<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.
1989 Incentive Stock 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 SunTrust Plaza
303 Peachtree Street, N.E.
Atlanta, Georgia 30308-3242
(404) 521-3939
Exhibit Index Appears on Page 9
Page 1 of 22 Pages
<PAGE>
<TABLE>
<CAPTION>
Calculation of Registration Fee
- -------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------
Proposed maxi- Proposed maxi-
Title of securities to Amount to be mum offering mum aggregate Amount of
be registered registered price per share offering price registration fee
- -------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $.05
par value, and 2,587,461 shares $13.6315(1) $35,270,974.62(1) $9,805.33(2)
Preferred Share
- -------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------
</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 $9,805.33 is calculated by multiplying the
product of $13.6315, the weighted average exercise price per share, and
2,587,461, 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 22 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 22 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 22 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.
Item 8. Exhibits.
Page 5 of 22 Pages
<PAGE>
<TABLE>
<CAPTION>
Exhibit
Number Description
- ------ -----------
<S> <C>
Included in Part II of the Registration Statement:
4 Access Health, Inc. 1989 Incentive Stock Plan
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 22 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 22 Pages
<PAGE>
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/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
</TABLE>
Page 8 of 22 Pages
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit Page
Number Description Number
- ------ ----------- ------
<S> <C>
Included in Part II of the Registration Statement:
4 Access Health, Inc. 1989 Incentive Stock Plan
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>
Page 9 of 22 Pages
<PAGE>
Exhibit 4
ACCESS HEALTH, INC.
1989 INCENTIVE STOCK PLAN
(as amended and restated effective November, 1996)
1. Purposes of the Plan. The purposes of this Incentive Stock Plan
are to attract and retain the best available personnel for positions of
substantial responsibility, to provide additional incentive to the Employees and
Consultants of the Company and to promote the success of the Company's business.
Options granted hereunder may be either Incentive Stock Options
or Nonstatutory Stock Options, at the discretion of the Administrator and as
reflected in the terms of the written option agreement. The Administrator may
also grant Stock Purchase Rights under the Plan.
2. Definitions. As used herein, the following definitions shall
apply:
(a) "Administrator" means the Board or any of its Committees as
shall be administering the Plan, in accordance with Section
4 of the Plan.
(b) "Board" shall mean the Board of Directors of the Company.
(c) "Code" shall mean the Internal Revenue Code of 1986, as
amended.
(d) "Committee" shall mean a Committee appointed by the Board of
Directors in accordance with paragraph (a) of Section 4 of
the Plan.
(e) "Common Stock" shall mean the Common Stock of the Company.
(f) "Company" shall mean Access Health Marketing, Inc., a
Delaware corporation.
(g) "Consultant" shall mean any person who is engaged by the
Company or any Parent or Subsidiary to render consulting
services and is compensated for such consulting services,
and any director of the Company whether compensated for such
services or not; provided that for purposes of eligibility
for new Options and Stock Purchase Rights, the term
Consultant shall not include directors who are not
compensated for their services or are paid only a director's
fee by the Company.
(h) "Continuous Status as an Employee or Consultant" shall mean
the absence of any interruption or termination of service as
an Employee or Consultant. Continuous Status as an Employee
or Consultant shall not be considered interrupted in the
case of sick leave, military leave, or any other leave of
absence approved by the Board; provided that such leave is
for a period of not more than 90 days or reemployment upon
the expiration of such leave is guaranteed by contract or
statute.
(i) "Employee" shall mean any person, including officers and
directors, employed by the Company or any Parent or
Subsidiary of the Company. The payment of a director's fee
by the Company shall not be sufficient to constitute
"employment" by the Company.
(j) "Incentive Stock Option" shall mean an Option intended to
qualify as an incentive stock option within the meaning of
Section 422A of the Code.
Page 10 of 22 Pages
<PAGE>
(k) "Nonstatutory Stock Option" shall mean an Option not
intended to qualify as an Incentive Stock Option.
(l) "Option" shall mean a stock option granted pursuant to the
Plan.
(m) "Optioned Stock" shall mean the Common Stock subject to an
Option.
(n) "Optionee" shall mean an Employee or Consultant who receives
an Option.
