As filed with the Securities and Exchange Commission on Octobr 26, 2005
Registration 333-126041
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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Form S-2
PRE-EFFECTIVE AMENDMENT NO. 1 TO
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
SIMTEK CORPORATION
(Exact name of registrant as specified in its charter)
Colorado 84-1057605
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
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.
Holme Roberts & Owen LLP
90 S. Cascade Avenue, Suite 1300
Colorado Springs, CO 80903
(719) 473-3800
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 the registrant elects to deliver its latest annual report to security
holders, or a complete and legible facsimile thereof, pursuant to Item 11(a)(1)
of this Form, 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.
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box.
CALCULATION OF REGISTRATION FEE(1)
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 19,208,183 $0.41(2) $7,875,355 $926.93
value per share
Common stock, $.01 par 4,568,359 $0.37(3) $1,690,293 $198.95
value per share
Common stock, $.01 par 5,055,612 $0.7772(4) $3,929,222 $462.47
value per share
Common stock, $.01 par 375,000 $1.25(4) $468,750 $55.17
value per share
Common stock, $.01 par 375,000 $1.50(4) $562,500 $66.21
value per share
Common stock, $.01 par 2,966,977 $0.627(4) $1,860,295 $218.96
value per share
Common stock, $.01 par 200,000 $0.50(4) $100,000 $11.77
value per share
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Total 32,749,131 $16,486,415 $1,940.45 (5)
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(1) Comprises 22,976,542 shares of common stock issued, 800,000 shares of
common stock issuable under certain agreements with certain of our current
and former officers and directors, and 8,972,589 shares of common stock
issuable upon exercise of warrants with exercise prices of $0.627, $0.50
$0.7772, $1.25 and $1.50 per share. Among other things, this Pre-
Effective Amendment No. 1 to Registration Statement on Form S-2 combines:
(i) the shares covered by the Registration Statement on Form S-2
(Registration No. 333-126041) filed on June 22, 2005; and (ii) the shares
covered by the Registration on Form S-2 (Registration No. 333-123639)
filed on March 29, 2005.
(2) With respect to 19,208,183 shares of common stock, 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 June 17, 2005.
(3) With respect to 4,568,359 shares of common stock, 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 October 21, 2005.
(4) Estimated solely for purposes of calculating the registration fee pursuant
to Rule 457(g).
(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-2 is offset by $1,039.08 from $1,940.45 to $901.37. The
registrant previously paid $482.99 pursuant to the Registration Statement
on Form S-2 (File No. 333-126041); as such, only $418.38 is due at this
time.
---------------------------------
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 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
Statement Pursuant to Rule 429(b)
Pursuant to Rule 429 under the Securities Act of 1933, as amended, this
Pre-Effective Amendment No. 1 also relates to an aggregare of 7,353,336 shares
of common stock previously registered but not sold under the registration
statement on Form S-2 (Registration No. 333-123639) (the "revious Registration
Statement", which has been declared effective by the Securities and Exchange
Commission. This Pre-Effective Amendment No. 1 constitutes both (i)
Pre-Effective Amendment No. 1 to this Registration Statement on Form S-2
(Registration No. 333-126041), and (ii) Post Effective Amendment No. 1 to the
Previous Registration Statement.
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 OCTOBER 26, 2005
32,749,131 Shares
SIMTEK CORPORATION
Common stock
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This prospectus is being used to register 32,749,131 shares of Simtek
Corporation's common stock being offered by the selling security holders,
Renaissance Capital Growth and Income Fund III, Inc., Renaissance US Growth &
Investment Trust PLC, BFSUS Special Opportunities Trust PLC, Cypress
Semiconductor Corporation, SF Capital Partners Ltd., Bluegrass Growth Fund LP,
Bluegrass Growth Fund LTD, Merriman Curhan Ford & Co. and certain of our current
and former officers and directors.
