<PAGE> 1
File No 33-
----------------
As filed with the Securities and Exchange Commission on January 26, 1995.
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
LTX Corporation
- --------------------------------------------------------------------------------
(Exact name of registrant as specified in its charter)
Massachusetts 04-2594045
- -------------------------------- -------------------
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization Identification No.)
LTX Park at University Avenue, Westwood, Massachusetts 02090
- --------------------------------------------------------------------------------
(Address of Principal Executive Offices) (Zip Code)
1990 Stock Option Plan
- --------------------------------------------------------------------------------
(Full title of the plan)
John J. Arcari
LTX Park at University Avenue, Westwood, MA 02090
- --------------------------------------------------------------------------------
(Name and address of agent for service)
(617) 461-1000
- --------------------------------------------------------------------------------
(Telephone number, including area code, of agent for service)
<TABLE>
CALCULATION OF REGISTRATION FEE
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<CAPTION>
Proposed Proposed <EBT>
<BBT> Title of maximum maximum
securities Amount offering aggregate Amount of
to be to be price offering registration
registered registered per share* price* fee
- --------------- ---------- ---------- ---------- -----------
<S> <C> <C> <C> <C>
Common Stock, 1,200,000 $5.31 $6,372,000 $2,198.00
$.05 par value Shares
<FN>
- ----------------------------------------------------------------------------------
* This estimate is made pursuant to Rule 457(h) solely for the purpose
of determining the registration fee. It is not known how many shares will be
purchased under the Plan or at what price such shares will be purchased. The
above calculation is based on the offering of 1,200,000 shares at a purchase
price of $5.31 per share, which is the average of the high and low prices of
the Company's Common Stock as reported by the National Association of
Securities Dealers Automated Quotation System on January 23, 1995.
</TABLE>
<PAGE> 2
PART II
-------
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 3: Incorporation of Documents by Reference
- ------ ----------------------------------------
The following documents are incorporated by reference in this
Registration Statement:
(a) the undersigned registrant's Annual Report on Form 10-K for the
year ended July 31, 1994; (b) the registrant's Quarterly Report on Form 10-Q
for the quarter ended October 31, 1994; and (c) the description of the
registrant's Common Stock contained in a Registration Statement filed under the
Securities Exchange Act of 1934 (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, prior to the filing of a
post-effective amendment which indicates that all securities offered have been
sold or which deregisters all securities then remaining unsold, shall be deemed
to be incorporated by reference in the Registration Statement and to be part
thereof 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
- ------ -----------------------------------------
Chapter 156B of the Massachusetts General Laws, under which the
Company is organized, permits a Massachusetts corporation to adopt a provision
in its Articles of Organization eliminating or limiting the liability of a
director to the corporation or its stockholders for monetary damages for breach
of fiduciary duty as a director, provided that such liability does not arise
from certain proscribed conduct (including intentional misconduct and breach of
duty of loyalty).
On December 8, 1987, the stockholders approved an amendment to the
Company's Articles of Organization. The amendment to the Articles of
Organization, which became effective on April 8, 1988, is as follows:
"No director shall be personally liable to the corporation or any of
its stockholders for monetary damages for any breach of fiduciary duty as a
director not withstanding any provision of law imposing such liability;
provided, however, that this provision shall not eliminate or limit the
liability of a director for (i) any breach of the director's duty of loyalty to
th corporation or its stockholders, (ii) acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (iii)
II-1
<PAGE> 3
authorizing distributions to stockholders in violation of the bankrupt,
and approving loans to officers or directors of the corporation which are not
repaid and which were not approved or ratified by a majority of disinterested
directors or stockholders, or (iv) any transaction from which the director
derived an improper personal benefit. No amendment to or repeal of this
provision shall apply to or have any effect on the liability or alleged
liability of any director of the corporation for or with respect to any acts or
omissions of such director occurring prior to the effective date of such
amendment."
The By-laws of the registrant provide for indemnification of officers
and directors as follows:
Section 6.5 Indemnification.
