-----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, WoBCHPR2EIf+3NU88Ho89weCW/4nEEDkOifLFJp0X/sWoHBh8FUlHCStYzvuyN7s 6e3hchCRAKNKZtfAv9f6VQ== 0001047469-98-043626.txt : 19981211 0001047469-98-043626.hdr.sgml : 19981211 ACCESSION NUMBER: 0001047469-98-043626 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 5 FILED AS OF DATE: 19981210 EFFECTIVENESS DATE: 19981210 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: SEC FILE NUMBER: 333-68687 FILM NUMBER: 98767450 BUSINESS ADDRESS: STREET 1: 301 PERIMETER CTR N CITY: ATLANTA STATE: GA ZIP: 30346 BUSINESS PHONE: 7703936000 MAIL ADDRESS: STREET 1: 301 PERIMETER CTR N CITY: ATLANTA STATE: GA ZIP: 30346 S-8 1 FORM S-8 As filed with the Securities and Exchange Commission on December 10, 1998 Registration No. 333-______ SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 Form S-8 Registration Statement Under The Securities Act of 1933 -------------------- HBO & COMPANY (Exact name of registrant as specified in its charter) Delaware (State or other jurisdiction of incorporation or organization) 37-0986839 (I.R.S. Employer Identification No.) 301 Perimeter Center North Atlanta, Georgia 30346 (Address of principal executive offices) (zip code) -------------------- Access Health, Inc. Nonqualified Stock Option Agreements (Full title of the plan) -------------------- Charles W. McCall HBO & Company 301 Perimeter Center North Atlanta, Georgia 30346 (Name and address of agent for service) -------------------- (770) 393-6000 (Telephone number, including area code, of agent for service) -------------------- WITH COPY TO: Lisa A. Stater, Esq. Jones, Day, Reavis & Pogue 3500 SunTrust Plaza 303 Peachtree Street, N.E. Atlanta, Georgia 30308-3242 (404) 521-3939 Exhibit Index Appears on Page 9 Page 1 of 17 Pages Calculation of Registration Fee
Proposed maxi- Proposed maxi- Title of securities to Amount to be mum offering price mum aggregate Amount of be registered registered per share offering price registration fee - ----------------------- ----------------------- ----------------------- ----------------------- ---------------------- Common Stock, $.05 par value, and 181,250 shares $28.3138(1) $5,131,876.25(1) $1,426.66(2) Preferred Share Purchase Rights(3)
(1) Estimated solely for calculating the amount of the registration fee, pursuant to Rule 457(h) under the Securities Act of 1933, as amended. Because all shares are presently subject to options, the offering price is based upon the actual weighted average exercise price. (2) The registration fee of $1,426.66 is calculated by multiplying the product of $28.3138, the weighted average exercise price per share, and 181,250, the number of shares subjected to option, by .000278. (3) The Preferred Share Purchase Rights, which are attached to the shares of Common Stock being registered, will be issued for no additional consideration; no additional registration fee is required. Page 2 of 17 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 17 Pages PART II INFORMATION NOT REQUIRED IN PROSPECTUS Item 3. Incorporation of Documents by Reference. HBO & Company (the "Company") hereby incorporates by reference into this Registration Statement the following documents: (a) The Company's Annual Report on Form 10-K for the fiscal year ended December 31, 1997. (b) All other reports filed with the Securities and Exchange Commission (the "Commission") pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the "1934 Act"), since December 31, 1997. (c) The description of the Common Stock and Preferred Share Purchase Rights contained in the Company's Registration Statement on Form 8-A filed with the Commission on August 19, 1981, as amended, and February 19, 1991, as amended, respectively. All documents subsequently filed by the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the 1934 Act prior to the filing of a post-effective amendment which indicates that all securities have been sold or which deregisters all securities then remaining unsold shall be deemed to be incorporated by reference in this Registration Statement and to be a part hereof from the date of filing such documents. Item 4. Description of Securities. Inapplicable. Item 5. Interests of Named Experts and Counsel. Inapplicable. Item 6. Indemnification of Directors and Officers. Set forth below is a description of certain provisions of the Certificate of Incorporation of the Company, the By-Laws, as amended (the "By-Laws") of the Company and the General Corporation Law of the State of Delaware (the "Delaware General Corporation Law"), as such provisions relate to the indemnification of the directors and officers of the Company. This description is intended only as a summary and is qualified in its entirety by reference to the Certificate of Incorporation, the By-Laws and the Delaware General Corporation Law. The Company's By-Laws (Article IX, Section 1) provide that every person who was or is a party or is threatened to be made a party to or is involved in any action, suit, or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that he or a person of whom he is the legal representative is or was a director or officer of the corporation or is or was serving at the request of the corporation or for its benefit as a director or officer of another corporation, or as its representative in a partnership, joint venture, trust or other enterprise, shall be indemnified and held harmless to the fullest extent legally permissible under and pursuant to any procedure specified in the Delaware General Corporation Law, as amended from time to time, against all expenses, liabilities and losses (including attorneys' fees, judgments, fines and amounts paid or to be paid in settlement) reasonably incurred or suffered by him in connection therewith. Such right of indemnification shall be a contract right that may be enforced in any manner by such person. Such right of indemnification shall not be exclusive of any other right which such directors, officers or representatives may have or hereafter acquire and, without limiting the generality of such statement, they shall be entitled to their respective rights of indemnification under any bylaw, Page 4 of 17 Pages 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 17 Pages Item 8. Exhibits.