We issued 1,651,983 of these shares to Renaissance Capital Growth and
Income Fund III, Inc., Renaissance US Growth & Investment Trust PLC, BFSUS
Special Opportunities Trust PLC, or the "RENN Capital Group," on November 7,
2003. 750,000 of the shares that we are registering relate to warrants that we
issued to the RENN Capital Group incident to this November 2003 transaction. In
addition, 9,615,384 of the shares that we are registering are issuable upon
exercise of 7.5% convertible debentures that we issued to the RENN Capital Group
incident to a $3,000,000 financing transaction in 2002, and 200,000 of the
shares relate to warrants issued incident to a waiver of certain provisions
under the 2002 debentures. We have issued 6,740,816 of the shares that we are
registering, and are required to issue an additional 5,055,612 of the shares
that we are registering upon exercise of warrants that we issued, to Cypress
Semiconductor Corporation on May 4, 2005.
Mr. Harold Blomquist, our current President and Chief Executive Officer,
purchased 200,000 of the shares that we are registering at a purchase price of
$0.542 per share in May 2005, is entitled to be issued another 200,000 of these
shares pursuant to his employment agreement with us and may purchase or be
granted an additional 600,000 of these shares. In addition, we have issued a
portion of and will issue the remainder of 200,000 of these shares to Mr.
Douglas Mitchell, our former President, Chief Executive Officer and Chief
Financial Officer (acting) pursuant to the terms of his separation agreement
with us. We have issued 5,159,959 of the shares to SF Capital Partners Ltd.,
Bluegrass Growth Fund LP and Bluegrass Growth Fund LTD in connection with a
$2,500,000 equity financing on October 12, 2004. Such stockholders, along with
Merriman Curhan Ford & Co., also received warrants to acquire 2,966,977 shares
of our common stock incident thereto, which shares we are also registering under
this prospectus.
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 14. 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
other than the exercise price payable to us upon the exercise of the warrants.
Our common stock is traded on the OTC Bulletin Board under the symbol "SRAM." On
October 25, 2005, the closing sale price of our common stock was $0.41 per
share.
See "Risk Factors" beginning on page 5 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 October 26, 2005.
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TABLE OF CONTENTS
Summary......................................................................3
Risk Factors..................................................................5
Special Note Regarding Forward-Looking Statements............................11
Use of Proceeds..............................................................11
Selling Security Holders.....................................................12
Description of Securities....................................................14
Plan of Distribution.........................................................14
Legal Matters................................................................16
Experts.....................................................................16
Available Information........................................................16
2
Summary
THIS SUMMARY HIGHLIGHTS SELECTED INFORMATION FROM THIS PROSPECTUS AND
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
We are registering 12,217,367 shares of our common stock that may be
offered for resale by Renaissance Capital Growth and Income Fund III, Inc.,
Renaissance US Growth & Investment Trust PLC , BFSUS Special Opportunities Trust
PLC, or, collectively, the RENN Capital Group. Additionally, we are registering
11,796,428 shares of our common stock that may be offered for resale by Cypress
Semiconductor Corporation, or Cypress. In addition, we are registering 1,200,000
shares of our common stock that may be offered for resale by Mr. Harold
Blomquist, our President and Chief Executive Officer, and Mr. Douglas Mitchell,
our former President, Chief Executive Officer and Chief Financial Officer
(acting). Also, we are registering 8,126,936 shares of our common stock that may
be offered for resale by SF Capital Partners Ltd., Bluegrass Growth Fund LP,
Bluegrass Growth Fund LTD and Merriman Curhan Ford & Co. We refer to these
entities and individuals collectively as the "selling security holders."
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 conversion rate of
$0.312 and a maturity date of June 28, 2009. 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. 12,217,367 of the 32,749,131 shares that we are registering
relate to these July 1, 2002, November 7, 2003 and June 28, 2005 transactions.
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 10-year tem with an exercise price of
$0.7772. 11,796,428 of the 32,749,131 shares that we are registering relate to
this transaction.
On May 19, 2005 and pursuant to his employment agreement with us, Mr.
