Filed Pursuant to Rule 424(b)(5)
Registration
No. 333-132180
PROSPECTUS
DATED JUNE 6, 2007
11,392,457
Shares
SIMTEK
CORPORATION
Common
stock
This
prospectus is being used to register 11,392,457 shares of Simtek Corporation’s
common stock being offered by the selling security holders, which include
certain of our current and former officers and directors. Of the shares offered
by this prospectus 8,161,672 shares are currently issued and outstanding,
1,227,273 shares are issuable upon conversion of convertible debentures at
$2.20
per share and 2,003,512 shares are issuable upon exercise of outstanding stock
purchase warrants with exercise prices ranging from $2.65 to $15.00 per
share.
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 18. 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, although we will receive
the
exercise price payable to us upon the exercise of the stock purchase warrants.
Our
common stock is listed on The NASDAQ Capital Market under the symbol “SMTK”. On
June 4, 2007, the closing sale price of our common stock was $5.40 per
share.
See
“Risk Factors” beginning on page 4 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 June 6, 2007.
____________________
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This
summary highlights selected information from this prospectus and the documents
incorporated by reference into this prospectus. This summary 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
Simtek
Corporation is a fabless semiconductor company that designs and markets
high-speed non-volatile semiconductor memory products for use in a variety
of
systems including RAID servers, storage arrays, GPS navigational systems,
industrial controllers, robotics, copiers, avionics, metering, and networking
and broadcast equipment. The company is headquartered in Colorado Springs,
Colorado, and was founded in 1987. In addition, Simtek has design and sales
offices in San Diego, California, and Dresden, Germany.
Our
principal executive office is located at 4250 Buckingham Dr. #100; Colorado
Springs, Colorado 80907. Our telephone number is 719-531-9444.
The
Offering
This
offering relates to a total of 2,351,155 shares of our common stock that
may be
resold by the selling security holders. Of the shares offered by this prospectus
1,153,171 shares are currently issued and outstanding and 1,197,984 shares
are
issuable upon exercise of outstanding stock purchase warrants with exercise
prices ranging from $3.30 to $7.50 per share. The shares offered include
103,356
shares held by (or issuable to) various of our officers and 58,230 shares
held
by (or issuable to) affiliates of one of our directors. See “Selling Security
Holders.”
We
will
receive no proceeds from this offering.
You
should consider carefully the following risk factors, as well as the other
information in this prospectus and the documents incorporated by reference
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 and the documents incorporated by reference 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 as well as support future revenue
growth
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.
In
recent
months, we have experienced significant revenue growth. In order to support
that
growth, we must order more silicon wafers than we have historically. The cash
required for inventory purchases, including silicon wafers, has been greater
than the cash generated from sales. Therefore, our cash requirements have been
difficult to maintain. We may need more capital in the future to develop new
products and support higher revenue. We cannot guarantee 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 purchase adequate amounts of inventory to support revenue growth
or
to develop and market new products, causing our financial position and stock
price to deteriorate.
We
have a history of operating losses
We
began
business in 1987. Through March 31, 2006, we had accumulated losses of
approximately $48.7 million. Since July 1, 2000 and through September 30, 2006,
we realized net losses. While we posted a net profit for the fourth quarter
of
2006 and an ex-item profit for the first quarter of 2007, we may experience
net
operating losses in the future, which could 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 $2.1 million debenture and foreclose on
the
collateral that we granted to it
Our
loan
agreement with Renaissance Capital Growth and Income Fund III, Inc., Renaissance
US Growth Investment Trust PLC and US Special Opportunities Trust PLC, or the
RENN Capital Group, formerly Renaissance Capital Group, Inc., contains various
financial covenants. As of March 31, 2007, we were not in compliance with one
of
the covenants set forth in the loan agreement, which relates to the interest
coverage ratio. On May 4, 2007, the Company received a waiver from complying
with this covenant through April 1, 2008. 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.
If
we cannot receive silicon wafers we require to manufacture our products from
our
vendors 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 non-volatile
memory products from two vendors, Chartered Semiconductor Manufacturing Plc.
of
Singapore, and Dongbu in Korea. Due to the volatility of the semiconductor
market, we have limited 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 to achieve our revenue objectives has escalated.
If
we are unable to obtain the products and pricing we need from these vendors,
our
business could suffer.
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 drive our manufacturing costs down and secure
the production of sufficient product. Semiconductor manufacturing depends on
many factors that are complex and beyond our control and often beyond the
control of our subcontractors. These factors include contaminants 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 semiconductor memories that our subcontractors are able
to
make in a production run. If our subcontractors produce fewer of our products,
our revenues may decline.
Delays
in manufacturing may negatively impact our revenue and net
income
It
takes
approximately four months for our subcontractors to manufacture our
semiconductor products. Any delays in receiving silicon wafers or completed
products 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. These delays could occur
at
any time and would adversely affect our net income.
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 is 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.
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 that we will be
successful in developing new products or whether any products that we do develop
will satisfy the above factors.
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.
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 production and development agreement with Cypress
Semiconductor Corporation to jointly develop an “S8” 0.13-micron
silicon-oxide-nitride-oxide-silicon (SONOS) nonvolatile memory production
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.
