As filed with the Securities and Exchange Commission on February 28, 2006
Registration 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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Form S-1
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
SIMTEK CORPORATION
(Exact name of registrant as specified in its charter)
Colorado 3674 84-1057605
(State or other (Primary Standard Industrial (I.R.S. Employer
jurisdiction of Classification Code Number) Identification No.)
incorporation or
organization)
4250 Buckingham Dr. #100
Colorado Springs, Colorado 80907
(719) 531-9444
(Address, including zip code, and telephone number,
including area code, of Principal Executive Offices)
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Harold Blomquist
Chief Executive Officer and President
Simtek Corporation
4250 Buckingham Dr. #100
Colorado Springs, CO 80907
(719) 531-9444
(Name, address, including zip code and telephone
number, including area code, of agent for service)
Copies to:
Hendrik F. Jordaan, Esq.
Garth B. Jensen, Esq.
Holme Roberts & Owen LLP
1700 Lincoln, Suite 4100
Denver, Colorado 80203
(303) 861-7000
Approximate Date of Commencement of Proposed Sale to the Public: From time
to time after the effective date of this Registration Statement.
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If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933 check the following box: [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462
(d) under the Securities Act, check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering. [ ]
CALCULATION OF REGISTRATION FEE(1)
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Title of each class of Amount to be Proposed maximum Proposed maximum Amount of
securities to be registered(1) offering price aggregate registration fee
registered per share offering price
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Common stock, $.01 par 89,121,871 $0.27(2) $24,062,905 $2,575
value per share
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13,636,364 $0.27(2) $3,681,818 $394
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5,055,612 $0.7772(3) $3,929,222 $420
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375,000 $1.25(3) $468,750 $50
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375,000 $1.50(3) $562,500 $60
-------------------------------------------------------------------------------------------------------------------------
2,579,980 $0.265(3) $683,695 $73
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386,997 $0.627(3) $242,647 $26
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200,000 $0.50(3) $100,000 $11
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1,062,500 $0.28(3) $297,500 $32
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Total 112,793,324(4) $34,029,037 $3,641(5)
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(1) Comprises 89,121,871 shares of common stock currently issued, 13,636,364
shares of common stock issuable in the future upon the conversion of
debentures at $0.22 per share and 10,035,089 shares of common stock
issuable in the future upon exercise of warrants with exercise prices of
$0.627, $0.50, $0.265, $0.28, $0.7772, $1.25 and $1.50 per share.
(2) Estimated solely for purpose of calculating the registration fee pursuant
to Rule 457(c), based on the average of the bid and the asked prices of our
common stock as reported on the Over-the-Counter Bulletin Board on February
23, 2006.
(3) Estimated solely for purposes of calculating the registration fee pursuant
to Rule 457(g).
(4) Of the 112,793,324 shares being registered hereunder, pursuant to Rule
429(b), 32,699,131 shares are being carried forward from the registrant's
prior Registration Statement on Form S-2 (File No. 333-126041). Pursuant to
Rule 416(a), this Registration Statement shall also cover any additional
shares of common stock which become issuable by reason of any stock
dividend, stock split, recapitalization or other similar transaction
effected without the receipt of consideration which results in an increase
in the number of the registrant's outstanding shares of common stock.
(5) The registrant, Simtek Corporation, previously paid a registration fee of
$427.46 in connection with the Registration Statement on Form SB-2 (File
No. 333-111408) initially filed on November 18, 2004 and a registration fee
of $611.62 in connection with the Registration Statement on Form SB-2 (File
No. 333-120586) initially filed on November 26, 2003; the securities
offered under such registration statements remain unsold and the registrant
has withdrawn such registration statements. Accordingly, pursuant to Rule
457(p), the registration fee payable with respect to this registration
statement on Form S-1 was offset by $1,039.08 from $3,641 to $2,601.62. The
registrant previously paid $482.99 pursuant to the Registration Statement
on Form S-2 (File No. 333-126041) and previously paid $418.38 pursuant to
the Pre-Effective Amendment No. 1 on Form S-2 (File No. 333-126041); as
such, only $1,700.25 is due at this time.
---------------------------------
Pursuant to Rule 429 under the Securities Act of 1933, as amended, this
registration statement contains a combined prospectus that also relates to
32,699,131 shares of common stock registered on Form S-2, registration no.
333-126041, which have not been offered or sold as of the date of the filing of
this registration statement. This registration statement constitutes a
post-effective amendment to the prior related registration statement, pursuant
to which the total amount of unsold previously registered securities may be
offered and sold as any of the securities registered hereunder, and such
post-effective amendment shall hereafter become effective concurrently with the
effectiveness of this registration statement and in accordance with Section 8(c)
of the Securities Act of 1933, as amended. If the previously registered
securities are offered and sold prior to the effective date of this registration
statement, the amount of previously registered securities so sold will not be
included in the prospectus hereunder.
The registrant hereby amends this registration statement on such date or
dates as may be necessary to delay its effective date until the registrant shall
file a further amendment which specifically states that this registration
statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933, as amended, or until the registration statement
shall become effective on such date as the Commission, acting pursuant to said
Section 8(a), may determine.
Purpose of Registration Statement
This registration statement registers a total of 112,793,324 shares of
common stock that may be offered by shareholders of Simtek Corporation. Out of
the 112,793,324 shares under the combined prospectus, 32,699,131 shares have
already been registered on Form S-2, registration no. 333-126041, and are being
carried forward pursuant to Rule 429(b).
Special Note
This registration statement on Form S-1, which, among other things, acts as
a post-effective amendment to the registration statement on Form S-2
(Registration No. 333-126041), is being filed on Form S-1 because Form S-2 is no
longer available as a result of the Securities Offering Reform amendments
recently adopted by the Commission.
The information in this preliminary prospectus is not complete and may be
changed. We may not sell these securities until the registration statement filed
with the Securities and Exchange Commission is effective. This preliminary
prospectus is not an offer to sell these securities nor does it seek an offer to
buy these securities in any jurisdiction where the offer or sale is not
permitted.
PROSPECTUS (SUBJECT TO COMPLETION) DATED FEBRUARY 28, 2006
112,793,324 Shares
SIMTEK CORPORATION
Common stock
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This prospectus is being used to register 112,793,324 shares of Simtek
Corporation's common stock being offered by the selling security holders, which
include certain of our current and former officers and directors. Of the shares
offered by this prospectus, 89,121,871 shares are currently issued and
outstanding, 13,636,364 shares are issuable upon conversion of convertible
debentures at $0.22 per share and 10,035,089 shares are issuable upon exercise
of outstanding stock purchase warrants with exercise prices ranging from $0.265
to $1.50 per share.
The selling security holders may from time to time offer and sell the
shares offered under this prospectus in a number of different ways and at
varying prices. We provide more information about how the selling security
holders may sell the shares in the section entitled "Plan of Distribution"
beginning on page 16. The selling security holders will receive all of the
proceeds from the sale of the shares. The selling security holders will pay all
underwriting discounts and selling commissions, if any, applicable to the sale
of the shares. We will not receive any proceeds from the sale of the shares,
although we will receive the exercise price payable to us upon the exercise of
the stock purchase warrants.
Our common stock is traded on the OTC Bulletin Board under the symbol
"SRAM." On February 23, 2006, the closing sale price of our common stock was
$0.27 per share.
SEE "RISK FACTORS" BEGINNING ON PAGE 4 TO READ ABOUT FACTORS YOU SHOULD
CONSIDER BEFORE BUYING OUR STOCK.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR PASSED UPON THE
ADEQUACY OR ACCURACY OF THE PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
The date of this prospectus is February 28, 2006.
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TABLE OF CONTENTS
Summary...................................................................... 3
Risk Factors................................................................. 4
Special Note Regarding Forward-Looking Statements............................ 10
Use of Proceeds.............................................................. 10
Selling Security Holders..................................................... 11
Description of Securities.................................................... 15
Plan of Distribution......................................................... 16
Legal Matters................................................................ 17
Experts...................................................................... 17
Available Information........................................................ 17
2
SUMMARY
This summary highlights selected information from this prospectus and the
documents incorporated by reference into this prospectus. This summary does not
contain all of the information that may be important to you. Please carefully
read the entire prospectus and the documents incorporated by reference.
Our Company
We develop, market and subcontract the production of nonvolatile
semiconductor memories. Nonvolatility prevents loss of programs and data when
electrical power is removed from the semiconductor. Our memory products feature
fast data access and programming speeds. Our products are targeted for use in
commercial or military electronic equipment markets. These markets are
industrial control systems, office automation, medical instrumentation,
telecommunication systems, cable television, and numerous military systems,
including communications, radar, sonar and smart weapons.
Our principal executive office is located at 4250 Buckingham Dr. #100;
Colorado Springs, Colorado 80907. Our telephone number is 719-531-9444.
The Offering
This offering relates to a total of 112,793,324 shares of our common stock
that may be resold by the selling security holders. Of the shares offered by
this prospectus, 89,121,871 shares are currently issued and outstanding,
13,636,364 shares are issuable upon conversion of convertible debentures at
$0.22 per share and 10,035,089 shares are issuable upon exercise of outstanding
stock purchase warrants with exercise prices ranging from $0.265 to $1.50 per
share. The shares offered include 950,000 shares held by our current chairman
and chief executive officer and 200,000 shares held by our former chief
executive officer. See "Selling Security Holders."
We will receive no proceeds from this offering.
3
RISK FACTORS
YOU SHOULD CONSIDER CAREFULLY THE FOLLOWING RISK FACTORS, AS WELL AS THE
OTHER INFORMATION IN THIS PROSPECTUS AND THE DOCUMENTS INCORPORATED BY REFERENCE
BEFORE BUYING OUR SHARES. THE SEMICONDUCTOR INDUSTRY IS CHANGING RAPIDLY.
