Exhibit 99.2
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SHARE PURCHASE AGREEMENT
THIS SHARE PURCHASE AGREEMENT (this "Agreement"), dated as of May 4, 2005,
is by and between SIMTEK CORPORATION, a Colorado corporation ("Simtek"), and
Cypress Semiconductor Corporation, a Delaware corporation ("Cypress").
Recitals
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A. Cypress desires to purchase shares of Simtek common stock and Simtek
desires to issue and sell such shares to Cypress on the terms set forth herein.
B. The parties also desire to enter into a joint development project
whereby one or more Simtek memory products will be manufactured by Cypress on
Cypress' 0.13 micron SONOS ("S8") process.
Agreement
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In consideration of the premises and the mutual covenants and agreements
set forth herein, the parties hereto agree as follows:
1. Purchase of Stock; Closing.
(a) Stock Purchase. Upon the terms and subject to the conditions of this
Agreement, on the date hereof, Cypress shall purchase from Simtek, and Simtek
shall issue and sell to Cypress, 6,740,816 shares of common stock, $0.01 par
value per share, of Simtek (the "Simtek Shares"), in return for Four Million
Dollars ($4,000,000.00) (the "Purchase Price").
(b) Ancillary Agreements. Upon the terms and conditions of this Agreement,
on the date hereof, Simtek shall issue to Cypress a warrant (the "Warrant"), in
the form attached hereto as Exhibit A, registered in the name of Cypress,
pursuant to which Cypress shall have the right to acquire 5,055,612 shares of
Simtek common stock (the "Warrant Shares" and, together with the Simtek Shares
and the Warrant, the "Securities"), and the parties shall enter into the
Registration Rights Agreement in the form attached hereto as Exhibit B (the
"Registration Rights Agreement"), the Production and Development Agreement in
the form attached hereto as Exhibit C (the "Development Agreement"), the Escrow
Agreement in the form attached hereto as Exhibit D (the "Escrow Agreement") and
the Subordination Agreement in the form attached hereto as Exhibit E (the
"Subordination Agreement").
(c) Simtek Deliveries. Upon execution and delivery of this Agreement,
Simtek shall deliver or cause to be delivered to Cypress the following:
(i) certificates evidencing the Simtek Shares, registered in the name
of Cypress;
(ii) the Warrant, duly executed by Simtek;
(iii) the Registration Rights Agreement, duly executed by Simtek;
(iv) the Development Agreement, duly executed by Simtek;
(v) the Escrow Agreement, duly executed by Simtek;
(vi) the Subordination Agreement, duly executed by Simtek; and
(vii) a certificate of the Secretary of the Company, in form and
substance reasonably satisfactory to counsel for Cypress, certifying that
attached to such certificate is a true and correct copy of resolutions duly and
validly adopted by the Board of Directors of Simtek authorizing the execution
and delivery of this Agreement, the transactions contemplated hereunder, the
Warrant and the issuance of the Securities to Cypress.
(d) Cypress Deliveries. Upon execution and delivery of this Agreement,
Cypress shall deliver or cause to be delivered to Simtek the following:
(i) the Purchase Price via wire transfer of immediately available
funds;
(ii) the Registration Rights Agreement, duly executed by Cypress;
(iii) the Development Agreement, duly executed by Cypress;
(iv) the Escrow Agreement, duly executed by Cypress; and
(v) the Subordination Agreement, duly executed by Cypress.
(e) Escrow Account. Immediately after the closing, Simtek shall transfer
three million dollars ($3,000,000) (the "Escrow Amount") in immediately
available funds to an escrow account in accordance with the terms of the Escrow
Agreement.
2. Simtek Representations and Warranties. Except as set forth in the Schedule of
Exceptions attached hereto as Schedule 2 (the "Simtek Schedule of Exceptions"),
Simtek represents and warrants to Cypress as follows:
(a) Organization; Existence; Good Standing. Simtek is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Colorado. Simtek is not in violation of any of the provisions of its Articles of
Incorporation or Bylaws. Simtek is duly qualified to conduct its business and is
in good standing as a foreign corporation or other entity in each jurisdiction
in which the nature of the business conducted or property owned by it makes such
qualification necessary, except where the failure to be so qualified or in good
standing, as the case may be, would not, individually or in the aggregate, have
or reasonably be expected to result in any material adverse change, either
individually or in the aggregate, in the business, operations, properties,
assets or condition (financial or other) (a "Material Adverse Effect") on
Simtek.
