<PAGE>
As filed with the Securities and Exchange Commission on December 16, 1996
Registration No. 333- ______
- -----------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
RADIUS INC.
(Exact name of Registrant as specified in its charter)
CALIFORNIA 68-0101300
(State of incorporation) (I.R.S. employer
identification no.)
215 Moffett Park Drive
Sunnyvale, California 94089
(Address of principal executive office including zip code)
RADIUS INC.
1995 STOCK OPTION PLAN, AS AMENDED
(Full title of the Plan)
Cherrie L. Fosco
Vice President and Corporate Controller
Radius Inc.
215 Moffett Park Drive
Sunnyvale, California 94089
(408) 541-6100
(Name, address and telephone number of agent for service)
COPIES TO:
Edwin N. Lowe, Esq.
Jeffrey R. Vetter, Esq.
Fenwick & West
Two Palo Alto Square
Palo Alto, California 94306
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Amount Proposed Maximum Amount
Title of Securities to be Maximum Offering Aggregate of
to be Registered Registered Price Per Share Offering Price Registration Fee
- -------------------- ---------- ---------------- -------------- ----------------
<S> <C> <C> <C> <C>
Common Stock 3,566,620 $0.594 (1) $2,118,572.28 $641.99
</TABLE>
(1) Estimated pursuant to Rule 457(h) based on the last sales price of the
issuer's Common Stock on the Nasdaq SmallCap Market on December 10, 1996
solely for the purpose of calculating the amount of the registration fee.
<PAGE>
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed with the Securities and Exchange
Commission (the "Commission") are incorporated herein by reference:
(a) The Registrant's latest annual report filed pursuant to Section
13 or 15(d) of the Securities Exchange Act of 1934, as amended (the
"EXCHANGE ACT"), or the latest prospectus filed by the Registrant
pursuant to Rule 424(b) under the Securities Act of 1933, as amended
(the "SECURITIES ACT"), that contains audited financial statements for
the Registrant's latest fiscal year for which such statements have been
filed.
(b) All other reports filed pursuant to Section 13(a) or 15(d)
of the Exchange Act since the end of the fiscal year covered by the
annual report or the prospectus referred to in (a) above.
(c) The description of the Registrant's Common Stock contained
in the Registrant's registration statement filed under Section 12
of the Exchange Act, including any amendment or report filed for
the purpose of updating such description.
All documents subsequently 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
incorporated by reference herein and to be 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.
The provisions of Section 317 of the California Corporations Code,
Article V of the Registrant's Articles of Incorporation and Article VI of the
Registrant's Bylaws provide for indemnification to the fullest extent
permitted by law for expenses, judgments, fines, settlements and other
amounts actually and reasonably incurred in connection with any proceeding
arising by reason of the fact that any person is or was a director, officer
or employee of the Registrant. This indemnification may be sufficiently
broad to permit indemnification of the Registrant's officers and directors
for liabilities arising under the Securities Act of 1933, as amended. In
addition, Article IV of the Registrant's Articles of Incorporation provides
that the liability of the Registrant's directors shall be eliminated to the
fullest extent permissible under California law.
The Registrant has entered into Indemnity Agreements with each of its
current directors to give such directors additional contractual assurances
regarding the scope of the indemnification and liability limitations set
forth in the Registrant's Articles of Incorporation and Bylaws.
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<PAGE>
The Registrant currently carries a director and officer liability
insurance policy with a per claim and annual aggregate coverage limit of
$10,000,000. Insofar as indemnification for liabilities arising under the
Act may be permitted to directors, officers or controlling persons of the
Company pursuant to the foregoing provision, the Company has been informed
that, in the opinion of the Securities and Exchange Commission, such
indemnification is against public policy as expressed in the Act and is
therefore unenforceable.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable
ITEM 8. EXHIBITS
4.01 A Registrant's Sixth Amended and Restated Articles of
Incorporation (previously filed as an exhibit
to the Registrant's Annual Report on Form 10-K for the
fiscal year ended September 30, 1990, as filed on
December 24, 1990.)
B Certificate of Amendment of Registrant's Sixth Amended and
Restated Articles of Incorporation (previously filed as
an exhibit to the Company's Annual Report on Form 10-K for
the fiscal year ended September 30, 1995, as filed on
December 15, 1995).