THEREFORE, THE FORWARD-LOOKING STATEMENTS AND STATEMENTS OF EXPECTATIONS, PLANS
AND INTENT IN THIS PROSPECTUS AND THE DOCUMENTS INCORPORATED BY REFERENCE ARE
SUBJECT TO A GREATER DEGREE OF RISK THAN SIMILAR STATEMENTS REGARDING SOME OTHER
INDUSTRIES.
OUR LIMITED OPERATING CAPITAL AND OUR ABILITY TO RAISE ADDITIONAL MONEY MAY HARM
OUR ABILITY TO DEVELOP AND MARKET OUR PRODUCTS
To date, we have required significant capital for product development,
subcontracted production and marketing. We have funded these from the sale of
products, the sale of product and technology licenses and from royalties as well
as from the sale of our convertible debt and equity securities.
We have not seen any significant increase in our product sales in the past
year and our gross margins are less than we had anticipated. Therefore, our cash
requirements for the development, subcontracted production and marketing of our
existing product families have been difficult to maintain. We cannot guarantee
that we will be able to achieve an increase in product sales and gross margins.
We may need more capital in the next year and after that to develop new
products. We are not sure that we will be able to raise more capital on
reasonable terms, if at all. If we cannot, then we may not be able to develop
and market new products. The development, subcontracted production and marketing
of our existing products may also suffer, causing our financial position and
stock price to deteriorate.
WE MAY EXPERIENCE OPERATING LOSSES IN THE NEXT SEVERAL YEARS
We began business in 1987. Through September 30, 2005, we had accumulated
losses of approximately $44.0 million. We realized net income for the first time
for the year ended December 31, 1997 and continued to realize net income through
June 30, 2000. Subsequent to June 30, 2000 and through September 30, 2005, we
realized net losses primarily as a result of accounting charges, from the
purchase of incomplete research and development in September 2000, decreased
revenue, decreased gross margins, increased competitive pressures and increased
research and development costs related to new product development. We may
continue to experience net operating losses in the future. Continuing net
operating losses could materially harm our results of operations, increase our
need for additional capital in the future, and hurt our stock price.
WE MIGHT NOT BE ABLE TO RE-GAIN COMPLIANCE WITH CERTAIN COVENANTS SET FORTH IN
OUR LOAN AGREEMENT WITH THE RENN CAPITAL GROUP; IF WE ARE UNABLE TO DO SO, THE
RENN CAPITAL GROUP COULD ACCELERATE THE $3 MILLION LOAN AND FORECLOSE ON THE
COLLATERAL THAT WE GRANTED TO IT
Our loan agreement with Renaissance Capital Growth and Income Fund III,
Inc., Renaissance US Growth Investment Trust PLC and BFSUS Special Opportunities
Trust PLC, or the RENN Capital Group, formerly Renaissance Capital Group, Inc.,
contains various financial covenants. As of September 30, 2005, we were not in
compliance with two of the covenants set forth in the loan agreement, which
covenants relate to the interest coverage ratio and debt to equity ratio. On
October 20, 2005, we received a waiver for the two covenants through October 1,
2006. However, significant variances in future actual operations from our
current estimates could result in the reclassification of this note to a current
liability. If the note becomes due and we cannot pay it, RENN Capital Group may
foreclose on the assets that we pledged as security for the note. This would
significantly harm our business.
4
WE MAY BE UNABLE TO IMPLEMENT SUCCESSFULLY INTO OUR OPERATIONS THE ASSETS
ACQUIRED FROM ZMD ON DECEMBER 30, 2005
On December 30, 2005, we closed our acquisition from Zentrum
Mikroelektronik Dresden AG ("ZMD") of certain intellectual property and assets
related to ZMD's nvSRAM product line. We may be unable to integrate successfully
into our operations the assets acquired from ZMD, including: by a failure to
gain customer agreement to purchase products from Simtek or to qualify Simtek's
designs or processes; by a failure to coordinate international operations,
relationships and facilities, which may be subject to additional constraints
imposed by geographic distance, local laws and regulations; and by a failure to
implement and maintain uniform standards, internal controls, business processes,
procedures, policies and information systems. Our failure to meet any of these
challenges could cause us to fail to realize any accretive benefits of the
acquisition of the assets from ZMD and could seriously harm our results of
operations.
WE MAY BE UNABLE TO RETAIN AN EFFECTIVE FOCUS IN OUR INDUSTRY OR RETAIN
CUSTOMERS FOLLOWING THE ACQUISITION OF ASSETS FROM ZMD
The challenges to Simtek as a result of the acquisition of certain
intellectual property and assets from ZMD on December 30, 2005 include:
o communicating a strategic vision to the market regarding Simtek and
executing on that strategic vision;
o implementing sales and marketing efforts to effectively communicate to
customers the capabilities of Simtek;
o overcoming possible concerns of certain customers about not having two
sources of supply for the products they previously purchased from both
Simtek and ZMD;
o gaining acceptance from former ZMD customers for Simtek's designs,
products or processes; and
o overcoming any perceived adverse changes in business focus, including
demonstrating to customers that the acquisition of certain assets from
ZMD will not result in an adverse change in customer service standards
or business focus and helping customers conduct business easily with
Simtek going forward.
The failure to meet any of these challenges could seriously hinder Simtek's
plans for product development as well as business and market expansion following
the acquisition of certain intellectual property and assets from ZMD.
IF WE CANNOT RECEIVE SILICON WAFERS WE REQUIRE TO MANUFACTURE OUR PRODUCTS FROM
CHARTERED SEMICONDUCTOR MANUFACTURING AT THE VOLUMES OR THE PRICES WE REQUIRE,
OUR REVENUES, EARNINGS AND STOCK PRICE COULD SUFFER
We currently purchase the silicon wafers we require to build our 16
kilobit, 64 kilobit, 5 volt 256 kilobit and 3 volt 256 kilobit memory products
primarily from Chartered Semiconductor Manufacturing Plc. of Singapore, or
Chartered. We have not had a manufacturing contract with Chartered since 1998.
We have maintained a good relationship with Chartered for the pricing and
delivery of our wafers. Due to the volatility of the semiconductor market, we
have limited control over the pricing and availability of the wafers we require
in order to build our products. The risk of not receiving the products and
pricing we need from Chartered has escalated. The silicon wafer production plant
affiliated with ZMD, called Z-Foundry, is the primary source of 0.8 micron
wafers to supply semiconductor memories previously manufactured and sold to
customers of ZMD. If we are unable to obtain the products and pricing we need
from Chartered or Z-Foundry, our business could suffer.
SINCE WE DEPEND GREATLY ON SUBCONTRACTORS, THEIR POOR PERFORMANCE COULD HURT OUR
OPERATIONS
In addition to subcontracting silicon wafer production, we subcontract the
product assembly and product testing portions of our business to independent
companies. Our operating results depend on these subcontractors' ability to
5
supply us with silicon wafers that meet our specifications and to assemble and
test enough of our products to meet our customers' needs. We have depended on
Chartered to manufacture all of our silicon wafers for our 0.8-micron memory
products which accounted for approximately 86% of our total revenue for 2004.
These wafers are the raw materials required to manufacture certain of our
semiconductor products. Without these wafers, we would be unable to sell our
products based on the .80 micron wafers. If Chartered is unable to meet our
silicon wafer needs on time and at a price that we find acceptable, we would
have to find another wafer manufacturer. If we cannot find other suppliers,
manufacturers or assemblers on acceptable terms, we may not be profitable. In
addition, our subcontractors must be audited and recertified by us on a regular
basis for us to continue to produce military-qualified products. We cannot
assure you that we will be able to complete this recertification successfully or
in a timely manner.
THE UNCERTAINTY INVOLVED IN MANUFACTURING SEMICONDUCTORS MAY INCREASE THE COSTS
AND DECREASE THE PRODUCTION OF OUR PRODUCTS
In order for us to be profitable, we must drive our manufacturing costs
down and secure the production of sufficient product. Semiconductor
manufacturing depends on many factors that are complex and beyond our control
and often beyond the control of our subcontractors. These factors include
contaminants in the manufacturing environment, impurities in the raw materials
used and equipment malfunctions. Under our arrangements with our subcontractors,
our subcontractors pass on to us substantially all of their costs that are
unique to the manufacture of our products. Accordingly, these factors could
increase the cost of manufacturing our products and decrease our profits. These
factors could also reduce the number of semiconductor memories that our
subcontractors are able to make in a production run. If our subcontractors
produce fewer of our products, our revenues may decline.
DELAYS IN MANUFACTURING MAY NEGATIVELY IMPACT OUR REVENUE AND NET INCOME
It takes approximately three months for our subcontractors to manufacture
our semiconductor memories. Any delays in receiving silicon wafers from our
subcontractors will delay our ability to deliver our products to customers. This
would delay sales revenue and could cause our customers to cancel existing
orders or not place future orders. In addition, if we are not able to make all
of our planned semiconductor memories in a production run this could delay
delivery of our products. These delays could occur at any time and would affect
our net income.
WE DEPEND ON INDEPENDENT SALES REPRESENTATIVES AND DISTRIBUTORS TO SELL OUR
PRODUCTS AND THE TERMINATION OF ANY OF THESE RELATIONSHIPS MAY HARM OUR REVENUE
We use independent sales representatives and distributors to sell the
majority of our products. The agreements with these sales representatives and
distributors can be terminated without cause by either party with 30 to 90 days
written notice. If one or more of our sales representatives or distributors
terminates our relationship, we may not be able to find replacement sales
representatives and distributors on acceptable terms or at all. This could
affect our profitability. In addition, during 2004 approximately 35% of our
product sales were to three distributors. We cannot be certain that we will be
able to maintain our relationship with these distributors.
