<PAGE>
As filed with the Securities and Exchange Commission on January 12, 1999.
Registration No. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
--------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
McKESSON HBOC, INC.
(Exact Name of Registrant as Specified in Its Charter)
<TABLE>
<S> <C>
Delaware 94-3207296
(State or Other Jurisdiction of Incorporation or Organization) (I.R.S. Employer Identification No.)
</TABLE>
McKesson Plaza
One Post Street
San Francisco, California 90104
(415) 983-8300
(Address, Including Zip Code, and Telephone Number, Including Area Code, of
Principal Executive Offices)
<TABLE>
<S> <C>
Access Health, Inc. 1989 Incentive Stock Plan Access Health, Inc. 1991 Employee Stock Purchase Plan
Access Health, Inc. 1995 Director Option Plan Access Health, Inc. Supplemental Stock Plan
AMISYS Managed Care Systems, Inc. 1994 Equity Incentive Plan Clinicom Incorporated 1985 Employee Stock Option Plan
CyCare Systems, Inc. 1995 Long-Term Incentive Plan Enterprise Systems, Inc. Long-Term Incentive Plan
Expert Systems, Inc. 1993 Stock Option Plan Gabrieli Medical Information Systems, Inc. 1984 Incentive Stock
Option Plan
GMIS Inc. 1991 Stock Option Plan GMIS Inc. 1995 Stock Option Plan
GMIS Inc. Non-Qualified Stock Option Agreement with GMIS Inc. Non-Qualified Stock Option Agreement with Lawrence Koenig
Josephine G. Kaple
HBO & Company 1990 Executive Incentive Plan HBO & Company 1993 Stock Option Plan for Nonemployee
Directors
HBO & Company 1994 UK Sharesave Scheme HBO & Company Omnibus Stock Incentive Plan
HBO & Company Option Agreement with Graham O. King HBO & Company Option Agreement with Stephen G. Sullivan
HPR Inc. Amended and Restated HPR 1991 Stock Plan HPR Inc. Amended and Restated HPR 1995 Stock Plan
IMNET Systems, Inc. 1993 Employee Stock Option and Informed Access Systems, Inc. Stock Option Plan
Rights Plan
McKesson HBOC, Inc. 1998 Employee Stock Purchase Plan National Health Enhancement Systems, Inc. Amended 1988 Stock
(as Amended and Restated Effective January 12, 1999) Option Plan
Non-Qualified Stock Option Agreement between Access Non-Qualified Stock Option Agreement between Access Health, Inc.
Health, Inc. and Julie A. Brooks and Thomas E. Gardner
Non-Qualified Stock Option Agreement between HBO & Company Non-Qualified Stock Option Agreement between HBO & Company and
and David S. Tiseth Duane Tiseth
US Servis, Inc. (F/K/A Micro Health Systems, Inc.) Amended 1986 Incentive Stock Option Plan of Serving Software, Inc.
1993 Stock Option Plan
</TABLE>
(Full Titles of the Plans)
<PAGE>
<TABLE>
<S> <C>
Copy to:
Nancy A. Miller Ivan D. Meyerson
Senior Vice President and Corporate Secretary Senior Vice President and General Counsel
One Post Street One Post Street
San Francisco, California 94104 San Francisco, California 94104
</TABLE>
(Name and Address of Agent for Service)
(415) 983-8300
(Telephone Number, including Area Code, of Agent for Service)
--------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
============================================================================================================================
Title of Securities to be Amount to be Proposed Maximum Offering Proposed Maximum Amount of
Registered Registered(1) Price Per Share (2) Aggregate Offering Registration
Price (2) Fee (2)
- ----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par value
$0.01 per share............. 10,597,085 $78.78125 $834,851,603 $232,500
- ----------------------------------------------------------------------------------------------------------------------------
Rights to purchase Preferred N/A N/A N/A
Stock of McKesson HBOC, Inc.(3) 5,298,542
============================================================================================================================
</TABLE>
(1) Plus such additional number of shares of Common Stock and associated Rights
to purchase Preferred Stock as may be issuable pursuant to the antidilution
provisions of the above-referenced stock option plans and stock purchase
plans, in accordance with Rule 416(a) under the Securities Act.
(2) Estimated solely for purposes of calculating the registration fee pursuant
to Rules 457(c) and 457(h) under the Securities Act of 1933, as amended
(the "Securities Act"), based upon the average of the high and low sale
prices of the Common Stock of the Registrant on the New York Stock
Exchange, Inc. on January 5, 1999. The proposed maximum aggregate
offering price is estimated solely to determine the registration fee.
(3) Associated with the Common Stock are Rights to purchase Preferred Stock
that will not be exercisable or evidenced separately from the Common Stock
prior to the occurrence of certain events.
------------------------------------
The Registration Statement shall become effective upon filing in accordance with
Rule 462(a) under the Securities Act.
<PAGE>
PART I
Item 1. Plan Information*
Item 2. Registrant Information and Employee Plan Annual Information*
* The document(s) containing the information specified in Part I of Form S-8
have been or will be sent or given to employees as specified by Rule 428(b)(1)
under the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
McKesson HBOC, Inc. (the "Company" or the "Registrant") 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
March 31, 1998, as amended by Amendment No. 1 on Form 10-K/A filed on July 29,
1998;
(b) The Company's Quarterly Reports on Form 10-Q for the quarterly periods
ended June 30, 1998 and September 30, 1998;
(c) The Company's Current Reports on Form 8-K dated November 22, 1996 (as
amended by Amendment No. 1 on Form 8-K/A filed on January 21, 1997, as further
amended by Amendment No. 2 on Form 8-K/A filed on April 28, 1997) and October
19, 1998 (as amended by Amendment No. 1 on Form 8-K/A filed on October 30, 1998
and as further amended by Amendment No. 2 on Form 8-K/A filed on November 6,
1998); and
(d) The description of the Company's Common Stock contained in the
Company's Registration Statement on Form 10 and the Rights Agreement dated as of
October 21, 1994 between the Company and First Chicago Trust Company of New
York, as Rights Agent, filed as Exhibit 4.1 to Amendment No. 3 to the Company's
Registration Statement on Form 10 (as amended by Amendment No. 1, filed as
Exhibit 99.1 to the Company's Quarterly Report on Form 10-Q for the quarter
ended September 30, 1998).
All documents subsequently filed by the Company pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), prior to the filing of a post-effective amendment which
indicates that all securities offered 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 of such documents. Statements contained in this Registration
Statement or in a document incorporated by reference may be modified or
superseded by later statements in this Registration Statement or by statements
in subsequent documents incorporated by reference, in which case you should
refer to the later statement.
