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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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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): September 4, 2009
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SPIRE CORPORATION
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(Exact Name of Registrant as Specified in Charter)
Massachusetts 0-12742 04-2457335
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(State or Other Jurisdiction (Commission (IRS Employer
of Incorporation) File Number) Identification No.)
One Patriots Park, Bedford, Massachusetts 01730-2396
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(Address of principal executive offices) (Zip Code)
(781) 275-6000
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(Registrant's telephone number, including area code)
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 (see General Instruction A.2. below):
[_] Written communications pursuant to Rule 425 under the Securities Act (17
CFR 230.425)
[_] Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
[_] Pre-commencement communications pursuant to Rule 14d-2(b) under the
Exchange Act (17 CFR 240.14d-2(b))
[_] 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.
On September 4, 2009, Spire Corporation, a Massachusetts corporation
(the "Company"), Spire Biomedical, Inc., a Massachusetts corporation and wholly
owned subsidiary of the Company ("Seller," and together with the Company,
"Spire"), and Bard Access Systems, Inc., a Utah corporation ("Bard"), entered
into an Asset Purchase Agreement (the "Purchase Agreement") pursuant to which
Bard has agreed to (i) acquire substantially all of the assets of Spire's
hemodialysis catheter business and (ii) assume and pay post-closing liabilities
related to the purchased assets as set forth in the Purchase Agreement
(collectively, the "Transaction").
The purchase price payable under the Purchase Agreement is $15.0
million, including $14.9 million payable at closing to Spire and $100,000 to be
paid to two employees of Spire, including Mark C. Little, Chief Executive
Officer of Spire Biomedical, as consideration for their execution of the
Non-Competition Agreements described below. The purchase price is subject to
adjustment in the event that the value of the inventory delivered at closing is
less than the estimated value of the inventory as of September 4, 2009. The
closing of the transactions contemplated by the Purchase Agreement, subject to
the satisfaction of closing conditions, is expected to occur before September
30, 2009.
At the closing, Spire and Bard will enter into a License Agreement and a
Sublicense Agreement, pursuant to which Spire will grant to Bard a license or
sublicense in the field of hemodialysis catheters to use certain intellectual
property used by Spire in its surface treatments business (the "Licensed
Intellectual Property"). Spire will retain the rights to the Licensed
Intellectual Property outside the field of hemodialysis catheters.
The Purchase Agreement includes a five-year commitment of Spire not to
compete with the hemodialysis catheter business. As a condition to closing, Mark
C. Little, Chief Executive Officer of Spire Biomedical, and the Chief Operating
Officer of Spire Biomedical (each, a "Covered Employee") will each enter into a
Non-Competition Agreement with Bard and Spire pursuant to which each Covered
Employee agrees not to compete with the hemodialysis catheter business for a
period of two years following the closing. In consideration for their execution
of the Non-Competition Agreements, each Covered Employee will be paid $50,000
from the purchase price paid to Spire at closing. In the event that the
employment by Spire of a Covered Employee terminates for any reason during the
non-compete period, Spire will pay to the Covered Employee, as additional
consideration for the Non-Competition Agreement, up to $100,000 (the exact
amount of which is determined based upon a formula set forth in the
Non-Competition Agreement and which decreases based upon the amount of time
remaining until the non-compete period expires as of the date of termination of
employment).
The Purchase Agreement also contains customary representations and
warranties, pre-closing and post closing covenants and mutual indemnification
obligations for, among other things, inaccuracy or breach of any representation
or warranty in the Purchase Agreement and any breach or non-fulfillment of any
covenant contained in the Purchase Agreement and related transaction agreements
or certificates.
The closing of the transactions contemplated by the Purchase Agreement
also is subject to customary closing conditions, including the accuracy of
representations and warranties, the performance of covenants, the receipt of a
consent to the transaction from the Company's lender, and the execution by the
parties of the aforementioned License Agreement, Sublicense Agreement,
Non-Competition Agreements and other customary ancillary agreements addressing
the assignment and assumption of the purchased assets and assumed liabilities.
The Purchase Agreement may be terminated by mutual written consent, by either
Spire or Bard if the closing conditions of the other have become impossible to
meet, by either Spire or Bard if the closing has not occurred by September 30,
2009, or by either Spire or Bard if the other is in breach of any
representation, warranty, covenant or agreement in any material respect and such
breach is not cured within ten (10) days after notice.
CAUTIONARY NOTE REGARDING FORWARD LOOKING STATEMENTS
This Current Report on Form 8-K may contain forward-looking statements within
the meaning of the federal securities laws. These statements reflect the
Company's current views with respect to future events and are based on its
management's current assumptions and information currently available. Actual
results may differ materially due to numerous factors including, without
limitation, the ability of Spire and Bard to satisfy the conditions to the
proposed transaction; risks associated with market and economic conditions; the
risks and uncertainties described in the Company's annual report on Form 10-K
for the year ended December 31, 2008; and other factors identified from time to
time in the Company's periodic filings with the Securities and Exchange
Commission. The Company undertakes no obligation to update any forward-looking
statements contained herein.
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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.
SPIRE CORPORATION
Date: September 8, 2009 By: /s/ Christian Dufresne
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Christian Dufresne
Chief Financial Officer and Treasurer
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