<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
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FORM 10-Q
(Mark One)
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X QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
- --- SECURITIES EXCHANGE ACT of 1934
For the quarterly period ended April 30, 1998
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OR
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TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
- --- SECURITIES EXCHANGE ACT of 1934
For the transition period from to
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Commission File Number 0-10761
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LTX CORPORATION
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(Exact Name of Registrant as Specified in Its Charter)
<TABLE>
<S> <C>
MASSACHUSETTS 04-2594045
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(State or Other Jurisdiction of Incorporation or Organization) (I.R.S. Employer Identification No.)
LTX Park at University Avenue, Westwood, Massachusetts 02090
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(Address of Principal Executive Offices) (Zip Code)
</TABLE>
Registrant's Telephone Number, Including Area Code (781) 461-1000
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Former Name, Former Address and Former Fiscal Year, if Changed Since Last
Report.
Indicate by check X whether the registrant: (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days Yes X No
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Indicate the number of shares outstanding of each of the issuer's classes
of common stock, as of the latest practicable date.
Class Outstanding at June 8, 1998
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Common Stock, par value $0.05 per share 35,366,319
<PAGE> 2
LTX CORPORATION
INDEX
Page Number
Part I. FINANCIAL INFORMATION
Consolidated Balance Sheet 1
April 30, 1998 and July 31, 1997
Consolidated Statement of Operations
Three months and nine months ended 2
April 30, 1998 and April 30, 1997
Consolidated Statement of Cash Flows
Nine months ended April 30, 1998 3
and April 30, 1997
Notes to Consolidated Financial Statements 4 - 6
Management's Discussion and Analysis of
Financial Condition and Results of Operations 7 - 11
Part II. OTHER INFORMATION
Item 1 - Legal Proceedings 12
Item 6 - Exhibits and Reports on Form 8-K 12
SIGNATURES 13
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LTX CORPORATION
CONSOLIDATED BALANCE SHEET
(Unaudited)
(In thousands, except share data)
<TABLE>
<CAPTION>
April 30, July 31,
1998 1997
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<S> <C> <C>
ASSETS
Current assets:
Cash and equivalents $ 46,953 $ 67,800
Accounts receivable, less allowances of $1,900, and $1,100 50,483 40,845
Inventories 75,909 54,947
Other current assets 3,859 4,016
--------- ---------
Total current assets 177,204 167,608
Property and equipment, net 43,656 42,958
Other assets 2,733 2,980
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$ 223,593 $ 213,546
========= =========
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities:
Notes payable and current portion of
long-term liabilities $ 10,832 $ 11,514
Accounts payable 39,630 23,887
Accrued expenses and restructuring charges 11,405 11,933
Unearned service revenues and customer advances 14,327 5,156
--------- ---------
Total current liabilities 76,194 52,490
Long-term liabilities, less current portion 10,792 13,550
Convertible subordinated debentures 7,308 7,308
Stockholders' equity:
Common stock, $0.05 par value 1,895 1,881
(37,881,123 and 37,624,668 shares issued)
Additional paid-in capital 196,746 195,798
Accumulated deficit (57,581) (53,120)
Less - Treasury stock at cost (11,761) (4,361)
(2,547,500 and 947,500 shares)
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Total stockholders' equity 129,299 140,198
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$ 223,593 $ 213,546
========= =========
</TABLE>
See accompanying Notes to Consolidated Financial Statements
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<PAGE> 4
LTX CORPORATION
CONSOLIDATED STATEMENT OF OPERATIONS
(Unaudited)
(In thousands, except per share amounts)
<TABLE>
<CAPTION>
Three Months Nine Months
Ended Ended
April 30, April 30,
----------------------- --------------------------
1998 1997 1998 1997
-------- ------- --------- ---------
<S> <C> <C> <C> <C>
Net sales $ 54,130 $49,497 $ 163,468 $ 140,946
Cost of sales 39,766 33,307 110,120 96,903
Inventory provision for product line restructuring - - - 9,250
-------- ------- --------- ---------
Gross margin 14,364 16,190 53,348 34,793
Engineering and product development 8,350 5,761 22,994 17,200
expenses
Selling, general and administrative expenses 12,812 9,586 34,767 28,582
Product line restructuring costs - - - 6,750
-------- ------- --------- ---------
Income (loss) from operations (6,798) 843 (4,413) (17,739)
Interest (income) expense, net 132 7 48 (154)
-------- ------- --------- ---------
Income (loss) before income taxes (6,930) 836 (4,461) (17,585)
Provision for income taxes (596) 119 0 119
-------- ------- --------- ---------
Net income (loss) ($ 6,334) $ 717 ($ 4,461) ($ 17,704)
======== ======= ========= =========
Earnings per share:
Net income (loss):
Basic $ (0.17) $ 0.02 $ (0.12) $ (0.50)
Diluted $ (0.17) $ 0.02 $ (0.12) $ (0.50)
Weighted average number of shares:
Basic 36,797 35,408 36,757 35,432
Diluted 36,797 36,855 36,757 35,432
</TABLE>
See accompanying Notes to Consolidated Financial Statements
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LTX CORPORATION
CONSOLIDATED STATEMENT OF CASH FLOWS
(Unaudited)
(In thousands)
<TABLE>
<CAPTION>
Nine Months
Ended
April 30,
------------------------
1998 1997
-------- --------
<S> <C> <C>
CASH PROVIDED BY (USED IN) OPERATING ACTIVITIES:
Net income (loss) $ (4,461) $(17,704)
Add (deduct) non-cash items:
Depreciation and amortization 9,229 7,963
Exchange gain (15) (154)
Changes in assets and liabilities:
Accounts receivable (10,864) 8,470
Inventories (22,032) 9,954
Other current assets 157 209
Other assets 250 48
Accounts payable 15,972 (7,438)
Accrued expenses and restructuring charges (6,776) 2,173
Unearned service revenues and customer advances 9,171 (2,372)
-------- --------
Net cash provided by (used in) operating activities (9,369) 1,149
-------- --------
CASH USED IN INVESTING ACTIVITIES:
Maturities of held-to-maturity securities, net - 9,941
Expenditures for property and equipment (10,167) (10,872)
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Net cash used in investing activities (10,167) (931)
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CASH USED IN FINANCING ACTIVITIES:
Proceeds from stock purchase and option plans 962 1,020
Repayments of bank debt (376) (1,306)
Repayments of long-term debt (2,976) (2,667)
Proceeds from lease financing and sale-leaseback 1,451 2,435
Purchase of treasury stock - (3,356)
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Net cash used in financing activities (939) (3,874)
-------- --------
Effect of exchange rate changes on cash (372) (522)
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Net decrease in cash and equivalents (20,847) (4,178)
Cash and equivalents at beginning of period 67,800 66,069
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Cash and equivalents at end of period $ 46,953 $ 61,891
======== ========
SUPPLEMENTAL CASH FLOW DISCLOSURES:
Cash paid during the period for:
Interest $ 1,485 $ 1,742
Income taxes 979 1,951
SUPPLEMENTAL SCHEDULE OF NONCASH INVESTING AND FINANCING ACTIVITIES:
1,600,000 shares of LTX common stock received by LTX $ 7,400
as consideration for certain marketing, sales and
manufacturing rights and held in treasury
</TABLE>
See accompanying Notes to Consolidated Financial Statements
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<PAGE> 6
LTX CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Unaudited)
1. THE COMPANY
LTX Corporation (the "Company") designs, manufactures, and markets
automatic test equipment for the semiconductor industry that is used to
test system-on-a-chip, mixed technology, mixed signal, and discrete
semiconductor components. Headquartered in Westwood, Massachusetts, the
Company has development and manufacturing facilities in Westwood,
Massachusetts and San Jose, California and worldwide sales and service
facilities to support its customer base.
2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
Basis of Presentation
The accompanying financial statements have been prepared by the Company,
without audit, and reflect all adjustments which, in the opinion of
management, are necessary for a fair statement of the results of the
interim periods presented. The preparation of financial statements in
conformity with generally accepted accounting principles requires
management to make estimates and assumptions that affect the reported
amount of assets and liabilities and disclosures of contingent assets and
liabilities as of the date of the financial statements and the reported
amounts of income and expenses during the reporting periods. Certain
information and footnote disclosures normally included in the annual
financial statements which are prepared in accordance with generally
accepted accounting principles have been condensed or omitted. Accordingly,
although the Company believes that the disclosures are adequate to make the
information presented not misleading, the financial statements should be
read in conjunction with the footnotes contained in the Company's Annual
Report on Form 10-K.
Revenue Recognition
Revenues from product sales and related warranty costs are recognized at
the time of shipment. Service revenues are recognized over the applicable
contractual periods or as services are performed. Revenues from engineering
contracts are recognized over the contract period on a percentage of
completion basis.
Inventories
Inventories are stated at the lower of cost (first-in, first-out) or market
and include material, labor and manufacturing overhead. Inventories
consisted of the following at:
<TABLE>
<CAPTION>
April 30, July 31,
1998 1997
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(In thousands)
<S> <C> <C>
Raw materials $24,220 $14,482
Work-in-process 33,934 24,409
Finished goods 17,755 16,056
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$75,909 $54,947
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</TABLE>
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<PAGE> 7
LTX CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
(Unaudited)
3. EARNINGS PER SHARE
On January 31, 1998, the Company adopted the provisions of Statement of
Financial Accounting Standards No. 128 "Earnings Per Share" (FAS 128). This
statement was issued by the Financial Accounting Standards Board in
February 1997 and establishes standards for computing and presenting
earnings per share (EPS) and applies to entities with publicly held common
stock or potential common stock. This statement replaces the presentation
of primary EPS with a presentation of basic EPS. It requires dual
presentation of basic and diluted EPS on the face of the statement of
operations for all entities with complex capital structures and requires a
reconciliation of the numerators and denominators of the basic and diluted
EPS computations. FAS 128 also requires a restatement of all prior-period
EPS data presented. Basic earnings per share amounts have been computed
using the weighted average number of common and common equivalent shares
outstanding during each period. Diluted earnings per share amounts have
been computed using the weighted average number of common and common
equivalent shares and the dilutive potential common shares outstanding
during each period.
A reconciliation between basic and diluted earnings per share is as
follows:
<TABLE>
<CAPTION>
Three Months Nine Months
Ended Ended
April 30, April 30,
----------------------- ------------------------
1998 1997 1998 1997
-------- ------- -------- --------
(In thousands, except per share amounts)
<S> <C> <C> <C> <C>
Net income (loss) ($ 6,334) $ 717 ($ 4,461) ($17,704)
Basic EPS
Basic common shares 36,797 35,408 36,757 35,432
Basic EPS $ (0.17) $ 0.02 $ (0.12) $ (0.50)
Diluted EPS
Basic common shares 36,797 35,408 36,757 35,432
Plus: Impact of stock options - 860 - -
Plus: Impact of stock warrants - 587 - -
-------- ------- -------- --------
Diluted common shares 36,797 36,855 36,757 35,432
Diluted EPS $ (0.17) $ 0.02 $ (0.12) $ (0.50)
</TABLE>
4. INTEREST EXPENSE AND INCOME
Interest expense and income were as follows:
<TABLE>
<CAPTION>
Three Months Nine Months
Ended Ended
April 30, April 30,
----------------------- ------------------------
1998 1997 1998 1997
-------- ------- -------- --------
(In thousands) (In thousands)
<S> <C> <C> <C> <C>
Expense $500 $642 $1,629 $2,012
Income (368) (635) (1,581) (2,166)
---- ---- ------ ------
Interest (income) expense, net $132 $ 7 $ 48 ($ 154)
==== ==== ====== ======
</TABLE>
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<PAGE> 8
LTX CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
(Unaudited)
5. ANDO AGREEMENT
On April 24, 1998, the Company entered into an agreement with Ando Electric Co.,
Ltd. ("Ando") of Japan to market and develop LTX's Fusion system-on-a chip test
platform for Japanese customers, with certain exceptions. In exchange for
certain marketing, sales and manufacturing rights for Fusion in Japan, Ando paid
LTX $10 million and delivered to LTX 1,600,000 shares of LTX common stock. Ando
has also agreed to pay royalties to LTX on future sales to Fusion in Japan, and
to reduce the interest rate on $14,000,000 of debt from 8% to 5.5% as of March
30, 1998.
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<PAGE> 9
MANAGEMENT'S DISCUSSION AND ANALYSIS
OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS
The following table sets forth for the periods indicated the principal
items included in the Consolidated Statement of Operations as percentages of net
sales.
