<PAGE>
As filed with the Securities and Exchange Commission on August 13, 1999
Registration No. 333-__________
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
DIGITAL ORIGIN, INC.
(FORMERLY RADIUS INC.)
(Exact name of Registrant as specified in its charter)
CALIFORNIA 68-0101300
(State of incorporation) (I.R.S. employer
identification no.)
460 E. Middlefield Road
Mountain View, California 94043
(Address of principal executive office including zip code)
DIGITAL ORIGIN, INC.
1995 STOCK OPTION PLAN, AS AMENDED
1999 EMPLOYEE STOCK PURCHASE PLAN
NON-PLAN STOCK OPTION GRANTS
(Full title of the Plan)
Mary F. Bobel
Chief Financial Officer
Digital Origin Inc.
460 E. Middlefield Road
Mountain View, California 94043
(650) 404-6000
(Name, address and telephone number of agent for service)
COPIES TO:
Gordon Davidson, Esq.
S. Brad Arington, 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 545,000(1) $4.50(2) $2,452,500 $681.80
- -------------------------------------------------------------------------------------------
Common Stock 388,485(3) $3.45(4) $1,340,273.25 $372.60
- -------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
(1) Represents the aggregate of 137,500 shares reserved for issuance under the
1999 Employee Stock Purchase Plan and 407,500 shares reserved for issuance
upon exercise of stock options under the 1995 Stock Option Plan.
(2) Estimated as of August 9, 1999 pursuant to Rule 457(c) solely for the
purpose of calculating the amount of the registration fee.
(3) Represents certain shares subject to options outstanding as of August 9,
1999 pursuant to Non-Plan Stock Option Grants.
(4) Average per share exercise price for such outstanding options.
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<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.
The Registrant currently carries a director and officer liability
insurance policy with a per claim and annual aggregate coverage limit of
$7,500,000. 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.
-2-
<PAGE>
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable
ITEM 8. EXHIBITS
<TABLE>
<S> <C>
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)).
E Certificate of Amendment of Registrant's Sixth Amended and
Restated Articles of Incorporation.
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
(previously filed as an exhibit to the Company's
Registration Statement on Form S-8, as filed on
December 16, 1996).
C Amendment No. 2 to Radius Inc. 1995 Stock Option Plan
(previously filed as an exhibit to the Company's
Registration Statement on Form S-8, as filed on
December 16, 1996).
D Amendment No. 3 to Radius Inc. 1995 Stock Option Plan.
E Amendment No. 4 to Radius Inc. 1995 Stock Option Plan.
4.06 Form of Non-Plan Stock Option Grant.
4.07 Radius Inc. 1999 Employee Stock Purchase Plan (previously filed
as an exhibit to the Company's Quarterly Report on Form 10-Q
for the quarter ended March 31, 1999, as filed on May 17,
1999).
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).
-3-
<PAGE>
24.01 Power of Attorney (see page 7).
</TABLE>
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
-4-
<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 Mountain View, state of California, on the 13th of
August 1999.
Digital Origin, Inc.
By: _________________________________
Mark Housley,
Chairman of the Board,
Chief Executive Officer,
and President
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS that each individual and corporation whose
signature appears below constitutes and appoints Mark Housley and Mary Bobel,
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.
<TABLE>
<CAPTION>
Signature Title Date
- ----------------------------- -------------------------- ----------------
<S> <C> <C>
PRINCIPAL EXECUTIVE OFFICER:
____________________________ Chairman of the Board, August 13, 1999
Mark Housley Chief Executive Officer,
and President
-6-
<PAGE>
PRINCIPAL ACCOUNTING OFFICER:
____________________________ Chief Financial Officer August 13, 1999
Mary F. Bobel
DIRECTORS:
____________________________ Director August 13, 1999
Carl Rosendahl
____________________________ Director August 13, 1999
Michael D. Boich
____________________________ Director August 13, 1999
John Cirigliano
____________________________ Director August 13, 1999
John C. Kirby
____________________________ Director August 13, 1999
Henry V. Morgan
____________________________ Director August 13, 1999
Stephen Manousos
</TABLE>
-7-
<PAGE>
EXHIBIT 4.01 - E
CERTIFICATE OF AMENDMENT OF
SIXTH AMENDED AND RESTATED ARTICLES OF INCORPORATION
OF RADIUS INC.
