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File No. 33-_________
As filed with the Securities and Exchange Commission on March 20, 1998.
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
LTX Corporation
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(Exact name of registrant as specified in its charter)
Massachusetts 04-2594045
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(State or other jurisdiction (I.R.S. Employer
of incorporation or organization Identification No.)
University Avenue, Westwood, Massachusetts 02090
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(Address of Principal Executive Offices) (Zip Code)
1990 Stock Option Plan
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(Full title of the plan)
Carol B. Langer
LTX Park at University Avenue, Westwood, MA 02090
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(Name and address of agent for service)
(781) 461-1000
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(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Title of maximum maximum
securities Amount offering aggregate Amount of
to be to be price offering registration
registered registered per share* price* fee
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Common Stock, 1,525,000 $5.109 $7,791,225 $2,298.41
$.05 par value Shares
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* This estimate is made pursuant to Rule 457(h) solely for the purpose of
determining the registration fee. It is not known how many shares will be
purchased under the Plan or at what price such shares will be purchased. The
above calculation is based on the offering of 1,525,000 shares at a purchase
price of $5.109 per share, which is the average of the high and low prices of
the Company's Common Stock as reported by the National Association of Securities
Dealers Automated Quotation System on March 18, 1998.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 3: INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents are incorporated by reference in this
Registration Statement:
(a) the undersigned registrant's Annual Report on Form 10-K for the year
ended July 31, 1997; (b) the registrant's Quarterly Report on Form 10-Q for the
quarter ended January 31, 1998; and (c) the description of the registrant's
Common Stock contained in a Registration Statement filed under the Securities
Exchange Act of 1934 (the "Exchange Act"), including any amendment or report
filed for the purpose of updating such description.
All documents subsequently filed by the registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment which indicates that all securities offered have been
sold or which deregisters all securities then remaining unsold, shall be deemed
to be incorporated by reference in the Registration Statement and to be part
thereof from the date of filing of such documents.
ITEM 4: DESCRIPTION OF SECURITIES
Not Applicable
ITEM 5: INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
ITEM 6: INDEMNIFICATION OF DIRECTORS AND OFFICERS
Chapter 156B of the Massachusetts General Laws, under which the Company
is organized, permits a Massachusetts corporation to adopt a provision in its
Articles of Organization eliminating or limiting the liability of a director to
the corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, provided that such liability does not arise from certain
proscribed conduct (including intentional misconduct and breach of duty of
loyalty).
On December 8, 1987, the stockholders approved an amendment to the
Company's Articles of Organization. The amendment to the Articles of
Organization, which became effective on April 8, 1988, is as follows:
"No director shall be personally liable to the corporation or any of its
stockholders for monetary damages for any breach of fiduciary duty as a director
not withstanding any provision of law imposing such liability; provided,
however, that this provision shall not eliminate or limit the liability of a
director for (i) any breach of the director's duty of loyalty to the corporation
or its stockholders, (ii) acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii)
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authorizing distributions to stockholders in violation of the corporation's
Articles of Organization or which render the corporation insolvent or bankrupt,
and approving loans to officers or directors of the corporation which are not
repaid and which were not approved or ratified by a majority of disinterested
directors or stockholders, or (iv) any transaction from which the director
derived an improper personal benefit. No amendment to or repeal of this
provision shall apply to or have any effect on the liability or alleged
liability of any director of the corporation for or with respect to any acts or
omissions of such director occurring prior to the effective date of such
amendment."
The By-laws of the registrant provide for indemnification of officers and
directors as follows:
Section 6.5 Indemnification.
(a) The Corporation shall indemnify each director and officer against all
judgments, fines, settlement payments and expenses, including reasonable
attorneys' fees, paid or incurred in connection with any claim, action, suit or
proceeding, civil or criminal, to which he may be made a party or with which he
may be threatened by reason of his being or having been a director or officer of
the Corporation, or, at its request, a director, officer, stockholder or member
of any other corporation, firm, association or other organization or by reason
of his serving or having served, at its request, in any capacity with respect to
any employee benefit plan, or by reason of any action or omission by him in such
capacity, whether or not he continues to be a director or officer at the time of
incurring such expenses or at the time the indemnification is made. No
indemnification shall be made hereunder (i) with respect to payments and
expenses incurred in relation to matters as to which he shall be finally
adjudged in such action, suit or proceeding not to have acted in good faith and
in the reasonable belief that his action was in the best interests of the
Corporation (or, to the extent that such matter relates to service with respect
to an employee benefit plan, in the best interest of the participants or
beneficiaries of such employee benefit plan), or (ii) otherwise prohibited by
law. The foregoing right of indemnification shall not be exclusive of other
rights to which any director or officer may otherwise be entitled and shall
inure to the benefit of the executor or administrator of such director or
officer. The Corporation may pay the expenses incurred by any such person in
defending a civil or criminal action, suit or proceeding in advance of the final
disposition of such action, suit or proceeding, upon receipt of an undertaking
by such person to repay such payment if it is determined that such person is not
entitled to indemnification hereunder.
(b) The Board of Directors may, without stockholder approval, authorize
the Corporation to enter into agreements, including any amendments or
modification thereto, with any of its directors, officers or other persons
described in paragraph (a) above providing for indemnification of such persons
to the maximum extent permitted under applicable law and the Corporation's
Articles of Organization and By-laws.
(c) No amendment to or repeal of this section shall have any adverse
effect on (i) the right of any director or officer under any agreement entered
into prior thereto, or (ii) the rights of any director or officer hereunder
relating to his
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service, for which he would otherwise be entitled to indemnity hereunder, during
any period prior to such amendment or repeal.
The Company has a directors and officers liability policy that insures
the Company's directors and officers against certain liabilities which they may
incur as directors or officers of the Company.