(o) "Parent" shall mean a "parent corporation", whether now or
hereafter existing, as defined in Section 425(e) of the
Code.
(p) "Plan" shall mean this 1989 Incentive Stock Plan.
(q) "Purchaser" shall mean any person who has purchased Shares
pursuant to an Option or who has purchased, or has the right
to purchase, Shares pursuant to a Stock Purchase Right under
the Plan.
(r) "Share" shall mean a share of the Common Stock, as adjusted
in accordance with Section 12 of the Plan.
(s) "Stock Purchase Right" shall mean a right, other than an
Option, to purchase Common Stock pursuant to the Plan.
(t) "Subsidiary" shall mean a "subsidiary corporation," whether
now or hereafter existing, as defined in Section 425(f) of
the Code.
3. Stock Subject to the Plan. Subject to the provisions of Section
12 of the Plan, the maximum aggregate number of shares which may be optioned and
sold under the Plan is 3,450,000 shares of Common Stock. The Shares may be
authorized, but unissued, or reacquired Common Stock.
If an Option should expire or become unexercisable for any reason
without having been exercised in full, the unpurchased Shares which were subject
thereto shall, unless the Plan shall have been terminated, become available for
future grant under the Plan. To the extent allowable under applicable law and
regulations, Shares issued under the Plan and later repurchased by the Company
shall become available for future grant or sale under the Plan.
4. Administration of the Plan.
(a) Composition of Administrator.
(i) Multiple Administrative Bodies. If permitted by Rule
16b-3 promulgated under the Exchange Act or any
successor rule thereto, as in effect at the time
that discretion is being exercised with respect to
the Plan ("Rule 16b-3") and by the legal
requirements relating to the administration of
incentive stock option plans, if any, of Delaware
corporate and securities laws and the Internal
revenue Code of 1986, as amended, (collectively, the
"Applicable Laws"), the Plan may (but need not) be
administered by different bodies with respect to
Directors, Officers who are not Directors, and
Employees who are neither Directors nor Officers.
(ii) Administration With Respect to Directors and
Officers Subject to Section 16(b). With respect to
Option or Stock Purchase Right grants made to
Employees who are also Officers or Directors subject
to Section 16(b) of the Exchange Act, the Plan shall
be administered by (A) the Board, if the Board may
administer the Plan in compliance with the rules
governing a plan intended to qualify as a
Page 11 of 22 Pages
<PAGE>
discretionary plan under Rule 16b-3, or (B) a
Committee designated by the Board to administer the
Plan, which Committee shall be constituted to comply
with the rules governing a plan intended to qualify
as a discretionary plan under Rule 16b-3. Once
appointed, such Committee shall continue to serve in
its designated capacity until otherwise directed by
the Board. From time to time the Board may increase
the size of the Committee and appoint additional
members, remove members (with or without cause) and
substitute new members, fill vacancies (however
caused), and remove all members of the Committee and
thereafter directly administer the Plan, all to the
extent permitted by the rules governing a plan
intended to qualify as a discretionary plan under
Rule 16b-3.
(iii) Administration With Respect to Other Persons. With
respect to Option or Stock Purchase Right grants
made to Employees or Consultants who are neither
Directors nor Officers of the Company, the Plan
shall be administered by (A) the Board or (B) a
Committee designated by the Board, which Committee
shall be constituted to satisfy Applicable Laws.
Once appointed, such Committee shall serve in its
designated capacity until otherwise directed by the
Board. The Board may increase the size of the
Committee and appoint additional members, remove
members (with or without cause) and substitute new
members, fill vacancies (however caused), and remove
all members of the Committee and thereafter directly
administer the Plan, all to the extent permitted by
Applicable Laws.
