As filed with the Securities and Exchange Commission on April 29, 1999
Registration 333-
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- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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Form S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
SIMTEK CORPORATION
(Exact name of registrant as specified in its charter)
Colorado 84-1057605
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
1465 Kelly Johnson Boulevard, Suite 301
Colorado Springs, Colorado 80920
(719) 531-9444
(Address, including zip code, and telephone number,
including area code, of Principal Executive Offices)
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Douglas M. Mitchell
Chief Executive Officer, President and Chief Financial Officer (acting)
Simtek Corporation
1465 Kelly Johnson Boulevard, Suite 301
Colorado Springs, CO 80920
(719) 531-9444
(Name, address, including zip code and telephone
number, including area code, of agent for service)
Copies to:
Garth B. Jensen, Esq.
Holme Roberts & Owen LLP
1700 Lincoln, Suite 4100
Denver, CO 80203
(303) 861-7000
Approximate Date of Commencement of Proposed Sale to the Public: As
soon as practicable after the effective date of this Registration Statement.
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If the only securities being registered on this Form are being offered
pursuant dividend or interest reinvestment plans, please check the following
box. | |
If any of the securities being registered on this form are being
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, check the following box. |X|
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<PAGE>
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
- -------------------------------------------------------------------------------------------------------------------------
| | | Proposed | Proposed | |
| | | maximum | maximum | |
| | | offering | aggregate | Amount of |
| Title of each class of securities to be | Amount to be | price | offering | registration |
| registered | registered(1) | per share(2) | price | fee |
|---------------------------------------------|--------------------|----------------|------------------|----------------|
|<S> | <C> | <C> | <C> | <C> |
|Common Stock, (par value $.01 per share) | 7,692,308 shs | $0.195 | $1,500,000 | $417.00 |
|---------------------------------------------|--------------------|----------------|------------------|----------------|
</TABLE>
(1) This Registration Statement relates to Common Stock issuable upon the
conversion of a loan entered into between Simtek Corporation and
Renaissance Capital Group, Inc. in June 1998
(2) The conversion price per share price of the Common Stock.
---------------------------------
The Registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the registrant shall
file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8 (a) of
the Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
<PAGE>
The following language appears on the left side of the cover page:
The information in this preliminary prospectus is not complete and may be
changed. We may not sell these securities until the registration statement filed
with the Securities and Exchange Commission is effective. This preliminary
prospectus is not an offer to sell these securities nor does it seek an offer to
buy these securities in any jurisdiction where the offer or sale is not
permitted.
SUBJECT TO COMPLETION, DATED April 29, 1999
PROSPECTUS
7,692,308 Shares
SIMTEK CORPORATION
Common Stock
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Simtek Corporation intends to issue up to 7,692,308 shares of its Common
Stock, par value $.01 per share ("Common Stock"), upon the conversion of
outstanding convertible debentures. We issued these debentures in June 1998. The
debentures are convertible into shares at a price of $0.195 per share. This
conversion price may be adjusted for stock splits and other transactions. The
debentures may be converted at any time.
Our common stock is traded on the OTC Bulletin Board under the symbol
"SRAM." On April 26, 1999, the closing sale price of our common stock was $0.19
per share.
---------------
See "Risk Factors" beginning on page 4 to read about certain factors you should
consider before buying our stock.
---------------
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY OTHER REGULATORY BODY HAS
APPROVED OR DISAPPROVED OF THESE SECURITIES OR PASSED UPON THE ADEQUACY OR
ACCURACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL
OFFENSE.
The date of this Prospectus is ______________, 1999.
<PAGE>
AVAILABLE INFORMATION
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 (the "Commission"). You may inspect our reports, proxy statements and
other information without charge at the public reference facilities of the
Commission's principal office at 450 Fifth Street, N.W., Washington, D.C. 20549
and at the Commission's regional offices at 500 West Madison Street, Suite 1400,
Chicago, Illinois 60661 and 7 World Trade Center, Suite 1300, New York, NY
10048. You may also obtain copies there at the prescribed rates. You may obtain
information on the operation of the Commission's public reference facilities by
calling the Commission in the United States 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.
