-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, TwnX2PwfZrnQyBMW/wn2BBm/WYmPgak4Ji7kH+ola/8meXXH72z3lTY5+D4/1LvC wIphUlr8t4JGhUYuc1io0g== 0000912057-96-018365.txt : 19960928 0000912057-96-018365.hdr.sgml : 19960928 ACCESSION NUMBER: 0000912057-96-018365 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 6 FILED AS OF DATE: 19960820 EFFECTIVENESS DATE: 19960908 SROS: NASD FILER: COMPANY DATA: COMPANY CONFORMED NAME: HBO & CO CENTRAL INDEX KEY: 0000310377 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-COMPUTER INTEGRATED SYSTEMS DESIGN [7373] IRS NUMBER: 370986839 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 333-10479 FILM NUMBER: 96618040 BUSINESS ADDRESS: STREET 1: 301 PERIMETER CTR N CITY: ATLANTA STATE: GA ZIP: 30346 BUSINESS PHONE: 4043936000 MAIL ADDRESS: STREET 1: 301 PERIMETER CTR N CITY: ATLANTA STATE: GA ZIP: 30346 S-8 1 S-8 As filed with the Securities and Exchange Commission on August 20, 1996 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) ____________________ CYCARE SYSTEMS, INC. EMPLOYEE STOCK PURCHASE PLAN (Full title of the plan) ____________________ James A. Gilbert 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 One Peachtree Center 303 Peachtree Street, N.E. Atlanta, Georgia 30308-3242 (404) 521-3939 Exhibit Index Appears on Page 9 Page 1 of 19 Pages Calculation of Registration Fee
Proposed maxi- Proposed maxi- Title of securities Amount to be mum offering mum aggregate Amount of to be registered registered price per share offering price registration fee - ------------------------------------------------------------------------------------------------------------------------------------ Common Stock $.05 par value and 30,000 $ 61.75 (1) $ 1,852,500 (1) $ 638.80 Preferred Share shares Purchase Rights(2)
(1) Estimated solely for calculating the amount of the registration fee, pursuant to Rule 457(h) under the Securities Act of 1933, as amended and computed based upon the last sale price on the NASDAQ National Market for the Common Stock as of August 19, 1996, a date within five business days prior to the date of filing hereof. (2) 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 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 PART II INFORMATION NOT REQUIRED IN PROSPECTUS Item 3. INCORPORATION OF DOCUMENTS BY REFERENCE. 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, 1995. (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, 1995. (c) The description of the Common Stock and Preferred Share Purchase Rights contained in the Company's Registration Statement on Form 8-A filed with the Commission on August 19, 1981, as amended, and February 19, 1991, as amended, respectively. All documents subsequently filed by the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the 1934 Act prior to the filing of a post-effective amendment which indicates that all securities have been sold or which deregisters all securities then remaining unsold shall be deemed to be incorporated by reference in this Registration Statement and to be a part hereof from the date of filing such documents. Item 4. DESCRIPTION OF SECURITIES. Inapplicable. Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL. Inapplicable. Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS. Set forth below is a description of certain provisions of the Certificate of Incorporation of the Company, the By-Laws, as amended (the "By-Laws") of the Company and the General Corporation Law of the State of Delaware (the "Delaware General Corporation Law"), as such provisions relate to the indemnification of the directors and officers of the Company. This description is intended only as a summary and is qualified in its entirety by reference to the Certificate of Incorporation, the By-Laws and the Delaware General Corporation Law. The Company's By-Laws (Article IX, Section 1) provide that every person who was or is a party or is threatened to be made a party to or is involved in any action, suit, or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that he or a person of whom he is the legal representative is or was a director or officer of the corporation or is or was serving at the request of the corporation or for its benefit as a director or officer of another corporation, or as its representative in a partnership, joint venture, trust or other enterprise, shall be indemnified and held harmless to the fullest extent legally permissible under and pursuant to any procedure specified in the Delaware General Corporation Law, as amended from time to time, against all expenses, liabilities and losses (including attorneys' fees, judgments, fines and amounts paid or to be paid in settlement) reasonably incurred or suffered by him in connection therewith. Such right of indemnification shall be a contract right that may be enforced in any manner by such person. Such right of indemnification shall not be exclusive of any other right which such directors, officers or representatives may have or hereafter acquire and, without limiting the Page 4 of 19 Pages generality of such statement, they shall be entitled to their respective rights of indemnification under any bylaw, agreement, vote of stockholders, provision of law or otherwise, as well as their rights under such article. Article IX, Section 2 of the Company's By-Laws provides that the Board of Directors may cause the corporation to purchase and