<TABLE>
<CAPTION>
Percentage
Percentage of Net Sales Increase/(Decrease)
--------------------------------------------- ------------------------
Three Months Nine Months Three Months Nine Months
Ended Ended 1998 1998
April 30, April 30, Over Over
------------------- -------------------
1998 1997 1998 1997 1997 1997
----- ----- ----- ----- ----- -----
<S> <C> <C> <C> <C> <C> <C>
Net sales 100.0% 100.0% 100.0% 100.0% 9.4% 16.0%
Cost of sales 73.5 67.3 67.4 68.7 19.4 13.6
Inventory provision for product line - - - 6.6 N/A N/M
restructuring
----- ----- ----- -----
Gross margin 26.5 32.7 32.6 24.7 (11.3) 53.3
Engineering and product
development expenses 15.4 11.6 14.0 12.2 44.9 33.7
Selling, general and
administrative expenses 23.7 19.4 21.3 20.3 33.7 21.6
Product line restructuring costs - - - 4.8 N/A N/M
----- ----- ----- -----
Income (loss) from operations (12.6) 1.7 (2.7) (12.6) N/M N/M
Interest (income) expense, net 0.2 - - (0.1) N/M N/M
----- ----- ----- -----
Income (loss) before income
taxes (12.8) 1.7 (2.7) (12.5) N/M N/M
Provision for income taxes (1.1) 0.3 - 0.1 N/M N/M
----- ----- ----- -----
Net income (loss) (11.7)% 1.4% (2.7)% (12.6)% N/M N/M
===== ===== ===== =====
</TABLE>
N/A - Not Applicable
N/M - Not Meaningful
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<PAGE> 10
MANAGEMENT'S DISCUSSION AND ANALYSIS
OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS
(CONTINUED)
RESULTS OF OPERATIONS
Net sales for the three months ended April 30, 1998, were $54.1 million as
compared to $49.5 million in the same quarter of the prior year, an increase of
9.4%. The increase in net sales includes $7.4 million of revenue related to the
alliance with Ando (see note 5 to consolidated financial statements). Excluding
the Ando revenue, sales decreased 5.6% from the same quarter of the prior year
due to the slowdown in the semiconductor business during the three months ended
April 30, 1998, which resulted in a significant number of orders not
materializing, particularly in the Asia Pacific region. For the six months ended
April 30, 1998, net sales were $163.5 million as compared to $140.9 million for
the same period of the prior year, an increase of 16.0%. The year to date
increase is due primarily to an increase in shipments of the Company's Delta/STE
mixed technology test systems as well as more favorable semiconductor equipment
industry conditions on a year to date basis since the first nine months of the
prior fiscal year.
The gross profit margin was 26.5% of net sales for the three months ended April
30, 1998, as compared to 32.7% for the three months ended April 30, 1997. Gross
profit margin for the three months ended April 30, 1998, was 25.1%, excluding
the favorable effect of the Ando transaction of $7.4 million and the unfavorable
effect of inventory and other provisions of $5.0 million. The decrease in gross
profit margin over the prior year is due primarily to the adverse effect of an
unfavorable product mix and the lower level of sales relative to fixed
manufacturing and applications assistance costs.
For the nine months ended April 30, 1998, gross profit margin was 32.7% as
compared to 31.2% excluding the inventory provision for product line
restructuring, for the nine months ended April 30, 1997. The improvement in
gross profit margin for the nine months is a result of the proportionately lower
fixed manufacturing costs and costs associated with the Company's applications
assistance and customer support organizations relative to the higher net sales
and the benefit of product cost reductions.
In the first quarter of the prior fiscal year, the Company redirected its
product strategy to focus primarily on functionally complex devices known as
"systems-on-a-chip." As a result, for the nine months ended April 30, 1997, the
gross profit margin was reduced by a $9.3 million inventory provision,
associated with non-strategic Digital products. In addition to the inventory
provision, the Company also recorded a charge of $6.7 million in the nine months
ended April 30, 1997, for canceled non-strategic development projects and other
costs associated with the change in product strategy.
Engineering and product development expenses were $8.4 million, or 15.4% of net
sales, in the three months ended April 30, 1998, as compared to $5.8 million, or
11.6% of net sales, in the same quarter of the prior year. For the nine months
ended April 30, 1998, engineering and product development expenses were $23.0
million, or 14.0% of net sales, as compared to $17.2 million, or 12.2% of net
sales, in the nine months ended April 30, 1997. The increase in engineering
expenses reflects the Company's continued investment in the development of its
single platform test system, Fusion(TM), for testing "system-on-a-chip" devices.
Selling, general and administrative expenses were $12.8 million, or 23.7% of net
sales, in the three months ended April 30, 1998, as compared to $9.6 million, or
19.4% of net sales, in the same quarter of the prior year. For the nine months
ended April 30, 1998, selling, general and administrative expenses were $34.8
million, or 21.3% of net sales, as compared to $28.6 million, or 20.3% of net
sales, in the nine months ended April 30, 1997. The increase in selling, general
and administrative expenses relates primarily to increased advertising and
promotion costs associated with the product introduction of Fusion and the
expansion of the Company's sales organization.
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<PAGE> 11
There was no provision for income taxes for the nine months ended April 30,
1998, due to the net loss for the period. The provision for income taxes of $0.1
million for the nine months ended April 30, 1997, reflects certain state and
foreign tax provisions.
The decreased net product sales, decreased gross profit margin and continued
investment in Fusion product development and promotion costs resulted in a net
loss of $6.3 million, or $(0.17) per share, for the three months ended April 30,
1998, as compared to net income of $0.7 million, or $0.02 per share, in the same
period of the prior year. For the nine months ended April 30, 1998, the net loss
was $4.5 million or $(0.12) per share as compared to a net loss of $17.7
million, or $(0.50) per share, in the same period of the prior year. The prior
year's net loss included an inventory provision and restructuring charges
totaling $16.0 million, or $(0.45) per share.
Industry conditions further weakened during the three months ended April 30,
1998, particularly in certain countries in the Asia market due to economic
conditions in that region. Management believes that weak semiconductor equipment
industry conditions will continue for the near term. Until there is substantial
improvement in industry conditions, the weak industry conditions will continue
to adversely affect the Company's results of operations. The Company's results
of operations would be further adversely affected if it were to experience
lower than anticipated order levels, cancellations of orders in backlog,
extended customer delivery requirements or lower than anticipated margins due to
unfavorable product mix. The Company has taken steps to reduce discretionary
spending and capital expenditures.
LIQUIDITY AND CAPITAL RESOURCES
Cash and equivalents were $47.0 million at April 30, 1998, as compared to $67.8
million at July 31, 1997. The decrease in cash balances of $20.8 million was a
result of cash used in operating activities of $9.4 million, $10.2 million of
cash used for additions to property and equipment, $0.9 million of cash used in
financing activities and $0.4 million for the effect of exchange rate changes on
cash.
The negative cash flow from operations was a result of the $10 million of cash
received under the Ando alliance, offset by a combination of higher accounts
receivable levels and the increase in inventories, net of accounts payable, in
the period. The increase in accounts receivable relates to extended payment
terms with certain key customers as well as the timing of shipments during the
quarter. The increase in inventories is a result of materials purchased for the
future deliveries of Fusion and finished goods for anticipated orders which did
not materialize during the quarter. The increase in accounts payable in the
period is a result of the higher level of inventory purchases.
Property and equipment additions were $10.2 million in the nine months ended
April 30, 1998; additions during the period included test systems and spares
modules for the Company's product development programs and customer support
requirements as well as computer equipment.
Payments of long-term debt of $3.0 million in the nine months ended April 30,
1998, reflect a $2.0 million semi-annual principal payment on a long term note
made in January. The Company's Japanese subsidiary repaid $0.4 million of bank
borrowings during the period. During the nine months ended April 30, 1998, the
Company received $1.3 million in proceeds from the sale-leaseback of capital
equipment. There were no borrowings outstanding at April 30, 1998, or July 31,
1997, under the Company's working capital line of credit with its domestic
banks.
Management believes that the Company has sufficient cash resources to meet its
remaining fiscal 1998 cash requirements. These resources include cash balances
of $47.0 million at April 30, 1998, together with the borrowing availability
under its domestic working capital and equipment lease line and future cash
flows from operations.
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<PAGE> 12
BUSINESS RISKS
In this report the Company makes, and may from time to time elsewhere make,
disclosures which contain forward-looking statements within the meaning of the
Private Securities Litigation Reform Act of 1995. Such disclosures in this
report include, without limitation, statements regarding semiconductor equipment
industry conditions, the development, introduction, acceptance, market and
initial shipments for Fusion and the Company's belief, under "Liquidity and
Capital Resources," as to the adequacy of its cash resources. Such
forward-looking statements involve risks and uncertainties including, but not
limited to, the following important factors that could cause actual results to
differ materially from those in the forward-looking statement:
FLUCTUATIONS IN SALES AND OPERATING RESULTS
Given the relatively large selling prices of the Company's test systems, sales
of a limited number of test systems account for a substantial portion of sales
in any particular fiscal quarter and a small number of transactions could
therefore have a significant impact on sales and gross margins for that fiscal
quarter. The Company's sales and operating results have fluctuated and could in
the future fluctuate significantly from period to period, including from one
quarterly period to another, due to a combination of factors, including the
cyclical demand of the semiconductor industry, order cancellations or
rescheduling by customers, the large selling prices of the Company's test
systems (which typically result in a long selling process), competitive pricing
pressures and the mix between and configuration of test systems sold in a
particular period. The impact of these and other factors on the Company's sales
and operating results in any future period cannot be forecast with accuracy. In
addition, the need for continued investment in research and development, for
capital equipment requirements and for extensive worldwide customer support
capability results in significant fixed costs which would be difficult to reduce
in the event that the Company does not meet its sales objectives.
ASIA ECONOMIC CONDITIONS
In light of the recent economic downturn in certain Asian countries, there can
be no assurance that the Company will be able to obtain additional orders or
that it will not experience cancellations of existing orders from customers in
or dependent upon such countries, any of which would have an adverse effect on
the Company's business and results of operations.
IMPORTANCE OF NEW PRODUCT INTRODUCTIONS
The semiconductor test equipment ("STE") market is subject to rapid
technological change and new product introductions, as well as advancing
industry standards. The development of increasingly complex semiconductors and
the utilization of semiconductors in a broader spectrum of products has driven
the need for more advanced test systems to test such devices at an acceptable
cost. The Company's ability to remain competitive in the mixed signal and
system-on-a-chip integrated circuit ("IC") and discrete component markets will
depend upon its ability to successfully enhance existing test systems, develop
new generations of test systems, such as its new Fusion platform and to
introduce these new products on a timely and cost-effective basis. The Company
also has to manufacture its products in volume at a competitive price and on a
timely basis to enable customers to integrate them into their operations as they
begin to produce their next generation of semiconductors. The Company's failure
to have a competitive test system available when required by a semiconductor
manufacturer would make it substantially more difficult for the Company to sell
test systems to that manufacturer for a number of years. The Company has in the
past experienced delays in introducing certain of its products and enhancements,
and there can be no assurance that it will not encounter technical or other
difficulties that could in the future delay the introduction of new products or
enhancements. If new products have reliability or functionality problems, then
reduced, canceled or rescheduled orders, higher manufacturing costs, delays in
collecting accounts receivable and additional warranty expense may result, which
could reduce gross margins on new product sales and otherwise materially affect
the Company's business and results of operations. The Company's Fusion product
is subject to the risks associated with new product introductions, including the
risk that delays in development, reliability or functionality problems could
increase expenses and reduce gross margins on new product sales.
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<PAGE> 13
Furthermore, announcements by the Company or its competitors of new products
could cause customers to defer or forego purchases of the Company's existing
products, which would also adversely affect the Company's business and results
of operations. There can be no assurance that the Company will be successful in
the introduction and volume manufacture of its new Fusion products, that such
introduction will coincide with the development by semiconductor manufacturers
of their next generation semiconductors or that such products will satisfy
customer needs or achieve market acceptance. The failure to do so could
materially adversely affect the Company's business and results of operations.
CYCLICALITY OF SEMICONDUCTOR INDUSTRY
The Company's business is largely dependent upon the capital expenditures of
semiconductor manufacturers. The semiconductor industry is highly cyclical and
has historically experienced recurring periods of oversupply, which often have
had a severely detrimental effect on such industry's demand for test equipment
and could cause cancellations, rescheduling or reductions of customer orders. No
assurance can be given that the Company's business and results of operations
will not be materially adversely affected if downturns or changes in any
particular market segments of the semiconductor industry occur in the future,
especially if all of the market segments in which the Company participates
experience downturns at the same time.
YEAR 2000
Many computer systems will experience problems handling dates beyond the year
1999 because the systems are coded to accept only two-digit entries in the date
code field. Therefore, some computer hardware and software will need to be
modified in order to address this problem. The Company is assessing the
readiness of its products sold to customers for handling Year 2000 issues, as
well as its own internal business systems and the products and internal business
systems of its suppliers. Although the Company is not aware of any material
operational costs or issues associated with Year 2000 compliance, there can be
no assurance that there will not be a delay in, or increased costs associated
with, the implementation of such changes, and the Company's inability to
implement such changes could have an adverse effect on future results of
operations.
ACQUISITIONS
The Company from time to time may acquire technologies, product lines or
businesses that are complementary to those of the Company. Although the Company
believes that integration of acquired technologies, product lines and businesses
will result in long-term growth and profitability, there can be no assurance
that the Company will be able to successfully negotiate finance or integrate
such acquired technologies, product lines or businesses. Furthermore, the
integration of an acquired company or business may cause a diversion of
management time and resources. There can be no assurance that a given
acquisition, if consummated, would not materially adversely affect the Company.
PROPRIETARY RIGHTS
The Company's future success depends in part upon its proprietary
technology. Although the Company attempts to protect its proprietary
technology through a combination of contract provisions, trade secrets,
copyrights and patents, it believes that its future success depends more
upon its engineering, manufacturing, marketing and service skills. There
can be no assurance that the steps taken by the Company to protect its
proprietary rights will be adequate to prevent misappropriation of its
technology or the independent development by others of similar technology.
