EXHIBIT 8
, 1997
Enterprise Systems, Inc.
0000 Xxxxx Xxxx Xxxx
Xxxxxxxx, XX 00000-0000
Attn: Xxxx X. Xxxxxxx
Re: Agreement of Merger dated Xxxxx 00, 0000
Xxxxxxx XXX & Xxxxxxx, XXX & Company of Georgia
and Enterprise Systems, Inc.
Ladies and Gentlemen:
This opinion is being delivered in connection with the Agreement of Merger
(the "Merger Agreement"), dated as of March 13, 1997, by and among HBO &
Company, a Delaware corporation ("Parent"), HBO & Company of Georgia, a Delaware
corporation ("Purchaser"), and Enterprise Systems, Inc., a Delaware corporation
("Acquired Company"). Pursuant to the Merger Agreement, Acquired Company will
merge with and into Purchaser (the "Merger"), and Purchaser will be the
survivor. This opinion is issued with respect to certain Federal income tax
consequences of the Merger. Reference to such opinion is made in the Proxy
Statement/Prospectus (the "Proxy Statement/Prospectus") of Parent and Acquired
Company, contained in Part I of the Registration Statement on Form S-4 (the
"Registration Statement") to which this opinion appears as Exhibit 8.
All capitalized terms not otherwise defined herein have the meaning assigned
to them in the Merger Agreement. All section references, unless otherwise
indicated, are to the Internal Revenue Code of 1986, as amended (the "Code").
We have acted as legal counsel to Acquired Company in connection with the
Merger. As such, and for the purpose of rendering this opinion, we have examined
(or will examine on or prior to the Effective Time of the Merger) and are
relying (or will rely) upon (without any independent investigation or review
thereof) the truth and accuracy, at all relevant times, of the statements,
covenants, representations and warranties contained in the following documents:
1. The Merger Agreement;
2. The Proxy Statement/Prospectus;
3. Representations made to us by Parent and Purchaser in a letter
reproduced as Attachment A hereto;
4. Representations made to us by Acquired Company in a letter
reproduced as Attachment B hereto;
5. Such other documents, records and matters of law as in our judgment
were necessary or appropriate.
In addition, we have reviewed the form of the opinion of counsel, received
by Parent from Parent's counsel with respect to the tax consequences of the
proposed transaction.
In connection with rendering this opinion, we have assumed (without any
independent investigation or review thereof) that original documents (including
signatures) are authentic, that documents submitted to us as copies conform to
the original documents, and that there has been (or will be by the Effective
Time of the Merger) due execution and delivery of all documents where due
execution and delivery are prerequisites to the effectiveness thereof.
Based on our examination of the foregoing items and subject to the
assumptions, exceptions, limitations and qualifications set forth herein, we are
of the opinion that, for Federal income tax purposes:
1. The Merger will qualify as a reorganization pursuant to Section
368(a) of the Code;
2. No gain or loss will be recognized by Acquired Company as a result
of the consummation of the Merger; and
3. No gain or loss will be recognized by an Acquired Company
stockholder upon the exchange of Acquired Company Common Stock for shares of
Parent Common Stock pursuant to the Merger, except on the receipt of cash in
lieu of a fractional share interest in Parent Common Stock.
In addition to the assumptions set forth above, this opinion is subject to
the exceptions, limitations and qualifications set forth below.
1. This opinion represents and is based upon our best judgment
regarding the application of Federal income tax laws arising under the Code,
existing judicial decisions, administrative regulations and published
rulings and procedures. Our opinion is not binding upon the Internal Revenue
Service or the courts, and we cannot provide assurance that the Internal
Revenue Service will not assert a contrary position. Furthermore, we cannot
provide assurance that future legislative, judicial or administrative
changes would not, on either a prospective or retroactive basis, adversely
affect the accuracy of the conclusions stated herein. Moreover, we undertake
no responsibility to advise you of any new developments in the application
or interpretation of the Federal income tax laws as they might relate to
this opinion.
2. This opinion addresses only whether the Merger will qualify as a
reorganization under Section 368(a) of the Code and the tax consequences
listed above. The opinion does not address any other Federal, state, local
or foreign tax consequences that may result from the Merger or any other
transaction.
3. No opinion is expressed as to any transaction other than the Merger
as described in the Merger Agreement. Moreover, we have assumed that all the
transactions described in the Merger Agreement have been or will be
consummated in accordance with the terms of the Merger Agreement and without
waiver or breach of any material provision thereof and that all of the
representations, warranties, statements and assumptions upon which we have
relied remain true and accurate at all relevant times. In the event that any
of these assumptions upon which we have relied is incorrect, this opinion
may be adversely affected and be unable to be relied upon.
4. This opinion has been delivered to you for the purpose of satisfying
the condition set forth in Section 7.5 of the Merger Agreement and is
intended solely for your benefit. It may not be relied upon for any other
purpose or by any other person or entity, and may not be made available to
any other person or entity, without our prior written consent.
5. We hereby consent to the filing of this opinion as Exhibit 8 to the
Registration Statement on Form S-4 (File No. 333- ) filed with the
Securities and Exchange Commission by Parent and the references to this firm
under the headings "Certain Federal Income Tax Consequences" and "Certain
Legal Matters" in such Registration Statement.
Our opinions are based upon our analysis of current case law, provisions of
the Internal Revenue Code and Treasury Regulations and Internal Revenue Service
rulings which we deem relevant as of this date. All of the foregoing are subject
to change, which may be effective retroactively. We have no obligation to advise
you of any such changes or their impact on our opinion, if it were issued at the
time of such changes.
A tax opinion is not a guarantee of the tax consequences of a transaction,
and the Internal Revenue Service may disagree with our conclusions.
We are not authorized to practice law in any state other than the State of
Illinois. Accordingly, our opinion is limited to matters of the laws of the
State of Illinois and federal law.
Very truly yours,
XXXXXXXX & XXXXXX, LTD.
