<PAGE> 1
File No. 33-
----
As filed with the Securities and Exchange Commission on December 21, 1995.
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
LTX Corporation
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(Exact name of registrant as specified in its charter)
Massachusetts 04-2594045
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization Identification No.)
LTX Park at University Avenue, Westwood, Massachusetts 02090
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(Address of Principal Executive Offices) (Zip Code)
1990 Stock Option Plan
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(Full title of the plan)
John J. Arcari
LTX Park at University Avenue, Westwood, MA 02090
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(Name and address of agent for service)
(617) 461-1000
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(Telephone number, including area code, of agent for service)
<TABLE>
CALCULATION OF REGISTRATION FEE
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- --------------------------------------------------------------------------------
<CAPTION>
Proposed Proposed
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, 1,000,000 $8.625 $8,625,000 $2,974.00
$.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 1,000,000 shares at a purchase
price of $8.625 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 December 18, 1995.
</TABLE>
<PAGE> 2
PART II
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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, 1995; (b) the registrant's Quarterly Report on Form 10-Q
for the quarter ended October 31, 1995; 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
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Not Applicable
Item 5: Interests of Named Experts and Counsel
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Not applicable.
Item 6: Indemnification of Directors and Officers
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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
the corporation or its stockholders, (ii) acts or omissions not in good faith
or which involve intentional misconduct or a knowing violation of law, (iii)
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authorizing distributions to stockholders in violation of the corporation's
Articles of Organization or which render the corporation insolvent or 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
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service, for which he would otherwise be entitled to indemnity 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
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Not applicable
Item 8: Exhibits
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The following exhibits are filed as part of this Registration
Statement:
(4) 1990 Stock Option Plan, as amended.
(5) Opinion and Consent of Pamela A. Keating as to the legality of the
securities being registered.
(23)(A) Consent of Arthur Andersen LLP
(23)(B) Consent of Pamela A. Keating - included in Exhibit 5.
(24) Power of Attorney (contained on the signature page).
Item 9: Undertakings
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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;
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(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.
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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 Town of Westwood, and Commonwealth of Massachusetts on
the 13th day of December, 1995.
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 13, 1995
- ------------------------ Executive Officer)
Roger W. Blethen
/s/ Martin S. Francis President (Principal December 13, 1995
- ------------------------ Executive Officer)
Martin S. Francis
/s/ John J. Arcari Chief Financial Officer December 13, 1995
- ------------------------ and Treasurer (Principal
John J. Arcari Financial Officer)
</TABLE>
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<TABLE>
<CAPTION>
<S> <C> <C>
/s/ Glenn W. Meloni Controller (Principal December 13, 1995
- ----------------------- Accounting Officer)
Glenn W. Meloni
/s/ Graham C.C. Miller Chairman of the Board December 13, 1995
- -----------------------
Graham C.C. Miller
/s/ Jacques Bouyer Director December 13, 1995
- -----------------------
Jacques Bouyer
/s/ Robert E. Moore Director December 13, 1995
- -----------------------
Robert E. Moore
/s/ Roger J. Maggs Director December 13, 1995
- -----------------------
Roger J. Maggs
/s/ Samuel Rubinovitz Director December 13, 1995
- -----------------------
Samuel Rubinovitz
</TABLE>
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Exhibit Index
<TABLE>
<CAPTION>
Exhibit No. Description of Document
- ------------ -----------------------
<S> <C>
4 1990 Stock Option Plan, as amended
5 Opinion of Pamela A. Keating
23(A) Consent of Arthur Andersen LLP
23(B) Consent of Pamela A. Keating
is contained in the opinion filed
as Exhibit 5
24 Power of Attorney (contained on the signature page)
</TABLE>
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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 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 3,700,000 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 Nonstatutory 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 a Nonstatutory Option to purchase 3,000 shares of
Common Stock in each year served as a chairman of a Committee of the Board of
Directors and a Nonstatutory Option to purchase 1,500 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 a fair market value exercise price per share and shall be
exercisable, cumulatively, to the extent of twenty percent of
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the stock covered thereby on the first anniversary date of the grant of the
Option, thirty-five percent of the stock covered thereby on the second
anniversary date of the grant of the Option and forty-five percent of the
stock covered thereby on the third anniversary date of the grant of the Option.
In addition, on the day of the 1996 Annual Meeting of Stockholders, each
Director who is not an employee of the Company who has served as an outside
director for at least one year will receive a one-time grant of a Nonstatutory
Option to purchase 10,000 shares of Common Stock at a fair market value
exercise price, which Option will be immediately exercisable. 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.
In
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any given fiscal year, no Optionee may receive Incentive Options covering more
than 300,000 shares of Stock (such number of shares to be adjusted in
accordance with Section 15).
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.
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
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<PAGE> 5
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 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
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<PAGE> 6
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,
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
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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.
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.
7
<PAGE> 1
EXHIBIT 5
LTX CORPORATION
LTX PARK AT UNIVERSITY AVENUE
WESTWOOD, MA 02090
TELEPHONE: (617) 461-1000
FACSIMILE: (617) 329-8836
December 21, 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
December 21, 1995 (the "Registration Statement"), of 1,000,000 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").
I have acted as counsel to the Company in connection with the foregoing
registration of the Shares. I have examined and relied upon the originals or
copies of such records, instruments, certificates, memoranda and other
documents as I have deemed necessary or advisable for purposes of this opinion
and have assumed, without independent inquiry, the accuracy of those documents.
In that examination, I have assumed the genuineness of all signatures, the
conformity to the originals of all documents reviewed by me as copies, the
authenticity and completeness of all original documents reviewed by me in
original or copy form and the legal competence of each individual executing
such documents. I have
<PAGE> 2
LTX Corporation
December 21, 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, I am 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.
I understand that this opinion is to be used in connection with the
Registration Statement. I consent to the filing of a copy of this opinion with
the Registration Statement.
Very truly yours,
/s/ Pamela A. Keating
---------------------
Pamela A. Keating
General Counsel
<PAGE> 1
EXHIBIT 23(A)
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the use of our
report dated September 8, 1995 included in LTX Corporation's Form 10K for the
year ended July 31, 1995 and to all references to our Firm included in this
registration statement.
/s/ ARTHUR ANDERSEN LLP
Boston, Massachusetts
December 21, 1995