Certain
of our Registration Rights Agreements provide for penalties if we fail to follow
certain procedures or maintain an effective registration related to the shares
purchased by such investors
The
Registration Rights Agreement entered into as part of the December 30, 2005
Securities Purchase Agreement amounting to $11,000,000 contained a cash penalty
provision if certain procedures are not followed or an effective Registration
Statement is not maintained for the shares purchased by investors in such
transaction. The cash penalties are 2% of the proceeds for each month that
a
breach occurs. We cannot assure you that we will be able to maintain such
effective Registration Statement.
The
Registration Rights Agreement entered into as part of the September 21, 2006
Securities Purchase Agreement amounting to $4,555,000 contained a provision
whereby the investors therein would receive certain amounts of penalty shares
if
certain procedures are not followed or an effective Registration Statement
is
not maintained for the shares purchased by the investors. The penalties are
2%
of the shares purchased for each month that a breach occurs. We cannot assure
you that we will be able to follow the required procedures or obtain or maintain
such effective Registration Statement.
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. 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 revenue and operating results.
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
own 15
U.S. patents and one German patent. We have also applied inside and 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,
that they will provide us with desired 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 directed to
alternate or comparable technologies.
Portions
of our intellectual property are retained as trade secrets. 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.
If
our products and technology infringe on third party patents, our product sales
or
gross margins 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 would 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 could 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. We have received no further notification
from this corporation. While there can be no assurances, if there are any
infringements, we believe we would 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.
Sales to customers located outside of the United States for the years ended
December 31, 2006, 2005 and 2004 were 73%, 74% and 71%, respectively. 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 200,000 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 making
such attempts more difficult to achieve or more costly. Given our present
capital requirements, it is possible that we could raise capital through the
sale of preferred stock in the future.
Our
certificate of incorporation and Delaware law may operate as anti-takeover
protections and thus may discourage takeover attempts and/or depress the market
price of our common stock
We
have
opted to be governed, in our Delaware certificate of incorporation, by Section
203 of the Delaware General Corporation Law, which provides for a three-year
moratorium on certain business combination transactions with “interested
stockholders” (generally, persons who beneficially own 15% or more of the
corporation’s outstanding voting stock). Although we believe that Section 203
will encourage any potential acquirer to negotiate with our board of directors,
Section 203 also might have the effect of limiting the ability of a potential
acquirer to make a two-tiered bid for the company in which all stockholders
would not be treated equally. In addition, Section 203 gives the board the
power
to reject a proposed business combination in certain circumstances, even though
a potential acquirer may be offering a substantial premium for our common stock
over the then-current market price. Section 203 would also discourage certain
potential acquirers who are unwilling to comply with its provisions.
Because
a
proposed amendment to our certificate of incorporation may not be submitted
to a
vote of shareholders without the approval of the board of directors, amending
or
removing any provisions in our certificate of incorporation that have
anti-takeover effects requires the consent of the board of directors, which
in
turn may have anti-takeover effects.
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, 2007. 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, 2007, 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, 2007 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.
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.
This
prospectus covers 11,392,457 shares. All of these shares are being offered
by
the selling security holders, which include some of our current and former
officers and directors. We will not receive any proceeds from the sale of the
shares.
Beneficial
ownership is determined in accordance with the rules and regulations of the
Securities and Exchange Commission. Under these rules, a person is deemed to
beneficially own a security if that person has or shares voting power or
investment power with respect to that security, or has the right to acquire
beneficial ownership of that security within 60 days, including through the
exercise of any option, warrant or other right or the conversion of any other
security. Percentage of beneficial ownership of common stock prior to and after
the offering is based on 16,501,906
shares of common stock outstanding as of May
14,
2007. Securities that are exercisable or convertible into shares of our common
stock within 60 days of the date of this prospectus are deemed outstanding
for
computing the percentage of the person or entity holding such securities but
are
not deemed outstanding for computing the percentage of any other person or
entity.
The
following table sets forth information about the selling security holders who
are selling shares of our common stock pursuant to this prospectus. Information
about the natural persons who beneficially own our securities held by the
entities listed in the table below has been provided to us by these entities.
|
Name
and Address of Selling Security Holders
|
Number
of
Shares
Beneficially Owned Before Offering
|
Number
of
Shares
Offered
|
Number
of
Shares
Following
the
Offering(1)
|
Percentage
of
Class
Following
the
Offering(1)
|
|||||||||
|
Cypress
Semiconductor Corporation (2)
3901
North First Street
San
Jose, CA 95134-1599
|
3,179,644
|
2,179,644
|
1,000,000
|
5.71
|
%
|
||||||||
|
Crestview
Capital Master LLC (3)
95
Revere Drive, Suite A
Northbrook,
IL 60062
|
2,687,463
|
2,429,644
|
257,819
|
1.56
|
%
|
||||||||
|
Big
Bend XXVII Investments, L.P. (4)
3401
Armstrong Avenue
Dallas,
TX 75205-4100
|
1,553,956
|
1,437,500
|
116,456
|
*
|
|||||||||
|
Toibb
Investment LLC (5)
6355
Topanga Canyon Blvd., Suite 335
Los
Angeles, CA 91367
|
1,125,000
|
1,125,000
|
0
|
*
|
|||||||||
|
Renaissance
Capital Growth & Income Fund III, Inc. (6)
c/o
RENN Capital Group
8080
N. Central Expressway, Suite 210-LB59
Dallas,
TX 75206
|
1,109,097
|
853,780
|
255,317
|
1.52
|
%
|
||||||||
|
Renaissance
US Growth Investment Trust PLC (7)
c/o
RENN Capital Group
8080
N. Central Expressway, Suite 210-LB59
Dallas,
TX 75206
|
1,107,940
|
853,780
|
254,160
|
1.54
|
%
|
||||||||
|
US
Special Opportunities Trust PLC (8)
c/o
RENN Capital Group
8080
N. Central Expressway, Suite 210-LB59
Dallas,
TX 75206
|
1,007,176
|
853,780
|
153,396
|
*
|
|||||||||
|
Name
and Address of Selling Security Holders
|
Number
of
Shares
Beneficially Owned Before Offering
|
Number
of
Shares
Offered
|
Number
of
Shares
Following
the
Offering(1)
|
Percentage
of
Class
Following
the
Offering(1)
|
|||||||||
|
SF
Capital Partners Ltd. (9)
c/o
Stark Offshore Management, LLC
3600
South Lake Drive
St.