Item 4. Description of the Securities
Not applicable.
-3-
<PAGE>
Item 5. Interests of Named Experts and Counsel
The legality of the securities offered hereby will be passed upon for the
Registrant by Ivan D. Meyerson, Vice President and General Counsel of the
Registrant. Mr. Meyerson owns, directly and indirectly, less than 1% of the
outstanding shares of the Registrant's Common Stock.
Item 6. Indemnification of Directors and Officers
Section 145 of the Delaware General Corporation Law (the "DGCL") provides
that a corporation may indemnify directors and officers as well as other
employees and agents of the corporation against expenses (including attorneys'
fees), judgments, fines, and amounts paid in settlement in connection with
specified actions, suits or proceedings, whether civil, criminal,
administrative, or investigative (other than action by or in the right of the
corporation-a "derivative action"), if they acted in good faith and in a manner
they 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 their conduct was unlawful. A similar standard is
applicable in the case of derivative actions, except that indemnification only
extends to expenses (including attorneys' fees) incurred in connection with the
defense or settlement of such action, and the DGCL requires court approval
before there can be any indemnification where the person seeking indemnification
has been found liable to the corporation. The DGCL provides that it is not
exclusive of other indemnification that may be granted by a corporation's
charter, by-laws, disinterested director vote, stockholder vote, agreement, or
otherwise.
The Company's Restated By-laws provide that each person who is involved in
any actual or threatened action, suit or proceeding, whether civil, criminal,
administrative or investigative, by reason of the fact that he or she is or was
a director or officer of the Company, or is or was serving at the request of the
Company as a director, officer, employee or agent of another corporation or of a
partnership, joint venture, trust or other enterprise, including service with
respect to an employee benefit plan, will be indemnified by the Company to the
full extent permitted by the DGCL if he or she acted in good faith and in a
manner he or she reasonably believed to be in or not opposed to the best
interests of the Company. The indemnification rights conferred by the
Company's By-laws are not exclusive of any other right to which such person
seeking indemnification may be entitled under any law, by-law, agreement, vote
of stockholders or disinterested directors or otherwise.
Section 102(b)(7) of the DGCL permits a corporation to provide in its
certificate of incorporation that a director of the corporation shall not be
personally liable to the corporation or its stockholders for monetary damages
for breach of fiduciary duty as a director, except for liability for (i) any
breach of the director's duty of loyalty to the corporation or its stockholders,
(ii) acts or omissions not in good faith or which involve intentional misconduct
or a knowing violation of law, (iii) payment of unlawful dividends or unlawful
stock purchases or redemptions, or (iv) any transaction from which the director
derived an improper personal benefit.
Article VI of the Company's Restated Certificate of Incorporation provides
that to the full extent permitted by the DGCL, as it now exists or may hereafter
be amended, no director of the Company shall be liable to the Company or its
stockholders for monetary damages for breach of fiduciary duty as a director.
The Company maintains directors' and officers' liability insurance which
provides for payment, on behalf of the directors and officers of the Company and
its subsidiaries, of certain losses of such persons (other than matters
uninsurable under law) arising from claims, including claims arising under the
Securities Act, for acts or omissions by such persons while acting as directors
or officers of the Company and/or its subsidiaries, as the case may be.
-4-
<PAGE>
Item 7. Exemption from Registration Claimed
Not applicable.
Item 8. Exhibits
See Index to Exhibits.
Item 9. Undertakings
1. The undersigned Registrant hereby undertakes:
(a) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by section 10(a)(3) of
the Securities Act;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the Registration Statement (or the most recent post-
effective amendment thereof) which, individually or in the aggregate, represent
a fundamental change in the information set forth in the Registration Statement.
Notwithstanding the foregoing, any increase or decrease in volume of securities
offered (if the total dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form of prospectus
filed with the Securities and Exchange Commission (the "Commission") pursuant to
Rule 424(b) if, in the aggregate, the changes in volume and price represent no
more than a 20 percent change in the maximum aggregate offering price set forth
in the "Calculation of Registration Fee" table in the effective Registration
Statement.
(iii) 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;
Provided, however, that paragraphs (a)(i) and (a)(ii) do not apply if
the Registration Statement is on Form S-3 or Form S-8, and, the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed with or furnished to the Commission by the
Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are
incorporated by reference in the Registration Statement.
(b) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
Registration Statement relating to the securities offered herein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) 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.
2. The undersigned Registrant hereby undertakes that, for purposes
of determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to section 15(d) of the Exchange Act) that is
incorporated by reference in the Registration Statement shall be deemed to be a
new Registration Statement relating to the securities offered herein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
-5-
<PAGE>
3. Insofar as indemnification for liabilities arising under the
Securities 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 Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Securities 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 Securities
Act and will be governed by the final adjudication of such issue.
-6-
<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 San Francisco, State of California, on January 12,
1999.
McKESSON HBOC, INC.
By /s/ Nancy A. Miller
------------------------------------
Nancy A. Miller
Senior Vice President and Secretary
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on January 12, 1999.