We have filed with the Commission, a Registration Statement on Form S-3
under the Securities Act of 1933, as amended (the"Securities Act"), with respect
to the common stock we are offering (the "Registration Statement"). This
prospectus does not contain all of the information set forth in the Registration
Statement and the exhibits and schedules thereto. For further information about
us and the common stock offered, you should refer to the Registration Statement,
including the exhibits and schedules thereto, which may be inspected at, and
copies thereof may be obtained at prescribed rates from, the public reference
facilities of the Commission at the addresses set forth above.
INFORMATION INCORPORATED BY REFERENCE
The following documents have been filed with the Commission (File No.
0-19027) and are incorporated in this prospectus by reference and made a part
hereof:
1. Our Annual Report on Form 10-KSB for the year ended December 31,
1998.
All documents we subsequently file pursuant to Sections 13(a), 13(c),
14 or 15(d) of the Exchange Act, after the date of this prospectus and prior to
the termination of the offering, shall be deemed to be incorporated by reference
in this prospectus and to be a part of this prospectus from the dates of filing
of such documents.
Any statement contained in a document incorporated or deemed to be
incorporated by reference in this prospectus shall be deemed to be modified or
superseded for purposes of this prospectus to the extent that a statement
contained herein or in any other subsequently filed document which also is or is
deemed to be incorporated by reference in this prospectus modifies or supersedes
such statement. Any statement so modified or superseded shall not be deemed,
except as so modified or superseded to constitute a part of this prospectus.
We will provide without charge to each prospectus recipient, upon his
or her request, a copy of any and all of the information that has been
incorporated by reference in this prospectus (not including exhibits to such
information unless such exhibits are specifically incorporated by reference into
such information). You should direct these requests to Simtek Corporation, Chief
Executive Officer, 1465 Kelly Johnson Blvd. #301, Colorado Springs, Colorado
80920 (telephone number 719-531-9444).
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THE COMPANY
We design, develop, produce and market high performance nonvolatile
semiconductor memories. Nonvolatility prevents loss of programs and data when
electrical power is removed. Our nonvolatile memory products feature fast data
access and programming speeds and electrical reprogramming capabilities. Our
products are targeted for use in commercial electronic equipment markets. These
markets are industrial control systems, office automation, medical
instrumentation, telecommunication systems, cable television, and numerous
military systems, including communications, radar, sonar and smart weapons.
On June 12, 1998, we closed the sale of $1.5 million of convertible
debentures. The convertible debentures have a 7-year term and accrue interest at
9% per annum. The debentures are convertible at the option of the holder into
our common stock at $0.195 cents per share, subject to anti-dilution and other
adjustment provisions. In some cases, we may redeem the debentures or force
conversion. We used the net proceeds of this financing primarily for working
capital to support our growth plans.
Our principal executive office is located at 1465 Kelly Johnson Blvd.,
Suite 301, Colorado Springs, Colorado 80920. Our telephone number is
719-531-9444.
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RISK FACTORS
YOU SHOULD CONSIDER CAREFULLY THE FOLLOWING RISK FACTORS, AS WELL AS
ALL OTHER INFORMATION IN OR INCORPORATED BY REFERENCE INTO THIS PROSPECTUS,
BEFORE CONVERTING YOUR DEBENTURE INTO SHARES OF COMMON STOCK.
WE HAVE LIMITED CAPITAL FOR OPERATIONS AND MAY NEED TO RAISE MORE MONEY TO
CONTINUE OPERATING OUR BUSINESS
To date, we have required significant capital for product development,
manufacturing and marketing. From the time we started business through December
31, 1998, we have raised approximately $32.1 million of gross proceeds from the
sale of our convertible debt and equity securities. During the same period, we
earned approximately $10.1 million of gross revenue from the sale of product and
technology licenses, approximately $25.3 million from net product sales,
$600,000 in royalty income.
