<PAGE> 1
File No. 33-
As filed with the Securities and Exchange Commission on January 29, 1999.
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
LTX Corporation
- --------------------------------------------------------------------------------
(Exact name of registrant as specified in its charter)
<TABLE>
<CAPTION>
<S> <C>
Massachusetts 04-2594045
- --------------------------------------------------------------------------------
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
University Avenue, Westwood, Massachusetts 02090
- --------------------------------------------------------------------------------
(Address of Principal Executive Offices) (Zip Code)
</TABLE>
1993 Employees' Stock Purchase Plan
- --------------------------------------------------------------------------------
(Full title of the plan)
David G. Tacelli
University Avenue, Westwood, MA 02090
- --------------------------------------------------------------------------------
(Name and address of agent for service)
(781) 461-1000
- --------------------------------------------------------------------------------
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
================================================================================
Proposed Proposed
Title of maximum maximum
securities Amount offering aggregate Amount of
to be to be price offering registration
registered registered per share* price* fee
- ---------- ---------- ---------- --------- ------------
<S> <C> <C> <C> <C>
Common Stock, 1,500,000 $4.03125 $6,046,875 $2,085.13
$.05 par value Shares
================================================================================
</TABLE>
* 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 1,500,000 shares at a purchase
price of $4.03125 per share, which is the average of the high and low prices of
the Company's Common Stock as reported by the National Association of Securities
Dealers Automated Quotation System on January 27, 1999.
<PAGE> 2
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 3: INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents are incorporated by reference in this
Registration Statement:
(a) the undersigned registrant's Annual Report on Form 10-K for the
year ended July 31, 1998; (b) the registrant's Quarterly Report on Form 10-Q for
the quarter ended October 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 Company 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 Company or any of its
stockholders for monetary damages for any breach of fiduciary duty as a director
notwithstanding 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 Company or its
stockholders, (ii) acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii) authorizing
distributions to stockholders in violation of the Company's Articles of
Organization or which render the Company insolvent or bankrupt, and approving
loans to officers or directors of the Company 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 Company 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 Company 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 Company, 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
II-1
<PAGE> 3
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
Company (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 Company 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 Company 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 Company'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 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) 1993 Employees' Stock Purchase Plan
(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;
II-2
<PAGE> 4
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the registration statement or
any material change to such information in the registration statement;
Provided, however, that paragraphs (a)(i) and (a)(ii) do not
apply if the information required to be included in a post-effective amendment
by those paragraphs is contained in periodic reports filed by the registrant
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934
that are incorporated by reference herein.
(b) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered herein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(c) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
3. Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or otherwise,
the registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer of controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
II-3
<PAGE> 5
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
27th day of January, 1999.
LTX Corporation
By /s/ Roger W. Blethen
-------------------------------------
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/her 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.
<TABLE>
<CAPTION>
Signature Title Date
- --------- ----- ----
<S> <C> <C>
/s/ Roger W. Blethen President and January 27, 1999
- --------------------------- Chief Executive Officer
Roger W. Blethen (Principal Executive Officer)
/s/ David G. Tacelli Vice President, Chief January 27, 1999
- --------------------------- Financial Officer and
David G. Tacelli Treasurer (Principal
Financial Officer and
Principal Accounting Officer)
/s/ Samuel Rubinovitz Chairman of the Board January 27, 1999
- ---------------------------
Samuel Rubinovitz
/s/ Robert J. Boehlke Director January 27, 1999
- ---------------------------
Robert J. Boehlke
/s/ Jacques Bouyer Director January 27, 1999
- ---------------------------
Jacques Bouyer
/s/ Stephen M. Jennings Director January 27, 1999
- ---------------------------
Stephen M. Jennings
/s/ Roger J. Maggs Director January 27, 1999
- ---------------------------
Roger J. Maggs
/s/ Robert E. Moore Director January 27, 1999
- ---------------------------
Robert E. Moore
</TABLE>
II-4
<PAGE> 6
Exhibit Index
<TABLE>
<CAPTION>
Exhibit No. Description of Document
- ----------- -----------------------
<S> <C>
4 1993 Employees' Stock Purchase Plan
5 Opinion of Joseph A. Hedal
23(A) Consent of Arthur Andersen LLP
23(B) Consent of Joseph A. Hedal is contained in its opinion
filed as Exhibit 5
24 Power of Attorney (contained on the signature page)
</TABLE>
II-5
<PAGE> 1
Exhibit 4
LTX CORPORATION
1993 EMPLOYEES' STOCK PURCHASE PLAN
1. DEFINITIONS. As used in this 1993 Employees' Stock Purchase Plan
of LTX Corporation, the following terms shall have the meanings respectively
assigned to them below:
(a) BASE COMPENSATION means annual or annualized base
compensation, exclusive of overtime, bonuses, contributions to employee benefit
plans, or other fringe benefits.