Mark Housley and Henry V. Morgan hereby certify that:
1. They are the duly elected and acting Chairman of the Board and Chief
Executive Officer, and Secretary, respectively, of Radius Inc., a California
corporation.
2. Article I of the Sixth Amended and Restated Articles of Incorporation
of said corporation is amended and restated to read in full as follows:
"The name of this corporation is Digital Origin, Inc."
3. The foregoing amendment of Articles of Incorporation has been duly
approved by the Board of Directors of said corporation.
4. The foregoing amendment of Articles of Incorporation has been duly
approved by the required vote of shareholders in accordance with Section 902 of
the Corporations Code. The total number of outstanding shares of the
corporation entitled to vote with respect to the amendment is 5,532,174 shares
of Common Stock. There are no shares of Preferred Stock issued and outstanding.
The number of shares voting in favor of the amendment equaled or exceeded the
vote required. The percentage vote required was more than 50% of the shares.
We further declare under penalty of perjury under the laws of the State of
California that the matters set forth in this certificate are true and correct
of our own knowledge.
Dated: February 26, 1999
________________________________________
Mark Housley, Chairman of the Board
and Chief Executive Officer
________________________________________
Henry V. Morgan, Secretary
<PAGE>
EXHIBIT 4.03 - D
AMENDMENT #3 TO
1995 STOCK OPTION PLAN
OF RADIUS INC.
The first sentence of Section 2.1 is replaced with the following: "Subject to
Sections 2.2 and 14, the total number of Shares reserved for issuance and
available for grant and issuance pursuant to Awards under the Plan shall be
Shares, consisting of 626,662 shares, plus the total number of shares authorized
for issuance, but not issued or subject to outstanding options, under the
Company's 1986 Stock Option Plan (the "Prior Plan")."
Dated: 2/23/98
_______________________________________
Henry V. Morgan, Secretary
<PAGE>
EXHIBIT 4.03 - E
AMENDMENT #4 TO
1995 STOCK OPTION PLAN
OF RADIUS INC.
The first sentence of Section 2.1 is replaced with the following: "Subject to
Sections 2.2 and 14, the total number of Shares reserved for issuance and
available for grant and issuance pursuant to Awards under the Plan shall be
Shares, consisting of 764,162 shares, plus the total number of shares authorized
for issuance, but not issued or subject to outstanding options, under the
Company's 1986 Stock Option Plan (the "Prior Plan")."
Dated: 2/26/99
_______________________________________
Henry V. Morgan, Secretary
<PAGE>
EXHIBIT 4.06
DIGITAL ORIGIN INC.
NONQUALIFIED STOCK OPTION GRANT OUTSIDE OF THE 1995 STOCK
OPTION PLAN
1. CERTAIN DEFINITIONS. As used in this Nonqualified
Stock Option Grant (the "GRANT"), the following terms shall have the following
meanings:
(a) "AFFILIATE" means any corporation that directly, or
indirectly through one or more intermediaries, controls or is controlled by,
or is under common control with another corporation, 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.
(b) "BOARD" means the Board of Directors of Digital Origin Inc.
(c) "COMPANY" means Digital Origin Inc., a California
corporation.
(d) DELIBERATELY OMITTED
(e) "FAIR MARKET VALUE" shall mean the average of the last
reported bid and asked prices for common stock of the Company on the last
trading day prior to the date of determination or, in the event the common
stock of the Company is listed on a stock exchange or the NASDAQ System, the
Fair Market Value shall be the closing price on such exchange or quotation
system on the last trading day prior to the date of determination.
(f) "PARENT" means any corporation (other than the Company)
in an unbroken chain of corporations ending with the Company if, at the time
of granting of the Option, 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.
(g) "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 Option, 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.
2. GRANT OF OPTION. The Company hereby grants to the optionee
named above ("OPTIONEE") a nonqualified stock option (this "OPTION") to
purchase up to the total number of shares of common stock of the Company set
forth above (the "SHARES") at the exercise price per share set forth above
(the "EXERCISE PRICE"), subject to all of the terms and conditions of this
Grant. This Grant is made outside of, and is not subject to, the Company's
stock option plan.
3. EXERCISE PERIOD OF OPTION. Subject to the terms and
conditions of this Grant and except as otherwise provided in the Letter
Agreement, this Option shall vest and become exercisable as follows: This
option shall vest and become exercisable at the rate of four percent (4%) of
the total number of Shares per calendar month so long as Optionee remains
employed by the Company as determined in accordance with Section 5 hereof.