Although there are no pending actions against the Company regarding any
patents, no assurance can be given that infringement claims by third
parties will not have a material adverse effect on the Company's business
and results of operations.
-11-
<PAGE> 14
PART II -- OTHER INFORMATION
Item 1. Legal Proceedings
In June 1996, the Company was notified by Korean semiconductor
manufacturer Daewoo that certain purchase agreements aggregating $50.1
million were not properly authorized and would not be honored.
The Company initiated litigation seeking to enforce those
agreements in June 1996. In September 1997, a federal district court
judge in Boston, Massachusetts determined that the court does not have
jurisdiction in this lawsuit. In March 1998, the U.S. Court of Appeals
for the First Circuit affirmed the jurisdictional decision of the
district court. These purchase agreements were not included in the
Company's backlog at April 30, 1998 or July 31, 1997.
The Company has no other material pending legal proceedings other
than routine litigation relating to its business.
Item 6. Exhibits and Reports on Form 8-K
(a) (i) Exhibit 10 - Material Contracts
- Fusion Agreement dated as of the 24th day of April, 1998,
by and between LTX Corporation and Ando Electric Co.,
Ltd. (Exhibit 10(AA))*
- Second Amendment to Credit Agreement effective as of the
29th day of April, 1998, by and among LTX Corporation,
BankBoston, N.A. and Silicon Valley Bank (Exhibit 10(BB))
(ii) Exhibit 27 - Financial Data Schedule
(b) There were no reports on Form 8-K filed during the three months
ended April 30, 1998.
* Confidential treatment requested as to certain portions
thereof. The confidential portion has been omitted and
filed separately with the Commission.
- 12 -
<PAGE> 15
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
LTX Corporation
Date: June 12, 1998 By: /s/ Roger W. Blethen
--------------- --------------------------------------------
Roger W. Blethen
Chief Executive Officer and President
Date: June 12, 1998 By: /s/ Carol B. Langer
--------------- --------------------------------------------
Carol B. Langer
Vice President, Chief Financial Officer and Treasurer
(Principal Financial Officer)
-13-
<PAGE> 1
FUSION AGREEMENT
THIS AGREEMENT (the "Agreement"), dated as of this 24th day of April, 1998
("Effective Date"), is made by and between LTX Corporation ("LTX"), a
corporation organized under the laws of the Commonwealth of Massachusetts,
U.S.A., whose principal place of business is at University Avenue, Westwood,
Massachusetts 02090, U.S.A., and Ando Electric Co., Ltd. ("Ando"), a corporation
organized under the laws of Japan whose principal place of business is at 4-19-7
Kamata, Otaku, Tokyo, 144 Japan.
W I T N E S S E T H:
WHEREAS, LTX is engaged in the marketing, sale, development and manufacture
of a single platform test system with the product name "Fusion(TM)" that offers
a broad range of test capabilities including advanced mixed signal, high-speed
digital, digital signal processing, RF wireless, embedded memory, power, and
time measurement;
WHEREAS, LTX and Ando have previously entered into certain agreements
relating to the license and development of certain resource per pin digital
tester technology and the manufacture and sale of test systems incorporating
such technology; and
WHEREAS, LTX and Ando desire to enter into a new agreement with respect to
the marketing, sales, training, applications, development, support and
manufacturing of Fusion in Japan on the terms and conditions provided herein;
NOW, THEREFORE, in consideration of the premises and of the mutual promises
and covenants contained herein, the parties hereto hereby agree as follows:
I. DEFINITIONS
1.1 DEFINITIONS.
"AFFILIATE" shall mean any corporation or other business entity
controlled by LTX or Ando, respectively. (For
this purpose "control" shall mean direct or indirect beneficial ownership of
more than fifty percent (50%) of the voting stock of, or more than fifty percent
(50%) interest in the equity or beneficial interest of, such corporation or
other business entity, or such other relationship as, in fact, constitutes
actual control.)
<PAGE> 2
"ANDO PATENTS" shall mean all patents or similar statutory rights
granted to or claimed by Ando or any Affiliate of Ando as of the Effective Date
or during the term hereof with respect to Fusion Test Systems, Ando Technology
or Ando Improvements by any country, including any continuation-in-part,
continuation or division thereof or substitution therefor, and reissue,
extension or renewal thereof. The Ando Patents exclude all patents owned by
Persons other than Ando, or its Affiliates, which Ando does not have the right
to sublicense without consent of any third Person or payment of additional
royalties.
"ANDO TECHNOLOGY" shall mean the Ando Know-how, Ando Patents and all
technology of Ando and Ando's Affiliates existing as of the Effective Date or
during the term hereof described and defined by Ando's documentation including
schematics, drawings, development reports, manufacturing and design know-how and
processes, and production specifications relating to Fusion Test Systems.
Without limitation of the foregoing, Ando Technology shall include the Know-how,
Ando Patents and all technology of Ando and Ando's Affiliates existing as of
January 28, 1993 or developed during the term of the LDA (as defined in "Prior
Agreements" hereunder). A software or hardware algorithm, a checker program, and
a calibration program for a component of Fusion Test Systems are examples of a
process. The Ando Technology excludes all technology owned by Persons other than
Ando, or its Affiliates, which Ando does not have the right to sublicense
without consent of any third Person or payment of additional royalties.
"ANDO IMPROVEMENTS" shall mean any Improvement that Ando, or of
Affiliates or subcontractors, either solely or jointly with LTX and/or others,
may acquire, discover, invent, originate, make or conceive with respect to the
Ando Technology.
"ANDO-DEVELOPED LTX IMPROVEMENTS" shall mean any Improvement that Ando
or its Affiliates or subcontractors, solely and not jointly with LTX or its
Affiliates, may acquire, discover, invent, originate, make or conceive with
respect to LTX Licensed Technology.
"CT DIGITAL CHANNELS" shall mean the Ando-developed digital channels
derived from the LTX VX250 digital modules in accordance with the LDA to be used
in the Fusion HF Test System, and shall have the technical specifications set
forth in Schedule 1.1(a) hereto.
"CONFIDENTIAL INFORMATION" shall have the meaning set forth in Section
11.
-2-
<PAGE> 3
"enVISION++(TM) SOFTWARE" shall mean LTX's proprietary enVision++(TM)
software, the operating system for Fusion Test Systems, which consists of four
software subsystems: (a) Stage Zero, the LTX license enforcement manager; (b)
enVision, the software subsystem that controls the digital component of
enVision++; (c) Cadence, the software subsystem that controls the analog and
mixed signal components of enVision++; and (d) Interface, the software subsystem
that allows the three foregoing subsystems to be joined into one system.
"FUSION TEST SYSTEMS" shall mean the single platform test systems
offering a broad range of test capabilities, including some or all of the
following: advanced mixed-signal, high-speed digital, digital signal processing,
RF wireless, embedded memory, power, and time measurement. Fusion Test Systems
offer a broad range of test configurations for integrated circuits ranging from
VLSI digital to systems-on-a-chip. Fusion Test Systems include, without
limitation, the HF, DS, HT and AC configurations (with an example of each
configuration generally described on Schedule 1.1(b)), the Fusion Test Systems
incorporating the CT Digital Channels and Improvements thereto.
"IMPROVEMENTS" shall mean any improvement, version, derivative or
development relating to or concerning Fusion Test Systems that any person,
either solely or jointly with others, may acquire, discover, invent, originate,
make, conceive or have rights to, in whole or in part, during the term of this
Agreement, whether or not such improvement or development is patentable,
commercially useful or reducible to writing or practice. An Improvement in
software shall constitute a modification or addition to existing lines of source
or object code to enhance the performance or the maintainability of a software
product. Additional comments on an existing program may constitute an
Improvement. The Improvements do not include any technology which is useful for
or applies to only products other than Fusion Test Systems.
"KNOW-HOW" shall mean all information possessed by LTX or by Ando, as
the case may be, and to which it has rights to use relating to techniques,
processes and methods used in design, development, modification, redesign and
manufacture of Fusion Test Systems, including information relating to associated
application products, test fixtures and software. A software or hardware
algorithm, development technique, debug tool, graphics strategy, or other such
concepts are included in the definition of "Know-how".
"LTX-DEVELOPED ANDO IMPROVEMENTS" shall mean any Improvement that LTX
or its Affiliates or subcontractors, solely and not jointly with Ando or its
Affiliates, may acquire, discover, invent or originate, make or conceive with
respect to Ando Technology.
-3-
<PAGE> 4
"LTX IMPROVEMENTS" shall mean any Improvements that LTX, or its
Affiliates or subcontractors, either solely or jointly with Ando and/or others,
may acquire, discover, invent, originate, make or conceive with respect to the
LTX Licensed Technology.
"LTX LICENSED TECHNOLOGY" shall mean the LTX Know-how, LTX Patents and
all technology of LTX and LTX's Affiliates existing as of the Effective Date or
during the term hereof, described and defined by LTX's or such Affiliate's
documentation including, without limitation, schematics, drawings, production
specifications relating to Fusion Test Systems. The LTX Licensed Technology
includes, without limitation, the documentation, schematics, drawings, product
specifications relating to the CT Digital Channels which are necessary or useful
in respect of development of the CT Digital Channels as set forth in Schedule
1.1(c) attached hereto. The term "LTX Licensed Technology" shall exclude all
Mixed Signal Technology except as otherwise provided in Section 9.4(b) hereof.
The LTX Licensed Technology excludes all technology owned by Persons solely or
jointly other than LTX, or its Affiliates, which LTX does not have the right to
sublicense without consent of any third Person or payment of royalties.
"LTX PATENTS" shall mean all present and future patents or similar
statutory rights granted to or claimed by LTX or any Affiliate of LTX as of the
Effective Date or during the term hereof with respect to Fusion Test Systems,
LTX Licensed Technology or LTX Improvements by any country, including any
continuation-in-part, continuation or thereof or substitution therefor, and
reissue, extension or renewal thereof. The LTX Patents exclude all patents owned
by Persons other than LTX, or its Affiliates, which LTX does not have the right
to sublicense without consent of any third Person or payment of additional
royalties.
"MIXED SIGNAL MODIFICATIONS" shall have the meaning ascribed to such
term in Section 9.4(b) hereof.
"MIXED SIGNAL MODULES" shall mean the mixed signal components,
modules, options, parts, assemblies and sub-assemblies used with Fusion Test
Systems, including, without limitation, those set forth on Schedule 1.1(d)
hereto.
"MIXED SIGNAL TECHNOLOGY" shall mean the Know-how, LTX Patents and all
technology of LTX and LTX's Affiliates, existing as of the Effective Date or
during the term hereof, in respect of the Mixed Signal Modules, described or
defined by LTX's or such Affiliate's documentation.
-4-
<PAGE> 5
"NET SALES" shall mean the sum of all payments received by Ando for
all amounts invoiced by Ando and its Affiliates to non-Affiliated Persons with
respect to sales, leases, or other transfers of Fusion Test Systems and parts
thereof manufactured by Ando; provided, however, that payments shall be deemed
to have been received by Ando ninety (90) days after the date of such invoice,
less, in each case only if separately stated in the invoice and whether absorbed
by the seller or paid by purchasers of Fusion Test Systems, any (a) actual
allowances (for returns, damages or otherwise) and actual cash discounts to
purchasers, (b) amounts for transportation, insurance, shipping or other charges
from a distribution center in the Territory to the purchaser of Fusion Test
Systems or parts thereof, and (c) taxes and duties levied directly on the sale
of Fusion Test Systems or parts thereof. In no event shall the amount of Net
Sales for any sale or lease be based on a price less than the cash price which
would be paid in an arms-length transaction at such time, and the value of any
non-Fusion equipment taken in trade shall be included in calculating Net Sales.
With respect to any lease or rental of Fusion Test System and parts thereof, Net
Sales at the commencement of such lease or rental shall be based on the sum of
all lease or rental payments to be made during the lease or rental term
(including, without limitation, any payments in respect of the transfer of such
Fusion Test System or parts at the end of the lease or rental term).
"NEW TECHNOLOGY" shall mean any technology relating to or concerning
Fusion Test Systems that the parties develop jointly during the term of this
Agreement and that the parties agree in writing is neither a LTX Improvement nor
an Ando Improvement.
"PERSON" shall mean any individual, corporation, partnership, limited
liability company, trust, joint stock company, unincorporated association or
other entity, or a government or any agency or political subdivision thereof.
"PRIOR AGREEMENTS" shall mean (i) the License and Development
Agreement dated January 28, 1993 between LTX and Ando, and Amendment No. 1
thereto dated July 20, 1994 (together, the "LDA"), (ii) Distribution and Supply
Agreement dated January 28, 1993 between LTX and Ando, (iii) Side Letter dated
January 29, 1993 between LTX and Ando, (iv) Software Distribution Agreement
dated as of May 21, 1993 between LTX and Ando; (v) Agreement for Sale of Parts
dated as of August 30, 1994 between LTX and Ando; (vi) Source Code License
Agreement dated as of August 9, 1996 between LTX and Ando; (vii) Preferred
Registration Technology Escrow Agreement dated as of May 21, 1993 among Ando,
LTX and Data Securities International; and (viii) Supplemental Agreement
Regarding Intellectual Property Procedures dated as of March 26, 1996 between
LTX and Ando.