Signature Title
* President, Chief Executive Officer and
- ----------------------------------- Director (principal executive officer)
Mark A. Pulido
* Chairman of the Board of Directors and
- ----------------------------------- Director
Charles W. McCall
* Senior Vice President and Chief Financial
- ----------------------------------- Officer (principal financial officer)
Richard H. Hawkins
* Controller (principal accounting
- ----------------------------------- officer)
Heidi E. Yodowitz
* Director
- -----------------------------------
Alfred E. Eckert III
* Director
- -----------------------------------
Tully M. Friedman
* Director
- -----------------------------------
Alton F. Irby III
* Director
- -----------------------------------
Gerald E. Mayo
* Director
- -----------------------------------
James V. Napier
<PAGE>
* Director
- ----------------------------------
Carl E. Reichardt
* Director
- ----------------------------------
Alan Seelenfreund
* Director
- ----------------------------------
Jane E. Shaw
*By: /s/ Nancy A. Miller
------------------------------
Nancy A. Miller
Attorney-in-fact
<PAGE>
EXHIBIT INDEX
Exhibit
Number
4.1 Rights Agreement dated as of October 21, 1994 between the Registrant
and First Chicago Trust Company of New York, as Rights Agent, filed as
Exhibit 4.1 to Amendment No. 3 to the Registrant's Registration
Statement on Form 10 (as amended by Amendment No. 1 dated October 19,
1998, filed as Exhibit 99.1 to the Company's Quarterly Report on Form
10-Q for the quarter ended September 30, 1998) and incorporated herein
by reference
4.2 Restated Certificate of Incorporation of Registrant as filed with the
office of the Delaware Secretary of State on July 30, 1998
(incorporated by reference to Exhibit 3.2 to the Registrant's
Quarterly Report on Form 10-Q for the Quarter ended June 30, 1998)
4.3* Certificate of Amendment to the Restated Certificate of Incorporation
of Registrant as filed with the office of the Delaware Secretary of
State on January 12, 1999
4.4 Restated By-laws of the Registrant, as amended through May 30, 1997
(incorporated by reference to Exhibit 3.1 to McKesson's Current
Registration on Form 8-K filed on June 22, 1997)
5.1* Opinion of Ivan D. Meyerson, Senior Vice President and General Counsel
of the Registrant regarding legality of the securities being offered
23.1* Consent of Ivan D. Meyerson, Senior Vice President and General Counsel
of the Registrant (included in Exhibit 5.1)
23.2* Independent Auditors' Consent
24.1* Power of Attorney
99.1 Access Health, Inc. 1989 Incentive Stock Plan (incorporated by
reference to Exhibit 4 to the Registration Statement on Form S-8 of
HBO & Company (file no. 333-68693) filed on December 10, 1998)
99.2 Access Health, Inc. 1991 Employee Stock Purchase Plan (incorporated by
reference to Exhibit 4 to the Registration Statement on Form S-8 of
HBO & Company (file no. 333-68575) filed on December 9, 1998)
99.3 Access Health, Inc. 1995 Director Option Plan (incorporated by
reference to Exhibit 4 to the Registration Statement on Form S-8 of
HBO & Company (file no. 333-68695) filed on December 10, 1998)
99.4 Access Health, Inc. Supplemental Stock Plan (incorporated by reference
to Exhibit 4 to the Registration Statement on Form S-8 of HBO &
Company (file no. 333-68685) filed on December 10, 1998)
99.5 AMISYS Managed Care Systems, Inc. 1994 Equity Incentive Plan
(incorporated by reference to Exhibit 4 to the Registration Statement
on Form S-8 of HBO & Company (file no. 333-29367) filed on June 17,
1997)
99.6 Clinicom Incorporated 1985 Employee Stock Option Plan (incorporated by
reference to Exhibit 4 to the Registration Statement on Form S-8 of
HBO & Company (file no. 033-63213) filed on October 5, 1995)
99.7 CyCare Systems, Inc. 1995 Long-Term Incentive Plan (incorporated by
reference to Exhibits 4(a), 4(b) and 4(c) to the Registration
Statement on Form S-8 of HBO & Company (file no. 333-10603) filed on
August 22, 1996)
99.8 Enterprise Systems, Inc. Long-Term Incentive Plan (incorporated by
reference to Exhibit 4 to the Registration Statement on Form S-8 of
HBO & Company (file no. 333-30373) filed on June 30, 1997)
<PAGE>
99.9 Expert Systems, Inc. 1993 Stock Option Plan (incorporated by reference
to Exhibit 4 to the Registration Statement on Form S-8 of HBO &
Company (file no. 333-43679) filed on January 2, 1997)
99.10 Gabrieli Medical Information Systems, Inc. 1984 Incentive Stock Option
Plan (incorporated by reference to Exhibit 4 to the Registration
Statement on Form S-8 of HBO & Company (file no. 333-17579) filed on
December 10, 1996)
99.11 GMIS, Inc. 1991 Stock Option Plan (incorporated by reference to
Exhibit 4 to the Registration Statement on Form S-8 of HBO & Company
(file no. 333-17551) filed on December 10, 1996)
99.12 The GMIS, Inc. 1995 Stock Option Plan (incorporated by reference to
Exhibit 4 to the Registration Statement on Form S-8 of HBO & Company
(file no. 333-17555) filed on December 10, 1996)
99.13 GMIS, Inc. Non-Qualified Stock Option Agreement with Josephine G.
Kaple (incorporated by reference to Exhibit 4(a) the Registration
Statement on Form S-8 of HBO & Company (file no. 333-17583) filed on
December 10, 1996)
99.14 GMIS, Inc. Non-Qualified Stock Option Agreement with Lawrence Koenig
(incorporated by reference to Exhibit 4(b) to the Registration
Statement on Form S-8 of HBO & Company (file no. 333-17583) filed on
December 10, 1996)
99.15 HBO & Company 1990 Executive Incentive Plan (incorporated by reference
to Exhibit 4 to the Registration Statement on Form S-8 of HBO &
Company (file no. 033-82962) filed on August 1, 1994 and Exhibit 4(a)
to the Registration Statement on Form S-8 of HBO Company (file no.
333-05759) filed on June 12, 1996)
99.16 HBO & Company 1993 Stock Option Plan for Nonemployee Directors
(incorporated by reference to Exhibit 4 to the Registration Statement
on Form S-8 of HBO & Company (file no. 33-67300) filed on August 12,
1993)
99.17 HBO & Company 1994 UK Sharesave Scheme (incorporated by reference to
Exhibit 4 to the Registration Statement on Form S-8 of HBO & Company
(file no. 333-24223) filed on March 31, 1997)
99.18 HBO & Company Omnibus Stock Incentive Plan (incorporated by reference
to Exhibit 4 to the Registration Statement on Form S-8 of HBO &
Company (file no. 333-26885) filed on May 12, 1997)
99.19 HBO & Company Option Agreement with Graham O. King (incorporated by
reference to Exhibits 4.1 and 4.2 to the Registration Statement on
Form S-8 of HBO & Company (file no. 37-0986839) filed on October 2,
1998)
99.20 HBO & Company Option Agreement with Stephen G. Sullivan
(incorporated by reference to Exhibit 4.3 to the Registration
Statement on Form S-8 of HBO & Company (file no. 37-0986839) filed on
October 2, 1998)
99.21 HPR Inc. Amended and Restated HPR 1991 Stock Plan (incorporated by
reference to Exhibit 4.2 to the Registration Statement on Form S-8 of
HBO & Company (file no. 333-43377) filed on December 29, 1997)
99.22 HPR Inc. Amended and Restated HPR 1995 Stock Plan (incorporated by
reference to Exhibit 4.1 to the Registration Statement on Form S-8 of
HBO & Company (file no. 333-43377) filed on December 29, 1997)
<PAGE>
99.23 IMNET Systems, Inc. 1993 Employee Stock Option and Rights Plan
(incorporated by reference to Exhibit 4(a) to the Registration
Statement on Form S-8 of HBO & Company (file no. 333-66321) filed on
October 29, 1998)
99.24 Informed Access Systems, Inc. Stock Option Plan (incorporated by
reference to Exhibit 4 to the Registration Statement on Form S-8 of
HBO & Company (file no. 333-68691) filed on December 10, 1998)
99.25* McKesson HBOC, Inc. 1998 Employee Stock Purchase Plan (as Amended and
Restated Effective January 12, 1999)
99.26 National Health Enhancement Systems, Inc. Amended 1988 Stock Option
Plan (incorporated by reference to Exhibit 4 to the Registration
Statement on Form S-8 of HBO & Company (file no. 333-43673) filed on
January 2, 1998)
99.27 Non-qualified Stock Option Agreement between Access Health, Inc. and
Julie A. Brooks (incorporated by reference to Exhibit 4.2 to the
Registration Statement on Form S-8 of HBO & Company (file no. 333-
68687) filed on December 10, 1998)
99.28 Non-qualified Stock Option Agreement between Access Health, Inc. and
Thomas E. Gardner (incorporated by reference to Exhibit 4.1 to the
Registration Statement on Form S-8 of Access Health Inc. (file no.
