EXHIBIT 10.1
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LICENSE AND DEVELOPMENT AGREEMENT
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This License and Development Agreement ("Agreement") is made and entered
into effective as of March 24, 2006 (the "Effective Date") by and between Simtek
Corporation, a Colorado corporation, located at 0000 Xxxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxx Xxxxxxx, XX 00000 ("Simtek") and Cypress Semiconductor Corporation, a
Delaware corporation, located at 0000 Xxxxx 0xx Xxxxxx, Xxx Xxxx, XX 00000
("Cypress"), either of which may hereafter also be referred to as a "Party," or
collectively as the "Parties" hereto.
W I T N E S S E T H
WHEREAS, Cypress is in the business of designing, developing, manufacturing
and marketing a variety of integrated circuits;
WHEREAS, Simtek is in the business of, among other things, [designing,
developing, manufacturing and marketing non-volatile SRAM ("nvSRAM") cells and
related architectures;]
WHEREAS, Cypress desires to license certain intellectual property from
Simtek to develop and manufacture standard, custom and embedded nvSRAM products;
WHEREAS, the Parties desire to co-develop certain nvSRAM products; and
WHEREAS, the Parties desire to formalize an agreement to set forth their
respective rights in certain technologies and wherein they will work together as
set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and promises set
forth herein, the Parties agree as follows:
1. GENERAL DEFINITIONS
Capitalized terms used and not otherwise defined herein shall have the
following meanings:
1.1. "Affiliates" means, with respect to a given subject entity, an entity
which controls, is controlled by or is under common control with the subject
entity. Such entity shall be considered an Affiliate only so long as such
control exists. For the purposes of this definition, "control" means beneficial
ownership of more than fifty percent (50%) of the shares entitled to vote in the
election of directors or other managing authority or, where there are no such
shares, more than fifty percent (50%) of ownership interest representing the
right to make decisions. "Wholly Owned Affiliates" means an entity which is one
hundred percent (100%) controlled by the subject entity.
1.2. "Category A Product" means a product which is primarily a memory,
generally offered in multiple densities and sold as standard datasheet products
to multiple customers, including all products set forth on Exhibit C.
1.3. "Category B Product" means a product including significant
differentiating features, generally customized as a CSIC (Customer Specific
Integrated Circuit) or as an ASIC (Application Specific Integrated Circuit).
1.4. "Category C Product" means a product having significant functionality
independent of the nvSRAM. The part is typically programmable with the nvSRAM
being one of many optional blocks.
1.5. "Confidential Information" means any information regarding the
business, finances or technology of either Party, including technical,
marketing, financial, employee, and planning information, and any other
information that a reasonable person should have known, under the circumstances,
was confidential or proprietary.
1.6. "Cypress Category A Revenue" means revenue earned by Cypress from the
sale of Category A Products.
Simtek and Cypress Proprietary
1.7. "Cypress nvSRAM Products" means all Category A Products, Category B
Products and Category C Products manufactured and sold by or on behalf of
Cypress.
1.8. "Cypress SRAM IP" means circuits, schematics and other design elements
from Cypress static random access memory products that are used to develop
Category A Products.
1.9. "Design Win" means an engagement to sell a given product to a given
customer with respect to a given program or project.
1.10. "Development" means any conception, invention, reduction to practice,
or any modification, enhancement, improvement, or derivative thereto or thereof,
including, without limitation, any correction, addition, extension, upgrade,
compilation, abridgment, or other form in which a work is transformed or
adapted, based on either the Simtek IP or the Cypress SRAM IP.
1.11. "Intellectual Property" means all intellectual property rights as may
exist now or hereafter come into existence regardless of whether such rights
arise under the laws of the laws of the United States or any other state,
country or jurisdiction, including, but not limited to: (a) all patent rights
including all and all right, title and interest in and to all letters patent and
applications for letters patent, and all other government-issued or -granted
indicia of invention ownership, including any reissue, division, term
extensions, continuation or continuation-in-part applications; (b) all
copyrights and all other literary property and author (moral) rights, and all
right, title and interest in and to all copyrights, copyright registrations,
certificates of copyrights and copyrighted interests; (c) all trademarks, trade
names and service marks, and all rights, title and interest in and to all
applications, certifications and registrations therefor; (d) all mask work
rights, mask work applications, and mask work registrations; (e) all rights,
title and interest in and to all trade secrets and trade secret rights; (f) all
licenses or license rights with respect to the foregoing; and (g) all other
analogous rights, such as database rights.
1.12. "New Cypress Processes" means future generations of Cypress process
technologies, including, but not limited to, the S10 Process.
1.13. "nvSRAM Products" means any products which include the nvSRAM cell.
1.14. "Prior Production and Development Agreement" means the Production and
Development Agreement between the Parties dated May 2005.
