<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON NOVEMBER 17, 1997
REGISTRATION STATEMENT NO. 333-
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------------------
DAOU SYSTEMS, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 330284454
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
5120 SHOREHAM PLACE
SAN DIEGO, CALIFORNIA 92122
(619) 452-2221
(Address and telephone number, including area code, of principal executive
offices)
----------------------
EXECUTIVE STOCK OPTION AGREEMENT
(Full title of the plans)
----------------------
DANIEL J. DAOU
PRESIDENT
DAOU SYSTEMS, INC.
5120 SHOREHAM PLACE
SAN DIEGO, CALIFORNIA 92122
(619) 452-2221
(Name, address and telephone number, including area code, of agent for service)
----------------------
THIS REGISTRATION STATEMENT SHALL BECOME EFFECTIVE IMMEDIATELY
UPON FILING WITH THE SECURITIES AND EXCHANGE COMMISSION.
----------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF SECURITIES AMOUNT TO BE OFFERING PRICE AGGREGATE OFFERING AMOUNT OF
TO BE REGISTERED REGISTERED (1) PER UNIT (2) PRICE (1)(2) REGISTRATION FEE
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<S> <C> <C> <C> <C>
Common Stock, $0.001 par value
per share.................... 140,300 $4.28 $600,484 $200
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(1) This Registration Statement shall also cover any additional shares of Common Stock which become issuable by reason of any stock
dividend, stock split, recapitalization or other similar transaction effected without the receipt of consideration which
results in an increase in the number of the Registrant's outstanding shares of Common Stock.
(2) Estimated solely for the purposes of calculating the registration fee in accordance with Rule 457(h). The proposed maximum
aggregate offering price is based on the aggregate price of $600,484 which the 140,300 options currently
outstanding may be exercised.
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- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
DAOU Systems, Inc. (the "Registrant") hereby incorporates by reference
into this Registration Statement the following documents previously filed with
the Securities and Exchange Commission (the "Commission"):
(i) The Registrant's Registration Statement on Form SB-2, filed with
the Commission on August 5, 1997, as amended, Registration
Statement No. 333-32873, under the Securities Act of 1933, as
amended (the "Securities Act").
(ii) The description of the Common Stock contained in the Registrant's
Form 8-A, dated January 29, 1997 and filed pursuant to Section 12
of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), for registration of the Common Stock, including any
amendment or report filed for the purpose of updating such
description.
(iii) The Registrant's Quarterly Report on Form 10-QSB for the
quarter ended March 31, 1997, filed with the Commission on
April 23, 1997.
(iv) The Registrant's Current Report on Form 8-K filed with the
Commission on July 9, 1997.
(v) The Registrant's Quarterly Report on Form 10-QSB for the quarter
ended June 30, 1997, filed with the Commission on July 16,
1997.
(vi) The Registrant's Current Report on Form 8-K filed with the
Commission on July 18, 1997.
(vii) The Registrant's Current Report on Form 8-K filed with the
Commission on August 11, 1997.
(viii) The Registrant's Current Report on Form 8-K/A filed with the
Commission on August 13, 1997.
(ix) The Registrant's Current Report on Form 8-K filed with the
Commission on September 29, 1997.
(x) The Registrant's Current Report on Form 8-K filed with the
Commission on October 29, 1997.
(xi) The Registrant's Quarterly Report on Form 10-QSB for the quarter
ended September 30, 1997, filed with the Commission on
November 4, 1997.
All documents filed by the Registrant pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act after the date of this Registration
Statement and prior to the filing of a post-effective amendment which indicates
that all securities offered hereby have been sold or which deregisters all
securities then remaining unsold, shall be deemed to be incorporated by
reference into this Registration Statement and to be a part hereof from the date
of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law permits a
corporation to indemnify its directors, officers, employees and other agents in
terms sufficiently broad to permit indemnification (including reimbursement for
expenses) under certain circumstances for liabilities arising under the
Securities Act.
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The Registrant's Certificate of Incorporation and Bylaws provide for
the indemnification of directors and officers to the fullest extent permitted by
the Delaware General Corporation Law and authorize the indemnification by the
Registrant of other officers, employees and other agents as set forth in the
Delaware General Corporation Law. The Registrant has entered into
indemnification agreements with its directors and executive officers, in
addition to the indemnification provided for in the Registrant's Bylaws.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
--------
4.1* -- Registrant's Amended and Restated Certificate of Incorporation.
4.2* -- Registrant's Bylaws.
4.3* -- Specimen Stock Certificate.
5.1 -- Opinion of Baker & McKenzie.
23.1 -- Consent of Ernst & Young LLP, independent auditors.
