<PAGE>
As filed with the Securities and Exchange Commission on October 2, 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 issuer as specified in its charter)
DELAWARE 37-0986839
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
301 Perimeter Center North
Atlanta, Georgia 30346
(Address of principal executive office)
------------------
US SERVIS, INC. (F/K/A MICRO HEALTHSYSTEMS, INC.) AMENDED
1993 STOCK OPTION PLAN
(Full title of the plan)
------------------
Charles W. McCall
HBO & Company
301 Perimeter Center North
Atlanta, Georgia 30346
(770) 393-6000
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
With a copy to:
Lisa A. Stater, Esq.
Jones, Day, Reavis & Pogue
3500 SunTrust Plaza
303 Peachtree Street, N.E.
Atlanta, Georgia 30308-3242
------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- ------------------------------ ----------------------- ------------------------- ------------------------ ---------------------
Proposed maximum Proposed maximum
Title of securities Amount to be offering price aggregate Amount of
to be registered registered per share offering price registration fee
- ------------------------------ ----------------------- ------------------------- ------------------------ ---------------------
<S> <C> <C> <C> <C>
Common Stock, $.05 par
value and Preferred Share
Purchase Rights (3) 172,490 shares $8.4508 (1) $1,457,678 (1) $430.02 (2)
- ------------------------------ ----------------------- ------------------------- ------------------------ ---------------------
</TABLE>
(1) Estimated solely for the purpose of 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 on the weighted average exercise price.
(2) The registration fee of $430.02 is calculated by multiplying the
product of $8.4508, the weighted average exercise price per share, and
172,490, the number of shares subject to option, by .000295.
(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>
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.
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.
1
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Such right of indemnification shall not be exclusive of any other right which
such directors, officers or representatives may have or hereafter acquire and,
without limiting the generality of such statement, they shall be entitled to
their respective rights of indemnification under any bylaw, agreement, vote of
stockholders, provision of law or otherwise, as well as their rights under such
article.
Article IX, Section 2 of the Company's By-Laws provides that the Board
of Directors may cause the corporation to purchase and maintain insurance on
behalf of any person who is or was a director or officer of the corporation, or
is or was serving at the request of the corporation as a director or officer of
another corporation, or as its representative in a partnership, joint venture,
trust or other enterprise against any liability asserted against such person and
incurred in any such capacity or arising out of such status, whether or not the
corporation would have the power to indemnify such person.
With respect to indemnification of officers and directors, Section 145
of the Delaware General Corporation Law provides that a corporation shall have
the power to indemnify any person who was or is a party or is threatened to be
made a party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative, or investigative (other than an action
by or in the right of the corporation) by reason of the fact that he is or was a
director, officer, employee, or agent of the corporation, or is or was serving
at the request of the corporation as a director, officer, employee, or agent of
another corporation, partnership, joint venture, trust, or other enterprise,
against expenses (including attorneys' fees), judgments, fines, and amounts paid
in settlement actually and reasonably incurred by him in connection with such
action, suit or proceeding if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. Under this provision of
the Delaware General Corporation Law, the termination of any action, suit or
proceeding by judgment, order, settlement, conviction, or upon a plea of nolo
contendere or its equivalent, shall not, of itself, create a presumption that
the person did not act in good faith and in a manner which he reasonably
believed to be in or not opposed to the best interests of the corporation, and,
with respect to any criminal action or proceeding, had reasonable cause to
believe that his conduct was unlawful.
Furthermore, the Delaware General Corporation Law provides that a
corporation shall have power to indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending, or completed action or
suit by or in the right of the corporation to procure a judgment in its favor by
reason of the fact that he is or was a director, officer, employee, or agent of
the corporation, or is or was serving at the request of the corporation as a
director, officer, employee, or agent of another corporation, partnership, joint
venture, trust, or other enterprise, against expenses (including attorneys'
fees), actually and reasonably incurred by him in connection with the defense or
settlement of such action or suit if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
corporation except that no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been adjudged to be
liable to the corporation unless and only to the extent that the Court of
Chancery or the court in which such action or suit was brought shall determine
upon application that, despite the adjudication of liability, but in view of all
circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses which the Court of Chancery or such other court
shall deem proper.
In addition, the Delaware General Corporation Law was amended in 1986
to enable a Delaware corporation to include in its certificate of incorporation
a provision eliminating or limiting a director's liability to the corporation or
its stockholders for monetary damages for breaches of a director's fiduciary
duty of care. The statutory amendment provides, however, that (a) liability for
duty or loyalty, (b) acts or omissions not in good faith or involving
intentional misconduct or knowing violations of law, (c) the unlawful purchase
or redemption of stock or unlawful dividends or (d) the right of improper
personal benefits could not be eliminated or limited in this manner. The
Company's Certificate of Incorporation has been amended 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.