Exhibit Number Description - ------ ----------- Included in Part II of the Registration Statement: 4.1 Access Health, Inc. Stock Option Agreement with 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. 4.2 Access Health Inc. Stock Option Agreement with Julie A. Brooks 5 Opinion of Counsel re: legality 15 Letter re: unaudited interim financial information 23(a) Consent of Counsel (included in Exhibit 5) 23(b) Consent of independent public accountants 24 Power of Attorney (included in signature page)
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 17 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 10th day of December, 1998. HBO & COMPANY By: /s/ Charles W. McCall ---------------------- Charles W. McCall Chairman, President and Chief Executive Officer POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Charles W. McCall and David Held, jointly and severally, each in his own capacity, his true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments to this Registration Statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite or necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that each of said attorneys-in-fact and agents, or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the date indicated:
Signature Title Date --------- ----- ----- /s/ Charles W. McCall Chairman, President and Chief Executive December 10, 1998 - -------------------- Officer (Principal Executive Officer) Charles W. McCall /s/ David Held Senior Vice President, Chief December 10, 1998 - -------------- Financial Officer and Treasurer David Held (Principal Financial Officer and Principal Accounting Officer) /s/ Alfred C. Eckert III Director December 10, 1998 - ------------------------ Alfred C. Eckert III /s/ Philip A. Incarnati Director December 10, 1998 - ----------------------- Philip A. Incarnati
Page 7 of 17 Pages Signature Title Date --------- ----- ----- /s/ Alton F. Irby III Director December 10, 1998 - --------------------- Alton F. Irby III /s/ M. Christine Jacobs Director December 10, 1998 - ----------------------- M. Christine Jacobs /s/ Gerald E. Mayo Director December 10, 1998 - ------------------ Gerald E. Mayo /s/ James V. Napier Director December 10, 1998 - ------------------- James V. Napier /s/ Donald C. Wegmiller Director December 10, 1998 - ----------------------- Donald C. Wegmiller Page 8 of 17 Pages EXHIBIT INDEX
Exhibit Page Number Description Number - ------ ----------- ------ Included in Part II of the Registration Statement: 4.1 Access Health, Inc. Stock Option Agreement with 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. 4.2 Access Health Inc. Stock Option Agreement with Julie A. Brooks 10 5 Opinion of Counsel re: legality 15 15 Letter re: unaudited interim financial information 16 23(a) Consent of Counsel (included in Exhibit 5) 23(b) Consent of independent public accountants 17 24 Power of Attorney (included in signature page) 7
Page 9 of 17 Pages EX-4.2 2 EX. 4.2 Exhibit 4.2 ACCESS HEALTH, INC. STOCK OPTION AGREEMENT I. NOTICE OF STOCK OPTION GRANT Julie A. Brooks You have been granted an option to purchase Common Stock of Access Health, Inc., a Delaware corporation (the "Company"), subject to the terms and conditions of this Option Agreement, as follows: Grant Number 000455 ----------- Date of Grant 05/01/97 ----------- Vesting Commencement Date 05/01/98 ----------- Exercise Price per Share $ 14,375 ----------- Total Number of Shares Granted 33,000 ----------- Total Exercise Price $474,375.00 ----------- Type of Option: NSO ----------- Term/Expiration Date 05/01/07 -----------
Vesting Schedule: This Option shall be exercisable cumulatively to the extent of one-fifth of the total number of shares subject to the Option on the Vesting Commencement Date set forth above and an additional one-fifth of the total shares subject to the Option at the end of each 12-month period thereafter. Notwithstanding the foregoing the Option shall become fully exercisable in the event of any of the following (1) the stockholders of the Company approve a merger or consolidation of the Company with any other corporation or entity, other than a merger or consolidation which would result in the voting securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into voting securities of the surviving entity) at least fifty percent (50%) of the total voting power represented by the voting securities of the Company or such surviving entity outstanding immediately after such merger or consolidation, or the stockholders of the Company approve a plan of complete liquidation of the Company or an agreement for the sale or disposition by the Company of all or substantially all the Company's assets, except a sale to an entity of which at least fifty percent (50%) of the total voting power represented by the voting securities of such entity are held by stockholders of the Company at the time of such sale, (ii) the acquisition by a Person as beneficial owner (as such terms are defined in the Securities Exchange Act of 1934, as amended), directly or indirectly, of securities of the Company representing fifty percent (50%) or more of the total voting power represented by the Company's then