<PAGE>
File No. 333-
AS filed with the Securities and Exchange Commission on February 23, 2000
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
LTX Corporation
- --------------------------------------------------------------------------------
(Exact name of registrant as specified in its charter)
Massachusetts 04-2594045
- ---------------------------------- --------------------------------
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization Identification No.)
University Avenue, Westwood, Massachusetts 02090
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(Address of Principal Executive Offices) (Zip Code)
1999 Stock Plan
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(Full title of the plan)
David G. Tacelli
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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- --------------------------------------------------------------------------------
<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, 2,100,000 $39.50 $82,950,00 $21,898.80
$.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 2,100,000 shares at a purchase
price of $39.50 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 February 18, 2000.
<PAGE>
PART II
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INFORMATION NOT REQUIRED IN PROSPECTUS
Item 3: INCORPORATION OF DOCUMENTS BY REFERENCE
- ------ ----------------------------------------
The following documents are incorporated by reference in this Registration
Statement:
(a) the undersigned registrant's Annual Report on Form 10-K for the year
ended July 31, 1999; (b) the registrant's Quarterly Report on Form 10-Q for
the quarter ended October 31, 1999; 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.
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(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
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) 1999 Stock 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
II-2
<PAGE>
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;
(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>
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
23rd day of February 2000.
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.
Signature Title Date
- --------- ----- ----
/s/ Roger W. Blethen President and Chief February 23, 2000
- --------------------- Executive Officer
Roger W. Blethen (Principal Executive Officer)
/s/ David G. Tacelli Executive Vice President, February 23, 2000
- --------------------- Chief Financial Officer and
David G. Tacelli Treasurer (Principal
Financial Officer and
Principal Accounting Officer)
/s/ Samuel Rubinovitz Chairman of the Board February 23, 2000
- -----------------------
Samuel Rubinovitz
/s/ Robert J. Boehlke Director February 23, 2000
- -----------------------
Robert J. Boehlke
/s/ Jacques Bouyer Director February 23, 2000
- -----------------------
Jacques Bouyer
/s/ Stephen M. Jennings Director February 23, 2000
- -----------------------
Stephen M. Jennings
/s/ Roger J. Maggs Director February 23, 2000
- -----------------------
Roger J. Maggs
/s/ Robert E. Moore Director February 23, 2000
- -----------------------
Robert E. Moore
II-4
<PAGE>
EXHIBIT INDEX
Exhibit No. Description of Document
- ----------- -----------------------
4 1999 Stock 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)
<PAGE>
Exhibit 4
---------
LTX CORPORATION
1999 STOCK PLAN
1. Definitions. As used in this 1999 Stock Plan, the following terms shall
-----------
have the following meanings:
1.1 Board means the Company's Board of Directors.
-----
1.2 Code means the Federal Internal Revenue Code of 1986, as amended.
----
1.3 Company means LTX Corporation.
-------
1.4 Fair Market Value means the value of a share of Stock of the Company
-----------------
on any date, as determined by the Board.
1.5 Grant Date means the date on which an Option or Restricted Share award
----------
is granted, as specified in Section 7.
1.6 Incentive Option means an Option intended to be an incentive stock
----------------
option with the meaning of Section 422 of the Code.
1.7 Market Value means, as of a particular date, the closing price of the
------------
Stock on the NASDAQ National Market on that date.
1.8 Nonstatutory Option means any option that is not an Incentive Option.
-------------------
1.9 Officer means any person who has been identified by the Board as an
-------
"officer" for purposes of Section 16 of the Securities Exchange Act of
1934, as amended.
1.10 Option means an option to purchase shares of the stock granted under
------
the Plan.
1.11 Option Agreement means an agreement between the Company and an
----------------
Recipient, setting forth the terms and conditions of an Option.
1.12 Option Price means the price paid by an Recipient for an Option Share
------------
under this Plan.
1.13 Option Share means any share of Stock of the Company transferred to
------------
an Recipient upon exercise of an Option pursuant to this Plan.
1
<PAGE>
1.14 Plan means this 1999 Stock Plan of the Company, as amended.
----
1.15 Recipient means a person eligible to receive an Option or award, as
---------
provided in Section 6, to whom an Option or award shall have been
granted under the Plan.
1.16 Restricted Share means a share of the Stock awarded to a Recipient,
----------------
but subject to provisions affecting retention and transferability.
1.17 Stock means common stock, par value $ 0.05 per share, of the Company.
-----
1.18 Vesting Year for any portion of any Option means the calendar year in
------------
which that portion of the Option first becomes exercisable.