23.2 -- Consent of Baker & McKenzie -- Included in Exhibit 5.1.
24.1 -- Power of Attorney -- Reference is made to page II-4 of this
Registration Statement.
99.1 -- Executive Stock Option Agreement, dated November 11, 1996.
- -------------------------
* Incorporated by reference from the Registrant's Form SB-2 Registration
Statement. No. 333-18155, filed with the Commission on December 18, 1996,
as amended.
ITEM 9. UNDERTAKINGS.
A. The undersigned Registrant hereby undertakes:
(1) 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 this 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 this Registration Statement,
and (iii) to include any material information with respect to the plan of
distribution not previously disclosed in this Registration Statement or any
material change to such information in this Registration Statement;
II-2
<PAGE>
provided, however, (x) that clauses (1)(i) and (1)(ii) shall not apply if 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 into this Registration
Statement;
(2) 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 therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof; and
(3) to remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold upon the
termination of the Registrant's 1996 Stock Option Plan.
B. 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 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 this 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.
C. 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.
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<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8, and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of San Diego, State of California, on this 17th day of
November, 1997.
DAOU SYSTEMS, INC.
By: /s/ DANIEL J. DAOU
----------------------------------
Daniel J. Daou
President
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints Georges J. Daou, Daniel J. Daou
and Fred C. McGee, as his attorney-in-fact, each with full power of
substitution, for him or her in any and all capacities, to sign any and all
amendments to this Registration Statement, and to file the same, with exhibits
thereto and other documents in connection therewith, with the Securities and
Exchange Commission, hereby ratifying and confirming his or her signature as it
may be signed by said attorney-in-fact to any and all amendments to this
Registration Statement.
In accordance with the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on November 17, 1997.
SIGNATURE TITLE
--------- -----
/s/ GEORGES J. DAOU Chief Executive Officer and
- ------------------------------------------ Chairman of the Board (Principal
Georges J. Daou Executive Officer)
/s/ DANIEL J. DAOU President and Director
- ------------------------------------------
Daniel J. Daou
/s/ FRED C. McGEE Senior Vice President, Chief
- ------------------------------------------ Financial Officer and Secretary
Fred C. McGee (Principal Financial and Accounting
Officer)
/s/ DAVID W. JAHNS Director
- ------------------------------------------
David W. Jahns
/s/ BERNARD F. McDONAGH Director
- ------------------------------------------
Bernard F. McDonagh
/s/ JOHN H. MORAGNE Director
- ------------------------------------------
John H. Moragne
II-4
<PAGE>
EXHIBIT INDEX
4.1* -- Registrant's Amended and Restated Certificate of Incorporation.
4.2* -- Registrant's Bylaws.
4.3* -- Specimen Stock Certificate.
5.1 -- Opinion of Baker & McKenzie.
23.1 -- Consent of Ernst & Young LLP, independent auditors.
23.2 -- Consent of Baker & McKenzie -- Included in Exhibit 5.1.
24.1 -- Power of Attorney -- Reference is made to page II-4 of this
Registration Statement.
99.1 -- Executive Stock Option Agreement, dated November 11, 1996.
- -----------------
* Incorporated by reference from the Registrant's Form SB-2 Registration
Statement. No. 333-18155, filed with the Commission on December 18, 1996,
as amended.
<PAGE>
November 17, 1997
DAOU Systems, Inc.
5120 Shoreham Place
San Diego, California 92122
Re: DAOU Systems, Inc. (the "Company") -- Registration Statement on Form S-8
Ladies and Gentlemen:
We have examined the Registration Statement on Form S-8 to be filed by you
with the Securities and Exchange Commission on or about November 17, 1997, in
connection with the registration under the Securities Act of 1933, as
amended, of an aggregate of 140,300 shares of the Company's Common Stock (the
"Shares") reserved for issuance under that certain Executive Stock Option
Agreement dated November 11, 1997, by and between the Company and Robert
McNeill (the "Option Agreement").
As your legal counsel, we have examined the Company's Certificate of
Incorporation and Bylaws, the Option Agreement, records of corporate
proceedings with respect to the Option Agreement and such documents as we
have deemed necessary in connection with the issuance of the Shares.
Based upon the foregoing examinations and upon applicable laws, we are of the
opinion that upon the receipt by the Company of full payment for the Shares in
accordance with the terms and conditions of the Plan, the Shares, when offered
and sold in the manner provided for in the Registration Statement, will be
legally issued, fully paid and nonassessable.
We consent to the use of this opinion as an exhibit to said Registration
Statement and further consent to the use of our name wherever appearing in said
Registration Statement and amendments thereto.
