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As filed with the Securities and Exchange Commission on May 30, 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
(Full title of the Plan)
Cherrie 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:
Gordon K. Davidson, Esq.
Fenwick & West
Two Palo Alto Square
Palo Alto, California 94306
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CALCULATION OF REGISTRATION FEE
Amount Proposed Proposed
Title of Securities to be Maximum Offering Maximum Aggregate Amount of
to be Registered Registered Price Per Share Offering Price Registration Fee
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Common Stock 850,000 $3.50(1) $2,975,000 $1,025.87
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(1) Estimated pursuant to Rule 457(h) based on the last sales price of the
issuer's Common Stock on the Nasdaq National Market on May 28, 1996
solely for the purpose of calculating the amount of the registration fee.
The Index to Exhibits appears on sequentially numbered page 7.
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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 Annual Report on Form 10-K for the year ended
September 30, 1995;
(b) The Company's Quarterly Report on Form 10-Q for the quarter ended
December 31, 1995;
(c) The Company's Quarterly Report on Form 10-Q for the quarter ended
March 30, 1996;
(d) The Company's definitive Proxy Statement dated January 24, 1996,
in connection with the Annual Meeting of shareholders of the Company held on
February 21, 1995; and
(e) 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.
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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.
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 o f 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 Registrant's Sixth Amended and Restated Articles of
Incorporation (previously filed as Exhibit 3.01 of Registrant's
Annual Report on Form 10-K for the fiscal year ended September
30, 1990, as filed on December 24, 1990.)
4.02 Registrant's Bylaws, as amended to date (incorporated by
reference to Exhibit 4.02 of the Registrant's Registration
Statement on Form S-8, filed on April 29, 1992 (File No.
33-47525)).
4.03 1995 Stock Option Plan and related documents (previously filed
as Exhibits 10.02 and 10.03 respectively to the Registrant's
Annual Report on Form 10-K for the fiscal year ended September
30, 1995, as filed on December 29, 1995, File No. 33-35769.)
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).
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
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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 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.
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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 Jose, state of California, on the 28th day of
May, 1996.
RADIUS INC.
By: /s/ Charles W. Berger
--------------------------------
Charles W. Berger, President
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
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PRINCIPAL EXECUTIVE OFFICER:
/s/ Charles W. Berger Chairman of the Board, May 28, 1996
- --------------------- Chief Executive Officer,
Charles W. Berger President and Chief
Financial Officer
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PRINCIPAL ACCOUNTING OFFICER:
/s/ Cherrie L. Fosco Controller May 28, 1996
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Cherrie L. Fosco
DIRECTORS:
/s/ Michael D. Boich Director May 28, 1996
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Michael D. Boich
/s/ Regis P. McKenna Director May 28, 1996
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Regis P. McKenna
/s/David B. Pratt Director May 28, 1996
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David B. Pratt
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Exhibit Index
Document
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4.01 Registrant's Sixth Amended and Restated Articles of
Incorporation (previously filed as Exhibit 3.01 of
Registrant's Annual Report on Form 10-K for the fiscal year
ended September 30, 1990, as filed on December 24, 1990.)
4.02 Registrant's Bylaws, as amended to date (incorporated by
reference to Exhibit 4.02 of the Registrant's Registration
Statement on Form S-8, filed on April 29, 1992 (File No.
33-47525)).
4.03 1995 Stock Option Plan and related documents (previously filed
as Exhibits 10.02 and 10.03 respectively to the Registrant's
Annual Report on Form 10-K for the fiscal year ended September
30, 1995, as filed on December 29, 1995, File No. 33-35769.)
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).
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[FENWICK & WEST LLP letterhead]
May 31, 1996
Radius Inc.
215 Moffett Park Drive
Sunnyvale, CA 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 May 31, 1996 in connection with the registration
under the Securities Act of 1933, as amended, of an aggregate of 850,000 shares
of your Common Stock, no par value (the "Stock"), all of which may be sold by
you pursuant to options granted or to be granted by you to your (or your
parents', affiliates' or subsidiaries') employees, officers, consultants and
independent contractors pursuant to your 1995 Stock Option Plan (the "Plan").
As your counsel, we have examined the proceedings taken by you in
connection with the adoption of the 1995 Stock Option Plan.
It is our opinion that the Stock that may be issued and sold by you
pursuant to the Plan, when issued and sold in the manner referred to in the
Prospectus associated with the Registration Statement and the Plan, 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 and any amendments thereto.
Very truly yours,
FENWICK & WEST LLP
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Exhibit 23.01
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement (Form
S-8) pertaining to the 1995 Stock Option Plan 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
May 29, 1996