2
<PAGE>
<TABLE>
<CAPTION>
Exhibit
Number Description
- ------ -----------
<S> <C>
Included in Part II of the Registration Statement:
4.1 US Servis, Inc. (f/k/a Micro Healthsystems, Inc.) Amended 1993 Stock Option
Plan
5 Opinion of Counsel re: legality
15 Letter re: unaudited interim financial information
23(a) Consent of Counsel (contained 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:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration statement
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.
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, as amended (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.
(3) 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.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under 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.
(c) 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.
3
<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
2nd day of October, 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 Jay P. Gilbertson,
jointly and severally, each in his own capacity, his true and lawful
attorneys-in-fact and agents, each with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any and all amendments to this Registration Statement, and
to file the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, and each of them, full power and authority to do
and perform each and every act and thing requisite or necessary to be done in
and about the premises, as fully to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that each of said
attorneys-in-fact and agents, or his substitute or substitutes, may lawfully do
or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the date indicated:
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Charles W. McCall Chairman, President and Chief Executive October 2, 1998
- ----------------------------------- Officer (Principal Executive Officer)
Charles W. McCall
/s/ Jay P. Gilbertson President, Co-Chief Operating Officer, October 2, 1998
- ----------------------------------- Chief Financial Officer, Principal
Jay P. Gilbertson Accounting Officer, Treasurer and
Secretary (Principal Financial Officer
and Principal Accounting Officer)
/s/ Alfred C. Eckert III Director October 2, 1998
- -----------------------------------
Alfred C. Eckert III
/s/ Philip A. Incarnati Director October 2, 1998
- -----------------------------------
Philip A. Incarnati
</TABLE>
4
<PAGE>
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Alton F. Irby III Director October 2, 1998
- -----------------------------------
Alton F. Irby III
/s/ M. Christine Jacobs Director October 2, 1998
- -----------------------------------
M. Christine Jacobs
/s/ Gerald E. Mayo Director October 2, 1998
- -----------------------------------
Gerald E. Mayo
/s/ James V. Napier Director October 2, 1998
- -----------------------------------
James V. Napier
/s/ Donald C. Wegmiller Director October 2, 1998
- -----------------------------------
Donald C. Wegmiller
</TABLE>
5
<PAGE>
Exhibit 4.1
MICRO HEALTHSYSTEMS, INC.
AMENDED 1993 STOCK OPTION PLAN
<PAGE>
TABLE OF CONTENTS
-----------------
<TABLE>
<CAPTION>
Page
----
<S> <C> <C> <C>
ARTICLE I
GENERAL..................................................................................................1
1.1 Purpose.........................................................................................1
1.2 Administration..................................................................................1
1.3 Persons Eligible for Awards.....................................................................2
1.4 Types of Awards Under Plan......................................................................2
1.5 Shares Available for Awards.....................................................................2
1.6 Definitions of Certain Terms....................................................................3
ARTICLE II
AWARDS UNDER THE PLAN....................................................................................4
2.1 Agreements Evidencing Awards....................................................................4
2.2 Grant of Stock Options..........................................................................4
2.3 Exercise of Options.............................................................................5
2.4 Termination of Employment; Death................................................................7
ARTICLE III
MISCELLANEOUS............................................................................................7
3.1 Amendment of the Plan; Modification of Awards...................................................7
3.2 Restrictions....................................................................................8
3.3 Non-assignability...............................................................................9
3.4 Requirement of Notification of Election Under Section 83(b) of the Code.........................9
3.5 Requirement of Notification Upon Disqualifying Disposition Under
Section 421(b) of the Code......................................................................9
3.6 Withholding Taxes...............................................................................9
3.7 Change in Control..............................................................................10
3.8 Right of Discharge Reserved....................................................................11
3.9 Nature of Payments.............................................................................12
3.10 Non-Uniform Determinations.....................................................................12
3.11 Other Payments or Awards.......................................................................12
3.12 Section Headings...............................................................................12
3.13 Effective Date and Term of Plan................................................................12
3.14 Governing Law..................................................................................13
</TABLE>
i
<PAGE>
ARTICLE I
GENERAL
1.1 Purpose.
The purpose of the Micro Healthsystems, Inc. 1993 Stock Option Plan
(the "Plan") is to provide for officers and other employees (including directors
who are employees) of, and consultants to, Micro Healthsystems, Inc. (the
"Company") an incentive (a) to enter into and remain in the service of the
Company, (b) to enhance the long-term performance of the Company, and (c) to
acquire a proprietary interest in the success of the Company.