(b) Powers of the Administrator. Subject to the provisions of
the Plan, the Administrator shall have the authority, in its
discretion: (i) to grant Incentive Stock Options,
Nonstatutory Stock Options and Stock Purchase Rights; (ii)
to determine, upon review of relevant information and in
accordance with Section 8(b) of the Plan, the fair market
value of the Common Stock; (iii) to determine the exercise
price per Share of Options or Stock Purchase Rights to be
granted, which exercise price shall be determined in
accordance with Section 8(a) of the Plan; (iv) to determine
the Employees or Consultants to whom, and the time or times
at which, Options or Stock Purchase Rights shall be granted
and the number of shares to be represented by each Option or
Stock Purchase Right; (v) to interpret the Plan; (vi) to
prescribe, amend and rescind rules and regulations relating
to the Plan; (vii) to determine the terms and provisions of
each Option or Stock Purchase Right granted (which need not
be identical) and, with the consent of the holder thereof,
modify or amend each Option or Stock Purchase Right; (viii)
to accelerate or defer (with the consent of the Optionee)
the exercise date of any Option consistent with the
provisions of Section 5 of the Plan; (ix) to authorize any
person to execute on behalf of the Company any instrument
required to effectuate the grant of an Option or Stock
Purchase Right previously granted by the Administrator; and
(x) to make all other determinations deemed necessary or
advisable for the administration of the Plan.
(c) Effect of Administrator's Decision. All decisions,
determinations and interpretations of the Administrator
shall be final and binding on all Optionees, Purchasers and
any other holders of any Options or Stock Purchase Rights
granted under the Plan.
5. Eligibility.
(a) Nonstatutory Stock Options and Stock Purchase Rights may be
granted only to Employees or Consultants. Incentive Stock
Options may be granted only to Employees. An Employee or
Consultant who has been granted an Option(s) or Stock
Purchase Right(s) may, if he is otherwise eligible, be
granted an additional Option(s) or Stock Purchase Right(s).
Page 12 of 22 Pages
<PAGE>
(b) Each Option shall be designated in the written option
agreement as either an Incentive Stock Option or a
Nonstatutory Stock Option. However, notwithstanding such
designations, 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 any Optionee during any calendar year (under all
plans of the Company) exceeds $100,000, such Options shall
be treated as Nonstatutory Stock Options.
(c) For purposes of Section 5(b), Options shall be taken into
account in the order in which they were granted, and the
fair market value of the Shares shall be determined as of
the time the Option with respect to such Shares is granted.
(d) The Plan shall not confer upon any Optionee or Purchaser any
right with respect to continuation of employment or
consulting relationship with the Company, nor shall it
interfere in any way with his right or the Company's right
to terminate his employment or consulting relationship at
any time, with or without cause.
(e) The following limitations shall apply to grants of Options
and Stock Purchase Rights to Employees:
(i) No Employee shall be granted, in any fiscal year of
the Company, Options and Stock Purchase Rights to
purchase more than the number of Shares reserved for
issuance under the Plan pursuant to Section 3.
(ii) The foregoing limitation shall be adjusted
proportionately in connection with any change in the
Company's capitalization as described in Section 12.
(iii) If an Option or Stock Purchase Right is canceled
(other than in connection with a transaction
described in Section 12), the canceled Option or
Stock Purchase Right will be counted against the
limit set forth in Section 5(e)(i). For this
purpose, if the exercise price of an Option or Stock
Purchase Right is reduced, the transaction will be
treated as a cancellation of the Option or Stock
Purchase Right and the grant of a new Option or
Stock Purchase Right.
6. Term of Plan. The Plan shall become effective upon the earlier to
occur of its adoption by the Board of Directors or its approval by the
stockholders of the Company as described in Section 18 of the Plan. It shall
continue in effect for a term of ten (10) years unless sooner terminated under
Section 14 of the Plan.
7. Term of Option. The term of each Incentive Stock Option shall be
ten (10) years from the date of grant thereof or such shorter term as may be
provided in the Incentive Stock Option Agreement or Nonstatutory Stock Option
Agreement. However, in the case of an Option granted to an Optionee who, at the
time the Option is granted, owns stock representing more than ten percent (10%)
of the voting power of all classes of stock of the Company or any Parent or
Subsidiary, the term of the Option shall be five (5) years from the date of
grant thereof or such shorter term as may be provided in the Incentive Stock
Option Agreement or Nonstatutory Stock Option Agreement.
8. Exercise Price and Consideration.
(a) The per Share exercise price for the Shares to be issued
pursuant to exercise of an Option or Stock Purchase Right
shall be such price as is determined by the Administrator,
but shall be subject to the following:
(i) In the case of an Incentive Stock Option
(A) granted to an Employee who, at the time of
the grant of such Incentive Stock Option,
owns stock representing more than ten percent
(10%) of
Page 13 of 22 Pages
<PAGE>
the voting power of all classes of
stock of the Company or any Parent or
Subsidiary, the per Share exercise price
shall be no less than 110% of the fair market
value per Share on the date of grant.