maintain insurance on behalf of any person who is or was a director or officer of the corporation, or is or was serving at the request of the corporation as a director or officer of another corporation, or as its representative in a partnership, joint venture, trust or other enterprise against any liability asserted against such person and incurred in any such capacity or arising out of such status, whether or not the corporation would have the power to indemnify such person. With respect to indemnification of officers and directors, Section 145 of the Delaware General Corporation Law provides that a corporation shall have the power to indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative, or investigative (other than an action by or in the right of the corporation) by reason of the fact that he is or was a director, officer, employee, or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee, or agent of another corporation, partnership, joint venture, trust, or other enterprise, against expenses (including attorneys' fees), judgments, fines, and amounts paid in settlement actually and reasonably incurred by him in connection with such action, suit or proceeding if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful. Under this provision of the Delaware General Corporation Law, the termination of any action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the person did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, had reasonable cause to believe that his conduct was unlawful. Furthermore, the Delaware General Corporation Law provides that a corporation shall have power to indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending, or completed action or suit by or in the right of the corporation to procure a judgment in its favor by reason of the fact that he is or was a director, officer, employee, or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee, or agent of another corporation, partnership, joint venture, trust, or other enterprise, against expenses (including attorneys' fees), actually and reasonably incurred by him in connection with the defense or settlement of such action or suit if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the corporation except that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable to the corporation unless and only to the extent that the Court of Chancery or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability, but in view of all circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the Court of Chancery or such other court shall deem proper. In addition, the Delaware General Corporation Law was amended in 1986 to enable a Delaware corporation to include in its certificate of incorporation a provision eliminating or limiting a director's liability to the corporation or its stockholders for monetary damages for breaches of a director's fiduciary duty of care. The statutory amendment provides, however, that (a) liability for duty or loyalty, (b) acts or omissions not in good faith or involving intentional misconduct or knowing violations of law, (c) the unlawful purchase or redemption of stock or unlawful dividends or (d) the right of improper personal benefits could not be eliminated or limited in this manner. The Company's Certificate of Incorporation has been amended to contain provisions substantially similar to those contained in the amended Delaware General Corporation Law. Item 7. EXEMPTION FROM REGISTRATION CLAIMED. Inapplicable. Page 5 of 19 Pages Item 8. EXHIBITS. Exhibit Number Description - ------- ----------- Included in Part II of the Registration Statement: 4(a) CyCare Systems, Inc. Employee Stock Purchase Plan 4(b) First Amendment to the CyCare Systems, Inc. Employee Stock Purchase Plan 5 Opinion of Counsel re: legality 15 Letter re: unaudited interim financial information 23(a) Consent of Counsel (contained in Exhibit 5) 23(b) Consent of independent public accountants 24 Power of Attorney (included in signature page) 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 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 19th day of August, 1996. HBO & COMPANY By: /s/ Charles W. McCall ---------------------------------------- Charles W. McCall President and Chief Executive Officer POWER OF ATTORNEY ----------------- KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints James A. Gilbert and Jay P. Gilbertson, jointly and severally, each in his own capacity, his true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments to this Registration Statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite or necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that each of said attorneys-in-fact and agents, or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the date indicated:
Signature Title Date --------- ----- ---- /s/ Charles W. McCall Director, President and Chief Executive August 19, 1996 - ----------------------------------- Officer (Principal Executive Officer) Charles W. McCall /s/ Jay P. Gilbertson Senior Vice President - Finance, Chief August 19, 1996 - ----------------------------------- Financial Officer, Principal Accounting Jay P. Gilbertson Officer, Treasurer and Assistant Secretary (Principal Financial Officer and Principal Accounting Officer) /s/ Holcombe T. Green, Jr. Chairman of the Board of Directors August 19, 1996 - ----------------------------------- Holcombe T. Green, Jr.