DELAYS IN OR FAILURE OF PRODUCT QUALIFICATION MAY HARM OUR BUSINESS
Prior to selling a product, we must establish that it meets expected
performance and reliability standards. As part of this testing process, known as
product qualification, we subject representative samples of products to a
variety of tests to ensure that performance in accordance with commercial,
industrial and military specifications, as applicable. If we are unable to
successfully accomplish product qualification for our future products, we will
be unable to sell these future products. Even with successful initial product
qualifications, we cannot be assured that we will be able to maintain product
qualification or achieve sufficient sales to meet our operating requirements.
SINCE THE SEMICONDUCTOR INDUSTRY IS FAST CHANGING, OUR SUCCESS DEPENDS ON OUR
ABILITY TO INTRODUCE NEW PRODUCTS
The semiconductor industry is characterized by rapid changes in technology
and product obsolescence. Our success in the semiconductor industry depends in
part upon our ability to expand our existing product families and to develop and
6
market new products. The technology we currently use may be made obsolete by
other competing or newly developed memory or other technologies. The development
of new semiconductor designs and technologies typically requires substantial
costs for research and development. Even if we are able to develop new products,
the success of each new product depends on several factors including whether we
selected the proper product and our ability to introduce it at the right time,
whether the product is able to achieve acceptable production yields and whether
the market accepts the new product. We cannot guarantee that we will be
successful in developing new products or whether any products that we do develop
will satisfy the above factors. In September 2003, we began shipping samples of
our 1 megabit 3 volt nonvolatile semiconductor memory product. While we achieved
production qualification on this product in September 2005, we cannot assure you
that we will not discover technical problems or manufacturing concerns with this
new product, that demand will continue to develop for the new product or that we
will be able to continue to sell this new product at a profit.
THE CYCLICALITY OF THE SEMICONDUCTOR INDUSTRY MAY PREVENT US FROM MAINTAINING A
CONSISTENT REVENUE STREAM AND MAY HARM OUR STOCK PRICE
The semiconductor industry has historically experienced significant peaks
and valleys in sales volumes resulting in large variations of revenues and
resulting profits or losses. We do not have direct influence on the nature of
the broad semiconductor market. Variations in the revenues and profits within
the semiconductor industry may cause us to incur significant losses in the
future. If the stock prices of many semiconductor companies decrease, our stock
price may also suffer. Recently, the semiconductor industry has experienced
increased losses and the stock prices of many semiconductor companies, including
us, have fluctuated.
IF WE CANNOT RECEIVE THE SILICON WAFERS WE REQUIRE TO MANUFACTURE OUR PRODUCTS
FROM DONGBUANAM SEMICONDUCTOR AT THE VOLUMES OR THE PRICES WE REQUIRE, OUR
REVENUES, EARNINGS AND STOCK PRICE COULD SUFFER
We currently purchase the silicon wafers we require to build our 0.25
micron product family from DongbuAnam Semiconductor in Korea. We do not have an
alternate source for our 0.25 micron memory products, at this time. If we cannot
purchase the silicon wafers we require to produce these products from DongbuAnam
at the volumes or the prices we require, our business could suffer.
IF WE FAIL TO COMPLETE OUR AGREEMENT OR IF WE FAIL TO SUCCESSFULLY IMPLEMENT
PRODUCTS WITH CYPRESS SEMICONDUCTOR, OUR LIQUIDITY AND REVENUES MAY SUFFER
On May 5, 2005, we closed a production and development agreement with
Cypress Semiconductor Corporation to jointly develop an "S8" 0.13-micron
silicon-oxide-nitride-oxide-silicon (SONOS) nonvolatile memory production
process. The production and development agreement also calls for Cypress to
produce one or more Simtek products, as designated by Simtek, using the S8
process. We cannot assure you that we will be able to successfully develop and
bring to qualified volume production products based on the S8 process or that
Cypress will be able to develop embedded products contemplated to be developed
using Simtek's intellectual property. If the development of the S8 process is
delayed or fails, or if Cypress is unable to meet our production requirements,
we might not be able to meet potential future orders planned to be received from
our customers. This could significantly harm our revenue and future growth
potential. We also entered into an escrow agreement pursuant to which we
deposited $3 million into an escrow account in order to support and make certain
payments for the S8 process and product developments. If we fail to complete the
development and production agreement, we might forfeit our rights to the escrow
amount. This could harm our liquidity position.
OUR AGREEMENT WITH CYPRESS SEMICONDUCTOR CORPORATION MAY CONSUME OUR LIMITED
RESOURCES OF ENGINEERS AND CONSUME A SIGNIFICANT AMOUNT OF OUR WORKING CAPITAL
PREVENTING US FROM COMPLETING OTHER TASKS
Our production and development agreement with Cypress may consume a
considerable amount of our engineering resources, which may limit the resources
available to maintain or improve our production yields on our existing products
and develop other new and derivative products. In addition to these indirect
expenses related to our engineering resources, our obligations under the
production and development agreement will consume a significant amount of our
working capital until December 31, 2006. This may harm our business and stock
price.
7
THE INTENSE COMPETITION IN THE SEMICONDUCTOR INDUSTRY MAY CAUSE US TO LOSE SALES
REVENUE TO OTHER SUPPLIERS
There is intense competition in the semiconductor industry. We experience
competition from a number of domestic and foreign companies, most of which have
significantly greater financial, technical, manufacturing and marketing
resources than we have. Our competitors include major corporations with
worldwide silicon wafer fabrication facilities and circuit production facilities
and diverse, established product lines. We also compete with companies, such as
Ramtron International Corporation, attempting to obtain a share of the market
for our product families. If any of our new products achieve market acceptance,
other companies may sell competitive products at prices below ours. This would
have an adverse effect on our operating results.
GIVEN THE SCARCITY OF TRAINED PERSONNEL IN THE SEMICONDUCTOR INDUSTRY, THE LOSS
OF KEY EMPLOYEES COULD MATERIALLY AFFECT OUR FINANCIAL RESULTS
Our success depends in large part on our ability to attract and retain
qualified technical and management personnel. There are limited personnel
trained in the semiconductor industry resulting in intense competition for these
personnel. If we lose any of our key personnel, this could have a material
adverse affect on our ability to conduct our business and on our financial
results.
OUR PATENTS MAY NOT PROVIDE US EFFECTIVE INTELLECTUAL PROPERTY PROTECTION; THIS
COULD HARM OUR BUSINESS
We have been issued 30 U.S. patents (and assigned one other U.S. patent and
three German patents) relating to specific aspects of our current products. We
have also applied outside the United States for patents on our technology. We
are not sure that any of the patents for which we have applied will be issued
or, even if they are issued, will provide us with meaningful protection from
competition. We may also not have the money required to maintain or enforce our
patent rights. Notwithstanding our patents, other companies may obtain patents
similar or relating to our patents.
We seek to protect a significant portion of our intellectual property as
trade secrets, rather than patents. Unlike patents, trade secrets must remain
confidential in order to retain protection as proprietary intellectual property.
We cannot assure you that our trade secrets will remain confidential. If we lose
trade secret protection, our business could suffer.
IF OUR PRODUCTS AND TECHNOLOGY INFRINGE ON THIRD PARTY PATENTS, OUR PRODUCT
SALES MAY SUFFER
We have not determined whether our products are free from infringement of
others' patents. If patent infringement claims are asserted against us and are
upheld, we will try to modify our products so that they are non-infringing. If
we are unable to do so, we will have to obtain a license to sell those products
or stop selling the products for which the claims are asserted. We may not be
able to obtain the required licenses. Any successful infringement claim against
us, our failure to obtain any required license or requirement for us to stop
selling any of our products, may force us to discontinue production and shipment
of these products. This may result in reduced product sales and harm our
revenues.
In 1998, we received notice of a claim for an unspecified amount from a
foundation that owns approximately 180 patents and 70 pending applications. The
foundation claimed that some of the machines and processes used in the building
of our semiconductor devices infringe on the foundation's patents. In April
1999, we reached an agreement with the foundation for us to purchase a
nonexclusive license of the foundation's patents, based on our product offerings
and sales forecast at that time. If our products or actual sales revenue vary
significantly from the time of the agreement, we may be subject to additional
payments.
In late 2002, we received notice of possible patent infringement from a
corporation that has acquired a portfolio of patents. We have reviewed the claim
and believe there are no potential infringements. We have received no further
notification from this corporation. While there can be no assurances, if there
are any infringements, we believe we will be able to enter into a licensing
agreement with such company without any material impact on us.
8
FOREIGN CURRENCY EXCHANGE RATE FLUCTUATIONS MAY INCREASE OUR COSTS, LOWER OUR
REVENUES AND CAUSE LOSS OF CUSTOMERS TO OUR COMPETITORS
We purchase materials, including silicon wafers, from outside the United
States. In 2004, over 62% of our sales were to customers located outside of the
United States. In the first nine months of 2005, over 73% of our sales were to
customers located outside of the United States. We operate using United States
dollars as the functional currency. Changes in foreign currency exchange rates
can reduce our revenues and increase our costs. For example, our subcontractors
may increase the prices they charge us, on a per purchase order basis, for
silicon wafers if the United States dollar weakens. Any large exchange rate
fluctuation could affect our ability to compete with manufacturers who operate
using foreign currencies. We do not try to reduce our exposure to these exchange
rate risks by using hedging transactions. Although we have not had any material
losses due to exchange rate fluctuations over the last three years, we cannot
assure you that we will not incur significant losses in the future.
BECAUSE OUR COMMON STOCK IS LISTED ONLY ON THE OTC ELECTRONIC BULLETIN BOARD, IT
WILL BE MORE DIFFICULT TO SELL OUR COMMON STOCK
Our common stock is listed on the OTC Electronic Bulletin Board under the
symbol "SRAM." Our common stock was listed on the Nasdaq Small-Cap Market until
July 18, 1995, but, because we no longer met Nasdaq's listing requirements, our
common stock transferred to the OTC Electronic Bulletin Board as mandated by
Nasdaq rules. We may not be able to meet the requirements for relisting our
common stock on Nasdaq or listing on any other exchange in the near future or in
the longer term.
