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As filed with the Securities and Exchange Commission on May 20, 2008 Registration No. 333-_________ |
UNITED STATES
SECURITIES AND EXCHANGE
COMMISSION
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FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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SIMTEK CORPORATION
(Exact Name of Registrant as Specified in its Charter)
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Delaware |
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84-1057605 |
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(State of Incorporation) |
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(I.R.S. Employer Identification No.) |
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4250 Buckingham Drive, #100
Colorado Springs, Colorado 80907
(Address of Principal Executive Offices)
Simtek Corporation 2007 Equity Incentive Plan
(Full Title of the Plan)
Harold Blomquist
Chief Executive Officer and President
Simtek Corporation
4250 Buckingham Drive #100
Colorado Springs, CO 80907
(719) 531-9444
(Name, Address and Telephone Number, Including Area Code, of Agent for Service)
Copies to:
Hendrik F. Jordaan, Esq.
Garth B. Jensen, Esq.
Holme Roberts & Owen LLP
1700 Lincoln Street, Suite 4100
Denver, CO 80203
(303) 861-7000
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Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b2 of the Exchange Act.
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Large accelerated filer ¨ |
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Accelerated filer ¨ |
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Non-accelerated filer ¨ (Do not check if smaller reporting company) |
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Smaller reporting company x |
CALCULATION OF REGISTRATION FEE
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Proposed |
Proposed |
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Common Stock, $0.0001 Par Value |
2,800,000 |
$2.09 |
$5,852,000 |
$230 |
(1)
This Registration Statement shall also cover any additional shares of Common Stock which become issuable by reason of any stock dividend, stock split, recapitalization or other similar transaction effected without the receipt of consideration which results in an increase in the number of the Registrant’s outstanding shares of common stock.
(2)
The offering price of $2.09 per share is estimated in accordance with Rule 457(h)(1) under the Securities Act solely for the purpose of computing the amount of the registration fee and is based upon the average of the high and low prices of the Registrant’s common stock on May 14, 2008, as reported on The Nasdaq Capital Market.
(3)
The registration fee for the securities registered hereby was calculated by multiplying the proposed maximum offering price by .0000393 in accordance with Section 6(b) of the Securities Act and the related rules.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents filed with the Securities and Exchange Commission (the “Commission”) are incorporated by reference into this Registration Statement:
a.
Our Annual Report on Form 10-K for the fiscal year ended December 31, 2007, filed on March 26, 2008;
b.
Our Current Reports on Form 8-K filed on February 20, 2008, February 22, 2008, March 21, 2008, April 14, 2008 and May 14, 2008;
c.
Our Quarterly Report on Form 10-Q for the fiscal quarter ended March 31, 2008, filed on May 15, 2008;
d.
The description of our common stock as set forth in our Registration Statement on Form 8-A filed on January 8, 2007; and
e.
All reports and other documents subsequently filed with the Commission by Simtek pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), prior to the filing of a post-effective amendment which indicates that all securities offered herein have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference in this Registration Statement and to be a part hereof from the date of filing of such documents, excluding any information furnished under Item 7.01 or Item 2.02 of any Current Report on Form 8-K.
Item 4. Description of Securities
Not applicable.
Item 5. Interests of Named Experts and Counsel
Not applicable.
Item 6. Indemnification of Directors and Officers
Under our Certificate of Incorporation and Bylaws, we are required to indemnify former and current directors and officers, and may indemnify employees and agents, but only if such person seeking indemnification has satisfied the statutory standard of conduct. To satisfy the statutory standard of conduct, a person must have acted in good faith and in a manner the person reasonably believed to be in or not opposed to the best interests of the corporation. In addition, in any criminal action or proceeding, the person must also have had no reasonable cause to believe the person’s conduct was unlawful. Regardless of standards of conduct, indemnification of expenses for directors and officers is mandatory under Section 145 of the Delaware General Corporation Law (“DGCL”) to the extent they are successful on the merits in defending a proceeding. Under Section 145 of the DGCL, in derivative suits (i.e., suits by or in the right of the corporation), indemnification is only available for expenses and attorneys’ fees incurred in defending or settling a suit and only in circumstances where there has been no adjudication of monetary liability to the corporation.
As permitted by Section 102(b)(7) of the DGCL, our Certificate of Incorporation provides that, to the fullest extent permitted by the DGCL, a director of the corporation shall not be personally liable to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director except for liability for (i) any breach of the director’s duty of loyalty to the corporation or its stockholders, (ii) acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) willful or negligent conduct in paying dividends or repurchasing or redeeming stock out of funds that are not lawfully available, in violation of Section 174 of the DGCL, or (iv) any transaction from which the director derives an improper personal benefit.
We maintain insurance policies under which our directors and officers are insured, within the limits and subject to the limitations of the policies, against expenses in connection with the defense of actions, suits or proceedings, and certain liabilities that might be imposed as a result of such actions, suits or proceedings, to which they are parties by reason of being or having been a director or officer of Simtek.
Item 7. Exemption from Registration Claimed
Not applicable.
Item 8. Exhibits
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Exhibit |
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4.1 |
Simtek Corporation 2007 Equity Incentive Plan (filed herewith) |
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5.1 |
Opinion of Holme Roberts & Owen LLP (filed herewith) |
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23.1 |
Consent of Hein & Associates LLP, Independent Registered Public Accounting Firm (filed herewith) |
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23.2 |
Consent of Holme Roberts & Owen LLP (included in Exhibit 5.1) |
Item 9. Undertakings
The undersigned registrant hereby undertakes:
(1)
To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
(i)
To include any prospectus required by Section 10(a)(3) of the 1933 Act.
(ii)
To reflect in the prospectus any facts or events arising after the effective date of this Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in this Registration Statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in this Registration Statement; and
(iii)
To include any material information with respect to the plan of distribution not previously disclosed in this Registration Statement or any material change to such information in this Registration Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the registrant pursuant to Section 13 or 15(d) of the Exchange Act that are incorporated by reference in this Registration Statement.
(2)
That, for the purpose of determining any liability under the Securities Act of 1933, as amended, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(3)
To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
(b)
The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the registrant’s annual report pursuant to Section 13(a) or 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to 15(d) of the Exchange Act) that is incorporated by reference in this Registration Statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(c)
Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act 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 the 20th day of May, 2008.
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SIMTEK CORPORATION | |
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By: |
/s/ Harold Blomquist |
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Chief Executive Officer and President |
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.
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Signature |
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Title |
Date |
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/s/ Harold Blomquist |
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Harold Blomquist |
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Chief Executive Officer and |
May 20, 2008 |
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President |
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/s/ Brian Alleman |
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Secretary, Vice President and Chief |
May 20, 2008 |
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Brian Alleman |
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Financial Officer |
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/s/ Kim Carothers |
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Controller (Principal Accounting |
May 20, 2008 |
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Kim Carothers |
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Officer) |
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/s/ Alfred Stein |
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Director |
May 20, 2008 |
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Alfred Stein |
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/s/ Philip Black |
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Director |
May 20, 2008 |
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Philip Black |
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/s/ John Hillyard |
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Director |
May 20, 2008 |
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John Hillyard |
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