C Certificate of Amendment of Registrant's Sixth Amended and
Restated Articles of Incorporation (previously filed as an
exhibit to the Registrant's Registration Statement on
Form S-1, as filed on September 20, 1996 (File No.
333-12417)).
D Certificate of Determination of Preferences of Series A
Convertible Preferred Stock of Radius Inc. (previously
filed as an exhibit to the Registrant's Registration
Statement on Form S-1, as filed on September 20, 1996 (File
No. 333-12417)).
4.02 Registrant's Bylaws, as amended to date (previously filed as an
exhibit to the Registrant's Registration Statement on Form S-8,
as filed on April 29, 1992 (File No. 33-47525)).
4.03 A Radius Inc. 1995 Stock Option Plan (previously filed as an
exhibit to the Company's Annual Report on Form 10-K for the
fiscal year ended September 30, 1995, as filed on
December 15, 1995).
B Amendment No. 1 to Radius Inc. 1995 Stock Option Plan.
C Amendment No. 2 to Radius Inc. 1995 Stock Option Plan.
5.01 Opinion of Fenwick & West LLP.
23.01 Consent of Ernst & Young LLP, independent auditors.
23.02 Consent of Fenwick & West LLP (included in Exhibit 5.01).
24.01 Power of Attorney (see page 6).
-3-
<PAGE>
ITEM 9. UNDERTAKINGS.
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 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;
(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 (1)(i) and (1)(ii) above do not
apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed by the
Registrant pursuant to Section 13 or 15(d) of the Exchange Act of 1934 (the
"Exchange Act") that are incorporated by reference in the 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.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered that remain unsold at the
termination of the offering.
(4) That, for purposes of determining any liability under the 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 therein, and the offering of such securities at that time shall be
deemed to be the initial BONA FIDE offering thereof.
(5) To deliver or cause to be delivered with the prospectus, to
each person to whom the prospectus is sent or given the latest annual report
to security holders that is incorporated by reference in the prospectus and
furnished pursuant to and meeting the requirements of Rule 14a-3 or Rule
14c-3 under the Exchange Act; and, where interim financial information
required to be presented by Article 3 of Regulation S-X are not set forth in
the
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<PAGE>
prospectus, to deliver, or cause to be delivered to each person to whom the
prospectus is sent or given, the latest quarterly report that is specifically
incorporated by reference in the prospectus to provide such interim financial
information.
(6) Insofar as indemnification for liabilities arising under the
Act may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the provisions discussed in Item 6 hereof, or
otherwise, the Registrant has been advised that in the opinion of the
Commission such indemnification is against public policy as expressed in the
Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than 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 hereby, 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 Act and will be governed by the final adjudication of such
issue.
-5-
<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 Sunnyvale, state of California, on
the 11th of December, 1996.
RADIUS INC.
By: /s/ Charles W. Berger
-----------------------------
Charles W. Berger,
Chairman of the Board,
Chief Executive Officer,
President and Chief
Financial Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS that each individual and corporation whose
signature appears below constitutes and appoints Charles W. Berger and
Cherrie L. Fosco, and each of them, his or her true and lawful
attorneys-in-fact and agents with full power of substitution, for him or her
and in his or her name, place and stead, in any and all capacities, to sign
any and all amendments (including post-effective amendments) to this
Registration Statement on Form S-8, and to file the same with all exhibits
thereto and all documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorneys-in-fact and agents, and
each of them, full power and authority to do and perform each and every act
and thing requisite and necessary to be done in and about the premises, as
fully to all intents and purposes as he or she might or could do in person,
hereby ratifying and confirming all that said attorneys-in-fact and agents or
any of them, or his or hers or their substitute or substitutes, may lawfully
do or cause to be done by virtue hereof.
Pursuant to the requirements of the 1933 Act, this Registration Statement has
been signed by the following persons in the capacities and on the dates
indicated.
Signature Title Date
- ------------------------------- ------------------ ----------------------
PRINCIPAL EXECUTIVE OFFICER:
/s/ Charles W. Berger Chairman of the Board, December 11, 1996
- ----------------------------- Chief Executive Officer,
Charles W. Berger President and Chief
Financial Officer
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<PAGE>
PRINCIPAL ACCOUNTING OFFICER:
/s/ Cherrie L. Fosco Vice President and December 11, 1996
- ----------------------------- Corporate Controller
Cherrie L. Fosco
DIRECTORS:
/s/ Michael D. Boich Director December 11, 1996
- -----------------------------
Michael D. Boich
/s/ Carl A. Carlson Director December 11, 1996
- -----------------------------
Carl A. Carlson
-7-
<PAGE>
EXHIBIT 4.03 B
AMENDMENT NO. 1 TO RADIUS INC.