(a) The Corporation shall indemnify each director and officer
against all judgments, fines, settlement payments and expenses, including
reasonable attorneys' fees, paid or incurred in connection with any claim,
action, suit or proceeding, civil or criminal, to which he may be made a party
or with which he may be threatened by reason of his being or having been a
director or officer of the Corporation, or, at its request, a director,
officer, stockholder or member of any other corporation, firm, association or
other organization or by reason of his serving or having served, at its
request, in any capacity with respect to any employee benefit plan, or by
reason of any action or omission by him in such capacity, whether or not he
continues to be a director or officer at the time of incurring such expenses
or at the time the indemnification is made. No indemnification shall be made
hereunder (i) with respect to payments and expenses incurred in relation to
matters as to which he shall be finally adjudged in such action, suit or
proceeding not to have acted in good faith and in the reasonable belief that
his action was in the best interests of the Corporation (or, to the extent that
such matter relates to service with respect to an employee benefit plan, in the
best interest of the participants or beneficiaries of such employee benefit
plan), or (ii) otherwise prohibited by law. The foregoing right of
indemnification shall not be exclusive of other rights to which any director or
officer may otherwise be entitled and shall inure to the benefit of the
executor or administrator of such director or officer. The Corporation may pay
the expenses incurred by any such person in defending a civil or criminal
action, suit or proceeding in advance of the final disposition of such action,
suit or proceeding, upon receipt of an undertaking by such person to repay such
payment if it is determined that such person is not entitled to indemnification
hereunder.
(b) The Board of Directors may, without stockholder approval, authorize
the Corporation to enter into agreements, including any amendments or
modification thereto, with any of its directors, officers or other persons
described in paragraph (a) above providing for indemnification of such persons
to the maximum extent permitted under applicable law and the Corporation's
Articles of Organization and By-laws.
(c) No amendment to or repeal of this section shall have any adverse
effect on (i) the right of any director or officer under any agreement entered
into prior thereto, or (ii) the rights of any director or officer hereunder
relating to his
II-2
<PAGE> 4
service, for which he would otherwise be entitled to indemnify hereunder,
during any period prior to such amendment or repeal.
The Company has a directors and officers liability policy that insures the
Company's directors and officers against certain liabilities which they may
incur as directors or officers of the Company.
Item 7: Exemption from Registration Claimed
- ------ -----------------------------------
Not applicable
Item 8: Exhibits
- ------ --------
The following exhibits are filed as part of this Registration Statement:
(4) 1990 Incentive Stock Option Plan, as amended.
(5) Opinion and Consent of Bingham, Dana & Gould as to the legality of
the securities being registered.
(23)(A) Consent of Arthur Andersen & Co.
(23)(B) Consent of Bingham, Dana & Gould - included in Exhibit 5.
(24) Power of Attorney (contained on the signature page).
Item 9: Undertakings
- ------ ------------
1. The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered herein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
2. The undersigned registrant hereby undertakes:
(a) 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 Securities Act of 1933;
(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;
II-3
<PAGE> 5
(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 (a) (i) and (a) (ii) 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 Section 15(d) of the Securities Exchange Act of 1934
that are incorporated by reference herein.
(b) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to
be a new registration statement relating to the securities offered herein, and
the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(c) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
3. Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or otherwise,
the registrant has been advised 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. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer of 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, 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.
II-4
<PAGE> 6
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 Town of Westwood, and Commonwealth of Massachusetts on
the 7th day of December, 1994.
LTX Corporation
By /s/ Roger W. Blethen
---------------------
Roger W. Blethen
President
By /s/ Martin S. Francis
---------------------
Martin S. Francis
President
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints Roger W. Blethen and Martin S.
Francis, or either of them, his true and lawful attorneys-in-fact and agents,
each with full power of substitution and resubstitution, for him and in his
name, place and stead, in any and all capacities, to sign any amendments or
post-effective amendments to this Registration Statement and to file the same
with all exhibits thereto and other documents in connection therewith with the
Securities and Exchange Commission, granting unto each of said attorneys-in-
fact and agents, 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 might or could do in person,
hereby ratifying and confirming all that each of said attorneys-in-fact
and agents, or his substitute or substitutes, may do or cause to be done by
virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the date indicated.
