<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)
--------------------
1995 Access Health, Inc.
Director Option 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>
Calculation of Registration Fee
<TABLE>
<CAPTION>
Proposed maxi- Proposed maxi-
Title of securities to Amount to be mum offering price mum aggregate Amount of
be registered registered per share offering price registration fee
- ----------------------- ----------------------- ----------------------- ----------------------- ----------------------
<S> <C> <C> <C> <C>
Common Stock,
$.05 par value, and 52,562 shares $21.7011(1) $1,140,653.22(1) $317.10(2)
Preferred Share
Purchase Rights(3)
- ----------------------- ----------------------- ----------------------- ----------------------- ----------------------
- ----------------------- ----------------------- ----------------------- ----------------------- ----------------------
</TABLE>
(1) Estimated solely for calculating the amount of the registration fee,
pursuant to Rule 457(h) under the Securities Act of 1933, as amended. Because
all shares are presently subject to options, the offering price is based upon
the actual weighted average exercise price.
(2) The registration fee of $317.10 is calculated by multiplying the product
of $21.7011, the weighted average exercise price per share, and 52,562, 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.
Item 8. Exhibits.
Page 5 of 19 Pages
<PAGE>
<TABLE>
<CAPTION>
Exhibit
Number Description
- ------- -----------
<S> <C>
Included in Part II of the Registration Statement:
4 Access Health, Inc. 1995 Director Option 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. 1995 Director Option 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.
1995 DIRECTOR OPTION PLAN
1. Purposes of the Plan. The purposes of this 1995 Director Option Plan
are to attract and retain the best available personnel for service as Outside
Directors (as defined herein) of the Company, to provide additional incentive to
the Outside Directors of the Company to serve as Directors, and to encourage
their continued service on the Board.
All options granted hereunder shall be nonstatutory stock
options.
2. Definitions. As used herein, the following definitions shall apply:
(a) "Board" means the Board of Directors of the Company.
(b) "Code" means the Internal Revenue Code of 1986, as
amended.
(c) "Common Stock" means the Common Stock of the Company.
(d) "Company" means Access Health, Inc., a Delaware
corporation.
(e) "Continuous Status as a Director" means the absence
of any interruption or termination of service as a Director.
(f) "Director" means a member of the Board.
(g) "Employee" means any person, including officers and
Directors, employed by the Company or any Parent or Subsidiary of the Company.
The payment of a Director's fee by the Company shall not be sufficient in and of
itself to constitute "employment" by the Company.
(h) "Exchange Act" means the Securities Exchange Act of
1934, as amended.
(i) "Fair Market Value" means, as of any date, the value
of Common Stock determined as follows:
(i) If the Common Stock is listed on any established
stock exchange or a national market system, including
without limitation the Nasdaq National Market of the
National Association of Securities Dealers, Inc.
Automated Quotation ("NASDAQ") System, the Fair
Market Value of a Share of Common Stock shall be the
closing sales price for such stock (or the closing
bid, if no sales were reported) as quoted on such
system or exchange (or the exchange with the greatest
volume of trading in Common Stock) on the date of
grant, as reported in The Wall Street Journal or such
other source as the Board deems reliable;
(ii) If the Common Stock is quoted on the NASDAQ System
(but not on the National Market thereof) or regularly
quoted by a recognized securities dealer but selling
prices are not reported, the Fair Market Value of a
Share of Common Stock shall be the mean between the
high bid and low asked prices for the Common Stock on
the day of determination, as reported in The Wall
Street Journal or such other source as the Board
deems reliable, or;
(iii) In the absence of an established market for the
Common Stock, the Fair Market Value thereof shall be
determined in good faith by the Board.
Page 10 of 19 Pages
<PAGE>
(j) "Option" means a stock option granted pursuant to the
Plan.
(k) "Optioned Stock" means the Common Stock subject to an
Option.
(l) "Optionee" means an Outside Director who receives an
Option.
(m) "Outside Director" means a Director who is not an
Employee.
(n) "Parent" means a "parent corporation," whether now or
hereafter existing, as defined in Section 424(e) of the Code.
(o) "Plan" means this 1995 Director Option Plan.
(p) "Share" means a share of the Common Stock, as
adjusted in accordance with Section 10 ----- of the Plan.
(q) "Subsidiary" means a "subsidiary corporation,"
whether now or hereafter existing, as defined in Section 424(f) of the Code.