Notwithstanding the foregoing, this Option shall expire on the Expiration
Date set forth above and must be exercised, if at all, on or
<PAGE>
before the Expiration Date.
4. RESTRICTIONS ON EXERCISE. Exercise of this Option is subject
to the following limitations:
(a) This Option may not be exercised unless such exercise is
in compliance with the Securities Act of 1933, as amended (the "1933 ACT")
and all applicable state securities laws, as they are in effect on the date
of exercise.
(b) This Option may not be exercised as to fewer than 100
Shares unless it is exercised as to all Shares as to which this Option is
then exercisable.
5. TERMINATION OF OPTION. Except as provided below in this
Section, this Option shall terminate and may not be exercised if Optionee
ceases to be employed by the Company or any Parent, Subsidiary or Affiliate
of the Company. Optionee shall be considered to be employed by the Company
for all purposes under this Section 5 if (i) Optionee is an officer, director
or full-time employee of the Company or any Parent, Subsidiary or Affiliate
of the Company or (ii) the Board determines that Optionee is rendering
substantial services as a part-time employee, consultant, contractor or
adviser to the Company or any Parent, Subsidiary or Affiliate of the Company.
The Board shall have discretion to determine whether Optionee has ceased to
be employed by the Company and the effective date on which such employment
terminated (the "TERMINATION DATE").
(a) If Optionee ceases to be employed by the Company or any
Parent, Subsidiary or Affiliate of the Company for any reason except death or
disability, this Option, to the extent that it would have been exercisable by
Optionee on the Termination Date, may be exercised by Optionee no later than
(i) ninety (90) days after the Termination Date or (ii) the Expiration Date,
whichever occurs first.
(b) If Optionee's employment with the Company or any Parent,
Subsidiary or Affiliate of the Company is terminated because of the death of
Optionee or disability of Optionee within the meaning of Section 22(e)(3) of
the Internal Revenue Code of 1986, as amended (the "CODE"), this Option to
the extent that it would have been exercisable by Optionee on the Termination
Date, may be exercised, by Optionee (or Optionee's legal representative), no
later than (i) twelve (12) months after the Termination Date or (ii) the
Expiration Date, whichever occurs first.
Nothing in this Grant shall confer on Optionee any right to continue in the
employ of the Company or any Parent, Subsidiary or Affiliate of the Company
or limit in any way the right of the Company or any Parent, Subsidiary or
Affiliate of the Company to terminate Optionee's employment at any time, with
or without cause.
6. MANNER OF EXERCISE.
(a) This Option shall be exercisable by delivery to the
Company of an executed Stock Option Exercise Notice in the form attached
hereto as EXHIBIT A, or such other form as the Company may designate, which
shall set forth Optionee's election to exercise this Option and the number of
Shares being subscribed to.
(b) Such notice shall be accompanied by full payment of the
Exercise Price for the Shares being purchased (i) in cash (by check), (ii) by
surrender of shares of common stock of the Company that have been owned by
Optionee for more than six (6) months (and which have been paid for within
the meaning of SEC Rule 144 and, if such shares were purchased from the
Company by use of a promissory note, such note has been fully paid with
respect to such
<PAGE>
shares) or were obtained by the Optionee in the open public market, having a
Fair Market Value equal to the exercise price of the Option; (iii) by waiver
of compensation due or accrued to Optionee for services rendered; (iv)
through a "same day sale" commitment from the Optionee and a broker-dealer
that is a member of the National Association of Securities Dealers (an "NASD
DEALER") whereby the Optionee irrevocably elects to exercise the Option and
to sell a portion of the Shares so purchased to pay for the exercise price
and whereby the NASD Dealer irrevocably commits upon receipt of such Shares
to forward the exercise price directly to the Company; (v) through a "margin"
commitment from the Optionee and an NASD Dealer whereby the Optionee
irrevocably elects to exercise the Option and to pledge the Shares so
purchased to the NASD Dealer in a margin account as security for a loan from
the NASD Dealer in the amount of the exercise price, and whereby the NASD
Dealer irrevocably commits upon receipt of such Shares to forward the
exercise price directly to the Company; (vi) where permitted by applicable
law and approved by the Board in its sole discretion, by tender of a full
recourse promissory note having such terms as may be approved by the Board
and bearing interest at a rate sufficient to avoid imputation of income under
Sections 483 and 1274 of the Code; or (vii) by any combination of the
foregoing where approved by the Board in its sole discretion. If Optionee is
not an employee or director of the Company at the time of exercise, Optionee
shall not be entitled to purchase Shares with a promissory note unless the
note is adequately secured by collateral other than the Shares.