Blomquist purchased 200,000 shares of our common stock directly from us at a
purchase price of $0.542 per share. The purchase price was determined by
calculating the average close price for the five trading days prior to May 19,
2005. Per the terms of Mr. Blomquist's employment agreement, he is entitled to
be issued an additional 200,000 shares of our common stock to match his stock
purchase. If Mr. Blomquist chooses, he may purchase up to an additional 300,000
shares of our common stock directly from us and per the terms of Mr. Blomquist's
employment agreement we are required to match this stock purchase on a
one-for-one basis (up to 300,000 matching shares). Per the terms of Mr.
Mitchell's separation agreement incident to his resignation as a Simtek officer
3
and director, we issued to Mr. Mitchell a portion of and will issue the
remainder of 200,000 shares of our common stock. 1,200,000 of the shares that we
are registering relate to these two agreements.
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, Bluegrass
Growth Fund LTD and Merriman Curhan Ford & Co. have 5-year terms with an
exercise price of $0.627 per share. 7,535,336 of the shares that we are
registering relate to this transaction.
4
RISK FACTORS
YOU SHOULD CONSIDER CAREFULLY THE FOLLOWING RISK FACTORS, AS WELL AS THE
OTHER INFORMATION IN THIS PROSPECTUS 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 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 are not sure
whether 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 June 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 June 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 and increased research and development costs
related to new product development. We may continue to experience net operating
losses for the foreseeable 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 RENN Capital Group, formerly Renaissance Capital
Group, Inc., contains various financial covenants. As of June 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 August 5, 2005, we received a waiver for the two covenants through July 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.
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
5
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 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
from Chartered Semiconductor Manufacturing Plc. of Singapore, or Chartered. We
have not had a manufacturing contract with Chartered since 1998. However, we
have maintained a good relationship with Chartered for the pricing and delivery
of our wafers. Due to our not having a contract with Chartered and the
volatility of the semiconductor market, we may have no 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, but we are evaluating alternative sources of supply. We believe we
may have an alternative source for our 3 volt 256 kilobit memory product.
However, we cannot assure you that we will secure this or any alternative
source. In addition, we do not have an alternative source for our 16 kilobit, 64
kilobit and 5 volt 256 kilobit memory products at this time. If we are unable to
obtain the products and pricing we need, our business could suffer.
SINCE WE DEPEND GREATLY ON SUBCONTRACTORS, THEIR POOR PERFORMANCE COULD HURT OUR
OPERATIONS
We subcontract the silicon wafer processing, product assembly, and product
testing portions of our business to independent companies. Our operating results
depend on these subcontractors' ability to 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 our semiconductor products. Without these wafers, we would be unable
to sell our products. 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 keep our manufacturing costs down
and secure the production of sufficient product. Semiconductor manufacturing
depends on many factors that are very complex and beyond our control and often
beyond the control of our subcontractors. These factors include contaminates 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 semiconductors that our subcontractors are able to
make in a production run. If our subcontractors produce fewer of our products,
our revenues may decline.
6
DELAYS IN MANUFACTURING MAY NEGATIVELY IMPACT OUR REVENUE AND NET INCOME
It takes approximately three months for us to manufacture our
semiconductors. 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
semiconductors 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 only 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 would
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
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 you 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. We cannot assure
you that we will not discover technical problems or manufacturing concerns with
this new product, that demand will develop for the new product or that we will
be able 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.
7
OUR AGREEMENT WITH DONGBUANAM SEMICONDUCTOR TO CO-DEVELOP A SEMICONDUCTOR
PROCESS MODULE THAT COMBINES OUR NONVOLATILE TECHNOLOGY WITH ITS ADVANCED 0.25
MICRON DIGITAL COMPLEMENTARY METAL-OXIDE SEMICONDUCTOR FABRICATION WILL RESULT
IN SIGNIFICANT EXPENDITURES
We entered into an agreement with Amkor Technology to cooperate to develop
a semiconductor process module that combines our nonvolatile technology with
Amkor's advanced 0.25 micron digital complementary metal-oxide semiconductor, or
"CMOS," fabrication line. The module incorporates silicon oxide nitride oxide
silicon technology, which will be used to manufacture both high density silicon
oxide nitride oxide silicon flash and nonvolatile Static Random Access memories,
for stand alone and embedded products. Through 2004, our research and
development team along with Amkor's research and development team worked
aggressively on the co-development program. The co-development program is
scheduled to yield a qualified 1 megabit 3.0 volt nonvolatile Static Random
Access memory as the primary development vehicle. In February 2003, Amkor
Technology sold a controlling interest of its wafer fabrication facility to
DongbuAnam Semiconductor. All contractual obligations were transferred to Anam
U.S.A., a wholly-owned subsidiary of DongbuAnam Semiconductor. Our
co-development program has not been affected by the change in ownership and we
do not expect any material changes in the support required to complete the
program. There could, however, be changes made by the newly combined management
team that could postpone or cancel this co-development project.