<TABLE>
<CAPTION>
Signature Title Date
- --------- ----- ----
<S> <C> <C>
/s/ Roger W. Blethen
- ---------------------- President (Principal December 7, 1994
Roger W. Blethen Executive Officer)
/s/ Martin S. Francis
- ---------------------- President (Principal December 7, 1994
Martin S. Francis Executive Officer)
/s/ John J. Arcari
- ---------------------- Chief Financial Officer December 7, 1994
John J. Arcari and Treasurer (Principal
Financial Officer)
</TABLE>
II-5
<PAGE> 7
<TABLE>
<CAPTION>
<S> <C> <C>
/s/ Glenn W. Meloni
- ------------------------ Controller (Principal December 7, 1994
Glenn W. Meloni Accounting Officer)
/s/ Grahan C.C. Miller
- ------------------------ Chairman of the Board December 7, 1994
Graham C.C. Miller
/s/ Jacques Bouyer
- ------------------------ Director December 7, 1994
Jacques Bouyer
/s/ Fred J. Butler
- ------------------------ Director December 7, 1994
Fred J. Butler
/s/ Robert E. Moore
- ------------------------ Director December 7, 1994
Robert E. Moore
/s/ Roger J. Maggs
- ------------------------ Director December 7, 1994
Roger J. Maggs
/s/ Samuel Rubinovitz
- ------------------------- Director December 7, 1994
Samuel Rubinovitz
</TABLE>
II-6
<PAGE> 8
Exhibit Index
<TABLE>
<CAPTION>
Exhibit No. Description of Document
- ----------- -----------------------
<S> <C>
4 1990 Incentive Stock Option Plan, As Amended
5 Opinion of Bingham, Dana & Gould
23(A) Consent of Arthur Andersen LLP
23(B) Consent of Bingham, Dana & Gould
is contained in its opinion filed
as Exhibit 5
24 Power of Attorney (contained on the signature page)
</TABLE>
II-7
<PAGE> 1
EXHIBIT 4
LTX CORPORATION
1990 STOCK OPTION PLAN
1. Definitions. As used in this 1990 Stock Option Plan, the following terms
-----------
shall have the following meanings:
1.1 Board means the Company's Board of Directors.
-----
1.2 Code means the Federal Internal Revenue Code of 1986, as amended.
----
1.3 Company means LTX Corporation.
-------
1.4 Fair Market Value means the value of a share of Stock of the Company
-----------------
on any date as determined by the Board.
1.5 Grant Date means the date on which an Option is granted, as specified
----------
in Section 7.
1.5A Incentive Option means an Option intended to be an incentive stock
----------------
option with the meaning of <ERJ> Section 422 of the Code.
1.5B Nonstatutory Option means any option that is not an Incentive Option.
-------------------
1.6 Market Value means, as of a particular date, the average
------------
closing bid and asked prices of the Stock in the Over the Counter
Market, as reported by the National Association of Securities
Dealers, Inc., or if the Stock is listed on an exchange, the closing
price of the Stock.
1.7 Officer means any person who has been identified by the Board as an
-------
"officer" for purposes of Section 16 of the Securities Exchange Act
of 1934, as amended.
1.8 Option means an option to purchase shares of the stock granted under
------
the Plan.
1.9 Option Agreement means an agreement between the Company and an
----------------
Optionee, setting forth the terms and conditions of an Option.
1.10 Option Price means the price paid by an Optionee for an Option under
------------
this Plan.
1.11 Option Share means any share of Stock of the Company transferred to
------------
an Optionee upon exercise of an Option pursuant to this Plan.
<PAGE> 2
1.12 Optionee means a person eligible to receive an Option, as provided in
--------
Section 6, to whom an Option shall have been granted under the Plan.
1.13 Plan means this 1990 Stock Option Plan of the Company, as amended.
----
1.14 Stock means common stock, par value $ 0.05 per share, of the Company.
-----
1.15 Vesting Year for any portion of any Option means the calendar year in
------------
which that portion of the Option first becomes exercisable.
2. Purpose. This 1990 Incentive Stock Option Plan is intended to advance the
-------
interests of the Company and its stockholders by improving the Company's
ability to attract and retain qualified individuals who are in a position to
contribute to the management and growth of the Company and its subsidiaries and
to provide additional incentive for such individuals to contribute to the
Company's future success. The Plan is intended to be an incentive stock option
plan within the meaning of Section 422 of the Code, but not all Options granted
hereunder are required to be Incentive Options.