Securities that are not listed on the Nasdaq Small-Cap Market or other
exchange are subject to a Securities and Exchange Commission rule that imposes
special requirements on broker-dealers who sell those securities to persons
other than their established customers and accredited investors. The
broker-dealer must determine that the security is suitable for the purchaser and
must obtain the purchaser's written consent prior to the sale. These
requirements may make it more difficult for our security holders to sell their
securities and may affect our ability to raise more capital. It may also make it
harder for you to sell our stock than the stock of some other companies.
IF WE ISSUE SECURITIES AT LOW PRICES IN THE FUTURE, SOME OF OUR SECURITY HOLDERS
MAY BE ENTITLED TO ACQUIRE MORE OF OUR SECURITIES, WHICH MAY DILUTE AND HARM THE
HOLDERS OF OUR COMMON STOCK
We may be obligated under agreements with certain of our security holders
to issue to them additional securities in exchange for little or no
consideration if we sell our securities in the future at or below certain
prices. The issuance of such securities could dilute and harm the holders of our
common stock.
BECAUSE WE DO NOT INTEND TO PAY DIVIDENDS IN THE FORESEEABLE FUTURE, YOUR
INVESTMENT RETURN MAY BE LIMITED
We have never paid cash dividends on our common stock. We do not expect to
pay dividends in the foreseeable future. We intend to use any earnings to
finance growth. You should not expect to receive dividends on your shares of
common stock.
IF OUR BOARD OF DIRECTORS AUTHORIZES THE ISSUANCE OF PREFERRED STOCK, HOLDERS OF
OUR COMMON STOCK COULD BE DILUTED AND HARMED
Our board of directors has the authority to issue up to 2,000,000 shares of
preferred stock in one or more series and to establish the preferred stock's
voting powers, preferences and other rights and qualifications without any
further vote or action by the shareholders. The issuance of preferred stock by
our board of directors could dilute and harm the rights of the holders of our
common stock. It could potentially be used to discourage attempts by others to
obtain control of us through merger, tender offer, proxy contest or otherwise by
making such attempts more difficult to achieve or more costly. Given our present
capital requirements, it is possible that we may need to raise capital through
the sale of preferred stock in the future.
9
STANDARDS FOR COMPLIANCE WITH SECTION 404 OF THE SARBANES-OXLEY ACT OF 2002 ARE
UNCERTAIN, AND IF WE FAIL TO COMPLY IN A TIMELY MANNER, OUR BUSINESS COULD BE
HARMED AND OUR STOCK PRICE WOULD DECLINE.
Rules adopted by the Securities and Exchange Commission pursuant to Section
404 of the Sarbanes-Oxley Act require annual assessment of our internal control
over financial reporting, and attestation of our assessment by our independent
auditors. This requirement may apply to our Annual Report on Form 10-K for the
fiscal year ending December 31, 2006, or based on certain qualifying 2006
standards, for the fiscal year ending December 31, 2007. The standards that must
be met for management to assess the internal control over financial reporting as
effective are new and complex, and require significant documentation, testing
and possible remediation to meet the detailed standards. We may encounter
problems or delays in completing activities necessary to make an assessment of
our internal control over financial reporting. In addition, the attestation
process by our independent auditors is new and we may encounter problems or
delays in completing the implementation of any requested improvements or
remediation and receiving an attestation of our assessment by our independent
auditors. We can provide no assurance as to our, or our independent auditors',
conclusions at December 31, 2006 (or 2007 as required by regulations), with
respect to the effectiveness of our internal control over financial reporting.
The above factors creates a risk that we, or our independent auditors, will not
be able to conclude at December 31, 2006 (or 2007 as required by regulations)
that our internal controls over financial reporting are effective as required by
the Sarbanes-Oxley Act. If we cannot assess our internal control over financial
reporting as effective, or if our independent auditors are unable to provide an
unqualified attestation report on such assessment, investors could lose
confidence in our reported financial information and the trading price of our
stock could drop.
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus contains some "forward-looking statements" as defined in
the Private Securities Litigation Reform Act of 1995 and information relating to
us that are based on the beliefs of our management, as well as assumptions made
by and the information currently available to our management. When used in this
prospectus, the words "estimate," "project," "believe," "anticipate," "intend,"
"expect" and similar expressions are intended to identify forward-looking
statements. These statements reflect our current views with respect to future
events and are subject to risks and uncertainties that could cause actual
results to differ materially from those contemplated in these forward-looking
statements, including those risks discussed in this prospectus.
You are cautioned not to place undue reliance on these forward-looking
statements, which speak only as of the date of this prospectus. Except for
special circumstances in which a duty to update arises when prior disclosure
becomes materially misleading in light of subsequent circumstances, we do not
intend to update any of these forward-looking statements to reflect events or
circumstances after the date of this prospectus or to reflect the occurrence of
unanticipated events.
USE OF PROCEEDS
This prospectus covers 112,793,324 shares. All of these shares are being
offered by the selling security holders, which include some of our current and
former officers and directors. We will not receive any proceeds from the sale of
the shares.
10
SELLING SECURITY HOLDERS
Beneficial ownership is determined in accordance with the rules and
regulations of the Securities and Exchange Commission. Under these rules, a
person is deemed to beneficially own a security if that person has or shares
voting power or investment power with respect to that security, or has the right
to acquire beneficial ownership of that security within 60 days, including
through the exercise of any option, warrant or other right or the conversion of
any other security. Percentage of beneficial ownership of common stock prior to
and after the offering is based on 146,910,823 shares of common stock
outstanding as of January 30, 2006. Securities that are exercisable or
convertible into shares of our common stock within 60 days of the date of this
prospectus are deemed outstanding for computing the percentage of the person or
entity holding such securities but are not deemed outstanding for computing the
percentage of any other person or entity.
The following table sets forth information about the selling security
holders who are selling shares of our common stock pursuant to this prospectus.
Percentage
Number of of Class
Number of Number of Shares Following
Shares Beneficially Shares Following the
Name and Address of Selling Security Holders Owned Before Offering Offered the Offering Offering
--------------------------------------------- --------------------- --------- ------------ ----------
Crestview Capital Master LLC 24,687,500 24,687,500 0 *
95 Revere Drive, Suite A
Northbrook, IL 60062
Big Bend XXVII Investments, L.P. 14,375,000 14,375,000 0 *
3401 Armstrong Avenue
Dallas, TX 75205-4100
Toibb Investment LLC 11,875,000 11,875,000 0 *
6355 Topanga Canyon Blvd., Suite 335
Los Angeles, CA 91367
Cypress Semiconductor Corporation 11,796,428 11,796,428 0 *
3901 North First Street
San Jose, CA 95134-1599
SF Capital Partners Ltd. 10,107,367 12,171,351 0 *
c/o Stark Offshore Management, LLC
3600 South Lake Drive
St. Francis, WI 53235
Renaissance Capital Growth & Income Fund III, Inc. 9,537,782 8,537,782 1,000,000 *
c/o RENN Capital Group
8080 N. Central Expressway, Suite 210-LB59
Dallas, TX 75206
Renaissance US Growth Investment Trust PLC 9,537,783 8,537,783 1,000,000 *
c/o RENN Capital Group
8080 N. Central Expressway, Suite 210-LB59
Dallas, TX 75206
11
BFSUS Special Opportunities Trust PLC 8,537,783 8,537,783 0 *
c/o RENN Capital Group
8080 N. Central Expressway, Suite 210-LB59
Dallas, TX 75206
Zentrum Mikroelektronik Dresden AG 6,260,713 6,260,713 0 *
Grenzstrasse 28
D-01109 Dresden, Germany
Harold Blomquist 1,781,494(1) 950,000 831,494 *
3935 Serenity Place
Colorado Springs, CO 80908
C. E. Unterberg, Towbin 1,062,500 1,062,500 0 *
275 Middlefield Rd.
Menlo Park, CA 94025
Douglas Mitchell 939,386(2) 200,000 739,386 *
1725 Sunshine Circle
Woodland Park, CO 80863
Straus Partners, LP 781,250 781,250 0 *
605 Third Avenue
New York, NY 10158
Straus GEPT Partners, LP 781,250 781,250 0 *
605 Third Avenue
New York, NY 10158
Michael Seedman 625,000 625,000 0 *
1436 Waverly Road
Highland Park, IL 60035
Bluegrass Growth Fund LP 613,494 613,494 0 *
122 East 42nd St., Suite 2606
New York, NY 10168
Bluegrass Growth Fund LTD 613,494 613,494 0 *
Walker House
George Town
Grand Cayman
Cayman Islands
Merriman Curhan Ford & Co. 386,997 386,997 0 *
601 Montgomery Street, 18th Floor
San Francisco, CA 94111
* Less than 1%
(1) Includes 800 shares of our common stock that Mr. Blomquist's son personally
owns and includes 830,694 shares issuable upon exercise of presently exercisable
options.
(2) Includes 570,000 shares issuable upon exercise of presently exercisable
options.
12
On July 1, 2002, we received $3,000,000 from the RENN Capital Group in
return for issuing 7.5% convertible debentures with an aggregate principal
amount of $3,000,000. The convertible debentures have a maturity date of June
28, 2009 and originally had a conversion rate of $0.312, which would have
resulted in 9,615,384 shares being issued upon conversion. In connection with
the sale of $11,000,000 of our common stock on December 30, 2005, instead of
lowering the conversion price of the 2002 convertible debentures, as required by
the terms of the 2002 convertible debentures, from $0.312 per share to $0.16 per
share as a result of the December 30, 2005 offering at $0.16 per share, we
agreed with the RENN Capital Group that the conversion price would only be
lowered to $0.22 per share as a result of the December 30, 2005 offering. As a
result, instead of just 9,615,384 shares issuable upon conversion of the 2002
debentures (which would be the case were the conversion price still $0.312 per
share), there are currently a total of 13,636,364 shares of common stock that
are issuable to the RENN Capital Group upon conversion of the debentures as a
result of the reduction of the conversion price to $0.22 per share. Also on
December 30, 2005, we issued 9,375,000 shares of common stock to the RENN
Capital Group in exchange for $1,500,000. On November 7, 2003, we received
$1,500,000 from the RENN Capital Group in return for issuing 1,651,983 shares of
our common stock and warrants to acquire 750,000 shares of our common stock.