Our management believes that if we are able to increase our product
sales substantially and with positive gross margins, our cash requirements for
producing and marketing our existing four product families will be satisfied. We
are not sure, however, whether this increase in product sales or positive gross
margins will occur. We may need more capital in the next year to develop new
products. We are not sure that we will be able to raise more capital. If we
cannot, then we may not be able to develop and market new products.
WE HAVE MADE OPERATING LOSSES IN THE PAST AND MAY MAKE OPERATING LOSSES IN THE
FUTURE
We began business in 1987. Through December 31, 1998, we had
accumulated losses of approximately $28.2 million. We realized net income for
the first time for the year ended December 31, 1997 and also realized income for
the year ended December 31, 1998. We may not, however, be able to realize income
from our operations in future years. Our ability to realize income will depend
on many factors, some of which we cannot control. These factors include market
acceptance of our products and the prices that we are able to charge, our
ability to reduce our costs on products sold to the commercial and military
markets and our subcontractors' ability to manufacture our products to our
specifications cost effectively.
BECAUSE OUR COMMON STOCK IS LISTED ONLY ON THE OTC ELECTRONIC BULLETIN BOARD IT
MAY BE MORE DIFFICULT TO SELL OUR COMMON STOCK
Our common stock is listed on the OTC Electronic Bulletin Board under
the symbol SRAM. Our common stock was listed on the NASDAQ Small-Cap Market
until July 18, 1995 but because we no longer met NASDAQ's listing requirements,
we transferred to the OTC Electronic Bulletin Board. We do not believe that we
will be able to meet the requirements for relisting our common stock on NASDAQ
in the near future.
Securities that are not listed on the NASDAQ Small-Cap Market are
subject to a Securities and Exchange Commission rule that imposes special
requirements on broker-dealers who sell those securities to persons other than
their established customers and accredited investors. The broker-dealer must
determine that the security is suitable for the purchaser and must obtain the
purchaser's written consent prior to the sale. These requirements may make it
difficult for broker-dealers to sell our securities. This may also make it more
difficult for our security holders to sell their securities and may affect our
ability to raise more capital.
THE RISKS INVOLVED IN MANUFACTURING SEMICONDUCTORS MAY AFFECT OUR NET INCOME
The manufacturing of semiconductors is very complex and our success in
manufacturing semiconductors depends on many factors that we are unable to
control. For example, successful manufacturing is affected by the level of
contaminates in the manufacturing environment, impurities in the materials used
and the performance of our equipment. These factors could reduce the number of
semiconductors that we are able to make in a production run, which would
increase our manufacturing costs. In order for us to be profitable, we must keep
our manufacturing costs down. We have been able to keep our overall costs down
through a number of methods including reducing the size of our chips, increasing
the number of chips per wafer, reducing our packaging costs and eliminating
4
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defects in the manufacturing process. These measures may not work all the time,
however, and we are not sure that our existing cost saving methods will be
enough to enable us to continue generating profits.
It takes approximately three months for us to manufacture our
semiconductors. Any delays in receiving silicon wafers will delay our ability to
deliver our products to our customers. This would delay sales revenue and could
cause our customers to cancel existing orders or not make future orders. In
addition, if we are not able to make all of our planned semiconductors in a
production run this could delay delivery of our products. If our semiconductors
have technical problems, we could be required to write off inventory or grant
warranty replacements. These delays or technical problems could occur at any
time and would affect our net income.
WE DEPEND GREATLY ON SUBCONTRACTORS AND THEIR POOR PERFORMANCE COULD HURT OUR
OPERATIONS
We have hired independent subcontractors to make our silicon wafers and
to assemble and test our products. Our operating results depend on our
subcontractors' ability to supply us with silicon wafers that meet our
specifications and to assemble and test enough of our products to meet our
customer's needs, all at reasonable costs.