1.15. "Responsible Officer" means, with respect to Cypress, Xxx Xxxxxxxx
(or an appropriate replacement) and, with respect to Simtek, Xxxxxx Xxxxxxxxx
(or an appropriate replacement).
1.16. "S8 Process" means the process used to produce (fabricate) nvSRAM
Products based on the Cypress S8 0.13-micron SONOS technology.
1.17. "S10 Process" means the process used to produce (fabricate) nvSRAM
Products based on the Cypress S8 0.09-micron SONOS technology.
1.18. "Simtek Category A Revenue" means revenue earned by Simtek from the
sale of Category A products.
1.19. "Simtek IP" means all Intellectual Property necessary for the design,
architecture, development, manufacture and function of Simtek nvSRAM Products or
the Simtek nvSRAM cell, and related architectures such as stacked FLASH, that is
either owned or licensed by Simtek with sufficient rights for Simtek to make the
grant of rights to Cypress contemplated in the Agreement.
1.20. "Simtek nvSRAM Products" means all products set forth in Exhibit C.
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Simtek and Cypress Proprietary
2. LICENSES GRANTED
2.1. Licenses to Cypress. Subject to the terms and conditions of this
Agreement, Simtek grants and agrees to grant to Cypress a royalty-bearing,
worldwide, nonexclusive license to the Simtek IP to make, have made, sell, offer
for sale and import the Cypress nvSRAM Products. Cypress may sublicense the
foregoing rights to its Wholly Owned Affiliates and, upon the prior consent of
Simtek, its other Affiliates, provided that: (i) all such Affiliates comply with
the terms and conditions of this Agreement; (ii) such sublicense shall only
remain in effect so long as the sublicensee remains an Affiliate of Cypress;
(iii) a breach by any such Affiliate shall be treated as a breach by Cypress
under this Agreement; and (iv) Cypress remains ultimately responsible and liable
for any actions of any such Affiliate.
Unless earlier terminated in accordance with the terms of this Agreement, the
license granted in this Section 2.1 shall terminate upon the last to expire of
the Simtek IP rights subject to the license.
2.2. Licenses to Simtek. Subject to the terms and conditions of this
Agreement, Cypress grants and agrees to grant to Simtek a royalty-free,
worldwide, non-exclusive, non-assignable (except as set forth in Section 18.1
below), non-sublicenseable license to the Cypress SRAM IP to make, have made,
sell, offer for sale and import the Simtek nvSRAM Products and nvSRAM cells.
2.3. No Other Rights. No other license, either express or implied, is
granted hereunder with respect to any Intellectual Property of either Party
except as expressly stated above in this Section 2 or otherwise in this
Agreement.
3. ROYALTIES; PAYMENTS; WARRANTS; AUDIT RIGHTS
3.1. Royalties.
3.1.1. Cypress shall pay Simtek a royalty in cash for all Cypress
nvSRAM Products manufactured or sold by or on behalf of Cypress that
incorporate Simtek nvSRAM Products or any portion thereof, or otherwise
utilize any Simtek IP or Developments to or based on any Simtek IP,
depending on the classification of the product as a Category A, Category B
or Category C Product, in accordance with Exhibit A hereto (a "Royalty").
3.1.2. The Royalty rates set forth on Exhibit A shall continue for the
life of the S8 Process. The Parties agree to negotiate in good faith the
Royalty rates for the licensing of Simtek IP for use in future Cypress
processes such as the S10 Process and beyond. In no event shall such
Royalty rates for future processes be more than 1.5 times the rates
described on Exhibit A hereto.
3.2. Reporting, Payment and Warrants.
3.2.1. Cypress will provide Simtek with a report within 30 days of the
completion of each Cypress fiscal quarter detailing the Royalties due
during that quarter. Each report will include information sufficient for
Simtek to determine the number and type(s) of nvSRAM Products manufactured
and sold by or on behalf of Cypress during such month, the total revenue
obtained by Cypress based on such manufacture and sales, and such other
information related thereto as may be reasonably requested by Simtek.
Cypress will accompany each such report with payment in full of all
Royalties due during such quarter.
3.2.2. Cypress shall make a non-refundable pre-payment of Royalties to
Simtek in the amount of $4,000,000. Following receipt by Simtek of the
$4,000,000 payment, Cypress will not be required to make any further
payment of Royalties to Simtek until the total Royalties payable by Cypress
under the Agreement exceed $4,000,000. The $4,000,000 payment will be made
as follows: (a) concurrently with the execution of this Agreement, Cypress
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will make a payment to Simtek in the amount of $2,000,000; and (b) Cypress
shall make additional payments of $1,000,000 each on June 30, 2006 and
December 31, 2006.