(b) Due Authorization. Simtek has the full corporate power and authority to
enter into this Agreement and to consummate the transactions contemplated hereby
and thereby. Each of the Agreement, Warrant, Registration Rights Agreement,
Development Agreement, Subordination Agreement and Escrow Agreement has been
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duly executed and delivered by Simtek and constitutes the valid and binding
obligation of Simtek enforceable against Simtek in accordance with its terms. No
further corporate action is required by Simtek in connection therewith. The
issuance of the Simtek Shares has been duly authorized, and upon issuance to
Cypress pursuant to the terms hereof, will be validly issued, fully paid and
nonassessable and are and will be free and clear of any lien or encumbrances
except as set forth in this Agreement and under applicable securities laws. When
the Warrant is exercised and the exercise price paid in accordance with the
terms thereof, the Warrant Shares will be validly issued, fully paid and
non-assessable. Even upon the distribution of the Escrow Amount to Cypress in
accordance with the Escrow Agreement, (i) the Simtek Shares will be validly
issued, fully paid and nonassessable, and (ii) the Warrant Shares will be
validly issued, fully paid and non-assessable when the Warrant is exercised and
the exercise price paid in accordance with the terms of the Warrant.
Notwithstanding anything else herein to the contrary, the preceding sentence
shall survive indefinitely. Simtek has reserved from its duly authorized capital
stock the shares of its common stock issuable pursuant to this Agreement and the
Warrant in order to issue the Securities to Cypress.
(c) No Brokers. Simtek has not incurred, and will not incur, directly or
indirectly, any liability for brokerage or finders' fees or agents' commissions
or investment bankers' fees or any similar charges in connection with this
Agreement or any transaction contemplated hereby.
(d) No Conflicts. Except as set forth on Section 2(d) of the Simtek
Schedule of Exceptions, the execution, delivery and performance by Simtek of
each of the Agreement, Warrant, Registration Rights Agreement, Development
Agreement, Subordination Agreement and Escrow Agreement and the consummation by
Simtek of the transactions contemplated thereunder do not and will not (a)
violate or conflict with any provision of each of Simtek's Articles of
Incorporation or Bylaws, (b) breach any provision of, or be an event that is (or
with the passage of time will result in) a default of, or result in the
cancellation or acceleration of (whether after the giving of notice or lapse of
time or both) any obligation under, or result in the imposition or creation of
any encumbrances upon any of the assets of Simtek pursuant to, any material
contract, mortgage, lien, lease, agreement or instrument to which Simtek is a
party or by which Simtek is bound, (c) violate any legal requirement applicable
to Simtek, including the legal requirements of the National Association of
Securities Dealers, or any of its properties or assets, or (d) require any
authorization, consent, order, permit or approval of, or notice to, or filing,
registration or qualification with, any government authority except as will not
singly or in the aggregate have a Material Adverse Effect on Simtek and except
for filings required by state securities laws and the filing of a Notice of Sale
of Securities on Form D with the Securities and Exchange Commission (the "SEC")
under Regulation D of the Securities Act of 1933, as amended (the "Securities
Act").
(e) No Litigation. There is no litigation, proceeding or investigation
pending or, to the best knowledge of Simtek, threatened against Simtek in any
federal, state or local court, or before any administrative agency, that seeks
to enjoin or prohibit, or otherwise questions the validity of, any action taken
or to be taken pursuant to or in connection with this Agreement.
(f) Exchange Act Filings; Financial Statements. Simtek has filed all
reports, forms or other information required to be filed by it under the
Securities Act and the Securities Exchange Act of 1934, as amended (the
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"Exchange Act"), including pursuant to Section 13(a) or 15(d) thereof, for the
twelve months preceding the date hereof (or such shorter period as Simtek was
required by law to file such reports, forms or other information) (the foregoing
materials being collectively referred to herein as the "SEC Reports") on a
timely basis or has timely filed a valid extension of such time of filing and
has filed any such SEC Reports prior to the expiration of any such extension. As
of their respective dates, the SEC Reports complied in all material respects
with the requirements of the Securities Act and the Exchange Act and the rules
and regulations of the SEC promulgated thereunder, and none of the SEC Reports,
when filed, contained any untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary in order to
make the statements therein, in light of the circumstances under which they were
made, not misleading. The financial statements of Simtek included in the SEC
Reports comply, in all material respects, with applicable accounting
requirements and the rules and regulations of the SEC with respect thereto as in
effect at the time of filing. Such financial statements have been prepared in
accordance with GAAP applied on a consistent basis during the periods involved,
except as may be otherwise specified in such financial statements or the notes
thereto, and fairly present in all material respects the financial position of
Simtek and its consolidated subsidiaries as of and for the dates thereof and the
results of operations and cash flows for the periods then ended, subject, in the
case of unaudited statements, to normal, immaterial, year-end audit adjustments.