1995 STOCK OPTION PLAN
December 12, 1996
Section 4.3 is deleted in its entirety.
Sections 5.4, 7.2, 14.1, 15, 17 and 19 are amended to read in their
entirety as set forth below:
5.4 EXERCISE PRICE. The Exercise Price shall be determined by the
Committee when the Award is granted and shall be not less than 85% of the
Fair Market Value of the Shares on the date of grant; PROVIDED, that (i) the
Exercise Price of an ISO shall be not less than 100% of the Fair Market Value
of the Shares on the date of grant and (ii) the Exercise Price of any Option
granted to a Ten Percent Shareholder shall not be less than 110% of the Fair
Market Value of the Shares on the date of grant. Payment for the Shares
purchased may be made in accordance with Section 6 of the Plan.
7.2 STOCK WITHHOLDING. When, under applicable tax laws, a
Participant incurs tax liability in connection with the exercise of any Award
that is subject to tax withholding and the Participant is obligated to pay
the Company the amount required to be withheld, the Committee may allow the
Participant to satisfy the minimum withholding tax obligation by electing to
have the Company withhold from the Shares to be issued that number of Shares
having a Fair Market Value equal to the minimum amount required to be
withheld, determined on the date that the amount of tax to be withheld is to
be determined. All elections by a Participant to have Shares withheld for
this purpose shall be made in accordance with the requirements established by
the Committee for such elections and be in writing in a form acceptable to
the Committee.
14.1 ASSUMPTION OR REPLACEMENT OF AWARDS BY SUCCESSOR. In the event
of (a) a merger or consolidation in which the Company is not the surviving
corporation (other than a merger or consolidation with a wholly-owned
subsidiary, a reincorporation of the Company in a different jurisdiction, or
other transaction in which there is no substantial change in the shareholders
of the Company and the Awards granted under the Plan are assumed or replaced
by the successor corporation, which assumption shall be binding on all
Participants), (b) a merger in which the Company is the surviving corporation
but after which the shareholders of the Company immediately prior to such
merger (other than any shareholder which merges, or which owns or controls
another corporation which merges with the Company in such merger) cease to
own their shares or other equity interests in the Company, (c) a dissolution
or liquidation of the Company,
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<PAGE>
(d) the sale of substantially all of the assets of the Company, or (e) any
other transaction which qualifies as a "corporate transaction" under Section
424(a) of the Code wherein the shareholders of the Company give up all of
their equity interest in the Company (EXCEPT for the acquisition, sale or
transfer of all or substantially all of the outstanding shares of the
Company), any or all outstanding Awards may be assumed or replaced by the
successor corporation (if any), which assumption or replacement shall be
binding on all Participants. In the alternative, the successor corporation
may substitute equivalent Awards or provide substantially similar
consideration to Participants as was provided to shareholders (after taking
into account the existing provisions of the Awards). The successor
corporation may also issue, in place of outstanding Shares of the Company
held by the Participant, substantially similar shares or other property
subject to repurchase restrictions no less favorable to the Participant.
In the event such successor corporation (if any) refuses to
assume or substitute Options, as provided above, pursuant to a transaction
described in this Subsection 14.1, such Options shall expire on such
transaction at such times and on such conditions as the Board shall determine.
15. ADOPTION AND SHAREHOLDER APPROVAL. The Plan shall become
effective on the date that it is adopted by the Board (the "EFFECTIVE DATE").
The Plan shall be approved by the shareholders of the Company (excluding
Shares issued pursuant to this Plan), consistent with applicable laws, within
twelve months before or after the Effective Date. Upon the Effective Date,
the Board may grant Awards pursuant to the Plan; PROVIDED, HOWEVER that: (a)
no Award may be exercised prior to initial shareholder approval of the Plan;
(b) no Award granted pursuant to an increase in the number of Shares approved
by the Board shall be exercised prior to the time such increase has been
approved by the shareholders of the Company; and (c) in the event that
shareholder approval of such increase is not obtained within the time period
provided herein, all Awards granted pursuant to such increase will be
cancelled.