-5-
<PAGE> 6
"PROCESSES" shall mean all processes, methods and procedures by which
the Know-how is used to manufacture, produce or make Fusion Test Systems or
parts thereof. A software or hardware algorithm, a checker program and a
calibration program for a component of Fusion Test Systems are examples of
Processes.
"SALES MILESTONES" shall mean percentages ranging from twenty-five
percent (25%) to seventy-five percent (75%) of the forecasted sales for Fusion
Test Systems in the Territory by Ando to be determined by the Steering Committee
as part of the Fusion Business Plan (as defined in Section 4.3) with respect to
sales of Fusion Test Systems to non-Affiliated Persons in the Territory. Sales
Milestones shall be reviewed and evaluated by the Steering Committee on no less
than an annual basis. The initial measurement period for such Sales Milestones
shall commence as of the Effective Date hereof and end as of the end of the
eighteenth calendar month thereafter; each subsequent measurement period for the
remainder of the term of this Agreement shall commence as of the first day of
the next succeeding calendar month and end as of the end of the twelfth calendar
month thereafter.
"TERRITORY" shall mean Japan.
"U.S. OWNED COMPANIES" shall mean *
.)
II. TERMINATION OF PRIOR AGREEMENTS
2.1 TERMINATION. LTX and Ando hereby agree that the Prior Agreements
(referenced in items (ii) and (v) under the definition "Prior Agreements") shall
terminate and be of no further force and effect, except for such provisions
which by their terms expressly survive termination, effective as of the
Effective Date and that the other Prior Agreements shall survive in accordance
with their terms; provided, however, that the term of the LDA under Section 7.1
and the Side Letter referenced in item (iii) under the definition of Prior
Agreements shall be changed to three years after the Effective Date of this
Agreement.
III. FUSION SALES
- -------------
* Confidential treatment requested as to certain portions thereof. The
confidential portion has been omitted and filed separately with the
Commission.
-6-
<PAGE> 7
3.1 EXCLUSIVE RIGHT TO SELL; TERRITORY.
(a) Except for the exclusions described in Section 3.1(b), LTX
hereby grants to Ando and Ando hereby accepts the exclusive right to sell all
Fusion Test Systems to customers in the Territory, throughout the term of this
Agreement. The term "exclusive" as used herein shall be deemed to exclude LTX as
well as any third party.
(b) *
.
(c) In order to facilitate the sales effort in the Territory for
Fusion Test Systems, both parties agree, to the extent commercially reasonable,
to direct their respective sales and/or applications personnel to assist the
other party upon such party's request.
(d) Permitted customers in the Territory shall include a customer
of Ando in the Territory *
which requests delivery outside of the Territory to Affiliates of such customer
and to manufacturing subsidiaries of any such customers which subsidiaries'
facilities are located outside the Territory. Except for the foregoing, nothing
contained in this Agreement shall be construed to grant Ando any rights to sell
Fusion Test Systems outside of the Territory.
3.2 PRODUCT NAME; LABELING. All Fusion Test Systems sold in the
Territory shall be marketed in a manner consistent with LTX's marketing
strategies for Fusion, will be packaged consistent with LTX's packaging of
Fusion Test Systems and sold under the product name "Fusion". All Fusion test
systems will also be labeled with the names of LTX and Ando and may be labeled
in a separately mutually agreeable location on the product with an ALxxxx
product designation.
- -------------
* Confidential treatment requested as to certain portions thereof. The
confidential portion has been omitted and filed separately with the
Commission.
-7-
<PAGE> 8
3.3 PRICE VARIATIONS. *
3.4 SALES MILESTONES. Ando's exclusive right to sell Fusion Test
Systems in the Territory as described in Section 3.1 may, at the discretion of
LTX, become non-exclusive in the event any Sales Milestone is not achieved by
Ando.
IV. FUSION DIVISION
4.1 ESTABLISHMENT OF DIVISION. Ando shall establish a division of Ando
(the "Fusion Division"), which shall be exclusively dedicated to Fusion Test
System sales, applications and support. The Fusion Division will be supported by
applicable manufacturing, engineering and the general and administrative
resources of Ando ("Allocated Support"). All sales by Ando of Fusion Test
Systems shall be made by or conducted through the Fusion Division. The Fusion
Division shall be located in a facility to be mutually agreed to by LTX and
Ando.
4.2 STEERING COMMITTEE. Within 30 days of the execution of this
Agreement, LTX and Ando shall establish a joint steering committee (the
"Steering Committee"), consisting of four representatives of LTX and four
representatives of Ando. One of each party's representatives shall be appointed
Chairman by each party in its sole discretion, and such Chairman shall be
charged with formally making any decision of the Steering Committee representing
LTX or Ando, as the case may be. Each Steering Committee member will serve at
the pleasure of the party designating such member and may be replaced, with or
without cause, at any time by the designating party, effective upon notice to
the other party. The Steering Committee shall be responsible for strategic
management decisions concerning the Fusion Division and strategic operating
decisions under this Agreement which shall be reasonably made based upon
reasonable allocation of resources in light of market conditions for such
business. The Steering Committee shall also review the organizational structure
and management personnel for the Fusion Division. The Steering Committee shall
be governed by operating procedures to be mutually agreed to by LTX and Ando
which LTX and Ando shall use their best efforts to agree to within 30 days after
the execution of this Agreement; provided, however, that in the event the
Steering Committee cannot make a strategic management or operating decision as a
result of a "deadlock", LTX and Ando agree that the matter shall be provided to
each party's respective President, and such Presidents shall attempt, in good
faith, to resolve the matter. In the event the Presidents are unable or
unwilling to resolve such matter within
- ---------
* Confidential treatment requested as to certain portions thereof. The
confidential portion has been omitted and filed separately with the
Commission.
-8-
<PAGE> 9
a reasonable time period, the strategic management or operating decision shall
not be undertaken by the Fusion Division. The Steering Committee shall then meet
to discuss mutually acceptable alternatives.
4.3 FUSION SALES. Within 90 days of the execution of this Agreement,
the Steering Committee shall agree upon a comprehensive written business and
operating plan to market Fusion Test Systems in Japan (the "Fusion Business
Plan"). Without limiting the generality of the foregoing, LTX and Ando agree
that the Fusion Business Plan shall describe selling strategies for the Fusion
Division and the Sales Milestones. The parties shall use their best efforts to
update and revise the Fusion Business Plan on an annual basis or as business
conditions may require.
4.4 SALES FORECAST. LTX and Ando shall each periodically provide the
other with a forecast of its respective plans to manufacture Fusion Test Systems
for the Territory (the "Manufacturing Plans"). The Manufacturing Plans shall be
presented to the Steering Committee and will be presented for fiscal quarters
based on a July 31 year end over a nine-month period, and will be updated every
quarter. Updated Manufacturing Plans will be sent by each party before the first
of each quarter so that it is received not later than the 15th day of the month
before the first month of the quarter, covering the following three quarters.
The Manufacturing Plans shall be merely good faith estimates and shall not be
binding upon either party.
4.5 FUSION DIVISION PERSONNEL.
(a) To assure the effective marketing of Fusion Test Systems by
Ando, Ando will provide, as soon as possible, a preliminary non-binding report
which shall include categories and numbers of employees to be assigned to the
Fusion Division. The Fusion Business Plan will include the final determination
of the Steering Committee as to the personnel to be assigned to the Fusion
Division. Such individuals shall devote to the Fusion Division all of their
working efforts and time in order to meet the objectives set forth in the Fusion
Business Plan.
(b) LTX shall provide such sales and applications training to
Ando personnel approved by LTX under a schedule which the parties shall use
their best efforts to agree to within thirty (30) days after execution of this
Agreement, to enable Ando to sell and do applications work for Fusion Test
Systems * . Ando personnel will begin
their activities in the Fusion Division upon successful completion of
standardized training courses in Fusion Test Systems sales and applications.
- -------------
* Confidential treatment requested as to certain portions thereof. The
confidential portion has been omitted and filed separately with the
Commission.
-9-
<PAGE> 10
4.6 MARKETING OF FUSION.
(a) Ando shall engage in an extensive public relations and
advertising campaign in the Territory for Fusion Test Systems, including,
without limitation, periodic advertisements in trade journals, to facilitate
successful sales efforts in the Territory. The Fusion Test Systems incorporating
the CT Digital Channels shall be marketed as Fusion Test Systems, with the
precise name to be mutually agreed upon. Ando shall use its best efforts to
vigorously market and sell Fusion Test Systems in the Territory, which efforts
shall be at least comparable to those used by Ando for other products that have
been successfully marketed by Ando.
(b) All of Ando's public relations and advertising campaign shall
use the name "Fusion" as the product name and shall indicate that Fusion Test
Systems are being marketed in the Territory by the LTX/Ando alliance. LTX shall
have the right to reasonably approve any Fusion marketing materials prior to
publication.
(c) LTX agrees that it shall provide Ando with copies of or
access to all its Fusion marketing materials. Ando shall have the right to
reproduce, translate and use any such materials for marketing Fusion Test
Systems in the Territory.
4.7 BOOKS AND RECORDS OF FUSION DIVISION.
(a) The books and records of the Fusion Division (with Allocated
Support) shall be maintained in accordance with Japanese generally accepted
accounting principles ("Japanese GAAP") and shall accurately reflect, on a
consistent basis from period to period, the Fusion Division's financial
position. The books, records and supporting documents of the Fusion Division
shall be available for inspection by LTX or its designee at all reasonable
times.
(b) LTX may request an audit of such records by an independent
public accountant of its selection, other than the independent public accounting
firm used by Ando, at the expense of LTX.
(c) The Fusion Division will issue to LTX summary income and cash
flow statements and balance sheets within forty-five (45) days of the last day
of each calendar quarter. The Fusion Division also will issue to LTX on a
quarterly basis, within forty-five (45) days following each quarter, such other
reports as may be reasonably requested from time to time. All said reports and
books and records delivered to LTX shall be prepared in both English language
and Japanese language.
-10-
<PAGE> 11
V. LICENSES
5.1 GRANT TO ANDO.
(a) Subject to the terms and conditions of this Agreement, LTX
hereby grants to Ando a worldwide license, without the right to sublicense
except as provided by Section 5.4, to use, improve and modify the LTX Licensed
Technology and LTX Improvements solely for the purpose of permitting Ando to
use, design and develop the Fusion HF/DS test head for the CT Digital Channels,
including use of Know-how for integration of the Fusion HF/DS test head with the
CT Digital Channels, as more fully described on Schedule 5.1 hereto. The LTX
Licensed Technology and LTX Improvements necessary to enable Ando to perform the
foregoing shall be delivered promptly to Ando after the execution of this
Agreement.
(b) In the event that LTX shall consent to Ando developing and
manufacturing a Mixed Signal Modification as provided in Section 9.4(b) hereof,
the definition of the term "LTX Licensed Technology" as defined in Section 1.1
hereof shall include the Mixed Signal Technology necessary to develop and
manufacture such Mixed Signal Modification.
(c) LTX hereby grants to Ando an exclusive royalty-bearing
license as provided in this Agreement in the Territory of the LTX Licensed
Technology and LTX Improvements to use, manufacture, have made, market, sell,
lease, improve, repair or otherwise dispose of Fusion Test Systems (and parts
therefor) *
, subject to the limitations hereinafter described or the
conditions set forth in Section 3.4 hereof. Ando, in accordance with its desire
to manufacture and market Fusion Test Systems, accepts such license and
appointment, all on the terms and conditions contained herein. In addition, LTX
hereby grants to Ando an exclusive royalty-bearing license as provided in this
Agreement to sell, lease, improve, repair or otherwise dispose of Fusion Test
Systems and parts thereof to any permitted customer of Ando in the Territory
which requires delivery outside of the Territory to affiliates of such permitted
customer and to manufacturing subsidiaries of any such permitted customers which
subsidiaries' facilities are located outside of the Territory. LTX shall retain
for itself the right to use, manufacture, have made, market, sell, lease,
improve, repair or otherwise dispose of Fusion Test Systems outside of the
Territory. Such LTX Licensed Technology and LTX Improvements shall be delivered
to Ando by LTX within a reasonable time period to enable Ando to effectuate the
foregoing.
- -------------
* Confidential treatment requested as to certain portions thereof. The
confidential portion has been omitted and filed separately with the
Commission.
-11-
<PAGE> 12
(d) LTX hereby grants to Ando a royalty-free non-exclusive
license, without right of sublicense, to use and display the trademark "Fusion"
in the Territory during the term of the Agreement. The parties acknowledge that,
except for the license granted herein, LTX retains all rights with respect to
the Fusion trademark and the subsisting and future registrations thereof. Ando
shall not do or cause or suffer to be done any act or thing that will in any way
impair such rights, and all use of the trademark hereunder by Ando shall inure
to the exclusive benefit of LTX. Ando shall include all notices and legends with
respect to the trademark as are or may be required by applicable national,
federal, state and local laws or which may be reasonably requested by LTX.
(e) Ando is not LTX's representative or agent; has no authority
to assume or create any obligation on LTX's behalf, express or implied, with
respect to LTX products or otherwise; and agrees not to make to any third party
any representation, guarantee or warranty other than those provided for in this
Agreement.
(f) Ando represents that Fusion Test Systems distributed under
this Agreement are and shall be for sale, lease or service, in the regular
course of Ando's business as permitted under this Agreement, or are and shall be
for its internal use in supporting sales, leases or services.