(B) granted to any Employee, the per Share
exercise price shall be no less than 100% of
the fair market value per Share on the date
of grant.
(C) In the case of a Nonstatutory Stock Option or
Stock Purchase Right granted to any person,
the per Share exercise price shall be such
price as is determined by the Administrator.
For purposes of this Section 8(a), in the event that an Option is amended to
reduce the exercise price, the date of grant of such Option shall thereafter be
considered to be the date of such amendment.
(b) The fair market value shall be determined by the
Administrator in its discretion; provided, however, that
where there is a public market for the Common Stock, the
fair market value per Share shall be the mean of the bid and
asked prices (or the closing price per share if the Common
Stock is listed on the National Association of Securities
Dealers Automated Quotation ("NASDAQ") National Market
System) of the Common Stock for the date of grant, as
reported in The Wall Street Journal (or, if not so reported,
as otherwise reported by the NASDAQ
System) or, in the event the Common Stock is listed on a
stock exchange, the fair market value per Share shall be the
closing price on such exchange on the date of grant of the
Option or Stock Purchase Right, as reported in The Wall
Street Journal.
(c) The consideration to be paid for the Shares to be issued
upon exercise of an Option or Stock Purchase Right,
including the method of payment, shall be determined by the
Administrator and may consist entirely of cash, check,
promissory note, other Shares of Common Stock which (i)
either have been owned by the Optionee or Purchaser for more
than six (6) months on the date of surrender or were not
acquired, directly or indirectly, from the Company, and (ii)
have a fair market value on the, date of surrender equal to
the aggregate exercise price of the Shares as to which said
Option or Stock Purchase Right shall be exercised, 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 or Stock Purchase Right and delivery to the Company
of the sale or loan proceeds required to pay the exercise
price, or any combination of such methods of payment, or any
combination of such methods of payment, or such other
consideration and method of payment for the issuance of
Shares to the extent permitted under applicable laws.
9. Exercise of Option.
(a) Procedure for Exercise: Rights as a Stockholder. Any option
granted hereunder shall be exercisable at such times and
under such conditions as determined by the Administrator,
including performance criteria with respect to the Company
and/or the Optionee, and as shall be permissible under the
terms of the Plan.
An Option may not be exercised for a fraction of a Share.
An Option shall be deemed to be exercised when written notice of
such exercise has been given to the Company in accordance with the terms of the
Option by the person entitled to exercise the Option and full payment for the
Shares with respect to which the Option is exercised has been received by the
Company. Full payment may, as authorized by the Administrator, consist of any
consideration and method of payment allowable under Section 8(c) of the Plan.
Until the issuance (as evidenced by the appropriate entry on the books of the
Company or of a duly authorized transfer agent of the Company) of the stock
certificate evidencing such Shares, no
Page 14 of 22 Pages
<PAGE>
right to vote or receive dividends or any other rights as a stockholder shall
exist with respect to the Optioned Stock, notwithstanding the exercise of the
Option. The Company shall issue (or cause to be issued) such stock certificate
promptly upon exercise of the Option. In the event that the exercise of an
Option is treated in part as the exercise of an Incentive Stock Option and in
part as the exercise of a Nonstatutory Stock Option pursuant to Section 5(b),
the Company shall issue a separate stock Certificate evidencing the Shares
treated as acquired upon exercise of an Incentive Stock Option and a separate
stock certificate evidencing the Shares treated as acquired upon exercise of a
Nonstatutory Stock Option, and shall identify each such certificate accordingly
in its stock transfer records. No adjustment will be made for a dividend or
other right for which the record date is prior to the date the stock certificate
is issued, except as provided in Section 12 of the Plan.
Except as provided in Section 3 of the Plan, exercise of an
Option in any manner shall result in a decrease in the number of Shares which
thereafter may be available, both for purposes of the Plan and for sale under
the Option, by the number of Shares as to which the Option is exercised.