3. Term of the Plan. Options under the Plan may be granted on or after
----------------
October 24, 1990, but not later than October 23, 2000.
4. Stock Subject to the Plan. At no time shall the number of shares of the
-------------------------
Stock then outstanding which are attributable to the exercise of Options
granted under the Plan, plus the number of shares then issuable upon exercise
of outstanding Options granted under the Plan exceed 2,700,000 shares, subject,
-------
however, to the provisions of Section 15 of the Plan. Shares to be issued upon
- -------
the exercise of Options granted under the Plan may be either authorized but
unissued shares or shares held by the Company in its treasury. If any Option
expires or terminates for any reason without having been exercised in full, the
shares not purchased thereunder shall again be available for Options thereafter
to be granted. Each Director who is not an employee of the Company or a
subsidiary thereof shall receive a nonstatutory option to purchase 20,000
shares of Common Stock on the date on which he or she is first elected to the
Board of Directors of the Company and an additional option to purchase 6,000
shares of Common Stock on the date of each annual meeting at which he or she is
re-elected or after which he continues to serve as a Director. Each Director
who is not an employee of the Company or a subsidiary thereof shall also
receive an option to purchase 2,000 shares of Common Stock in each year served
as a chairman of a Committee of the Board of Directors and an option to
purchase 1,000 shares of Common Stock in each year served as a member of a
Committee of the Board of Directors, such options to be issued on the date the
Committees are established annually by the Board of Directors. Each option
granted to a Director under this Section 4 shall have an exercise price of
$1.00 per share and shall be exercisable, cumulatively, to the extent of
one-third of the stock covered thereby on each of the
<PAGE> 3
first three anniversary dates of the
grant of the Option. In the event any Director standing for re-election is
not re-elected to the Board of Directors at any meeting, all of such
Director's unexercisable Options granted prior to the date of that meeting
will become exercisable immediately.
5. Administration. The Plan shall be administered by the Board of Directors
--------------
of the Company or by a committee composed of members of the Board (the Board
of Directors or any such committee being hereinafter referred to as the
"Committee"). With respect to directors and Officers eligible to receive an
Option under this Plan, the Plan shall be administered by a special committee
(the "Special Committee") of the Board of Directors of the Company who are
"disinterested persons" as defined in Rule 16b-3(c) (2) (i) under Section 16 of
the Securities Exchange Act of 1934 and who are also not an employee of one or
more of the Company and its subsidiaries. Only the Special Committee may grant
Options to directors and Officers eligible to receive Options under this Plan.
Subject to the provisions of the Plan, the Committee or the Special Committee,
as the case may be, shall have complete authority, in its discretion, to make
the following determinations with respect to each Option to be granted by the
Company: (a) the employee, director or consultant to receive the Option; (b)
the time of granting the Option; (c) the number of shares subject thereto;
(d) the Option Price; and (e) the Option period. In making such
determinations, the Committee may take into account the nature of the services
rendered by the respective employees, directors and consultants their present
and potential contributions to the success of the Company and its subsidiaries,
and such other factors as the Committee in its discretion shall deem relevant.
Subject to the provisions of the Plan, the Committee shall also have complete
authority to interpret the Plan, to prescribe, amend and rescind rules and
regulations relating to it, to determine the terms and provisions of the
respective Option Agreements (which need not be identical), and to make all
other determinations necessary or advisable for the administration of the Plan.
The Committee's determinations on the matters referred to in this Section 5
shall be conclusive.
6. Eligibility. An Option may be granted only to an employee, director, or
-----------
consultant of one or more of the Company and its subsidiaries. A Director of
one or more of the Company and its subsidiaries who is not also an employee of
one or more of the Company and its subsidiaries shall not be eligible to
receive an Incentive Option. Any person who, within the meaning of Section
422A(b) (6) of the Code, is deemed to own stock possessing more than 10% of the
total combined voting power of all classes of stock of the Company (or of its
parent or subsidiary corporations) shall not be eligible to receive an Option.