(b) BENEFICIARY means the person designated as beneficiary
on the Optionee's Membership Agreement or, if no such beneficiary is named, the
person to whom the Option is transferred by will or under the applicable laws of
descent and distribution.
(c) BOARD means the Board of Directors of the Company.
(d) CODE means the Federal Internal Revenue Code of 1986, as
amended.
(e) COMPANY means LTX Corporation, a Massachusetts
corporation.
(f) ELIGIBLE EMPLOYEE means a person who is eligible under
the provisions of Section 8 to receive an Option as of a particular Offering
Commencement Date.
(g) GROSS COMPENSATION means Base Compensation plus
commissions, overtime pay and cash bonuses.
(h) MARKET VALUE means, as of a particular date, the average
closing bid and asked prices of the Stock in the Over-the-Counter Market, as
reported by the National Association of Securities Dealers, Inc., or if the
Stock is listed on an exchange or the National Market System, the closing price
of the Stock.
(i) MEMBERSHIP AGREEMENT means an agreement whereby an
Optionee authorizes a Participating Employer to withhold payroll deductions from
his or her Gross Compensation.
(j) OFFERING COMMENCEMENT DATE means a date which is the
first business day of a semi-annual Offering Period, on which Options are
granted to Eligible Employees.
(k) OFFERING PERIOD means a semi-annual period, February 1
to July 31 or August 1 to January 31, during which options will be offered under
the Plan.
<PAGE> 2
(l) OFFERING TERMINATION DATE means the date which is the
last business day of an Offering Period, on which Options must, if ever, be
exercised.
(m) OPTION means an option to purchase shares of Stock
granted under the Plan.
(n) OPTION SHARES means shares of Stock purchasable under an
Option.
(o) OPTIONEE means an Eligible Employee to whom an Option is
granted.
(p) PARTICIPATING EMPLOYER means the Company or any Related
Corporation which is designated by the Board as a corporation whose Eligible
Employees are to receive Options as of a particular Offering Commencement Date.
(q) PLAN means this 1993 Employees' Stock Purchase Plan of
the Company, as amended.
(r) RELATED CORPORATION means any corporation which is a
parent corporation of the Company, as defined in Section 424(e) of the Code, or
a subsidiary corporation of the Company, as defined in Section 424(f) of the
Code.
(s) REPORTING PERSON means a Director of the Company or an
"officer" of the Company for purposes of Section 16 of the Securities Exchange
Act of 1934.
(t) STOCK means common stock, $0.05 par value, of the
Company.
2. PURPOSE OF THE PLAN. The Plan is intended to encourage ownership
of Stock by employees of the Company and the Related Corporations and to provide
additional incentive for the employees to promote the success of the business of
their employers. It is intended that the Plan shall be an "employee stock
purchase plan" within the meaning of Section 423 of the Code.