In September 1995, the we entered into an agreement with Zentrum
Mikroelektronik Dresden GmbH ("ZMD") that allowed us to purchase finished 0.8
micron units from ZMD's foundry. We purchased these units from ZMD's foundry
through the first half of 1998 and then transferred all of our manufacturing
over to products built from the wafers purchased from Chartered Semiconductor
Manufacturing Plc. of Singapore ("Chartered"). Sales of the products purchased
from ZMD accounted for approximately 50% and approximately 57% of the Company's
revenue for the years ended December 31, 1998 and December 31, 1997,
respectively.
Currently, we depend on Chartered to manufacture all of our silicon
wafers. If Chartered is unable to meet our silicon wafer needs on time and at a
price that we find acceptable, we would have to find another wafer manufacturer.
If we cannot find another supplier, manufacturer and assembler on acceptable
terms, we may not be profitable. In addition, our subcontractors must be audited
and recertified by us on a regular basis for us to continue to produce
military-qualified products. There is no assurance that we will be able to
complete successfully this recertification.
Our current manufacturing agreement with Chartered has expired. Under
our old agreement, we had the right to purchase up to 600 six-inch silicon
wafers per month from Chartered's facility in Singapore. If we are unable to
renew our agreement with Chartered or the limit on wafers that we can purchase
is not increased, we may be limited in the number of semiconductors that we can
sell. Approximately 50% and approximately 43% of the Company's product sales
were based on wafers purchased from Chartered for the years ended December 31,
1998 and December 31, 1997, respectively.
WE DEPEND ON OTHERS FOR SALES AND DISTRIBUTION AND MOST OF OUR SALES ARE TO A
LIMITED NUMBER OF CUSTOMERS AND DISTRIBUTORS
We use independent sales representatives and distributors to sell the
majority of our products. The agreements with these sales representatives and
distributors can be terminated without cause by either party with only 30 to 90
days written notice. If one or more of our sales representatives or distributors
terminates our relationship, we may not be able to find replacement sales
representatives and distributors on acceptable terms. This would affect our
profitability. In addition, during 1998, approximately 64% of our product sales
were to one unaffiliated customer and three distributors. We are not sure that
we will continue receiving orders from this customer or will be able to maintain
our relationship with these distributors.
WE MAY NOT REALIZE ANY NEW LICENSE REVENUES
We have received substantially all of the revenue to which we are
entitled under our existing license agreements and we have not sold any new
licenses. We are not sure whether we will be able to sell any more product or
technology licenses in the future.
5
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DELAYS IN OR FAILURE OF PRODUCT QUALIFICATION MAY HARM OUR BUSINESS
Prior to selling a product, we must establish that it meets certain
performance and reliability standards. As part of this testing process, known as
product qualification, representative samples of products are subjected to a
variety of tests to ensure that performance in accordance with commercial,
industrial and military specifications. Delays or failure by us to accomplish
product qualification for our future products will have an adverse effect on us.
Even with successful initial product qualifications, we cannot be certain that
we will be able to maintain product qualification or achieve sufficient sales to
meet our operating requirements.
OUR SUCCESS DEPENDS ON OUR ABILITY TO INTRODUCE NEW PRODUCTS
Our success depends in part upon our ability to expand our existing
product families and to develop and market new products. 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 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 are not certain whether we will be successful in
developing new products or whether any products that we do develop will satisfy
the above factors.
THE SEMICONDUCTOR INDUSTRY CHANGES VERY RAPIDLY AND OUR BUSINESS WOULD BE HARMED
IF WE CANNOT KEEP UP WITH THESE CHANGES
The semiconductor industry is characterized by rapid changes in
technology and product obsolescence, volatile market patterns, price erosion,
product oversupply, occasional shortages of materials, variations in
manufacturing efficiencies and significant costs associated with capital
equipment and product development. We cannot be certain that the technology we
currently use will not be made obsolete by other competing memory technologies.