These warrants have 5-year terms with an exercise price of $1.25 per share for
375,000 shares and $1.50 per share for 375,000 shares. On June 28, 2005, we
issued warrants to purchase 200,000 shares of our common stock to the RENN
Capital Group in exchange for a waiver of certain provisions relating to the
7.5% debentures. These warrants have 5-year terms with an exercise price of
$0.50 per share. Of the 112,793,324 shares that we are registering in this
prospectus, 25,613,348 shares relate to these July 1, 2002, November 7, 2003,
June 28, 2005 and December 30, 2005 transactions.
On October 12, 2004, we received $2,500,000 from SF Capital Partners Ltd.,
Bluegrass Growth Fund LP and Bluegrass Growth Fund LTD in return for issuing
5,159,959 shares of our common stock and warrants to acquire 2,579,980 shares of
our common stock. In connection with the $2,500,000 equity financing, we issued
to Merriman Curhan Ford & Co., the investment banking firm that advised us in
such transaction, warrants to acquire 386,997 shares of our common stock. The
warrants issued to Merriman Curhan Ford & Co. have a 5-year term with an
exercise price of $0.627 per share. The warrants issued to SF Capital Partners
Ltd., Bluegrass Growth Fund LP and Bluegrass Growth Fund LTD have 5-year terms
and originally had an exercise price of $0.627 per share. In connection with the
sale of $11,000,000 of our common stock on December 30, 2005, we agreed with
Bluegrass Growth Fund LP, Bluegrass Growth Fund LTD and SF Capital Partners Ltd.
that in exchange for their waiver of certain participation rights held by them
in connection with the December 30, 2005 offering, the exercise price of their
warrants to acquire 2,579,980 shares of our common stock would be lowered from
$0.627 per share to $0.265 per share. Also on December 30, 2005, we issued
6,250,000 shares to SF Capital Partners Ltd. in exchange for $1,000,000. As of
the date of this prospectus, SF Capital Partners Ltd. owns 10,107,367 shares as
a result of the October 12, 2004 and December 30, 2005 transactions, and has a
warrant to purchase 2,063,984 shares with an exercise price of $0.265 per share
as a result of the October 12, 2004 transaction. By its terms, the warrant
issued to SF Capital Partners Ltd. may not be exercised if the exercise would
cause SF Capital Partners Ltd. to be a 5% or more holder of all of our
outstanding common stock; however, SF Capital Partners Ltd. may waive such
restriction on 61 days notice to us. Given the number of shares of our common
stock that SF Capital Partners Ltd. holds as of the date of this prospectus, SF
Capital Partners Ltd. cannot exercise such warrant unless it waives the
restriction and gives us 61 days notice of the waiver; as such, the 2,063,984
shares issuable under the warrant are not included in SF Capital Partner Ltd.'s
entry in the Selling Security Holder table above under the column entitled
"Number of Shares Beneficially Owned Before Offering." 13,785,336 of the shares
that we are registering relate to the October 12, 2004 and December 30, 2005
transactions with, as applicable, SF Capital Partners Ltd., Bluegrass Growth
Fund LP, Bluegrass Growth Fund LTD and Merriman Curhan Ford & Co.
On May 4, 2005, we received $4,000,000 from Cypress in return for issuing
6,740,816 shares of our common stock and warrants to acquire 5,055,612 shares of
our common stock. The warrants have a 10-year term with an exercise price of
$0.7772. Of the 112,793,324 shares that we are registering in this prospectus,
11,796,428 shares relate to this transaction.
On May 19, 2005 and pursuant to his employment agreement with us, Mr.
Harold Blomquist, our President and Chief Executive Officer, purchased 200,000
shares of our common stock directly from us at a purchase price of $0.542 per
share. On November 9, 2005 and pursuant to his employment agreement with us, Mr.
Blomquist purchased 275,000 shares of our common stock directly from us at a
13
purchase price of $0.298 per share. In each case, the purchase price was
determined by calculating the average close price for the five trading days
prior to the purchase date. On January 20, 2006 and also pursuant to his
employment agreement with us, we issued an additional 475,000 shares of our
common stock to Mr. Blomquist for no additional consideration to match his
previous stock purchases.
Mr. Douglas Mitchell was our President, Chief Executive Officer and Chief
Financial Officer (acting) until his resignation from Simtek effective May 9,
2005. Pursuant to the terms of Mr. Mitchell's separation agreement incident to
his resignation, we issued to Mr. Mitchell 150,000 shares of our common stock on
June 15, 2005 and 50,000 shares of our common stock on November 25, 2005.
1,150,000 of the shares that we are registering relate to these two agreements
with Mr. Blomquist and Mr. Mitchell.
On December 30, 2005, we issued to ZMD 6,260,713 shares of Simtek common
stock as partial payment for the assets we acquired from ZMD pursuant to the
Asset Purchase Agreement, dated December 7, 2005, between us and ZMD. ZMD and
Simtek were parties to a Product License Development and Support Agreement,
dated June 1, 1994, and various Cooperation Agreements functioning as amendments
to the Product License Development and Support Agreement, which, together,
provided for the joint development of certain products by Simtek and ZMD and the
licensing of certain products and intellectual property from Simtek to ZMD. All
of these agreements were terminated (to the extent not already terminated) on
December 30, 2005. Of the 112,793,324 shares that we are registering in this
prospectus, 6,260,713 shares relate to this transaction.
On December 30, 2005, as part of our sale of $11,000,000 of our common
stock, we issued (in addition to the shares issued to SF Capital Partners Ltd.
and the RENN Capital Group on such date, as described above): Crestview Capital
Master LLC 24,687,500 shares in exchange for $3,950,000; Straus Partners, LP
781,250 shares for $125,000; Straus GEPT Partners, LP 781,250 shares for
$125,000; Big Bend XXVII Investments, L.P. 14,375,000 shares for $2,300,000;
Toibb Investment LLC 11,875,000 shares for $1,900,000; and Michael Seedman
625,000 shares for $100,000. In connection with such sale of $11,000,000 of our
common stock, we issued to C. E. Unterberg, Towbin, the investment banking firm
that advised us in such transaction, warrants to acquire 1,062,500 shares of our
common stock. The warrants issued to C. E. Unterberg, Towbin have a five-year
term with an exercise price of $0.28 per share.
14
DESCRIPTION OF SECURITIES
Our amended and restated articles of incorporation and bylaws provide for a
classified board of directors when we have six or more directors. This may have
the effect of delaying or preventing changes in control of our management, which
could adversely affect the market price of our common stock by discouraging or
preventing takeover attempts that might result in the payment of a premium price
to our shareholders.
Common Stock
We are authorized to issue 300,000,000 shares of common stock, par value
$0.01 per share. Each share of common stock entitles the holder thereof to one
vote on all matters submitted to a vote of the shareholders. Holders of common
stock do not have preemptive rights or rights to convert their common stock into
other securities. Holders of common stock are entitled to receive ratably such
dividends as may be declared by the board of directors out of funds legally
available therefor. In the event of our liquidation, dissolution or winding up,
holders of the common stock have the right to a ratable portion of the assets
remaining after payment of liabilities.
Preferred Stock
Our amended and restated articles of incorporation authorize 2,000,000
shares of $1.00 par value preferred stock. The board of directors has the
authority to issue preferred stock in one or more series and to fix the rights,
preferences, privileges and restrictions thereof, including dividend rights,
dividend rates, conversion rights, voting rights, terms of redemption,
redemption prices, liquidation preferences and the number of shares constituting
any series and the designation of such series, without further vote or action by
the shareholders. The issuance of preferred stock may have the effect of
delaying, deferring or preventing a change in control of us without further
action by the shareholders and may adversely affect the voting power and other
rights of the holders of common stock, including the loss of voting control to
others. As of the date of this prospectus, there are no shares of preferred
stock outstanding.
Announced Reverse Stock Split
On January 3, 2006, we issued a press release announcing that our Board of
Directors has discussed a reverse stock split in order to bring the number of
issued and outstanding shares into the range of 10 million to 20 million and
potentially re-incorporating us as a Delaware corporation. While no formal
action has been authorized by the Board of Directors, we intend that any such
reverse stock split or re-incorporation will comply with applicable law and our
charter documents.
15
PLAN OF DISTRIBUTION
Each selling security holder of our common stock and any of their pledgees,
assignees and successors-in-interest may, from time to time, sell any or all of
their shares of common stock on the OTC Bulletin Board or any other stock
exchange, market or trading facility on which the shares are traded or in
private transactions. These sales may be at fixed or negotiated prices. A
selling security holder may use any one or more of the following methods when
selling shares:
o ordinary brokerage transactions and transactions in which the broker
dealer solicits purchasers
o block trades in which the broker dealer will attempt to sell the
shares as agent but may position and resell a portion of the block as
principal to facilitate the transaction;
o purchases by a broker dealer as principal and resale by the broker
dealer for its account;
o an exchange distribution in accordance with the rules of the
applicable exchange;
o privately negotiated transactions;
o settlement of short sales entered into after the effective date of the
registration statement of which this prospectus is a part;
o broker dealers may agree with the selling security holders to sell a
specified number of such shares at a stipulated price per share;
o a combination of any such methods of sale;
o through the writing or settlement of options or other hedging
transactions, whether through an options exchange or otherwise; or
o any other method permitted pursuant to applicable law.
