UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934
Date of Report (Date of earliest event reported): June 20, 2008
LTX CORPORATION
(Exact Name of Registrant as Specified in Charter)
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Massachusetts
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000-10761
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04-2594045
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(State or Other Jurisdiction
of Incorporation)
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(Commission File Number)
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(IRS Employer
Identification No.)
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825 University Avenue,
Norwood, Massachusetts
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02062
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(Address of Principal Executive Offices)
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(Zip Code)
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Registrants telephone number, including area code: (781) 461-1000
None
(Former Name or Former
Address, if Changed Since Last Report)
Check the appropriate box below if the Form 8-K
filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
x
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
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Item 1.01 Entry into a Material Definitive Agreement.
Merger Agreemen
t
On June 20, 2008,
LTX Corporation (LTX) and Credence Systems Corporation (Credence) entered into an Agreement and Plan of Merger (the Merger Agreement), pursuant to which LTX and Credence will combine their businesses through the
merger of Credence with a newly formed, wholly owned subsidiary of LTX (the Merger), with Credence surviving the Merger as a wholly owned subsidiary of LTX.
At the effective time of the Merger (the Effective Time), by virtue of the Merger and without any action on the part of any stockholder, each share of Credence common stock issued and outstanding
immediately prior to the Effective Time will be converted into the right to receive shares of LTX common stock based on an exchange ratio that will be determined at the Effective Time to cause holders of Credence common stock to own 50.02% of the
outstanding common stock of the combined company. If the exchange ratio were calculated as of June 20, 2008, each outstanding share of Credence common stock would be converted into the right to receive approximately 0.6133 shares of LTX common
stock in the Merger.
David G. Tacelli, President and Chief Executive Officer of LTX, will remain President and Chief Executive Officer of the combined
company; Mark J. Gallenberger, Vice President and Chief Financial Officer of LTX, will remain Vice President and Chief Financial Officer of the combined company; and Lavi Lev, President and Chief Executive Officer of Credence, will become the
Executive Chairman of the Board of Directors of the combined company. The Board of Directors of the combined company will consist of nine directors, including Messrs. Tacelli and Lev, three additional members designated by Credence and four
additional members designated by LTX. In connection with the Merger, LTXs corporate name will be changed to LTX-Credence Corporation or such other name as may be mutually agreed upon by LTX and Credence.
The Merger Agreement contains customary representations, warranties and covenants of LTX and Credence including, among others, covenants (1) to use commercially
reasonable efforts to conduct their respective businesses in the ordinary course during the interim period between the execution of the Merger Agreement and consummation of the Merger, (2) not to engage in specified types of transactions during
such period, and (3) not to solicit proposals relating to alternative business combination transactions or, subject to specified exceptions, enter into discussions or provide confidential information in connection with proposals for alternative
business combination transactions.
LTXs and Credences obligations to consummate the Merger are subject to the satisfaction or waiver of
customary conditions, including (1) requisite approvals of the stockholders of LTX and Credence, (2) the absence of any law or order prohibiting the consummation of the Merger, (3) the declaration by the U.S. Securities and Exchange
Commission (the SEC) of the effectiveness of the registration statement relating to the shares of LTX common stock to be issued to Credence stockholders pursuant to the Merger Agreement, (4) the expiration or termination of
applicable waiting periods under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, and the antitrust laws of certain other applicable foreign jurisdictions, and (5) the absence of any material adverse effect with respect to
either party during the interim period between the execution of the Merger Agreement and consummation of the Merger.
In addition, each partys
obligation to consummate the Merger is subject to other specified customary conditions, including (1) the accuracy of the representations and warranties of the other party, subject to an overall material adverse effect qualification,
(2) material compliance by the other party with its covenants, and (3) the delivery of customary opinions of counsel to LTX and Credence that the Merger will qualify as a tax-free reorganization for U.S. federal income tax purposes.
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The board of directors of LTX and Credence have each unanimously approved the Merger and the Merger Agreement and adopted
resolutions recommending the requisite stockholder approval for consummation of the Merger. Each of LTX and Credence has agreed to hold a stockholders meeting to submit these matters to its stockholders for their consideration.
The Merger Agreement provides each of LTX and Credence with specified termination rights. If the Merger Agreement is terminated under circumstances specified in the
Merger Agreement, LTX or Credence, as the case may be, will be required to pay the other a termination fee of $6.75 million.
The foregoing description of
the Merger and the Merger Agreement does not purport to be complete and is qualified in its entirety by reference to the Merger Agreement, which is filed as Exhibit 2.1 hereto and is incorporated herein by reference.
The Merger Agreement contains representations and warranties that LTX and Credence made to each other as of specific dates. The assertions embodied in those
representations and warranties were made solely for purposes of the Merger Agreement between LTX and Credence and may be subject to important qualifications and limitations agreed to by LTX and Credence in connection with negotiating its terms.
Moreover, the representations and warranties may be subject to a contractual standard of materiality that may be different from what may be viewed as material to stockholders or may have been used for the purpose of allocating risk between LTX and
Credence rather than establishing matters as facts. For the foregoing reasons, no person should rely on the representations and warranties as statements of factual information at the time they were made or otherwise.