For purposes of this Agreement, any reports, forms or other information provided
to the SEC, whether by filing, furnishing or otherwise providing, is included in
the term "filed" (or any derivations thereof).
(g) Capitalization. The Form 10-KSB filed by Simtek for the year ended
December 31, 2004, as supplemented by Section 2(g) of the Simtek Schedule of
Exceptions, contains a true and correct statement of the authorized, issued and
outstanding equity ownership of Simtek as of the date hereof. Other than as set
forth therein, there are no other outstanding shares of capital stock or other
securities of Simtek and no outstanding subscriptions, options, warrants, puts,
calls, rights, exchangeable or convertible securities, or other commitments or
agreements of any nature relating to the capital stock or other securities of
Simtek, or otherwise obligating Simtek to issue, transfer, sell, purchase,
redeem or otherwise acquire such stock or securities. All outstanding shares of
Simtek's common stock are duly authorized and validly issued and are fully paid
and non-assessable.
(h) Press Releases. The press releases disseminated by Simtek during the
twelve months preceding the date of this Agreement do not, individually or taken
as a whole with the SEC Reports, contain any untrue statement of a material fact
or omit to state a material fact required to be stated therein or necessary in
order to make the statements therein, in light of the circumstances under which
they were made and when made, not misleading.
(i) Material Changes. Since the date of the latest audited financial
statements included within the SEC Reports, except as specifically disclosed in
the SEC Reports or as set forth on Section 2(i) of the Simtek Schedule of
Exceptions, (i) there has been no event, occurrence or development that has had
or that could reasonably be expected to result in a Material Adverse Effect on
Simtek, (ii) to the knowledge of Simtek, Simtek has not incurred any liabilities
(contingent or otherwise) other than (A) trade payables, accrued expenses and
other liabilities incurred in the ordinary course of business consistent with
past practice and (B) liabilities (not to exceed $450,000) not required to be
disclosed in filings made with the SEC, (iii) Simtek has not altered its method
of accounting or the identity of its auditors, (iv) Simtek has not declared or
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made any dividend or distribution of cash or other property to its shareholders
or purchased, redeemed or made any agreements to purchase or redeem any shares
of its capital stock, and (v) Simtek has not issued any equity securities,
except pursuant to existing Simtek stock option plans and consistent with past
practice. Simtek does not have pending before the SEC any request for
confidential treatment of information.
(j) Labor Relations. No material labor dispute exists or, to the knowledge
of Simtek, is imminent with respect to any of the employees of Simtek.
(k) Compliance. Except as set forth in the SEC Reports, Simtek (i) is not
in default under or in violation of (and no event has occurred that has not been
waived that, with notice or lapse of time or both, would result in a default by
Simtek), nor has Simtek received notice of a claim that it is in default under
or that it is in violation of, any indenture, loan or credit agreement or any
other agreement or instrument to which it is a party or by which it or any of
its properties is bound (whether or not such default or violation has been
waived), (ii) is not in violation of any order of any court, arbitrator or
governmental body, and (iii) is not and has not been in violation of any
statute, rule or regulation of any governmental authority, including all
foreign, federal, state and local laws relating to taxes, environmental
protection, occupational health and safety, product quality and safety and
employment and labor matters, except in each case as could not, individually or
in the aggregate, have or reasonably be expected to result in a Material Adverse
Effect on Simtek. Simtek is in compliance with all effective requirements of the
Xxxxxxxx-Xxxxx Act of 2002, as amended, and the rules and regulations
thereunder, that are applicable to it, except where such noncompliance could not
have or reasonably be expected to result in a Material Adverse Effect on Simtek.