333-24561) filed April 4, 1997)
99.29 Non-Qualified Stock Option Agreement between HBO & Company and David
S. Tiseth (incorporated by reference to Exhibit 4(b) to the
Registration Statement on Form S-8 of HBO & Company (file no. 333-
56579) filed on June 11, 1998)
99.30 Non-Qualified Stock Option Agreement between HBO & Company and Duane
Tiseth (incorporated by reference to Exhibit 4(a) to the Registration
Statement on Form S-8 of HBO & Company (file no. 333-56579) filed on
June 11, 1998)
99.31 US Servis, Inc. (F/K/A Micro Health Systems, Inc.) Amended 1993 Stock
Option Plan (incorporated by reference to Exhibit 4.1 to the
Registration Statement on Form S-8 of HBO & Company (file no. 333-
65243) filed on October 2, 1998)
99.32 1986 Incentive Stock Option Plan of Serving Software, Inc.
(incorporated by reference to Exhibit 4 to the Registration Statement
on Form S-8 (file no. 33-84034 filed on September 5, 1994)
* Filed herewith.
<PAGE>
EXHIBIT 4.3
CERTIFICATE OF AMENDMENT
OF
RESTATED
CERTIFICATE OF INCORPORATION
OF
McKESSON CORPORATION
- -------------------------------------------------------------------------------
Pursuant to Sections 222 and 242 of
the General Corporation Law of the
State of Delaware
- -------------------------------------------------------------------------------
McKesson Corporation, a corporation organized and existing under and by
virtue of the provisions of the General Corporation Law of the State of
Delaware (the "Corporation"), does hereby certify as follows:
FIRST: That Article I of the Corporation's Restated Certificate of
Incorporation is hereby amended to read in its entirety as set forth below:
ARTICLE I
The name of the Corporation is McKesson HBOC, Inc.
SECOND: That the foregoing amendment was duly adopted in accordance with
the provisions of Sections 222 and 242 of the General Corporation Law of the
State of Delaware.
<PAGE>
IN WITNESS WHEREOF, McKesson Corporation has caused this Certificate
to be executed in its corporate name this 12th day of January, 1999.
McKESSON CORPORATION
By /s/ Nancy A. Miller
---------------------------------------------
Name: Nancy A. Miller
Title: Vice President and Corporate Secretary
2
<PAGE>
Exhibit 5.1
[LETTERHEAD OF MCKESSON]
January 12, 1999
McKesson HBOC, Inc.
McKesson Plaza
One Post Street
San Francisco, California 94104
Re: McKesson HBOC, Inc. -- Registration Statement on Form S-8
-----------------------------------------------------------
Ladies and Gentlemen:
I am Senior Vice President and General Counsel of McKesson HBOC, Inc., a
Delaware corporation (the "Company"), and am issuing this opinion in connection
with the Registration Statement on Form S-8 being filed by the Company with the
Securities and Exchange Commission (the "Commission") on the date hereof (the
"Registration Statement") for the purpose of registering with the Commission
under the Securities Act of 1933, as amended (the "Securities Act"), 10,597,085
shares (the "Shares") of common stock of the Company, par value $0.01 per share,
to be issued by the Company upon exercise of options to be granted or stock to
be sold pursuant to the stock option plans and employee stock purchase plans
(the "Plans") to be assumed pursuant to the Agreement and Plan of Merger, dated
as of October 17, 1998, as amended as of November 9, 1998 and as further amended
as of January 12, 1999 (the "Merger Agreement"), by and among McKesson
Corporation, McKesson Merger Sub, Inc., a Delaware corporation and a wholly
owned subsidiary of the Company ("Merger Sub"), and HBO & Company, a Delaware
corporation ("HBOC"), which Plans are set forth on the cover page of the
Registration Statement.
In this connection, I have reviewed the Registration Statement, as proposed to
be filed with the Commission. As General Counsel, I am familiar with the
Restated Certificate of Incorporation of the Company, as amended, and the
Restated Bylaws of the Company, as amended, each as currently in effect. I have
also examined originals or copies, certified or otherwise identified to my
satisfaction of such records of the Company and such instruments, certificates
of public officials, and such other documents, certificates and records as I
have deemed necessary or appropriate as a basis for the opinion set forth
herein.
In my examination, I have assumed the genuineness of all signatures, the legal
capacity of natural persons, the authenticity of all documents submitted to me
as originals, the conformity to original documents of all documents submitted to
me as certified, conformed or photostatic copies and the authenticity of the
originals of such copies. In making my examination of documents executed or to
be executed by parties other than the Company, I have assumed that such parties
had or will
<PAGE>
have the power, corporate or other, to enter into and perform all obligations
thereunder and have also assumed the due authorization by all requisite action,
corporate or other, and execution and delivery by such parties and the validity
and binding effect thereof. As to any facts material to the opinion expressed
herein which I have not independently established or verified, I have relied
upon statements and representations of other officers and representatives of the
Company and others.
I am admitted to the Bar of the State of California and do not purport to be an
expert on, or express any opinion concerning, any law other than the substantive
law of the State of California.
Based upon and subject to the foregoing, I am of the opinion that the Shares,
when issued and sold in accordance with the terms of the respective Plan to
which they relate, will be legally issued, fully paid and nonassessable.
I hereby consent to the filing of this opinion as an exhibit to the Registration
Statement.