7. Time of Granting Options. The granting of an Option shall take place at
------------------------
the time specified by the Committee. Only if expressly so provided by the
Committee, shall the Grant Date be the date on which an Option Agreement shall
have been duly executed and delivered by the Company and the Optionee.
<PAGE> 4
8. Option Price. The Option Price under each Incentive Option shall be not
------------
less than 100% of the Fair Market Value of Stock on the Grant Date; the Option
Price under each Nonstatutory Option shall not be so limited.
9. Option Period. No Incentive Option may be exercised later than the
-------------
tenth anniversary of the Grant Date. The period during which a Nonstatutory
Option may be exercised shall not be so limited. An Option may become
exercisable in such installments, cumulative or non-cumulative, as the
Committee may determine. In the case of an Option not otherwise immediately
exercisable in full, the Committee may accelerate the exercisability of such
Option in whole or in part at any time, provided the acceleration of the
exercisability of any Incentive Option would not cause the Option to fail to
comply with the provisions of Section 422 of the Code.
10. Limit on Incentive Option Characterization. No Incentive Option shall be
------------------------------------------
considered an Incentive Option to the extent pursuant to its terms it would
permit the Optionee to purchase for the first time in any Vesting Year more
than the number of shares of Stock calculated by dividing the current limit by
the Fair Market Value on the Grant Date. The current limit for any Optionee
for any Vesting Year shall be $100,000 minus the aggregate Fair Market Value at
the date of grant of the number of shares of Stock available for purchase for
the first time in such Vesting Year under each other Incentive Option granted
to the Optionee under the Plan and each other incentive stock option granted to
the Optionee under any other incentive stock option plan of the Company (and
its parent and subsidiary corporations).
11. Exercise of Option. An Option may be exercised in accordance with its
------------------
terms by written notice of intent to exercise the Option, specifying the number
of shares with respect to which the Option is then being exercised. The notice
shall be accompanied by payment in the form of cash or shares of the Stock with
a Market Value on the date of exercise equal to the Option Price of the shares
to be purchased. Within 20 days thereafter, the Company shall deliver or cause
to be delivered to the Optionee evidence of ownership of the number of shares
then being purchased. Such shares shall be fully paid and nonassessable. If
any law or applicable regulation of the Securities and Exchange Commission or
other public regulatory authority shall require the Company or the Optionee to
register or qualify under the Securities Act of 1933, as amended, any similar
federal statute then in force or any state law regulating the sale of
securities, any Option Shares with respect to which notice of intent to
exercise shall have been delivered to the Company or to take any other action
in connection with such shares, the delivery of the certificate or certificates
for such shares shall be postponed until completion of the necessary action,
which the Company shall take in good faith and without delay. All such action
shall be taken by the Company at its own expense.
12. Termination of Employment. In the event that the Optionee's employment or
-------------------------
association with the Company is terminated, whether voluntarily or by reason of
dismissal, disability or retirement, the
<PAGE> 5
Option, to the extent exercisable at the date of termination, may be exercised
by the Optionee within three months after he or she ceases to be an employee,
director or consultant; provided, however, that if termination results from the
-------- -------
death of the Optionee, the Option, to the extent exercisable at the date of
death, may be exercised by the person to whom the option is transferred by will
or the applicable laws of descent and distribution, at any time within six
months after the date of death, unless terminated earlier by its terms.
Military or sick leave shall not be deemed a termination of employment provided
that it does not exceed the longer of 90 days or the period during which the
absent employee's reemployment rights are guaranteed by statute or by contract.
13. Transferability of Options. Options shall not be transferable, otherwise
--------------------------
than by will or the laws of descent and distribution, and may be exercised
during the life of the Optionee only by the Optionee.
14. Transferability of Option Shares. The Optionee agrees that he or she will
--------------------------------
not transfer any of the Option Shares at any time purchased upon the exercise
of any portion of the Option unless (i) such shares are registered under the
provisions of the Securities Act of 1933, as amended, or (ii) at the
request of the Company, the transferee represents, in form satisfactory to
counsel for the Company, that he or she will not transfer, sell or otherwise
dispose of the Optioned Shares at any time purchased by him or her in a manner
which would violate the Securities Act of 1933, as amended (the "Act"), and the
regulations of the Securities and Exchange Commission thereunder. The Optionee
agrees that the Company may, at its discretion, make a notation on any
certificates issued upon exercise of any portion of the Option to the effect
that such certificate may not be transferred except after receipt by the
Company of an opinion of counsel satisfactory to it to the effect that such
transfer will not violate the Act and the regulations thereunder, and may issue
"stop transfer" instructions to its transfer agent, if any, and make a "stop
transfer" notation on its books as appropriate.