Stockholder Voting Agreements
In connection with the execution of
the Merger Agreement, LTX entered into Stockholder Voting Agreements with each of Credences directors and executive officers (the Credence Stockholder Voting Agreements), pursuant to which, among other things, each such director
and officer (1) agreed to vote his or her shares of Credence common stock in favor of approval of the Merger and adoption of the Merger Agreement and against the approval or adoption of any alternative business combination transactions at each
meeting of Credences stockholders during the period prior to the expiration of the Credence Stockholder Voting Agreement, (2) granted to LTX a proxy to vote his or her shares of Credence common stock in favor of approval of the Merger and
adoption of the Merger Agreement at each meeting of Credences stockholders prior to the expiration of the Credence Stockholder Voting Agreement, (3) agreed not to solicit proposals relating to alternative business combination transactions
or, subject to specified exceptions, enter into discussions or provide confidential information in connection with proposals for alternative business combination transactions, and (4) subject to specified exceptions, agreed not to transfer his
or her shares of Credence common stock prior to the expiration of the Credence Stockholder Voting Agreement. Each of LTXs directors and executive officers entered into Stockholder Voting Agreements with Credence (the LTX Stockholder
Voting Agreements) containing terms that are similar to the terms of the Credence Stockholder Voting Agreements with respect to his or her shares of LTX common stock.
The foregoing description of the Credence Stockholder Voting Agreements and the LTX Stockholder Voting Agreements does not purport to be complete and is qualified in its entirety by reference to the form of Credence
Stockholder Voting Agreement, which is filed as Exhibit 10.1 hereto, and to the form of LTX Stockholder Voting Agreement, which is filed as Exhibit 10.2 hereto, each of which is incorporated herein by reference.
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Amendment to Rights Agreement
The disclosure in Item 3.03 of this Current Report on Form 8-K is incorporated in this Item 1.01 by reference. Computershare Trust Company, N.A. is the transfer agent for LTXs common stock.
IMPORTANT ADDITIONAL INFORMATION WILL BE FILED WITH THE SEC
LTX plans to file with the SEC a Registration Statement on Form S-4 in connection with the Merger and LTX and Credence plan to file with the SEC and mail to their respective stockholders a Joint Proxy Statement/Prospectus in
connection with the Merger. The Registration Statement and the Joint Proxy Statement/Prospectus will contain important information about LTX, Credence, the Merger and related matters.
Investors and security holders are urged to read the
Registration Statement and the Joint Proxy Statement/Prospectus carefully when they are available.
Investors and security holders will be able to
obtain free copies of the Registration Statement and the Joint Proxy Statement/Prospectus (when they are available) and other documents filed with the SEC by LTX and Credence through the website maintained by the SEC at www.sec.gov.
In addition, investors and security holders will be able to obtain free copies of the Registration Statement and the Joint Proxy Statement/Prospectus (when they are
available) from LTX by contacting Mark Gallenberger at mark_gallenberger@ltx.com or 781-467-5417, or from Credence by contacting Brenda Ropoulos at brenda_ropoulos@credence.com or 408-635-4309.
LTX and Credence, and their respective directors and executive officers, may be deemed to be participants in the solicitation of proxies in respect of the transactions
contemplated by the Merger Agreement. Information regarding LTXs directors and executive officers is contained in LTXs Annual Report on Form 10-K for the fiscal year ended July 31, 2007 and its proxy statement dated November 6,
2007, which are filed with the SEC. As of June 16, 2008, LTXs directors and executive officers beneficially owned approximately 4,201,725 shares, or 6.7%, of LTXs common stock. Information regarding Credences directors and
executive officers is contained in Credences Annual Report on Form 10-K for the fiscal year ended November 3, 2007, its proxy statement dated March 7, 2008 and its Current Reports on Form 8-K filed on April 18,
2007, May 1, 2008, June 10, 2008 and June 17, 2008, which are filed with the SEC. As of June 16, 2008, Credences directors and executive officers beneficially owned approximately 1,348,090 shares, or 1.3%, of
Credences common stock. In connection with the transaction, Mr. Tacelli has agreed with LTX that the Merger will not constitute a change of control for purposes of his Change-of-Control Employment Agreement dated March 2, 1998 and
Mr. Gallenberger has agreed with LTX that the Merger will not constitute a change of control for purposes of his Change-of-Control Employment Agreement dated October 2, 2000. In connection with the transaction, each of Mr. Lev and
Mr. Eichler has entered into a Transition Services Agreement with Credence pursuant to which they have agreed to accept new positions with Credence, and perform certain transition services for Credence, for a period of six months following the
closing of the transaction in exchange for certain salary, bonus, acceleration of equity-based awards and other compensation. A more complete description will be available in the Registration Statement and the Joint Proxy Statement/Prospectus.