Page 7 of 19 Pages
Signature Title Date --------- ----- ---- /s/ Alfred C. Eckert III Director August 19, 1996 - ----------------------------------- Alfred C. Eckert III /s/ Philip A. Incarnati Director August 19, 1996 - ----------------------------------- Philip A. Incarnati /s/ Alton F. Irby III Director August 19, 1996 - ----------------------------------- Alton F. Irby III /s/ Gerald E. Mayo Director August 19, 1996 - ----------------------------------- Gerald E. Mayo /s/ James V. Napier Director August 19, 1996 - ----------------------------------- James V. Napier /s/ Charles E. Thoele Director August 19, 1996 - ----------------------------------- Charles E. Thoele /s/ Donald C. Wegmiller Director August 19, 1996 - ----------------------------------- Donald C. Wegmiller
Page 8 of 19 Pages EXHIBIT INDEX ------------- Exhibit Page Number Description Number - ------- ----------- ------ Included in Part II of the Registration Statement: 4(a) CyCare Systems, Inc. Employee Stock Purchase Plan 10 4(b) First Amendment to the CyCare Systems, Inc. Employee Stock 15 Purchase Plan 5 Opinion of Counsel re: legality 17 15 Letter re: unaudited interim financial information 18 23(a) Consent of Counsel (contained in Exhibit 5) 17 23(b) Consent of independent public accountants 19 24 Power of Attorney (included in signature page) 7 Page 9 of 19 Pages EX-4.A 2 EXHIBIT 4.A EXHIBIT 4(a) EMPLOYEE STOCK PURCHASE PLAN 1. PURPOSE. The purpose of the CyCare Systems, Inc. Employee Stock Purchase Plan (hereinafter called the "Plan"), is to provide employees of CyCare Systems, Inc., a Delaware corporation, or any successor corporation, (hereinafter called the "Company"), and its affiliated companies with an opportunity to acquire a proprietary interest in the Company through the purchase of common stock of the Company, with a par value of $.01 per share (the "stock"). It is the intention of the Company to have the Plan qualify as an "employee stock purchase plan" under Section 423 of the Internal Revenue Code of 1943 (the "Code"). The provisions of the Plan shall, accordingly, be construed so as to extend and limit participation in a manner consistent with the requirements of that Section of the Code. 2. DEFINITIONS. (a) "Base pay" means all compensation paid by the Company to the employee, (before withholding or other deductions), including regular straight time earnings plus payments for overtime, commissions, incentive compensation, bonuses, and other special payments. (b) "Employee" means any person, including an officer, who is customarily employed for more than 20 hours per week and more than five months in a calendar year by (1) the Company, or (2) any affiliated company, 50% or more of whose voting shares are owned directly or indirectly by the Company. 3. ELIGIBILITY. (a) Any employee as defined in Paragraph 2 who shall be employed by the Company on the date his participation in the Plan is to become effective shall be eligible to participate in the Plan, subject to the limitations imposed by Section 423(b) of the Internal Revenue Code of 1954. (b) Any provision of the Plan to the contrary notwithstanding, no employee shall be granted an option: (1) If, immediately after the grant, such employee would own shares, and/or hold outstanding options to purchase stock, possessing 5% or more of the total combined voting power or value of all classes of shares of the Company or of any subsidiary of the Company, as defined by Section 425(f) of the Code, taking into account in determining stock ownership, any stock owned by the brothers, sisters, spouse, ancestors or descendants of such employee and stock owned by corporations, partnerships, estates or trusts of which such employee is a shareholder, partner or beneficiary, as the case may be, as required by Section 425(d) of the Code; or (2) Which permits his rights to purchase shares under all employee stock purchase plans of the Company and its subsidiaries, as defined by Section 425(f) of the Code, to accrue at a rate which exceeds $25,000.00 determined by the fair market value of the shares (determined at the time such option is granted) for each calendar year in which such stock option is outstanding at any time, all determined in the manner provided by Section 423(b)(8) of the Code. 4. OFFERING DATES. THE Plan will be implemented by means of one or more offerings, each offering being one year in length. The first offering shall commence on a date determined by the Board, if a majority of the Directors then in office are ineligible to participate in the Plan, or a committee of Directors not eligible to participate in the Plan (the "Committee") designated by