Francis, WI 53235
|
1,068,965
|
1,217,136
|
0
|
*
|
|||||||||
|
Harold
Blomquist
3935
Serenity Place
Colorado
Springs, CO 80908
|
312,387
(10
|
)
|
95,000
|
217,387
|
1.30
|
%
|
|||||||
|
C.
E. Unterberg, Towbin (11)
275
Middlefield Rd.
Menlo
Park, CA 94025
|
106,250
|
106,250
|
0
|
*
|
|||||||||
|
Straus
GEPT Partners, LP (12)
605
Third Avenue
New
York, NY 10158
|
102,595
|
31,867
|
70,728
|
*
|
|||||||||
|
Straus
Partners, LP (12)
605
Third Avenue
New
York, NY 10158
|
87,595
|
16,867
|
70,728
|
*
|
|||||||||
|
Merriman
Curhan Ford & Co. (13)
601
Montgomery Street, 18th Floor
San
Francisco, CA 94111
|
38,700
|
38,700
|
0
|
*
|
|||||||||
|
Zentrum
Mikroelektronik Dresden AG (14)
Grenzstrasse
28
D-01109
Dresden, Germany
|
29,709
|
29,709
|
0
|
*
|
|||||||||
|
Bluegrass
Growth Fund LP (15)
122
East 42nd St., Suite 2606
New
York, NY 10168
|
25,800
|
25,800
|
0
|
*
|
|||||||||
|
Bluegrass
Growth Fund LTD (16)
Walker
House
George
Town
Grand
Cayman
Cayman
Islands
|
25,800
|
25,800
|
0
|
*
|
|||||||||
|
Douglas
Mitchell
1725
Sunshine Circle
Woodland
Park, CO 80863
|
22,959
|
9,750
|
13,209
|
*
|
|||||||||
| * |
Less
than 1%
|
| (1) |
For
some of the selling security holders, we have registered, under a
separate
registration statement, some or all of the shares included in the
columns
entitled, “Number of Shares Following the Offering” and “Percentage of
Class Following the Offering.”
|
| (2) |
Cypress
Semiconductor Corporation is a publicly traded company listed on
the New
York Stock Exchange; no one natural person owns more than 5% of Cypress’
common stock.
|
| (3) |
Crestview
Capital Partners, LLC (“Crestview Partners”) serves as the investment
manager or general partner of Crestview Capital Master, LLC (“Crestview”),
and as such has been granted investment discretion over investments
including the common stock owned by Crestview. As a result of its
role as
investment manager to Crestview, Crestview Partners may be deemed
to be
the beneficial owner, as defined in Rule 13d-3 under the Securities
Exchange Act of 1934, of Common Stock held by Crestview. However,
Crestview Partners does not (except indirectly as the general partner
of
Crestview) have the right to receive any dividends from, or the proceeds
from the sale of, the Common Stock held by Crestview and disclaims
any
ownership associated with such rights. Currently, Stewart Flink,
Robert
Hoyt and Daniel Warsh, in their capacity as managers of Crestview
Partners, have delegated authority regarding the portfolio management
decisions of Crestview Partners with respect to the Common Stock
owned by
Crestview. None of such persons has any legal right to maintain such
delegated authority. As a result of such delegated authority, Messrs.
Flink, Hoyt and Warsh may be deemed to be the beneficial owners of
Common
Stock held by Crestview. However, neither of Messrs. Flink, Hoyt
and Warsh
has any right to receive any dividends from, or the proceeds from
the sale
of, the Common Stock held by Crestview and disclaim beneficial ownership
of such shares of Common Stock.
|
| (4) |
The
limited partners of Big Bend XXVII Investments, L.P. are Mr. Morton
H.
Meyerson and Marti H. Meyerson EDS Trust, each of which controls
49.5% of
Big Bend XXVII Investments, L.P. The general partner of Big Bend
XXVII
Investments, L.P. is 2M Companies, Inc., which is controlled by Mr.
