<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.
Supplemental 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 19 Pages
<PAGE>
<TABLE>
<CAPTION>
Calculation of Registration Fee
- --------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------
Proposed maximum Proposed maximum
Title of securities to Amount to be offering price aggregate Amount of
be registered registered per share offering price registration fee
- ------------------------ ---------------------- ---------------------- ---------------------- ----------------------
<S> <C> <C> <C> <C>
Common Stock,
$.05 par value, and 1,384,084 shares $14.3124(1) $19,809,563.84(1) $5,507.06(2)
Preferred Share
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 $5,507.06 is calculated by multiplying the
product of $14.3124, the weighted average exercise price per share, and
1,384,084, 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 19 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 19 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
Page 4 of 19 Pages
<PAGE>
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 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 19 Pages
<PAGE>
Item 8. Exhibits.
<TABLE>
<CAPTION>
Exhibit
Number Description
- ------ -----------
<S> <C>
Included in Part II of the Registration Statement:
4 Access Health, Inc. Supplemental 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 19 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 19 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 19 Pages
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit Page
Number Description Number
- ------ ----------- ------
<S> <C> <C>
Included in Part II of the Registration Statement:
4 Access Health, Inc. Supplemental 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 19 Pages
<PAGE>
Exhibit 4
ACCESS HEALTH, INC.
SUPPLEMENTAL STOCK PLAN
-------------------
1. Purposes of the Plan. The purposes of this Plan are:
- to attract and retain the best available personnel
for positions of substantial responsibility,
- to provide additional incentive to eligible
Employees, Directors, and Consultants, and
- to promote the success of the Company's business.
Nonstatutory Stock Options may be granted 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) "Applicable Laws" 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
in accordance with Section 4 of the Plan.
(f) "Common Stock" means the Common Stock of the Company.
(g) "Company" means Access Health, Inc., a Delaware
corporation.
(h) "Consultant" means any person, including an advisor,
engaged by the Company to render services and who is
compensated for such services.
(i) "Director" means a member of the Board.
(j) "Disability" means total and permanent disability as
defined in Section 22(e)(3) of the Code.
(k) "Employee" means any person employed by the Company.
(l) "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.
(m) "Nonstatutory Stock Option" means an Option not
intended to qualify as an incentive stock option
within the meaning of Section 422 of the Code.
Page 10 of 19 Pages
<PAGE>
(n) "Notice of Grant" means a written notice evidencing
certain terms and conditions of an individual Option
grant. The Notice of Grant is part of the Option
Agreement.
(o) "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.
(p) "Option" means a stock option granted pursuant to the
Plan.
(q) "Option Agreement" means a written agreement between
the Company and an Optionee evidencing the terms and
conditions of an individual Option grant. The Option
Agreement is subject to the terms and conditions of
the Plan.
(r) "Optioned Stock" means the Common Stock subject to an
Option.
(s) "Optionee" means an Employee or Consultant who holds
an outstanding Option.
(t) "Plan" means this Supplemental Stock Plan.
(u) "Share" means a share of the Common Stock, as
adjusted in accordance with Section 12 of the Plan.
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 1,000,000 Shares. The Shares may be authorized, but
unissued, or reacquired Common Stock.
If an Option expires or becomes unexercisable without having been
exercised in full, the unpurchased Shares which were subject thereto shall
become available for future grant or sale under the Plan (unless the Plan has
terminated).
4. Administration of the Plan
(a) Administration. The Plan shall be administered by
(i) the Board or (ii) 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, and in the case of a
Committee, subject to the specific duties delegated
by the Board to such Committee, the Administrator
shall have the authority, in its discretion:
(i) to determine the Fair Market Value of
the Common Stock, in accordance with
Section 2(l) of the Plan;
(ii) to select the Consultants and Employees to
whom Options may be granted hereunder;
(iii) to determine whether and to what extent
Options are granted hereunder;
(iv) to determine the number of shares of Common
Stock to be covered by each Option granted
hereunder;
Page 11 of 19 Pages
<PAGE>
(v) to approve forms of agreement for use under
the Plan;
(vi) to determine the terms and conditions, not
inconsistent with the terms of the Plan, of
any award granted hereunder. Such terms and
conditions include, but are not limited to,
the exercise price, the time or times when
Options may be exercised (which may be based
on performance criteria), any vesting
acceleration or waiver of forfeiture
restrictions, and any restriction or
limitation regarding any Option or the
shares of Common Stock relating thereto,
based in each case on such factors as the
Administrator, in its sole discretion, shall
determine;
(vii) to construe and interpret the terms of the
Plan and awards granted pursuant to the
Plan;
(viii) to prescribe, amend and rescind rules and
regulations relating to the Plan, including
rules and regulations relating to sub-plans
established for the purpose of qualifying
for preferred tax treatment under foreign
tax laws;
(ix) to modify or amend each Option (subject to
Section 15(b) of the Plan), including the
discretionary authority to extend the
post-termination exercisability period of
Options;
(x) to authorize any person to execute on behalf
of the Company any instrument required to
effect the grant of an Option previously
granted by the Administrator;
(xi) to reduce the exercise price of any option
to the then current Fair Market Value if the
Fair Market Value of the Common Stock
covered by such Option shall have declined
since the date the Option was granted;
(xii) to make all other determinations deemed
necessary or advisable for administering the
Plan.