3. Stock Subject to the Plan. Subject to the provisions of Section 10 of
the Plan, the maximum aggregate number of Shares which may be optioned and sold
under the Plan is 100,000 Shares of Common Stock (the "Pool"). 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); provided, however, that Shares that have actually been issued under
the Plan shall not be returned to the Plan and shall not become available for
future distribution under the Plan.
4. Administration and Grants of Options Under the Plan.
(a) Procedure for Grants. The provisions set forth in this
Section 4(a) shall not be amended more than once every six months, other than to
comport with changes in the Code, the Employee Retirement Income Security Act of
1974, as amended, or the rules thereunder. All grants of Options to Outside
Directors under this Plan shall be automatic and nondiscretionary and shall be
made strictly in accordance with the following provisions:
(i) No person shall have any discretion to select which
Outside Directors shall be granted Options or to
determine the number of Shares to be covered by
Options granted to Outside Directors.
(ii) Each Outside Director shall be automatically granted
an Option to purchase 7,500 Shares (the "First
Option") on the date on which the later of the
following events occurs: (A) the effective date of
this Plan, as determined in accordance with Section 6
hereof, or (B) the date on which such person first
becomes an Outside Director, whether through election
by the stockholders of the Company, or appointment by
the Board to fill a vacancy; provided, however, that
in lieu of being granted a First Option, an Outside
Director who, immediately prior to the effective date
of this Plan, was a Director, shall be granted an
Option to purchase 2,500 Shares (the "Initial
Option").
(iii) After the First Option (or, alternatively, the
Initial Option) has been granted to an Outside
Director, such Outside Director shall thereafter be
automatically granted an Option to purchase 2,500
Shares (a "Subsequent Option") on the first day of
each fiscal year, if on such date, he or she shall
have served on the Board for at least six (6) months.
Page 11 of 19 Pages
<PAGE>
(iv) Notwithstanding the provisions of subsections (ii)
and (iii) hereof, any exercise of an Option made
before the Company has obtained stockholder approval
of the Plan in accordance with Section 16 hereof
shall be conditioned upon obtaining such stockholder
approval of the Plan in accordance with Section 16
hereof.
(v) The terms of the First Option (or, alternatively, the
Initial Option) granted hereunder shall be as
follows:
(A) the term of the First Option (or,
alternatively, the Initial Option) shall be
ten (10) years.
(B) the First Option (or, alternatively, the
Initial Option) shall be exercisable only
while the Outside Director remains a
Director of the Company, except as set forth
in Section 8 hereof.
(C) the exercise price per Share shall be 100%
of the fair market value per Share on the
date of grant of the First Option (or,
alternatively, the Initial Option).
(D) the First Option (or, alternatively, the
Initial Option) shall become exercisable in
installments cumulatively with respect to
one-twelfth (1/12th) of the Optioned Stock
every three months after the date of grant,
so that one hundred percent (100%) of the
Optioned Stock shall be exercisable three
years after the date of grant, provided that
the Optionee continues to serve as a
Director on such dates.
(vi) The terms of a Subsequent Option granted hereunder shall
be as follows:
(A) the term of the Subsequent Option shall be
ten (10) years.
(B) the Subsequent Option shall be exercisable
only while the Outside Director remains a
Director of the Company, except as set forth
in Section 8 hereof.
(C) the exercise price per Share shall be 100%
of the fair market value per Share on the
date of grant of the Subsequent Option.
(D) the Subsequent Option shall become
exercisable in installments cumulatively
with respect to one-fourth (1/4th) of the
Optioned Stock every three months after the
date of grant, so that one hundred percent
(100%) of the Optioned Stock shall be
exercisable one year after the date of grant
provided that the Optionee continues to
serve as a Director on such dates.
(vii) In the event that any Option granted under the Plan
would cause the number of Shares subject to
outstanding Options plus the number of Shares
previously purchased under Options to exceed the
Pool, then the remaining Shares available for Option
grant shall be granted under Options to the Outside
Directors on a pro rata basis. No further grants
shall be made until such time, if any, as additional
Shares become available for grant under the Plan
through action of the Board or the stockholders to
increase the number of Shares which may be issued
under the Plan or through cancellation or expiration
of Options previously granted hereunder.
5. Eligibility. Options may be granted only to Outside Directors. All
Options shall be automatically granted in accordance with the terms set forth in
Section 4 hereof. An Outside Director who has been granted an Option may, if he
or she is otherwise eligible, be granted an additional Option or Options in
accordance with such provisions.