1.2 Administration
1.2.1 Subject to Section 1.2.6, the Plan shall be administered by the
Stock Option Committee (the "Committee") of the board of directors of the
Company (the "Board"), which shall consist of not less than two directors and to
which the Board shall grant power to authorize the issuance of the Company's
capital stock pursuant to awards granted under the Plan. The members of the
Committee shall be appointed by, and serve at the pleasure of, the Board. To the
extent required for transactions under the Plan to qualify for the exemptions
available under Rule 16b-3 ("Rule 16b-3") promulgated under the Securities
Exchange Act of 1934 (the "1934 Act"), no person may serve on the Committee if,
during the year preceding such service, he was granted or awarded equity
securities of the Company (including options on such securities) under the Plan
or any other plan of the Company or any affiliate thereof.
1.2.2 The Committee shall have the authority (a) to exercise all of the
powers granted to it under the Plan, (b) to construe, interpret and implement
the Plan and any Plan Agreements executed pursuant to Section 2.1, (c) to
prescribe, amend and rescind rules and regulations relating to the Plan,
including rules governing its own operations, (d) to make all determinations
necessary or advisable in administering the Plan, (e) to correct any defect,
supply any omission and reconcile any inconsistency in the Plan, and (f) to
amend the Plan to reflect changes in applicable law.
1.2.3 Actions of the Committee shall be taken by the vote of a majority
of its members. Any action may be taken by a written instrument signed by a
majority of the Committee members, and action so taken shall be fully as
effective as if it had been taken by a vote at a meeting.
1.2.4 The determination of the Committee on all matters relating to the
Plan or any Plan Agreement shall be final, binding and conclusive.
1.2.5 No member of the Committee shall be liable for any action or
determination made in good faith with respect to the Plan or any award
thereunder.
1
<PAGE>
1.2.6 Notwithstanding anything to the contrary contained herein: (a)
until the Board shall appoint the members of the Committee, the Plan shall be
administered by the Board; and (b) the Board may, in its sole discretion, at any
time and from time to time, resolve to administer the Plan. In either of the
foregoing events, the term "Committee" as used herein shall be deemed to mean
the Board.
1.3 Persons Eligible for Awards
Awards under the Plan may be made to such officers, directors, and
executive, administrative, technical or professional employees of the Company,
and to such consultants to the Company (collectively, "key persons") as the
Committee shall in its sole discretion select.
1.4 Types of Awards Under Plan
Awards may be made under the Plan in the form of (a) incentive stock
options and (b) non-qualified stock options. The term "award" means either of
the foregoing. No incentive stock option may be granted to a person who is not
an employee of the Company on the date of grant.
1.5 Shares Available for Awards
1.5.1 The total number of shares of common stock of the Company, par
value $.01 per share ("Common Stock"), with respect to which awards may be
granted pursuant to the Plan shall not exceed 500,000 shares. Such shares may be
authorized but unissued Common Stock or authorized and issued Common Stock held
in the Company's treasury or acquired by the Company for the purposes of the
Plan. The Committee may direct that any stock certificate evidencing shares
issued pursuant to the Plan shall bear a legend setting forth such restrictions
on transferability as may apply to such shares pursuant to the Plan.
1.5.2 If there is any change in the outstanding shares of Common Stock
by reason of a stock dividend or distribution, stock split-up, recapitalization,
combination or exchange of shares, or by reason of any merger, consolidation,
spinoff or other corporate reorganization in which the Company is the surviving
corporation, the number of shares available for issuance both in the aggregate
and with respect to each outstanding award, and the purchase price per share
under outstanding awards, shall be equitably adjusted by the Committee, whose
determination shall be final, binding and conclusive. After any adjustment made
pursuant to this Section 1.5.2, the number of shares subject to each outstanding
award shall be rounded to the nearest whole number.
1.5.3 The following shares of Common Stock shall again become available
for awards under the Plan: any shares subject to an award under the Plan that
remain unissued upon the cancellation or termination of such award for any
2
<PAGE>
reason whatsoever. Except as provided in this Section 1.5 and in Section 2.2.5,
there shall be no limit on the number or the value of the shares of Common Stock
issuable to any individual under the Plan.
1.6 Definitions of Certain Terms
1.6.1 The "Fair Market Value" of a share of Common Stock on any day
shall be determined as follows.