Morton
H. Meyerson.
|
| (5) |
The
natural person who beneficially owns the securities held by Toibb
Investment LLC is Harris Toibb.
|
| (6) |
Renaissance
Capital Growth & Income Fund III, Inc. is the beneficial owner of the
shares indicated. RENN Capital Group, Inc. is the investment adviser
to
Renaissance Capital Growth & Income Fund III, Inc. and has shared
voting power and dispositive power over the shares. Russell Cleveland
is
President of RENN Capital Group, Inc.
|
| (7) |
Renaissance
US Growth Investment Trust PLC is the beneficial owner of the shares
indicated. RENN Capital Group, Inc. is the investment adviser to
Renaissance US Growth Investment Trust PLC and has shared voting
power and
dispositive power over the shares. Russell Cleveland is President
of RENN
Capital Group, Inc.
|
| (8) |
US
Special Opportunities Trust PLC is the beneficial owner of the shares
indicated. RENN Capital Group, Inc. is the investment adviser to
US
Special Opportunities Trust PLC and has shared voting power and
dispositive power over the shares. Russell Cleveland is President
of RENN
Capital Group, Inc.
|
| (9) |
Michael
A. Roth and Brian J. Stark exercise voting and investment authority
over
all of the shares beneficially owned by SF Capital Partners Ltd.,
but
disclaim beneficial ownership of such
shares.
|
| (10) |
Includes
2,320 shares of our common stock that Mr. Blomquist’s children personally
own and includes 207,196 shares issuable upon exercise of presently
exercisable options.
|
| (11) |
The
natural person that beneficially owns the securities held by C. E.
Unterberg, Towbin is Andrew Arno, Chief Executive Officer of C. E.
Unterberg, Towbin.
|
| (12) |
The
Managing Principal of each of Straus Partners, LP and Straus GEPT
Partners, LP is Mickey Straus.
|
| (13) |
The
natural person that beneficially owns the securities held by Merriman
Curhan Ford & Co. is John Hiestand, Chief Financial Officer of
Merriman Curhan Ford & Co.
|
| (14) |
The
shareholders of Zentrum Mikroelektronik Dresden AG (“ZMD“) are Global ASIC
GmbH (83.6% shareholder), State of Saxony (10% shareholder and a
governmental agency) and IKB Private Equity GmbH (6.4% shareholder
and a
100% subsidiary of Deutsche Industriebank AG (IKB), a German public
company). The shareholders of Global ASIC GmbH are Sachsenring
Automobiltechnik AG i.L. (37.4% shareholder), WGZ Initialtivkapital
GmbH
(30.8% shareholder and an affiliate of WGZ Bank, a German mutual
savings
bank), Millenium Capital Fonds EINS GmbH (24.19% shareholder) and
three
minority financial investment companies (who collectively own the
remaining 7.61%). There are no natural persons that beneficially
own ZMD
shares that have a pecuniary interest in Simtek shares equal to or
greater
than 1% of the outstanding Simtek common stock. The business affairs
of
ZMD are generally controlled by its management board and supervisory
board. ZMD's management board consists of Thilo von Selchow, ZMD's
Chief
Executive Officer and President, and Konrad Herre, ZMD's Chief Operating
Officer, and Thomas Hoetzel, ZMD's Chief Technical Officer. ZMD’s
supervisory board consists of Gerhard Fettweis, Carl-Peter Forster
and
Michael Fraedrich. Both the management board and the supervisory
board
require majority approval to act. The management board has sole voting
discretion over the shares of Simtek common stock owned by ZMD. The
management board also has investment discretion over the shares of
Simtek
common stock owned by ZMD subject to prior approval of such discretion
by
the supervisory board.
|
| (15) |
Bluegrass
Growth Fund Partners, LLC is the general partner of Bluegrass Growth
Fund
LP. By virtue of such relationship, Bluegrass Growth Fund Partners,
LLC
may be deemed to have voting and dispositive power over the shares
owned
by Bluegrass Growth Fund LP. Bluegrass Growth Fund Partners, LLC
disclaims
beneficial ownership of such shares. Mr. Brian Shatz has delegated
authority from the partners of Bluegrass Growth Fund Partners, LLC
with
respect to the shares of common stock owned by Bluegrass Growth Fund
LP.
Mr. Shatz may be deemed to have voting and dispositive power over
the
shares of common stock owned by Bluegrass Growth Fund LP. Mr. Shatz
disclaims beneficial ownership of such shares of our common stock
and has
no legal right to maintain such delegated authority.
|
| (16) |
Mr.
Brian Shatz is a director of Bluegrass Growth Fund LTD and has delegated
authority from the shareholders of Bluegrass Growth Fund LTD with
respect
to the shares of common stock owned by Bluegrass Growth Fund LTD.
Mr.
Shatz may be deemed to have voting and dispositive power over the
shares
of common stock owned by Bluegrass Growth Fund LTD. Mr. Shatz disclaims
beneficial ownership of such shares of our common stock and has no
legal
right to maintain such delegated
authority.
|
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 maturity date of June 28, 2009
and
originally had a conversion rate of $0.312 (pre-reverse split), which would
have
resulted in 9,615,384 (pre-reverse split) shares being issued upon conversion.