(l) Regulatory Permits. Simtek possesses all certificates, authorizations
and permits issued by the appropriate federal, state, local or foreign
regulatory authorities necessary to conduct its business as described in the SEC
Reports, except where the failure to possess such permits could not,
individually or in the aggregate, have or reasonably be expected to result in a
Material Adverse Effect on Simtek, and Simtek has not received any notice of
proceedings relating to the revocation or modification of any such permits
except as would not in the aggregate result in a Material Adverse Effect on
Simtek.
(m) Title to Assets. Except as set forth on Section 2(m) of the Simtek
Schedule of Exceptions, Simtek has good and marketable title in fee simple to
all real property owned by it that is material to its business and good and
marketable title in all personal property owned by it that is material to its
business, in each case free and clear of all liens, except for liens as do not
materially affect the value of such property and do not materially interfere
with the use made and proposed to be made of such property by Simtek. Any real
property and facilities held under lease by Simtek are held by it under valid,
subsisting and enforceable leases of which Simtek is in compliance, except as
could not, individually or in the aggregate, have or reasonably be expected to
result in a Material Adverse Effect on Simtek.
(n) Patents and Trademarks. Simtek has, or has rights to use, all patents,
patent applications, trademarks, trademark applications, service marks, trade
names, copyrights, licenses and other similar intellectual property rights that
are necessary or material for use in connection with its business as described
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in the SEC Reports and which the failure to so have could, individually or in
the aggregate, have or reasonably be expected to result in a Material Adverse
Effect on Simtek (collectively, the "Intellectual Property Rights"). Except as
disclosed in the SEC Reports, Simtek has not received a written notice that the
Intellectual Property Rights used by it violate or infringe upon the rights of
any Person. Except as set forth in the SEC Reports, all such Intellectual
Property Rights are enforceable and, to the knowledge of Simtek, there is no
existing infringement by another person of any of the Intellectual Property
Rights.
(o) Insurance. Simtek maintains such insurance relating to its business,
operations, assets, key employees and officers and directors as is specifically
described in Section 2(o) to the Simtek Schedule of Exceptions.
(p) Transactions with Affiliates and Employees. Except as set forth in the
SEC Reports, none of the officers or directors of Simtek, and, to the knowledge
of Simtek, none of the employees of Simtek is presently a party to any
transaction with Simtek (other than for services as employees, officers and
directors), including any contract, agreement or other arrangement providing for
the furnishing of services to or by, providing for rental of real or personal
property to or from, or otherwise requiring payments to or from any officer,
director or such employee or, to the knowledge of Simtek, any entity in which
any officer, director, or any such employee has a substantial interest or is an
officer, director, trustee or partner.
(q) Internal Accounting Controls. Simtek maintains a system of internal
accounting controls sufficient to provide reasonable assurance that (i)
transactions are executed in accordance with management's general or specific
authorizations, (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with GAAP and to maintain
asset accountability, (iii) access to assets is permitted only in accordance
with management's general or specific authorization, and (iv) the recorded
accountability for assets is compared with the existing assets at reasonable
intervals and appropriate action is taken with respect to any differences.
Simtek has established disclosure controls and procedures (as defined in the
Exchange Act rules 13a-15(e) and 15(d)-15(e)) for Simtek and designed such
disclosure controls and procedures to ensure that material information relating
to Simtek, including its subsidiaries, is made known to the certifying officers
by others within those entities, particularly during the period in which
Simtek's Form 10-KSB or 10-QSB, as the case may be, is being prepared. Simtek's
certifying officers have evaluated the effectiveness of Simtek's controls and
procedures as of the last day of the period covered by the Form 10-KSB for
Simtek's most recently ended fiscal year (such date, the "Evaluation Date").
Simtek presented in its most recently filed Form 10-KSB or Form 10-QSB the
conclusions of the certifying officers about the effectiveness of the disclosure
controls and procedures based on their evaluations as of the Evaluation Date.
Simtek has disclosed in its most recently filed Form 10-KSB or Form 10-QSB any
change in the registrant's internal control over financial reporting that
occurred during the registrant's most recent fiscal quarter that has materially
affected, or is reasonably likely to materially affect, the registrant's
internal control over financial reporting.