Any one or more of these factors could have a material effect on our financial
results.
THERE IS INTENSE COMPETITION IN THE SEMICONDUCTOR INDUSTRY
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 us. Our competitors include major corporations with
worldwide wafer fabrication and circuit production facilities and diverse,
established product lines. We also compete with emerging companies attempting to
obtain a share of the market for our product families. If any of our new
products achieve market acceptance, other companies may sell competitive
products at prices below ours. This would have an adverse effect on the
Company's operating results. We have sold product and technology licenses to
Plessey, Nippon Steel and ZMD. At this time Plessey and Nippon Steel have not
began producing our products. ZMD has entered the market, however, and may
become one of our significant competitors.
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. The competition for this personnel
is intense. 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.
WE DEPEND ON PATENTS TO PROTECT OUR INTELLECTUAL PROPERTY
Seven U.S. patents have been issued to us relating to certain aspects
of our current products and we have two applications pending. We have also
applied for international patents on our technology. We plan to continue to
protect our intellectual property. We are not sure that any of the patents for
which we have applied will issue or if issued, will provide us with meaningful
protection from competition. We may also not have the money required to maintain
or enforce our patent rights. Notwithstanding our patents, other companies may
obtain patents similar to or relating to our patents. We have not determined
whether our products are free from patent infringement.
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OUR PRODUCTS AND TECHNOLOGY MAY INFRINGE ON OTHER PATENTS
In the past, we have been notified by two companies that some of our
products and technologies may be related to patents owned by them and a third
party has notified us that our products or technologies may infringe on two
patents owned by that party. At the time we received the notices, we retained
legal counsel to evaluate three patents identified in the notices but we have
not yet determined whether our products infringe on the third party patents. We
have not received any recent correspondence about these claims but we are not
sure whether any further action will be taken or that new claims will not be
asserted. If infringement claims are asserted against us and are upheld, we will
try to modify our products so 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 or if we fail to
obtain any required license or are required to stop selling any of our products
would have a material adverse effect on our financial results.
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 claims that certain machines and processes used in the building of
our semiconductor devices infringe on the foundation's patents. We and our
counsel are currently negotiating a license agreement with the foundation's
counsel and no formal action has been taken by either party. If this matter
results in litigation, however, we cannot predict the outcome and it could have
a material effect on our financial results.
WE DO NOT INTEND TO PAY DIVIDENDS IN THE FORESEEABLE FUTURE
We have never paid cash dividends on our common stock. We do not expect
to pay dividends in the foreseeable future. We will use any earnings to finance
growth. You should not expect to receive dividends on your shares of common
stock.
FOREIGN CURRENCY EXCHANGE RATE FLUCTUATIONS MAY CAUSE FINANCIAL LOSSES
Changes in foreign currency exchange rates can reduce our revenues and
increase our costs. Under our purchase agreement with Chartered, we buy silicon
wafers in US dollars but the agreement permits a price adjustment if the six
month rolling average exchange rate changes by more than 5% from the starting
point. In addition, over 33% of our sales are outside or the United States.
Therefore, any large exchange rate fluctuation could increase our costs and thus
decrease our revenues. We do not try to reduce our exposure to these exchange
rate risks by using hedging transactions.
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USE OF PROCEEDS
We will receive no proceeds from the conversion of the convertible
debentures.
PLAN OF DISTRIBUTION
The shares of our common stock being offered are being issued by us
upon the conversion of the convertible debentures.
LEGAL MATTERS
Holme Roberts & Owen LLP, Denver, Colorado will pass upon the validity
of the common stock to be issued upon conversion of the debentures.
EXPERTS
The financial statements and schedules of Simtek Corporation
incorporated by reference into this prospectus from Simtek's form 10-KSB Report,
have been audited by Hein + Associates LLP, independent public accountants, as
indicated in their reports with respect thereto, and are incorporated by
reference herein and in the Registration Statement in reliance upon the
authority of said firm as experts in giving said reports.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Capitalized terms used but not otherwise defined in Part II are used as defined
in the Prospectus contained in this Registration Statement.