In connection with the sale of $11,000,000 of our common stock on December
30,
2005, instead of lowering the conversion price of the 2002 convertible
debentures, as required by the terms of the 2002 convertible debentures, from
$0.312 (pre-reverse split) per share to $0.16 (pre-reverse split) per share
as a
result of the December 30, 2005 offering at $0.16 (pre-reverse split) per share,
we agreed with the RENN Capital Group that the conversion price would only
be
lowered to $0.22 (pre-reverse split) per share as a result of the December
30,
2005 offering. Upon completion of the reverse split on October 5, 2006, the
conversion price was increased from $0.22 to $2.20. Consequently, the number
of
shares issuable upon conversion of the 2002 debentures is 1,227,273 (which
number takes into account the conversion into common stock, on or around July
28, 2006, of $100,000 of the principal amount by each of Renaissance Capital
Growth & Income Fund III, Inc., Renaissance US Growth Investment Trust PLC
and US Special Opportunities Trust PLC). Also on December 30, 2005, we issued
937,500 shares of common stock to the RENN Capital Group in exchange for
$1,500,000. On November 7, 2003, we received $1,500,000 from the RENN Capital
Group in return for issuing 165,201 shares of our common stock and warrants
to
acquire 75,000 shares of our common stock. These warrants have 5-year terms
and
exercise prices of $12.50 per share for 37,500 shares and $15.00 per share
for
37,500 shares. On June 28, 2005, we issued warrants (with a 5-year term) to
purchase 20,000 shares of our common stock with an exercise price of $5.00
per
share to the RENN Capital Group in exchange for a waiver of certain provisions
relating to the 7.5% debentures. Of the 11,392,457 shares that we are
registering in this prospectus, 2,561,340 shares relate to these July 1, 2002,
November 7, 2003, June 28, 2005 and December 30, 2005 transactions. Mr. Robert
Pearson, holds the position of Senior Vice President of RENN Capital Group,
Inc.
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
515,996 shares of our common stock and warrants (with 5-year terms) to acquire
257,999 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 (with
5-year terms) to acquire 38,700 shares of our common stock. The warrants issued
to Merriman Curhan Ford & Co. had an exercise price of $0.627 per share
prior to the reverse split and, as a result of the reverse split, now have
an
exercise price of $6.27 per share. Also, following the reverse split, the new
number of warrants issued to Merriman Curhan Ford & Co. is 38,700. The
warrants issued to SF Capital Partners Ltd., Bluegrass Growth Fund LP and
Bluegrass Growth Fund LTD originally had an exercise price of $0.627
(pre-reverse split) per share. In connection with the sale of $11,000,000 of
our
common stock on December 30, 2005, we agreed with Bluegrass Growth Fund LP,
Bluegrass Growth Fund LTD and SF Capital Partners Ltd. that in exchange for
their waiver of certain participation rights held by them in connection with
the
December 30, 2005 offering, the exercise price of their warrants to acquire
257,999 shares of our common stock would be lowered from $0.627 (pre-reverse
split) per share to $0.265 (pre-reverse split) per share. As a result of the
reverse split on October 5, 2006, the exercise price of these warrants has
increased from $0.265 per share to $2.65 per share. Also on December 30, 2005,
we issued 625,000 shares to SF Capital Partners Ltd. in exchange for $1,000,000.
As of the date of this prospectus, SF Capital Partners Ltd. owns 1,010,737
shares as a result of the October 12, 2004 and December 30, 2005 transactions,
and has a warrant to purchase 206,399 shares with an exercise price of $2.65
per
share as a result of the October 12, 2004 transaction. By its terms, the warrant
issued to SF Capital Partners Ltd. may not be exercised if the exercise would
cause SF Capital Partners Ltd. to be a 5% or more holder of all of our
outstanding common stock; however, SF Capital Partners Ltd. may waive such
restriction on 61 days notice to us. Given the number of shares of our common
stock that SF Capital Partners Ltd. holds as of the date of this prospectus,
SF
Capital Partners Ltd. cannot exercise such warrant unless it waives the
restriction and gives us 61 days notice of the waiver; as such, the 206,399
shares issuable under the warrant are not included in any of the columns in
SF
Capital Partner Ltd.’s entry in the Selling Security Holder table above.
1,307,436 of the shares that we are registering relate to the October 12, 2004
and December 30, 2005 transactions with, as applicable, SF Capital Partners
Ltd., Bluegrass Growth Fund LP, Bluegrass Growth Fund LTD and Merriman Curhan
Ford & Co.
On
May 4,
2005, we received $4,000,000 from Cypress in return for issuing 674,082 shares
of our common stock and warrants to acquire 505,562 shares of our common stock.
The warrants have a 10-year term and an exercise price of $7.772 per share.
On
March 24, 2006, we entered into a License and Development Agreement with Cypress
pursuant to which, among other things, Cypress agreed to license certain
intellectual property from us to develop and manufacture standard, custom and
embedded nvSRAM products, we agreed with Cypress to co-develop certain nvSRAM
products and Cypress agreed to pay us $4 million in pre-paid royalties paid
in
certain installments. Under the License and Development Agreement, we issued
on
March 24, 2006 a warrant (with a 10-year term) granting Cypress the right to
purchase 1 million shares of our common stock. We also issued, upon payment
by
Cypress of an installment of pre-paid royalties on June 30, 2006, a warrant
(with a 10-year term) granting Cypress the right to purchase 500,000 shares
of
our common stock and we issued, upon payment by Cypress of an installment of
pre-paid royalties on December 18, 2006, a warrant (with a 10-
year
term
from the date of issuance) granting Cypress the right to purchase 500,000 shares
of our common stock. The exercise price for each of these warrants is $7.50
per
share. The shares underlying the warrant that we issued to Cypress on June
30,
2006 and December 31, 2006 are not being registered in this prospectus. Of
the
11,392,457 shares that we are registering in this prospectus, 2,179,644 shares
relate to the May 4, 2005 transaction with Cypress and the March 24, 2006
warrant issued to Cypress.