Since entering into the agreement with DongbuAnam Semiconductor we estimate
that we have spent approximately $6,500,000 in development costs. These costs
include increases in headcount, contract engineering services, equipment leases,
maintenance agreements for software and wafer fabrication costs. If DongbuAnam
Semiconductor terminates our agreement there is no guarantee that we could find
a suitable replacement. If we cannot find a replacement, a significant delay and
cost increase in the introduction of new products could result.
IF WE CANNOT REDUCE MANUFACTURING COSTS RELATED TO OUR NEW 0.25 MICRON 1 MEGABIT
AND 256 KILOBIT MEMORY PRODUCT FAMILY, OR 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
During 2004 and the first quarter of 2005, we began receiving silicon
wafers from DongbuAnam Semiconductor. The silicon wafers received from
DongbuAnam Semiconductor are used in the manufacture of our new 0.25 micron
product family. Through September 30, 2005, we have been shipping our family of
1-megabit nonvolatile semiconductor memory products tested to production
requirements on a provisional qualification and completed qualification in late
September 2005. Currently, the manufacturing yields from these silicon wafers do
not meet the requirements we need in order to attain a cost effective solution.
Our engineering department, along with DongbuAnam's engineering department, is
focusing on increasing this manufacturing yield
Through 2004 and the second quarter of 2005, the manufacturing cost related
to probing and testing of our 0.25 micron memory product family has been higher
than is cost-effective in volume production. Our engineering department is
developing test programs intended to reduce these costs. We are exploring
increased use of outside subcontractors for both wafer probe and final test to
reduce the cost of these operations and to reduce cycle time of the production
steps after wafer manufacturing is complete. If we cannot reduce these costs or
improve our manufacturing yields and cycle times on our 0.25 micron memory
product family our gross margins could suffer.
We currently purchase the silicon wafers we require to build our 0.25
micron product family from DongbuAnam Semiconductor. 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 share purchase agreement for a $4 million
private placement of 6,740,816 shares of our common stock with Cypress
Semiconductor Corporation and a production and development agreement with
Cypress to jointly develop an "S8" 0.13-micron
silicon-oxide-nitride-oxide-silicon (SONOS) nonvolatile memory production
8
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.
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 emerging 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. We have sold product
and technology licenses to Zentrum Mikroelektronik Dresden. We have granted this
company unlimited rights to much of our technology through its license
agreements with us. Zentrum Mikroelektronik Dresden has entered the market and
has become one of our significant competitors.
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 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.
9
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. As of December 31, 2004 we
have received no further notification from this corporation. 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.
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. 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.
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
10
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.
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, 2005, or based on certain qualifying 2005
standards, for the fiscal year ending December 31, 2006. 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, 2005 (or 2006 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, 2005 (or 2006 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
32,749,131 shares are covered by this prospectus. These shares include
shares of common stock issued to the RENN Capital Group, SF Capital Partners
Ltd., Bluegrass Growth Fund LP, Bluegrass Growth Fund LTD and Cypress and
issuable upon conversion of debentures issued to the RENN Capital Group on July
1, 2002, upon exercise of warrants issued to the RENN Capital Group, SF Capital
Partners Ltd., Bluegrass Growth Fund LP, Bluegrass Growth Fund LTD, Merriman
Curhan Ford & Co. and Cypress, and 1,200,000 shares issued, or to be issued,
under certain agreements with some of our current and former officers and
directors. We will not receive any proceeds from the sale of the shares.
