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As filed with the Securities and Exchange Commission on December 22, 2000
Registration No. 333-________
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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 33-0284454
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
5120 SHOREHAM PLACE 92122
SAN DIEGO, CALIFORNIA (Zip Code)
(Address of principal executive offices)
DAOU SYSTEMS, INC. EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plan)
JAMES T. ROBERTO
PRESIDENT AND CHIEF EXECUTIVE OFFICER
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)
WITH A COPY TO:
ALAN HARVEY
BAKER & MCKENZIE
1301 MCKINNEY STREET, SUITE 3300
HOUSTON, TEXAS 77010
(713) 427-5000
CALCULATION OF REGISTRATION FEE
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TITLE OF EACH CLASS OF PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
SECURITIES TO BE AMOUNT TO BE OFFERING PRICE PER AGGREGATE OFFERING REGISTRATION
REGISTERED (1) REGISTERED (1) SECURITY (2) PRICE (2) FEE
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Common Stock, $.001 par value per 1,500,000 Shares $ 35/64 $ 820,313 $ 206.00
share
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(1) These shares represent shares of common stock of DAOU Systems, Inc. (the
"Company"), $.001 par value per share (the "Common Stock"), which have come
available for issuance under the DAOU Systems, Inc. Employee Stock Purchase
Plan (the "Plan"). Pursuant to Rule 416 promulgated under the Securities
Act of 1933, as amended (the "Securities Act"), there are also being
registered such additional shares of Common Stock as may become issuable
pursuant to the anti-dilution provisions of the Plan.
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c) and (h) promulgated under the Securities Act on the
basis of the average of the high and low sale prices of the Common Stock on
December 20, 2000, as reported on the Nasdaq Stock Market.
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PART II
INFORMATION REQUIRED IN THIS REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents, which have been filed with the Securities and
Exchange Commission (the "Commission") by DAOU Systems, Inc., a Delaware
corporation (the "Company"), are incorporated herein by reference and made a
part hereof:
(a) The Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 1999;
(b) The Company's Quarterly Reports on Form 10-Q for the quarters
ended March 31, 2000, June 30, 2000 and September 30, 2000;
and
(c) The description of the Company's Common Stock, par value
$.001, contained in the Company's Registration Statement on
Form 8-A filed with the Commission on January 29, 1997,
including any amendment filed for the purpose of updating this
description.
All documents 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"), subsequent to the effective date of this Registration Statement, prior to
the filing of a post-effective amendment to this Registration Statement
indicating that all securities offered hereby have been sold or deregistering
all securities then remaining unsold, shall be deemed to be incorporated by
reference herein and to be a part hereof from the date of filing of such
documents. Any statement contained herein or in any document incorporated or
deemed to be incorporated by reference herein shall be deemed to be modified or
superseded for purposes of this Registration Statement to the extent that a
statement contained herein or in any other subsequently filed document which
also is or is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any such statement so modified or superseded shall
not be deemed to constitute a part of this Registration Statement, except as so
modified or superseded.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Exculpation
Section 102(b)(7) of the Delaware General Corporation Law permits a
corporation to include in its certificate of incorporation a provision
eliminating or limiting the personal liability of a director to the corporation
or its stockholders for monetary damages for breach of fiduciary duty as a
director, provided that such provision may not eliminate or limit the liability
of a director for any breach of the director's duty of loyalty to the
corporation or its stockholders, for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, for any
unlawful payment of dividends, or unlawful stock purchase or redemption, or for
any transaction from which the director derived an improper personal benefit.
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The Company's Amended and Restated Certificate of Incorporation limits
the personal liability of a director of the Company and its stockholders for
monetary damages for a breach of fiduciary duty as a director to the fullest
extent permitted by the Delaware General Corporation Law.
Indemnification
Section 145 of the Delaware General Corporation Law, Article VI of the
Company's Amended and Restated Certificate of Incorporation, Article VII of the
Company's Bylaws, and indemnification agreements entered into between the
Company and its directors and officers provide for the indemnification of
officers, directors, employees and agents under certain circumstances.
Section 145 of the Delaware General Corporation Law permits a
corporation to, under certain circumstances, indemnify any director, officer,
employee, or agent of a corporation who was or is a party or is threatened to be
made a party to any threatened, pending, or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative, other than
an action by or in the right of the corporation. A corporation may thus
indemnify the person against expenses, attorneys' fees, judgments, fines and
amounts paid in settlement that are actually and reasonably incurred in the suit
or proceeding.
Article VI of the Company's Amended and Restated Certificate of
Incorporation and Article VII of the Company's Bylaws provides for the
indemnification by the Company in the manner and to the full extent permitted by
Delaware law.
In addition to the indemnification provided for in the Company's
Amended and Restated Certificate of Incorporation and the Company's Bylaws, the
Company has entered into indemnification agreements with its directors and
officers.
The Company has also purchased liability insurance policies covering
directors and officers of the Company.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
Unless otherwise indicated below as being incorporated by reference to
another filing of the Company with the Commission, each of the following
exhibits is filed herewith:
4.1 DAOU Systems, Inc. 2000 Employee Stock Purchase Plan
5.1 Opinion of Baker & McKenzie
23.1 Consent of Baker & McKenzie (included in Exhibit 5.1)
23.2 Consent of Ernst & Young LLP
23.3 Consent of Deloitte & Touche LLP
24.1 Power of Attorney (see signature pages of Registration
Statement)
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ITEM 9. UNDERTAKINGS
(a) The Company hereby undertakes:
(1) To file, during any period in which offers or sales
are being made, a post-effective amendment to this Registration
Statement 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.
(2) That, for 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.
(3) 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.
(b) The Company hereby undertakes that, for purposes of determining any
liability under the Securities Act, each filing of the Company'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 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
Company has been advised that in the opinion of the 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 Company of expenses
incurred or paid by a director, officer or controlling person of the Company 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 Company 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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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 December 22, 2000.
DAOU SYSTEMS, INC.
By: /S/ JAMES T. ROBERTO
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Name: JAMES T. ROBERTO
Title: President and Chief Executive Officer
POWER OF ATTORNEY
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated. Each person whose signature appears below
hereby authorizes and appoints Georges J. Daou and James T. Roberto, and each of
them, either one of whom may act without joinder of the other, as his
attorney-in-fact to sign on his behalf individually and in the capacity stated
below all amendments and post-effective amendments to this Registration
Statement as that attorney-in-fact may deem necessary or appropriate.
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SIGNATURE TITLE DATE
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/S/ GEORGES J. DAOU Chairman of the Board December 22, 2000
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GEORGES J. DAOU
/S/ JAMES T. ROBERTO
--------------------------------------- President, Chief Executive Officer, and December 22, 2000
JAMES T. ROBERTO Director (Principal Executive Officer)
/S/ NEIL R. CASSIDY
--------------------------------------- Executive Vice President and Chief Financial December 22, 2000
NEIL R. CASSIDY Officer (Principal Financial and Accounting
Officer)
Director December 22, 2000
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DAVID W. JAHNS
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SIGNATURE TITLE DATE
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Director
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KEVIN M. FICKENSCHER December 22, 2000
/S/ LARRY D. GRANDIA Director
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LARRY D. GRANDIA December 22, 2000
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EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION
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4.1 DAOU Systems, Inc. 2000 Employee Stock Purchase Plan
5.1 Opinion of Baker & McKenzie
23.1 Consent of Baker & McKenzie (included in Exhibit 5.1)
23.2 Consent of Ernst & Young LLP
23.3 Consent of Deloitte & Touche LLP
24.1 Power of Attorney (see signature pages of Registration Statement)
