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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): December 14, 2009
SPIRE CORPORATION
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(Exact name of registrant as specified in its 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)
Registrant's telephone number, including area code: (781) 275-6000
Not Applicable
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(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 (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 December 14, 2009 (the "Closing Date"), Spire Corporation, a
Massachusetts corporation (the "Company"), Spire Biomedical, Inc., a
Massachusetts corporation and wholly owned subsidiary of the Company ("Spire
Biomedical," and together with the Company, "Spire"), and Bard Access Systems,
Inc., a Utah corporation ("Bard"): (i) entered into an Amendment to Asset
Purchase Agreement (the "Amendment"), which modified the terms of that certain
Asset Purchase Agreement between the parties dated as of September 4, 2009 (the
"Purchase Agreement"), pursuant to which Bard had previously agreed to acquire
substantially all of the assets of Spire's hemodialysis catheter business and
assume and pay post-closing liabilities related to the purchased assets as set
forth in the Purchase Agreement (collectively, the "Transaction"); and (ii)
completed the closing of the Transaction in accordance with the terms of the
Purchase Agreement, as modified by the Amendment.
The maximum purchase price payable under the Purchase Agreement, as
amended by the Amendment, is $12.5 million, including (i) $9.4 million that was
paid at closing to Spire, (ii) $100,000 that was paid at closing to two
employees of Spire, including Mark Little, Chief Executive Officer of Spire
Biomedical, as consideration for their execution of the Non-Competition
Agreements described below, and (iii) $3.0 million payable based on the
achievement of certain milestones described below (the "Contingent Purchase
Price").
Certain of the assets sold by Spire in the Transaction were
transferred to Bard at the closing, and certain other assets (the "Contingent
Deferred Assets") will be transferred to Bard upon the completion of a product
recall related to such assets, which is expected to occur in the second quarter
of 2010. Until the Contingent Deferred Assets are transferred by Spire, Spire
will continue to manufacture and supply to Bard certain hemodialysis catheter
products under the terms of an Exclusive Manufacture, Supply and Distribution
Agreement entered into by Spire and Bard on the closing date (the "Distribution
Agreement"). Upon the transfer of the Contingent Deferred Assets to Bard, Bard
will pay to Spire $1.5 million of the Contingent Purchase Price. Bard will pay
to Spire up to $1.5 million of the remaining Contingent Purchase Price based
upon the achievement of milestones related to the manufacture and supply of
certain quantities of hemodialysis catheter products under the Distribution
Agreement. The transfer price for hemodialysis catheter products delivered to
Bard under the Distribution Agreement will be equal to Spire's standard costs of
goods, including related overhead, without mark-up and calculated in accordance
with U.S. generally accepted accounting principles.
As part of the Transaction, Spire and Bard entered into a License
Agreement and a Sublicense Agreement on the Closing Date, pursuant to which
Spire granted to Bard a license and a sublicense, respectively, 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, as amended, includes a five-year commitment
of Spire not to compete with the hemodialysis catheter business. As part of the
Transaction, on the Closing Date, each of Mark Little, Chief Executive Officer
of Spire Biomedical, and the Chief Operating Officer of Spire Biomedical (each,
a "Covered Employee") entered into a Non-Competition Agreement with Bard and
Spire pursuant to which each Covered Employee agreed 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 was 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).
2
The Purchase Agreement, as amended, 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 foregoing summary of the Purchase Agreement and the Amendment
does not purport to be complete and is qualified in its entirety by reference to
(i) the Purchase Agreement previously filed as Exhibit 2.5 to the Company's
Quarterly Report on Form 10-Q for the fiscal quarter ended September 30, 2009
(the "Third Quarter 10-Q"), (ii) Extension dated September 25, 2009 of Asset
Purchase Agreement filed as Exhibit 2.6 to the Third Quarter 10-Q, (iii)
Extension dated October 30, 2009 of Asset Purchase Agreement filed as Exhibit
2.7 to the Third Quarter 10-Q, (iv) the Extension dated November 30, 2009 of
Asset Purchase Agreement filed as an exhibit hereto and (v) the Amendment dated
December 14, 2009 to Asset Purchase Agreement filed as an exhibit hereto.