(a) If the principal market for the Common Stock (the
"Market") is a national securities exchange or the National Association of
Securities Dealers Automated Quotation System ("NASDAQ") National Market, the
last sale price or, if no reported sales take place on the applicable date, the
average of the high bid and low asked price of Common Stock as reported for such
Market on such date or, if no such quotation is made on such date, on the next
preceding day on which there were quotations, provided that such quotations
shall have been made within the ten (10) business days preceding the applicable
date;
(b) If the Market is the NASDAQ National List, the NASDAQ
Supplemental List or another market, the average of the high bid and low asked
price for Common Stock on the applicable date, or, if no such quotations shall
have been made on such date, on the next preceding day on which there were
quotations, provided that such quotations shall have been made within the ten
(10) business days preceding the applicable date; or,
(c) In the event that neither paragraph (a) nor (b) shall
apply, the Fair Market Value of a share of Common Stock on any day shall be
determined by the Committee.
1.6.2 The term "incentive stock option" means an option that is
intended to qualify for special federal income tax treatment pursuant to
sections 421 and 422 of the Internal Revenue Code of 1986 (the "Code"), as now
constituted or subsequently amended, or pursuant to a successor provision of the
Code, and which is so designated in the applicable Plan Agreement. Any option
that is not specifically designated as an incentive stock option shall under no
circumstances be considered an incentive stock option. Any option that is not an
incentive stock option is referred to herein as a "non qualified stock option."
1.6.3 The term "employment" means, in the case of a grantee of an award
under the Plan who is not an employee of the Company, the grantee's association
with the Company as a consultant or otherwise.
1.6.4 A grantee shall be deemed to have a "termination of employment"
upon ceasing to be employed by the Company and all of its subsidiaries or by a
corporation assuming awards in a transaction to which section 425(a) of the Code
applies. The Committee may in its discretion determine (a) whether any leave of
absence constitutes a termination of employment for purposes of the Plan, (b)
the impact, if any, of any such leave of absence on awards theretofore made
under
3
<PAGE>
the Plan, and (c) when a change in a non-employee's association with the Company
constitutes a termination of employment for purposes of the Plan. The Committee
shall have the right to determine whether the termination of a grantee's
employment is a dismissal for cause and the date of termination in such case,
which date the Committee may retroactively deem to be the date of the action
that is cause for dismissal. Such determinations of the Committee shall be
final, binding and conclusive.
1.6.5 The terms "parent corporation" and "subsidiary corporation" have
the meanings given them in section 425(e) and (f) of the Code, respectively.
ARTICLE II
AWARDS UNDER THE PLAN
2.1 Agreements Evidencing Awards
Each award granted under the Plan shall be evidenced by a written
agreement ("Plan Agreement") which shall contain such provisions as the
Committee may in its sole discretion deem necessary or desirable. By accepting
an award pursuant to the Plan, a grantee thereby agrees that the award shall be
subject to all of the terms and provisions of the Plan and the applicable Plan
Agreement.
2.2 Grant of Stock Options
2.2.1 The Committee may grant incentive stock options and non qualified
stock options (collectively, "options") to purchase shares of Common Stock from
the Company, to such key persons, and in such amounts and subject to such terms
and conditions, as the Committee shall determine in its sole discretion, subject
to the provisions of the Plan.
2.2.2 Each Plan Agreement with respect to an option shall set forth the
amount (the "option exercise price") payable by the grantee to the Company upon
exercise of the option evidenced thereby. The option exercise price per share
shall be determined by the Committee in its sole discretion; provided, however,
that the option exercise price of an incentive stock option shall be at least
100% of the Fair Market Value of a share of Common Stock on the date the option
is granted, and provided further than in no event shall the option exercise
price be less than the par value of a share of Common Stock.
2.2.3 Each Plan Agreement with respect to an option right shall set
forth the periods during which the award evidenced thereby shall be exercisable,
whether in whole or in part. such periods shall be determined by the Committee
in its sole discretion; provided, however, that no incentive stock option shall
be exercisable more than 10 years after the date of grant, and provided further
that except as and to the extent that the Committee may otherwise provide
pursuant to Section 3.1.3 or 3.7, no option shall be exercisable prior to the
first anniversary of the date of grant.
4
<PAGE>
2.2.4 The Committee may in its sole discretion include in any Plan
Agreement with respect to an option (the "original option") a provision that an
additional option (the "additional option") shall be granted to any grantee who,
pursuant to Section 2.3.5(b), delivers shares of Common Stock in partial or full
payment of the exercise price of the original option. The additional option
shall be for a number of shares of Common Stock equal to the number thus
delivered, shall have an exercise price equal to the Fair Market Value of a
share of Common Stock on the date of exercise of the original option, and shall
have an expiration date no later than the expiration of the original option. In
the event that a Plan Agreement provides for the grant of an additional option,
such Agreement shall also provide that the exercise price of the original option
be no less than the Fair Market Value of a share of Common Stock on its date of
grant, and that any shares that are delivered pursuant to Section 2.3.5(b) in
payment of such exercise price shall have been held for at least six months.