2. Purpose. This 1999 Stock Plan is intended to advance the interests of the
-------
Company and its stockholders by improving the Company's ability to attract and
retain qualified individuals who are in a position to contribute to the
management and growth of the Company and its subsidiaries and to provide
additional incentive for such individuals to contribute to the Company's future
success. The Plan is intended to be an incentive stock option plan within the
meaning of Section 422 of the Code, but not all Options granted hereunder are
required to be Incentive Options.
3. Term of the Plan. Options and Restricted Share awards under the Plan may be
----------------
granted on or after June 4, 1999, but not later than June 4, 2009.
4. Stock Subject to the Plan. Subject to the provisions of Section 14 of the
-------------------------
Plan, the number of shares of the Stock attributable to the exercise of Options
granted under the Plan plus the number the number of shares then issuable upon
exercise of outstanding options granted under the Plan plus the number of
Restricted Shares awarded under the Plan shall at no time exceed 2,100,000
shares. Shares to be issued upon the exercise of Options granted under the Plan
and Restricted Shares may be either authorized but unissued shares or shares
held by the Company in its treasury. If any Option expires or terminates for
any reason without having been exercised in full, the shares not purchased
thereunder shall again be available for Options thereafter to be granted. Each
Director who is not an employee of the Company or a subsidiary thereof shall
receive a Nonstatutory Option to purchase 20,000 shares of Common Stock on the
date on which he or she is first elected to the Board of Directors of the
Company and an additional Nonstatutory Option to purchase 6,000 shares of Common
Stock on the date of each annual meeting at which he or she is re-elected or
after which he continues to serve as a Director. Each Director who is not an
employee of the Company or a subsidiary thereof shall also receive a
Nonstatutory Option to purchase 3,000 shares of Common Stock in each year served
as a chairman of a Committee of the Board of Directors and a Nonstatutory Option
to purchase 1,500 shares of Common Stock in each year
2
<PAGE>
served as a member of a Committee of the Board of Directors, such options to be
issued on the date the Committees are established annually by the Board of
Directors. Each Option granted to a Director under this Section 4 shall have a
Fair Market Value exercise price per share and shall be exercisable,
cumulatively, to the extent of twenty percent of the stock covered thereby on
the first anniversary date of the grant of the Option, thirty-five percent of
the stock covered thereby on the second anniversary date of the grant of the
Option and forty-five percent of the stock covered thereby on the third
anniversary date of the grant of the Option. In the event any Director standing
for re-election is not re-elected to the Board of Directors at any meeting, all
of such Director's unexercisable Options granted prior to the date of that
meeting will become exercisable immediately.
5. Administration. The Plan shall be administered by the Board of Directors of
--------------
the Company or by a committee composed of members of the Board (the Board of
Directors or any such committee being hereinafter referred to as the
"Committee"). With respect to directors and Officers eligible to receive
Options or Restricted Shares under this Plan, the Plan shall be administered by
a special committee (the "Special Committee") of the Board of Directors of the
Company all of whom are "Non-Employee Directors" as defined in Rule 16b-
3(b)(2)(i) under Section 16 of the Securities Exchange Act of 1934 and "outside
directors" as defined in Section 162(m) of the Code. Only the Special Committee
may grant Options to directors and Officers eligible to receive Options under
this Plan. Subject to the provisions of the Plan, the Committee or the Special
Committee, as the case may be, shall have complete authority, in its discretion,
to make the following determinations with respect to each Option to be granted
by the Company and all Restricted Shares to be awarded by the Company: (a) the
employee, director or consultant to receive the Option or award; (b) the time of
granting the Option or award; (c) the number of shares subject thereto; (d) the
Option Price; (e) the Option period; and (f) the restrictions. In making such
determinations, the Committee may take into account the nature of the services
rendered by the respective employees, directors and consultants their present
and potential contributions to the success of the Company and its subsidiaries,
and such other factors as the Committee in its discretion shall deem relevant.
Subject to the provisions of the Plan, the Committee shall also have complete
authority to interpret the Plan, to prescribe, amend and rescind rules and
regulations relating to it, to determine the terms and provisions of the
respective Option Agreements or awards (which need not be identical), and to
make all other determinations necessary or advisable for the administration of
the Plan. The Committee's determinations on the matters referred to in this
Section 5 shall be conclusive.