(c) Prior to the issuance of the Shares upon exercise of this
Option, Optionee must pay or make adequate provision for any federal or state
withholding obligations of the Company. Optionee may provide for payment of
withholding taxes upon exercise of the Option by requesting that the Company
retain Shares with a Fair Market Value equal to the minimum amount of taxes
required to be withheld. In such case, the Company shall issue the net number
of Shares to the Optionee by deducting the Shares retained from the Shares
issuable upon exercise.
(d) Provided that such notice and payment are in form and
substance satisfactory to counsel for the Company, the Company shall issue
the Shares registered in the name of Optionee or Optionee's legal
representative.
7. COMPLIANCE WITH LAWS AND REGULATIONS. The issuance and
transfer of Shares shall be subject to compliance by the Company and Optionee
with all applicable requirements of federal or state securities laws and with
all applicable requirements of any stock exchange or national market system
on which the Company's common stock may be listed at the time of such
issuance or transfer.
8. NONTRANSFERABILITY OF OPTION. This Option may not be
transferred in any manner other than by will or by the laws of descent and
distribution and may be exercised during the lifetime of Optionee only by
Optionee. The terms of this Option shall be binding upon the executors,
administrators, successors and assigns of Optionee.
9. TAX CONSEQUENCES. Set forth below is a brief summary as of
the date of this Option of some of the federal and California tax
consequences of exercise of this Option and disposition of the Shares. THIS
SUMMARY IS NECESSARILY INCOMPLETE, AND THE TAX LAWS AND REGULATIONS ARE
SUBJECT TO CHANGE. OPTIONEE SHOULD CONSULT A TAX ADVISER BEFORE EXERCISING
THIS OPTION OR DISPOSING OF THE SHARES.
(a) EXERCISE OF OPTION. There may be a regular federal
income tax liability and a California income tax liability upon the exercise
of this Option. Optionee will be treated as having received compensation
income (taxable at ordinary income tax rates) equal to the excess, if any, of
the Fair Market Value of the Shares on the date of exercise over the Exercise
Price. The Company will be required to withhold from Optionee's compensation
or collect from
<PAGE>
Optionee and pay to the applicable taxing authorities an amount equal to a
percentage of this compensation income at the time of exercise.
(b) DISPOSITION OF SHARES. If the Shares are held for at
least twelve months after the date of the transfer of the Shares pursuant to
the exercise of this Option, any gain realized on disposition of the Shares
will be treated as long term capital gain for federal and California income
tax purposes.
10. ADJUSTMENT OF OPTION SHARES. In the event that the number of
outstanding shares of common stock of the Company is changed by a stock
dividend, stock split, reverse stock split, combination, reclassification or
similar change in the capital structure of the Company without consideration,
the number of Shares subject to this Option and the exercise price per share
of such Option shall be proportionately adjusted, subject to any required
action by the Board or shareholders of the Company and compliance with
applicable securities laws; provided, however, that no certificate or scrip
representing fractional shares shall be issued upon exercise of this Option
and any resulting fractions of a Share shall be ignored.
11. INTERPRETATION. Any dispute regarding the interpretation of
this agreement shall be submitted by Optionee or the Company forthwith to the
Board, which shall review such dispute at its next regular meeting. The
resolution of such a dispute by the Board shall be final and binding on the
Company and on Optionee.
12. ENTIRE AGREEMENT. This Grant constitutes the entire agreement
of the parties and supersedes all prior undertakings and agreements with
respect to the subject matter hereof.
<PAGE>
EXHIBIT A
DIGITAL ORIGIN INC.
STOCK OPTION EXERCISE NOTICE FOR NONQUALIFIED OPTION OUTSIDE
OF THE 1995 STOCK OPTION PLAN
Digital Origin Inc.
460 E Middlefield Road
Mountain View, CA 94043
Attention: Secretary
The undersigned ("OPTIONEE") hereby elects to exercise the stock option(s)
listed below (the "OPTION(S)" to purchase a total of _______ shares of the
common stock (the "SHARES") of Digital Origin Inc. (the "COMPANY") outside of
the Company's stock option plans.
