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As filed with the Securities and Exchange Commission on June 5, 2007
Registration No. 333-____
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
SPIRE CORPORATION
(Exact name of registrant as specified in its charter)
Massachusetts 04-2457335
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
One Patriots Park, Bedford, Massachusetts 01730-2396
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(Address of Principal Executive Offices) (Zip Code)
SPIRE CORPORATION
2007 STOCK EQUITY PLAN
(Full title of the plan)
Roger G. Little
Chairman of the Board, Chief Executive Officer and President
Spire Corporation
One Patriots Park
Bedford, Massachusetts 01730-2396
(Name and address of agent for service)
(781) 275-6000
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
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Title of securities Amount to be Proposed maximum Proposed maximum Amount of
to be registered registered(1) offering price per share aggregate offering registration fee
price
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Common Stock, $0.01 par 1,000,000 Shares(2) $9.60 - $9.765(3) $9,750,150(3) $299.33
value per share
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(1) In accordance with Rule 416 under the Securities Act of 1933, as amended,
this registration statement shall be deemed to cover any additional securities
that may from time to time be offered or issued to prevent dilution resulting
from stock splits, stock dividends or similar transactions.
(2) Consists of (i) 90,000 shares reserved for issuance upon the exercise of
outstanding options granted under the Spire Corporation 2007 Stock Equity Plan
(the "Plan") and (ii) 910,000 shares available for future grants under the Plan.
These shares have previously been approved for issuance under the Plan by the
Registrant's board of directors and stockholders.
(3) Estimated solely for the purpose of calculating the registration fee in
accordance with Rule 457(h) of the Securities Act of 1933, as amended. The price
per share and aggregate offering price are calculated on the basis of (i) with
respect to the 90,000 shares reserved for issuance upon the exercise of
outstanding options granted under the Plan, the exercise price of $9.60 per
share and (ii) with respect to the 910,000 shares available for future grants
under the Plan, the average of the high and low sale prices of the Registrant's
Common Stock on the Nasdaq Global Market on May 31, 2007 ($9.765), in accordance
with Rule 457(c) under the Securities Act of 1933, as amended.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The Registrant is subject to the informational and reporting requirements
of Sections 13(a), 14, and 15(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), and in accordance therewith files reports, proxy
statements and other information with the Securities and Exchange Commission
(the "Commission"). The following documents, which are on file with the
Commission, are incorporated in this Registration Statement by reference:
(a) The Registrant's Annual Report on Form 10-KSB for the fiscal year ended
December 31, 2006.
(b) The Registrant's Quarterly Report on Form 10-Q for the quarterly period
ended March 31, 2007.
(c) The Registrant's Current Reports on Form 8-K, filed with the Commission
on March 21, 2007 and May 25, 2007.
(d) The description of the Registrant's Common Stock contained in the
Registrant's Registration Statement on Form 8-A, including any amendments or
reports filed for the purpose of updating that description.
In addition, 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 hereby
have been sold or which deregisters all securities then remaining unsold, shall
be deemed to be incorporated by reference in this Registration Statement and to
be part hereof from the date of the filing of such documents. Any statement
contained in a document incorporated or deemed to be incorporated by reference
herein shall be deemed to be modified or superseded for the purposes of this
Registration Statement to the extent that a statement contained herein or in any
other subsequently filed document which also is or is deemed to be incorporated
by reference herein modifies or supersedes such statement. Any statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Registrant is organized under the laws of The Commonwealth of
Massachusetts. The Massachusetts Business Corporation Law provides that
indemnification of directors, officers, employees, and other agents of another
organization, or who serve at its request in any capacity with respect to any
employee benefit plan, may be provided by the corporation to whatever extent
specified in its charter documents or votes adopted by its shareholders, except
that no indemnification may be provided for any person with respect to any
matter as to which the person shall have been adjudicated in any proceeding not
to have acted in good faith in the reasonable belief that his action was in the
best interest of the corporation. Under Massachusetts law, a corporation can
purchase and maintain insurance on behalf of any person against any liability
incurred as a director, officer, employee, agent, or person serving at the
request of the corporation as a director, officer, employee, or other agent of
another organization or with respect to any employee benefit plan, in his
capacity as such, whether or not the corporation would have power to itself
indemnify him against such liability.