(r) Solvency. Based on the financial condition of Simtek as of the date
hereof (i) Simtek's fair saleable value of its assets exceeds the amount that
will be required to be paid on or in respect of Simtek's existing debts and
other liabilities (including known contingent liabilities) as they mature; (ii)
Simtek's assets do not constitute unreasonably small capital to carry on its
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business for the current fiscal year as now conducted and as proposed to be
conducted including its capital needs taking into account the particular capital
requirements of the business conducted by Simtek, and projected capital
requirements and capital availability thereof; and (iii) the current cash flow
of Simtek, together with the proceeds Simtek would receive, were it to liquidate
all of its assets, after taking into account all anticipated uses of the cash,
would be sufficient to pay all amounts on or in respect of its debt when such
amounts are required to be paid. Simtek does not intend to incur debts beyond
its ability to pay such debts as they mature (taking into account the timing and
amounts of cash to be payable on or in respect of its debt).
(s) Certain Registration Matters. Assuming the accuracy of Cypress's
representations and warranties set forth in Section 3, no registration under the
Securities Act is required for the offer and sale of the Securities by Simtek to
Cypress under this Agreement. Simtek is eligible to register the resale of its
Securities by Cypress on Form S-2 promulgated under the Securities Act. Except
as set forth on Section 2(s) of the Simtek Schedule of Exceptions, Simtek has
not granted or agreed to grant to any person any rights (including "piggy back"
registration rights) to have any securities of Simtek registered with the SEC or
any other governmental authority that have not been satisfied or exercised.
(t) Listing and Maintenance Requirements. Except as specified in the SEC
Reports, Simtek has not, in the two years preceding the date hereof, received
notice from the OTC Bulletin Board (the "OTCBB") to the effect that Simtek is
not in compliance with the listing or maintenance requirements thereof. Simtek
is, and has no reasonable grounds to believe that it will not in the foreseeable
future continue to be, in compliance with the listing and maintenance
requirements for continued listing of its common stock on the OTCBB on which its
common stock is currently listed or quoted. The issuance and sale of the
Securities under this Agreement does not contravene the rules and regulations of
the OTCBB, and no approval of the shareholders of Simtek is required for Simtek
to issue and deliver to Cypress the Securities contemplated by this Agreement.
(u) Investment Company. Simtek is not, and is not an affiliate of, and
immediately following the transactions contemplated hereunder will not have
become, an "investment company" within the meaning of the Investment Company Act
of 1940, as amended.
(v) Application of Takeover Provisions. Simtek has taken all necessary
action, if any, in order to render inapplicable any control share acquisition,
business combination, poison pill (including any distribution under a rights
agreement) or other similar anti-takeover provision under Simtek's Articles of
Incorporation or Bylaws (or similar charter documents) or the laws of its state
of incorporation that is or would become applicable to Cypress or shareholders
of Simtek prior to the date hereof as a result of Cypress and Simtek fulfilling
their obligations or exercising their rights under this Agreement, including
Simtek's issuance of the Securities and Cypress's ownership of the Securities.
3. Cypress Representations and Warranties. Cypress hereby represents and
warrants to Simtek as follows:
(a) Organization; Existence; Good Standing. Cypress is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware.
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(b) Due Authorization. Cypress has the full corporate power and authority
to enter into this Agreement, the Development Agreement, the Registration Rights
Agreement, the Subordination Agreement and the Escrow Agreement and to
consummate the transactions contemplated hereby and thereby. Each of the
Agreement, Registration Rights Agreement, Development Agreement, Subordination
Agreement and Escrow Agreement have been duly executed and delivered by Cypress
and constitutes the valid and binding obligation of Cypress enforceable against
Cypress in accordance with its terms.
(c) No Brokers. Cypress has not incurred, and will not incur, directly or
indirectly, any liability for brokerage or finders' fees or agents' commissions
or investment bankers' fees or any similar charges in connection with this
Agreement or any transaction contemplated hereby.
(d) No Conflicts. The execution, delivery and performance by Cypress of
this Agreement, the Development Agreement, the Registration Rights Agreement,
the Subordination Agreement and the Escrow Agreement, and the consummation of
the transactions contemplated hereby and thereby do not and will not (a) violate
or conflict with any provision of each of Cypress' Certificate of Incorporation
or Bylaws, (b) breach any provision of, or be an event that is (or with the
passage of time will result in) a default, or result in the cancellation or
acceleration of (whether after the giving of notice or lapse of time or both)
any obligation under, or result in the imposition or creation of any
encumbrances upon any of the assets of Cypress pursuant to, any material
contract, mortgage, lien, lease, agreement or instrument to which Cypress is a
party or by which Cypress is bound, (c) violate any legal requirement applicable
to Cypress, including the legal requirements of the National Association of
Securities Dealers, or any of its properties or assets, or (d) require any
authorization, consent, order, permit or approval of, or notice to, or filing,
registration or qualification with, any government authority except as will not
singly or in the aggregate have a Material Adverse Effect on Cypress.