3. TERM OF THE PLAN. The Plan shall become effective on December
15, 1993. No option shall be granted under the Plan after December 14, 2003.
4. ADMINISTRATION OF THE PLAN. The Plan shall be administered by
the Board which shall determine semi-annually, effective on February 1 and
August 1, whether to grant Options under the Plan. The Board shall determine
which (if any) Related Corporations shall be Participating Employers as of each
Offering Commencement Date. The Board shall have authority to interpret the
Plan, to prescribe, amend and rescind rules and regulations relating to the
Plan, to determine the terms of Options granted under the Plan, and to make all
other
2
<PAGE> 3
determinations necessary or advisable for the administration of the Plan.
5. TERMINATION AND AMENDMENT OF PLAN. The Board may terminate or
amend the Plan at any time; PROVIDED, HOWEVER, that the Board may not, without
approval by the holders of a majority of the shares of Stock, increase the
maximum number of shares of Stock purchasable under the Plan, change the
description of employees or classes of employees eligible to receive Options,
change the manner of determining the exercise price of Options, or extend the
period during which Options may be granted or exercised. No termination of or
amendment to the Plan may adversely affect the rights of an Optionee with
respect to any Option held by the Optionee as of the date of such termination or
amendment.
6. SHARES OF STOCK SUBJECT TO THE PLAN. No more than an aggregate
of 1,500,000 shares of Stock may be issued or delivered pursuant to the exercise
of Options granted under the Plan, subject to adjustments made in accordance
with Section 10.7. Shares to be delivered upon the exercise of Options may be
either shares of Stock which are authorized but unissued or shares of Stock held
by the Company in its treasury. If an Option expires or terminates for any
reason without having been exercised in full, the unpurchased shares subject to
the Option shall become available for other Options granted under the Plan. The
Company shall, at all times during which Options are outstanding, reserve and
keep available shares of Stock sufficient to satisfy such Options and shall pay
all fees and expenses incurred by the Company in connection therewith. In the
event of any capital change in the outstanding Stock as contemplated by Section
10.7, the number of shares of Stock reserved and kept available by the Company
shall be appropriately adjusted.
7. SHARES OF STOCK ISSUABLE PER OFFERING PERIOD. No more than an
aggregate of 150,000 shares of Stock may be issued or delivered pursuant to the
exercise of Options in any Offering Period, subject to adjustments made in
accordance with Section 10.7.
8. PERSONS ELIGIBLE TO RECEIVE OPTIONS. Each employee of a
Participating Employer shall be granted an Option on each Grant Date on which
such employee meets all of the following requirements:
(a) The employee is customarily employed by a Participating
Employer for more than twenty hours per week and for more than five months per
calendar year.
(b) The employee will not, after grant of the Option, own
stock possessing five percent or more of the total combined voting power or
value of all classes of stock of the Company or of any Related Corporation. For
purposes of this paragraph (b), the rules of Section 424(d) of the Code shall
apply in determining the stock ownership of the employee, and stock which the
employee may purchase under outstanding options shall be treated as stock owned
by the employee.
3
<PAGE> 4
(c) Upon grant of the Option, the employee's rights to
purchase stock under all employee stock purchase plans (as defined in Section
423(b) of the Code) of the Company and its Related Corporations will not accrue
at a rate which exceeds $25,000 of fair market value of the stock (determined as
of the grant date) for each calendar year in which such option is outstanding at
any time. The accrual of rights to purchase stock shall be determined in
accordance with Section 423(b)(8) of the Code.
(d) The employee is not a Reporting Person who failed fully
to exercise any previous Option granted by the Company under the Plan or any
other employee stock purchase plan within the meaning of Section 423 of the
Code.
9. OFFERING COMMENCEMENT DATES. Options shall be granted on the
first business day of each semi-annual period, February 1 to July 31 and August
1 to January 31, which is designated by the Board of Directors as an Offering
Period.