11
SELLING SECURITY HOLDERS
The following table sets forth information about the selling security
holders.
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
--------------------------------------------- --------------------- --------- ------------ ----------
SF Capital Partners Ltd. 5,921,351 5,921,351 0 *
3600 South Lake Drive
St. Francis, WI 53235
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
Renaissance Capital Growth & Income Fund III, Inc. 5,072,455(1) 4,072,455 1,000,000 1.41%
c/o RENN Capital Group
8080 N. Central Expressway, Suite 210-LB59
Dallas, TX 75206
Renaissance US Growth & Investment Trust PLC 5,072,455(2) 4,072,455 1,000,000 1.41%
c/o RENN Capital Group
8080 N. Central Expressway, Suite 210-LB59
Dallas, TX 75206
BFSUS Special Opportunities Trust PLC 4,072,455 4,072,455 0 *
c/o RENN Capital Group
8080 N. Central Expressway, Suite 210-LB59
Dallas, TX 75206
Cypress Semiconductor Corporation 11,796,428 11,796,428 0 *
3901 North First Street
San Jose, CA 95134-1599
Harold Blomquist 1,623,161(3) 1,000,000 623,161 *
3935 Serenity Place
Colorado Springs, CO 80908
Douglas Mitchell 921,719(4) 200,000 721,719 1.02%
1725 Sunshine Circle
Woodland Park, CO 80863
12
* Less than 1%
(1) Includes 1,000,000 shares held by Renaissance Capital Growth & Income Fund
III, Inc. that were issued in 2000 upon the conversion of debentures
originally issued on June 12, 1998.
(2) Includes 1,000,000 shares held by Renaissance US Growth & Investment Trust
PLC that were issued in 2000 upon the conversion of debentures originally
issued on June 12, 1998.
(3) Includes 800 shares of our common stock that Mr. Blomquist's son personally
owns and includes 622,361 shares issuable upon exercise of options.
(4) Includes 168,386 shares of our common stock that Mr. Mitchell personally
owns and includes 553,333 shares issuable upon exercise of options.
13
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. Part of the common stock offered in this
prospectus is issuable to the RENN Capital Group under warrants to purchase
950,000 shares of common stock, which warrants have a 5-year term with an
exercise price of $0.50, $1.25 and $1.50 per share. Part of the common stock
offered in this prospectus is issuable to Cypress under warrants to purchase
5,055,612 shares of common stock, which warrants have a 10-year term with an
exercise price of $0.7772 per share. Part of the common stock offered in this
prospectus is issuable to SF Capital Partners Ltd., Bluegrass Growth Fund LP,
Bluegrass Growth Fund LTD and Merriman Curhan Ford & Co. under warrants to
purchase 2,966,977 shares of common stock, which warrants have a 5-year term
with an exercise price of $0.627 per share.
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.
PLAN OF DISTRIBUTION
The selling security holders and any of their pledgees, donees,
transferees, assignees and successors-in-interest may, from time to time, sell
any or all of their shares of common stock on any 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. The selling security holders
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 investors;
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;
14
o privately negotiated transactions;
o to cover short sales made after the date that this registration statement
is declared effective by the Securities and Exchange Commission;
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; and
o any other method permitted pursuant to applicable law.
The selling security holders may also sell shares under Rule 144 under 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. The selling security holders do not expect these
commissions and discounts to exceed what is customary in the types of
transactions involved.
The selling security holders may from time to time pledge or grant a
security interest in some or all of the shares owned by them and, if they
default in the performance of their secured obligations, the pledgees or secured
parties may offer and sell shares of common stock from time to time under this
prospectus, or under an amendment to this prospectus under Rule 424(b)(3) or
other applicable provision of the Securities Act of 1933 amending the list of
selling security holders to include the pledgee, transferee or other successors
in interest as selling security holders under this prospectus.
