As filed with the Securities and Exchange Commission on June 29, 2007
Registration No. 333-_________
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
SIMTEK CORPORATION
(Exact Name of Registrant as Specified in its Charter)
Delaware 84-1057605
(State of Incorporation) (I.R.S. Employer Identification No.)
4250 Buckingham Drive #100
Colorado Springs, Colorado 80907
(Address of Principal Executive Offices)
Simtek Corporation Employee Stock Purchase Plan
(Full Title of the Plans)
Harold Blomquist
Chief Executive Officer and President
Simtek Corporation
4250 Buckingham Drive #100
Colorado Springs, CO 80907
(719) 531-9444
(Name, Address 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 Street, Suite 4100
Denver, CO 80203
(303) 861-7000
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Title of Securities Amount to be Maximum Offering Maximum Aggregate Amount of
to be Registered Registered (1) Price Per Share Offering Price Registration Fee
(2) (3)
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Common Stock, $0.0001 Par Value 500,000 $5.15 $2,575,000 $79
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(1) 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.
(2) The offering price of $5.15 per share is estimated in accordance with Rule
457(c) under the Securities Act solely for the purpose of computing the
amount of the registration fee and is based upon the average of the high
and low prices of the Registrant's common stock on June 26, 2007, as
reported on The Nasdaq Capital Market.
(3) The registration fee for the securities registered hereby was calculated by
multiplying the proposed maximum offering price by .0000307 in accordance
with Section 6(b) of the Securities Act and the related rules.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference
The following documents filed with the Securities and Exchange Commission
(the "Commission") are incorporated by reference into this Registration
Statement:
a. Our Annual Report on Form 10-K, as amended, for the fiscal year ended
December 31, 2006, filed on April 2, 2007 and amended by Form 10-K/A
filed on April 30, 2007;
b. Our Current Reports on Form 8-K filed on January 9, 2007, January 12,
2007, January 24, 2007, February 13, 2007, February 23, 2007, April
12, 2007 and April 26, 2007;
c. Our Quarterly Report on Form 10-Q, for the fiscal quarter ended March
31, 2007, filed on May 15, 2007;
d. The description of our common stock as set forth in our Registration
Statement on Form 8-A filed on January 8, 2007; and
e. All reports and other documents subsequently filed with the Commission
by Simtek pursuant to Sections 13(a), 13(c), 14 and 15(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"),
prior to the filing of a post-effective amendment which indicates that
all securities offered herein have been sold or which deregisters all
securities then remaining unsold, shall be deemed to be incorporated
by reference in this Registration Statement and to be a part hereof
from the date of filing of such documents, excluding any information
furnished under Item 7.01 or Item 2.02 of any Current Report on Form
8-K.
Item 4. Description of Securities
Not applicable.
Item 5. Interests of Names Experts and Counsel
Not applicable.
Item 6. Indemnification of Directors and Officers
Under our Certificate of Incorporation and Bylaws, we are required to
indemnify former and current directors and officers, and may indemnify employees
and agents, but only if such person seeking indemnification has satisfied the
statutory standard of conduct. To satisfy the statutory standard of conduct, a
person must have acted in good faith and in a manner the person reasonably
believed to be in or not opposed to the best interests of the corporation. In
addition, in any criminal action or proceeding, the person must also have had no
reasonable cause to believe the person's conduct was unlawful. Regardless of
standards of conduct, indemnification of expenses for directors and officers is
mandatory under Section 145 of the Delaware General Corporation Law ("DGCL") to
the extent they are successful on the merits in defending a proceeding. Under
Section 145 of the DGCL, in derivative suits (i.e., suits by or in the right of
the corporation), indemnification is only available for expenses and attorneys'
fees incurred in defending or settling a suit and only in circumstances where
there has been no adjudication of monetary liability to the corporation.
As permitted by Section 102(b)(7) of the DGCL, our Certificate of
Incorporation provides that, to the fullest extent permitted by the DGCL, a
director of the corporation shall not be personally liable to the corporation or
its stockholders for monetary damages for breach of fiduciary duty as a director
except for liability for (i) any breach of the director's duty of loyalty to the
corporation or its stockholders, (ii) acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (iii)
willful or negligent conduct in paying dividends or repurchasing or redeeming
stock out of funds that are not lawfully available, in violation of Section 174
of the DGCL, or (iv) any transaction from which the director derives an improper
personal benefit.
We maintain insurance policies under which our directors and officers are
insured, within the limits and subject to the limitations of the policies,
against expenses in connection with the defense of actions, suits or
proceedings, and certain liabilities that might be imposed as a result of such
actions, suits or proceedings, to which they are parties by reason of being or
having been a director or officer of Simtek.
Item 7. Exemption from Registration Claimed
Not applicable.
Item 8. Exhibits
Exhibit
Number Description
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5.1 Opinion of Holme Roberts & Owen LLP (filed herewith)
10.1 Simtek Corporation Employee Stock Purchase Plan (filed
herewith)
23.1 Consent of Hein & Associates LLP, Independent Registered
Public Accounting Firm (filed herewith)
23.2 Consent of Holme Roberts & Owen LLP (included in Exhibit
5.1)
Item 9. Undertakings
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the 1933
Act.
(ii) To reflect in the prospectus any facts or events arising after
the effective date of this 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 this Registration Statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the 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) 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 this Registration
Statement; and
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in this Registration Statement
or any material change to such information in this Registration
Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed
with or furnished to the Commission by the registrant pursuant to
Section 13 or 15(d) of the Exchange Act that are incorporated by
reference in this Registration Statement.
(2) That, for the purpose of determining any liability under the Securities
Act of 1933, as amended, 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.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or 15(d) of the Exchange
Act [and, where applicable, each filing of an employee benefit plan's annual
report pursuant to 15(d) of the Exchange Act] that is incorporated by reference
in this Registration Statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(c) Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise, the registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Securities Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Colorado Springs, State of Colorado, on the 29th day
of June, 2007.
SIMTEK CORPORATION
By: /s/ Harold Blomquist
Harold Blomquist
Chairman, Chief Executive Officer and
President
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed by the following persons in the capacities and on the
dates indicated.
Signature Title Date
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/s/ Harold Blomquist Chairman of the Board, Chief Executive June 29, 2007
------------------------------------ Officer and President
Harold Blomquist
/s/ Brian Alleman Secretary, Vice President and Chief June 29, 2007
------------------------------------ Financial Officer
Brian Alleman
/s/ Kim Carothers Controller (Principal Accounting Officer) June 29, 2007
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Kim Carothers
/s/ Alfred Stein Director June 29, 2007
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Alfred Stein
/s/ Ronald Sartore Director June 29, 2007
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Ronald Sartore
/s/ John Hillyard Director June 29, 2007
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John Hillyard
June 29, 2007
/s/ Robert Pearson Director
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Robert Pearson