(e) Investment Intent. Cypress is acquiring the Securities as principal for
its own account for investment purposes only and not with a view to or for
distributing or reselling such Securities or any part thereof, without
prejudice, however, to Cypress's right at all times to sell or otherwise dispose
of all or any part of such Securities in compliance with applicable federal and
state securities laws. Cypress does not have any agreement or understanding,
directly or indirectly, with any person to distribute any of the Securities.
(f) Investor Status. At the time Cypress was offered the Securities, it
was, and at the date hereof it is, an "accredited investor" as defined in Rule
501(a) under the Securities Act. Cypress is not a registered broker-dealer under
Section 15 of the Exchange Act.
(g) General Solicitation. Cypress is not purchasing the Securities as a
result of any advertisement, article, notice or other communication regarding
the Securities published in any newspaper, magazine or similar media or
broadcast over television or radio or presented at any seminar or any other
general solicitation or general advertisement.
(h) Access to Information. Cypress acknowledges that it has been afforded
(i) the opportunity to ask such questions as it has deemed necessary of, and to
receive answers from, representatives of Simtek concerning the terms and
conditions of the offering of the Securities and the merits and risks of
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investing in the Securities; (ii) access to information about Simtek and its
subsidiary and their respective financial condition, results of operations,
business, properties, management and prospects sufficient to enable it to
evaluate its investment; and (iii) the opportunity to obtain such additional
information that Simtek possesses or can acquire without unreasonable effort or
expense that is necessary to make an informed investment decision with respect
to the investment.
(i) Independent Investment Decision. Cypress has independently evaluated
the merits of its decision to purchase Securities pursuant to this Agreement,
and Cypress confirms that it has not relied on the advice of any person's
business and/or legal counsel in making such decision.
4. Certain Covenants.
(a) Securities may only be disposed of in compliance with state and federal
securities laws. In connection with any transfer of the Securities other than
pursuant to an effective registration statement, Simtek may require the
transferor thereof to provide to Simtek an opinion of counsel selected by the
transferor, the form and substance of which opinion shall be reasonably
satisfactory to Simtek, to the effect that such transfer does not require
registration of such transferred Securities under the Securities Act.
(b) Certificates evidencing the Securities will contain the following
legend, until such time as they are not required under the Registration Rights
Agreement:
[NEITHER THESE SECURITIES NOR THE SECURITIES ISSUABLE UPON EXERCISE OF THESE
SECURITIES HAVE BEEN REGISTERED] [THESE SECURITIES HAVE NOT BEEN REGISTERED]
WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY
STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED
OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION
NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN
ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS AS EVIDENCED BY A LEGAL OPINION
OF COUNSEL TO THE TRANSFEROR TO SUCH EFFECT, THE SUBSTANCE OF WHICH SHALL BE
REASONABLY ACCEPTABLE TO THE COMPANY.
(c) Furnishing of Information. As long as Cypress owns the Securities,
Simtek covenants to timely file (or obtain extensions in respect thereof and
file within the applicable grace period) all reports required to be filed by
Simtek after the date hereof pursuant to the Exchange Act. As long as Cypress
owns Securities, if Simtek is not required to file reports pursuant to such
laws, it will prepare and furnish to Cypress and make publicly available in
accordance with Rule 144(c) such information as is required for Cypress to sell
the Simtek Shares and Warrant Shares under Rule 144. Simtek further covenants
that it will take such further action as any holder of Securities may reasonably
request, all to the extent required from time to time to enable such person to
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sell the Simtek Shares and Warrant Shares without registration under the
Securities Act within the limitation of the exemptions provided by Rule 144.
(d) Allocation of Purchase Price. The parties agree that the allocation of
the purchase price with respect to this Agreement shall be as set forth in
Schedule 4(d) hereto.