the Board to administer the Plan, on which date the Board shall allocate stock to the Plan; provided, however, that such date shall not be more than six months after the date on which stock of the Company is first offered for sale to the public and further provided that in no event shall the Plan become effective unless within twelve months of the date of its adoption by the Board, it has been approved at a duly called meeting of the Page 10 of 19 Pages stockholders of the Company. Subsequent offerings may be made by the Board at one year intervals after the date on which the first offering commences, and any such subsequent offering shall be one year in length as well. On or prior to the date on which any offering commences, the Board shall determine the number of shares allocated to the Plan which shall be available for purchase under said offer. Any of such shares which are not purchased under any such offering may be available for purchase in subsequent offerings if the Board so determines. 5. PARTICIPATION. (a) An eligible employee may become a participant by completing an authorization for a payroll deduction on the form provided by the Company and filing it with the payroll office during the thirty day period before the date the offering commences. An authorization shall become effective on the date that it is filed with the payroll office. (b) Payroll deductions for a participant shall commence on the date when the authorization for a payroll deduction becomes effective and shall end on the termination date of the offering to which such authorization is applicable unless sooner terminated as provided in Paragraph 10. (c) Participation in any offering under the Plan shall neither limit, nor require, participation in any other offering except that no employee may have more than one authorization for a payroll deduction in effect simultaneously. 6. PAYROLL DEDUCTIONS. (a) At the time a participant files an authorization for a payroll deduction, the participant shall elect to have deductions made from his pay on each payday during the time he is a participant in an offering at a rate not to exceed 10% of the base pay, as defined in Paragraph 2, which the participant is entitled to receive on such payday. (b) All payroll deductions made for a participant shall be credited to the participant's account under the Plan. A participant may not make any separate cash payment into such account. (c) A participant may discontinue his participation in the Plan as provided in Paragraph 10, but no other change can be made by a participant during an offering. 7. GRANTING OF OPTION. (a) On the offering date following the date when a participant's authorization for a payroll deduction becomes effective, he shall be granted an option for as many full shares as he will be able to purchase with the payroll deductions credited to his account during his participation in that offering. (b) The option price of shares purchased with payroll deductions made for a participant therein shall be the lower of: (1) 85% of the fair market value of the stock on the date the option is granted (which is the date on which the respective offering commences), or (2) 85% of the fair market value of the stock on the date of the option is exercised (which is the date the respective offering ends), but in no event shall the purchase price be less than the par value of the stock. 8. EXERCISE OF OPTION. (a) Unless a participant gives written notice to the company as hereinafter provided, his option for the purchase of shares with payroll deductions made during the applicable offering will be exercised automatically for him on the date on which said offering ends, if the participant is an employee on that date, for the purchase of the number of full shares which the accumulated payroll deductions in his account at that time will purchase at the Page 11 of 19 Pages applicable option price, such to the provisions of Paragraph 12. The balance in the account with interest thereon shall be paid to the participant. (b) By written notice to the Company during the 60 day period preceding the date on which an offering ends, a participant may elect, effective at the termination of said offering, to: (1) Withdraw all the accumulated payroll deductions in his or her account on the date the offering ends, with interest thereon; or (2) Exercise the option for a specified number of full shares less than the number of full shares which the accumulated payroll deductions in this account will purchase at the applicable option price and withdraw the balance of the accumulated payroll deductions in the account at that time, with interest thereon. 