6. Eligibility. An Option or award may be granted only to an employee,
-----------
director, or consultant of one or more of the Company and its subsidiaries. A
Director of one or more of the Company and its subsidiaries who is not also an
employee of one or more of the Company and its subsidiaries shall not be
eligible to receive an Incentive Option. Any person who, within the meaning of
Section 422(b)(6) of the Code, is deemed to own stock possessing more than 10%
of the total combined voting power of all classes of stock of the Company
3
<PAGE>
(or of its parent or subsidiary corporations) shall not be eligible to receive
an Option. In any given fiscal year, no Recipient may receive Options or awards
or both covering more than 500,000 shares of Stock (such number of shares to be
adjusted in accordance with Section 14).
7. Time of Granting Options. The granting of an Option or an award shall take
------------------------
place at the time specified by the Committee. Only if expressly so provided by
the Committee, shall the Grant Date be the date on which an Option Agreement or
Restricted Share award shall have been duly executed and delivered by the
Company and the Recipient.
8. Option Price. The Option Price under each Incentive Option shall be not
------------
less than 100% of the Fair Market Value of Stock on the Grant Date; the Option
Price under each Nonstatutory Option shall not be so limited.
9. Option Period. No Incentive Option may be exercised later than the tenth
-------------
anniversary of the Grant Date. The period during which a Nonstatutory Option may
be exercised shall not be so limited. An Option may become exercisable in such
installments, cumulative or non-cumulative, as the Committee may determine. In
the case of an Option not otherwise immediately exercisable in full, the
Committee may accelerate the exercisability of such Option in whole or in part
at any time, provided the acceleration of the exercisability of any Incentive
Option would not cause the Option to fail to comply with the provisions of
Section 422 of the Code.
10. Limit on Incentive Option Characterization. No Incentive Option shall be
------------------------------------------
considered an Incentive Option to the extent pursuant to its terms it would
permit the Recipient to purchase for the first time in any Vesting Year more
than the number of shares of Stock calculated by dividing the current limit by
the Fair Market Value on the Grant Date. The current limit for any Recipient
for any Vesting Year shall be $100,000 minus the aggregate Fair Market Value at
the date of grant of the number of shares of Stock available for purchase for
the first time in such Vesting Year under each other Incentive Option granted to
the Recipient under the Plan and each other incentive stock option granted to
the Recipient under any other incentive stock option plan of the Company (and
its parent and subsidiary corporations).
11. Exercise of Option. An Option may be exercised in accordance with its
------------------
terms by written notice of intent to exercise the Option, specifying the number
of shares with respect to which the Option is then being exercised. The notice
shall be accompanied by (a) full payment for such shares in the form of check or
bank draft payable to the order of the Company, or (b) certificates representing
shares of the Stock with a current Market Value equal to the Option Price of the
shares to be purchased, or (c) irrevocable instructions to a brokerage firm to
sell a sufficient number of the Option Shares to generate the full exercise
price plus all applicable withholding taxes and to pay over to the Company such
proceeds of sale.. Within 20 days thereafter, the Company shall deliver or
cause to be delivered to the Recipient evidence of ownership of the number of
shares then being purchased. Such shares shall be fully paid and
4
<PAGE>
nonassessable. If any law or applicable regulation of the Securities and
Exchange Commission or other public regulatory authority shall require the
Company or the Recipient to register or qualify under the Securities Act of
1933, as amended, any similar federal statute then in force or any state law
regulating the sale of securities, any Option Shares with respect to which
notice of intent to exercise shall have been delivered to the Company or to take
any other action in connection with such shares, the delivery of the certificate
or certificates for such shares shall be postponed until completion of the
necessary action, which the Company shall take in good faith and without delay.
All such action shall be taken by the Company at its own expense.
12. Termination of Employment. In the event that the Recipient's employment or
-------------------------
association with the Company is terminated, whether voluntarily or by reason of
dismissal or retirement, the Option, to the extent exercisable at the date of
termination, may be exercised by the Recipient within three months after he or
she ceases to be an employee, director or consultant. In the event that the
Recipient's employment or association with the Company terminates as a result of
the death or disability of the Recipient, the Option may be fully exercised by
the Recipient or, in the event of the death of the Recipient by the person to
whom the option is transferred by will or the applicable laws of descent and
distribution, at any time within two years after the date of termination, unless
terminated earlier by its terms. Military or sick leave shall not be deemed a
termination of employment provided that it does not exceed the longer of 90 days
or the period during which the absent employee's reemployment rights are
guaranteed by statute or by contract. In the event that the Recipient's
employment or association with the Company terminates as a result of the death
or disability of the Recipient, the exercisability of any Option not otherwise
immediately exercisable in full held by such Recipient shall be accelerated and
such Options shall be fully exercisable as of the date of termination.
13. Transferability of Options. Options shall not be transferable, otherwise
--------------------------
than by will or the laws of descent and distribution, and may be exercised
during the life of the Recipient only by the Recipient.