(b) Termination of Status as an Employee or Consultant. In the
event of termination of an Optionee's Continuous Status as
an Employee or Consultant (as the case may be), such
Optionee may, but only within thirty (30) days (or such
other period of time, not exceeding three (3) months in the
case of an Incentive Stock Option or twelve (12) months in
the case of a Nonstatutory Stock Option, as is determined by
the Administrator, with such determination in the case of an
Incentive Stock Option being made at the time of grant of
the Option) after the date of such termination (but in no
event later than the date of expiration of the term of such
Option as set forth in the Option Agreement), exercise his
Option to the extent that he was entitled to exercise it at
the date of such termination. To the extent that he was not
entitled to exercise the Option at the date of such
termination, or if he does not exercise such Option (which
he was entitled to exercise) within the time specified
herein, the Option shall terminate.
(c) Disability of Qptionee. Notwithstanding the provisions of
Section 9(b) above, in the event of termination of an
Optionee's Continuous Status as an Employee or Consultant as
a result of his total and permanent disability (as defined
in Section 22(e)(3) of the Code), he may, but only within
six (6) months (or such other period of time not exceeding
(12) months as is determined by the Administrator, with such
determination in the case of an Incentive Stock Option being
made at the time of grant of the Option) from the date of
such termination (but in no event later than the date of
expiration of the term of such Option as set forth in the
Option Agreement), exercise his Option to the extent that he
was entitled to exercise it at the date of such termination.
To the extent that he was not entitled to exercise the
Option at the date of such termination, or if he does not
exercise such Option (which he was entitled to exercise)
within the time specified herein, the Option shall
terminate.
(d) Death of Optionee. Notwithstanding the provisions of Section
9(b) above, in the event of the death of an Optionee:
(i) during the term of the Option who is at the time of
his death an Employee or Consultant of the Company
and who shall have been in Continuous Status as an
Employee or Consultant since the date of grant of
the Option, the Option may be exercised, at any time
within twelve (12) months following the date of
death (but in no event later than the date of
expiration of the term of such Option as set forth
in the Option Agreement), by the Optionee's estate
or by a person who acquired the right to exercise
the Option by bequest or inheritance, but only to
the extent of the right to exercise that would have
accrued had the Optionee continued living and
remained in Continuous Status as an Employee or
Consultant twelve (12) months after the date of
death; or
Page 15 of 22 Pages
<PAGE>
(ii) within thirty (30) days (or such other period of
time not exceeding three (3) months as is determined
by the Administrator, with such determination in the
case of an Incentive Stock Option being made at the
time of grant of the Option) after the termination
of Continuous Status as an Employee or Consultant,
the Option may be exercised, at any time within
twelve (12) months following the date of death (but
in no event later than the date of expiration of the
term of such Option as set forth in the Option
Agreement), by the Optionee's estate or by a person
who acquired the right to exercise the Option by
bequest or inheritance, but only to the extent of
the right to exercise that had accrued at the date
of termination.
10. Stock Purchase Rights.
(a) Rights to Purchase. After the Administrator determines that
it will offer an Employee or Consultant the right to
purchase Shares under the Plan, it shall advise the offeree
in writing of the terms, conditions and restrictions
relating to the offer, including the number of Shares that
such person shall be entitled to purchase, and the time
within which such person must accept such offer, which shall
in no event exceed sixty (60) days from the date upon which
the Administrator made the determination to grant the Stock
Purchase Right. The offer shall be accepted by execution of
a Restricted Stock Purchase Agreement in the form determined
by the Administrator.
(b) Issuance of Shares. Forthwith after payment therefore, the
Shares purchased shall be duly issued; provided, however,
that the Administrator may require that the Purchaser make
adequate provision for any Federal and State withholding
obligations of the Company as a condition to such purchase.
Such withholding may be accomplished by the withholding of
Shares having an aggregate fair market value at least equal
to the amount required to be withheld.
(c) Purchase Agreement and Repurchase Option. Unless the
Administrator determines otherwise, and subject to this
Plan, a Restricted Stock Purchase Agreement shall govern the
purchase of Shares pursuant to a Stock Purchase Right and
shall grant the Company a repurchase option exercisable upon
the voluntary or involuntary termination of the Purchaser's
employment with the Company for any reason (including death
or disability). The purchase price for Shares repurchased
pursuant to the Restricted Stock Purchase Agreement shall be
the original price paid by the Purchaser and may be paid by
cancellation of any indebtedness of the Purchaser to the
Company. The repurchase option shall lapse at such a rate as
the Administrator may determine.
