SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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Form S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
SIMTEK CORPORATION
(Exact name of registrant as specified in its charter)
Colorado 84-1057605
(State of incorporation) (I.R.S. Employer
Identification No.)
4250 Buckingham Dr. #100
Colorado Springs, Colorado 80907
(Address of Principal Executive Offices) (Zip Code)
Simtek 1994 Non-Qualified Stock Option Plan
Q-DOT Group, Inc. Incentive Stock Option Plan of March 1998 adopted by Simtek
(Full title of the plan)
Douglas M. Mitchell
President, Chief Executive Officer and Chief Financial Officer (acting)
Simtek Corporation
4250 Buckingham Dr. #100
Colorado Springs, CO 80907
(719) 531-9444
(Name, address and telephone number of agent for service)
CALCULATION OF REGISTRATION FEE
Title of securities Amount to be Proposed maximum Proposed maximum Amount of
to be registered registered(1) offering price aggregate offering registration fee
per share price
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Common Stock, par value $.01 per share:
Issuable pursuant to options
previously granted under the Simtek
1994 Non-Qualified Stock Option
Plan 3,316,557 shares $0.60 (2) $1,989,934 (2) $525
To be issued pursuant to the Simtek
1994 Non-Qualified Stock Option
Plan 1,683,443 shares $0.37 (3) $ 622,874 (3) $164
Issuable pursuant options previously
granted under the Q-DOT Group, Inc.
Incentive Stock Plan of March 1998
adopted by Simtek 99,532 shares $1.84 (2) $ 183,139 (2) $ 48
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TOTAL $2,795,947 $737
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(1) In addition, pursuant to Rule 416(c) under the Securities Act of 1933,
this registration statement also covers an indeterminate amount of
interests to be offered or sold pursuant to the employee benefit plans
described herein.
(2) Computed in accordance with Rules 457(c) and 457(h) under the
Securities Act of 1933 solely for purposes of calculating the
registration fee based on the exercise price of the outstanding options
under the Simtek 1994 Non-Qualified Stock Option Plan, which has
exercise price ranges from $0.25 to $1.50, and the Q-DOT Group, Inc.
Incentive Stock Option Plan of March 1998 adopted by Simtek, which has
exercise price ranges from $1.79 to $1.89, as applicable.
(3) Computed in accordance with Rules 457(c) and 457(h) under the
Securities Act of 1933 solely for purposes of calculating the
registration fee based on the average of the bid and asked price of our
common stock on the OTC Bulletin Board on November 14, 2001.
PART II Information Required in the Registration Statement
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents and information previously filed with the
Securities and Exchange Commission are hereby incorporated by reference in this
Registration Statement:
(1) Our Annual Report on Form 10-KSB for the fiscal year ended December
31, 2000.
(2) Our Quarterly Report on Form 10-QSB for the three month period ended
March 31, 2001.
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(3) Our Quarterly Report on Form 10-QSB for the three month period ended
June 30, 2001.
(4) Our Quarterly Report on Form 10-QSB for the three month period ended
September 30, 2001.
(5) The description of the registrant's common stock, par value $.01 per
share ("Common Stock"), contained in the registrant's registration
statement for such Common Stock under the Exchange Act, including any
amendment or report filed for the purpose of updating such
description, is hereby incorporated by reference.
All documents filed after the date of this Registration Statement by the
registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities
Exchange Act of 1934, prior to the filing of a post-effective amendment which
indicates that all securities offered have been sold or which deregisters all
securities then remaining, unsold. shall be deemed incorporated into this
Registration Statement and to be part hereof from the date of filing such
documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The registrant's articles of incorporation contain a provision limiting the
liability of the registrant's directors to the fullest extent permitted under
Colorado law. Under Colorado law, a corporation may limit the personal liability
of a director to the corporation and its shareholders for monetary damages for
breaches of fiduciary duty as a director except for (a) breaches of the
director's duty of loyalty, (b) acts or omissions not in good faith or which
involve intentional misconduct or a knowing violation of the law, (c) certain
acts specified by Colorado law, and (d) transactions from which the director
derives an improper benefit.
