As filed with the Securities and Exchange Commission on April 10, 2007
Registration No. 333-_______
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
SIMTEK CORPORATION
(Exact Name of Registrant as Specified in its Charter)
Delaware 84-1057605
(State of Incorporation) (I.R.S. Employer Identification No.)
4250 Buckingham Dr. #100
Colorado Springs, Colorado 80907
(Address of Principal Executive Offices)
Simtek Corporation 1994 Non-Qualified Stock Option Plan
(Full Title of the Plan)
Harold Blomquist
Chief Executive Officer and President
Simtek Corporation
4250 Buckingham Dr. #100
Colorado Springs, CO 80907
(719) 531-9444
(Name, address and telephone number, including area code, of agent for service)
Copies to:
Hendrik F. Jordaan, Esq.
Garth B. Jensen, Esq.
Holme Roberts & Owen LLP
1700 Lincoln, Suite 4100
Denver, Colorado 80203
(303) 861-7000
CALCULATION OF REGISTRATION FEE
Title of Securities Amount to be Proposed Maximum Proposed Maximum Amount of
to be Registered Registered (1) Offering Price Per Share Aggregate Offering Registration Fee
(3) Price
------------------------------- --------------- -------------------------- ----------------------- -------------------
Common Stock, $0.0001 par
value (2)
Issuable pursuant to 756,460 $4.201(3) $3,177,888 $ 98
options previously
granted under the Simtek
Corporation 1994
Non-Qualified Stock
Option Plan
To be issued pursuant to
the Simtek Corporation
1994 Non-Qualified Stock
Option Plan 53,540 $5.695(4) $ 304,910 $ 9
------- ---------- ----
Total 810,000 $3,482,799 $107
======= ========== ====
(1) This Registration Statement shall also cover any additional shares of
Common Stock which become issuable by reason of any stock dividend, stock
split, recapitalization or other similar transaction effected without the
receipt of consideration which results in an increase in the number of the
Registrant's outstanding shares of Common Stock.
(2) Increase in authorized number of shares under the Simtek Corporation 1994
Non-Qualified Stock Option Plan pursuant to the Ninth, Tenth and Eleventh
Amendments to such Plan.
(3) Computed in accordance with Rule 457(h) under the Securities Act of 1933
solely for purposes of calculating the registration fee based on the
exercise price of the outstanding options under the Simtek Corporation 1994
Non-Qualified Stock Option Plan.
(4) Computed in accordance with Rules 457(c) and 457(h) under the Securities
Act of 1933 solely for purposes of calculating the registration fee based
upon the average of the high and low prices of the Registrant's Common
Stock on April 5, 2007, as reported on The Nasdaq Capital Market.
Form S-8 Pursuant to General Instruction E
This Form S-8 is filed with the Securities and Exchange Commission (the
"Commission") pursuant to General Instruction E to Form S-8. The contents of the
earlier Registration Statements on Form S-8, Registration Nos. 33-98294,
333-76481, 333-73794 and 333-121005 are hereby incorporated by reference into
this Form S-8. All capitalized terms not defined herein shall have the same
meaning as set forth in the Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 6. Indemnification of Directors and Officers.
Under our Certificate of Incorporation and Bylaws, we are required to
indemnify former and current directors and officers, and may indemnify employees
and agents, but only if such person seeking indemnification has satisfied the
statutory standard of conduct. To satisfy the statutory standard of conduct, a
person must have acted in good faith and in a manner the person reasonably
believed to be in or not opposed to the best interests of the corporation. In
addition, in any criminal action or proceeding, the person must also have had no
reasonable cause to believe the person's conduct was unlawful. Regardless of
standards of conduct, indemnification of expenses for directors and officers is
mandatory under Section 145 of the Delaware General Corporation Law ("DGCL") to
the extent they are successful on the merits in defending a proceeding. Under
Section 145 of the DGCL, in derivative suits (i.e., suits by or in the right of
the corporation), indemnification is only available for expenses and attorneys'
fees incurred in defending or settling a suit and only in circumstances where
there has been no adjudication of monetary liability to the corporation.
As permitted by Section 102(b)(7) of the DGCL, our Certificate of
Incorporation provides that, to the fullest extent permitted by the DGCL, a
director of the corporation shall not be personally liable to the corporation or
its stockholders for monetary damages for breach of fiduciary duty as a director
except for liability for (i) any breach of the director's duty of loyalty to the
corporation or its stockholders, (ii) acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (iii)
willful or negligent conduct in paying dividends or repurchasing or redeeming
stock out of funds that are not lawfully available, in violation of Section 174
of the DGCL, or (iv) any transaction from which the director derives an improper
personal benefit.
We maintain insurance policies under which our directors and officers are
insured, within the limits and subject to the limitations of the policies,
against expenses in connection with the defense of actions, suits or
proceedings, and certain liabilities that might be imposed as a result of such
actions, suits or proceedings, to which they are parties by reason of being or
having been a director or officer of Simtek.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933, as amended (the "Securities Act") may be permitted to directors,
officers and controlling persons of Simtek pursuant to the foregoing provisions,
or otherwise, Simtek has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Securities Act and is, therefore, unenforceable.
Item 8. Exhibits.
Exhibit
Number Description
------- -----------
4.1 Ninth Amendment to the Simtek Corporation 1994 Non-Qualified
Stock Option Plan
4.2 Tenth Amendment to the Simtek Corporation 1994 Non-Qualified Stock
Option Plan
4.3 Eleventh Amendment to the Simtek Corporation 1994 Non-Qualified
Stock Option Plan
5.1 Opinion of Holme Roberts & Owen LLP
23.1 Consent of Hein & Associates LLP, Independent Registered Public
Accounting Firm
23.2 Consent of Holme Roberts & Owen LLP (included in Exhibit 5.1)
SIGNATURES
Pursuant to the requirements of the Securities Act, 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 10,
2007.
SIMTEK CORPORATION
By: /s/ Harold Blomquist
-----------------------------------------------
Harold Blomquist
Chairman, Chief Executive Officer and President
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed by the following persons in the capacities and on the
dates indicated.
Signature Title Date
--------- ----- ----
/s/ Harold Blomquist Chairman of the Board, Chief Executive April 10, 2007
------------------------------
Harold Blomquist Officer and President
/s/ Brian Alleman Secretary, Vice President and Chief April 10, 2007
------------------------------
Brian Alleman Financial Officer
/s/ Kim Carothers Controller (Principal Accounting Officer) April 10, 2007
------------------------------
Kim Carothers
/s/ Alfred Stein Director April 10, 2007
------------------------------
Alfred Stein
/s/ Robert Keeley Director April 10, 2007
------------------------------
Robert Keeley
/s/ Ronald Sartore Director April 10, 2007
------------------------------
Ronald Sartore
/s/ John Hillyard Director April 10, 2007
------------------------------
John Hillyard