17. AMENDMENT OR TERMINATION OF PLAN. The Board may at any time
terminate or amend the Plan in any respect, including without limitation
amendment of any form of Stock Option Agreement or instrument to be executed
pursuant to the Plan; PROVIDED, HOWEVER, that no amendment may be made to
outstanding Awards without the consent of the Participant.
19. DEFINITIONS. As used in the Plan, the following terms shall have
the following meanings:
"AFFILIATE" means any corporation that directly, or indirectly
through one or more intermediaries, controls or is controlled by, or is under
common control with the Company where "control" (including the terms
"controlled by" and "under common control with") means the possession, direct
or indirect, of the power to cause the direction of the management and
policies of the corporation, whether through the ownership of voting
securities, by contract or otherwise.
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<PAGE>
"AWARD" means an award of an option to purchase Shares.
"STOCK OPTION AGREEMENT" means, with respect to each Award, the
signed written agreement between the Company and the Participant setting
forth the terms and conditions of the Award.
"BOARD" means the Board of Directors of the Company.
"CODE" means the Internal Revenue Code of 1986, as amended.
"COMMITTEE" means the committee appointed by the Board to
administer the Plan, or if no committee is appointed, the Board.
"COMPANY" means Radius Inc., a corporation organized under the
laws of the State of California, or any successor corporation.
"DISABILITY" means a disability, whether temporary or permanent,
partial or total, within the meaning of Section 22(e)(3) of the Code, as
determined by the Committee.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended.
"EXERCISE PRICE" means the price at which a holder of an Award
may purchase the Shares issuable upon exercise of the Award.
"FAIR MARKET VALUE" means the value of a share of the Company's
Common Stock determined as follows:
(a) if such Common Stock is then quoted on the Nasdaq
National Market the closing price on the Nasdaq National Market System, or,
if no such reported sale takes place on such date, the closing price on the
next preceding trading date on which a reported sale occurred;
(b) if such Common Stock is publicly traded and is then
listed on a national securities exchange, the closing price or, if no
reported sale takes place on such date, the closing price on the next
preceding trading day on which a reported sale occurred;
(c) if such Common Stock is publicly traded but is not
quoted on the Nasdaq National Market nor listed or admitted to trading on a
national securities exchange, the average of the closing bid and asked prices
on such date, as reported by THE WALL STREET JOURNAL, for the
over-the-counter market; or
(d) if none of the foregoing is applicable, by the Board in
good faith.
"INSIDER" means an officer or director of the Company or any
other person whose transactions in the Company's Common Stock are subject to
Section 16 of the Exchange Act.
"PARENT" means any corporation (other than the Company) in an
unbroken chain of corporations ending with the Company, if at the time of the
granting of an Award under the Plan,
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<PAGE>
each of such corporations other than the Company owns stock possessing 50% or
more of the total combined voting power of all classes of stock in one of the
other corporations in such chain.
"PARTICIPANT" means a person who receives an Award under the
Plan.
"PLAN" means this Radius Inc. 1995 Stock Option Plan, as amended
from time-to-time.
"SEC" means the Securities and Exchange Commission.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
"SHARES" means shares of the Company's Common Stock, no par
value, reserved for issuance under the Plan, as adjusted pursuant to Sections
2 and 14, and any successor security.
"SUBSIDIARY" means any corporation (other than the Company) in
an unbroken chain of corporations beginning with the Company if, at the time
of granting of the Award, each of the corporations other than the last
corporation in the unbroken chain owns stock possessing 50% or more of the
total combined voting power of all classes of stock in one of the other
corporations in such chain.
"TERMINATION" or "TERMINATED" means, for purposes of the Plan
with respect to a Participant, that the Participant has ceased to provide
services as an employee, director, consultant, independent contractor or
adviser, to the Company or a Parent, Subsidiary or Affiliate of the Company,
except in the case of sick leave, military leave, or any other leave of
absence approved by the Committee; PROVIDED, that such leave is for a period
of not more than ninety (90) days, or reinstatement upon the expiration of
such leave is guaranteed by contract or statute or unless provided otherwise
pursuant to formal policy adopted from time to time by the Company and issued
and promulgated to employees in writing. In the case of any employee on an
approved leave of absence, the Committee may make such provisions respecting
suspension of vesting as it may deem appropriate, except that in no event may
an Option be exercised after the expiration of the term set forth in the
Stock Option Agreement. The Committee shall have sole discretion to determine
whether a Participant has ceased to provide services and the effective date
on which the Participant ceased to provide services (the "TERMINATION DATE").