5. Indemnification.
(a) Subject to the limitations set forth in Section 5(d), Cypress covenants
and agrees that it shall indemnify, defend, protect and hold harmless Simtek,
its directors, officers, employees and agents (the "Simtek Indemnified
Parties"), at all times from and after the date of this Agreement (subject to
any limitation on the survival of representations and warranties set forth in
Section 5(d)), against all losses, claims, damages, actions, suits, proceedings,
demands, assessments, adjustments, costs and expenses (including specifically,
but without limitation, reasonable attorneys' fees and expenses of
investigation) ("Simtek Losses") incurred or suffered by any of the Simtek
Indemnified Parties based upon, resulting from or arising out of any inaccuracy
or breach of any representation or warranty of Cypress in this Agreement.
(b) Simtek covenants and agrees that it will indemnify, defend, protect and
hold harmless Cypress, its directors, officers, employees and agents (the
"Cypress Indemnified Parties") at all times from and after the date of this
Agreement (subject to any limitation on the survival of representations and
warranties set forth in Section 5(d)) against all losses, claims, damages,
actions, suits, proceedings, demands, assessments, adjustments, costs and
expenses (including specifically, but without limitation, reasonable attorneys'
fees and expenses of investigation) ("Cypress Losses") incurred or suffered by
any of the Cypress Indemnified Parties based upon, resulting from or arising out
of any inaccuracy or breach of any representation or warranty of Simtek
contained in this Agreement.
(c) Promptly after receipt by any person entitled to indemnification (an
"indemnified party") of notice of the commencement of any action, suit or
proceeding by a person not a party to this Agreement in respect of which the
indemnified party will seek indemnification hereunder (a "Third Party Action"),
the indemnified party shall notify the person that is obligated to provide such
indemnification (the "indemnifying party") thereof in writing, specifying in
reasonable detail the action, suit or proceeding (including, without limitation,
the name and location of the claimant or the parties to the action, suit or
proceeding), an estimate of the amount of Simtek Losses or Cypress Losses, as
applicable, attributable to the action, suit or proceeding, if reasonably
possible, and the basis for indemnification, and transmitting a copy of all
papers served with respect to such action, suit or proceeding (if any);
provided, however that any failure to so notify the indemnifying party shall not
relieve it from any liability that it may have to the indemnified party, except
to the extent that the indemnifying party is prejudiced by the failure to give
such notice. The indemnifying party shall be entitled to participate in the
defense of such Third Party Action and to assume control of such defense
(including settlement of such Third Party Action) with counsel reasonably
satisfactory to such indemnified party.
(d) Each of the representations and warranties made by Cypress or Simtek in
this Agreement shall survive for a period of 18 months from the date hereof. No
10
claim for indemnification under this Agreement shall be asserted by any
indemnified party after the expiration and termination of the representations
and warranties.
6. Miscellaneous.
(a) Status of Parties. Nothing contained in this Agreement will be deemed
or construed as creating a joint venture or partnership between the parties.
Neither party will have the power to control the activities and operations of
the other and their status is, and at all times will continue to be, that of
independent contractors with respect to each other. Neither party will hold
itself out as having any authority or relationship with the other in
contravention of this Section 6(a), and neither party will act on behalf of the
other party or enter into any contracts, warranty, or representation as to any
other matter on the behalf of the other party.
(b) Effect of Waiver. No waiver whether express or implied, of any breach
of any term, condition, or obligation of this Agreement will be construed as a
waiver of any subsequent breach of that term, condition, or obligation, or any
other term, condition, or obligation of this Agreement of the same or different
nature.
(c) Notices. Any notice or other communication required or permitted under
this Agreement will be given in writing and will be sent by facsimile or
commercially recognized express courier to the address specified below or to any
other address that may be designated by prior notice. Any notice or other
communication delivered by facsimile will be deemed to have been received the
day it is sent and must be confirmed by a copy sent by express courier. Any
notice or other communication sent by commercially recognized courier will be
deemed to have been received on the 3rd business day after delivery to the
courier.
Notices to be given to Cypress will be addressed to:
Cypress Semiconductor Corporation
0000 Xxxxx Xxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Facsimile: (000) 000-0000
Attn: Senior Vice President, Memory Products Division
With a copy to:
Cypress Semiconductor Corporation
0000 Xxxxx Xxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Facsimile: (000) 000-0000
Attn: Xxxxx Xxxxxx, Esq.
If given to Simtek, it will be addressed to:
Simtek Corporation
Attention: Xxxxxxx Xxxxxxxx
0000 Xxxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxx Xxxxxxx, XX 00000
Facsimile: (000) 000-0000
11
Either Party hereto may at any time, by 30 days written notice to the
other, designate any other person or address in place of those provided in this
Section.