This opinion is furnished by me, as counsel to the Company, in accordance with
the requirements of Item 601(b)(5) of Regulation S-K under the Securities Act
and, except as provided in the immediately preceding paragraph, is not to be
used, circulated or quoted for any other purpose or otherwise referred to or
relied upon by any other person without the express written permission of the
Company.
Very truly yours,
/s/ Ivan D. Meyerson
----------------------------------
Ivan D. Meyerson
<PAGE>
Exhibit 23.2
[LOGO OF DELOITTE & TOUCHE] ______________________________________
Deloitte & Touche LLP
50 Fremont Street
San Francisco, California 94105-2230
Telephone: (415) 247-4000
Facsimile: (415) 247-4329
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement
on Form S-8 of McKesson HBOC, Inc. of our reports dated May 18, 1998, on
McKesson Corporation's consolidated financial statements and financial statement
schedule, appearing in and incorporated by reference in the Annual Report on
Form 10-K of McKesson Corporation for the year ended March 31, 1998, and our
report on FoxMeyer Corporation's consolidated financial statements dated June
28, 1996 (March 18, 1997 as to paragraph seven of Note Q), which report
expresses an unqualified opinion and includes an explanatory paragraph relating
to the sale of the principal assets of FoxMeyer Corporation and its Chapter 7
bankruptcy filing, appearing in the Current Report on Form 8K/A of McKesson
Corporation filed with the Securities and Exchange Commission on April 28,
1997.
/s/ DELOITTE & TOUCHE LLP
- -----------------------------------
San Francisco, CA
January 12, 1999
<PAGE>
Exhibit 24.1
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS THAT the undersigned directors and officers
of McKesson HBOC, Inc., a Delaware corporation (the "Company"), do hereby
constitute and appoint Ivan D. Meyerson and Nancy A. Miller his or her true and
lawful attorney and agent, each with full power and authority (acting alone and
without the other) to execute in the name and on behalf of the undersigned as
such director and/or officer, a Registration Statement on Form S-8 under the
Securities Act of 1933, as amended, with respect to the registration of shares
of the Company's Common Stock that may be issued in connection with the
assumption of stock option plans and employee stock purchase plans of HBO &
Company in accordance with the terms of the Merger Agreement dated October 17,
1998 as amended November 9, 1998, among HBO & Company, McKesson Merger Sub, Inc.
and McKesson Corporation, and to execute any and all amendments to such
Registration Statement, whether filed prior or subsequent to the time such
Registration Statement becomes effective. The undersigned hereby grants unto
such attorneys and agents, and each of them, full power of substitution and
revocation in the premises and hereby ratifies and confirms all that such
attorneys and agents may do or cause to be done by virtue of these presents.
SIGNATURE TITLE
- --------- -----
/s/ Mark A. Pulido
________________________ President, Chief Executive Officer and
Mark A. Pulido Director (principal executive officer)
/s/ Charles W. McCall
________________________ Chairman of the Board of Directors
Charles W. McCall and Director
/s/ Richard H. Hawkins
________________________ Senior Vice President and Chief Financial
Richard H. Hawkins Officer (principal financial officer)
/s/ Heidi E. Yodowitz
________________________ Controller
Heidi E. Yodowitz (principal accounting officer)
/s/ Alfred C. Eckert III
________________________ Director
Alfred C. Eckert III
/s/ Tully M. Friedman
________________________ Director
Tully M. Friedman
/s/ Alton F. Irby III
________________________ Director
Alton F. Irby III
/s/ Gerald E. Mayo
________________________ Director
Gerald E. Mayo
/s/ James V. Napier
________________________ Director
James V. Napier
<PAGE>
/s/ Carl E. Reichardt
________________________ Director
Carl E. Reichardt
/s/ Alan Seelenfreund
________________________ Director
Alan Seelenfreund
/s/ Jane E. Shaw
________________________ Director
Jane E. Shaw
Dated: January 12, 1999
<PAGE>
Exhibit 99.25
McKESSON HBOC, INC.
1998 EMPLOYEE STOCK PURCHASE PLAN
As Amended and Restated Effective January 12, 1999
WHEREAS, the Board of Directors of HBO & Company, a Delaware
corporation ("HBOC"), adopted the 1998 Employee Discount Stock Purchase Plan on
November 11, 1997, subject to the approval of the stockholders of HBOC, which
approval was obtained on May 12, 1998; and
WHEREAS, McKesson HBOC, Inc., a Delaware corporation ("McKesson"),
HBOC, and McKesson Merger Sub, Inc., a Delaware corporation ("Merger Sub"), have
entered into an Agreement and Plan of Merger (the "Merger Agreement"), dated as
of October 17, 1998, whereby Merger Sub will be merged with and into HBOC, and
HBOC will thereby become a direct, wholly-owned subsidiary of McKesson (the
"Merger"); and
WHEREAS, pursuant to the Merger Agreement, upon consummation of the
Merger, the name of the combined entity will be changed to McKesson HBOC, Inc.
(the "Company"); and
WHEREAS, the Boards of Directors of each of McKesson and HBOC have
adopted resolutions providing that, subject to and effective upon consummation
of the Merger, the 1998 Employee Discount Stock Purchase Plan shall be renamed
the McKesson HBOC, Inc. 1998 Employee Stock Purchase Plan; and
WHEREAS, the Boards of Directors of each of McKesson and HBOC have
adopted resolutions providing that, subject to and effective upon consummation
of the Merger, the McKesson HBOC, Inc. 1998 Employee Stock Purchase Plan shall
be amended and restated in the form below (the "Amendment and Restatement"):
1. PURPOSE
-------
The McKesson HBOC, Inc. 1998 Employee Stock Purchase Plan (the "Plan")
is intended to encourage the employees of the Company and certain of its
subsidiaries to acquire a proprietary interest, or to increase their existing
proprietary interest, in the Company. The Board of Directors of the Company
(the "Board") believes that employee ownership of the Company's stock will serve
as an incentive, encouraging employees to continue their employment and to
perform diligently their duties as employees. The Plan is intended to qualify
as an "employee stock purchase plan" within the meaning of Section 423 of the
Internal Revenue Code of 1986, as amended (the "Code").
2. STOCK RESERVED FOR THE PLAN
---------------------------
The Company will reserve 1,110,000 (which number has been adjusted
to reflect the 2:1 stock split effected by HBO on May 27, 1998, and the Exchange
Ratio as defined in the Merger Agreement) shares of the Company's common stock,
$.01 par value per share ("Stock"), for purchase by employees under the Plan.