The Registrant's Restated Articles of Organization, as amended, provide
that a director is not liable to the Registrant or its shareholders for monetary
damages for breach of fiduciary duty except for: (a) any breach of the
director's duty of loyalty to the Registrant or its shareholders, (b) acts or
omissions not in good faith or that involve intentional misconduct or a knowing
violation of law, (c) under the Massachusetts Business Corporation Law
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provisions imposing joint and several liability for improper distributions to
shareholders or loans to officers or directors, (d) transactions from which a
director derived an improper personal benefit or (e) for any act or omission
occurring prior to the effective date of such provision.
The Registrant's By-Laws require the Registrant to indemnify all officers,
directors, employees and agents of the Registrant against all liabilities and
expenses they may incur on account of all actions threatened or brought against
them by reason of their services to the Registrant or to another entity at the
request of the Registrant. No indemnification is provided for any person with
respect to any matter as to which such person has been adjudicated in any
proceeding not to have acted in good faith in the reasonable belief that his
action was in the best interests of the Registrant.
The Registrant maintains directors' and officers' liability insurance which
would indemnify its directors and officers against damages arising out of
certain kinds of claims which might be made against them based on their
negligent acts or omissions while acting in their capacity as such.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The Exhibit Index immediately preceding the exhibits is incorporated herein
by reference.
ITEM 9. UNDERTAKINGS.
1. ITEM 512(A) OF REGULATION S-K. The undersigned Registrant hereby
undertakes:
(1) 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;
(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; and
(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 (i) and (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 with or furnished to the
Commission by the Registrant pursuant to Section 13 or
Section 15(d) of the Exchange Act that are incorporated by
reference in the Registration Statement.
(2) That, for the purpose of determining any liability
under the Securities Act, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time
shall be deemed to be the initial BONA FIDE offering thereof.
(3) 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.
2. ITEM 512(B) OF REGULATION S-K. The undersigned Registrant hereby
undertakes that, for purposes of determining any liability under the Securities
Act, each filing of the Registrant's annual report pursuant to Section 13(a) or
Section 15(d) of the Exchange Act that is incorporated by reference in the
Registration Statement
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shall be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial BONA FIDE offering thereof.
3. ITEM 512(H) OF REGULATION S-K. Insofar as indemnification for
liabilities arising under the Securities Act 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 Commission such indemnification is against public policy as expressed in the
Securities 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 or 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 Securities
Act and will be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in Boston, Massachusetts, on this 4th day of June, 2007.
SPIRE CORPORATION
By: /s/ Roger G. Little
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Roger G. Little
Chief Executive Officer and President
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 dates indicated.
/s/ Roger G. Little Chief Executive Officer, President June 4, 2007
--------------------------- and Chairman of the Board
Roger G. Little (Principal Executive Officer)
/s/ Christian Dufresne Chief Financial Officer June 4, 2007
--------------------------- (Principal Financial Officer)
Christian Dufresne
/s/ Richard P. Thomley Chief Accounting Officer June 4, 2007
--------------------------- (Principal Accounting Officer)
Richard P. Thomley
/s/ Udo Henseler Director June 4, 2007
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Udo Henseler
/s/ David R. Lipinski Director June 4, 2007
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David R. Lipinski
/s/ Mark C. Little Director June 4, 2007
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Mark C. Little
/s/ Michael J. Magliochetti Director June 4, 2007
---------------------------
Michael J. Magliochetti
/s/ Guy L. Mayer Director June 4, 2007
---------------------------
Guy L. Mayer
Director June , 2007
---------------------------
Roger W. Redmond
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EXHIBIT INDEX
NO. DESCRIPTION
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4.1 Spire Corporation 2007 Stock Equity Plan.
5.1 Opinion of Greenberg Traurig LLP, counsel to the Registrant.
23.1 Consent of Greenberg Traurig LLP (included in Exhibit 5.1).
23.2 Consent of Vitale, Caturano & Company, Ltd.
6