2.2.5 To the extent that the aggregate Fair Market Value (determined as
of the time the option is granted) of the stock with respect to which incentive
stock options are first exercisable by an employee during any calendar year
shall exceed $100,000, or such higher amount as may be permitted from time to
time under section 422 of the Code, such option shall be treated as non
qualified stock options. In applying this provision, there shall be taken into
account solely incentive stock options granted after December 31, 1986 to the
employee under this Plan and under all other plans of the Company and any
subsidiary thereof.
2.2.6 Notwithstanding the provisions of Sections 2.2.2 and 2.2.3, an
incentive stock option may not be granted under the Plan to an individual who,
at the time the option is granted, owns stock possessing more than 10% of the
total combined voting power of all classes of stock of his employer corporation
or of its parent or subsidiary corporations (as such ownership may be determined
for purposes of section 422(b)(6) of the code) unless (a) at the time such
incentive stock option is granted the option exercise price is at least 110% of
the Fair Market Value of the shares subject thereto and (b) the incentive stock
option by its terms is not exercisable after the expiration of 5 years from the
date it is granted.
2.3 Exercise of Options
Subject to the provisions of this Article II, each option granted under
the Plan shall be exercisable as follows:
2.3.1 Unless the applicable Plan Agreement otherwise provides, an
option shall become exercisable in four substantially equal installments, the
first of which shall become exercisable on the first anniversary of the date of
grant and the remaining three of which shall become exercisable, respectively,
on the second, third and fourth anniversaries of the date of grant.
5
<PAGE>
2.3.2 Unless the applicable Plan Agreement otherwise provides, once an
installment becomes exercisable, it shall remain exercisable until expiration,
cancellation or termination of the award.
2.3.3 Unless the applicable Plan Agreement otherwise provides, an
option right may be exercised from time to time as to all or part of the shares
as to which such award is then exercisable.
2.3.4 An option shall be exercised by the filing of a written notice
with the Company, on such form and in such manner as the Committee shall in its
sole discretion prescribe.
2.3.5 Any written notice of exercise of an option shall be accompanied
by payment for the shares being purchased. Such payment shall be made: (a) by
certified or official bank check (or the equivalent thereof acceptable to the
Company) for the full option exercise price; or (b) with the consent of the
Committee, by delivery of shares of Common Stock acquired at least six months
prior to the option exercise date and having a Fair Market Value (determined as
of the exercise date) equal to all or part of the option exercise price and a
certified or official bank check (or the equivalent thereof acceptable to the
Company) for any remaining portion of the full option exercise price; or (c) at
the discretion of the Committee and to the extent permitted by law, by such
other provision, consistent with the terms of the Plan, as the Committee may
from time to time prescribe.
2.3.6 Promptly after receiving payment of the full option exercise
price, the Company shall, subject to the provisions of Section 3.2, deliver to
the grantee or to such other person as may then have the right to exercise the
award, a certificate or certificates for the shares of Common Stock for which
the award has been exercised. If the method of payment employed upon option
exercise so requires, and if applicable law permits, an Optionee may direct the
Company to deliver the certificate(s) to the optionees stockbroker.
2.3.7 No grantee of an option right (or other person having the right
to exercise such award) shall have any of the rights of a stock holder of the
Company with respect to shares subject to such award until the issuance of a
stock certificate to such person for such shares. Except as otherwise provided
in Section 1.5.2, no adjustment shall be made for dividends, distributions or
other rights (whether ordinary or extraordinary, and whether in cash, securities
or other property) for which the record date is prior to that date such stock
certificate is issued.
2.4 Termination of Employment; Death
2.4.1 Except to the extent otherwise provided in Section 2.4.2 or 2.4.3
or in the applicable Plan Agreement, all options not theretofore exercised shall
terminate upon termination of the grantee's employment for any reason (including
death).
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2.4.2 If a grantee's employment terminates for any reason other than
death or dismissal for cause, the grantee may exercise any outstanding option or
stock appreciation right on the following terms and conditions: (a) exercise may
be made only to the extent that the grantee was entitled to exercise the award
on the date of employment termination; and (b) exercise must occur within three
months after employment terminates, except that the three-month period shall be
increased to one year if the termination is by reason of disability, but in no
event after the expiration date of the award as set forth in the Plan Agreement.