<TABLE>
<CAPTION>
Date of Option Grant No. of Shares Subject
(the "Grant") to the Option
-------------------- ---------------------
<S> <C>
</TABLE>
Optionee hereby delivers to the Company the Aggregate Purchase Price, to the
extent permitted in the Grant, as follows (check as applicable and complete):
[ ] in cash in the amount of $_______ , receipt of which is acknowledged by
the Company;
[ ] by delivery of ____ fully-paid, nonassessable and vested shares of the
Common Stock of the Company owned by Optionee for at least six (6)
months prior to the date hereof and owned free and clear of all liens,
claims, encumbrances or security interests, valued at the current Fair
Market Value (as defined in the Grant) of $_______ per share;
[ ] by the waiver hereby of compensation due or accrued for services
rendered in the amount of $_______;
[ ] through a "same day sale" as described in Section 6(b)(iv) of the Grant;
[ ] through a "margin" commitment as described in Section 6(b)(v) of the
Grant; or
[ ] where permitted by the Board, by tender of a full recourse promissory
note in the form approved by the Board in the principal amount of
$_______, secured by a Pledge Agreement of even date herewith in the form
approved by the Board.
Submitted by: Accepted by:
OPTIONEE DIGITAL ORIGIN INC.
By: ______________________________ By: ______________________________
Name: ____________________________ Name: ____________________________
Date: ____________________________ Date: ____________________________
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EXHIBIT 5.01
Digital Origin, Inc.
460 E. Middlefield Road
Mountain View, CA 94043
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 (the "SEC") on or about August 13, 1999 in connection with
the registration under the Securities Act of 1933, as amended, of an aggregate
of 933,485 shares of your Common Stock (the "STOCK") subject to issuance by you
upon the exercise of (a) purchase rights to be granted by you under your 1999
Employee Stock Purchase Plan as amended (the "PURCHASE PLAN") and (b) stock
options, stock bonuses or restricted stock awards to be granted by you under
your 1995 Equity Incentive Plan along with various non plan grants (the
"INCENTIVE PLAN") (collectively, the "PLANS").
In rendering this opinion, we have examined the following:
(1) the Registration Statement, together with the Exhibits filed as a part
thereof;
(2) the prospectuses prepared in connection with the Plans;
(3) the minutes of meetings and actions by written consent of your
shareholders and your Board of Directors that are contained in your
minute books in our possession;
(4) your articles of incorporation and bylaws as amended to date; and
(5) a management certificate of today's date delivered by you.
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 and completeness of all documents submitted
to us as originals, the conformity to originals and completeness of all
documents submitted to us as copies, the legal capacity of all natural persons
executing the same, the lack of any undisclosed termination, modification,
waiver or amendment to any document reviewed by us and the due authorization,
execution and delivery of all documents where due authorization, 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 the information obtained from public officials and
records included in the documents referred to
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above. We have made no independent investigation or other attempt 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 cause us to believe that the opinion expressed herein is not
accurate.
Based on the foregoing, it is our opinion that the 933,485 shares of
Stock that may be issued and sold by you upon the exercise of (a) purchase
rights granted or to be granted under the Purchase Plan, and (b) stock
options, stock bonuses or restricted stock awards granted or to be granted
under the Incentive Plan, each when issued and sold in accordance with the
applicable Plan and stock option, bonus or purchase agreements to be entered
into thereunder, and in the manner referred to in the relevant prospectus
associated with the Registration Statement, will be validly 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 we assume no obligation to
update this opinion should circumstances change after the date hereof. This
opinion is intended solely for the your use as an exhibit to the Registration
Statement for the purpose of the above sale of the Stock and is not to be
relied upon for any other purpose.
Very truly yours,
FENWICK & WEST LLP
2
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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, 1999
Employee Stock Purchase Plan and Non-Stock Option Grants of Digital Origin,
Inc. (formerly Radius Inc.) of our report dated October 30, 1998 with respect
to the consolidated financial statements and schedule of Digital Origin, Inc.
(formerly Radius Inc.) included in its Annual Report (Form 10-K) for the year
ended September 30, 1998, filed with the Securities and Exchange Commission.
ERNST & YOUNG LLP
Palo Alto, California
August 13, 1999