15. Adjustment of Number of Option Shares. Each Option Agreement shall
-------------------------------------
provide that in the event of any stock dividend payable in the Stock or any
split-up or contraction in the number of shares of the Stock occurring after
the date of the Agreement and prior to the exercise in full of the Option or
the repurchase by the Company pursuant to Section 14, the number of shares
subject to such Agreement shall be proportionately adjusted and the price to be
paid for each share subject to the Option shall be proportionately adjusted.
Each such agreement shall also provide that in case of any reclassification
or change of outstanding shares of the Stock or in case of any consolidation or
merger of the Company with or into another company or in case of any sales or
conveyance to another company or entity of the property of the Company as a
whole or substantially as a whole, shares of Stock or other securities shall be
delivered equivalent in kind and value to those shares an Optionee would have
been received if the Option had been exercised in full or the repurchase
consummated immediately prior to such reclassification, change, consolidation,
<PAGE> 6
merger, sale or conveyance and no disposition had subsequently been made.
Each Agreement shall further provide that upon dissolution or liquidation of
the Company, the Option shall terminate, but the Optionee (if at the time in
the employ of the Company or any of its subsidiaries) shall have the right,
immediately prior to such dissolution or liquidation, to exercise the Option
to the extent not theretofore exercised. No fraction of a share shall be
purchasable or deliverable upon exercise, but in the event any adjustment
hereunder of the number of shares covered by the Option shall cause such
number to include a fraction of a share, such fraction shall be adjusted to
the nearest smaller whole number of shares. In the event of changes in the
outstanding Stock by reason of any stock dividend, split-up, contraction,
reclassification, or change of outstanding shares of the Stock of the nature
contemplated by this Section 15, the number of shares of the Stock available
for the purpose of the Plan as stated in Section 4 shall be correspondingly
adjusted.
16. Reservation of Stock. The Company shall at all times during the term of
--------------------
the Option reserve and keep available such number of shares of the Stock as
will be sufficient to satisfy the requirements of this Plan and shall pay all
fees and expenses necessarily incurred by the Company in connection therewith.
17. Limitation of Rights in the Option Shares. The Optionee shall not be
-----------------------------------------
deemed for any purpose to be a stockholder of the Company with respect to any
of the Option Shares except to the extent that the Option shall have been
exercised with respect thereto and, in addition, a certificate shall have been
issued therefore and delivered to the Optionee. Any Stock issued pursuant to
the Option shall be subject to all restrictions upon the transfer thereof which
may be now or hereafter imposed by the Articles of Organization or the By-laws
of the Company.
18. Termination and Amendment of the Plan. The Board may at any time
-------------------------------------
terminate the Plan or make such modifications of the Plan as it shall deem
advisable; provided that no modification shall be effective to increase the
--------
number of shares of Stock subject to the Plan or change the number or
classification of employees eligible to receive Options until such modification
is approved by the holders of a majority of the voting capital stock of the
Company. No termination or amendment of the Plan may, without the consent of
the Optionee to whom any Option shall theretofore have been granted, adversely
affect the rights of such Optionee under such Option. In no event may the
Board amend the Plan more than once every six months other than to comply with
changes in the Code, the Employee Retirement Income Security Act of 1974 or the
rules thereunder.
19. Notices. Any communication or notice required or permitted to be given
-------
under the Plan shall be in writing, and mailed by registered or certified mail
or delivered in hand, if to the Company, to its Treasurer at LTX Park at
University Avenue, Westwood, Massachusetts 02090 and, if to the Optionee, to
the address as the Optionee shall last have furnished to the communicating
party.
<PAGE> 7
20. Withholding; Notice of Disposition of Stock Prior to Expiration of
------------------------------------------------------------------
Specified Holding Period.