9. DELIVERY. As promptly as practicable after the termination of each offering, the Company will deliver to each participant, as appropriate, either the shares purchased upon the exercise of the option together with a cash payment equal to the balance credited to his account during such offering which was not used for the purchase of shares, with interest thereon, or a cash payment equal to the total of the payroll deductions credited to his account during such offering, with interest thereon. 10. WITHDRAWAL. (a) A participant may withdraw payroll deductions credited to his account under the Plan at any time by giving written notice to the Company. All of the participant's payroll deductions credited to his account, with interest thereon, will be paid to him promptly after receipt of his notice of withdrawal, and no further payroll deductions will be made from his pay except in accordance with an authorization for a new payroll deduction filed in accordance with Paragraph 5, for subsequent years. (b) A participant's withdrawal will not have any effect upon his eligibility to participate in a succeeding offering or in any similar plan which may hereafter be adopted by the Company. (c) Upon termination of the participant's employment for any reason, including retirement, the payroll deductions credited to his account with interest thereon will be returned to him, or, in the case of his death, to the person or person entitled thereto under Paragraph 14. 11. INTEREST. In any situation where the Plan specifically provides for the payment of interest on a participant's payroll deductions, such interest paid shall be simple interest, calculated at the rate of 6% per annum, computed on the balance in the participant's account at the end of each month. 12. STOCK. (a) The shares to be sold to participants under the Plan may, at the election of the Company, be either treasury shares or shares originally issued for such purpose. The maximum number of shares which shall be made available for sale under the Plan during the offerings under the Plan shall be 820,000 shares, subject to adjustment upon changes in capitalization of the Company as provided in Paragraph 17. If the total number of shares for which options are to be granted on any date in accordance with Paragraph 7 exceeds the number of shares then available under the Plan (after deduction of all shares for which options have been exercised or are then outstanding), the Company shall make a pro rata allocation of the shares available in as nearly a uniform manner as shall be practicable and as it shall determine to be equitable. (b) The participant will have no interest in shares covered by his option until such option has been exercised. Page 12 of 19 Pages (c) Shares to be delivered to a participant under the Plan will be registered in the name of the participant, or, if the participant so directs, by written notice to the Company prior to the termination date of the pertinent offering, in the names of the participant and one such other person as may be designed by the participant, as joint tenants with rights of survivorship, to the extent permitted by applicable law. 13. ADMINISTRATION OF THE PLAN. The Plan shall be administered so as to ensure that all participants have the same rights and privileges as are provided by Section 423(b)(5) of the Code. Members of the Committee may be appointed from time to time by the Board and shall be subject to removal by the Board. The decision of a majority in number of the members of the Committee in office at the time shall be deemed to be the decision of the Committee. The Board or the Committee, from time to time, may approve the forms of any documents or writings provided for in the Plan, and may adopt, amend and rescind rules and regulations not inconsistent with the Plan for carrying out the Plan and may construe the Plan. The Board or the Committee may delegate the responsibility for maintaining all or a portion of the records pertaining to participants' accounts to persons not affiliated with the Participating Companies. All expenses of administering the Plan shall be paid by the Participating Companies. 