Page 12 of 19 Pages
<PAGE>
The Plan shall not confer upon any Optionee any right with
respect to continuation of service as a Director or nomination to serve as a
Director, nor shall it interfere in any way with any rights which the Director
or the Company may have to terminate his or her directorship at any time.
6. Term of Plan. The Plan shall become effective upon the earlier to occur of
its adoption by the Board or its approval by the stockholders of the Company as
described in Section 16 of the Plan. It shall continue in effect for a term of
ten (10) years unless sooner terminated under Section 11 of the Plan.
7. Form of Consideration. The consideration to be paid for the Shares to be
issued upon exercise of an Option, including the method of payment, shall
consist of (i) cash, (ii) check, (iii) other shares which (x) in the case of
Shares acquired upon exercise of an Option, have been owned by the Optionee for
more than six (6) months on the date of surrender, and (y) 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, (iv) delivery of a properly
executed exercise notice together with such other documentation as the Company
and the broker, if applicable, shall require to effect an exercise of the Option
and delivery to the Company of the sale or loan proceeds required to pay the
exercise price, or (v) any combination of the foregoing methods of payment.
8. Exercise of Option.
(a) Procedure for Exercise: Rights as a Stockholder. Any
Option granted hereunder shall be exercisable at such times as are set forth in
Section 4 hereof, provided, however, that no Options shall be exercisable until
stockholder approval of the Plan in accordance with Section 16 hereof has been
obtained.
An Option may not be exercised for a fraction of a Share.
An Option shall be deemed to be exercised when written notice
of such exercise has been given to the Company in accordance with the terms of
the Option by the person entitled to exercise the Option and full payment for
the Shares with respect to which the Option is exercised has been received by
the Company. Full payment may consist of any consideration and method of payment
allowable under Section 7 of the Plan. Until the issuance (as, evidenced by the
appropriate entry on the books of the Company or of a duly authorized transfer
agent of the Company) of the stock certificate evidencing such Shares, no right
to vote or receive dividends or any other rights as a stockholder shall exist
with respect to the Optioned Stock, notwithstanding the exercise of the Option.
A share certificate for the number of Shares so acquired shall be issued to the
Optionee as soon as practicable after exercise of the Option. No adjustment
shall 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 10 of
the Plan.
Exercise of an Option in any manner shall result in a decrease
in the number of Shares which thereafter may be available, both for purposes of
the Plan and for sale under the Option, by the number of Shares as to which the
Option is exercised.
(b) Rule 16b-3. Options granted to Outside Directors must
comply with the applicable provisions of Rule 16b-3 promulgated under the
Exchange Act or any successor thereto and shall contain such additional
conditions or restrictions as may be required thereunder to qualify Plan
transactions, and other transactions by Outside Directors that otherwise could
be matched with Plan transactions, for the maximum exemption from Section 16 of
the Exchange Act.
(c) Termination of Continuous Status as a Director. In the
event an Optionee's Continuous Status as a Director terminates (other than upon
the Optionee's death or total and permanent disability (as defined in Section
22(e)(3) of the Code)), the Optionee may exercise his or her Option, but only
within three (3) months following the date of such termination, and only to the
extent that the Optionee was entitled to exercise it on the date of such
termination (but in no event later than the expiration of its ten (10) year
term). To the extent that the Optionee was not entitled to exercise an Option on
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.
Page 13 of 19 Pages
<PAGE>
(d) Disability of Optionee. In the event Optionee's Continuous
Status as a Director terminates as a result of total and permanent disability
(as defined in Section 22(e)(3) of the Code), the Optionee may exercise his or
her Option, but only within twelve (12) months following the date of such
termination, and only to the extent that the Optionee was entitled to exercise
it on the date of such termination (but in no event later than the expiration of
its ten (10) year term). To the extent that the Optionee was not entitled to
exercise an Option on the date of termination, or if he or she does not exercise
such Option (to the extent otherwise so entitled) within the time specified
herein, the Option shall terminate.
(e) Death of Optionee. In the event of an Optionee's death,
the Optionee's estate or a person who acquired the right to exercise the Option
by bequest or inheritance may exercise the Option, but only within twelve (12)
months following the date of death, and only to the extent that the Optionee was
entitled to exercise it on the date of death (but in no event later than the
expiration of its ten (10) year term). To the extent that the Optionee was not
entitled to exercise an Option on 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.
