-----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, HkazO0lbbDxkQlOrconoYOZW36lkqJtyMLwWms8wK2fW/ZfgFtnX01aFBzKeFlPB rumjcFhPXQ4RZo+KIhJ1jg== 0000929624-99-000034.txt : 19990113 0000929624-99-000034.hdr.sgml : 19990113 ACCESSION NUMBER: 0000929624-99-000034 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 6 FILED AS OF DATE: 19990112 EFFECTIVENESS DATE: 19990112 FILER: COMPANY DATA: COMPANY CONFORMED NAME: MCKESSON CORP CENTRAL INDEX KEY: 0000927653 STANDARD INDUSTRIAL CLASSIFICATION: WHOLESALE-DRUGS PROPRIETARIES & DRUGGISTS' SUNDRIES [5122] IRS NUMBER: 943207296 STATE OF INCORPORATION: DE FISCAL YEAR END: 0331 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-70501 FILM NUMBER: 99505249 BUSINESS ADDRESS: STREET 1: ONE POST ST STREET 2: MCKESSON PLAZA CITY: SAN FRANCISCO STATE: CA ZIP: 94104 BUSINESS PHONE: 4159838300 MAIL ADDRESS: STREET 1: ONE POST ST CITY: SAN FRANCISCO STATE: CA ZIP: 94104 FORMER COMPANY: FORMER CONFORMED NAME: SP VENTURES INC DATE OF NAME CHANGE: 19940728 S-8 1 FORM S-8 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) Delaware 94-3207296 (State or Other Jurisdiction of Incorporation or Organization) (I.R.S. Employer Identification No.)
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) 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
(Full Titles of the Plans) 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
(Name and Address of Agent for Service) (415) 983-8300 (Telephone Number, including Area Code, of Agent for Service) -------------------------- CALCULATION OF REGISTRATION FEE
============================================================================================================================ 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) - ---------------------------------------------------------------------------------------------------------------------------- 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 ============================================================================================================================
(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. 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- 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- 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- 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- 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 * Director - ---------------------------------- Carl E. Reichardt * Director - ---------------------------------- Alan Seelenfreund * Director - ---------------------------------- Jane E. Shaw *By: /s/ Nancy A. Miller ------------------------------ Nancy A. Miller Attorney-in-fact 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) 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) 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. EX-4.3 2 CERT. OF AMENDMENT OF RESTATED CERT. OF INCORPORATION 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. 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 EX-5.1 3 OPINION OF IVAN D. MEYERSON 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 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 EX-23.2 4 INDEPENDENT AUDITORS' CONSENT 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 EX-24.1 5 POWER OF ATTORNEY 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 /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 EX-99.25 6 EMPLOYEE STOCK PURCHASE PLAN 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 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) 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. 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 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 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 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. 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. -----END PRIVACY-ENHANCED MESSAGE-----