On
May
19, 2005 and pursuant to his employment agreement with us, Mr. Harold Blomquist,
our President and Chief Executive Officer, purchased 20,000 shares of our common
stock directly from us at a purchase price of $5.42 per share. On November
9,
2005 and pursuant to his employment agreement with us, Mr. Blomquist purchased
27,500 shares of our common stock directly from us at a purchase price of $2.98
per share. In each case, the purchase price was determined by calculating the
average close price for the five trading days prior to the purchase date. On
January 20, 2006 and also pursuant to his employment agreement with us, we
issued an additional 47,500 shares of our common stock to Mr. Blomquist for
no
additional consideration to match his previous stock purchases.
Mr.
Douglas Mitchell was our President, Chief Executive Officer and Chief Financial
Officer (acting) until his resignation from Simtek effective May 9, 2005.
Pursuant to the terms of Mr. Mitchell's separation agreement incident to his
resignation, we issued to Mr. Mitchell 15,000 shares of our common stock on
June
15, 2005 and 5,000 shares of our common stock on November 25, 2005. 115,000
of
the shares that we are registering relate to these two agreements with Mr.
Blomquist and Mr. Mitchell.
On
December 30, 2005, we issued to ZMD 626,072 shares of Simtek common stock as
partial payment for the assets we acquired from ZMD pursuant to the Asset
Purchase Agreement, dated December 7, 2005, between us and ZMD. ZMD and Simtek
were parties to a Product License Development and Support Agreement, dated
June
1, 1994, and various Cooperation Agreements functioning as amendments to the
Product License Development and Support Agreement, which, together, provided
for
the joint development of certain products by Simtek and ZMD and the licensing
of
certain products and intellectual property from Simtek to ZMD. All of these
agreements were terminated (to the extent not already terminated) on December
30, 2005. Of the 11,392,457 shares that we are registering in this prospectus,
626,072 shares relate to this transaction.
On
December 30, 2005, as part of our sale of $11,000,000 of our common stock,
we
issued (in addition to the shares issued to SF Capital Partners Ltd. and the
RENN Capital Group on such date, as described above): Crestview Capital Master
LLC 2,468,750 shares in exchange for $3,950,000; Straus Partners, LP 78,125
shares for $125,000; Straus GEPT Partners, LP 78,125 shares for $125,000; Big
Bend XXVII Investments, L.P. 1,437,500 shares for $2,300,000; Toibb Investment
LLC 1,187,500 shares for $1,900,000; and Michael Seedman 62,500 shares for
$100,000. In connection with such sale of $11,000,000 of our common stock,
we
issued to C. E. Unterberg, Towbin, the investment banking firm that advised
us
in such transaction, warrants (with a five-year term) to acquire 106,250 shares
of our common stock. The warrants issued to C. E. Unterberg, Towbin have an
exercise price of $2.80 per share.
On
September 21, 2006, we closed a $4,555,000 equity financing, issuing the amounts
of shares of common stock and warrants to purchase shares of common stock
indicated to the following investors: RENN Capital Group and Premier RENN US
Emerging Growth Fund Ltd. (506,332 shares and 75,952 warrants); Crestview
Capital Master LLC (215,190 shares and 32,279 warrants); Big Bend XXVII
Investments, L.P. (101,266 shares and 15,190 warrants); Straus Partners, LP
(50,633 shares and 7,595 warrants); Straus GEPT Partners, LP (50,633 shares
and
7,595 warrants); A.J. Stein Family Trust (25,317 shares and 3,798 warrants);
A.J. Stein Family Partnership (25,317 shares and 3,798 warrants); Brian Stein
(25,317 shares and 3,798 warrants); Toni Stein (12,659 shares and 1,899
warrants); Steven Hayes (50,633 shares and 7,595 warrants); Brian Alleman
(31,646 shares and 4,747 warrants); John C. McComb (7,595 shares and 1,140
warrants); and SF Capital Partners Ltd. (50,633 shares and 7,595 warrants).
The
warrants issued have a term of five years and have an exercise price of $5.40
per share. By the terms of each of these warrants, a holder may not exercise
its
warrant to the extent such exercise would result in such holder being a 10%
or
more beneficial owner of all of our outstanding common stock. Certain of the
selling securityholders may be prevented from exercising all or part of the
warrants held by them as a result of this restriction; nevertheless, the shares
issuable under these warrants are included for all applicable selling
securityholders in the Selling Security Holder table above. With respect to
the
shares of common stock, and the warrants to purchase shares of common stock
issued pursuant to the September 21, 2006 transaction, we are not registering
in
this prospectus either the shares of common stock issued or the shares of common
stock issuable upon exercise of the warrants.
Simtek
is
authorized to issue, pursuant to its Delaware Certificate of Incorporation,
30,000,000 shares of common stock, par value $0.0001 per share, and 200,000
shares of preferred stock, par value $0.0001 per share. The following is a
summary of the material terms of our capital stock. You should refer to our
Certificate of Incorporation and Bylaws and the agreements described below
for
more detailed information.