(c) Effect of Administrator's Decision. The
Administrator's decisions, determinations and
interpretations shall be final and binding on all
Optionees and any other holders of Options.
5. Eligibility. Nonstatutory Stock Options may be granted to
Employees, Directors, and Consultants. If otherwise eligible, an Employee,
Director, or Consultant who has been granted an Option may be granted
additional Options.
6. Limitations. Neither the Plan nor any Option shall confer upon an
Optionee any right with respect to continuing the Optionee's employment or
consulting relationship with the Company, nor shall they interfere in any way
with the Optionee's right or the Company's right to terminate such employment or
consulting relationship at any time, with or without cause.
7. Term of Plan. The Plan shall become effective upon its adoption by
the Board. It shall continue in effect until terminated under Section 15 of the
Plan.
8. Term of Option. The term of each Option shall be stated in the
Notice of Grant.
9. Option Exercise Price and Consideration.
(a) Exercise Price. The per share exercise price for the
Shares to be issued pursuant to exercise of an Option
shall be determined by the Administrator.
Page 12 of 19 Pages
<PAGE>
(b) Waiting Period and Exercise Dates. At the time an
Option is granted, the Administrator shall fix the
period within which the Option may be exercised and
shall determine any conditions which must be
satisfied before the Option may be exercised.
(c) Form of Consideration. The Administrator shall
determine the acceptable form of consideration for
exercising an Option, including the method of
payment. Such consideration may consist entirely of:
(i) cash;
(ii) check;
(iii) promissory note;
(iv) other Shares which (A) in the case of Shares
acquired upon exercise of an option, have
been owned by the Optionee for more than six
months on the date of surrender, and (B)
have a Fair Market Value on the date of
surrender equal to the aggregate exercise
price of the Shares as to which said Option
shall be exercised;
(v) 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;
(vi) such other consideration and method of
payment for the issuance of Shares to the
extent permitted by Applicable Laws; or
(vii) any combination of the foregoing methods of
payment.
10. Exercise of Option.
(a) Procedure for Exercise: Rights as a Shareholder.
Any Option granted hereunder shall be exercisable
according to the terms of the Plan and at such times
and under such conditions as determined by the
Administrator and set forth in the Option Agreement.
An Option may not be exercised for a fraction of a
Share.
An Option shall be deemed exercised when the
Company receives: (i) written notice of exercise (in accordance with the Option
Agreement) from the person entitled to exercise the Option, and (ii) full
payment for the Shares with respect to which the Option is exercised. Full
payment may consist of any consideration and method of payment authorized by the
Administrator and permitted by the Option Agreement and the Plan. Shares issued
upon exercise of an Option shall be issued in the name of the Optionee or, if
requested by the Optionee, in the name of the Optionee and his or her spouse.
Until the stock certificate evidencing such Shares is issued (as evidenced by
the appropriate entry on the books of the Company or of a duly authorized
transfer agent of the Company), no right to vote or receive dividends or any
other rights as a shareholder 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 after the Option is exercised. 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.
Exercising an Option in any manner shall decrease
the number of Shares thereafter 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 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
Page 13 of 19 Pages
<PAGE>
exercise his or her Option, but only within thirty
(30) days or such other period of time as is
determined by the Administrator (but not to exceed
twelve (12) months) and, unless determined otherwise
by the Administrator, only to the extent that the
Optionee was entitled to exercise it at the date of
such termination (and in no event later than the
expiration of the term of such Option as set forth in
the Option Agreement). To the extent that Optionee
was not entitled to exercise an Option at the date of
such termination, 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, and the Shares
covered by such Option shall revert to the Plan. For
purposes of this Section 10(b), 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.