Upon us being notified in writing by a selling security holder that any
material arrangement has been entered into with a broker-dealer for the sale of
common stock through a block trade, special offering, exchange distribution or
secondary distribution or a purchase by a broker or dealer, a supplement to this
prospectus will be filed, if required, pursuant to Rule 424(b) under the
Securities Act, disclosing (i) the name of each such selling security holder and
of the participating broker-dealer(s), (ii) the number of shares involved, (iii)
the price at which such the shares of common stock were sold, (iv)the
commissions paid or discounts or concessions allowed to such broker-dealer(s),
where applicable, (v) that such broker-dealer(s) did not conduct any
investigation to verify the information set out or incorporated by reference in
this prospectus, and (vi) other facts material to the transaction. In addition,
upon us being notified in writing by a selling security holder that a donee or
pledgee intends to sell more than 500 shares of common stock, a supplement to
this prospectus will be filed if then required in accordance with applicable
securities law.
The selling security holders also may transfer the shares of common stock
in other circumstances, in which case the transferees, pledgees or other
successors in interest will be the selling beneficial owners for purposes of
this prospectus.
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. Discounts, concessions,
commissions and similar selling expenses, if any, that can be attributed to the
sale of securities will be paid by the selling security holders and/or the
purchasers. Each selling security holder has represented and warranted to us
that it acquired the securities subject to this registration statement in the
ordinary course of such selling security holder's business and, at the time of
its purchase of such securities such selling security holder had no agreements
or understandings, directly or indirectly, with any person to distribute any
such securities.
15
We have advised each selling security holder that it may not use shares
registered on this registration statement to cover short sales of common stock
made prior to the date on which this registration statement shall have been
declared effective by the Securities and Exchange Commission. If a selling
security holder uses this prospectus for any sale of the common stock, it will
be subject to the prospectus delivery requirements of the Securities Act. The
selling security holders will be responsible to comply with the applicable
provisions of the Securities Act of 1933 and the Securities Exchange Act of
1934, and the rules and regulations thereunder promulgated, including, without
limitation, Regulation M, as applicable to such selling security holders in
connection with resales of their respective shares under this registration
statement.
We are required to pay all fees and expenses incident to the registration
of the shares, but we will not receive any proceeds from the sale of the common
stock. We have agreed to indemnify the selling security holders against certain
losses, claims, damages and liabilities, including liabilities under the
Securities Act. If the selling security holders use this prospectus for any sale
of the common stock, they will be subject to the prospectus delivery
requirements of the Securities Act.
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 and December 31,
2003, 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-2 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
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. Additional
information about Simtek 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:
16
* Financial Statements section of the Annual Report on Form 10-KSB for the
fiscal year ended December 31, 2003.
* Annual Report on Form 10-KSB for the fiscal year ended December 31, 2004.
* Quarterly Report on Form 10-Q for the quarter ended March 31, 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.
* Quarterly Report on Form 10-Q for the quarter ended June 30, 2005.
* Current Report on Form 8-K filed on September 6, 2005.
* Current Report on Form 8-K filed on October 6, 2005.
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.
This prospectus is accompanied by a copy of our most recent Annual Report
on Form 10-KSB/A (which is currently our Annual Report for the fiscal year ended
December 31, 2004) as well as a copy of the Financial Statements section from
our Annual Report on Form 10-KSB for the fiscal year ended December 31, 2003.
17
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. 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............. $ 865
Legal fees and expenses ........................................ 12,000
Accounting fees 3,000
Miscellaneous................................................... 500
--------
Total........................................................... $ 16,365
========
The above expenses will be borne by us.
ITEM 15. INDEMNIFICATION OF OFFICERS AND DIRECTORS
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 "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 Act and is, therefore, unenforceable.
ITEM 16. EXHIBITS
All exhibits listed below are incorporated herein by reference.
3.1 Amended and Restated Articles of Incorporation.(25)
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)
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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 (15)
4.9 Form of Q-DOT Group, Inc. Incentive Stock Option Agreement between the
Company and Eligible Employees.(15)
4.10 Amendment to the 1994 Non-Qualified Stock Option Plan.(15)
4.11 Amendment to the 1994 Non-Qualified Stock Option Plan (23)
5.1 Opinion of Holme Roberts & Owen LLP, dated October 26, 2005.
5.2 Opinion of Holme Roberts & Owen, LLP, dated June 22, 2005 (previously
filed in the Company's Registration Statement on Form S-2
(Registration No. 333-126041) filed on June 22, 2005.
