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.)
1465 Kelly Johnson Boulevard
Colorado Springs, Colorado 80920
(Address of Principal Executive Offices) (Zip Code)
1994 Non-Qualified Stock Option Plan
(Full title of the plan)
Douglas M. Mitchell
President, Chief Executive Officer and Chief Financial Officer (acting)
Simtek Corporation
1465 Kelly Johnson Boulevard
Colorado Springs, CO 80920
(719) 531-9444
(Name, address and telephone number of agent for service)
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Title of maximum maximum
securities Amount offering aggregate Amount of
to be to be price offering registration
registered registered(1) per share(2) price fee
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Common Stock,
par value $.01
per share ........... 1,000,000 shs $0.1875 $187,500 $64.66
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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) Represents the average of the bid and asked price as of April 9, 1999.
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PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The registrant's annual report for the fiscal year ended December 31,
1998 and all other reports of the registrant filed since the end of the fiscal
year ended December 31, 1998 pursuant to Section 13(a) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), are hereby incorporated
by reference thereto. In addition, 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.
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.
ITEM 8. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
4.1 1994 Non-Qualified Stock Option Plan(2)
4.2 First Amendment to 1994 Non-Qualified Stock Option Plan(2)
4.3 Second Amendment to 1994 Non-Qualified Stock Option Plan(2)
4.4 Form of option agreement between registrant and participants in
the 1994 Non-Qualified Stock Option Plan(2)
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4.5 Third Amendment to 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(1).
23.2 Consent of Holme Roberts & Owen LLC (included in Exhibit 5.1).
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(1) Filed as an exhibit to material incorporated by reference.
(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.
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;
(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
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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 April 14,
1999.
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 MITCHELL
--------------------- President, Chief Executive April 14, 1999
Douglas M. Mitchell Officer, Chief Financial
Officer (acting) and Director
/S/ ROBERT H. KEELEY Director April 14, 1999
---------------------
Robert H. Keeley
/S/ KLAUS WIEMER
--------------------- Director April 14, 1999
Klaus Wiemer
/S/ KIMBERLEY CAROTHERS Director April 14, 1999
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Kimberley Carothers
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SIMTEK CORPORATION
Form S-8
EXHIBIT INDEX
Number Description
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4.5 Third Amendment to 1994 Non-Qualified Stock
Option Plan.
5.1 Opinion of Holme Roberts & Owen LLC
23.1 Consent of Independent Accountants - Hein + Associates LLP
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SIMTEK CORPORATION
1994 NON-QUALIFIED STOCK OPTION PLAN
THIRD AMENDMENT
DATED: OCTOBER 30, 1998
Pursuant to a resolution approved by the Simtek Board of Directors on 10/30/98,
the 1994 NonQualified Stock Option Plan ("1994 Plan") of September 27, 1994 is
amended such that the number of options to be granted under the plan be
increased from 3,900,000 to 4,900,000. Therefore Section 4.1 of the 1994 Plan is
amended to "A total of 4,900,000 shares are authorized for issuance under the
1994 Plan in accordance with the provisions of the 1994 Plan and subject to such
restrictions and other provisions as the Committee from time to time deem
necessary. This authorization may be increased from time to time by approval of
the Board and by shareholders of the Company if, in the opinion of council for
the Company, such shareholder approval is required. Shares which may be issued
upon the exercise of Options shall be applied to reduce the maximum numbers of
Shares remaining available for use under the 1994 Plan. The Company shall at all
times during the term of the 1994 Plan and while any options are outstanding
retain as authorized any unissued Stock, or as treasury Stock, at least the
number of Shares from time to time required under the provisions of the 1994
Plan, or otherwise assure itself of its ability to perform its obligations
hereunder".
All other provisions of the 1994 Plan remain unchanged.
Dated: October 30, 1998
Simtek Corporation
By: /S/ROBERT KEELEY
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Robert Keeley
Director
April 6, 1999
Board of Directors
Simtek Corporation
1465 Kelly Johnson Blvd. #301
Colorado Springs, CO 80920
Dear Gentlemen:
Reference is made to the registration statement on Form S-8 to be filed with the
Securities and Exchange Commission (the "Commission") on or about April 12, 1999
(the "Registration Statement") by Simtek Corporation, a Colorado corporation
(the "Company"), for the purpose of registering under the Securities Act of
1933, as amended (the "Act"), 1,000,000 shares of its Common Stock, par value
$0.01 per share (the "Class A Common Stock").
As counsel for the Company, we have examined such documents and reviewed such
questions of law as we have considered necessary or appropriate for the purpose
of this opinion. Based on the foregoing, we are of the opinion that the shares
of Common Stock, when sold and delivered by the Company pursuant to the 1994
Non-Qualified Stock Option Plan described in the Registration Statement, will be
legally issued, fully paid and non-assessable.
We consent to the filing of this opinion with the Commission as an exhibit to
the Registration Statement. In giving this consent, we do not thereby admit that
we are within the category of persons whose consent is required under Section 7
of the Act or under the rules and regulations of the Commission.
We do not express an opinion on any matters other than those expressly set forth
in this letter.
Sincerely,
Holme Roberts & Owen LLP
By: /s/ Garth B. Jensen
Garth B. Jensen, Partner
INDEPENDENT AUDITOR'S CONSENT
We consent to the incorporation by reference of our report dated February 8,
1999 accompanying the financial statements of Simtek Corporation to the Form S-8
Registration Statement of Simtek Corporation.
/S/ HEIN + ASSOCIATES LLP
Denver, Colorado
April 9, 1999