The selling security holders may also sell shares under Rule 144 under the
Securities Act of 1933, as amended (the "Securities Act"), if available, rather
than under this prospectus.
Broker dealers engaged by the selling security holders may arrange for
other brokers dealers to participate in sales. Broker dealers may receive
commissions or discounts from the selling security holders (or, if any broker
dealer acts as agent for the purchaser of shares, from the purchaser) in amounts
to be negotiated, but, except as set forth in a supplement to this prospectus,
in the case of an agency transaction not in excess of a customary brokerage
commission in compliance with NASDR Rule 2440; and in the case of a principal
transaction a markup or markdown in compliance with NASDR IM-2440.
In connection with the sale of the common stock or interests therein, the
selling security holders may enter into hedging transactions with broker-dealers
or other financial institutions, which may in turn engage in short sales of the
common stock in the course of hedging the positions they assume. The selling
security holders may also sell shares of the common stock short and deliver
these securities to close out their short positions, or loan or pledge the
common stock to broker-dealers that in turn may sell these securities. The
selling security holders may also enter into option or other transactions with
broker-dealers or other financial institutions or the creation of one or more
derivative securities which require the delivery to such broker-dealer or other
financial institution of shares offered by this prospectus, which shares such
broker-dealer or other financial institution may resell pursuant to this
prospectus (as supplemented or amended to reflect such transaction).
The selling security holders and any broker dealers or agents that are
involved in selling the shares may be deemed to be "underwriters" within the
meaning of the Securities Act in connection with such sales. In such event, any
commissions received by such broker dealers or agents and any profit on the
resale of the shares purchased by them may be deemed to be underwriting
commissions or discounts under the Securities Act. Each selling security holder
has informed us that it does not have any written or oral agreement or
understanding, directly or indirectly, with any person to distribute the common
stock. In no event shall any broker-dealer receive fees, commissions and markups
which, in the aggregate, would exceed eight percent (8%).
16
We are required to pay certain fees and expenses incurred by us incident to
the registration of the shares. We have agreed to indemnify the selling security
holders against certain losses, claims, damages and liabilities, including
liabilities under the Securities Act.
Because selling security holders may be deemed to be "underwriters" within
the meaning of the Securities Act, they will be subject to the prospectus
delivery requirements of the Securities Act. In addition, any securities covered
by this prospectus which qualify for sale pursuant to Rule 144 under the
Securities Act may be sold under Rule 144 rather than under this prospectus.
Each selling security holder has advised us that they have not entered into any
written or oral agreements, understandings or arrangements with any underwriter
or broker-dealer regarding the sale of the resale shares. There is no
underwriter or coordinating broker acting in connection with the proposed sale
of the resale shares by the selling security holders.
With respect to certain selling security holders, we agreed to keep this
prospectus effective until the earlier of (i) the date on which the shares may
be resold by the selling security holders without registration and without
regard to any volume limitations by reason of Rule 144(e) under the Securities
Act or any other rule of similar effect or (ii) all of the shares have been sold
pursuant to the prospectus or Rule 144 under the Securities Act or any other
rule of similar effect. The resale shares will be sold only through registered
or licensed brokers or dealers if required under applicable state securities
laws. In addition, in certain states, the resale shares may not be sold unless
they have been registered or qualified for sale in the applicable state or an
exemption from the registration or qualification requirement is available and is
complied with.
Under applicable rules and regulations under the Securities Exchange Act of
1934, as amended, any person engaged in the distribution of the resale shares
may not simultaneously engage in market making activities with respect to the
common stock for the applicable restricted period, as defined in Regulation M,
prior to the commencement of the distribution. In addition, the selling security
holders will be subject to applicable provisions of the Securities Exchange Act
of 1934, as amended, and the rules and regulations thereunder, including
Regulation M, which may limit the timing of purchases and sales of shares of the
common stock by the selling security holders or any other person. We will make
copies of this prospectus available to the selling security holders and have
informed them of the need to deliver a copy of this prospectus to each purchaser
at or prior to the time of the sale.
LEGAL MATTERS
The validity of the shares offered hereby will be passed upon by Holme
Roberts & Owen LLP, Colorado Springs, Colorado.
EXPERTS
The financial statements of Simtek Corporation, included in our annual
reports on Form 10-KSB for the years ended December 31, 2004, December 31, 2003,
December 31, 2002 and December 31, 2001, have been audited by Hein & Associates
LLP, Independent Registered Public Accounting Firm, as set forth in their
reports which are incorporated by reference in this prospectus and registration
statement. Our financial statements are incorporated by reference in reliance on
Hein & Associates LLP's reports, given on their authority as experts in
accounting and auditing.
AVAILABLE INFORMATION
This prospectus is part of a registration statement on Form S-1 that we
filed with the Securities and Exchange Commission under the Securities Act of
1933. Certain information in the registration statement has been omitted from
17
this prospectus in accordance with the rules of the Securities and Exchange
Commission. We are subject to the information requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"). Accordingly, we file
reports, proxy statements and other information with the Securities and Exchange
Commission. You may inspect our reports, proxy statements and other information
without charge at the Public Reference Room at 450 Fifth Street, N.W.,
Washington, D.C. 20549. You may obtain information on the operation of the
Public Reference Room by calling the Securities and Exchange Commission at
1-800-SEC-0330. The Commission also maintains a web site at http://www.sec.gov
that contains reports, proxy and information statements and other information
regarding registrants that file electronically with the Commission. In addition,
the reports, proxy statements and other information that we file with the
Securities and Exchange Commission can be obtained from our Internet website at
http://www.simtek.com.
The Securities and Exchange Commission allows us to "incorporate by
reference" certain of the information required by this prospectus, which means
that we can disclose important information to you by referring you to those
documents. The information incorporated by reference is an important part of
this prospectus. We incorporate by reference the documents listed below:
* Annual Reports on Form 10-KSB for the fiscal years ended December 31,
2004, December 31, 2003, December 31, 2002 and December 31, 2001.
* Quarterly Reports on Form 10-Q for the quarters ended March 31, 2005,
June 30, 2005 and September 30, 2005.
* Quarterly Reports on Form 10-QSB for the quarters ended March 31, 2004,
June 30, 2004 and September 30, 2004.
* Current Report on Form 8-K filed on March 18, 2005.
* Current Report on Form 8-K filed on May 10, 2005.
* Current Report on Form 8-K filed on May 12, 2005.
* Current Report on Form 8-K filed on May 12, 2005.
* Current Report on Form 8-K filed on May 17, 2005.
* Current Report on Form 8-K filed on May 23, 2005.
* Current Report on Form 8-K filed on June 13, 2005.
* Current Report on Form 8-K filed on July 5, 2005.
* Current Report on Form 8-K filed on August 12, 2005.
* Current Report on Form 8-K filed on September 6, 2005.
* Current Report on Form 8-K filed on October 6, 2005.
* Current Report on Form 8-K filed on October 28, 2005.
* Current Report on Form 8-K filed on December 9, 2005.
* Current Report on Form 8-K filed on December 13, 2005.
* Current Report on Form 8-K filed on January 3, 2006.
* Current Report on Form 8-K filed on February 3, 2006.
* Schedule 14A Definitive Proxy Statement filed on September 22, 2005.
18
Upon receipt of an oral or written request we will provide, free of charge,
to any person to whom a prospectus is delivered, a copy of any or all of the
information that has been incorporated by reference in the prospectus but not
delivered with the prospectus. Please direct your written requests to:
Simtek Corporation
4250 Buckingham Dr. #100
Colorado Springs, CO 80907
(719) 531-9444
Attention: Investor Relations
You should rely only on the information incorporated by reference or
provided in this prospectus or any prospectus supplement. We have not authorized
anyone else to provide you with different information. We are not making an
offer of our Common Stock in any state where the offer is not permitted. You
should not assume that the information in this prospectus or any prospectus
supplement is accurate as of any date other than the date on the front page of
those documents.
19
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 13. Other Expenses of Issuance and Distribution
The following table sets forth the expenses (other than underwriting
discounts and commissions) expected to be incurred in connection with the
issuance and distribution of the securities registered hereby, all of which
expenses, except for the Commission registration fee are estimated:
Securities and Exchange Commission registration fee............. $ 3,641
Legal fees and expenses ........................................ 18,000
Accounting fees 3,000
Miscellaneous................................................... 500
----------
Total........................................................... $ 25,141
==========
The above expenses will be borne by us.
Item 14. Indemnification of Directors and Officers
The Colorado Business Corporation Act provides that a corporation may
indemnify a person made a party to a proceeding because the person is or was a
director against liability incurred in the proceeding if (a) the person
conducted himself or herself in good faith, (b) the person reasonably believed
(1) in the case of conduct in an official capacity with the corporation, that
his or her conduct was in the corporation's best interests; and (2) in all other
cases, that his or her conduct was at least not opposed to the corporation's
best interests and (c) in the case of any criminal proceeding, the person had no
reasonable cause to believe his or her conduct was unlawful. Such
indemnification is permitted in connection with a proceeding by or in the right
of the corporation only to the extent of reasonable expenses incurred in
connection with the proceeding. A corporation may not indemnify a director (a)
in connection with a proceeding by or in the right of the corporation in which
the director was adjudged liable to the corporation; or (b) in connection with
any other proceeding charging that the director derived an improper personal
benefit, whether or not involving action in an official capacity, in which
proceeding the director was adjudged liable on the basis that he or she derived
an improper personal benefit. The Colorado Business Corporation Act further
provides that a corporation, unless limited by its articles of incorporation,
shall indemnify a person who was wholly successful, on the merits or otherwise,
in the defense of any proceeding to which the person was a party because the
person is or was a director or officer, against reasonable expenses incurred by
him or her in connection with the proceeding.
Our amended and restated articles of incorporation contain a provision that
requires us to indemnify, to the fullest extent permitted under law, directors
and officers against all costs and expenses reasonably incurred in connection
with the defense of any claim, action, suit or proceeding, whether civil,
criminal, administrative, investigative or other, in which such person may be
involved by virtue of being or having been a director, officer or employee.