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 to satisfy the conditions to receive the
Contingent Purchase Price; risks associated with market and economic conditions;
the risks and uncertainties described in the Company's annual report on Form
10-K, as amended, 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.
ITEM 2.01 COMPLETION OF ACQUISITION OR DISPOSITION OF ASSETS.
The information set forth under Item 1.01 "Entry into a Material
Definitive Agreement" is incorporated by reference into this Item 2.01.
ITEM 9.01. FINANCIAL STATEMENTS AND EXHIBITS.
(d) Exhibits
Exhibit No. Description
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2.5 Asset Purchase Agreement, dated September 4, 2009, by and
among Bard Access Systems, Inc. and Spire Biomedical, Inc.
and Spire Corporation, incorporated by reference to Exhibit
2.5 to the Company's Form 10-Q for the quarter ended
September 30, 2009*
2.6 Extension dated September 25, 2009 of Asset Purchase
Agreement, dated September 4, 2009, by and among Bard
Access Systems, Inc. and Spire Biomedical, Inc. and Spire
Corporation, incorporated by reference to Exhibit 2.6 to
the Company's Form 10-Q for the quarter ended September 30,
2009
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2.7 Extension dated October 30, 2009 of Asset Purchase
Agreement, dated September 4, 2009, by and among Bard
Access Systems, Inc. and Spire Biomedical, Inc. and Spire
Corporation, incorporated by reference to Exhibit 2.7 to
the Company's Form 10-Q for the quarter ended September 30,
2009
2.8 Extension dated November 30, 2009 of Asset Purchase
Agreement, dated September 4, 2009, by and among Bard
Access Systems, Inc. and Spire Biomedical, Inc. and Spire
Corporation
2.9 Amendment dated December 14, 2009 of Asset Purchase
Agreement, dated September 4, 2009, by and among Bard
Access Systems, Inc. and Spire Biomedical, Inc. and Spire
Corporation *
* The Company agrees to furnish supplementally to the Securities
and Exchange Commission (the "Commission") a copy of any
omitted schedule or exhibit to this agreement upon request by
the Commission.
SIGNATURES
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: December 18, 2009 By: /s/ Christian Dufrense
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Christian Dufresne
Chief Financial Officer and Treasurer
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EXHIBIT INDEX
Exhibit No. Description
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2.5 Asset Purchase Agreement, dated September 4, 2009, by and among
Bard Access Systems, Inc. and Spire Biomedical, Inc. and Spire
Corporation, incorporated by reference to Exhibit 2.5 to the
Company's Form 10-Q for the quarter ended September 30, 2009*
2.6 Extension dated September 25, 2009 of Asset Purchase Agreement,
dated September 4, 2009, by and among Bard Access Systems, Inc.
and Spire Biomedical, Inc. and Spire Corporation, incorporated
by reference to Exhibit 2.6 to the Company's Form 10-Q for the
quarter ended September 30, 2009
2.7 Extension dated October 30, 2009 of Asset Purchase Agreement,
dated September 4, 2009, by and among Bard Access Systems, Inc.
and Spire Biomedical, Inc. and Spire Corporation, incorporated
by reference to Exhibit 2.7 to the Company's Form 10-Q for the
quarter ended September 30, 2009
2.8 Extension dated November 30, 2009 of Asset Purchase Agreement,
dated September 4, 2009, by and among Bard Access Systems, Inc.
and Spire Biomedical, Inc. and Spire Corporation *
2.9 Amendment dated December 14, 2009 of Asset Purchase Agreement,
dated September 4, 2009, by and among Bard Access Systems, Inc.
and Spire Biomedical, Inc. and Spire Corporation *
* The Company agrees to furnish supplementally to the Securities and
Exchange Commission (the "Commission") a copy of any omitted
schedule or exhibit to this agreement upon request by the
Commission.