14. DESIGNATION OF BENEFICIARY. A participant may file a written designation of a beneficiary who is to receive any shares and cash to the participant's credit under the Plan in the event of such participant's death prior to delivery to him of such shares and cash. Such designation of beneficiary may be changed by the participant at any time by written notice. Upon the death of a participant and upon receipt by the Company of proof of the identity and existence at the participant's death of a beneficiary validly designated by him under the Plan, the Company shall deliver such shares and cash to such beneficiary. In the event of the death of a participant and in the absence of a beneficiary validly designated under the Plan who is living at the time of such participant's death, the Company shall deliver such shares and cash to the executor or administrator of the estate of the participant, or if no such executor or administrator has been appointed (to the knowledge of the Company) the Company, in its discretion, may deliver such shares and cash to the spouse or to any one or more dependents or relatives of the participant, or if no spouse, dependent, or relative is known to the Company, then to such other person as the Company may designate. No designated beneficiary shall prior to the death of the participant by whom he has been designated, acquire any interest in the shares or cash credited to the participant under the Plan. 15. TRANSFERABILITY. Neither payroll deductions credited to a participant's account nor any rights with regard to the exercise of an option or to receive shares under the Plan may be assigned, transferred, pledged, or otherwise disposed of in any way by the participant. Any such attempted assignment, transfer, pledge, or other disposition shall be without effect, except that the Company may treat such act as an election to withdraw funds in accordance with Paragraph 10. 16. CHANGES IN CAPITALIZATION. If any option under this Plan is exercised subsequent to any stock dividend, split-up, spin-off, recapitalization, merger, consolidation, exchange of shares, or the like, occurring after such option was granted, as a result of which shares of any class shall be issued in respect of the outstanding shares, or shares shall be changed into the same class or classes, the number of shares to which such option shall be applicable and the option price for such shares shall be appropriately adjusted by the Company. 17. AMENDMENT OR TERMINATION. The Board of Directors of the Company may at any time terminate or amend the Plan. No such termination can affect options previously granted, nor may an amendment make any change in any option theretofore granted which Page 13 of 19 Pages would adversely affect the rights of any participant nor may an amendment be made without prior approval of the shareholders of the Company if such amendment would: (a) Require the sale of more shares than are authorized under Paragraph 12 of the Plan; or (b) Permit payroll deductions at a rate in excess of 10% of a participant's base pay; or (c) Decrease the purchase price of the stock for any purchase period below the lower of 85% of the fair market value of the stock on the date the option is granted or 85% of the fair market value of the stock on the date the option is exercised. The Plan shall terminate in any event on such date as all of the shares allocated to the Plan shall have been purchased pursuant to the provisions of the Plan. 18. NOTICES. All notices or other communications by a participant to the Company under or in connection with the Plan shall be deemed to have been duly given when received by the Treasurer of the Company, or when received in the form specified by the Company at the location, or by the person, designated by the Company for the receipt thereof. 19. MISCELLANEOUS. Except as otherwise expressly provided herein, any authorization, election, notice of document under the Plan from an eligible employee or participant shall be delivered to his employer corporation and, subject to any limitations specified in the Plan, shall be effective when so delivered. The term "business day" shall mean any day other than Saturday, Sunday or a legal holiday in Iowa. The masculine pronoun shall include the feminine. The Plan, and the Company's obligation to sell and deliver shares of Stock hereunder, shall be subject to all applicable federal, state and foreign laws, rules and regulations, and to such approval by any regulatory or governmental agency as may, in the opinion of counsel for the Company, be required. Page 14 of 19 Pages EX-4.B 3 EXHIBIT 4.B EXHIBIT 4(b) FIRST AMENDMENT TO THE CYCARE SYSTEMS, INC. EMPLOYEE STOCK PURCHASE PLAN The CyCare Systems, Inc. Employee Stock Purchase Plan (the "Plan"), as amended through April 21, 1987, provides employees of CyCare Systems, Inc. (the "Company") with an opportunity to acquire a proprietary interest in the Company through the purchase of Common Stock of the Company. It is the intention of the Company to have the Plan qualify as an "employee stock purchase plan" under Section 423 of the Internal Revenue Code of 1943. The Plan was drafted in part to permit the shares of Common Stock to qualify for an exemption from certain provisions of Section 16 of the Securities and Exchange Act of 1934, as amended, and the regulations promulgated thereunder. The regulations under Section 16 have recently been amended by the Securities and Exchange Commission, including the regulations providing for the exemption from certain provisions of Section 16. By this Amendment, the Board of Directors is modifying the Plan as necessary to permit the shares of Common Stock issued pursuant to the Plan to continue to qualify for an exemption from Section 16. 