November 18, 2009
BY EDGAR
Securities and Exchange Commission
100 F Street, N.E., Mail Stop 3030
Washington, D.C. 20549
Attn: Daniel H. Morris
Special Counsel
Re: Spire Corporation
Form 10-K for Year Ended December 31, 2008
Letter Dated October 14, 2009
File No. 0-12742
Dear Mr. Morris:
This letter is submitted on behalf of Spire Corporation (the "Company"
or "Spire") in response to the comments of the staff of the Division of
Corporation Finance (the "Staff") of the Securities and Exchange Commission (the
"Commission" or "SEC") with respect to the Company's Form 10-K for the fiscal
year ended December 31, 2008, filed on March 31, 2009 (the "Form 10-K"), and
related matters, as set forth in a letter dated November 9, 2009 to Roger G.
Little (the "Comment Letter").
For reference purposes, the text of the relevant portions of the
Comment Letter have been reproduced herein with responses below each numbered
comment. For your convenience, we have italicized the reproduced Staff comments
from the Comment Letter and we have bolded the headings of our responses
thereto.
FORM 10-K FOR THE YEAR ENDED DECEMBER 31, 2008
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COMMENT NO. 1
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WE NOTE YOUR PRESS RELEASE ON SEPTEMBER 29, 2009 STATING THAT YOU
ENTERED INTO TWO CONTRACTS WITH UNI-CHEM CO., LTD. IN AN AGGREGATE VALUE OF
APPROXIMATELY $60 MILLION. PLEASE TELL US WHY YOU DID NOT FILE A FORM 8-K TO
DISCLOSE THAT YOU ENTERED INTO THESE AGREEMENTS. IN ADDITION, PLEASE FILE THE
UNI-CHEM CONTRACTS.
Response to Comment No. 1
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On August 26, 2009, the Company entered into three primary commercial
contracts with Uni-CHEM Co., Ltd. ("Uni-Chem"):
Securities and Exchange Commission
November 18, 2009
Page 2
1. Purchase and Sale Agreement for a 60 MW Solar Cell Production Line (the
"Cell Line Agreement");
2. Purchase and Sale Agreement for a 50 MW Solar Module Production Line
(the "Module Line Agreement"); and
3. Project Management Agreement for Utilities and Infrastructure Supply
for Spire Cell and Module Line (the "Project Management Agreement").
These agreements are collectively referred to herein as the "Uni-Chem
Agreements." The purchase price for the cell line under the Cell Line Agreement
is $21,750,000. The purchase price for the module line under the Module Line
Agreement is $13,250,000. The purchase price for the services to be provided
under the Project Management Agreement is $11,500,000. Accordingly, the
aggregate potential payments to Spire under the three Uni-Chem Agreements is
$46,500,000. The remainder of the approximately $60 million figure referenced in
the September 2009 press release represented potential value to Spire in the
event the parties entered into definitive agreements relating to Uni-Chem's
possible investment in Spire Solar Systems, Spire's systems integration
business, as described in the press release; no such definitive agreements have
been entered into yet.
At the time the Company entered into the three Uni-Chem Agreements, it
did not file a Form 8-K because (i) each of the contracts was made in the
ordinary course of the Company's business and (ii) the Company did not believe
that its business was "substantially dependent" upon any of these agreements, as
such term is used in Item 601(b)(10)(ii) of Regulation S-K. However, in the
interest of resolving this matter, the Company (i) described the Uni-Chem
Agreements in Part I, Item 2, "Management's Discussion and Analysis of Financial
Condition and Results of Operations" and Part II, Item 5, "Other Information" of
the Company's Form 10-Q for the quarter ended September 30, 2009 (the "Third
Quarter Form 10-Q"), complying with the disclosure requirements of Item 1.01 of
Form 8-K, and (ii) filed the Uni-Chem Agreements and any amendments thereto as
exhibits to the Third Quarter Form 10-Q (and simultaneously requested
confidential treatment of certain information contained therein in accordance
with SEC guidance).
SPIRE SOLAR, PAGE 2
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COMMENT NO. 2
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WE NOTE YOUR RESPONSE TO THE FIRST SENTENCE OF PRIOR COMMENT 1.
HOWEVER, WE ALSO NOTE THAT THE CONTRACT WITH FEDERAL PRISON INDUSTRIES ("FPI")
IS WORTH APPROXIMATELY $53 MILLION. PLEASE EXPAND YOUR ANALYSIS OF THE
MATERIALITY OF THIS CONTRACT TO SPECIFICALLY ADDRESS ITS SIZE. GIVEN YOUR
DISCLOSURE ON PAGE 6 THAT NO CUSTOMERS ACCOUNTED FOR MORE THAN 10% OF YOUR
CONSOLIDATED NET SALES DURING THE YEAR ENDED DECEMBER 31, 2008, THE SIZE OF THE
FPI CONTRACT RELATIVE TO YOUR OPERATIONS AND TO OTHER CUSTOMER CONTRACTS WOULD
APPEAR TO MAKE THE FPI CONTRACT MATERIAL.
Securities and Exchange Commission
November 18, 2009
Page 3
Response to Comment No. 2
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In the interest of resolving this matter, the Company will (i) file the
contract with the Federal Prison Industries and any amendments thereto as
exhibits to a Form 10-K/A for the year ended December 31, 2008 (and
simultaneously request confidential treatment of certain information contained
therein in accordance with SEC guidance), (ii) describe the material terms of
such contract under Item 9B, "Other Information" of the Form 10-K/A and (iii)
revise the description of such contract under Item 1, "Business" of the Form
10-K/A to include such material terms.
SIGNATURES
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COMMENT NO. 3
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WE REISSUE PRIOR COMMENT 7. YOUR CONTROLLER OR PRINCIPAL ACCOUNTING
OFFICER SHOULD SIGN THE FORM 10-K BELOW THE SECOND PARAGRAPH ON THE SIGNATURE
PAGE. PLEASE REVISE.
Response to Comment No. 3
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The Company will file a Form 10-K/A for the year ended December 31,
2008 with a revised signature page indicating that Christian Dufresne, the
Company's Chief Financial Officer and Treasurer, is signing in the capacity of
both the Company's principal financial officer and principal accounting officer.
* * * * *
In connection with the Company's responses contained in this letter,
the Company acknowledges that:
o The Company is responsible for the adequacy and accuracy of the
disclosure in the filings;
o staff comments or changes to disclosure in response to staff
comments do not foreclose the Commission from taking any action
with respect to the filing; and
o the Company may not assert staff comments as a defense in any
proceeding initiated by the Commission or any person under the
federal securities laws of the United States.
If you should have any questions about this letter, please do not
hesitate to call the undersigned at (781) 275-6000.
Sincerely,
/s/ Christian Dufresne
Christian Dufresne
Chief Financial Officer