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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(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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"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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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
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Cherrie L. Fosco
Vice President and Corporate Controller
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