14. Adjustment of Number of Option Shares. In the event of 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
Committee or 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 Option Price of 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 always be a whole number.
5
<PAGE>
15. Restricted Shares. Each Restricted Share award shall be evidenced by a
-----------------
Restricted Share award agreement that shall specify the number of Restricted
Shares awarded and such other provisions as the Board or Committee shall
determine. The Restricted Shares may not be sold, transferred, pledged,
assigned, or otherwise alienated or hypothecated until satisfaction of the
conditions as specified by the Board or Committee and set forth in the
Restricted Share award agreement. All rights with respect to Restricted Shares
granted to a Recipient under the Plan shall be available during his or her
lifetime only to the Recipient. Recipients holding Restricted Shares may
exercise full voting rights with respect to those Restricted Shares. Recipients
holding Restricted Shares will receive such cash dividends paid with respect to
the Restricted Shares as may be declared while they are so held. Without
limiting the generality of the preceding sentence, if the grant or vesting of
Restricted Shares granted to a Recipient is designed to comply with the
requirements of the performance-based exception under Section 162(m) of the
Code, the Board or Committee may apply any restrictions it deems appropriate to
the payment of dividends declared with respect to such Restricted Shares, such
that the dividends and/or the Restricted Shares maintain eligibility for the
performance-based exception.
16. Transferability. The Recipient agrees that he or she will not transfer any
---------------
of the Option Shares or Restricted Shares unless (i) such shares are registered
under the provisions of the Securities Act of 1933, as amended, or (ii) at the
request of the Company, the transferee represents, in form satisfactory to
counsel for the Company, that he or she will not transfer, sell or otherwise
dispose of the Option Shares at any time purchased by him or her in a manner
which would violate the Securities Act of 1933, as amended (the "Act"), and the
regulations of the Securities and Exchange Commission thereunder. The Recipient
agrees that the Company may, at its discretion, make a notation on any
certificates issued upon exercise of any portion of the Option to the effect
that such certificate may not be transferred except after receipt by the Company
of an opinion of counsel satisfactory to it to the effect that such transfer
will not violate the Act and the regulations thereunder, and may issue "stop
transfer" instructions to its transfer agent, if any, and make a "stop transfer"
notation on its books as appropriate.
17. Change of Control.
-----------------
(a) Vesting of Options. In the event of a Change of Control, any Options
------------------
outstanding as of the date such Change of Control is determined to have
occurred, and which are not then exercisable and vested, shall become fully
exercisable and vested to the full extent of the original grant.
(b) Elimination of Restrictions. In the event of a Change of Control, all
---------------------------
restrictions with respect to all Restricted Shares outstanding as of the date
such Change of Control is determined to have occurred shall be eliminated.
(c) Change of Control Cash-Out. During the 60-day period from and after a
--------------------------
Change of Control (the "Exercise Period"), unless the Committee shall
6
<PAGE>
determine otherwise at the time of grant of an Option, each Recipient who is an
employee or consultant of one or more of the Company and its subsidiaries shall
have the right, whether or not the Option is fully exercisable and in lieu of
the payment of the Option Price for the shares of Stock being purchased under
the Option and by giving notice to the Company, to elect (within the Exercise
Period) to surrender all or part of the Option to the Company and to receive
cash, within 30 days of such notice, in an amount equal to the amount by which
the Change of Control Price per share of Stock on the date of such election
shall exceed the Option Price per share of Stock under the Option (the "Spread")
multiplied by the number of shares of Stock as to which the right granted under
this Section 17 shall have been exercised. Notwithstanding the foregoing, if any
right granted pursuant to this Section 17 would make a Change of Control
transaction ineligible for pooling-of-interests accounting under APB No. 16 that
but for the nature of such grant would otherwise be eligible for such accounting
treatment, the Committee shall have the ability to substitute for the cash
payable pursuant to such right Stock or other securities with a fair market
value equal to the cash that would otherwise be payable hereunder.
(d) Definition of Change of Control Price. "Change of Control Price" means
-------------------------------------
the higher of (i) the highest reported sales price, regular way, of a share of
Stock in any transaction reported on the New York Stock Exchange Composite Tape
or other national exchange on which such shares are listed or on NASDAQ National
Market during the 60-day period prior to and including the date of a Change of
Control or (ii) if the Change of Control is the result of a tender or exchange
offer or a Corporate Transaction, the highest price per share of Stock paid in
such tender or exchange offer or Corporate Transaction; provided, however, that
in the case of Incentive Options, the Change of Control Price shall be in all
cases the fair market value of the Stock on the date the right under Section
16(b) associated with such Incentive Option is exercised. To the extent that
the consideration paid in any such transaction described above consists all or
in part of securities or other noncash consideration, the value of such
securities or other noncash consideration shall be determined in the sole
discretion of the Board.