Common
Stock
Each
share of common stock entitles its record holder to one vote on all matters
to
be voted on by the stockholders of Simtek. When a quorum is present at any
meeting of stockholders, a plurality of the stockholders shall decide the
election of directors and a majority of the stockholders shall decide any other
question, unless the question is one upon which Delaware law, the Certificate
of
Incorporation or the Bylaws require a different vote.
The
board
of directors of Simtek consists of six directors, all of whom are elected
annually at the annual meeting of stockholders, and is not classified. No
provision of our Certificate of Incorporation or Bylaws provides for cumulative
voting in the case of the election of directors or on any other matter.
Each
holder of common stock of Simtek is entitled to share pro rata in any dividends
paid on the common stock in funds legally available for that purpose, when,
as
and if declared by the board of directors of Simtek in its discretion. The
shares of common stock of Simtek have no preferred dividend rights or any
conversion, redemption or other rights, or any rights to payment from any
sinking or similar fund. The shares of common stock also do not have any
preemptive, subscription or other similar rights. There are no restraints in
the
Certificate of Incorporation or Bylaws of Simtek on the right of holders of
shares of common stock to sell or otherwise alienate their shares of stock
in
Simtek. There are no provisions in the Certificate of Incorporation or Bylaws
of
Simtek providing for any calls or assessments against holders of shares of
common stock or discriminating against any existing or prospective holder of
shares of common stock as a result of such security holder owning a substantial
amount of securities. Upon liquidation, dissolution or winding up of Simtek,
each holder of shares of common stock will be entitled to receive a pro rata
share of the assets of Simtek, after payment of all Simtek’s debts and
liabilities and subject to any applicable liquidation or other payments owed
to
preferred stockholders.
Preferred
Stock
The
shares of preferred stock of Simtek are not designated by series, and there
are
no currently outstanding shares of preferred stock. Simtek may issue preferred
stock from time to time in one or more series. The board of directors is
authorized, without the approval of existing stockholders, to authorize from
time to time the issuance of one or more classes or series of preferred stock
and to fix the designations, powers, preferences and relative, participating,
optional or other rights, if any, and the qualifications, limitations or
restrictions thereof, if any, with respect to each such class or series of
preferred stock and the number of shares constituting each such class or series,
and to increase or decrease the number of shares of any such class or series
to
the extent permitted by law. 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 making such
attempts more difficult to achieve or more costly.
Anti-Takeover
Provisions
Simtek,
as discussed in the preceding paragraph, may issue preferred stock from time
to
time in one or more series, pursuant to certain authority held by the board
of
directors, including the authority to fix the designations, powers, preferences
and relative, participating, optional or other rights, if any, and the
qualifications, limitations or restrictions of such preferred stock. The
issuance of preferred stock may have the effect of making removal of management
more difficult and delaying, deferring or preventing a change in control of
Simtek.
We
have
opted to be governed, in our Delaware certificate of incorporation, by Section
203 of the Delaware General Corporation Law, which provides for a three-year
moratorium on certain business combination transactions with “interested
stockholders” (generally, persons who beneficially own 15% or more of the
corporation’s outstanding voting stock). Although we believe that Section 203
will encourage any potential acquirer to negotiate with our board of directors,
Section 203 also might have the effect of limiting the ability of a potential
acquirer to make a two-tiered bid for the company in which all stockholders
would not be treated equally. In addition, Section 203 gives the board the
power
to reject a proposed business combination in certain circumstances, even though
a potential acquirer may be offering a substantial premium for our common stock
over the then-current market price. Section 203 would also discourage certain
potential acquirers who are unwilling to comply with its provisions.
Warrants
2,003,512
of the shares of common stock offered by the selling securityholders in this
prospectus are offered pursuant to warrants issued to the selling
securityholders in connection with various transactions. The exercise periods
and exercise prices of the warrants are discussed in the “Selling
Securityholders” section above. The number of shares issuable upon exercise and
the per share exercise price of certain of the warrants are subject to
adjustment in the case of certain stock dividends, stock splits, combinations,
capital reorganizations, reclassifications or mergers or
consolidations.
Each
selling security holder of our common stock and any of their pledgees, assignees
and successors-in-interest may, from time to time, sell any or all of their
shares of common stock on NASDAQ, the OTC Bulletin Board or any other 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. A
selling security holder may use any one or more of the following methods when
selling shares:
| • |
ordinary
brokerage transactions and transactions in which the broker dealer
solicits purchasers;
|
| • |
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;
|
| • |
purchases
by a broker dealer as principal and resale by the broker dealer for
its
account;
|
| • |
an
exchange distribution in accordance with the rules of the applicable
exchange;
|
| • |
privately
negotiated transactions;
|
| • |
settlement
of short sales entered into after the effective date of the registration
statement of which this prospectus
is a part;
|
| • |
broker
dealers may agree with the selling security holders to sell a specified
number of such shares at a stipulated
price per share;
|
| • |
a
combination of any such methods of
sale;
|
| • |
through
the writing or settlement of options or other hedging transactions,
whether through an options exchange
or otherwise; or
|
| • |
any
other method permitted pursuant to applicable
law.
|
The
selling security holders may also sell shares under Rule 144 under the
Securities Act of 1933, as amended (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, but, except as set forth in a supplement to this prospectus, in
the
case of an agency transaction not in excess of a customary brokerage commission
in compliance with NASDR Rule 2440; and in the case of a principal transaction
a
markup or markdown in compliance with NASDR IM-2440.