outstanding voting securities, or 1999) a majority of the Board of Directors of the Company in office at the beginning of any twenty-four (24) month period is replaced during the course of such twenty-four (24) month period other than by voluntary resignation of individual directors in the ordinary course of business and such replacement was not initiated by the Board of Directors of the Company as Page 10 of 17 Pages constituted at the beginning of such twenty-four (24) month period and as changed during such period to add directors approved by the incumbent Board of Directors. Termination Period: This Option may be exercised to the extent exercisable or the date of termination for one (1) year after the date of termination of employment or consulting relationship, or such longer period as may be applicable upon death or Disability of Optionee as provided in Sections 8 and 9 of this Agreement, but in no event later than the Term/Expiration Date as provided above. II. AGREEMENT 1. Definitions. As used herein, the following definitions shall apply: (a) "Administrator" means the Board or any of its Committees, which Committees shall be constituted to satisfy Applicable Laws. (b) "Applicable Law" means the legal requirements relating to the administration of stock option plans under U. S. state corporate laws, U.S. federal and state securities laws, the Code and the applicable laws of any foreign country or jurisdiction where Options are, or will be, granted under the Plan. (c) "Board" means the Board of Directors of the Company. (d) "Code" means the Internal Revenue Code of 1986, as amended. (e) "Committee" means a Committee appointed by the Board. (f) "Common Stock" means the Common Stock of the Company. (g) "Consultant" means any person, including an advisor, engaged by the Company to render services and who is compensated for such services. (h) "Director" means a member of the Board. (i) "Disability" means total and permanent disability as defined in Section 22(c)(3) of the Code. (j) "Employee" means any person employed by the Company. (k) "Fair Market Value" means, as of any date, the closing sales price (or the closing bid, if no sales were reported) as quoted on such exchange or system for the last market trading day prior to the time of determination, as reported in The Wall Street Journal or such other source as the Administrator deems reliable. (l) "Nonstatutory Stock Option" means an Option not intended to qualify as an incentive stock option within the meaning of Section 422 of the Code. (m) "Officer" means a person who is an officer of the Company within the meaning of Section 16 of the Securities Exchange Act of 1934, as amended. (n) "Share" means a share of the Common Stock, as adjusted in accordance with Section 11 of this Agreement. 2. Grant of Option. The Administrator hereby grants to the Optionee named in the Notice of Grant attached as Part I of this Agreement (the "Optionee"), an option (the "Option") to purchase a number of Shares, as set forth in the Notice of Grant, at the exercise price per share set forth in the Notice of Grant (the "Exercise Price"). Page 11 of 17 Pages This Option is not intended to qualify as an Incentive Stock Option under Section 422 of the Code. 3. Exercise of Option. (a) Right to Exercise. This Option is exercisable during its term in accordance with the Vesting Schedule set out in the Notice of Grant and the applicable provisions of this Option Agreement. In the event of Optionee's death, disability or other termination of Optionee's employment or consulting relationship, the exercisability of the Option is governed by the applicable provisions of this Option Agreement and any employment agreement between Optionee and the Company. (b) Method of Exercise. This Option is exercisable by delivery of an exercise notice, in the form attached as Exhibit A (the "Exercise Notice"), which shall state the election to exercise the Option, the number of Shares in respect of which the Option is being exercised (the "Exercised Shares"), and such other representations and agreements as may be required by the Company pursuant to the provisions of the Plan. The Exercise Notice shall be signed by the Optionee and shall be delivered in person or by certified mail to the Secretary of the Company. The Exercise Notice shall be accompanied by payment of the aggregate Exercise Price as to all Exercised Shares. This Option shall be deemed to be exercised upon receipt by the Company of such fully executed Exercise Notice accompanied by such aggregate Exercise Price. No Shares shall be issued pursuant to the exercise of this Option unless such issuance and exercise complies with all relevant provisions of law and the requirements of any stock exchange or quotation service upon which the Shares are then fisted. Assuming such compliance, for income tax purposes the Exercised Shares shall be considered transferred to the Optionee on the date the Option is exercised with respect to such Exercised Shares. 