(d) Other Provisions. The Restricted Stock Purchase Agreement
shall contain such other terms, provisions and conditions
not inconsistent with the Plan as may be determined by the
Administrator.
(e) Rights as a Stockholder. A Stock Purchase Right shall be
deemed to have been exercised when full payment for the
Shares to be purchased thereunder has been received by the
Company. Until the issuance (as evidenced by the appropriate
entry on the books of the Company or of a duly authorized
transfer agent of the Company) of the stock certificate
evidencing such Shares, no right to vote or to receive
dividends or any other rights as a stockholder shall exist
with respect to the Shares, notwithstanding the exercise of
a Stock Purchase Right. The Company shall issue (or cause to
be issued) such stock certificate promptly upon exercise of
the Stock Purchase Right. No adjustment will be made for a
dividend or other right for which the record date is prior
to the date the Stock Purchase Right is exercised, except as
provided in Section 12 of the Plan.
Page 16 of 22 Pages
<PAGE>
(f) Shares Available Under the Plan. Exercise of a Stock
Purchase Right in any manner shall result in a decrease in
the number of Shares that thereafter shall be available,
both for purposes of the Plan and for sale under the Stock
Purchase Right provisions, by the number of Shares as to
which the Stock Purchase Right is exercised. Shares
repurchased by the Company pursuant to Section 10(c) hereof
shall be available for reissuance under the Plan.
11. Non-Transferability of Options and Stock Purchase Rights. Options
may not be sold, pledged, assigned, hypothecated, transferred, or disposed of in
any manner other than by will or by the laws of descent or distribution and may
be exercised, during the lifetime of the Optionee, only by the Optionee. Stock
Purchase Rights are not transferable.
12. Adjustments Upon Changes in Capitalization or Merger. Subject to
any required action by the stockholders of the Company, the number of shares of
Common Stock covered by each outstanding Option and Stock Purchase Right, and
the number of shares of Common Stock which have been authorized for issuance
under the Plan but as to which no Options or Stock Purchase Rights have yet been
granted or which have been returned to the Plan pursuant to Section 3, as well
as the price per share of Common Stock covered by each such outstanding Option
or Stock Purchase Right, 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 Administrator, 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 an Option or Stock Purchase Right.
In the event of the proposed dissolution or liquidation of the
Company, the Option will terminate immediately prior to the consummation of such
proposed action, unless otherwise provided by the Board. The Board may, in the
exercise of its sole discretion in such instances, declare that any Option shall
terminate as of a date fixed by the Board, and give each Optionee the right to
exercise his Option as to all, or any part of the Optioned Stock, including
Shares as to which the Option would not otherwise be exercisable. In the event
of a proposed sale of all or substantially all of the assets of the Company, or
the merger of the Company with or into another corporation, the Option shall be
assumed or an equivalent option shall be substituted by such successor
corporation or a parent or subsidiary of such successor corporation, unless such
successor corporation does not agree to assume the Option or to substitute an
equivalent option, in which case the Board shall, in lieu of such assumption or
substitution, provide for the Optionee to have the right to exercise the Option
as to all of the Optioned Stock, including Shares as to which the Option would
not otherwise be exercisable. If the Board makes an Option fully exercisable in
lieu of assumption or substitution in the event of a merger or sale of assets,
the Board shall notify the Optionee that the Option shall be fully exercisable
for a period of fifteen (15) days from the date of such notice, and the Option
will terminate upon the expiration of such period.
13. Time of Granting Options. The date of grant of an Option shall,
for all purposes, be the date on which the Administrator makes the determination
granting such Option. Notice of the determination shall be given to each
Employee or Consultant to whom an Option is so granted within a reasonable time
after the date of such grant.
14. Amendment and Termination of the Plan.
(a) Amendment and Termination. The Board may amend or terminate
the Plan from time to time in such respects as the Board may
deem advisable.