1. The provisions of the First Amendment shall be effective as of March 14, 1991 except as otherwise provided herein. This Amendment shall only amend the provisions of the Plan as set forth herein and those provisions not expressly amended hereby shall be considered in full force and effect. 2. Paragraph 12 is amended by deleting the number "820,000" in the fourth line and inserting the number "1,020,000" therein. 3. The Plan is further amended by deleting Paragraph 17 in its entirety and substituting the following paragraph in lieu thereof: The Board of Directors of the Company may at any time terminate or amend the Plan, PROVIDED HOWEVER, that amendments to the Plan relating to the amount, price or timing of grants shall not be made more than once in any six month period, other than to comport with changes in the Internal Revenue Code, the Employee Retirement Income Security Act, or the rules thereunder. Notwithstanding the foregoing, no such termination can affect options previously granted, nor may an amendment make any change in any option theretofore granted which would adversely affect the rights of any participant, nor may an amendment be made without prior approval of the shareholders of the Company if such amendment would materially increase the benefits accruing to participants under the plan or materially modify the requirements as to eligibility for participation in the plan. Without limiting the generality of the foregoing, an amendment may not be made without prior shareholder approval if it would: (a) Require the sale of more shares than are authorized under Paragraph 12 of the Plan; or (b) Permit payroll deductions at a rate in excess of 10% of a participant's base pay; or (c) Decrease the purchase price of the stock for any purchase period below the lower of 85% of the fair market value of the stock on the date the option is granted or 85% of the fair market value of the stock on the date the option is exercised. The Plan shall terminate in any event on such date as all of the shares allocated to the Plan shall have been purchased pursuant to the provisions of the Plan. 4. Except as otherwise amended and supplemented by this First Amendment, CyCare Systems, Inc. hereby ratifies the Plan as originally established. Page 15 of 19 Pages Dated March 14, 1991 CYCARE SYSTEMS, INC. By: /s/ Mark R. Schonau ---------------------------------------- Mark R. Schonau, Secretary Page 16 of 19 Pages EX-5 4 EXHIBIT 5 EXHIBIT 5 August 19, 1996 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 30,000 shares of Common Stock, $.05 par value per share, of the Company (the "Shares"), to be issued by the Company in accordance with the CyCare Systems, Inc. Employee Stock Purchase 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 Registration Statement, 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 EX-15 5 EXHIBIT 15 EXHIBIT 15 LETTER REGARDING UNAUDITED INTERIM FINANCIAL INFORMATION We are aware that HBO & Company has incorporated by reference in its Form S-8 Registration Statement for the CyCare Systems, Inc. Employee Stock Purchase Plan its Form 10-Qs for the quarters ended March 31, 1996 and June 30, 1996, which include our reports dated April 16, 1996 and July 16, 1996, 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 Statements prepared or certified by our firm or reports prepared or certified by our firm within the meaning of Sections 7 and 11 of the Act. ARTHUR ANDERSEN LLP Atlanta, Georgia August 19, 1996 Page 18 of 19 Pages EX-23.(B) 6 EXHIBIT 23(B) EXHIBIT 23(b) CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS As independent public accountants, we hereby consent to the incorporation by reference in this Registration Statement of our reports dated February 6, 1996 incorporated by reference or included in HBO & Company's Annual Report on Form 10-K for the year ended December 31, 1995 and to all references to our firm included in this Registration Statement. ARTHUR ANDERSEN LLP Atlanta, Georgia August 19, 1996 Page 19 of 19 Pages -----END PRIVACY-ENHANCED MESSAGE-----