Insofar as indemnification for liabilities arising under the Securities Act of
1933, as amended (the "Securities Act") may be permitted to directors, officers
and controlling persons of Simtek pursuant to the foregoing provisions, or
otherwise, Simtek has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Securities Act and is, therefore, unenforceable.
Item 15. Recent Sales of Unregistered Securities
From January 1, 2003 through December 31, 2005, we issued options to
purchase 7,464,334 shares of our common stock to our employees, consultants and
directors with a range of exercise prices from $0.14 to $1.90 per share. From
January 1, 2003 through December 31, 2005, we issued 2,766,474 shares of our
common stock upon the exercise of stock options to our employees, consultants
and directors. The options and common stock issued upon the exercise of options
were issued in reliance on the exemption from registration provided by Rule 701
promulgated under the Securities Act as securities issued pursuant to certain
compensatory benefit plans and contracts relating to compensation.
II-1
On November 7, 2003, we closed a $1,500,000 equity financing with the RENN
Capital Group. In exchange for the $1,500,000, we issued to the RENN Capital
Group 1,651,983 shares of our common stock and warrants to acquire 750,000
shares of our common stock. The warrants have a 5-year term with an exercise
price of $1.25 per share for 375,000 shares and $1.50 per share for 375,000
shares. With respect to our November 7, 2003 transaction, we issued such
securities in reliance upon Rule 506 promulgated under, and Section 4(2) of, the
Securities Act, as the RENN Capital Group are sophisticated, accredited
investors, there was no general solicitation and the RENN Capital Group had
access to material information of Simtek.
On October 12, 2004, we received $2,500,000 from SF Capital Partners Ltd.,
Bluegrass Growth Fund LP and Bluegrass Growth Fund LTD in return for issuing
5,159,959 shares of our common stock and warrants to acquire 2,579,980 shares of
our common stock. In connection with the $2,500,000 equity financing, we issued
to Merriman Curhan Ford & Co., the investment banking firm that advised us in
such transaction, warrants to acquire 386,997 shares of our common stock. The
warrants issued to SF Capital Partners Ltd., Bluegrass Growth Fund LP and
Bluegrass Growth Fund LTD have 5-year terms and originally had an exercise price
of $0.627 per share (which has been reduced to $0.265 per share as of December
30, 2005 as a result of an agreement between us and such entities). The warrants
issued to Merriman Curhan Ford & Co. have a 5-year term with an exercise price
of $0.627 per share. In addition, Merriman Curhan Ford & Co. received or is
entitled to receive as commission (i) a cash payment of $187,500 (which equals
7.5% of the total amount of capital received by us from the sale of the common
stock and the warrants in the transaction); and (ii) a cash payment equal to
7.5% of the capital received by us upon the exercise of the warrants issued to
the investors (provided such exercise is within an applicable tail period). With
respect to our October 12, 2004 transaction, we issued such securities in
reliance upon Rule 506 promulgated under, and Section 4(2) of, the Securities
Act, as the purchasers are all sophisticated, accredited investors, there was no
general solicitation and the purchasers had access to material information of
Simtek.
On May 5, 2005, we closed a share purchase agreement for a $4,000,000
private placement of 6,740,816 shares of our common stock and warrants to
acquire 5,055,612 shares of our common stock with Cypress Semiconductor
Corporation, as well as a production and development agreement with Cypress to
jointly develop an "S8" 0.13-micron silicon-oxide-nitride-oxide-silicon (SONOS)
nonvolatile memory production process. The production and development agreement
also calls for Cypress to produce one or more Simtek products, as designated by
Simtek, using the S8 process. The warrants have a 10-year term with an exercise
price of $0.7772. With respect to our May 5, 2005 transaction, we issued such
securities in reliance upon Rule 506 promulgated under, and Section 4(2) of, the
Securities Act, as Cypress is a sophisticated, accredited investor, there was no
general solicitation and Cypress had access to material information of Simtek.
Harold Blomquist, our current President and Chief Executive Officer,
purchased 200,000 shares of our common stock for $108,400 on May 19, 2005, and
275,000 shares of our common stock for $81,950 on November 9, 2005, in each case
pursuant to Mr. Blomquist's employment agreement with us. We issued 150,000
shares of our common stock to Douglas Mitchell, our former President, Chief
Executive Officer and Chief Financial Officer (acting), on June 15, 2005, and
50,000 shares of our common stock on November 25, 2005, in each case pursuant to
the terms of his separation agreement with us. With respect to the issuances to
Mr. Blomquist and Mr. Mitchell, we issued such securities in reliance upon Rule
506 promulgated under, and Section 4(2) of, the Securities Act, as each is or
was an officer and director of Simtek, each is a sophisticated investor, each
had access to material information of Simtek and there was no general
solicitation.
On June 28, 2005, we issued warrants to purchase 200,000 shares of our
common stock to the RENN Capital Group in exchange for a waiver of certain
provisions relating to the 7.5% convertible debentures issued to the RENN
Capital Group in 2002. These warrants have 5-year terms with an exercise price
of $0.50 per share. With respect to our June 28, 2005 transaction, we issued
such securities in reliance upon Rule 506 promulgated under, and Section 4(2)
of, the Securities Act, as the RENN Capital Group are sophisticated, accredited
investors, there was no general solicitation and the RENN Capital Group had
access to material information of Simtek.
On December 30, 2005, we issued to ZMD 6,260,713 shares of our common stock
as partial payment for the assets we acquired from ZMD pursuant to the Asset
Purchase Agreement, dated December 7, 2005, between us and ZMD. With respect to
our December 30, 2005 transaction with ZMD, we issued such securities in
reliance upon Rules 506 and 901 promulgated under, and Section 4(2) of, the
Securities Act, as ZMD is a sophisticated, accredited investor, there was no
general solicitation and ZMD had access to material information of Simtek.
II-2
On December 30, 2005, we issued, for an aggregate price of $11,000,000, the
amounts of shares indicated to the following investors: Crestview Capital Master
LLC (24,687,500 shares); Straus Partners, LP (781,250 shares); Straus GEPT
Partners, LP (781,250 shares); Big Bend XXVII Investments, L.P. (14,375,000
shares); Toibb Investment LLC (11,875,000 shares); Michael Seedman (625,000
shares); RENN Capital Group (9,375,000 shares); and SF Capital Partners Ltd.
(6,250,000 shares). In addition, on December 30, 2005, we issued a warrant to
purchase 1,062,500 shares of our common stock to C. E. Unterberg, Towbin, the
investment banking firm that advised us in the December 30, 2005 offering, as
partial payment for such services. This warrant has a five-year term and an
exercise price of $0.28 per share. With respect to our December 30, 2005
transaction with such purchasers and our issuance to C. E. Unterberg, Towbin, we
issued such securities in reliance upon Rule 506 promulgated under, and Section
4(2) of, the Securities Act, as the securityholders are all sophisticated,
accredited investors, there was no general solicitation and the securityholders
had access to material information of Simtek.
Item 16. Exhibits
Unless otherwise indicated, all exhibits listed below are incorporated herein by
reference.