5.3 Opinion of Holme Roberts & Owen LLP, dated March 28, 2005.
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 Product License Development and Support Agreement between Simtek
Corporation and Zentrum Mikroelektronik Dresden GmbH dated June 1,
1994(5)
10.4 Cooperation Agreement between Simtek Corporation and Zentrum
Mikroelektronik Dresden GmbH dated September 14, 1995(6)
10.5 Manufacturing Agreement between Chartered Semiconductor Manufacturing,
PTE, LTD. and Simtek Corporation dated September 16, 1992(6)
10.6 Separation Agreement, dated May 9, 2005, between Simtek Corporation
and Douglas M. Mitchell(8)
10.7 Share Exchange Agreement dated May 9, 2000 between Simtek Corporation
and Hugh N. Chapman (9)
10.8 Share Exchange Agreement dated June 16, 2000 between Simtek
Corporation and WebGear Inc. (9)
10.9 Share Exchange Agreement dated July 31, 2000 between Simtek
Corporation and Jaskarn Johal and Kashmira S. Johal (10)
10.10 Asset Purchase Agreement between Simtek Corporation and WebGear, Inc.
(11)
10.11 Amendment to Asset Purchase Agreement between Simtek Corporation and
WebGear, Inc. (12)
10.12 Agreement and Plan of Merger among Simtek Corporation, W-DOT Group,
Inc. and Q-DOT, Inc. (13)
10.13 Employment Agreement between Simtek Corporation and Hugh N. Chapman
(14)
10.14 Technology Development, License and Product Agreement between Amkor
Technology and Simtek (16)
10.15 Manufacturing Services Agreement between Amkor Technology, Inc. and
Simtek Corp (16)
10.16 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 (17)
10.17 7.5% $1,000,000 Convertible Debenture between Simtek Corporation and
BSFSUS Special Opportunities Trust, PLC (17)
10.18 7.5% $1,000,000 Convertible Debenture between Simtek Corporation and
Renaissance Capital Growth & Income Fund III, Inc. (17)
10.19 7.5% $1,000,000 Convertible Debenture between Simtek Corporation and
Renaissance Capital US Growth & Income Trust, PLC (17)
10.20 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 (17)
10.21 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 (17)
10.22 Technology Development, License and Product Agreement between Amkor
Technology and Simtek - Amended September 2002 (18)
10.23 Assignment, dated February 21, 2003, of the Agreement(s) between
Simtek Corporation and Amkor Technology, Inc.(19)
10.24 Securities Purchase Agreement between Simtek Corporation and
Renaissance Capital Growth & Income Fund III, Inc. and Renaissance US
Growth and Investment Trust, PLC and BFSUS Special Opportunities
Trust, PLC(20)
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10.25 Form of $1.25 Stock Purchase Warrant(20)
10.26 Form of $1.50 Stock Purchase Warrant(20)
10.27 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) (21)
10.28 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 (22)
10.29 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) (22)
10.30 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) (22)
10.31 Share Purchase Agreement, dated May 4, 2005, by and between the
Company and Cypress Semiconductor Corporation (26)
10.32 Development and Production Agreement, dated May 4, 2005, by and
between the Company and Cypress Semiconductor Corporation (26)
10.33 Escrow Agreement, dated May 4, 2005, by and among the Company, Cypress
Semiconductor Corporation and U.S. Bank, National Association (26)
10.34 Stock Purchase Warrant, dated May 4, 2005, from the Company to Cypress
Semiconductor Corporation (26)
10.35 Registration Rights Agreement, dated May 4, 2005, by and between the
Company and Cypress Semiconductor Corporation (26)
10.37 Employment agreement by and between the Company and Harold Blomquist
(8)
10.38 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 (27)
10.39 Asset Purchase Agreement, dated August 30, 2005, by and among Hittite
Microwave Corporation, HMC Acquisition Corporation, the Company and
Q-DOT, Inc. (28)
10.40 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 (28)
10.41 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. (28)
13.1 Annual Report on Form 10-KSB for the fiscal year ended December 31,
2004 (24)
23.1 Consent of Independent Registered Public Accounting Firm
23.2 Consent of Holme Roberts & Owen LLP is included in Exhibit 5.1
24.1 Power of Attorney
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(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
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(9) Incorporated by reference to the Form SB-2 Registration Statement (Reg. No.
