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As filed with the Securities and Exchange Commission on February 14, 1997
Registration No. 33-
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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
(Address, including Zip Code, of Principal Executive Offices)
SPIRE CORPORATION
1996 EQUITY INCENTIVE PLAN
(Full title of the plan)
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RICHARD S. GREGORIO, VICE PRESIDENT AND CHIEF FINANCIAL OFFICER
SPIRE CORPORATION
ONE PATRIOTS PARK, BEDFORD, MASSACHUSETTS 01730-2396
(617) 275-6000
(Name, address and telephone number of agent for service)
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CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Title of Amount maximum maximum Amount of
securities to to be offering price aggregate registration
be registered registered per share (1) offering price (1) fee (2)
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[C] [C] [C] [C] [C]
Common Stock,
$.01 par value 300,000 sh. $2.63/$2.25 $684,682 $217
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(1) The offering price for shares not subject to options on the date hereof has
been estimated solely for the purpose of determining the registration fee
pursuant to Rule 457(h) on the basis of the average of the high and low prices
of Spire Corporation, as reported on the Nasdaq National Market System on
February 10, 1997. The offering price for shares subject to options outstanding
on the date hereof is the actual exercise price of such options.
(2) $83.22 of the registration fee is payable in respect of 104,425 shares
subject to outstanding options at an exercise price of $2.63 per share on the
date hereof, and $133.33 of the registration fee is payable in respect of
195,575 shares reserved for issuance under the Plan and not yet subject to
options on the date hereof.
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Exhibit Index at Page 5
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Note: The documents containing the Registrant's 1996 Equity Incentive Plan
information required by Item 1 of this Form S-8 and the statement of
availability of Registrant information, and other information required by Item 2
of this Form will be sent or given to employees as specified by Rule 428 of the
Securities Act of 1933, as amended. In accordance with Rule 428 and the
requirements of Part I of Form S-8, such documents are not being filed with the
Securities and Exchange Commission (the "Commission") either as part of this
Registration Statement or as prospectuses or prospectus supplements pursuant to
Rule 424. The Registrant will maintain a file of such documents in accordance
with the provisions of Rule 428. Upon request, the Registrant shall furnish to
the Commission or its staff a copy of any or all of the documents included in
such file.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents are incorporated in and made a part of this
registration statement by reference:
a. The Company's Annual Report on Form 10-KSB for the year ended December
31, 1995.
b. The Company's Quarterly Report on Form 10-QSB for the quarterly period
ended March 31, 1996.
c. The Company's Quarterly Report on Form 10-QSB for the quarterly period
ended June 30, 1996.
d. The Company's Quarterly Report on Form 10-QSB for the quarterly period
ended September 30, 1996.
e. The Description of the Company's Common Stock contained in the Company's
Registration Statement on Form 8-A, File No. 0-12742.
All documents filed by the Company with the Securities and Exchange Commission
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act
of 1934 prior to the filing of a post-effective amendment to this registration
statement that 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 this registration statement from the date of filing
of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not required.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
No material interests.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Massachusetts Business Corporation Law, Section 13(b)(1-1/2) enables a
corporation in its Articles of Organization or an amendment thereto validly
approved by stockholders to eliminate or limit personal liability of members of
its Board of Directors to the corporation or its stockholders for monetary
damages for breach of a director's fiduciary duty of care. However, the
elimination or limitation shall not apply where there has been a breach of duty
of loyalty, failure to act in good faith, engaging in intentional misconduct or
knowingly violating a law, paying a dividend or approving a stock repurchase
that is deemed illegal or obtaining an improper personal benefit. The Company's
Articles of Organization, as amended, contain the following language:
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"No director shall be personally liable to the Corporation or its stockholders
for monetary damages for breach of fiduciary duty as a director notwithstanding
any provision of law imposing such liability; provided, however, that, to the
extent required by applicable law, this provision shall not eliminate or limit
the liability of a director (i) for any breach of the director's duty of loyalty
to the Corporation or its stockholders, (ii) for acts or omissions not in good
faith or which involve intentional misconduct or a knowing violation of law,
(iii) under Section 61 or 62 or successor provisions of the Massachusetts
Business Corporation Law or (iv) for any transaction from which the director
derived an improper personal benefit. This provision shall not eliminate or
limit the liability of a director for any act or omission occurring prior to the
date upon which this provision becomes effective. No amendment to or repeal of
this provision shall apply to or have any effect on the liability or alleged
liability of any director for or with respect to any acts or omissions of such
director occurring prior to such amendment or repeal."