The number of shares of Stock reserved for the Plan may be adjusted as provided
in Section 16. The shares of
<PAGE>
Stock reserved for the Plan may be shares now or hereafter authorized but
unissued, shares that have been reacquired by the Company, or shares of treasury
stock.
3. ADMINISTRATION
--------------
The Plan will be administered by the Compensation Committee of the
Board (the "Committee"), consisting of members of the Board designated by the
Board. The Board from time to time may remove members from, or add members to,
the Committee. Vacancies on the Committee will be filled by the Board. Subject
to the express provisions of the Plan, the Committee will have authority to
interpret the Plan, to prescribe rules and regulations for administering the
Plan, and to make all other determinations necessary or advisable in
administering the Plan. The determinations of the Committee will be final and
binding upon all persons, unless otherwise determined by the Board. A majority
of the members of the Committee will constitute a quorum, and the Committee may
act by vote of a majority of its members at a meeting at which a quorum is
present, or without a meeting by a written consent signed by all members of the
Committee. To the extent consistent with applicable law, the Committee may
delegate its duties hereunder to a sub-committee, whose members need not be
members of the Board.
4. ELIGIBILITY
-----------
a. Eligible Employees. Except as set forth in subsections (b) and (c)
------------------
below, all employees of the Company, and all employees of any parent
corporation, as defined in Code Section 424(e) (a "Parent") or any subsidiary
corporation as defined in Code Section 424(f) (a "Subsidiary") of the Company
that is designated by the Board as a participating Parent or Subsidiary, will be
eligible to participate in the Plan. Such employees are referred to herein as
"Employees." No person who is not an Employee will be eligible to participate
in the Plan.
b. Excluded Employees. The following Employees will not be eligible to
------------------
participate in the Plan:
i. any Employee whose customary employment is 20 hours or less per
week or for not more than 5 months in any calendar year; and
ii. any Employee who, immediately after a right to purchase Stock is
granted hereunder, would own shares of Stock, or of the stock of a Subsidiary,
possessing 5 percent or more of the total combined voting power or value of
all classes of such stock. In determining whether an Employee owns 5 percent
of such shares, (A) the attribution of ownership rules of Code Section 424(d)
will apply, and (B) an Employee will be deemed to own the shares of stock
underlying any outstanding option which he has been granted (whether under the
Plan or any other plan or arrangement).
c. Participation by Certain Employees Subject to Stockholder Approval.
------------------------------------------------------------------
Participation in the Plan by Employees who, immediately prior to the Merger,
were not employed by HBOC or by any subsidiary (as defined in Code Section
424(f)) designated by the Board of Directors of HBOC as eligible to participate
(the "Contingent Participants"), shall be subject to approval of this Amendment
and Restatement by the stockholders of the Company within twelve months from the
date this Amendment and Restatement was adopted by the Boards of Directors of
each of McKesson and HBOC (the "Stockholder Approval Date"). In the event such
stockholder approval is not obtained by the Stockholder Approval Date, the
balance of the Cash Accounts (as defined in Section 6 below)
<PAGE>
of Contingent Participants shall be returned to them as soon as reasonably
practicable and their participation in the Plan shall thereupon be automatically
terminated.
5. OFFERING DATES
--------------
a. In General. The Plan will be implemented by a continuous series of
----------
offerings beginning on the first trading day on or after March 1/st/ of each
calendar year (the "Offering Date") and terminating on the last trading day of
the following February (the "Purchase Date"). A trading day shall be a day on
which the New York Stock Exchange (or any other exchange or quotation system on
which the Stock may from time to time be listed) shall be open. The period for
which each such offering is effective is referred to herein as a "Purchase
Period." The first Purchase Period will commence on March 1, 1998, and will
terminate on the last trading day on or before February 28, 1999.
b. Application to Contingent Participants. Subject to Section 4(c)
--------------------------------------
above, Contingent Participants may elect to participate in the Plan beginning
with the offering commencing on the first trading day on or after March 1, 1999.
6. ELECTION TO PARTICIPATE
-----------------------
a. Initial Election. Each Employee who is eligible to participate in the
----------------
Plan may become a participant (a "Participant") by making an election, prior to
any Offering Date and in accordance with procedures established by the
Committee, authorizing specified regular payroll deductions over the next
succeeding Purchase Period (an "Election Form"). Each election will be
expressed as a percentage of the Employee's Compensation (as defined below),
which may not exceed 10 percent of the Employee's Compensation for any payroll
period or be less than 1 percent of the Employee's Compensation for any payroll
period (or such other maximum and minimum percentages as the Committee may
determine). A Participant's "Compensation" is his total cash compensation from
the Company and its affiliates. Payroll deductions for a Participant will be
made regularly and in equal amounts during the Purchase Period by the Company,
and will be credited to a bookkeeping account established by the Company in the
name of the Participant (the "Cash Account"). No interest will be paid on or
credited to Cash Accounts.
b. Changes in Rate of Payroll Deductions. A Participant may discontinue
-------------------------------------
making payroll deductions in accordance with Section 6(c), but may not otherwise
increase or decrease the amount of payroll deductions elected for a Purchase
Period.
c. Discontinuance of Contributions. At any time during a Purchase
-------------------------------
Period, a Participant may discontinue participation in the Plan for the current
Purchase Period by providing notice in accordance with procedures established by
the Committee. Upon such discontinuance, at the Participant's election, the
balance of his Cash Account will be (i) returned to the Participant as soon as
practicable, or (ii) held in the Cash Account until the end of the Purchase
Period and applied to purchase Stock in accordance with Section 10. A
Participant who discontinues payroll deductions may recommence his participation
in the Plan as of the Offering Date for any other succeeding Purchase Period,
provided he otherwise is eligible to participate and timely files a new Election
Form with the Committee.
<PAGE>
7. PURCHASE PERIOD LIMITATION ON RIGHTS TO PURCHASE STOCK
------------------------------------------------------
a. In General. Except as provided in Section 7(b) below with respect to
----------
the first Purchase Period under the Plan, and subject to the annual limitations
in Section 8 below, the maximum number of shares of Stock each Participant will
have the right to purchase under the Plan during a Purchase Period is determined
by dividing (i) $25,000 by (ii) the Fair Market Value of one share of Stock on
the Offering Date for such Purchase Period.
b. First Purchase Period. For purposes of the first Purchase Period
---------------------
hereunder, the maximum number of shares of Stock each Participant will have the
right to purchase under the Plan will be determined by dividing (i) $25,000 by
(ii) the closing price of the common stock, par value $.05 per share, of HBOC as
quoted on the Nasdaq National Market on February 27, 1998 divided by the
Exchange Ratio (as defined in the Merger Agreement).
c. Insufficient Shares of Stock. If at any time the number of shares of
----------------------------
the Stock available for purchase under the Plan is insufficient to grant to each
Participant the right to purchase the full number of shares to which he
otherwise would be entitled, then each Participant will have the right to
purchase that number of available shares of Stock that is equal to the total
number of available shares of Stock multiplied by a fraction, the numerator of
which is the amount of Compensation credited to the Participant's Cash Account
for the Purchase Period, and the denominator of which is the total amount of
Compensation credited to the Cash Accounts of all Participants for the Purchase
Period.