4. Method of Payment. Payment of the aggregate Exercise Price shall be by any of the following or a combination thereof at the election of the Optionee: (a) cash; or (b) check; or (c) delivery of a properly executed exercise notice together with such other documentation as the Administrator and the broker, if applicable, shall require to effect an exercise of the Option and delivery to the Company of the sale or loan proceeds required to pay the exercise price; or (d) surrender of other Shares which (i) in the case of Shares acquired upon exercise of an option, have been owned by the Optionee for mom than six (6) months on the date of surrender, and (ii) have a Fair Market Value on the date of surrender equal to the aggregate Exercise Price of the Exercised Shares. 5. Non-Transferability of Option. This Option may not be transferred in any manner otherwise than by will or by the laws of descent or distribution and may be, exercised during the lifetime of Optionee only by the Optionee. The terms of this Option Agreement shall be binding, upon the executors, administrators, heirs, successors and assigns of Optionee. 6. Term of Option. This Option may be exercised only within the terms set out in the Notice of Grant, and may be exercised during such term only in accordance with the terms of this Option Agreement. 7. Termination of Employment. Upon termination of an Optionee's status as an Employee or Consultant (other than as a result of the Optionee's death or Disability), the Optionee may exercise his or her Option, but only within one (1) year of the last month of payments made by the Company to Optionee in connection with termination of such status ("Termination Payment Date") and only to the extent that the Optionee was entitled to exercise it at the date of such Termination Payment Date (and in no event later than the expiration of the term of such Option as set forth in this Agreement). To the extent that Optionee was not entitled to exercise an Option at the date of such Termination Payment Date, and to the extent that the Optionee does not exercise such Option (to Page 12 of 17 Pages the extent otherwise so entitled) within the time specified herein, the Option shall terminate. For purposes of this Section 7, an Optionee's change in status from: (i) Employee to Consultant, (ii) Consultant to Employee, or (iii) Employee or Consultant to Officer shall not, unless otherwise specified by the Administrator, be considered a termination of status as an Employee or Consultant. 8. Disability of Optionee. Upon termination of an Optionee's status as an Employee or Consultant as a result of the Optionee's Disability, the Optionee, may exercise his or her Option, but only within one (1) year of the last month of payments made by the Company to Optionee in connection with termination of such status ("Disability Termination Date") and only to the extent that the Optionee was entitled to exercise it at the date of such Disability Termination Date (and in no event later than the expiration of the term of such Option as set forth in this Agreement). To the extent that Optionee was not entitled to exercise an Option at the date of such Disability Termination Date, and to the extent that the Optionee does not exercise such Option (to the extent otherwise so entitled) within the time specified herein, the Option shall terminate. 9. Death of Optionee. In the event of an Optionee's death, the Optionee's estate or a person who acquired the right to exercise the deceased Optionee's Option by bequest or inheritance may exercise the Option, but only within one (1) year of such date and only to the extent that the Optionee was entitled to exercise it at the date of death (and in no event later than the expiration of the term of such Option as set forth in this Agreement). To the extent that Optionee was not entitled to exercise an Option at the date of death, and to the extent that the Optionee's estate or a person who acquired the right to exercise such Option does not exercise such Option (to the extent otherwise so entitled) within the time specified herein, the Option shall terminate. 10. Adjustment Upon Changes in Capitalization, Dissolution, Merger or Asset Sale. (a) Changes in Capitalization. Subject to any required action by the stockholders of the Company, the number of shares of Common Stock covered by the Option, as well as the price per share of Common Stock covered by each such outstanding Option, shall be proportionately adjusted for any increase or decrease in the number of issued shares of Common Stock resulting from a stock split, reverse stock split, stock dividend, combination or reclassification of the Common Stock, or any other increase or decrease in the number of issued shares of Common Stock effected without receipt of consideration by the Company, provided, however, that conversion of any convertible securities of the Company shall not be deemed to have been "effected without receipt of consideration." Such adjustment shall be made by the Board whose determination in that respect shall be final, binding and conclusive. Except as expressly provided herein, no issuance by the Company of shares of stock of any class, or securities convertible into shares of stock of any class, shall affect, and no adjustment by reason thereof shall be made with respect to, the