As filed with the Securities and Exchange Commission on December 16, 1996
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
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
Amount Proposed Maximum Amount
Title of Securities to be Maximum Offering Aggregate of
to be Registered Registered Price Per Share Offering Price Registration Fee
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Common Stock 3,566,620 $0.594 (1) $2,118,572.28 $641.99
(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.
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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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).
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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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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 Sunnyvale, state of California, on
the 11th of December, 1996.
RADIUS INC.
By: /s/ Charles W. Berger
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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
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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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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
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Michael D. Boich
/s/ Carl A. Carlson Director December 11, 1996
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Carl A. Carlson
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