Colorado law also grants corporations incorporated under the laws of
Colorado the right to indemnify their directors, officers, employees and agents
in accordance with the provisions thereof. The registrant's articles of
incorporation provide for extensive indemnification of the registrant's
directors, officers, employees and agents.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
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ITEM 8. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
4.1 Agreement and Plan of Merger, between registrant, Q-DOT Group, Inc.,
and Q-DOT, Inc.(1)
4.2 Q-DOT Group, Inc. Incentive Stock Option Plan of March 1998 adopted by
Simtek
4.3 Form of Incentive Stock Option Agreement
4.4 Simtek 1994 Non-Qualified Stock Option Plan(2)
4.5 Form of option agreement between registrant and participants in the
Simtek 1994 Non-Qualified Stock Option Plan(2)
4.6 First Amendment to Simtek 1994 Non-Qualified Stock Option Plan(2)
4.7 Second Amendment to Simtek 1994 Non-Qualified Stock Option Plan(2)
4.8 Third Amendment to Simtek 1994 Non-Qualified Stock Option Plan(3)
4.9 Fourth Amendment to Simtek 1994 Non-Qualified Stock Option Plan
4.10 Fifth Amendment to Simtek 1994 Non-Qualified Stock Option Plan
4.11 Sixth Amendment to Simtek 1994 Non-Qualified Stock Option Plan 5.1
Opinion and consent of Holme Roberts & Owen LLC regarding legality of
issuance
23.1 Consent of Hein + Associates LLP
23.2 Consent of Holme Roberts & Owen LLC (included in Exhibit 5.1)
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(1) Incorporated by reference to the Company's Form 8-K (Reg. No. 000-19027)
filed with the Commission on March 23, 2001.
(2) Incorporated by reference to the Company's Form S-8 Registration Statement
(Reg. No. 33-98294) filed with the Commission on October 19, 1995.
(3) Incorporated by reference to the Company's Form S-8 Registration Statement
(Reg. No. 333-76481) filed with the Commission on April 16, 1999.
The registrant undertakes to submit, or has submitted, the Simtek 1994
Non-Qualified Stock Option Plan and the Q-DOT Group, Inc. Incentive Stock Option
Plan of March 1998 adopted by Simtek and any amendments thereto to the Internal
Revenue Service ("IRS") in a timely manner and has made or will make the changes
required by the IRS in order to qualify the Plan.
ITEM 9. UNDERTAKINGS.
The 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;
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(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;
provided, however, that paragraphs (I) and (II) above do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the registrant pursuant to section 13 or section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference 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 that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to section 13(a) of section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
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 such Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than 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 such Act and will be governed by the final adjudication
of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Colorado Springs, State of Colorado, on November 19,
2001
SIMTEK CORPORATION
By /s/ Douglas M. Mitchell
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Douglas M. Mitchell
President, Chief Executive Officer
and Chief Financial Officer(acting)
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 date indicated.
Signature Title Date
--------- ----- ----
/s/ Douglas M. Mitchell
---------------------------- President, Chief Executive November 19, 2001
Douglas M. Mitchell Officer, Chief Financial
Officer (acting) and Director
/s/ John Heightley
---------------------------- Director November 19, 2001
John Heightley
/s/ Robert Keeley
---------------------------- Director November 19, 2001
Robert Keeley
/s/ Kimberley Carothers
---------------------------- Controller November 19, 2001
Kimberley Carothers
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SIMTEK CORPORATION
FORM S-8
EXHIBIT INDEX
Number Description
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4.1 Agreement and Plan of Merger, between registrant, Q-DOT Group, Inc.,
and Q-DOT, Inc.(1)
4.2 Q-DOT Group, Inc. Incentive Stock Option Plan of March 1998 adopted by
Simtek
4.3 Form of Incentive Stock Option Agreement
4.4 Simtek 1994 Non-Qualified Stock Option Plan(2)
4.5 Form of option agreement between registrant and participants in the
Simtek 1994 Non-Qualified Stock Option Plan(2)
4.6 First Amendment to Simtek 1994 Non-Qualified Stock Option Plan(2)
4.7 Second Amendment to Simtek 1994 Non-Qualified Stock Option Plan(2)
4.8 Third Amendment to Simtek 1994 Non-Qualified Stock Option Plan(3)
4.9 Fourth Amendment to Simtek 1994 Non-Qualified Stock Option Plan
4.10 Fifth Amendment to Simtek 1994 Non-Qualified Stock Option Plan
4.11 Sixth Amendment to Simtek 1994 Non-Qualified Stock Option Plan 5.1
Opinion and consent of Holme Roberts & Owen LLC regarding legality of
issuance
23.1 Consent of Hein + Associates LLP
23.2 Consent of Holme Roberts & Owen LLC (included in Exhibit 5.1)
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(1) Incorporated by reference to the Company's Form 8-K (Reg. No. 000-19027)
filed with the Commission on March 23, 2001.
(2) Incorporated by reference to the Company's Form S-8 Registration Statement
(Reg. No. 33-98294) filed with the Commission on October 19, 1995.
(3) Incorporated by reference to the Company's Form S-8 Registration Statement
(Reg. No. 333-76481) filed with the Commission on April 16, 1999.
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