ITEM 7: EXEMPTION FROM REGISTRATION CLAIMED
Not applicable
ITEM 8: EXHIBITS
The following exhibits are filed as part of this Registration Statement:
(4) 1990 Stock Option Plan, as amended. (Previously filed as Exhibit
10(B) to the Company's Quarterly Report on Form 10-Q for the quarterly period
ended January 31, 1998 and incorporated herein by reference.)
(5) Opinion and Consent of Joseph A. Hedal as to the legality of the
securities being registered.
(23)(A) Consent of Arthur Andersen LLP
(23)(B) Consent of Joseph A. Hedal - included in Exhibit 5.
(24) Power of Attorney (contained on the signature page).
ITEM 9: UNDERTAKINGS
1. The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered herein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
2. The undersigned registrant hereby undertakes:
(a) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3)
of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth in the
registration statement;
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(iii) To include any material information with respect to
the plan of distribution not previously disclosed in the registration statement
or any material change to such information in the registration statement;
Provided, however, that paragraphs (a) (i) and (a) (ii) do not
apply if the information required to be included in a post-effective amendment
by those paragraphs is contained in periodic reports filed by the registrant
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934
that are incorporated by reference herein.
(b) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered herein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
3. Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or otherwise,
the registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer of controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the Town of Westwood, and Commonwealth of Massachusetts on the
18th day of March, 1998.
LTX Corporation
By /s/ Roger W. Blethen
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Roger W. Blethen
President and Chief Executive Officer
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below hereby constitutes and appoints Roger W. Blethen his/her true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution,
for him and in his/her name, place and stead, in any and all capacities, to sign
any amendments or post-effective amendments to this Registration Statement and
to file the same with all exhibits thereto and other documents in connection
therewith with the Securities and Exchange Commission, granting unto said
attorney-in-fact and agent, full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he/she might or could do in
person, hereby ratifying and confirming all that said attorney-in-fact and
agent, or his/her substitute or substitutes, may do or cause to be done by
virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the date indicated.
Signature Title Date
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/s/ Roger W. Blethen President and Chief March 18, 1998
- --------------------------- Executive Officer
Roger W. Blethen (Principal Executive Officer)
/s/ Carol B. Langer Vice President, Chief March 18, 1998
- --------------------------- Financial Officer and
Carol B. Langer Treasurer (Principal
Financial Officer and
Principal Accounting Officer)
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/s/ Samuel Rubinovitz Chairman of the Board March 18, 1998
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Samuel Rubinovitz
/s/ Robert J. Boehlke Director March 18, 1998
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Robert J. Boehlke
/s/ Jacques Bouyer Director March 18, 1998
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Jacques Bouyer
/s/ Stephen M. Jennings Director March 18, 1998
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Stephen M. Jennings
/s/ Roger J. Maggs Director March 18, 1998
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Roger J. Maggs
/s/ Robert E. Moore Director March 18, 1998
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Robert E. Moore
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Exhibit Index
Exhibit No. Description of Document
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5 Opinion of Joseph A. Hedal
23(A) Consent of Arthur Andersen LLP
23(B) Consent of Joseph A. Hedal is contained in the opinion filed
as Exhibit 5
24 Power of Attorney (contained on the signature page)
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EXHIBIT 5
LTX CORPORATION
UNIVERSITY AVENUE
WESTWOOD, MA 02090
TELEPHONE: (617) 461-1000
FACSIMILE: (617) 329-8836
March 20, 1998
LTX Corporation
LTX Park at University Avenue
Westwood, MA 02090
Re: LTX Corporation
1990 Stock Option Plan
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Ladies and Gentlemen:
This opinion is furnished in connection with the registration, pursuant to
a Registration Statement on Form S-8 under the Securities Act of 1933, as
amended (the "Act"), to be filed with the Securities and Exchange Commission on
March 20, 1998 (the "Registration Statement"), of 1,525,000 shares (the
"Shares") of the Common Stock, par value $.05 per share (the "Common Stock"), of
LTX Corporation, a Massachusetts corporation (the "Company"), which would be
issuable upon the exercise of options granted under the Company's 1990 Stock
Option Plan (the "Plan").
I have acted as counsel to the Company in connection with the foregoing
registration of the Shares. I have examined and relied upon the originals or
copies of such records, instruments, certificates, memoranda and other documents
as I have deemed necessary or advisable for purposes of this opinion and have
assumed, without independent inquiry, the accuracy of those documents. In that
examination, I have assumed the genuineness of all signatures, the conformity to
the originals of all documents reviewed by me as copies, the authenticity and
completeness of all original documents reviewed by me in original or copy form
and the legal competence of each individual executing such documents. I have
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LTX Corporation
March 20, 1998
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further assumed that all options granted or to be granted pursuant to the Plan
were or will be validly granted in accordance with the terms of the Plan and
that all Shares to be issued upon exercise of such options will be issued in
accordance with such options and the Plan.
Based upon the foregoing, I am of the opinion that, upon the issuance and
delivery of the Shares in accordance with the terms of such options and the
Plan, and as described in the Registration Statement, the Shares will be legally
issued, fully paid and non-assessable shares of the Company's Common Stock.
The foregoing assumes that all requisite steps will be taken to comply
with the requirements of the Act and with applicable requirements of state laws
regulating the offer and sale of securities.
I understand that this opinion is to be used in connection with the
Registration Statement. I consent to the filing of a copy of this opinion with
the Registration Statement.
Very truly yours,
Joseph A. Hedal
General Counsel
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EXHIBIT 23(A)
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the use of our
report dated September 3, 1997 included in LTX Corporation's Form 10K for the
year ended July 31, 1997 and to all references to our Firm included in this
registration statement.
ARTHUR ANDERSEN LLP
Boston, Massachusetts
March 18, 1998