8. ANNUAL LIMITATION ON RIGHTS TO PURCHASE STOCK
---------------------------------------------
No right to purchase shares of Stock under the Plan will be granted to
an Employee if such right, when combined with all other rights and options
granted under all of the Code Section 423 employee stock purchase plans of the
Company or any Parent or Subsidiary would permit the Employee to purchase shares
of Stock with a Fair Market Value (determined at the time the right or option is
granted) in excess of $25,000 for each calendar year in which the right or
option is outstanding at any time, determined in accordance with Code Section
423(b)(8).
9. PURCHASE PRICE
--------------
a. In General. Except as provided in Section 9(b) with respect to the
----------
purchase of Stock under the first offering of the Plan, the purchase price of
each share of Stock will be the lesser of (i) 85 percent of the Fair Market
Value of the Stock on the Offering Date, or (ii) 85 percent of the Fair Market
Value of the Stock on the Purchase Date.
b. Effect of Merger. The purchase price for each share of Stock
----------------
purchased under the first Purchase Period of the Plan will be the lesser of (i)
85 percent of the closing price of the common stock, par value $.05 per share,
of HBOC as quoted on the Nasdaq National Market on February 27, 1998 divided by
the Exchange Ratio (as defined in the Merger Agreement), or (ii) 85 percent of
the Fair Market Value of the Stock on the Purchase Date.
c. Fair Market Value. The Fair Market Value of the Stock, as of any
-----------------
date, will be equal to the closing price of the Stock on the New York Stock
Exchange ("NYSE"), for such date as reported in The Wall Street Journal. If no
transaction is reported for a particular date, Fair Market Value will be the
closing price on the closest preceding date
<PAGE>
for which any transaction is reported. If the Stock is not traded on the NYSE,
Fair Market Value will be determined using the method established by the
Committee.
10. PURCHASE OF STOCK
-----------------
a. Funds in Cash Account Used to Purchase Whole Shares of Stock. Subject
------------------------------------------------------------
to the share limitations set forth in Sections 7 and 8 above, as of each
Purchase Date, the Committee will purchase from the Company using the funds in
each Cash Account on such date, on behalf of each Participant having funds in
his Cash Account, the number of whole shares of Stock determined by dividing the
amount in such Cash Account on such date by the purchase price determined under
Section 9.
b. No Fractional Shares. No fractional shares will be issued under the
--------------------
Plan. To the extent that, following the purchase of shares of Stock on any
Purchase Date, there remains in any Cash Account payroll deduction amounts
insufficient to purchase at least one full share of Stock, such amounts shall be
retained in the Participant's Cash Account and applied to the next subsequent
Purchase Period, subject to withdrawal by the Participant as provided in Section
6(c) hereof.
c. Return of Excess Contributions. Any additional amounts remaining in a
------------------------------
Participant's Cash Account following the purchase of shares of Stock on any
Purchase Date that are equal to or in excess of the amount required under
Section 10(a) to purchase at least one full share of Stock shall be returned to
the Participant as soon as reasonably practicable following the Purchase Date.
11. STOCK ACCOUNTS
--------------
a. Establishment of Accounts. As soon as reasonably practicable after
-------------------------
each Purchase Date, the Company will deliver to a custodian selected by the
Committee (the "Custodian") a certificate or certificates representing the total
number of shares purchased by all Participants in the Purchase Period. The
Custodian will maintain a separate "Stock Account" for each Participant, which
will be credited with the number of shares of Stock purchased by the Participant
under the Plan.
b. Withdrawals from Stock Accounts. A Participant may at any time
-------------------------------
withdraw any shares of Stock credited to his Stock Account. As soon as
practicable after such request by a Participant, the Custodian shall cause a
certificate representing such Shares to be delivered to the Participant.
c. Rights as Shareholders. A Participant will have all of the rights of
----------------------
a shareholder of the Company with respect to all of the shares of Stock credited
to his Stock Account, including the right to vote and receive dividends on such
Shares.
12. TERMINATION OF EMPLOYMENT
-------------------------
a. Termination Other Than Due to Death, Disability or Retirement. If a
-------------------------------------------------------------
Participant terminates employment with the Company or any Parent or Subsidiary
during a Purchase Period for any reason other than death, disability, or
retirement, then the Participant's participation in the Plan will immediately
terminate and the balance of the Participant's Cash Account will be returned to
the Participant. For purposes of the Plan, a Participant who is on an approved
leave of absence shall not be considered to have
<PAGE>
terminated employment until the 91st day of such leave of absence or such longer
period as the Participant's right to re-employment is guaranteed by law or
contract.
b. Termination Due to Death. If a Participant terminates employment with
------------------------
the Company or any Parent or Subsidiary during a Purchase Period due to death,
then, at the election of the Participant's beneficiary, the balance of the
Participant's Cash Account shall be (i) delivered to the beneficiary or (ii)
held in the Cash Account until the end of the Purchase Period and applied to
purchase Stock in accordance with Section 10.
c. Termination Due to Disability or Retirement. If a Participant
-------------------------------------------
terminates employment with the Company or any Parent or Subsidiary due to
retirement or disability no more than 3 months before the Purchase Date for a
Purchase Period, then, at the Participant's election, the balance of the
Participant's Cash Account shall be (i) returned to the Participant, or (ii)
held in the Cash Account until the end of the Purchase Period and applied to
purchase Stock in accordance with Section 10. If a Participant terminates
employment due to retirement or disability more than 3 months before the
Purchase Date for a Purchase Period, then the Participant's participation in the
Plan will immediately terminate and the balance of the Participant's Cash
Account will be returned to the Participant.
d. Definition of Retirement. For purposes of the Plan, Retirement shall
------------------------
mean the attainment by a Participant of age plus whole years of service with the
Company or any Parent or Subsidiary totalling 65.