Very truly yours,
BAKER & MCKENZIE
/s/ BAKER & MCKENZIE
<PAGE>
EXHIBIT 23.1
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement
(Form S-8) pertaining to the Executive Stock Option Agreement dated November
11, 1996 between Robert McNeill and DAOU Systems, Inc. of our report dated
January 14, 1997 with respect to the financial statements of DAOU Systems,
Inc. included in its Registration Statement No. 333-18155 (Form SB-2) for the
year ended December 31, 1996, filed with the Securities and Exchange
Commission.
San Diego, California
November 14, 1997
<PAGE>
EXHIBIT 99.1
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE SOLD, PLEDGED, OR
OTHERWISE TRANSFERRED WITHOUT AN EFFECTIVE REGISTRATION THEREOF UNDER
SUCH ACT OR AN OPINION OF COUNSEL, SATISFACTORY TO THE CORPORATION AND
ITS COUNSEL, THAT SUCH REGISTRATION IS NOT REQUIRED.
EXECUTIVE STOCK OPTION AGREEMENT
(NON-STATUTORY)
This Executive Stock Option Agreement is made and entered as of the
11th day of November, 1996. This option is being issued outside of the
Company's 1996 Stock Option Plan (the "PLAN"), however, any terms not defined
in this Agreement will have the meanings ascribed to such terms in the Plan.
The Board of Directors of the Company has selected Robert J. McNeill (the
"OPTIONEE") to receive the following grant of a nonstatutory stock option
("STOCK OPTION") to purchase shares of the common stock of DAOU SYSTEMS,
INC., a California corporation (the "CORPORATION"), on the terms and
conditions set forth below to which Optionee accepts and agrees:
1. Stock Options Granted:
Number of Shares Subject to Option 100,000 shares
Date of Grant November 11, 1996
Vesting Commencement Date November 11, 1996
Exercise Price Per Share $6.00
Expiration Date November 11, 2006
2. The Stock Option is granted to purchase the number of shares of
authorized but unissued common stock of the Corporation specified in SECTION
1 (the "SHARES"). The Stock Option will expire, and all rights to exercise
it will terminate on the earliest of: (a) the date provided below in SECTIONS
5 AND 6, and (b) the Expiration Date. The number of shares subject to the
Stock Option granted pursuant to this Agreement will be adjusted as provided
in the Plan. This Stock Option is intended by the Corporation and the
Optionee to be a Nonstatutory Stock Option and does not qualify for any
special tax benefits to the Optionee.
3. Except as otherwise set forth herein, the Stock Option will be
exercisable in all respects in accordance with the terms of the Plan as they
relate to Non-Statutory Stock Options which are incorporated herein by this
reference. Optionee acknowledges having received and read a copy of the Plan.
<PAGE>
4. Optionee will have the right to exercise the Stock Option in
accordance with the following schedule:
(a) The Stock Option may not be exercised in whole or in part at any
time prior to the end of the first full year following the Vesting
Commencement Date.
(b) Optionee may exercise the Stock Option as to twenty percent (20%)
of the Shares at the end of the first full year following the Vesting
Commencement Date.
(c) Optionee may exercise the Stock Option as to an additional
twenty percent (20%) of the Shares at the end of each full year thereafter
following the Vesting Commencement Date.
(d) If at any time after the end of the first full year following
the Vesting Commencement Date a change in control (as defined in the
following sentence) occurs, then Optionee may exercise the Stock Option as to
seventy percent (70%) of the Shares which are not otherwise vested on the
date of the change in control. For purposes of this SECTION 4, "change in
control" means any person becoming the beneficial owner (as defined in Rule
13d-3 under the Exchange Act), directly or indirectly, of more than fifty
percent (50%) of the Common Stock of the Corporation outstanding at such
time, without the prior approval of the Board, but does not include any
changes in ownership upon any firm commitment underwritten offering of its
securities to the general public.
(e) The right to exercise the Stock Option will be cumulative.
Optionee may buy all, or from time to time any part, of the maximum number of
shares which are exercisable under the Stock Option, but in no case may
Optionee exercise the Stock Option with regard to a fraction of a share, or
for any share for which the Stock Option is not exercisable.
5. The Stock Option will lapse and becomes unexercisable in full on the
earliest of the following events:
(a) the first anniversary of the Optionee's death, as provided below
in SECTION 6;
(b) the first anniversary of the date the Optionee ceases to be an
Employee due to total and permanent disability, as provided below in SECTION
6;
(c) the date otherwise provided below in SECTION 6, unless the
Committee otherwise extends such period before the applicable expiration date;
(d) the date provided in Section 9 of the Plan for a transaction
described in such Section; or
(e) the date the Optionee files or has filed against him or her a
petition in bankruptcy.