(d) Severability. If any provision of this Agreement becomes or is declared
by a court of competent jurisdiction to be illegal, unenforceable or void, this
Agreement will continue in full force and effect without said provision;
provided that no such severability will be effective if it materially changes
the economic benefit of this Agreement to any party.
(e) Governing Law. This Agreement will be governed and construed in all
respects in accordance with the laws of the State of California as applied to
agreements made and performed in California by residents of the State of
California.
(f) Facsimile and E-Mail Signatures. Any signature page delivered by a fax
machine or by e-mail will be binding to the same extent as an original signature
page, with regard to any agreement subject to the terms hereof or any amendment
thereto. Any party who delivers such a facsimile signature page or scanned
signature page agrees to later deliver an original counterpart to any party
which requests it.
(g) Counterparts. This Agreement may be executed in any number of
counterparts, each of which may be executed by less than all of the parties,
each of which will be enforceable against the parties actually executing such
counterparts, and all of which together will constitute one instrument.
(h) Interpretation. When a reference is made in this Agreement to Exhibits,
Schedules or Sections, such reference shall be to an Exhibit, Schedules or
Section to this Agreement unless otherwise indicated. The words "include,"
"includes" and "including" when used herein shall be deemed in each case to be
followed by the words "without limitation." The phrase "made available" in this
Agreement shall mean that the information referred to has been made available if
requested by the party hereto to whom such information is to be made available.
The Section headings contained in this Agreement are for reference purposes only
and shall not affect in any way the meaning or interpretation of this Agreement.
In this Agreement, any reference to a party's "knowledge" means such party's
actual knowledge after reasonable inquiry of executive officers of such party.
Whenever the context may require, any pronoun shall include the corresponding
masculine, feminine and neuter forms.
(i) Entire Agreement; Nonassignability; Parties in Interest. This Agreement
and the documents and instruments and other agreements specifically referred to
herein or delivered pursuant hereto, including the Exhibits and the attached
Schedule (a) constitute the entire agreement among the parties hereto with
respect to the subject matter hereof and supersede all prior agreements and
understandings, both written and oral, among the parties hereto with respect to
the subject matter hereof; (b) are not intended to confer upon any other person
any rights or remedies hereunder; and (c) shall not be assigned by operation of
law or otherwise except as otherwise specifically provided.
(j) Remedies Cumulative; No Waiver. Except as otherwise provided herein,
any and all remedies herein expressly conferred upon a party will be deemed
12
cumulative with and not exclusive of any other remedy conferred hereby, or by
law or equity upon such party, and the exercise by a party of any one remedy
will not preclude the exercise of any other remedy. No failure or delay on the
part of any party hereto in the exercise of any right hereunder shall impair
such right or be construed to be a waiver of, or acquiescence in, any breach of
any representation, warranty or agreement herein, nor shall any single or
partial exercise of any such right preclude other or further exercise thereof or
of any other right.
(k) Further Assurances. In case at any time after the execution and
delivery of this Agreement any further action is necessary or desirable to carry
out the purposes of this Agreement, the proper officers of Simtek and Cypress
shall take all such necessary action.
(l) Amendment. The parties hereto may cause this Agreement to be amended at
any time by execution of an instrument in writing signed by Simtek and Cypress.
[Remainder of Page Left Intentionally Blank]
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IN WITNESS WHEREOF, the parties hereto have caused this Share Purchase
Agreement to be executed and delivered by their respective officers thereunto
duly authorized, all as of the date first written above.
SIMTEK CORPORATION
By: /S/ XXXXXXX XXXXXXXX
------------------------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: President
CYPRESS SEMICONDUCTOR CORPORATION
By: /S/ A.R. XXXXXXX
------------------------------------------------
Name: A.R. Xxxxxxx
Title: GM & SR VP
Memory Products
Exhibit A
---------
Form of Warrant
Exhibit B
---------
Form of Registration Rights Agreement
Exhibit C
---------
Form of Production and Development Agreement
Exhibit D
---------
Form of Escrow Agreement
Exhibit E
---------
Form of Subordination Agreement
Schedule 2
----------
Simtek Schedule of Exceptions
Schedule 4(d)
-------------
Allocation of Purchase Price
$4,000,000 to Simtek Common Stock.