13. DESIGNATION OF BENEFICIARY
--------------------------
In accordance with procedures established by the Committee, a
Participant may designate one or more beneficiaries to receive benefits in the
event of the Participant's death. If a Participant fails to properly designate
a beneficiary, the Participant's estate will be considered the Participant's
beneficiary for purposes of the Plan.
14. COMPLIANCE WITH SECURITIES LAWS
-------------------------------
All shares of Stock issued under the Plan will be subject to such
restrictions as the Committee may deem advisable under any applicable federal or
state securities laws, and the Committee may cause a legend or legends making
reference to such restrictions to be placed on the certificates representing
such shares.
15. RIGHTS NOT TRANSFERABLE
-----------------------
Neither payroll deductions credited to a Participant's account nor any
rights under the Plan may be assigned, transferred, pledged or otherwise
disposed of in any way by the Participant (other than by will or the laws of
descent and distribution or as provided in Section 13 hereof). Rights under the
Plan are exercisable during the lifetime of the Participant only by the
Participant.
16. ADJUSTMENT IN CASE OF CHANGES AFFECTING THE COMPANY'S STOCK
-----------------------------------------------------------
a. In General. In the event of a subdivision or consolidation of
----------
outstanding shares of Stock, the payment of a stock dividend thereon, stock
split, reverse stock split, or in the event of any "corporate transaction" as
defined in Treasury Regulations
<PAGE>
Section l.425-1(a)(1)(ii) (now relating to Code Section 424), the number of
shares reserved or authorized to be reserved under the Plan, the number and
price of such shares subject to purchase pursuant to rights outstanding
hereunder, the maximum number of shares each Participant may purchase during
each Purchase Period (pursuant to Section 7) or during each calendar year
(pursuant to Section 8), and the number of shares credited to Participants'
Stock Accounts, will be adjusted in such manner as may be deemed necessary or
equitable by the Board to give proper effect to such event, subject to the
limitations of Code Section 424.
b. Effect of Merger. Following consummation of the Merger, outstanding
----------------
purchase rights of HBOC employees under the Plan will remain in effect and will
be assumed by the Company, with appropriate changes to reflect the issuance of
shares of Stock.
17. FOREIGN EMPLOYEES
-----------------
To the extent permitted under Section 423 of the Code, the Committee
may provide for such special terms for Participants who are foreign nationals,
or who are employed by the Company or a Parent or Subsidiary outside of the
United States of America, as the Committee may consider necessary or appropriate
to accommodate differences in local law, tax policy or custom. Moreover, the
Committee may approve such supplements to or amendments, restatements, or
alternative versions of, this Plan as it may consider necessary or appropriate
for such purposes without thereby affecting the terms of this Plan as in effect
for any other purpose; provided, however, that no such supplements, amendments,
restatements or alternative versions shall include any provisions that are
inconsistent with terms of this Plan, as then in effect, unless this Plan could
have been amended to eliminate such inconsistency without further approval by
the shareholders of the Company, or which would cause the Plan to fail to meet
the requirements of Section 423 of the Code.
18. AMENDMENT OF THE PLAN
---------------------
The Board may amend the Plan in any respect; provided, however, that,
any amendment (i) increasing the number of shares of Stock reserved under the
Plan (other than as provided in Section 16), or (ii) changing the designated
class of employees eligible to participate in the Plan as provided in Section 4,
must be approved, within 12 months of the adoption of such an amendment, by the
holders of a majority of the voting power of the outstanding shares of Stock.
19. TERMINATION OF THE PLAN
-----------------------
The Plan and all rights of Employees hereunder will terminate:
(i) as of the Purchase Date on which Participants purchase a number
of shares of Stock that substantially exhausts the number of shares available
for issuance under the Plan, to such an extent that the Committee determines
that no subsequent offerings are practicable; or
(ii) at any time upon action of the Board; provided, however, that
if the Plan is terminated during any Purchase Period, any amounts in a
Participant's Cash Account will be returned to the Participant.
<PAGE>
20. EFFECTIVE DATE
--------------
The Amendment and Restatement will become effective as of January 12,
1999; provided, however, that if the amendments to Section 4(a) of the Amendment
and Restatement is not approved by the holders of a majority of the voting power
of the outstanding shares of Stock within 12 months from the date the Amendment
and Restatement is adopted by the Board, participation in the Plan by all
Contingent Participants will be automatically terminated, and all amounts in
such Contingent Participants' Cash Accounts shall be returned to them as soon as
reasonably practicable thereafter. Participation in the Plan by Employees who,
immediately prior to the Merger, were employed by HBOC, or by any subsidiary (as
defined in Code Section 424(f)) designated by the Board of Directors of HBOC as
eligible to participate shall continue in full force and effect and shall not be
affected by any such failure to obtain stockholder approval.
21. GOVERNMENT AND OTHER REGULATIONS
--------------------------------
a. In General. The Plan, and the grant and exercise of the rights to
----------
purchase shares of the Stock hereunder, and the Company's obligation to sell and
deliver shares of Stock, will be subject to all applicable federal, state and
foreign laws, rules and regulations, and to such approvals by any regulatory or
government agency as may, in the opinion of counsel for the Company, be
required.
b. Withholding Obligations. Each Participant shall, no later than the
-----------------------
date as of which the value of any purchase right granted under the Plan first
becomes includible in the gross income of the Participant for federal income tax
purposes, pay to the Company, or make arrangements satisfactory to the Company,
regarding payment of any federal, state, or local taxes of any kind required by
law to be withheld with respect to such purchase right. The obligations of the
Company under the Plan shall be conditional on the making of such payments or
arrangements, and the Company shall, to the extent permitted by law, have the
right to deduct any such taxes from any payment of any kind otherwise due to the
Participant.
22. INDEMNIFICATION OF COMMITTEE
----------------------------
In addition to such other rights of indemnification as they have as
directors or as members of the Committee, the members of the Committee will be
indemnified by the Company against reasonable expenses (including, without
limitation, attorneys' fees) actually and necessarily incurred in connection
with the defense of any action, suit or proceeding, or in connection with any
appeal, to which they or any of them may be a party by reason of any action
taken or failure to act under or in connection with the Plan or any right
granted hereunder, and against all amounts paid by them in settlement thereof
(provided such settlement is approved to the extent required by and in the
manner provided by the Bylaws of the Company relating to indemnification of
directors) or paid by them in satisfaction of a judgment in any such action,
suit or proceeding, except in relation to matters as to which it will be
adjudged in such action, suit or proceeding that such Committee member did not
act in good faith and in a manner he reasonably believed to be in or not opposed
to the best interests of the Company.