In the case of an incentive stock option, the term "disability" for purposes of
the preceding sentence shall have the meaning given to it by section 422(c)(7)
of the Code.
2.4.3 If a grantee dies while employed by the Company or any
subsidiary, or after employment termination but during the period in which the
grantee's awards are exercisable pursuant to Section 2.4.2, any outstanding
option shall be exercisable on the following terms and conditions: (a) exercise
may be made only to the extent that the grantee was entitled to exercise the
award on the date of death; and (b) exercise must occur by the earlier of the
first anniversary of the grantee's death or the expiration date of the award.
Any such exercise of an award following a grantee's death shall be made only by
the grantee's executor or administrator, unless the grantee's will specifically
disposes of such award, in which case such exercise shall be made only by the
recipient of such specific disposition. If a grantee's personal representative
or the recipient of a specific disposition under the grantee's will shall be
entitled to exercise any award pursuant to the preceding sentence, such
representative or recipient shall be bound by all the terms and conditions of
the Plan and the applicable Plan Agreement which would have applied to the
grantee including, without limitation, the provisions of Sections 3.2 and 3.7
hereof.
ARTICLE III
MISCELLANEOUS
3.1 Amendment of the Plan; Modification of Awards
3.1.1 The Board may from time to time suspend, discontinue, revise or
amend the Plan in any respect whatsoever, except that no such amendment shall
materially impair any rights or materially increase any obligations under any
award theretofore made under the Plan without the consent of the grantee (or,
upon the grantee's death, the person having the right to exercise the award).
For purposes of this Section 3.1, any action of the Board or the Committee that
alters or affects the tax treatment of any award shall not be considered to
materially impair any rights of any grantee.
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3.1.2 Shareholder approval shall be required with respect to any
amendment which: (a) increases the aggregate number of shares which may be
issued pursuant to incentive stock options or changes the class of employees
eligible to receive such options; or (b) materially increases the benefits under
the Plan to persons whose transactions in Common Stock are subject to Section
16(b) of the 1934 Act, materially increases the number of shares which may be
issues to such persons, or materially modifies the eligibility requirements
affecting such persons.
3.1.3 The Committee may amend any outstanding Plan Agreement,
including, without limitation, by amendment which would (a) accelerate the times
or time at which the award becomes unrestricted or may be exercised, or (b)
waive or amend any goals, restrictions or conditions set forth in the Agreement,
or (c) extend the scheduled expiration date of the award. However, any such
cancellation or amendment that materially impairs the rights or materially
increases the obligations of a grantee under an outstanding award shall be made
only with the consent of the grantee (or, upon the grantee's death, the person
having the right to exercise the award).
3.2 Restrictions
3.2.1 If the Committee shall at any time determine that any Consent (as
hereinafter defined) is necessary or desirable as a condition of, or in
connection with, the granting of any award under the Plan, the issuance or
purchase of shares, or the taking of any other action thereunder (each such
action being hereinafter referred to as a "Plan Action"), then such Plan Action
shall not be taken, in whole or in part, unless and until such Consent shall
have been effected or obtained to the full satisfaction of the Committee.
3.2.2 The term "Consent" as used herein with respect to any Plan Action
means (a) any and all listings, registrations or qualifications in respect
thereof upon any securities exchange or under any federal, state or local law,
rule or regulation, (b) any and all written agreements and representations by
the grantee with respect to the disposition of shares, or with respect to any
other matter, which the Committee shall deem necessary or desirable to comply
with the terms of any such listing, registration or qualification or to obtain
an exemption from the requirement that any such listing, qualification or
registration be made and (c) any and all consents, clearances and approvals in
respect of a Plan Action by any governmental or other regulatory bodies.
3.3 Non-assignability
No award or right granted to any person under the Plan or under any
Plan Agreement shall be assignable or transferable other than by will or by the
laws of descent and distribution. All rights granted under the Plan or any Plan
Agreement shall be exercisable during the life of the grantee only by the
grantee or the grantee's legal representative.
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3.4 Requirement of Notification of
Election Under Section 83(b) of the Code
If any grantee shall, in connection with the acquisition of shares of
Common Stock under the Plan, make the election permitted under section 83(b) of
the Code (i.e., an election to include in gross income in the year of transfer
the amounts specified in section 83(b)), such grantee shall notify the Company
of such election within 10 days of filing notice of the election with the
Internal Revenue Service, in addition to any filing and notification required
pursuant to regulations issued under the authority of Code Section 83(b).