9. Non-Transferability of Options. The 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.
10. Adjustments Upon Changes in Capitalization, Dissolution, Merger, Asset
Sale or Change of Control.
(a) Changes in Capitalization. Subject to any required action
by the stockholders of the Company, the number of Shares covered by each
outstanding Option, the number of Shares 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 covered by each such outstanding Option, and the number
of Shares issuable pursuant to the automatic grant provisions of Section 4
hereof shall be proportionately adjusted for any increase or decrease in the
number of issued Shares 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 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." 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
subject to an Option.
(b) Dissolution or Liquidation. In the event of the proposed
dissolution or liquidation of the Company, to the extent that an Option has not
been previously exercised, it shall terminate immediately prior to the
consummation of such proposed action.
(c) Change in Control. In the event of a "Change in Control"
of the Company, as defined in paragraph (d) below, then immediately prior to the
occurrence of a Change in Control, any Options outstanding on the date such
Change in Control is determined to have occurred that are not yet exercisable
and vested on such date shall become fully exercisable and vested.
(d) Definition of "Change in Control". For purposes of this
Section 10, a "Change in Control" means the occurrence of any of the following:
(i) When any "person," as such term is used in Sections
13(d) and 14(d) of the Exchange Act (other than the
Company, a Subsidiary or a Company employee benefit
plan, including any trustee of such plan acting as
trustee) becomes the "beneficial owner" (as defined
in Rule 13d-3 under the Exchange Act), directly or
indirectly, of securities of the Company representing
fifty percent (50%) or more of the combined voting
power of the Company's then outstanding securities
entitled to vote generally in the election of
Directors; or
Page 14 of 19 Pages
<PAGE>
(ii) The merger or consolidation of the Company with any
other corporation, other than a merger or
consolidation which would result in the voting
securities of the Company outstanding immediately
prior thereto continuing to represent (either by
remaining outstanding or by being converted into
voting securities of the surviving entity) at least
fifty percent (50%) of the total voting power
represented by the voting securities of the Company
or such surviving entity outstanding immediately
after such merger or consolidation; or
(iii) The sale or disposition by the Company of all or
substantially all the Company's assets; or
(iv) A change in the composition of the Board of the
Company, as a result of which fewer than a majority
of the Directors are Incumbent Directors. "Incumbent
Directors" shall mean Directors who either (A) are
Directors of the Company as of the date the Plan is
approved by the stockholders, or (B) are elected, or
nominated for election, to the Board of the Company
with the affirmative votes of at least a majority of
the Incumbent Directors at the time of such election
or nomination (but shall not include an individual
whose election or nomination is in connection with an
actual or threatened proxy contest relating to the
election of Directors to the Company).
11. Amendment and Termination of the Plan.
(a) Amendment and Termination. Except as set forth in Section
4, the Board may at any time amend, alter, suspend, or discontinue the Plan, but
no amendment, alteration, suspension, or discontinuation shall be made which
would impair the rights of any Optionee under any grant theretofore made,
without his or her consent. In addition, to the extent necessary and desirable
to comply with Rule 16b-3 under the Exchange Act (or any other applicable law or
regulation), the Company shall obtain stockholder approval of any Plan amendment
in such a manner and to such a degree as required.
(b) Effect of Amendment or Termination. Any such amendment or
termination of the Plan shall not affect Options already granted and such
Options shall remain in full force and effect as if this Plan had not been
amended or terminated.
12. Time of Granting Options. The date of grant of an Option shall, for all
purposes, be the date determined in accordance with Section 4 hereof.
13. Conditions Upon Issuance of Shares. 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 pursuant thereto shall comply with
all relevant provisions of law, including, without limitation, the
Securities Act of 1933, as amended, the Exchange Act, the rules and
regulations promulgated thereunder, state securities laws, and the
requirements of any stock exchange upon which the Shares may then be
listed, and shall be further subject to the approval of counsel for the
Company with respect to such compliance.
As a condition to the exercise of an Option, 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 by any of
the aforementioned relevant provisions of law.
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.
14. 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 15 of 19 Pages
<PAGE>
15. Option Agreement. Options shall be evidenced by written option
agreements in such form as the Board shall approve.
16. Stockholder Approval. Continuance of the Plan shall be subject to
approval by the stockholders of the Company at or prior to the first annual
meeting of stockholders held subsequent to the granting of an Option hereunder.
Such stockholder approval shall be obtained in the degree and manner required
under applicable state and federal law.
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 52,562
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. 1995 Director 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 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