10. TERMS AND CONDITIONS OF OPTIONS
10.1 GENERAL. All Options granted on a particular Offering
Commencement Date shall comply with the terms and conditions set forth in
Sections 10.2 through 10.12.
10.2 PURCHASE PRICE. The purchase price of Option Shares
shall be 85% of the lesser of (a) the Market Value of the shares as of the
Offering Commencement Date or (b) the Market Value of the shares as of the
Offering Termination Date.
10.3 RESTRICTIONS ON TRANSFER. Options may not be transferred
otherwise than by will or under the laws of descent and distribution. An Option
may not be exercised by anyone other than the Optionee during the lifetime of
the Optionee. Option shares may be sold or otherwise transferred by the Optionee
without restriction. The Optionee shall agree in the Membership Agreement to
notify the Company of any transfer of the shares within two years of the
Offering Commencement Date of those shares. An Optionee who is a Reporting
Person shall agree in the Membership Agreement not to transfer any of the shares
within six months after purchase. The Company shall have the right to place a
legend on all stock certificates instructing the transfer agent to notify the
Company of any transfer of the shares.
10.4 EXPIRATION. Each Option shall expire at the close of
business on the Offering Termination Date or on such earlier date as may result
from the operation of Section 10.6 or Section 10.8.
10.5 TERMINATION OF EMPLOYMENT OF OPTIONEE. If an Optionee
ceases for any reason (other than death or retirement) to be continuously
employed by the Company or a Related Corporation, whether due to voluntary
severance, involuntary severance, transfer, or disaffiliation of the employer
corporation with the Company, his or her Option shall immediately expire, and
the Optionee's accumulated
4
<PAGE> 5
payroll deductions shall be returned by the Company. For purposes of this
Section 10.5, an Optionee shall be deemed to be employed throughout any leave of
absence for military service, illness or other bona fide purpose which does not
exceed the longer of ninety days or the period during which the Optionee's
reemployment rights are guaranteed by statute, contract or announced Company
policy. If the Optionee does not return to active employment prior to the
termination of such period, his or her employment shall be deemed to have ended
on the ninety-first day of such leave of absence.
10.6 RETIREMENT OR DEATH OF OPTIONEE. If an Optionee retires
or dies, the employee or, in the case of death, his or her Beneficiary shall be
entitled to withdraw the Optionee's accumulated payroll deductions or to
purchase shares on the Exercise Date to the extent that the Optionee would be so
entitled had he or she continued to be employed by a Participating Employer. The
number of shares purchasable shall be limited by the amount of the Optionee's
accumulated payroll deductions as of the date of his or her retirement or death.
Accumulated payroll deductions shall be applied by the Company toward the
purchase of shares only if the Beneficiary submits to the Participating Employer
a written request that the deductions be so applied. Accumulated payroll
deductions not withdrawn or applied to the purchase of shares shall be delivered
by the Company to the Optionee or Beneficiary within a reasonable time after the
Offering Termination Date.
10.7 CAPITAL CHANGES AFFECTING THE STOCK. In the event that,
between the Offering Commencement Date and the Offering Termination Date, there
occurs any change in corporate capitalization, such as a stock split or a
corporate transaction, such as any merger, consolidation, separation, including
a spin-off, or other distribution of stock or property of the Company, any
reorganization (whether or not such reorganization comes within the definition
of such term in Section 368 of the Code) or any partial or complete liquidation
of the Company, the Board may make such substitution or adjustments in the
aggregate number and kind of shares reserved for issuance under the Plan, in the
number, kind and purchase price of the Option Shares subject to outstanding
Options, and/or such other equitable substitution or adjustments as it may
determine to be appropriate in its sole discretion; provided, however, that the
number of shares subject to any Option shall be a whole number.