3.1 Amended and Restated Articles of Incorporation.(19)
3.2 Bylaws.(2)
4.1 1987-I Employee Restricted Stock Plan.(1)
4.2 Form of Restricted Stock Agreement between the Company and
Participating Employees.(1)
4.3 Form of Common Stock Certificate.(3)
4.4 Simtek Corporation 1991 Stock Option Plan.(4)
4.5 Form of Incentive Stock Option Agreement between the Company and
Eligible Employees.(4)
4.6 1994 Non-Qualified Stock Option Plan.(5)
4.7 Amendment to the 1994 Non-Qualified Stock Option Plan.(6)
4.8 Q-DOT Group, Inc. Incentive Stock Option Plan of March 1994 adopted by
Simtek (9)
4.9 Form of Q-DOT Group, Inc. Incentive Stock Option Agreement between the
Company and Eligible Employees.(9)
4.10 Amendment to the 1994 Non-Qualified Stock Option Plan.(9)
4.11 Amendment to the 1994 Non-Qualified Stock Option Plan (17)
5.1 Opinion of Holme Roberts & Owen LLP
5.2 Opinion of Holme Roberts & Owen LLP, dated October 26, 2005, with
respect to 200,000 of the shares being registered *
5.3 Opinion of Holme Roberts & Owen, LLP, dated June 22, 2005 with respect
to 25,013,795 shares (of which 24,963,795 remaining unsold shares are
still being registered) *
5.4 Opinion of Holme Roberts & Owen LLP, dated March 28, 2005, with
respect to 8,126,936 shares (of which 7,535,336 remaining unsold
shares are still being registered) *
10.1 Form of Non-Competition and Non-Solicitation Agreement between the
Company and certain of its employees.(1)
10.2 Form of Employee Invention and Patent Agreement between the Company
and certain of its employees.(1)
10.3 Manufacturing Agreement between Chartered Semiconductor Manufacturing,
PTE, LTD. and Simtek Corporation dated September 16, 1992(6)
10.4 Separation Agreement, dated May 9, 2005, between Simtek Corporation
and Douglas M. Mitchell(8)
10.5 Technology Development, License and Product Agreement between Amkor
Technology and Simtek (10)
10.6 Manufacturing Services Agreement between Amkor Technology, Inc. and
Simtek Corp (10)
10.7 Convertible Loan Agreement between Simtek Corporation as borrower and
Renaissance Capital Growth & Income Fund III, Inc. and Renaissance US
Growth and Income Trust, PLC and BFSUS Special Opportunities Trust,
PLC as lenders (11)
10.8 7.5% $1,000,000 Convertible Debenture between Simtek Corporation and
BSFSUS Special Opportunities Trust, PLC (11)
10.9 7.5% $1,000,000 Convertible Debenture between Simtek Corporation and
Renaissance Capital Growth & Income Fund III, Inc. (11)
10.10 7.5% $1,000,000 Convertible Debenture between Simtek Corporation and
Renaissance Capital US Growth & Income Trust, PLC (11)
II-3
10.11 Borrowers Security Agreement between Simtek Corporation as borrower
and Renaissance Capital Growth & Income Fund III, Inc. and Renaissance
US Growth and Income Trust, PLC and BFSUS Special Opportunities Trust,
PLC as lenders (11)
10.12 Pledge Agreement between Simtek Corporation as borrower and
Renaissance Capital Growth & Income Fund III, Inc. and Renaissance US
Growth and Income Trust, PLC and BFSUS Special Opportunities Trust,
PLC as lenders (11)
10.13 Technology Development, License and Product Agreement between Amkor
Technology and Simtek - Amended September 2002 (12)
10.14 Assignment, dated February 21, 2003, of the Agreement(s) between
Simtek Corporation and Amkor Technology, Inc.(13)
10.15 Securities Purchase Agreement between Simtek Corporation and
Renaissance Capital Growth & Income Fund III, Inc. and Renaissance US
Growth Investment Trust, PLC and BFSUS Special Opportunities Trust,
PLC(14)
10.16 Form of $1.25 Stock Purchase Warrant(14)
10.17 Form of $1.50 Stock Purchase Warrant(14)
10.18 Amendment dated January 27, 2004 between Simtek Corporation and Baja
Properties, LLC (Landlord) (together with amendment dated June 7, 2000
and underlying lease dated July 26, 2000) (15)
10.19 Securities Purchase Agreement, dated October 12, 2004, by and among
the Company, SF Capital Partners Ltd., Bluegrass Growth Fund LP and
Bluegrass Growth Fund LTD (16)
10.20 Form of Warrant (attached as Exhibit A to Securities Purchase
Agreement, dated October 12, 2004, by and among the Company, SF
Capital Partners Ltd., Bluegrass Growth Fund LP and Bluegrass Growth
Fund LTD) (16)
10.21 Form of Registration Rights Agreement (attached as Exhibit B to
Securities Purchase Agreement, dated October 12, 2004, by and among
the Company, SF Capital Partners Ltd., Bluegrass Growth Fund LP and
Bluegrass Growth Fund LTD) (16)
10.22 Share Purchase Agreement, dated May 4, 2005, by and between the
Company and Cypress Semiconductor Corporation (20)
10.23 Development and Production Agreement, dated May 4, 2005, by and
between the Company and Cypress Semiconductor Corporation (20)
10.24 Escrow Agreement, dated May 4, 2005, by and among the Company, Cypress
Semiconductor Corporation and U.S. Bank, National Association (20)
10.25 Stock Purchase Warrant, dated May 4, 2005, from the Company to Cypress
Semiconductor Corporation (20)
10.26 Registration Rights Agreement, dated May 4, 2005, by and between the
Company and Cypress Semiconductor Corporation (20)
10.27 Employment agreement by and between the Company and Harold Blomquist
(8)
10.28 Waiver letter agreement, dated June 28, 2005, by and between the
Company, Q-DOT, Inc., Renaissance Capital Growth & Income Fund III,
Inc., Renaissance US Growth Investment Trust PLC and BFS US Special
Opportunities Trust PLC (21)
10.29 Asset Purchase Agreement, dated August 30, 2005, by and among Hittite
Microwave Corporation, HMC Acquisition Corporation, the Company and
Q-DOT, Inc. (22)
10.30 Escrow Agreement, dated August 30, 2005, by and among the Company,
Q-DOT, Inc., Hittite Microwave Corporation, HMC Acquisition
Corporation, and U.S. Bank, National Association (22)
10.31 Confidentiality, Non-Disclosure and Restrictive Covenant Agreement,
dated August 30, 2005, by and among Hittite Microwave Corporation, HMC
Acquisition Corporation, the Company and Q-DOT, Inc. (22)
10.32 Asset Purchase Agreement, dated December 7, 2005, by and between the
Company and Zentrum Mikroelektronik Dresden AG (23)
10.33 Form of License Agreement, dated December 30, 2005, by and between the
Company and Zentrum Mikroelektronik Dresden AG (23)
10.34 Form of Non-Competition and Non-Solicitation Agreement, dated December
30, 2005, by and between the Company and Zentrum Mikroelektronik
Dresden AG (23)
10.35 Form of Registration Rights Agreement, dated December 30, 2005, by and
between the Company and Zentrum Mikroelektronik Dresden AG (23)
10.36 Form of Securities Purchase Agreement, dated December 30, 2005, by and
among the Company various purchasers (24)
II-4
10.37 Form of Registration Rights Agreement, dated December 30, 2005, by and
among the Company and various purchasers (24)
13.1 Annual Report on Form 10-KSB for the fiscal year ended December 31,
2004 (18)
23.1 Consent of Independent Registered Public Accounting Firm (filed as an
exhibit hereto)
23.2 Consent of Holme Roberts & Owen LLP is included in Exhibit 5.1
24.1 Power of Attorney
-----------------
* Previously filed.
(1) Incorporated by reference to the Company's Form S-1 Registration Statement
(Reg. No. 33-37874) filed with the Commission on November 19, 1990.
(2) Incorporated by reference to the Company's Amendment No. 1 to Form S-1
Registration Statement (Reg. No. 33-37874) filed with the Commission on
February 4, 1991.
(3) Incorporated by reference to the Company's Amendment No. 2 to Form S-1
Registration Statement (Reg. No. 33-37874) filed with the Commission on
March 4, 1991.
(4) Incorporated by reference to the Company's Form S-1 Registration Statement
(Reg. No. 33-46225) filed with the Commission on March 6, 1992.
(5) Incorporated by reference to the Company's Annual Report on Form 10-K filed
with the Commission on March 25, 1995
(6) Incorporated by reference to the Company's Annual Report on Form 10-K filed
with the Commission on March 27, 1996
(7) Incorporated by reference to the Company's Annual Report on Form 10-K filed
with the Commission on March 24, 1998
(8) Incorporated by reference to the Form 8-K filed with the Commission on May
12, 2005
(9) Incorporated by reference to the Company's Form S-8 Registration Statement
(Reg. No. 333-73794) filed with the Commission on November 20, 2001
(10) Incorporated by reference to the Company's Annual Report on Form 10-KSB
filed with the Commission on March 27, 2002
(11) Incorporated by reference to the Company's Quarterly Report on Form 10-QSB
filed with the Commission on August 13, 2002
(12) Incorporated be reference to the Company's Quarterly Report on Form 10-QSB
filed with the Commission on November 8, 2002
(13) Incorporated by reference to the Company's Annual Report on Form 10-KSB
filed with the Commission on March 27, 2003
(14) Incorporated by reference from the Current Report on Form 8-K filed by the
Company with the SEC on November 12, 2003
(15) Incorporated by reference to the Company's Annual Report on Form 10-KSB
filed with the Commission on March 4, 2004
(16) Incorporated by reference from the Current Report on Form 8-K filed by the
Company with the Commission on October 12, 2004
(17) Incorporated by reference to the Company's Form S-8 Registration Statement
(Reg. No. 333-1210005) filed with the Commission on December 7, 2004
(18) Incorporated by reference to the Company's Annual Report on Form 10-KSB
filed with the Commission on March 17, 2005 as amended by the Company's
Amended Annual Report on Form 10-KSB filed with the Commission on May 11,
2005
(19) Incorporated by reference to the Company's Form S-2 Registration Statement
(Reg. No. 333-123639) filed with the Commission on March 29, 2005
(20) Incorporated by reference to the Company's Current Report on Form 8-K filed
by the Company with the SEC on May 10, 2005
(21) Incorporated by reference to the Company's Current Report on Form 8-K filed
by the Company with the SEC on July 5, 2005
(22) Incorporated by reference to the Company's Current Report on Form 8-K filed
by the Company with the SEC on September 6, 2005
(23) Incorporated by reference to the Company's Current Report on Form 8-K filed
by the Company with the SEC on December 13, 2005
(24) Incorporated by reference to the Company's Current Report on Form 8-K filed
by the Company with the SEC on January 3, 2006
II-5
Item 17. Undertakings
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 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 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 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 Act and will be governed by the final adjudication of
such issue.
The undersigned registrant hereby undertakes to:
(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 of 1933;
(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 in the registration statement. 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. Notwithstanding the
foregoing, any increase or decrease in volume of securities offered (if the
total dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated maximum
offering range may be reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) (17 C.F.R.ss.230.424(b)) if, in the
aggregate, the changes in volume and price represent no more than a 20% change
in the maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement;
(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.
(2) That, for the purpose of determining any liability under the Securities
Act of 1933, 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.
II-6
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
has duly caused this registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Colorado Springs, State
of Colorado, on February 27, 2006.
Simtek Corporation,
a Colorado corporation
By: /s/Brian Alleman
--------------------------------------
Brian Alleman
Secretary, Vice President and
Chief Financial Officer
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
* /s/Harold Blomquist
------------------------------------------------------
Harold Blomquist, Chairman,
Chief Executive Officer and President
February 27, 2006
/s/Brian Alleman
------------------------------------------------------
Brian Alleman, Secretary, Vice President and Chief
Financial Officer
February 27, 2006
* /s/Robert Keeley
------------------------------------------------------
Robert Keeley, Director
February 27, 2006
* /s/Alfred Stein
------------------------------------------------------
Alfred Stein, Director
February 27, 2006
* /s/Ronald Sartore
------------------------------------------------------
Ronald Sartore, Director
February 27, 2006
/s/Kimberley Carothers
------------------------------------------------------
Kimberley Carothers
Controller (Principal Accounting Officer)
February 27, 2006
* By /s/Brian Alleman, Attorney in Fact
II-7