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth the expenses (other than underwriting discounts
and commissions) expected to be incurred in connection with the issuance and
distribution of the securities registered hereby, all of which expenses, except
for the Commission registration fee, are estimated:
Securities and Exchange Commission registration fee............... $ 417
Legal fees and expenses........................................... 3,000
Accounting fees................................................... 2,500
Miscellaneous..................................................... 2,500
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Total ..................................................... $8,417
======
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The above expenses will be borne by the Company.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Article Six of the Company's Articles of Incorporation requires the
Company to indemnify, to the fullest extent authorized by applicable law, any
person who is or is threatened to be made a party to any civil, criminal,
administrative, investigative, or other action or proceeding instituted or
threatened by reason of the fact that he is or was a director or officer of the
Company or is or was serving at the request of the Company as a director or
officer of another corporation, partnership, joint venture, trust or other
enterprise.
Article Five of the Company's Articles of Incorporation provides that,
to the fullest extent permitted by the Colorado Corporation Code, directors of
the Company shall not be liable to the Company or any of its shareholders for
damages caused by a breach of a fiduciary duty by such director.
The above discussion of the Company's Articles of Incorporation is
intended to be only a summary and is qualified in its entirety by the full text
of each of the foregoing.
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
(a) Exhibits
5.1 Legality opinion of Holme Roberts & Owen LLP.
23.1 Consent of Independent Public Accountants - Hein & Associates LLP
23.2 The Consent of Holme Roberts & Owen LLP is included in Exhibit 5.1.
ITEM 17. UNDERTAKINGS
Insofar as indemnification for liabilities arises under the Securities
Act of 1993 may be permitted to directors, officers and controlling persons of
the Registrant, the Registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public policy
as expressed in the Act and is, therefor, 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
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in connection with the Securities being registered, the Registrant will, unless
in the opinion of its counsel the matter has been settled by a 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 of 1933 and will be governed by a final adjudication of such
issue.
The Registrant hereby undertakes that:
(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 by the registrant pursuant to
section 13 or section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall
be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering
thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain
unsold at the termination of the offering.
The undersigned registrant hereby undertakes that for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to section 13(a) or 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 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.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant 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 this 23rd day of April 1999.
Simtek Corporation
a Colorado corporation
By: /S/ DOUGLAS M. MITCHELL
-----------------------------------
Douglas M. Mitchell
Chief Executive Officer and
President
Pursuant to the requirements of the Securities Act of 1933, the
Registrant has caused this Registration Statement to be signed by the following
persons in the capacities on April 23, 1999.
SIGNATURE TITLE
/S/ DOUGLAS M. MITCHELL Director, Chief Executive Officer,
- ----------------------------- President and Chief Financial Officer
Douglas M. Mitchell (acting)
/S/ ROBERT H. KEELEY Director
- -----------------------------
Robert H. Keeley
/S/ JOHN HEIGHTLEY Director
- -----------------------------
John Heightley
/S/ KLAUS WIEMER Director
- -----------------------------
Klaus Wiemer
/S/ HAROLD BLOMQUIST Director
- -----------------------------
Harold Blomquist
11
Exhibit 5.1
April 28, 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-3 to be filed with the
Securities and Exchange Commission (the "Commission") on or about April 28, 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"), 7,692,308 shares of its Common Stock, par value
$0.01 per share (the "Common Stock"), issuable in connection with the conversion
of the Company's outstanding debentures..
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 issued and delivered by the Company pursuant to conversion
of the debentures 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
Exhibit 23.1
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 in the Form S-3
Registration Statement of Simtek Corporation and to the use of our name and the
statements with respect to us, as appearing under the heading "Experts" in the
Registration Statement.
HEIN + ASSOCIATES LLP
Denver, Colorado
April 26, 1999