10.8 CHANGE OF CONTROL. In the event that, between the
Offering Commencement Date and the Offering Termination Date, a "Change of
Control" (as hereinafter defined) shall occur, the Offering Period shall
terminate as of a date before the Change of Control selected by the Committee so
as to enable the Optionees to receive the Stock purchased pursuant to their
Options in time to participate in such Change of Control event on the same basis
as other shareholders. For purposes of the Plan, a "Change of Control shall
mean:
5
<PAGE> 6
(i) The acquisition by any individual, entity or
group (within the meaning of Section 13(d)(3) or 14(d)(2) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act")) (a "Person") of
beneficial ownership (within the meaning of Rule 13d-3 promulgated under the
Exchange Act) of 20% or more of either (a) the then outstanding shares of common
stock of the Company (the "Outstanding Company Common Stock") or (b) the
combined voting power of the then outstanding voting securities of the Company
entitled to vote generally in the election of directors (the "Outstanding
Company Voting Securities"); provided, however, that for purposes of this
subsection (i), the following acquisitions shall not constitute a Change of
Control: (A) any acquisition directly from the Company, (b) any acquisition by
the Company, (c) any acquisition by any employee benefit plan (or related trust)
sponsored or maintained by the Company or any corporation controlled by the
Company or (d) any acquisition pursuant to a transaction which complies with
clauses (A), (B) and (C) of subsection (iii) of this Section 15; or
(ii) Individuals who, as of February 3, 1998,
constitute the Board (the "Incumbent Board") cease for any reason to constitute
at least a majority of the Board; provided, however, that any individual
becoming a director subsequent to February 3, 1998 whose election, or nomination
for election by the Company's shareholders, was approved by a vote of at least a
majority of the directors then comprising the Incumbent Board shall be
considered as though such individual were a member of the Incumbent Board, but
excluding, for this purpose, any such individual whose initial assumption of
office occurs as a result of an actual or threatened election contest with
respect to the election or removal of directors or other actual or threatened
solicitation of proxies or consents by or on behalf of a Person other than the
Board; or
(iii) Consummation of a reorganization, merger or
consolidation or sale or other disposition of all or substantially all of the
assets of the Company or the acquisition of assets of another entity (a
"Corporate Transaction"), in each case, unless, following such Corporate
Transaction, (A) all or substantially all of the individuals and entities who
were the beneficial owners, respectively, of the Outstanding Company Common
Stock and Outstanding Company Voting Securities immediately prior to such
Corporate Transaction beneficially own, directly or indirectly, more then 60%
of, respectively, the then outstanding shares of common stock and the combined
voting power of the then outstanding voting securities entitled to vote
generally in the election of directors, as the case may be, of the corporation
resulting from such Corporate Transaction (including, without limitation, a
corporation which as a result of such transaction owns the Company or all or
substantially all of the Company's assets either directly or through one or more
subsidiaries) in substantially the same proportions as their ownership,
immediately prior to such Corporate Transaction of the Outstanding Company
Common Stock and Outstanding Company Voting Securities, as the case may be, (B)
no Person (excluding any employee benefit plan (or related trust) of the Company
or such corporation resulting from such Corporate Transaction) beneficially own,
directly or indirectly, 20% or more of, respectively, the then outstanding
shares of common stock of the corporation resulting from
6
<PAGE> 7
such Corporate Transaction or the combined voting power of the then outstanding
voting securities of such corporation except to the extent that such ownership
existed prior to the Corporate Transaction and (C) at least a majority of the
members of the board of directors of the corporation resulting from such
Corporate Transaction were members of the Incumbent Board at the time of the
execution of the initial agreement, or of the action of the Board, providing for
such Corporate transaction; or
(iv) Approval by the shareholders of the Company of a
complete liquidation or dissolution of the Company.