In
connection with the sale of the common stock or interests therein, the selling
security holders may enter into hedging transactions with broker-dealers or
other financial institutions, which may in turn engage in short sales of the
common stock in the course of hedging the positions they assume. The selling
security holders may also sell shares of the common stock short and deliver
these securities to close out their short positions, or loan or pledge the
common stock to broker-dealers that in turn may sell these securities. The
selling security holders may also enter into option or other transactions with
broker-dealers or other financial institutions or the creation of one or more
derivative securities which require the delivery to such broker-dealer or other
financial institution of shares offered by this prospectus, which shares such
broker-dealer or other financial institution may resell pursuant to this
prospectus (as supplemented or amended to reflect such
transaction).
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. Each selling security holder has informed
us
that it does not have any written or oral agreement or understanding, directly
or indirectly, with any person to distribute the common stock. In no event
shall
any broker-dealer receive fees, commissions and markups which, in the aggregate,
would exceed eight percent (8%).
We
are
required to pay certain fees and expenses incurred by us incident to the
registration of the shares. We have agreed to indemnify the selling security
holders against certain losses, claims, damages and liabilities, including
liabilities under the Securities Act.
Because
selling security holders may be deemed to be “underwriters” within the meaning
of the Securities Act, they will be subject to the prospectus delivery
requirements of the Securities Act. In addition, any securities covered by
this
prospectus which qualify for sale pursuant to Rule 144 under the Securities
Act
may be sold under Rule 144 rather than under this prospectus. Each selling
security holder has advised us that they have not entered into any written
or
oral agreements, understandings or arrangements with any underwriter or
broker-dealer regarding the sale of the resale shares. There is no underwriter
or coordinating broker acting in connection with the proposed sale of the resale
shares by the selling security holders.
With
respect to certain selling security holders, we agreed to keep this prospectus
effective until the earlier of (i) the date on which the shares may be resold
by
the selling security holders without registration and without regard to any
volume limitations by reason of Rule 144(e) under the Securities Act or any
other rule of similar effect or (ii) all of the shares have been sold pursuant
to the prospectus or Rule 144 under the Securities Act or any other rule of
similar effect. The resale shares will be sold only through registered or
licensed brokers or dealers if required under applicable state securities laws.
In addition, in certain states, the resale shares may not be sold unless they
have been registered or qualified for sale in the applicable state or an
exemption from the registration or qualification requirement is available and
is
complied with.
Under
applicable rules and regulations under the Securities Exchange Act of 1934,
as
amended, any person engaged in the distribution of the resale shares may not
simultaneously engage in market making activities with respect to the common
stock for the applicable restricted period, as defined in Regulation M, prior
to
the commencement of the distribution. In addition, the selling security holders
will be subject to applicable provisions of the Securities
Exchange Act of 1934, as amended, and
the
rules and regulations thereunder, including Regulation M, which may limit the
timing of purchases and sales of shares of the common stock by the selling
security holders or any other person. We will make copies of this prospectus
available to the selling security holders and have informed them of the need
to
deliver a copy of this prospectus to each purchaser at or prior to the time
of
the sale.
The
validity of the shares offered hereby was passed upon by Holme Roberts &
Owen LLP, Colorado Springs, Colorado.
The
financial statements of Simtek Corporation, included in our Annual Report on
Form 10-K, as amended, for the fiscal year ended December 31, 2006, filed on
April 2, 2007 and amended on April 30, 2007, have been audited by Hein &
Associates LLP, Independent Registered Public Accounting Firm, as set forth
in
their report which is incorporated by reference in this prospectus and
registration statement. Such financial statements are incorporated by reference
in reliance on Hein & Associates LLP’s report, given on their authority as
experts in accounting and auditing.
This
prospectus is part of a registration statement on Form S-3 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
100 F Street, N.E., 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. In addition, the reports, proxy statements and other information
that we file with the Securities and Exchange Commission 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 considered to be part of this
prospectus, and later information we file with the Securities and Exchange
Commission that is incorporated or deemed to be incorporated by reference into
this prospectus will update and supersede this information. We incorporate
by
reference the documents listed below and any future filings made with the
Securities and Exchange Commission under Section 13(a), 13(c), 14 or 15(d)
of
the Exchange Act prior to the completion of the offering covered by this
prospectus:
* our
Annual Report on Form 10-K, as amended, for the fiscal year ended December
31,
2006, filed on April 2, 2007 and amended on April 30, 2007;
* our
Current Reports on Form 8-K filed on January 9, 2007, January 12, 2007, January
24, 2007, February 13, 2007, February 23, 2007, April 12, 2007 and April 26,
2007;
* our
Quarterly Report on Form 10-Q, for the fiscal quarter ended March 31, 2007,
filed on May 15, 2007;
* our
Definitive Proxy Statement on Schedule 14A filed on May 11, 2007;
and
* the
description of our common stock as set forth in our Registration Statement
on
Form 8-A filed on January 8, 2007.
Upon
receipt of an oral or written request we will provide, free of charge, to any
person (including any beneficial owner) 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.
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