As filed with the Securities and Exchange Commission on August 13, 1999
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
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
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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 545,000(1) $4.50(2) $2,452,500 $681.80
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Common Stock 388,485(3) $3.45(4) $1,340,273.25 $372.60
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(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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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.
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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)).
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).
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24.01 Power of Attorney (see page 7).
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 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.
Signature Title Date
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PRINCIPAL EXECUTIVE OFFICER:
____________________________ Chairman of the Board, August 13, 1999
Mark Housley Chief Executive Officer,
and President
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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
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