5.2 FUTURE DEVELOPMENT GRANTS TO ANDO. Given the considerable
engineering expertise of both companies, Ando and LTX will contribute to the
future development of Fusion Test Systems as mutually agreed to by the parties
from time to time. LTX will provide to Ando as LTX Licensed Technology under
this Agreement, the information, schematics, drawings, know-how and related
technology necessary or useful for such development and Ando is granted a
license to use such information to jointly engage in such future development.
5.3 GRANT TO LTX. Subject to the terms and conditions of this
Agreement, Ando hereby grants to LTX (i) a mutually exclusive worldwide license
to use, improve and modify the Ando Technology and Ando Improvements, without
the right to sublicense except as provided by Section 5.4, for the purpose of
designing and developing Fusion Test Systems and repair and replacement parts
thereof, and (ii) an exclusive license of the Ando Technology and Ando
Improvements to use, manufacture, have made, market, sell, lease, improve,
repair or otherwise dispose of Fusion Test Systems (and parts therefor) outside
of the Territory (and in the Territory with respect to the rights set forth in
Section 3.1(b)). The license granted in this Section is mutually exclusive where
stated in that Ando shall also retain for itself the rights granted to LTX, but
the Ando shall not grant any such license to any other Person.
-12-
<PAGE> 13
5.4 PROTECTION OF LICENSE. Ando will not grant any sublicense in the
LTX Licensed Technology or LTX Improvements licensed hereunder other than
sublicenses solely for the internal use of the sublicensee in the Territory to
manufacture components of Fusion Test Systems or to provide services to or for
the benefit of Ando. LTX will not grant any sublicense in Ando Technology or
Ando Improvements licensed hereunder other than sublicenses solely for the
internal use of the sublicensee outside the Territory to manufacture components
of Fusion Test Systems or to provide services to or for the benefit of LTX.
5.5 OTHER LICENSE PROVISIONS. Nothing in this section shall be
construed to limit the right of LTX to use, transfer, or license the LTX
Licensed Technology to any other Person with respect to any product which is not
a Fusion Test System. Nothing in this section shall be construed to limit the
right of Ando to use, transfer, or license the Ando Technology to any other
Person with respect to any product which is not a Fusion Test System.
VI. OWNERSHIP
6.1 OWNERSHIP OF LTX LICENSED TECHNOLOGY. All right, title and
interest in the LTX Licensed Technology and LTX Improvements shall be owned
exclusively by LTX.
6.2 OWNERSHIP OF ANDO TECHNOLOGY. All right, title and interest in the
Ando Technology and Ando Improvements shall be owned exclusively by Ando.
6.3 LTX IMPROVEMENTS AND PATENTS. LTX shall promptly communicate to
Ando any Improvements that it or any of its Affiliates or subcontractors, either
solely or jointly with others, may acquire, discover, invent, originate, make or
conceive with respect to the LTX Licensed Technology, LTX Improvements, Fusion
Test Systems, the Ando Technology, the Ando-developed LTX Improvements, the
LTX-developed Ando Improvements, or Ando Improvements. LTX shall, and shall
cause its Affiliates and subcontractors to, fully and promptly disclose to Ando
the nature of and manner of performing such Improvements, and shall suggest to
Ando potential usages and applications of such Improvements. LTX shall have the
exclusive right, at its own expense, to file and prosecute patent applications
in any country covering or involving LTX Improvements and hereby grants and
agrees to grant to Ando the exclusive royalty-bearing right as provided in this
Agreement, during the term hereof, to use any LTX Patents that LTX obtains
pursuant to the foregoing in the Territory to use, manufacture, have made,
market, sell, lease, improve, repair or otherwise dispose of Fusion Test Systems
(and parts therefor) in accordance with this Agreement. All of such applications
and LTX Patents that may issue as a result thereof, and all other proprietary
rights in LTX Improvements shall be the
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<PAGE> 14
exclusive property of LTX, subject to the license granted in Section 5.1. LTX
agrees to execute and cause its subcontractors to execute such further or other
documents and assurances which may be required from time to time in order to
give effect to the provisions of this Agreement.
6.4 ANDO IMPROVEMENTS AND PATENTS. Ando shall promptly communicate to
LTX any Improvements that it or any of its Affiliates or subcontractors, either
solely or jointly with others, may acquire, discover, invent, originate, make or
conceive with respect to the Ando Technology, the Ando Improvements, the LTX
Licensed Technology, LTX Improvements, the Ando-developed LTX Improvements, the
LTX-developed Ando Improvements, or Fusion Test Systems. Ando shall, and shall
cause its Affiliates and subcontractors to, fully and promptly disclose to LTX
the nature of and manner of performing any such Improvements, and shall suggest
to LTX potential usages and applications of such Improvements. Ando shall have
the exclusive right at its own expense, to file and prosecute patent
applications in any country covering or involving Ando Improvements, and hereby
grants and agrees to grant to LTX the royalty-free non-exclusive right, during
the term hereof, to use any Ando Patents that Ando obtains pursuant to the
foregoing outside the Territory. All of such applications and Ando Patents that
may issue as a result thereof, and all other proprietary rights in the Ando
Improvements, shall be the exclusive property of Ando, subject to the license
granted in Section 5.3. Ando agrees to execute and cause its subcontractors to
execute such further or other documents and assurances which may be required
from time to time in order to give effect to the provisions of this Agreement.
6.5 NEW TECHNOLOGY: ANDO-DEVELOPED LTX IMPROVEMENTS; LTX-DEVELOPED
ANDO IMPROVEMENTS. All right, title and interest in any New Technology,
Ando-developed LTX Improvements or LTX-developed Ando Improvements shall be
jointly owned by LTX and Ando. Except as the parties may otherwise agree in
writing, each party shall have the unrestricted right to make, use, sell and
otherwise exploit all New Technology, Ando-developed LTX Improvements or
LTX-developed Ando Improvements for its own benefit without the necessity of any
consent of the other party or any obligation to account to the other party;
provided, however, that the foregoing does not imply that consent is not
necessary for underlying technology, either under this Agreement or otherwise.
The parties will cooperate with each other to file and prosecute patent
applications covering New Technology, Ando-developed LTX Improvements or
LTX-developed Ando Improvements, provided, that neither party shall file a
patent application covering New Technology, Ando-developed LTX Improvements or
LTX-developed Ando Improvements without the written consent of the other party.
LTX and Ando shall each have the right to enforce any patents granted covering
New Technology, Ando-developed LTX
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<PAGE> 15
Improvements or LTX-developed Ando Improvements at its own expense and for its
own benefit. However, during the term of this Agreement, or in the event
termination of this Agreement is caused by Ando's breach until six years after
the Effective Date of this Agreement, LTX's and Ando's rights and restrictions
regarding the Ando-developed LTX Improvements or LTX-developed Ando Improvements
shall be subject to all of the terms and conditions of this Agreement to the
same extent as if such technology was considered to be LTX Licensed Technology
or Ando Technology, as the case may be.
6.6 INTELLECTUAL PROPERTY PROCEDURES. LTX and Ando agree to enter into
an agreement that sets forth additional procedures with regard to intellectual
property in addition to the procedures set forth herein on substantially the
same terms and conditions contained in the Supplemental Agreement Regarding
Intellectual Property Procedures dated March 27, 1996 between LTX and Ando.
VII. SOFTWARE LICENSING
7.1 SOFTWARE LICENSING. LTX agrees to grant to Ando an object code,
machine readable, license to use enVision++ Software with Fusion Test Systems,
and to distribute the enVision++ Software in the Territory to users of Fusion
Test Systems. Subject to the terms contained herein, LTX grants Ando a license
in source code format to use enVision++ Software in the Territory, licensing
such modules as may be necessary for development and to make specific changes
and provide support requested by customers, which shall be effected and
delivered by amendment to the Source Code License included with the Prior
Agreements, which amendment shall be agreed to by the parties within sixty (60)
days after execution of this Agreement. In order to facilitate joint development
and maintain accurate changes over multiple development sites, Ando shall
maintain network capability with sufficient bandwidth and shall utilize the
ClearCase MultiSite System. The parties agree to execute a Software Licensing
and Distribution Agreement relating to the foregoing containing the material
terms of such licensing and distribution arrangement substantially similar to
that included in the Prior Agreements, to be agreed to by the parties within
sixty (60) days after execution of this Agreement including, without limitation,
pricing.
7.2 SUBLICENSE. Ando agrees that it will sublicense enVision++
Software to its customers on a form of software license agreement containing
terms and conditions substantially similar to the terms and conditions of LTX's
Master Software License Agreement.
7.3 SOFTWARE ESCROW
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<PAGE> 16
(a) If LTX decides to discontinue supplying enVision++ Software,
LTX shall notify Ando of its decision and during the one year period after such
notice, LTX and Ando will negotiate possible alternatives after termination of
the Software Licensing and Distribution Agreement. During this one year period,
LTX shall continue to supply enVision++ Software to Ando under the terms and
conditions of this Section 7.3 and the Software Licensing and Distribution
Agreement. During the term of this Agreement, LTX agrees to use commercially
reasonable efforts to, jointly with Ando, modify enVision++ Software for use on
Fusion Test Systems when a customer of Ando makes a reasonable request for a
custom modification. The parties will agree to the price to be paid to LTX in
consideration of its share of any such modification.
(b) Notwithstanding anything to be contrary contained herein, LTX
and Ando agree under the Source Code Escrow Agreement, included with the Prior
Agreements or under a new agreement on substantially the same terms as such
Source Code Escrow Agreement (the "Escrow Agreement"), that LTX shall deposit
into escrow printed and machine readable copies of all portions of the
enVision++ Software which are proprietary to LTX, and any modifications thereof
of either of them (the "Modifications"), each in source code form (collectively,
the "Source Code"), unless if otherwise provided to Ando by LTX under this
Agreement, the Source Code License (as amended) or otherwise, and any
documentation (the "Documentation" and, collectively with the Source Code in its
source code form any updates to either as provided for herein, the "Escrow
Materials") for source code form of each item included in the Source Code. Ando
agrees to bear all costs associated with the escrow set forth in the Escrow
Agreement. The Escrow Agreement shall be supplementary to this Agreement.
The Escrow Materials shall be released from escrow to Ando upon
the earlier of:
(i) twenty days after notice by Ando to the Escrow Agent, with a
copy to LTX, stating that LTX is in material breach of Section 7.3(a) of this
Agreement (the failure by LTX and Ando to negotiate an alternative to the
Software Licensing and Distribution Agreement being deemed to be a material
breach of Section 7.3(a)), which material breach has been continuing unremedied
for ninety (90) days, and that Ando is not in material breach of this Agreement,
provided, that LTX shall have the right to stay such delivery to Ando by the
Escrow Agent pending an arbitration proceeding in accordance with Section 14.5
hereof by delivery of Contrary Instructions, as defined in the Escrow Agreement;
(ii) in the event that LTX has delivered Contrary Instructions
and initiated an arbitration, in accordance with clause (i) hereof, upon the
receipt by the Escrow Agent of a final determination by such arbitrators that
LTX is in
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<PAGE> 17
material breach of Section 7.3(a) of this Agreement, which breach
continued unremedied for ninety (90) days, and that Ando is not in material
breach of this Agreement;
(iii) if LTX shall make an assignment for the benefit of
creditors or a receiver shall be appointed for its business or properties, of if
any bona fide petition shall be filed by or against it under any provisions of
any bankruptcy, insolvency or similar laws and the same has not been dismissed
within (60) days after filing.
If the Escrow Materials are released under clause (iii) above, in the case of
proceeding under Chapter 11 of the United States Bankruptcy Code, then, so long
as LTX continues to perform or is able to perform its obligations under Section
7.3(a) of this Agreement, Ando shall continue to make all payments under Section
7 and 8.2(f).
LTX represents and warrants and covenants to Ando that (i) the Escrow
Materials to be provided to the Escrow Agent constitute the source code form of
the enVision++ Software and any modifications as licensed to Ando pursuant to
this Agreement and (ii) the Escrow Materials to be delivered to the Escrow Agent
will be in a form suitable for production by computer and/or photocopy
equipment. Notwithstanding the foregoing, Ando acknowledges that, in order to
maintain and enhance the Escrow Materials, a third programmer or analyst may
require use of a reference to other publicly available software, routines and
techniques, and assistance from LTX with respect to specific techniques and
algorithms. LTX represents and warrants and covenants that it will supplement
the Escrow Materials delivered hereunder with all revisions, corrections, and
enhancements or other changes in a timely manner, but no more often than two (2)
times per year, so that the Escrow Materials continue to constitute the human
readable program for the current release of each portion of the Source Code. Any
Escrow Materials released to Ando shall be used by Ando exclusively for the
purposes of supplying, supporting and maintaining enVision++ Software for Fusion
Test Systems manufactured by Ando and used by Ando or Ando's customers.