333-40988) filed with the Commission on July 7, 2000
(10) Incorporated by reference to the Form 8-K filed with the Commission on
August 14, 2000
(11) Incorporated by reference to the Form 8-K filed with the Commission on
October 13, 2000
(12) Incorporated by reference to the Company's Amendment No. 2 to From SB-2
Registration Statement (Reg. No. 333-40988)
(13) Incorporated by reference to the Company's Form 8-K filed with the March
23, 2001
(14) Incorporated by reference to the Form SB-2 Registration Statement Amendment
#3 (Reg. No. 333-60492) filed with the Commission on September 4, 2001
(15) Incorporated by reference to the Company's Form S-8 Registration Statement
(Reg. No. 333-73794) filed with the Commission on November 20, 2001
(16) Incorporated by reference to the Company's Annual Report on Form 10-KSB
filed with the Commission on March 27, 2002
(17) Incorporated by reference to the Company's Quarterly Report on Form 10-QSB
filed with the Commission on August 13, 2002
(18) Incorporated be reference to the Company's Quarterly Report on Form 10-QSB
filed with the Commission on November 8, 2002
(19) Incorporated by reference to the Company's Annual Report on Form 10-KSB
filed with the Commission on March 27, 2003
(20) Incorporated by reference from the Current Report on Form 8-K filed by the
Company with the SEC on November 12, 2003
(21) Incorporated by reference to the Company's Annual Report on Form 10-KSB
filed with the Commission on March 4, 2004
(22) Incorporated by reference from the Current Report on Form 8-K filed by the
Company with the Commission on October 12, 2004
(23) Incorporated by reference to the Company's Form S-8 Registration Statement
(Reg. No. 333-1210005) filed with the Commission on December 7, 2004
(24) 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
(25) Incorporated by reference to the Company's Form S-2 Registration Statement
(Reg. No. 333-123639) filed with the Commission on March 29, 2005
(26) Incorporated by reference to the Company's Current Report on Form 8-K filed
by the Company with the SEC on May 10, 2005
(27) Incorporated by reference to the Company's Current Report on Form 8-K filed
by the Company with the SEC on July 5, 2005
(28) Incorporated by reference to the Company's Current Report on Form 8-K filed
by the Company with the SEC on September 6, 2005
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 Securities Act and will be governed by the final
adjudication of such issue.
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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. 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.
The undersigned registrant hereby undertakes to, for determining any
liability under the Securities Act, treat each post-effective amendment that
contains a form of prospectus as a new registration statement for the securities
offered in the registration statement, and that offering of the securities at
that time as the initial bona fide offering of those securities.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-2 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 October 26,
2005.
Simtek Corporation,
a Colorado corporation
By: /s/Harold Blomquist
-----------------------------------
Harold Blomquist
Chief Executive Officer and
President
Pursuant to the requirements of the Securities Act of 1933, as amended,
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
October 26, 2005
/s/Brian Alleman
-----------------------------------------------------------
Brian Alleman, Secretary, Vice President and Chief
Financial Officer
October 26, 2005
* /s/Robert Keeley
-----------------------------------------------------------
Robert Keeley, Director
October 26, 2005
* /s/Alfred Stein
-----------------------------------------------------------
Alfred Stein, Director
October 26, 2005
* /s/Ronald Sartore
-----------------------------------------------------------
Ronald Sartore, Director
October 26, 2005
/s/Kimberley Carothers
-----------------------------------------------------------
Kimberley Carothers
Controller (Principal Accounting Officer)
October 26, 2005
* By /s/Harold Blomquist, Attorney in Fact
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