(e) Definition of Change of Control. For purposes of the Plan, a "Change of
-------------------------------
Control" shall mean:
(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 Stock (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
7
<PAGE>
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 16; or
(ii) Individuals who, as of June 8, 1999, 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
June 8, 1999 whose election, or nomination for election by the Company's
stockholders, 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 than 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 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 owns, directly or indirectly, 20% or more of,
respectively, the then outstanding shares of common stock of the corporation
resulting from such Corporate Transaction or the combined voting power of the
then outstanding voting 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 stockholders of the Company of a complete
liquidation or dissolution of the Company.
8
<PAGE>
18. Reservation of Stock. The Company shall at all times reserve and keep
--------------------
available such number of shares of the Stock as will be sufficient to satisfy
the requirements of this Plan and shall pay all fees and expenses necessarily
incurred by the Company in connection therewith.
19. Limitation of Rights in the Option Shares. A Recipient shall not be deemed
-----------------------------------------
for any purpose to be a stockholder of the Company with respect to any of the
Option Shares except to the extent that the Option shall have been exercised
with respect thereto and, in addition, a certificate shall have been issued
therefore and delivered to the Recipient. Any Stock issued pursuant to the
Option shall be subject to all restrictions upon the transfer thereof which may
be now or hereafter imposed by the Articles of Organization or the By-laws of
the Company.
20. Termination and Amendment of the Plan. The Board may at any time terminate
-------------------------------------
the Plan or make such modifications of the Plan as it shall deem advisable;
provided that no modification shall be effective to increase the number of
shares of Stock subject to the Plan or change the number or classification of
employees eligible to receive Options until such modification is approved by the
holders of a majority of the Company's common stock represented in person or by
proxy and voting at a meeting. No termination or amendment of the Plan may,
without the consent of the Recipient to whom any Option shall theretofore have
been granted, adversely affect the rights of such Recipient under such Option.
21. Notices. Any communication or notice required or permitted to be given
-------
under the Plan shall be in writing, and mailed by registered or certified mail
or delivered in hand, if to the Company, to its Treasurer at University Avenue,
Westwood, Massachusetts 02090 and, if to the Recipient, to the address as the
Recipient shall last have furnished to the communicating party.
22. Withholding; Notice of Disposition of Stock Prior to Expiration of
-------------------------------------------------------------------
Specified Holding Period.
- ------------------------
(a) Whenever shares are to be issued in satisfaction of an Option granted
hereunder, the Company shall have the right to require the Recipient to remit to
the Company an amount sufficient to satisfy federal, state, local or other
withholding tax requirements if and to the extent required by law (whether so
required to secure for the Company an otherwise available tax deduction or
otherwise) prior to the delivery of any certificate or certificates for such
shares.
(b) The Company may require as a condition to the issuance of shares
covered by an Incentive Option that the party exercising such Option give a
written representation to the Company which is satisfactory in form and
substance to its counsel and upon which the Company may reasonably rely, that he
or she will report to the Company any disposition of such shares prior to the
expiration of the holding periods specified by Section 422(a)(1) of the Code.
If and to the extent that the realization of income in such a disposition
imposes upon the Company federal, state, local or other withholding tax
requirements, or any other available tax deduction, the Company shall have the
right to require that the recipient remit to the Company an amount sufficient to
satisfy those requirements; and the Company may require as a condition to the
issuance of shares covered by an Incentive Option that the party exercising such
option give a satisfactory written representation promising to make such a
remittance.
9
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EXHIBIT 5
LTX CORPORATION
UNIVERSITY AVENUE
WESTWOOD, MA 02090
TELEPHONE: (781) 461-1000
FACSIMILE: (781) 329-8836
February 23, 2000
LTX Corporation
University Avenue
Westwood, MA 02090
Re: LTX Corporation
1999 Stock 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
February 23, 2000 (the "Registration Statement"), of 2,100,000 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 1999 Stock
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>
LTX Corporation
February 23, 2000
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>
ARTHUR ANDERSEN LLP
EXHIBIT 23(A)
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the use of our report
dated August 24, 1999 included in LTX Corporation's Form 10-K for the year ended
July 31, 1999 and to all references to our Firm included in this registration
statement.
/s/ Arthur Andersen LLP
Boston, Massachusetts
February 16, 2000