VIII. PAYMENTS AND ROYALTIES
8.1 CONSIDERATION.
(a) In consideration of LTX's development activities and training
prior to the Effective Date and future development and training activities, and
in consideration of the disclosure of LTX Licensed Technology and the rights and
privileges granted to Ando herein, Ando hereby agrees to the following:
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<PAGE> 18
(i) two payments aggregating Ten Million Dollars
($10,000,000), of which Two Million Dollars ($2,000,000) has previously been
paid and Eight Million Dollars ($8,000,000) shall be payable in U.S. Dollars, by
bank or cashier's check or by wire transfer at the time of signature of this
Agreement; and
(ii) a reduction of the interest rate on Ando's loan (the
"Loan") to LTX (as evidenced by that certain loan agreement dated as of July 20,
1994 and a subordinated promissory note dated as of July 20, 1994, in the
original principal amount of Twenty Million Dollars ($20,000,000)) from eight
percent (8%) to five and one-half percent (5.5%), effective as of March 30, 1998
as to the outstanding balances as of such date. The parties agree to execute any
reasonable additional documentation relating to this amendment to the Loan; and
(iii) to deliver to LTX stock certificate(s) representing
1,600,000 shares of Common Stock of LTX, duly endorsed for transfer or with
executed stock powers.
8.2 ROYALTY.
(a) Ando shall pay to LTX, on a calendar quarter basis, pursuant
to Section 8.2(c), a royalty equal to a percentage, pursuant to the following
schedule, of Ando's Net Sales:
(i) For the period commencing as of the Effective Date and
ending at the end of the twelfth full calendar month following the Effective
Date, * percent (* %);
(ii) For the period commencing as of the first day of the
thirteenth full calendar month following the Effective Date and ending at the
end of the twenty-fourth month after the Effective Date, * percent (* %);
(iii) *
- -------------
* Confidential treatment requested as to certain portions thereof. The
confidential portion has been omitted and filed separately with the
Commission.
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<PAGE> 19
*
.
(b) In addition to the royalty payments required to be paid to
LTX pursuant to Section 8.2(a), Ando shall pay to LTX within forty-five (45)
days after the * Fusion Test System manufactured by or for Ando has been
sold or leased by Ando to Affiliates or non-Affiliated third Persons (including
LTX and its Affiliates), a payment of * Dollars ($* ). However,
if at any time Ando shall loan or otherwise transfer to affiliates more than
five Fusion Test Systems, all of such systems shall be deemed sales for purposes
of calculating the foregoing royalty. Any loans or other transfers to
non-affiliates shall be conducted in the ordinary course of business on the
basis of arms length negotiation and in a commercially reasonable manner. The
provisions of this Section 8.2(b) shall not be construed to require that *
Fusion Test Systems be manufactured by or for Ando.
(c) In addition to the financial statements required to be
delivered to LTX pursuant to Section 4.7 hereto, Ando shall furnish to LTX
within forty-five (45) days of the end of each calendar quarter during the term
of this Agreement (a) a report in writing specifying (i) Ando's Net Sales for
Fusion Test Systems and parts therefor during the immediately preceding quarter,
broken down by customer and country and including sufficient detail to enable
LTX to verify the calculation of such Net Sales, (ii) the total number of units
of Fusion Test Systems sold, leased, loaned or otherwise transferred by Ando to
Affiliates or non-Affiliated third Persons during the immediately preceding
quarter, and (iii) such other related details as are reasonably requested by LTX
and which LTX reasonably believes is necessary or useful to verify such
financial information and (b) the payment due LTX pursuant to Section 8.2(a)
above. All payments will be paid in United States Dollars, without set-off or
counterclaim, and Ando shall make all such payments in cash or by wire transfer
to LTX's account with the bank or trust company designated by LTX. For the
purpose of computing Net Sales, all prices will be converted from the invoiced
currency to the equivalent in United States Dollars, computed either at the
Tokyo interbank rate for United States Dollars and for the respective invoiced
currency in effect at the close of business on the last working day of the
quarter during which the sales have been effected, or in the event that there is
no such official rate of exchange on such date, at the mean of the buying and
selling rates of exchange on such date as quoted by Citibank, N.A., at such
bank's principal offices in New York, New York, United States of America.
- -------------
* Confidential treatment requested as to certain portions thereof. The
confidential portion has been omitted and filed separately with the
Commission.
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<PAGE> 20
(d) Ando shall keep full and accurate records adequate to enable
LTX to verify Ando's Net Sales and all payments required to be paid to LTX
pursuant to Section 8.2 and shall allow LTX to review and audit (at LTX's cost)
such records by an independent certified public accounting firm reasonably
acceptable to Ando upon reasonable notice and during business hours not
unreasonably interfering with Ando's business. In the event that such audit
reveals a variance in excess of ten percent (10%) of Net Sales, Ando shall pay
all costs associated with LTX's audit.
(e) In respect of all payments under this Agreement which are not
made to LTX by Ando when due, Ando shall pay to LTX on demand (whether before or
after judgment) a daily charge computed at the rate of 1 and 1/2% per month or,
if less, the maximum interest rate payable under the laws of the relevant
jurisdiction on the amount from time to time overdue.
(f) With respect to each sublicense of enVision++ Software
distributed through Ando, Ando will pay software license fees to LTX or its
Affiliates in an amount to be agreed to by the parties in the Software Licensing
and Distribution Agreement. Ando will also pay to LTX each year an agreed to
amount for the then effective annual software support services fees with respect
to all enVision++ Software distributed by Ando and used at such time by such
sublicensees. All of such fees shall be paid at the same time and in the same
manner as royalties under Section 8.2(a) and shall be subject to the same
reporting obligations and audit rights as are set forth above in Section 8.2.
8.3 TAXES. The consideration payable under Sections 8.1 and 8.2 (including
the cash payments and stock certificates) is net of taxes and Ando shall be
responsible for all taxes, withholdings, deductions, levies, and assessments of
any nature on such payments now or hereafter imposed or levied by any national,
federal, state or local government or any political subdivision thereof or
taxing or other authority excepting taxes based on the net income of LTX. LTX
will pay to Ando within thirty (30) days after LTX files a tax return using a
tax credit, the amount of any incremental benefit actually realized by LTX, from
use of tax credits resulting from Ando's payment of withholding tax in Japan on
the consideration payable under Sections 8.1 and 8.2 of this Agreement. In the
event such incremental benefit is disallowed by a taxing authority, Ando agrees
that it shall pay within thirty (30) days after LTX provides notice to Ando of
the same (which notice shall include substantiating documentation of such
disallowance), the amount of the payment previously paid by LTX to Ando. Upon
Ando's reasonable request, LTX shall provide Ando with a report describing LTX's
tax status with respect to its tax credits.
IX. MANUFACTURING AND SUPPLY
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<PAGE> 21
9.1 MANUFACTURE OF FUSION TEST SYSTEMS.
(a) It is the ultimate goal of LTX and Ando that Ando shall
manufacture all Fusion Test Systems in the Territory, including the Fusion Test
Systems to be sold by LTX in the Territory upon successful completion by Ando of
all applicable training.
(b) Ando shall have the right to request from time to time that LTX
manufacture Fusion Test Systems to be sold in the Territory.
9.2 TRANSFER PRICE OF FUSION TEST SYSTEMS. In the event that (i) Ando
shall order for sale in the Territory a Fusion Test System manufactured by LTX
or (ii) LTX shall order for sale inside or outside the Territory a Fusion Test
System manufactured by Ando, the parties shall mutually agree from time to time
on a transfer price, which shall apply to both parties.
9.3 ORDERS OF FUSION TEST SYSTEMS.
(a) LTX and Ando shall provide each other with a forecast of
requirements for Fusion Test Systems to be supplied by the other party for the
Territory (the "Buying Plans"). The Buying Plans will be presented for fiscal
quarters based on a July 31 year end, over a nine-month period, and be updated
every quarter. An updated Buying Plan will be sent by each party before the
first month of each quarter so that it is received not later than the 15th day
of the month before the first month of the quarter, covering the following three
quarters. The Buying Plans shall be merely each party's good faith estimate and
shall not be binding upon either party.
(b) All purchases for Fusion Test Systems by LTX or Ando, as the case
may be, or Affiliates shall be made pursuant to a System and Parts Supply
Agreement in a form substantially similar to the Prior Agreements and consistent
with the provisions of this Agreement, which the parties shall use their best
efforts to agree to within sixty (60) days after execution of this Agreement.
Orders shall be on a purchase order in a form to be agreed to by the parties in
the System and Parts Supply Agreement. Any pre-printed terms and conditions on
such purchase order form shall be ineffective.
9.4 MIXED SIGNAL MODULES.
(a) LTX shall manufacture the Mixed Signal Modules ordered by Ando
under the System and Parts Supply Agreement for permitted Fusion Test System
customers in the Territory and will supply Ando with the Mixed Signal
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<PAGE> 22
Modules for final manufacturing integration by Ando in the Territory. The sales
price to Ando for any such Mixed Signal Module shall be as mutually agreed to by
Ando and LTX and as set forth in the System and Parts Supply Agreement.
(b) Ando shall have the right to make revisions, improvements and
modifications to any Mixed Signal Module (with respect to any specific Mixed
Signal Module, a "Mixed Signal Modification") to Fusion Test Systems if the same
shall have been requested by a customer of Ando (which such request shall be
provided promptly to LTX) AND LTX shall have informed Ando in a writing signed
by the President or the Senior Vice President of LTX, which writing shall not be
unreasonably delayed, that Ando will be granted the right to make the Mixed
Signal Modification because LTX is unwilling or unable to provide such Mixed
Signal Modification. Should LTX provide such a writing to Ando, it shall, within
a reasonable period of time thereafter, provide to Ando such LTX Mixed Signal
Technology as may be necessary to allow Ando to make such Mixed Signal
Modification, and the definition of LTX Licensed Technology will include such
LTX Mixed Signal Technology. Should LTX elect to not inform Ando, LTX shall use
its best efforts to develop and manufacture the Mixed Signal Modification within
the time period requested by such Ando customer, or, if such time period is not
commercially reasonable, within a commercially reasonable time period. The price
to Ando for any such Mixed Signal Modification developed and manufactured by LTX
shall be mutually agreed to by LTX and Ando.
9.5 SUPPLY OF PARTS. In addition to the Mixed Signal Modules or Mixed
Signal Modifications, and upon request of Ando, LTX shall supply certain parts
to Ando for the manufacture of Fusion Test Systems under the System and Parts
Supply Agreement or as otherwise mutually agreed.
9.6 EXPORT CONTROL REGULATIONS.
(a) Each party hereby represents and warrants to the other party that
unless prior authorization is obtained from the United States or Japanese
Government, such party shall not knowingly:
(i) export or re-export, directly or indirectly, any technical
data (as defined in Part 379 of the Administration Regulations of the United
States Department of Commerce), or Japanese equivalents, received from the other
party hereunder, or
(ii) disclose such technical data for use in or export or
re-export, directly, or indirectly, any direct product of such technical data,
to any destination or country to which the export or re-export or release of
technical
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<PAGE> 23
data or export or said re-export of products of technical data is prohibited by
United States or Japanese laws and or regulations. These assurances are
furnished by each party in compliance with Part 379 (Technical Data) of the
Export Administration Regulations of the Department of Commerce of the
Government of the United States of America and applicable Japanese laws.
(b) Each party hereby further agrees to obtain any necessary export
license or other documentation prior to the exportation of any Fusion Test
System or technical data acquired from the other party under this Agreement.
Accordingly, such party shall not sell, export, re-export, transfer, divert or
otherwise dispose of any Fusion Test System directly or indirectly to any
person, firm or entity, or country or countries, prohibited by the laws or
regulations of the United States and the Japanese government. Further, each
party shall give notice of the need to comply with such laws and regulations to
any person, firm or entity which it has reason to believe is obtaining any
Fusion Test System from such party with the intention of exportation. Each party
shall secure, at its own expense, such licenses and export and import documents
as are necessary to buy and resell any Fusion Test System and parts thereof
contemplated by this Agreement.
X. TRAINING AND SUPPORT
10.1 LTX TRAINING.
(a) Ando will provide all Fusion Test System customer support services
in the Territory *
and except as otherwise mutually agreed to by the
parties) at the conclusion of a mutually agreeable customer support training
program. At Ando's request, and at times mutually convenient to the parties,
qualified employees of LTX who have a high level of expertise with respect to
the technology embodied in Fusion Test Systems shall meet, cooperate and consult
with personnel at Ando's or LTX's facilities (as selected by Ando), as well as
by telephone and correspondence, to the extent reasonably necessary to enable
Ando to carry out the servicing and repairing of Fusion Test Systems.
(b) Promptly after the execution of this Agreement, LTX shall commence
such training of Ando personnel necessary to enable Ando to manufacture Fusion
Test Systems as provided by this Agreement. Such training shall be conducted at
times and at such locations as may be mutually agreed to by the parties and
shall be provided by qualified employees of LTX who have expertise in
manufacturing Fusion Test Systems.
- -------------
* Confidential treatment requested as to certain portions thereof. The
confidential portion has been omitted and filed separately with the
Commission.
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<PAGE> 24
(c) The training described in paragraphs (a) and (b) of this Section
10.1 (the "Technical Services"), shall be provided free of charge to Ando during
the initial training to be provided under the Agreement (the "Initial Training
Period").
(d) At the expiration of the Initial Training Period, LTX shall
continue to provide Technical Services, but Ando agrees that it shall pay all
reasonable and necessary travel and lodging expenses of such employees of LTX
incurred in connection with their provision of Technical Services away from
LTX's facilities. Assistance will be provided by LTX in accordance with a fee
schedule to be mutually agreed upon. The fee for Technical Services payable
pursuant to the foregoing sentence is for services rendered and is not a
royalty, or in lieu of a royalty, for LTX Licensed Technology.