3.5 Requirement of Notification Upon Disqualifying
Disposition Under Section 421(b) of the Code
Each Plan Agreement with respect to an incentive stock option shall
require the grantee to notify the Company of any disposition of shares of Common
Stock issued pursuant to the exercise of such option under the circumstances
described in section 421(b) of the Code (relating to certain disqualifying
dispositions), within 10 days of such disposition.
3.6 Withholding Taxes
Whenever shares of Common Stock are to be delivered pursuant to an
award under the Plan, the Company shall be entitled to require as a condition of
delivery that the grantee remit to the Company an amount sufficient in the
opinion of the Company to satisfy all federal, state and other governmental tax
withholding requirements related thereto. With the approval of the Committee,
which it shall have sole discretion to grant, the grantee may satisfy the
foregoing condition by electing to have the Company withhold from delivery
shares having a value equal to the amount of tax to be withheld. Such shares
shall be valued at the Fair Market Value on the date as of which the amount of
tax to be withheld is determined (the "Tax Date"). Fractional share amounts
shall be settled in cash. Such a withholding election may be made with respect
to all or any portion of the shares to be delivered pursuant to an award. To the
extent required for such a withholding of stock to qualify for the exemption
available under Rule 16b-3, such an election by a grantee whose transactions in
Common Stock are subject to Section 16(b) of the 1934 Act shall be: (a) subject
to the approval of the Committee in its sole discretion; (b) irrevocable; (c)
made no sooner than six months after the grant of the award with respect to
which the election is made; and (d) made at least six months prior to the Tax
Date unless such withholding election is in connection with exercise of an
option and both the election and the exercise occur prior to the Tax Date in a
"window period" of 10 business days beginning on the third day following release
of the Company's quarterly or annual summary statement of sales and earnings.
3.7 Change in Control
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3.7.1 For purposes of this Section 3.7, a "Change in Control" shall be
deemed to have occurred upon the happening of any of the following events:
(a) any "person," including a "group," as such terms are
defined in Sections 13(d) and 14(d) of the 1934 Act and the rules promulgated
thereunder, becomes the beneficial owner, directly or indirectly, whether by
purchase or acquisition or agreement to act in concert or otherwise, of 15% or
more of the outstanding shares of Common Stock of the Company;
(b) a cash tender or exchange offer for 50% or more of the
outstanding shares of Common Stock of the Company is commenced;
(c) the shareholders of the Company approve an agreement to
merge, consolidate, liquidate, or sell all or substantially all of the assets of
the Company; or
(d) two or more directors are elected to the Board without
having previously been nominated and approved by the members of the board
incumbent on the day immediately preceding such election.
3.7.2 Upon the happening of a Change in Control:
(a) unless the applicable Plan Agreement otherwise provides
with regard to a Change in Control, notwithstanding any other provision of this
Plan, any option then outstanding whose date of grant was at least one (1) year
prior to the date of the Change in Control shall become fully vested and
immediately exercisable; and
(b) to the extent permitted by law and not inconsistent with
paragraph (a) of this section 3.7.2 or the other sections of Section 3.7, the
Committee may, in its sole discretion, amend any Plan Agreement in such manner
as it deems appropriate.
3.7.3 Unless the applicable Plan Agreement otherwise provides, in
connection with a Fundamental Change, the Committee may, in its sole discretion,
amend any Plan Agreement in any of the following respects or a combination
thereof:
(i) To provide that all or any outstanding options shall be
assumed, or equivalent options shall be substituted, by the acquiring
or succeeding corporation (or an affiliate thereof);
(ii) to provide that all or any options that remain unvested
after taking into account Section 3.7.2(a) and the terms of the
applicable Plan Agreement shall be terminated and be of no further
force or effect upon the consummation of such Fundamental Change;
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(iii) to provide that all or any outstanding, vested options
shall be terminated and of no force and effect if not exercised prior
to the consummation of such Fundamental Change;
(iv) to provide that all or any options that remain unvested
after taking into account Section 3.7.2(a) and the terms of the
applicable Plan Agreement shall become exercisable in full immediately
prior to the consummation of such Fundamental Change and shall be
terminated and of no force and effect if not exercised prior to the
consummation of such Fundamental Change; or
(v) to provide, upon consummation of a Fundamental Change, all
or any of the holders of outstanding options shall receive a cash
payment equal to the excess of (A) the value of the consideration to be
received with respect to any share of Common Stock times the number of
shares of Common Stock subject to such holder's options over (B) the
aggregate exercise price of all such holder's outstanding options, in
lieu of such holder's rights with respect to such options.