number or price of shares of Common Stock subject to the Option. (b) Dissolution or Liquidation. In the event of the proposed dissolution or liquidation of the Company. the Administrator shall notify the Optionee at least fifteen (15) days prior to the effective date of such proposed transaction. The Administrator may, in the exercise of its sole discretion, declare that the Option shall terminate as of a date determined by the Administrator and give the Optionee the right to exercise his or her Option as to all or any part of the optioned stock, including Shares which would not otherwise be exercisable. To the extent it has not been previously exercised, the Option will terminate immediately prior to the consummation of such proposed action. (c) Merger or Asset Sale. In the event of a merger of the Company with or into another corporation, or the sale of substantially all of the assets of the Company, the Option will be assumed or an equivalent option or right substituted by the successor corporation or a Parent or Subsidiary of the successor corporation. 11. Tax Consequences. Some of the federal and state tax consequences relating to this Option, as of the date of this Option, are set forth below. THIS SUMMARY IS NECESSARILY INCOMPLETE AND THE TAX LAWS AND REGULATIONS ARE SUBJECT TO CHANGE. THE OPTIONEE SHOULD CONSULT A TAX ADVISER BEFORE EXERCISING THIS OPTION OR DISPOSING OF THE SHARES. Page 13 of 17 Pages (a) Exercising the Nonqualified Stock Option ("NSO"). This Option does not qualify as an ISO. As a consequence, the optionee may incur regular federal income tax and state income tax liability upon exercise. The Optionee, will be treated as having received compensation income (taxable at ordinary income tax rates) equal to the excess, if any, of the fair market value of the Exercised Shares on the date of exercise over their aggregate Exercise Price. If the Optionee is an employee, the Company will be required to withhold from his or her compensation or collect from Optionee and pay to the applicable taxing authorities an amount equal to a percentage of this compensation income at the time of exercise. (b) Disposition of Shares. If the Optionee holds NSO Shares for at least one year, any gain realized on disposition of the Shares will be treated as long-term capital gain for federal income tax purposes. By your signature and the signature of the Company's representative below, you and the Company agree that this Option is granted and governed by the terms and conditions of this Option Agreement. Optionee has reviewed this Option Agreement in its entirety, has had an opportunity to obtain the advice of counsel prior to executing this Option Agreement and fully understands all provisions of the Option Agreement. Optionee hereby agrees to accept as binding, conclusive and final all decisions or interpretations of the Administrator upon any questions relating to the Option Agreement. OPTIONEE: ACCESS HEALTH, INC. /s/ By: /s/ - ------------------------------- -------------------------- Signature Julie A. Brooks Title: President - ------------------------------- -------------------------- Print Name Page 14 of 17 Pages EX-5 3 EX. 5 Exhibit 5 JONES, DAY, REAVIS & POGUE 3500 SunTrust Plaza 303 Peachtree Street, N.E. Atlanta, Georgia 30308-3242 (404) 521-3939 December 10, 1998 HBO & Company 301 Perimeter Center North Atlanta, Georgia 30346 Gentlemen: We have acted as counsel to HBO & Company, a Delaware corporation (the "Company"), in connection with the registration of 181,250 shares of Common Stock, $.05 par value per share, of the Company (the "Shares"), to be issued by the Company in accordance with the Access Health, Inc. Stock Option Agreements with Thomas E. Gardner and Julie A. Brooks (the "Agreements") 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 Agreements, 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 15 of 17 Pages EX-15 4 EX. 15 Exhibit 15 [ARTHUR ANDERSEN LLP] LETTER REGARDING UNAUDITED INTERIM FINANCIAL INFORMATION We are aware that HBO & Company has incorporated by reference in this Registration Statement on Form S-8, its Form 10-Q for the quarters ended March 31, 1998, June 30, 1998 and September 30, 1998, which includes our reports dated May 6, 1998, July 20, 1998 and October 23, 1998, respectively, covering the unaudited interim financial information contained therein. Pursuant to Regulation C of the Securities Act of 1933 (the "Act"), those reports are not considered to be a part of the Registration Statement prepared or certified by our firm within the meaning of Sections 7 and 11 of the Act. /s/ Arthur Andersen LLP Arthur Andersen LLP Atlanta, Georgia December 9, 1998 Page 16 of 17 Pages EX-23.B 5 EX. 23(B) Exhibit 23(b) [ARTHUR ANDERSEN LLP] CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS As independent public accounts, we hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of our reports dated February 6, 1998 included or incorporated by reference in HBO & Company's Form 10-K for the year ended December 31, 1997. /s/ Arthur Andersen LLP Arthur Andersen LLP Atlanta, Georgia December 9, 1998 Page 17 of 17 Pages -----END PRIVACY-ENHANCED MESSAGE-----