(e) The Technical Services described in this Section shall be provided
to Ando in compliance with United States export controls and shall not be
provided without the applicable export licenses or authorizations, for which
Ando shall provide such Letters of Assurance or end-use documentation as may be
required under applicable law, treaty or protocol.
10.2 DIGITAL MODULE REPAIR FACILITY. As part of its customer support
services, Ando shall develop a digital module repair facility in the Territory
and shall stock a reasonable inventory of digital, analog and mixed signal
spares for Fusion Test Systems which Ando supports.
10.3 CUSTOMER SUPPORT REVENUE. At the conclusion of the mutually agreeable
customer support training program, Ando shall be entitled to receive any and all
revenue associated with customer support services it provides.
XI. PROPRIETARY INFORMATION
11.1 CONFIDENTIAL INFORMATION. All information which is disclosed under
this Agreement by either party (the "Disclosing Party") to the other party (the
"Receiving Party") relating directly or indirectly to (i) LTX Licensed
Technology, LTX Improvements, Fusion Test Systems, Ando Technology or Ando
Improvements, or (ii) the Disclosing Party's (including its Affiliates or
sublicensees) business, operations, financial situations, customers or suppliers
or any other confidential or proprietary information of the Disclosing Party
which is not available to a third party without restriction in the ordinary
course of business (the "Confidential Information") shall be kept confidential
by the Receiving Party.
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<PAGE> 25
Receiving Party shall not, and shall cause its subcontractors,
sublicensees or affiliates not to, at any time, either during or subsequent to
the term of this Agreement, use for itself or any other Person, disclose or
divulge to any Person, except when authorized by the prior written consent of
the Disclosing Party, any Confidential Information of which Receiving Party or
its subcontractors, sublicensees or affiliates may acquire knowledge during the
term of this Agreement; provided, however, that the confidentiality,
nondisclosure and non-use provisions contained in this Section 11 shall not
apply to any information or data to the extent that Receiving Party shall
demonstrate by clear and convincing evidence that (i) such information or data
was already in the possession of the Receiving Party at the time of disclosure,
(ii) such information or data is known generally to Persons in the trade through
no act or omission of Receiving Party or its subcontractors, sublicensees or
Affiliates, (iii) information or data that is rightfully received from third
persons without obligation of confidentiality to the Disclosing Party, or (iv)
the disclosure of such information or data is required under any laws or
regulations applicable to the Receiving Party. Receiving Party shall enter into
agreements with its subcontractors, sublicensees or Affiliates pursuant to which
such Persons shall agree not to disclose any Confidential Information unless
otherwise expressly provided for herein or agreed separately. Without limitation
of the foregoing, neither party shall be prohibited by this Agreement from using
and exploiting its own technology.
11.2 DISCONTINUATION OF USE. Subject to the rights under Sections 13.6,
upon termination of this Agreement for any reason, Receiving Party shall, and
shall cause its subcontractors, if any, to, immediately cease using any
Confidential Information belonging to the Disclosing Party and, if such
termination is caused by the Receiving Party's breach of this Section 11 or
Section 5.1 or Section 8.1, return all drawings, models, written descriptions or
other tangible items related to the Confidential Information to the Disclosing
Party.
Subject to the rights set forth in Section 13.6, on the termination of
this Agreement, all drawings, models, written descriptions or other tangible
items related to the Confidential Information shall be immediately returned to
the Disclosing Party, along with any copies, computer entries, reproductions,
digests, abstracts or the like of all or any part thereof in Receiving Party's
or its subcontractors', sublicensees' or Affiliates' possession or control, and
upon such return any computer entries or the like relating thereto shall be
destroyed. Such return (and destruction) will not affect Receiving Party's
obligations hereunder.
11.3 SURVIVAL BEYOND AGREEMENT TERM. Each party shall remain subject to the
confidentiality, nondisclosure and non-use provisions of Section 11 until eleven
years after the Effective Date.
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<PAGE> 26
XII. MISCELLANEOUS COVENANTS
12.1 COMPLIANCE WITH LAW.
(a) Neither Ando nor LTX shall take any action which would, or fail to
take any action where such failure would, directly or indirectly result in or
constitute a violation by Ando or LTX of any applicable law, treaty, ruling or
regulation, including, without limitation, laws and regulations relating to the
export, resale and distribution of Fusion Test Systems. Without limiting the
generality of the foregoing, with respect to this Agreement, Ando shall file, if
required, with the Japanese Fair Trade Commission any reports required by
Article 6, Paragraph 2 of the Japanese Anti-Monopoly Law and file with the
Japanese Ministry of Finance any notices required by Articles 29 and 30 of the
Japanese Foreign Exchange and Foreign Trade Control Law.
(b) NOTICE OF CERTAIN EVENTS. Each party shall promptly notify the
other party after it becomes aware of any of the following events: unauthorized
disclosure or use of Confidential Information, as defined herein; any threatened
or pending legal action relating to alleged infringement of proprietary rights
of others in connection with actions taken hereunder; or liability claims
relating to Fusion Test Systems and any other event that may reasonably be
expected to have a material adverse effect upon the sale, manufacture or
distribution of Fusion Test Systems in the Territory.
12.2 REPRESENTATION AND WARRANTIES.
(a) LTX hereby represents and warrants that:
(i) The execution and delivery of this Agreement and the
performance by LTX hereunder have been duly authorized by all necessary
corporate action on the part of LTX. The execution, delivery and performance of
this Agreement does not and will not constitute any material breach of any
agreement, written or oral, to which LTX is a party.
(ii) To the best knowledge of LTX, the use of the LTX Licensed
Technology and the manufacture, marketing, sale and use of the Fusion Test
Systems and the enVision++ Software does not infringe any third person's patent
rights with respect to patents issued, copyrights, trademarks or other
intellectual property.
(iii) LTX either owns or otherwise has the right to grant to Ando
the rights granted under this Agreement with respect to the LTX Licensed
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<PAGE> 27
Technology and, to the best knowledge and belief of LTX, the LTX Licensed
Technology, together with Improvements, should be sufficient in all material
respects for the manufacture and marketing of Fusion Test Systems as
contemplated by this Agreement.
(b) Ando hereby represents and warrants that:
(i) The execution and delivery of this Agreement and the
performance by Ando hereunder have been duly authorized by all necessary
corporate action on the part of Ando. The execution, delivery and performance of
this Agreement does not and will not constitute any material breach of any
agreement, written or oral, to which Ando is a party.
(ii) To the best knowledge of Ando, the Ando Technology does
not infringe any third person's patent rights with respect to patents issued,
copyrights, trademarks or other intellectual property.
(iii) Ando either owns or otherwise has the right to grant
to LTX the rights granted under this Agreement with respect to the Ando
Technology.
(c) Neither party shall have any liability for loss or damage to
property of, or injury to, or the death of the employees of the other party
arising out of or in connection with the performance of this Agreement, and each
party shall indemnify and hold harmless the other party against any and all
claims which its employees may assert against the other party.
12.3 INDEMNIFICATION BY ANDO.
(a) Subject to subparagraph (b) hereof, Ando shall indemnify and
hold harmless LTX and its Affiliates from and against all losses, damages,
liabilities, obligations, costs and expenses of any nature whatsoever (including
reasonable attorneys' fees and court costs) (each, a "Loss") by LTX (i) arising
out of the breach of any representation or warranty made by the Ando in Section
12.2(b) of this Agreement, (ii) arising out of the negligence of Ando in
connection with the sale or distribution by Ando of Fusion Test Systems to any
Person, or (iii) arising in connection with any personal injury or property
damage caused by any Fusion Test System manufactured by Ando which has not been
misused, damaged, or modified; provided, however, that Ando shall not have any
obligation to indemnify LTX for any loss caused by the negligence or fault of
LTX, due to the design defect of Fusion Test Systems or due to any Mixed Signal
Modules or other parts supplied by LTX to Ando.
-27-
<PAGE> 28
(b) LTX shall give prompt notice in writing to Ando of any third
party claim or other notice which might give rise to a claim for indemnification
under subparagraph (a) hereof (a "Claim") and Ando shall have thirty (30) days
within which to elect to undertake, conduct and control, at its own expense, the
settlement or defense of such Claim. In the event of any such election, (i) LTX
shall not pay or settle the Claim so long as Ando is reasonably contesting such
Claim in good faith, (ii) LTX shall be permitted, at its option and own expense,
to participate in the settlement or defense of the Claim, and (iii) Ando shall
agree to promptly reimburse LTX for the full amount of any Loss resulting from
such Claim except for the costs incurred by LTX because of its participation in
the settlement or defense as set forth in clause (ii). In the event Ando does
not make the above-described election, LTX shall have the exclusive right, in
its sole discretion, to contest, settle or compromise the Claim and Ando shall
promptly pay to LTX upon request the amount of any Loss resulting from such
Claim.
12.4 INDEMNIFICATION BY LTX.
(a) Subject to paragraph (b) hereof, LTX shall indemnify and hold
Ando and its Affiliates harmless from and against any and all claims, demands,
suits, liabilities, losses, damages, costs and expenses of any nature whatsoever
(including reasonable attorneys' fees and court costs) (each, a "Loss") (i)
arising out of the breach of any representation or warranty made by LTX in
Section 11.2(a) of this Agreement, (ii) arising out of the negligence of LTX in
connection with the sale or distribution by LTX of Fusion Test Systems to any
Person, or (iii) arising in connection with any personal injury or property
damage caused by any Fusion Test System manufactured or sold by LTX which has
not been misused, damaged or modified; provided, however, that LTX shall not
have any obligation to indemnify Ando for any loss caused by the negligence or
fault of Ando or due to the design defect of Fusion Test Systems or due to any
parts supplied by Ando to LTX.
(b) Ando shall give prompt notice in writing to LTX of any
third-party claim or other notice which might give rise to a claim for
indemnification under subparagraph (a) hereof (a "Claim") and LTX shall have
thirty (30) days within which to elect to undertake, conduct and control, at its
own expense, the settlement or defense of such Claim. In the event of such
election, (i) Ando shall not pay or settle the Claim so long as LTX is
reasonably contesting such Claim in good faith, (ii) Ando shall be permitted, at
its option and own expense, to participate in the settlement or defense of the
Claim, and (iii) LTX shall agree to promptly reimburse Ando for the full amount
of any Loss resulting from such Claim except for the costs incurred by Ando
because of its participation in the settlement or defense as set forth in clause
(ii). In the event LTX does not make the above-described election, Ando shall
have the exclusive right, in its sole
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<PAGE> 29
discretion, to contest, settle or compromise the Claim and LTX shall promptly
pay to Ando upon request the amount of any Loss resulting from such Claim.
12.5 ASSISTANCE WITH CLAIMS. Subject to Sections 12.3 and 12.4 hereof, each
party hereto shall, at the request and expense of the other, furnish such
reasonable assistance as may be required to enable the other party to defend
against third-party claims threatened or filed in connection with the
manufacture, distribution, sale or use of Fusion Test Systems.
XIII. TERM AND TERMINATION
13.1 EFFECTIVE DATE AND TERM. This Agreement becomes effective on the
Effective Date and terminates on the date * after the Effective Date.
13.2 TERMINATION. Notwithstanding Section 13.1 hereof, in the event of the
material breach of this Agreement by Ando or LTX, and if any such breach shall
not be remedied within ninety (90) calendar days or, in the case of payments
due, within thirty (30) calendar days, after notice from the other party
specifying such breach is given pursuant to Section 14.1, or if Ando or LTX
shall become insolvent or make an assignment for the benefit of creditors or a
receiver shall be appointed for its business or properties, or if any bona fide
petition shall be filed by or against it under any provisions of any bankruptcy,
insolvency or similar laws and the same is not dismissed within one hundred
twenty (120) days after filing, the other party may, at its option, terminate
this Agreement upon giving notice of termination to such first party.
Notwithstanding anything contained herein, in the System and Parts Supply
Agreement or in any other writing, agreement or understanding of any nature
whatsoever, no termination, breach, avoidance, dispute, or any other action or
inaction of any nature whatsoever by either party hereto or any third party,
which suspends, breaches or terminates the System and Parts Supply Agreement in
any manner whatsoever, shall have any effect on this Agreement whatsoever. In
the event that this clause contradicts any clause in this Agreement, the System
and Parts Supply Agreement or any other agreement, contract or understanding
between LTX and Ando, LTX and Ando agree that this clause shall control.
13.3 OTHER REMEDIES. The right of termination under this Section shall be
in addition to any other right or remedy any party may have at law or in equity.
Each party acknowledges and agrees that, in the event of a breach or threatened
breach by the other party of Sections 5 or 11 hereof, each party will suffer (or
will be threatened with) irreparable injury and will have no adequate remedy at
law and, accordingly, will be entitled to injunctive and other equitable relief
and remedies against such breach or threatened breach (in addition to any other
relief or remedies LTX might have at law or equity).
- --------
* Confidential treatment requested as to certain portions thereof. The
confidential portion has been omitted and filed separately with the
Commission.
-29-
<PAGE> 30
13.4 INTELLECTUAL PROPERTY BANKRUPTCY PROTECTION ACT. Notwithstanding any
provisions to the contrary herein contained, in case LTX is under any proceeding
under the U.S. Bankruptcy Code and the trustee in bankruptcy of LTX or LTX as a
debtor in possession legitimately elects to reject this Agreement, Ando may,
pursuant to 11 U.S.C. Sec. 365(n), retain any and all rights, to the maximum
extent permitted by law, subject to the royalty payments and other payments
specified herein.