SAFE HARBOR FOR FORWARD-LOOKING STATEMENTS
Statements in this Current Report on Form 8-K regarding the proposed transaction between LTX and Credence, including the terms of the Merger Agreement and the tax-free, all-stock nature of the transaction, the belief that the combined
strengths of the two companies will create a leading provider of focused, cost-optimized solutions designed to enable customers to implement best-in-class test strategies to maximize their profitability, the new companys ability to address
broad market segments, the increased presence in the Asia-Pacific region, the establishment of a global network of applications and resources, the continuation of current employees and directors with the new company, the belief that the combined
strengths of the companies expertise and product portfolio will benefit customers, the creation of a test company with the financial strength, growth opportunities, critical mass, and operational efficiency to lead the industry, the
expectation that the combination will drive efficiencies associated with operating a larger business, and the anticipation of saving approximately $25 million at the end of the integration period, the expectation that the Merger will be accretive
within 12 months, the expected timetable for completing the transaction and any other statements about LTX or Credence managements future expectations, beliefs, goals, plans or prospects
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constitute forward looking statements within the meaning of the Private Securities Litigation Reform Act of 1995. Any statements that are not statements of
historical fact (including statements containing believes, anticipates, plans, expects, may, will, would, intends, estimates and similar
expressions) should also be considered to be forward looking statements. There are a number of important factors that could cause actual results or events to differ materially from those indicated by such forward looking statements, including: the
ability to consummate the transaction, the ability to successfully integrate LTXs and Credences operations and employees; the ability to realize anticipated synergies and cost savings; the risk of fluctuations in sales and operating
results; risks related to the timely development of new products, options and software applications and the other factors described in LTXs Annual Report on Form 10-K for the fiscal year ended July 31, 2007 and Credences Annual
Report on Form 10-K for the fiscal year ended November 3, 2007 and their most recent Quarterly Reports on Form 10-Q each filed with the SEC. LTX and Credence disclaim any intention or obligation to update any forward looking statements as a
result of developments occurring after the date of this Current Report on Form 8-K.
Item 3.03 Material Modification to Rights of Security Holders
On June 20, 2008, prior to the execution of the Merger Agreement, the board of directors of LTX approved an amendment (the Rights
Amendment) to the Rights Agreement (the Rights Agreement), dated as of April 30, 1999, between LTX and Computershare Trust Company, N.A. (as successor rights agent to BankBoston, N.A.), as rights agent. The Rights Amendment,
among other things, renders the Rights Agreement inapplicable to the Merger. The Rights Amendment provides, among other things, that none of (1) the approval, adoption, execution or delivery of the Merger Agreement, (2) the consummation of
the Merger, (3) the approval, execution or delivery of the LTX Stockholder Voting Agreements or (4) the consummation of any of the transactions contemplated by the Merger Agreement or the LTX Stockholder Voting Agreements, will result in
the rights becoming exercisable or in Credence or its affiliates and associates being deemed an Acquiring Person under the Rights Agreement.
The foregoing description of the Rights Amendment does not purport to be complete and is qualified in its entirety by reference to the Rights Amendment, which is attached as Exhibit 4.1 hereto and is incorporated herein by reference.
Item 5.02 Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain
Officers
In connection with the execution of the Merger Agreement, LTX entered into waiver letters dated June 20, 2008 (the Waiver
Letters) with each of Mr. Tacelli and Mr. Gallenberger relating to their existing Change-of-Control Employment Agreements with LTX. In the Waiver Letters, Mr. Tacelli and Mr. Gallenberger agreed that neither the execution
and delivery of the Merger Agreement nor the consummation of the Merger will constitute a change of control under their Change-of-Control Employment Agreements.
The foregoing description of the Waiver Letters does not purport to be complete and is qualified in its entirety by reference to the Waiver Letters, which are attached as Exhibits 10.3 and 10.4 hereto and are incorporated herein by
reference.
Item 8.01 Other Events.
On
June 22, 2008, LTX and Credence issued a joint press release announcing the execution of the Merger Agreement, a copy of which is filed as Exhibit 99.1 hereto and is incorporated herein by reference.
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Item 9.01. Financial Statements and Exhibits
See Exhibit Index attached hereto.
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
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LTX CORPORATION
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Date: June 23, 2008
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By:
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/s/ Joseph A. Hedal
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Joseph A. Hedal
General Counsel and
Secretary
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EXHIBIT INDEX
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Exhibit No.
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Description
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2.1
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Agreement and Plan of Merger, dated as of June 20, 2008, by and among LTX Corporation, Zoo Merger Corporation and Credence Corporation(1)
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4.1
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Amendment No. 4 to Rights Agreement, dated as of June 20, 2008, by and between LTX Corporation and Computershare Trust Company, N.A. (as successor Rights Agent to Bank Boston, N.A.), as rights
agent
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10.1
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Form of Credence Stockholder Voting Agreement
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10.2
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Form of LTX Stockholder Voting Agreement
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10.3
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Waiver Letter, dated as of June 20, 2008, by and between LTX Corporation and David G. Tacelli
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10.4
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Waiver Letter, dated as of June 20, 2008, by and between LTX Corporation and Mark J. Gallenberger
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99.1
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Press Release dated June 22, 2008
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(1)
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The exhibits and schedules to the Merger Agreement have been omitted from this filing pursuant to Item 601(b)(2) of Regulation S-K. LTX will furnish copies of any of such
exhibits or schedules to the SEC upon request.
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