For purposes hereof, "Fundamental Change" means (A) a sale of all or
substantially all of the assets of the Company, (B) the liquidation of the
Company or (C) a merger or consolidation of the Company with or into another
entity, except for a merger in which the Company is the surviving corporation
and, after giving effect to such merger, the holder(s) of the outstanding
capital stock of the Company possessing the voting power (under ordinary
circumstances) to elect a majority of the Board immediately prior to such merger
shall own capital stock of the Company possessing the voting power (under
ordinary circumstances) to elect a majority of the Board.
3.7.4 Whenever deemed appropriate by the Committee, the effectiveness
of any action referred to in Section 3.7.2(b) may be made conditional upon the
consummation of the applicable Change in Control transaction.
3.8 Right of Discharge Reserved
Nothing in the Plan or in any Plan Agreement shall confer upon any
grantee the right to continue in the employ of the Company or affect any right
which the Company may have to terminate such employment.
3.9 Nature of Payments
3.9.1 Any and all grants of awards and issuances of shares of Common
Stock under the Plan shall be in consideration of services performed for the
Company by the grantee.
3.9.2 All such grants and issuances shall constitute a special
incentive payment to the grantee and shall not be taken into account in
computing the amount of salary or compensation of the grantee for the purpose of
determining any
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benefits under any pension, retirement, profit-sharing, bonus, life insurance or
other benefit plan of the Company or under any agreement between the Company and
the grantee, unless such plan or agreement specifically provides otherwise.
3.10 Non-Uniform Determinations
The Committee's determinations under the Plan need not be uniform and
may be made by it selectively among persons who receive, or are eligible to
receive, awards under the Plan (whether or not such persons are similarly
situated). Without limiting the generality of the foregoing, the Committee shall
be entitled, among other things, to make non-uniform and selective
determinations, and to enter into non-uniform and selective Plan agreements, as
to (a) the persons to receive awards under the Plan, (b) the terms and
provisions of awards under the Plan, and (c) the treatment of leaves of absence
pursuant to Section 1.6.4.
3.11 Other Payments or Awards
Nothing contained in the Plan shall be deemed in any way to limit or
restrict the Company from making any award or payment to any person under any
other plan, arrangement or understanding, whether now existing or hereafter in
effect.
3.12 Section Headings
The section headings contained herein are for the purpose of
convenience only and are not intended to define or limit the contents of said
sections.
3.13 Effective Date and Term of Plan
3.13.1 The Plan was adopted by the Board on August 18, 1993, subject to
approval by the Company's shareholders. All awards under the Plan prior to such
shareholder approval are subject in their entirety to such approval. If such
approval is not obtained prior to the first anniversary of the date of adoption
of the Plan, the Plan and all awards thereunder shall terminate on that date.
3.13.2 Unless sooner terminated by the Board, the provisions of the
Plan respecting the grant of incentive stock options shall terminate on the
tenth anniversary of the adoption of the Plan by the Board, and no incentive
stock option awards shall thereafter be made under the Plan. All such awards
made under the Plan prior to its termination shall remain in effect until such
awards have been satisfied or terminated in accordance with the terms and
provisions of the Plan and the applicable Plan Agreements.
3.14 Governing Law
All rights and obligations under the Plan shall be construed and
interpreted in accordance with the laws of the State of New Jersey, without
giving effect to principles of conflict of laws.
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Exhibit 5
JONES, DAY, REAVIS & POGUE
3500 SunTrust Plaza
303 Peachtree Street
Atlanta, Georgia 30308
(404) 521-3939
October 2, 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 172,490
shares of Common Stock, $.05 par value per share, of the Company (the "Shares"),
to be issued by the Company in accordance with the US Servis, Inc. (f/k/a Micro
Healthsystems, Inc.) Amended 1993 Stock Option 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>
[ARTHUR ANDERSEN LOGO]
Exhibit 15
LETTER REGARDING UNAUDITED
INTERIM FINANCIAL INFORMATION
We are aware that HBO & Company has incorporated by reference in this
Form S-8 Registration Statement, its Form 10-Q for the quarters ended March
31, 1998 and June 30,1998, which includes our reports dated May 6, 1998 and
July 20, 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
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Atlanta, Georgia
October 1, 1998
<PAGE>
[ARTHUR ANDERSEN LOGO]
Exhibit 23(b)
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation by reference in this Registration Statement on Form S-8 of our
reports dated February 6, 1998 included or incorporated by reference in HBO &
Company's Form 10-K for the year ended December 31, 1997.
/s/ Arthur Andersen LLP
- -----------------------------------
Atlanta, Georgia
October 1, 1998