13.5 SURVIVAL. Sections I, II, VI, VIII, XI, XII and XIII shall survive the
termination of this Agreement.
13.6 POST-TERMINATION LICENSE. Notwithstanding anything to the contrary
provided herein, in the event of any termination or expiration of this Agreement
for any reason, LTX shall automatically grant to Ando an irrevocable, perpetual,
royalty-free and non-transferable license to use the LTX Licensed Technology and
Improvements, for the sole and exclusive purpose of maintaining, servicing, and
supporting Fusion Test Systems manufactured (or purchased) and sold by Ando in
compliance with the terms of this Agreement.
13.7 DISCLAIMER.
EXCEPT AS PROVIDED HEREIN, IN NO EVENT SHALL LTX OR ANDO BE LIABLE TO THE OTHER
PARTY FOR SPECIAL, COLLATERAL, EXEMPLARY, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL
DAMAGES WHETHER SUCH DAMAGES ARE ALLEGED AS A RESULT OF TORTIOUS CONDUCT, BREACH
OF WARRANTY, BY WAY OF INDEMNITY, OR BREACH OF ANY OF THE PROVISIONS OF THIS
AGREEMENT EVEN IF LTX OR ANDO, AS THE CASE MAY BE, HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES. SUCH EXCLUDED DAMAGES INCLUDE, BUT ARE NOT LIMITED
TO, COST OF REMOVAL AND REINSTALLATION OF PRODUCTS OR ITEMS, OUTSIDE COMPUTER
TIME, LABOR COSTS, LOSS OF GOODWILL, LOSS OF PROFITS, LOSS OF SAVINGS, LOSS OF
USE OR INTERRUPTION OF BUSINESS, OR OTHER INDIRECT OR CONSEQUENTIAL ECONOMIC
DAMAGES.
XIV. MISCELLANEOUS
14.1 NOTICES. All notices and other communications between the parties
which shall or may be given pursuant to this Agreement shall be deemed to have
been sufficiently given when delivered by personal service or sent by registered
or certified mail or by internationally recognized overnight courier to the
recipient at its address first above written, marked "Attention: President". All
-30-
<PAGE> 31
such communications shall be deemed to be effective on the day on which
personally served, or if sent by registered or certified mail, on the tenth
business day following the date presented to the postal authorities for delivery
to the other party (the cancellation date stamped on the envelope being evidence
of the date of such delivery), or, if by internationally recognized overnight
courier, on the second business day following the date sent by the party to the
other party (the transmittal sheet being evidence of the date sent). Either
party may give to the other written notice of change of address, in which event
any communication shall thereafter be given to such party as above provided at
such changed address.
14.2 ASSIGNMENT. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their successors and assigns. Notwithstanding
the foregoing, neither party hereto shall have the right to assign any of its
rights or obligations under this Agreement without the prior written consent of
the other party, which consent shall not be unreasonably withheld and further
provided that the assignee shall agree with the assignor and the other party to
this Agreement to be bound by the terms hereof. The foregoing shall not be
construed as requiring the consent of Ando in the event that there is a change
in control of LTX.
14.3 NO AGENCY, ETC. This Agreement is not intended to create, nor should
it be construed as creating, an agency, joint venture, partnership or
employer-employee relationship between LTX and Ando. Ando and LTX shall each act
solely as an independent contractor and shall have no right to act for or to
sign the name of or bind each other in any way or to make quotations or to write
letters under the name of each other or to represent that the other is in any
way responsible for its acts or omissions.
14.4 FORCE MAJEURE. Neither LTX nor Ando shall be liable for loss, damage,
detention or delay resulting from any cause whatsoever beyond its reasonable
control or resulting from a force majeure, including, without limitation, fire,
flood, strike, lockout, civil or military authority, insurrection, war, embargo,
container or transportation shortage or delay or delay of suppliers due to such
causes, and delivery dates shall be extended to the extent of any delays
resulting from the foregoing or similar causes.
14.5 ARBITRATION. Any and all controversies or claims arising out of, under
or relating to this Agreement, including any amendments thereof, or the breach
thereof, shall be settled by final and binding arbitration in San Jose,
California in accordance with the then existing commercial arbitration rules of
the American Arbitration Association and in connection therewith the parties
agree that any demand for arbitration or any other process, notice of motion or
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<PAGE> 32
other application for arbitration to any court having jurisdiction thereof,
including application for judgment upon an award, may be served by registered
mail, internationally recognized overnight courier or by personal service,
provided a reasonable time for appearance is allowed; and the parties agree that
judgment may be entered thereon in any court having jurisdiction. Any
arbitrators in any such arbitration shall be obligated to render a decision in
accordance with applicable law and provide to both parties a statement of the
reasons and legal precedent for such arbitrators' decision. Notwithstanding the
foregoing, neither party shall be precluded from applying to a court of
competent jurisdiction for injunctive or other equitable relief.
14.6 GOVERNING LAW. This Agreement and all related business transactions
shall be governed by the internal substantive laws of the Commonwealth of
Massachusetts of the United States of America and specifically excludes the
United Nations Convention on International Sales of Goods and conflict of law
provisions.
14.7 GOVERNING LANGUAGE. In the event there exists both an English and
non-English version of this Agreement, the English version of this Agreement
shall govern.
14.8 EXPENSES. Except as otherwise expressly provided herein, LTX and Ando
shall each pay their own expenses in connection with this Agreement and the
transactions contemplated hereby.
14.9 AMENDMENTS. Neither this Agreement nor any provision hereof may be
amended or waived except by a writing signed by the party against whom
enforcement of the amendment or waiver is sought.
14.10 WAIVERS. No waiver by any party of any right or interest hereunder
shall imply the waiver of any subsequent breach or other right.
14.11 HEADINGS. The headings in this Agreement have been added for the
convenience of the parties and shall not be deemed a part hereof.
14.12 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, all of which together shall constitute a single agreement. In
proving this Agreement, it shall not be necessary to produce or account for more
than one counterpart signed by the party with respect to which proof is sought.
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<PAGE> 33
14.13 SOLE UNDERSTANDING. This Agreement, including each Schedule and
Exhibit which is attached hereto and/or incorporated herein by reference, is the
sole understanding and agreement of the parties hereto with respect to the
subject matter hereof and supersedes all other such prior agreements and
understandings.
14.14 SEVERABILITY. In the event that any provision of this Agreement shall
be held by a court of competent jurisdiction or by any governmental body to be
invalid or unenforceable, such provision shall be deemed severable and the
remaining parts and provisions of this Agreement shall remain in full force and
effect.
Signed, sealed and delivered by a duly authorized representative of each
party hereto as of the date first written above.
LTX CORPORATION
By: /s/ Roger W. Blethen
-------------------------------------
Roger W. Blethen
President and Chief Executive Officer
ANDO ELECTRIC CO., LTD.
By: /s/ Masao Motohashi
-------------------------------------
Masao Motohashi
President
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<PAGE> 1
SECOND AMENDMENT TO CREDIT AGREEMENT
THIS SECOND AMENDMENT TO CREDIT AGREEMENT effective as of this 29th day of
April, 1998, by and between LTX CORPORATION, a Massachusetts corporation (the
"Company") and BANKBOSTON, N.A. ("BKB"), a national banking association, SILICON
VALLEY BANK, a state commercial bank ("SVB") and BKB, as agent (the "Agent").
WHEREAS, the Company, BKB, SVB and Agent are parties to a Credit Agreement
dated as of June 30, 1997 ("Credit Agreement"), as amended by the First
Amendment to Credit Agreement dated January 30, 1998. Capitalized terms used
herein and not otherwise defined shall have the meanings set forth in the Credit
Agreement.
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration the receipt and sufficiency of which is hereby
acknowledged, the parties hereby amend the Credit Agreement as follows:
Section 1. AMENDMENT OF SECTION 5.8(II). Section 5.8(ii) of the Credit
Agreement is hereby amended by deleting such Section in its entirety and
substituting therefor the following: "(ii) shall not have a Consolidated Net
Deficit for any quarter greater than $5,000,000 at the end of any such quarter,
provided, however, that with respect to the quarter ended April 30, 1998 only,
the Company shall not have a Consolidated Net Deficit greater than $8,000,000,
and"
Section 2. AMENDMENT OF SECTION 5.9. Section 5.9 of the Credit Agreement is
hereby amended by deleting such Section in its entirety and substituting
therefor the following:
"5.9 CONSOLIDATED QUICK RATIO. The Company and its Subsidiaries shall
not permit the ratio of Consolidated Quick Assets to Consolidated Current
Liabilities to be less than 1.65-to-1 as at the end of any fiscal quarter,
provided, however, that with respect to the quarter ended April 30, 1998
only, the Company and its Subsidiaries shall not permit the ratio of
Consolidated Quick Assets to Consolidated Current Liabilities to be less
than 1.25-to-1 as at the end of such fiscal quarter."
Section 3. AMENDMENT OF SECTION 5.10. Section 5.10 of the Credit Agreement
is hereby amended by deleting such Section in its entirety and substituting
therefor the following:
"5.10 CONSOLIDATED TOTAL LIABILITIES TO CONSOLIDATED TANGIBLE NET
WORTH RATIO. The Company and its Subsidiaries shall not permit the ratio of
Consolidated Total Liabilities to Consolidated Tangible Net Worth to be
greater than 0.60-to-1 as at the end of any fiscal quarter, provided,
however, that with respect to the quarter ended April 30, 1998 only, the
Company and its Subsidiaries shall not permit the ratio of Consolidated
Total Liabilities to Consolidated Tangible Net Worth to be greater than
0.80-to-1 as at the end of such fiscal quarter."
<PAGE> 2
Section 4. AMENDMENT OF SECTION 5.11. Section 5.11 of the Credit Agreement
is hereby amended by deleting Subsection (iii) from such Section and renumbering
Subsection (iv) of such Section as Subsection (iii).
Section 5. CONSENT TO AMENDMENT OF ANDO LOAN AGREEMENT. BKB and SVB hereby
consent to the reduction in the interest rate of the obligation to Ando under
the Loan Agreement dated July 20, 1994 by and between Ando and the Company (the
"Ando Loan Agreement") from eight percent (8%) to five and one half percent
(5.5%), effective March 30, 1998. Such reduction shall be further evidenced by
an amendment to the Ando Loan Agreement in the form attached as EXHIBIT A hereto
(the "Draft Amendment"). The Company agrees to deliver an executed copy of such
amendment, identical to the Draft Amendment in all respects, to BKB within ten
business days of the Company's receipt of the same; provided, however, that to
the extent there shall be any changes in the form of amendment, the Company
shall provide BKB with a copy of such changes for the approval of BKB and SVB
prior to the Company's execution of the same; and, provided further, that the
consent of BKB and SVB to such reduction in interest rate shall not be construed
as consent to any further amendment of the Ando Loan Agreement to the extent
such amendment varies from the terms of the Draft Amendment.
Section 6. MISCELLANEOUS.
(a) The Company hereby confirms to the Banks that the representations
and warranties of the Company set forth in Article IV of the Credit
Agreement are true and correct as of the date hereof, as if set forth
herein in full.
(b) The Company has reviewed the provisions of this Second Amendment
and all documents executed in connection therewith or pursuant thereto or
incident or collateral hereto or thereto from time to time (collectively,
the "Bank Documents") and there is no Event of Default thereunder, and no
condition which, with the passage of time or giving of notice or both,
would constitute an Event of Default thereunder.
(c) The Company agrees that each of the Bank Documents shall remain in
full force and effect after giving effect to this Amendment.
(d) This Second Amendment represents the entire agreement among the
parties hereto relating to this Second Amendment, and supersedes all prior
understandings and agreements among the parties relating to the subject
matter of this Amendment.
(e) The Company represents and warrants that neither the execution,
delivery or performance by the Company of any of the obligations contained
in this Second Amendment or in any Bank Document requires the consent,
approval or authorization of any person or governmental authority or any
action by or on account of with respect to any person or governmental
authority.
2
<PAGE> 3
IN WITNESS WHEREOF, the parties hereto have executed this Second Amendment
to Credit Agreement under seal as of the date first above written.
LTX CORPORATION
By:
-------------------------------------
Name:
Title:
BANKBOSTON, N.A.
By:
-------------------------------------
Name:
Title:
SILICON VALLEY BANK
By:
-------------------------------------
Name:
Title:
BANKBOSTON, N.A., as Agent
By:
-------------------------------------
Name:
Title:
3
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<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> JUL-31-1998
<PERIOD-START> AUG-01-1997
<PERIOD-END> APR-30-1998
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<SECURITIES> 0
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<ALLOWANCES> (1,900)
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<PP&E> 122,299
<DEPRECIATION> (78,643)
<TOTAL-ASSETS> 223,593
<CURRENT-LIABILITIES> 76,194
<BONDS> 17,600
0
0
<COMMON> 1,895
<OTHER-SE> 127,404
<TOTAL-LIABILITY-AND-EQUITY> 223,593
<SALES> 131,216
<TOTAL-REVENUES> 163,468
<CGS> 95,523
<TOTAL-COSTS> 110,120
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<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 1,629
<INCOME-PRETAX> (4,461)
<INCOME-TAX> 0
<INCOME-CONTINUING> (4,461)
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