(c) 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 six (6)
months or such other time period as the Administrator
shall specify from the date of such termination (but
not to exceed twelve (12) months), and, unless
determined otherwise by the Administrator, only to
the extent that the Optionee was entitled to exercise
it at the date of such termination (and in no event
later than the expiration of the term of such Option
as set forth in the Option Agreement). To the extent
that Optionee was not entitled to exercise an Option
at the date of such termination, 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, and the
Shares covered by such Option shall revert to the
Plan.
(d) Death of Optionee. In the event of an Optionee's
death, the Optionee's estate or person who acquired
the right to exercise the deceased Optionee's Option
by bequest or inheritance may exercise the Option,
but only within twelve (12) months or such other time
period as the Administrator shall specify following
the date of death, and, unless determined otherwise
by the Administrator, 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 the Option
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, and the Shares
covered by such Option shall revert to the Plan.
11. Non-Transferability of Options. An Option 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.
12. Adjustments Upon Changes in Capitalization, Dissolution, Merger or
Asset Sale.
(a) Changes in Capitalization. Subject to any required
action by the shareholders of the Company, the number
of shares of Common Stock covered by each outstanding
Option, and the number of shares of Common Stock
which have been authorized for issuance under the
Plan but as to which no Options have yet been granted
or which have been returned to the Plan upon
cancellation or expiration of an 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,
Page 14 of 19 Pages
<PAGE>
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.
(b) Dissolution or Liquidation. In the event of the
proposed dissolution or liquidation of the Company,
the Administrator shall notify each 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 any
Option shall terminate as of a Date determined by the
Administrator and give each 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, an 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, each outstanding Option will be assumed or
an equivalent option or right substituted by the
successor corporation or a Parent or Subsidiary of
the successor corporation (the "Successor
Corporation"), unless the Successor Corporation
refuses to assume or substitute for the Option, in
which case the Optionee shall have the right to
exercise the Option as to all of the Optioned Stock,
including Shares as to which it would not otherwise
be exercisable. If an Option is exercisable in lieu
of assumption or substitution in the event of a
merger or sale of assets, the Administrator 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 shall
terminate upon the expiration of such period. For the
purposes of this paragraph, the Option shall be
considered assumed if, following the merger or sale
of assets, the option or right confers the right to
purchase or receive, for each Share of Optioned Stock
subject to the Option immediately prior to the merger
or sale of assets, the consideration (whether stock,
cash, or other securities or property) received in
the merger or sale of assets by holders of Common
Stock for each Share held on the effective date of
the transaction (and if holders were offered a choice
of consideration, the type of consideration chosen by
the holders of a majority of the outstanding Shares);
provided, however, that if such consideration
received in the merger or sale of assets was not
solely common stock of the Successor Corporation, the
Administrator may, with the consent of the Successor
Corporation, provide for the consideration to be
received upon the exercise of the Option for each
Share of Optioned Stock subject to the Option to be
solely common stock of the Successor Corporation
equal in fair market value to the per share
consideration received by holders of Common Stock in
the merger or sale of assets.
13. Date of Grant. The date of grant of an Option shall be, for all
purposes, the date on which the Administrator makes the determination granting
such Option, or such other later date as is determined by the Administrator.
Notice of the determination shall be provided to each Optionee within a
reasonable time after the date of such grant.
14. Withholding Taxes. In accordance with any applicable
administrative guidelines it establishes, the Administrator may allow a
purchaser to pay the amount of taxes required by law to be withheld as a result
of a purchase of Shares, by withholding from any payment of Common Stock due
as a result of such purchase, or by permitting the purchaser to deliver to the
Company, Shares having a Fair Market Value, as determined by the Administrator,
equal to the amount of such required withholding taxes.
15. Amendment and Termination of the Plan.
(a) Amendment and Termination. The Board may at any time
amend, alter, suspend or terminate the Plan.
Page 15 of 19 Pages
<PAGE>
(b) Effect of Amendment or Termination. No amendment,
alteration, suspension or termination of the Plan
shall impair the rights of any Optionee, unless
mutually agreed otherwise between the Optionee and
the Administrator, which agreement must be in writing
and signed by the Optionee and the Company.
16. Conditions Upon Issuance of Shares.
(a) Legal Compliance. Shares shall not be issued
pursuant to the exercise of an Option unless the
exercise of such Option and the issuance and
delivery of such Shares 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, Applicable Laws, and the
requirements of any stock exchange or quotation
system upon which the Shares may then be listed or
quoted, and shall be further subject to the approval
of counsel for the Company with respect to such
compliance.
(b) Investment Representations. As a condition to the
exercise of an Option, the Company may require the
person exercising such Option 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.
17. Liability of Company. 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.
18. 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.
Page 16 of 19 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 1,384,084 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. Supplemental 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 17 of 19 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 18 of 19 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 19 of 19 Pages