10.9 PAYROLL DEDUCTIONS. An Optionee may purchase shares
under his or her Option by completing and returning to the personnel department
of his or her employer at least ten days prior to the beginning of the next
Offering Period a Membership Agreement indicating a percentage (which shall be a
full integer between one and fifteen) of his or her Gross Compensation which is
to be withheld each pay period; PROVIDED, HOWEVER, that the accumulated payroll
deductions for the Optionee shall not exceed $12,500 in any Offering Period. The
Optionee shall not be permitted to change the percentage of Gross Compensation
withheld during an Offering Period. The percentage of Gross Compensation
withheld may be changed from one Offering Period to another. The Optionee may
withdraw any or all of his or her accumulated payroll deductions by submitting a
written request therefor to the personnel department of his or her employer no
later than two weeks prior to the Offering Termination Date.
10.10 EXERCISE OF OPTIONS. On the Offering Termination Date
the Optionee may purchase the number of shares purchasable by his or her
accumulated payroll deductions, provided that:
(a) If the total number of shares which all
Optionees elect to purchase, together with any shares already purchased under
the Plan, exceeds the total number of shares which may be purchased under the
Plan pursuant to Section 6 or Section 7, the number of shares which each
Optionee is permitted to purchase shall be decreased PRO RATA based on the
Optionee's accumulated payroll deductions in relation to all accumulated payroll
deductions currently being withheld under the Plan.
(b) If the number of shares purchasable includes a
fraction, such number shall be adjusted to the next smaller whole number and the
purchase price shall be adjusted accordingly.
Accumulated payroll deductions not withdrawn on or prior
to the Offering Termination Date shall be automatically applied by the Company
toward the purchase of Option Shares.
10.11 DELIVERY OF STOCK. Within a reasonable time after the
Offering Termination Date, the Company shall deliver or cause to be delivered to
the Optionee a certificate or certificates for the number of shares purchased by
the Optionee. A stock certificate representing the
7
<PAGE> 8
number of shares purchased will be issued in the participant's name only, or if
his or her Membership Agreement so specifies, in the name of the employee and
another person of legal age as joint tenants with rights of survivorship. If any
law or applicable regulation of the Securities and Exchange Commission or other
body having jurisdiction in the premises shall require that the Company or the
Optionee take any action in connection with the shares being purchased under the
Option, delivery of the certificate or certificates for such shares shall be
postponed until the necessary action shall have been completed, which action
shall be taken by the Company at its own expense, without unreasonable delay.
The Optionee shall have no rights as a shareholder in respect of shares for
which he or she has not received a certificate.
10.12 RETURN OF ACCUMULATED PAYROLL DEDUCTIONS. In the event
that the Optionee or the Beneficiary is entitled to the return of accumulated
payroll deductions for any reason, the accumulated payroll deductions shall be
returned within a reasonable time by the Company to the Optionee or the
Beneficiary, as the case may be. In the event that accumulated payroll
deductions exceed the price of shares purchased by reason of Section 6 or
Section 7 hereof, the excess shall be returned with interest within thirty days
after the end of the Offering Period. Otherwise, the accumulated payroll
deductions shall be returned without interest.
8
<PAGE> 1
Exhibit 5
LTX CORPORATION
UNIVERSITY AVENUE
WESTWOOD, MA 02090
TELEPHONE: (781) 461-1000
FACSIMILE: (781) 329-8836
January 27, 1999
LTX Corporation
University Avenue
Westwood, MA 02090
Re: LTX Corporation
1993 Employees' Stock Purchase Plan
-----------------------------------
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
January 27, 1999 (the "Registration Statement"), of 1,500,000 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 1993
Employees' Stock Purchase 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
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.
<PAGE> 2
LTX Corporation
January 27, 1999
Page 2
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
<PAGE> 1
EXHIBIT 23(A)
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the use of our
report dated August 31, 1998 (except with respect to the matter discussed in
Note 3, as to which the date is October 26, 1998) included in LTX Corporation's
Form 10K for the year ended July 31, 1998 and to all references to our Firm
included in this registration statement.
ARTHUR ANDERSEN LLP
Boston, Massachusetts
January 27, 1999