(b) Stockholder Approval. The Company shall obtain stockholder
approval of any Plan amendment to the extent necessary and
desirable to comply with Rule 16b-3 of the Exchange Act or
with Section 422 of the Code (or any successor statute or
rule or other
Page 17 of 22 Pages
<PAGE>
applicable law, rule or regulation, including
the requirements of any exchange or quotation system on
which the Common Stock is listed or quoted). Such
stockholder approval, if required, shall be obtained in such
a manner and to such a degree as is required by the
applicable law, rule or regulation.
(c) Effect of Amendment or Termination. Any such amendment or
termination of the Plan shall not affect Options, or Stock
Purchase Rights already granted and such Options and Stock
Purchase Rights shall remain in full force and effect as if
this Plan had not been amended or terminated, unless
mutually agreed otherwise between the Optionee or Purchaser
and the Board, which agreement must be in writing and signed
by the Optionee or Purchaser and the Company.
15. Conditions Upon Issuance of Shares. Shares shall not be issued
pursuant to the exercise of an Option or Stock Purchase Right unless the
exercise of such Option or Stock Purchase Right and the issuance and delivery of
such Shares pursuant thereto shall comply with all relevant provisions of law,
including, without limitation, the Securities Act of 1933, as amended, the
Exchange Act, the rules and regulations promulgated thereunder, and the
requirements of any stock exchange upon which the Shares may then be listed, and
shall be further subject to the approval of counsel for the Company with respect
to such compliance.
As a condition to the exercise of an Option or Stock Purchase
Right, the Company may require the person exercising such Option or Stock
Purchase Right to represent and warrant at the time of any such exercise that
the Shares are being purchased only for investment and without any present
intention to sell or distribute such Shares if, in the opinion of counsel for
the Company, such a representation is required by any of the aforementioned
relevant provisions of law.
16. Reservation of Shares. The Company, during the term of this Plan,
will at all times reserve and keep available such number of Shares as shall be
sufficient to satisfy the requirements of the Plan.
The inability of the Company to obtain authority from any
regulatory body having jurisdiction, which authority is deemed by the Company's
counsel to be necessary to the lawful issuance and sale of any Shares hereunder,
shall relieve the Company of any liability in respect of the failure to issue or
sell such Shares as to which such requisite authority shall not have been
obtained.
17. Option Agreement. Options shall be evidenced by written option
agreements in such form as the Administrator shall approve.
18. Stockholder Approval.
(a) Continuance of the Plan shall be subject to approval by the
stockholders of the Company within twelve (12) months before
or after the date the Plan is adopted.
(b) If and in the event that the Company registers any class of
equity securities pursuant to Section 12 of the Exchange
Act, any required approval of the stockholders of the
Company obtained after such registration shall be solicited
substantially in accordance with Section 14(a) of the
Exchange Act and the rules and regulations promulgated
thereunder.
(c) If any required approval by the stockholders of the Plan
itself or of any amendment thereto is solicited at any time
otherwise than in the manner described in Section 18)(b)
hereof, then the Company shall, at or prior to the first
annual meeting of stockholders held subsequent to the later
of (1) the first registration of any class of equity
securities of the Company under Section 12 of the Exchange
Act or (2) the granting of an Option hereunder to an officer
or director after such registration, do the following:
Page 18 of 22 Pages
<PAGE>
(i) furnish in writing to the holders entitled to vote
for the Plan substantially the same information
which would be required (if proxies to be voted with
respect to approval or disapproval of the Plan or
amendment were then being solicited) by the rules
and regulations in effect under Section 14(a) of the
Exchange Act at the time such information is
furnished; and
(ii) file with, or mail for filing to, the Securities and
Exchange Commission four copies of the written
information referred to in subsection (i) hereof not
later than the date on which such information is
first sent or given to stockholders.
19. Information to Optionees. The Company shall provide to each
Optionee, during the period for which such Optionee has one or more Options
outstanding, copies of all annual reports and other information which are
provided to all stockholders of the Company. The Company shall not be required
to provide such information if the issuance of Options under the Plan is limited
to key employees whose duties in connection with the Company assure their access
to equivalent information.
Page 19 of 22 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 2,587,461 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. 1989 Incentive Stock Plan
(the "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 Plan, 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 20 of 22 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 21 of 22 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 22 of 22 Pages