The Massachusetts Business Corporation Law, Section 67, permits a
corporation organized under Massachusetts law to indemnify directors and
officers to the extent specified in the corporation's Articles of Organization
or a By-Law adopted by the stockholders. The By-Laws of the Company contain the
following provisions in Article VII. INDEMNIFICATION OF DIRECTORS AND OFFICERS:
"Any person threatened with or made a party to any action, suit or other
proceeding by reason of the fact that he, his testator or intestate, is or was a
Director, officer, employee or other agent of the Corporation or is or was a
Director, officer, employee or other agent of another organization and in which
he, his testator or intestate, serves or served at the request of the
Corporation, or who serves or served at its request in any capacity with respect
to an employee benefit plan, shall be indemnified by the Corporation against all
liabilities and expenses, including counsel fees reasonably incurred by him in
connection therewith, except that no indemnification shall be provided for any
person with respect to any matter as to which he 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 or to the extent that such
matter relates to service with respect to an employee benefit plan, in the best
interest of the participants of such employee benefit plan; provided, however,
as to matters disposed of by a compromise payment by such person, pursuant to a
consent decree or otherwise, no reimbursement, either for said payment or for
any other expenses in connection with the matter so disposed of, shall be
provided unless such compromise shall be approved
(a) by a disinterested majority of the Directors then in office, or
(b) if a majority of the Directors are interested, by a majority of
the disinterested Directors then in office, provided that there
has been obtained an opinion in writing of independent legal
counsel to the effect that such Director or officer does not
appear to have acted in good faith in the reasonable belief that
his action was in the best interests of the Corporation, or
(c) by the holders of a majority of the outstanding stock at the time
entitled to vote for Directors, not counting as outstanding any
stock owned by any interested person.
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The Board of Directors may from time to time authorize the payment by the
Corporation of expenses incurred by any such person in defending any such
action, suit or other proceeding in advance of the final disposition of such
action, suit or other proceeding, upon receipt of an undertaking from such
person to repay such payment if he shall be adjudicated to be not entitled to
indemnification under this ARTICLE VII or if the matter involved shall be
disposed of by a compromise payment with respect to which he shall not be
entitled to indemnification under this ARTICLE VII. Such undertaking may be
accepted without reference to the financial ability of such person to make
repayment."
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
Exhibit List
5. Legal opinion of James W. Spindler, Esq.
23.1 Consent of KPMG Peat Marwick LLP.
23.2 Consent of James W. Spindler, Esq., is contained in the opinion
filed as Exhibit 5 to this Registration Statement.
99. Spire Corporation 1996 Equity Incentive Plan.
ITEM 9. UNDERTAKINGS.
The undersigned small business issuer will:
(1) File, during any period in which it offers or sells
securities, a post-effective amendment to this registration statement
to:
(iii) Include any additional or changed material information
on the plan of distribution.
(2) For determining any liability under the Securities Act, treat
each post-effective amendment as a new registration statement of the
securities offered, and the offering of the securities at that time to
be the initial bona fide offering.
(3) File a post-effective amendment to remove from registration
any of the securities that remain unsold at the end of the offering.
The undersigned small business issuer hereby undertakes that, for
purposes of determining any liability under the Securities Act of 1933,
each filing of the small business issuer'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 incorporated by reference in the registration statement 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.
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Insofar as indemnification for liabilities arising under the Securities Act
of 1933 (the "Act") may be permitted to directors, officers and controlling
persons of the small business issuer pursuant to the provisions described under
"Item 6 -- Indemnification of Directors and Officers" above, or otherwise, the
small business issuer 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 small
business issuer of expenses incurred or paid by a director, officer or
controlling person of the small business issuer 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 small business
issuer 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.
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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 the Town of Bedford, Massachusetts, on February 13, 1997.
SPIRE CORPORATION
By /s/Roger G. Little
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Roger G. Little
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.
SIGNATURE CAPACITY DATE
/s/ Roger G. Little President (principal executive February 13, 1997
- ------------------------ officer), Chairman of the Board
Roger G. Little and Director
/s/ Richard S. Gregorio Vice President and Chief February 13, 1997
- ------------------------ Financial Officer, Treasurer,
Richard S. Gregorio Clerk (principal financial and
accounting officer)
/s/ A. John Gale Director February 13, 1997
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A. John Gale
/s/ Carl N. Graf Director February 13, 1997
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Carl N. Graf
/s/ Udo Henseler Director February 13, 1997
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Udo Henseler
/s/ Roger W. Redmond Director February 13, 1997
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Roger W. Redmond
/s/ John A. Tarello Director February 13, 1997
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John A. Tarello
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