As filed with the Securities and Exchange Commission on April 26, 2006
Registration 333-132180
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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Form S-1
PRE-EFFECTIVE AMENDMENT NO. 2 TO 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. [ ]
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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.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
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, dated February 28, 2006, with
respect to 80,094,191 of the shares being registered *
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) *
5.5 Opinion of Holme Roberts & Owen LLP *
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)
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)
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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 Employment agreement by and between the Company and Harold Blomquist
(8)
10.27 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)
10.28 Asset Purchase Agreement, dated August 30, 2005, by and among Hittite
Microwave Corporation, HMC Acquisition Corporation, the Company and
Q-DOT, Inc. (22)
10.29 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)
10.30 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)
10.31 Asset Purchase Agreement, dated December 7, 2005, by and between the
Company and Zentrum Mikroelektronik Dresden AG (23)
10.32 Form of License Agreement, dated December 30, 2005, by and between the
Company and Zentrum Mikroelektronik Dresden AG (23)
10.33 Form of Non-Competition and Non-Solicitation Agreement, dated December
30, 2005, by and between the Company and Zentrum Mikroelektronik
Dresden AG (23)
10.34 Form of Registration Rights Agreement, dated December 30, 2005, by and
between the Company and Zentrum Mikroelektronik Dresden AG (23)
10.35 Form of Securities Purchase Agreement, dated December 30, 2005, by and
among the Company various purchasers (24)
10.36 Form of Registration Rights Agreement, dated December 30, 2005, by and
among the Company and various purchasers (24)
10.37 License and Development Agreement, dated March 24, 2006, by and
between the Company and Cypress Semiconductor Corporation (25)
10.38 Amended and Restated Registration Rights Agreement, dated March 24,
2006, by and between the Company and Cypress Semiconductor Corporation
(25)
13.1 Annual Report on Form 10-K for the fiscal year ended December 31, 2005
(18)
23.1 Consent of Hein & Associates LLP, Independent Registered Public
Accounting Firm*
23.2 Consent of Holme Roberts & Owen LLP is included in Exhibit 5.1, 5.2,
5.3, 5.4 and 5.5*
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23.3 Consent of MAZARS Revision & Treuhandgesellschaft mbH, Independent
Registered Public Accounting Firm*
24.1 Power of Attorney *
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* 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-K filed
with the Commission on April 7, 2006
(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
(25) Incorporated by reference to the Company's Current Report on Form 8-K filed
by the Company with the SEC on March 30, 2006
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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:
(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 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.
(4) That, for the purpose of determining liability under the Securities Act
of 1933 to any purchaser, each prospectus filed pursuant to Rule 424(b) as part
of a registration statement relating to an offering, other than registration
statements relying on Rule 430B or other than prospectuses filed in reliance on
Rule 430A, shall be deemed to be part of and included in the registration
statement as of the date it is first used after effectiveness. Provided,
however, that no statement made in a registration statement or prospectus that
is part of the registration statement or made in a document incorporated or
deemed incorporated by reference into the registration statement or prospectus
that is part of the registration statement will, as to a purchaser with a time
of contract of sale prior to such first use, supersede or modify any statement
that was made in the registration statement or prospectus that was part of the
registration statement or made in any such document immediately prior to such
date of first use.
(5) That, for the purpose of determining liability of the registrant
under the Securities Act of 1933 to any purchase in the initial distribution
of the securities:
The undersigned registrant undertakes that in a primary offering of
securities of the undersigned registrant pursuant to this registration
statement, regardless of the underwriting method used to sell the securities
to the purchaser, if the securities are offered or sold to such purchaser
by means of any of the following communications, the undersigned registrant
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will be a seller to the purchaser and will be considered to offer or sell
such securities to such purchaser:
(i) Any preliminary prospectus or prospectus of the undersigned
registrant relating to the offering required to be filed pursuant to
Rule 424;
(ii) Any free writing prospectus relating to the offering prepared by
or on behalf of the undersigned registrant or used or referred to by the
undersigned registrant;
(iii) The portion of any other free writing prospectus relating to the
offering containing material information about the undersigned registrant
or its securities provided by or on behalf of the undersigned registrant;
and
(iv) Any other communication that is an offer in the offering made by
the undersigned registrant to the purchaser.
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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 April 26, 2006.
Simtek Corporation,
a Colorado corporation
By: /s/Brian Alleman
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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
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Harold Blomquist, Chairman,
Chief Executive Officer and President
April 26, 2006
/s/Brian Alleman
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Brian Alleman, Secretary, Vice President and Chief
Financial Officer
April 26, 2006
* /s/Robert Keeley
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Robert Keeley, Director
April 26, 2006
* /s/Alfred Stein
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Alfred Stein, Director
April 26, 2006
* /s/Ronald Sartore
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Ronald Sartore, Director
April 26, 2006
/s/Kimberley Carothers
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Kimberley Carothers
Controller (Principal Accounting Officer)
April 26, 2006
* By /s/Brian Alleman, Attorney in Fact
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