Radius Inc.
By: /s/ Cherrie L. Fosco
------------------------------------
Cherrie L. Fosco
Vice President and Corporate Controller
-4-
<PAGE>
EXHIBIT 4.03 C
AMENDMENT NO. 2 TO RADIUS INC.
1995 STOCK OPTION PLAN
December 12, 1996
The 850,000 shares referred to in Section 2.1 is hereby increased by
2,716,620, for a total of 3,566,620 shares.
Radius Inc.
By: /s/ Cherrie L. Fosco
---------------------------------
Cherrie L. Fosco
Vice President and Corporate Controller
-1-
<PAGE>
EXHIBIT 5.01
December 12, 1996
Radius Inc.
215 Moffett Park Dr.
Sunnyvale, California 94089
Gentlemen/Ladies:
At your request, we have examined the Registration Statement on Form S-8
(the "REGISTRATION STATEMENT") to be filed by you with the Securities and
Exchange Commission on or about December 12, 1996 in connection with the
registration under the Securities Act of 1933, as amended, of an aggregate of
3,566,620 shares of your Common Stock (the "STOCK") subject to issuance by
you pursuant to the Radius Inc. 1995 Stock Option Plan, as amended by
Amendment No. 1 and Amendment No. 2 thereto, each dated December 12, 1996 (as
amended, the "PLAN"),
In rendering this opinion, we have examined the following:
(1) the Registration Statement, together with the Exhibits filed as a
part thereof, including, without limitation, the Plan and related documents;
(2) the Prospectus prepared in connection with the Plan and with the
Registration Statement;
(3) copies of the minutes of meetings and actions by written consent of
the Board of Directors relating to the approval of the Plan which you have
provided to us;
(4) the Articles of Incorporation of Radius Inc. ("RADIUS"), as amended
through September 6, 1996 and the Bylaws of Radius, both as certified by
Radius on December 12, 1996; and
(5) a Management Certificate of even date herewith in which you have
given us certain factual representations.
In our examination of documents for purposes of this opinion, we have
assumed, and express no opinion as to, the genuineness of all signatures on
original documents, the authenticity of all documents submitted to us as
originals, the conformity to originals of all documents submitted to us as
copies, the legal capacity of all natural persons, the lack of any
undisclosed terminations, modifications, waivers or amendments to any
documents reviewed by us and the due execution and delivery of all documents
where due execution and delivery are prerequisites to the effectiveness
thereof.
As to matters of fact relevant to this opinion, we have relied solely upon
our examination of the documents referred to above and have assumed the
current accuracy and completeness of
<PAGE>
Radius Inc.
December 12, 1996
Page 2
the information and records included in the documents referred to above. We
have made no independent investigations or other attempts to verify the
accuracy of any of such information or to determine the existence or
non-existence of any other factual matters; HOWEVER, we are not aware of any
facts that would lead us to believe that the opinion expressed herein is not
accurate.
Based upon the foregoing, it is our opinion that the Stock, when issued
and sold by you upon the exercise of stock options granted pursuant to the
Plan, and the grant of such options, in accordance with the Plan and in the
manner referred to in the Prospectus associated with the Registration
Statement, will be legally issued, fully paid and nonassessable.
We consent to the use of this opinion as an exhibit to the Registration
Statement and further consent to all references to us, if any, in the
Registration Statement, the Prospectus constituting a part thereof and any
amendments thereto.
This opinion speaks only as of its date and is intended solely for the
your use as an exhibit to the Registration Statement for the purpose of the
above issuance of the Stock and is not to be relied upon for any other
purpose.
Very truly yours,
FENWICK & WEST LLP
<PAGE>
Exhibit 23.01
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the incorporation by reference in this Registration Statement
(Form S-8) pertaining to the 1995 Stock Option Plan, as amended, of Radius Inc.
of our report dated December 8, 1995 (except Note 11 as to which the date is
December 27, 1995) with respect to the consolidated financial statements and
schedule of Radius Inc. included in its Annual Report (Form 10-K) for the
year ended September 30, 1995, filed with the Securities and Exchange
Commission.
ERNST & YOUNG LLP
Palo Alto, California
December 12, 1996