- ------------------------
(a) Whenever shares are to be issued in satisfaction of an Option granted
hereunder, the Company shall have the right to require the Optionee
to remit to the Company an amount sufficient to satisfy federal,
state, local or other withholding tax requirements if and to the
extent required by law (whether so required to secure for the Company
an otherwise available tax deduction or otherwise) prior to the
delivery of any certificate or certificates for such shares.
(b) The Company may require as a condition to the issuance of shares
covered by an Incentive Option that the party exercising such Option
give a written representation to the Company which is satisfactory in
form and substance to its counsel and upon which the Company may
reasonably rely, that he or she will report to the Company any
disposition of such shares prior to the expiration of the holding
periods specified by Section 422(a)(1) of the Code. If and to the
extent that the realization of income in such a disposition imposes
upon the Company federal, state, local or other withholding tax
requirements, or any other available tax deduction, the Company shall
have the right to require that the recipient remit to the Company an
amount sufficient to satisfy those requirements; and the Company may
require as a condition to the issuance of shares covered by an
Incentive Option that the party exercising such option give a
satisfactory written representation promising to make such a
remittance.
<PAGE> 1
EXHIBIT 5
BINGHAM, DANA & GOULD
150 FEDERAL STREET
BOSTON, MASSACHUSETTS 02110-1726
TELEPHONE: (617) 951-8000
TELEX: 275147 BDGBSN UR
CABLE ADDRESS: BLODGHAM BSN
TELECOPY: (617) 951-8736
WASHINGTON OFFICE HARTFORD OFFICE LONDON OFFICE
(202) 822-9320 (203) 244-3770 011-44-71-799-2646
January 26, 1995
LTX Corporation
LTX Park at University Avenue
Westwood, MA 02090
Re: LTX Corporation
1990 Stock Option Plan
----------------------
Gentlemen:
This opinion is furnished in connection with the registration, pursuant to
a Registration Statement on Form S-8 under the Securities Act of 1933, as
amended (the "Act"), to be filed with the Securities and Exchange Commission on
January 26, 1995 (the "Registration Statement"), of 1,200,000 shares (the
"Shares") of the Common Stock, par value $.05 per share (the "Common Stock"),
of LTX Corporation, a Massachusetts corporation (the "Company"), which would be
issuable upon the exercise of options granted under the Company's 1990 Stock
Option Plan (the "Plan").
We have acted as counsel to the Company in connection with the
foregoing registration of the Shares. We have examined and relied upon the
originals or copies of such records, instruments, certificates, memoranda and
other documents as we have deemed necessary or advisable for purposes of this
opinion and have assumed, without independent inquiry, the accuracy of those
documents. In that examination, we have assumed the genuineness of all
signatures, the conformity to the originals of all documents reviewed by us as
copies, the authenticity and completeness of all original documents reviewed by
us in original or copy form and the legal competence of each individual
executing such documents. We have
<PAGE> 2
LTX Corporation
January 26, 1995
Page 2
further assumed that all options granted or to be granted pursuant to the Plan
were or will be validly granted in accordance with the terms of the Plan and
that all Shares to be issued upon exercise of such options will be issued in
accordance with such options and the Plan.
Based upon the foregoing, we are of the opinion that, upon the issuance
and delivery of the Shares in accordance with the terms of such options and the
Plan, and as described in the Registration Statement, the Shares will be
legally issued, fully paid and non-assessable shares of the Company's Common
Stock.
The foregoing assumes that all requisite steps will be taken to comply
with the requirements of the Act and with applicable requirements of state laws
regulating the offer and sale of securities.
We understand that this opinion is to be used in connection with the
Registration Statement. We consent to the filing of a copy of this opinion
with the Registration Statement.
Very truly yours,
/s/ BINGHAM, DANA & GOULD
<PAGE> 1
EXHIBIT 23(A)
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the use
of our reports dated September 13, 1994 (except with respect to
the matter discussed in Note 4, as to which the date is October
6, 1994) included in LTX Corporation's Form 10K for the year
ended July 31, 1994 and to all references to our Firm included in
this registration statement.
/s/ ARTHUR ANDERSEN LLP
Boston, Massachusetts
January 26, 1995
