant to Employee, or (iii) Employee
or Consultant to Officer shall not, unless otherwise specified by the
Administrator, be considered a termination of status as an Employee or
Consultant.
8. Disability of Optionee. Upon termination of an Optionee's
status as an Employee or Consultant as a result of the Optionee's Disability,
the Optionee, may exercise his or her Option, but only within one (1) year of
the last month of payments made by the Company to Optionee in connection with
termination of such status ("Disability Termination Date") and only to the
extent that the Optionee was entitled to exercise it at the date of such
Disability Termination Date (and in no event later than the expiration of the
term of such Option as set forth in this Agreement). To the extent that Optionee
was not entitled to exercise an Option at the date of such Disability
Termination Date, and to the extent that the Optionee does not exercise such
Option (to the extent otherwise so entitled) within the time specified herein,
the Option shall terminate.
9. Death of Optionee. In the event of an Optionee's death, the
Optionee's estate or a person who acquired the right to exercise the deceased
Optionee's Option by bequest or inheritance may exercise the Option, but only
within one (1) year of such date and only to the extent that the Optionee was
entitled to exercise it at the date of death (and in no event later than the
expiration of the term of such Option as set forth in this Agreement). To the
extent that Optionee was not entitled to exercise an Option at the date of
death, and to the extent that the Optionee's estate or a person who acquired the
right to exercise such Option does not exercise such Option (to the extent
otherwise so entitled) within the time specified herein, the Option shall
terminate.
10. Adjustment Upon Changes in Capitalization, Dissolution, Merger
or Asset Sale.
(a) Changes in Capitalization. Subject to any required action
by the stockholders of the Company, the number of shares of Common Stock covered
by the Option, as well as the price per share of Common Stock covered by each
such outstanding Option, shall be proportionately adjusted for any increase or
decrease in the number of issued shares of Common Stock resulting from a stock
split, reverse stock split, stock dividend, combination or reclassification of
the Common Stock, or any other increase or decrease in the number of issued
shares of Common Stock effected without receipt of consideration by the Company,
provided, however, that conversion of any convertible securities of the Company
shall not be deemed to have been "effected without receipt of consideration."
Such adjustment shall be made by the Board whose determination in that respect
shall be final, binding and conclusive. Except as expressly provided herein, no
issuance by the Company of shares of stock of any class, or securities
convertible into shares of stock of any class, shall affect, and no adjustment
by reason thereof shall be made with respect to, the number or price of shares
of Common Stock subject to the Option.
(b) Dissolution or Liquidation. In the event of the proposed
dissolution or liquidation of the Company. the Administrator shall notify the
Optionee at least fifteen (15) days prior to the effective date of such proposed
transaction. The Administrator may, in the exercise of its sole discretion,
declare that the Option shall terminate as of a date determined by the
Administrator and give the Optionee the right to exercise his or her Option as
to all or any part of the optioned stock, including Shares which would not
otherwise be exercisable. To the extent it has not been previously exercised,
the Option will terminate immediately prior to the consummation of such proposed
action.
(c) Merger or Asset Sale. In the event of a merger of the
Company with or into another corporation, or the sale of substantially all of
the assets of the Company, the Option will be assumed or an equivalent option or
right substituted by the successor corporation or a Parent or Subsidiary of the
successor corporation.
11. Tax Consequences. Some of the federal and state tax
consequences relating to this Option, as of the date of this Option, are set
forth below. THIS SUMMARY IS NECESSARILY INCOMPLETE AND THE TAX LAWS AND
REGULATIONS ARE SUBJECT TO CHANGE. THE OPTIONEE SHOULD CONSULT A TAX ADVISER
BEFORE EXERCISING THIS OPTION OR DISPOSING OF THE SHARES.
Page 13 of 17 Pages
<PAGE>
(a) Exercising the Nonqualified Stock Option ("NSO"). This
Option does not qualify as an ISO. As a consequence, the optionee may incur
regular federal income tax and state income tax liability upon exercise. The
Optionee, will be treated as having received compensation income (taxable at
ordinary income tax rates) equal to the excess, if any, of the fair market value
of the Exercised Shares on the date of exercise over their aggregate Exercise
Price. If the Optionee is an employee, the Company will be required to withhold
from his or her compensation or collect from Optionee and pay to the applicable
taxing authorities an amount equal to a percentage of this compensation income
at the time of exercise.
(b) Disposition of Shares. If the Optionee holds NSO Shares
for at least one year, any gain realized on disposition of the Shares will be
treated as long-term capital gain for federal income tax purposes.
By your signature and the signature of the Company's representative
below, you and the Company agree that this Option is granted and governed by the
terms and conditions of this Option Agreement. Optionee has reviewed this Option
Agreement in its entirety, has had an opportunity to obtain the advice of
counsel prior to executing this Option Agreement and fully understands all
provisions of the Option Agreement. Optionee hereby agrees to accept as binding,
conclusive and final all decisions or interpretations of the Administrator upon
any questions relating to the Option Agreement.
OPTIONEE: ACCESS HEALTH, INC.
/s/ By: /s/
- ------------------------------- --------------------------
Signature
Julie A. Brooks Title: President
- ------------------------------- --------------------------
Print Name
Page 14 of 17 Pages
<PAGE>
Exhibit 5
JONES, DAY, REAVIS & POGUE
3500 SunTrust Plaza 303
Peachtree Street, N.E.
Atlanta, Georgia 30308-3242
(404) 521-3939
December 10, 1998
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 181,250
shares of Common Stock, $.05 par value per share, of the Company (the "Shares"),
to be issued by the Company in accordance with the Access Health, Inc. Stock
Option Agreements with Thomas E. Gardner and Julie A. Brooks (the "Agreements")
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
Agreements, 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 15 of 17 Pages
<PAGE>
Exhibit 15
[ARTHUR ANDERSEN LLP]
LETTER REGARDING UNAUDITED
INTERIM FINANCIAL INFORMATION
We are aware that HBO & Company has incorporated by reference in this
Registration Statement on Form S-8, its Form 10-Q for the quarters ended March
31, 1998, June 30, 1998 and September 30, 1998, which includes our reports dated
May 6, 1998, July 20, 1998 and October 23, 1998, respectively, covering the
unaudited interim financial information contained therein. Pursuant to
Regulation C of the Securities Act of 1933 (the "Act"), those reports are not
considered to be a part of the Registration Statement prepared or certified by
our firm within the meaning of Sections 7 and 11 of the Act.
/s/ Arthur Andersen LLP
Arthur Andersen LLP
Atlanta, Georgia
December 9, 1998
Page 16 of 17 Pages
<PAGE>
Exhibit 23(b)
[ARTHUR ANDERSEN LLP]
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accounts, we hereby consent to the incorporation by
reference in this Registration Statement on Form S-8 of our reports dated
February 6, 1998 included or incorporated by reference in HBO & Company's Form
10-K for the year ended December 31, 1997.
/s/ Arthur Andersen LLP
Arthur Andersen LLP
Atlanta, Georgia
December 9, 1998
Page 17 of 17 Pages