2
<PAGE>
6. If Optionee ceases to be an Employee for any reason other than his or
her death or disability, the Optionee will have the right, subject to the
other provisions of this Agreement, to exercise the Stock Option for thirty
(30) days after his or her termination of employment, but not beyond the
otherwise applicable term of the Option and only to the extent that on such
date of termination of employment the Optionee's right to exercise such
Option had vested, and at the end of such thirty (30)-day period the Stock
Option will expire, and all rights to exercise it will terminate.
(a) For purposes of this SECTION 6, the employment relationship will
be treated as continuing intact while the Optionee is an active employee of
the Corporation or any Affiliate, or is on military leave, sick leave, or
other bona fide leave of absence to be determined in the sole discretion of
the Committee.
(b) If Optionee dies while an Employee, or after ceasing to be an
Employee but during the period while he or she could have exercised an Option
under the preceding sub-Sections (a) or (b), the Option granted to the
Optionee may be exercised, to the extent it has vested at the time of death
and subject to the Plan, at any time within twelve (12) months after the
Optionee's death, by the executors or administrators of his or her estate or
by any person or persons who acquire the Option by will or the laws of
descent and distribution, but not beyond the otherwise applicable term of the
Option.
(c) If Optionee ceases to be an Employee due to becoming totally and
permanently disabled within the meaning of Section 22(e)(3) of the Code, the
Stock Option may be exercised to the extent it has vested at the time of
cessation and, subject to the Plan, at any time within twelve (12) months
after the Optionee's termination of employment, but not beyond the otherwise
applicable term of the Stock Option.
7. The Optionee agrees to comply with all laws, rules, and regulations
applicable to the grant and exercise of the Stock Option and the sale or
other disposition of the common stock of the Corporation received pursuant to
the exercise of such Stock Option.
8. The Stock Option will not become exercisable unless and until the
shares exercisable under the Stock Option have been qualified under the
California Corporate Securities Law of 1968 pursuant to a permit application
filed with the California Department of Corporations or unless the exercise
is otherwise exempt from the qualification requirements of such law. The
Stock Option is conditioned upon the Optionee's representation, which
Optionee hereby confirms as of the date of this Agreement and which Optionee
must confirm as of the date of any exercise of all or any part of the Stock
Option, that:
(a) Optionee understands that both this Stock Option and any shares
purchased upon its exercise are securities, the issuance of which require
compliance with state and Federal securities laws;
(b) Optionee understands that neither the Options nor the Shares
have been registered under the Securities Act of 1933 (the "ACT") in reliance
upon a specific exemption
3
<PAGE>
contained in the Act which depends upon Optionee's bona fide investment
intention in acquiring these securities; that Optionee's intention is to hold
these securities for Optionee's own benefit for an indefinite period; that
Optionee has no present intention of selling or transferring any part thereof
(recognizing that the Stock Option is not transferable) and that certain
restrictions may exist on transfer of the shares issued upon exercise of the
Stock Option;
(c) Optionee understands that the Shares issued upon exercise of
this Stock Option, in addition to other restrictions on transfer, must be
held indefinitely unless subsequently registered under the Act, or unless an
exemption from registration is available; that Rule 701 and Rule 144, two
exemptions from registration which may be available, are only available after
the satisfaction of certain conditions and require the presence of a U.S.
public market for such Shares; that no certainty exists that a U.S. public
market for the shares will exist, and that otherwise Optionee may have to
sell the Shares pursuant to another exemption from registration which
exemption may be difficult to satisfy; and
(d) The Corporation will not be under any obligation to issue any
Shares upon the exercise of this Stock Option unless and until the
Corporation has determined that:
(i) it and Optionee have taken all actions required to register
such Shares under the Securities Act, or to perfect an exemption from the
registration requirements thereof;
(ii) any applicable listing requirement of any stock exchange
on which such Shares are listed has been satisfied; and
(iii) all other applicable provisions of state and federal law
have been satisfied.
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IN WITNESS WHEREOF, each of the parties hereto has executed this Stock
Option Agreement, in the case of the Corporation by its duly authorized
officer, as of the date and year written above.
OPTIONEE DAOU SYSTEMS, INC.,
a California corporation
/s/ Robert J. McNeill By: /s/ Daniel J. Daou
- ----------------------------------- -----------------------------------
(signature) (signature)
DANIEL J. DAOU
ROBERT J. MCNEILL Its: PRESIDENT
- -----------------------------------
(Type or Print Name)
Address: -------------------------
-------------------------
-------------------------
[SIGNATURE PAGE TO DAOU SYSTEMS, INC.
EXECUTIVE STOCK OPTION AGREEMENT]
5