3.2.3. Concurrently with the execution of this Agreement, Simtek shall
execute and deliver to Cypress a warrant to acquire shares of common stock
of Simtek in the form and upon the terms and conditions set forth in the
Stock Purchase Warrant attached hereto as Schedule 1. Upon the payment of
$1,000,000 from Cypress to Simtek on June 30, 2006 in accordance with
Section 3.2.2(b), Simtek shall execute and deliver to Cypress a warrant to
acquire shares of common stock of Simtek in the form and upon the terms and
conditions set forth in the Stock Purchase Warrant attached hereto as
Schedule 2. Upon the payment of $1,000,000 from Cypress to Simtek on
December 31, 2006 in accordance with Section 3.2.2(b), Simtek shall execute
and deliver to Cypress a warrant to acquire shares of common stock of
Simtek in the form and upon the terms and conditions set forth in the Stock
Purchase Warrant attached hereto as Schedule 3.
3.3. Records. For at least 2 years after the year to which they pertain,
but for not less than 1 year following the termination or expiration of this
Agreement, each Party will maintain at its principal place of business complete
and accurate records with respect to its activities pursuant to this Agreement,
including in general all data reasonably required for verification of such
Party's compliance with the terms of this Agreement, and as to Cypress the
number and types of products shipped by or on behalf of Cypress, and revenues
generated, under this Agreement in sufficient detail to permit the determination
of Royalties due under this Agreement and the accuracy of the information
provided to Simtek pursuant to this Section 3.
3.4. Audit Rights. Simtek shall have the right to have an inspection and
audit of all relevant accounting and sales books and records of Cypress by an
independent auditor at Simtek's cost and expense. Unless otherwise agreed to in
writing, such inspection and audit shall be conducted during Cypress' regular
business hours at Cypress' regular business offices and in such a manner as not
to interfere with Cypress' normal business activities. Such independent auditor
shall sign a customary non-disclosure agreement in form and substance
satisfactory to Cypress and shall disclose to Simtek only that information that
is necessary to determine the Royalties and other payments due to Simtek.
Notwithstanding the foregoing, Cypress shall not be required to disclose the
name of, or otherwise identify, any customer. Such inspection and audit shall
require at least 30 days advance written notice and shall be held no more
frequently than once per calendar year. If such inspection and audit reveals
that Cypress has underpaid Simtek for the amounts actually owed hereunder by 5%
or more for the period audited, Cypress shall have the right to cure such
"underbilling" within 60 days after being provided with written notice thereof.
If the inspection and audit reveals an "underbilling" as stated above, Cypress
will reimburse Simtek for all reasonable costs and expenses (not to exceed
$15,000 on a per audit basis) incurred by Simtek in connection with such
inspection and audit. In addition, Cypress will promptly pay to Simtek any
amounts shown by any such inspection and audit to be owing plus interest at a
rate of 18% per year or the maximum rate permitted by applicable law, whichever
is less.
3.5 Royalty Buy-Out. Once the total Royalties payable by Cypress under the
Agreement exceed the $4,000,000 prepaid Royalty, the Parties agree to negotiate
in good faith the terms and conditions under which Cypress would be allowed to
buyout any future royalties that are due or might become due to Simtek under
this Agreement.
4. JOINT DEVELOPMENT OF PRODUCTS
4.1. Joint Products. During the term of this Agreement, each Party will
submit any nvSRAM Product incorporating or otherwise based on the Intellectual
Property of the other Party (or any Developments to or based on any Intellectual
Property of the other Party) for potential joint development and
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commercialization with the other Party using the process set forth in this
Section 4.1 (any such jointly developed and commercialized nvSRAM Product, a
"Joint Product"). The Parties will determine whether any such nvSRAM Product of
either Party should be treated as a Joint Product as follows:
4.1.1. Approval Committee A committee comprised of not less than the
Simtek Vice President of Marketing and Vice President of Engineering and
two (2) representatives of equivalent level designated by Cypress shall
comprise a Joint Product Development review and approval committee (the
"Approval Committee").
4.1.2. Submission of Products to the Committee. Prior to beginning the
development or manufacture of any new nvSRAM Product incorporating or
otherwise based on the Intellectual Property of the other Party (or any
Developments to or based on any Intellectual Property of the other Party),
each Party will submit the nvSRAM Product to the Approval Committee.
4.1.3. Approval of Joint Products. The Approval Committee will
consider whether any nvSRAM Product submitted to the Approval Committee
should be a Joint Product. If after thirty (30) days following submission,
the Approval Committee is unable to reach unanimous agreement on whether a
particular nvSRAM Product should be a Joint Product initiative, the
decision shall be escalated to an Escalation Review Committee consisting of
the Responsible Officer for each of Cypress and Simtek (the "Escalation
Review Committee"). The Escalation Review Committee shall negotiate in good
faith and use reasonable efforts to reach an agreement with respect to the
Joint Product initiative. If no agreement is reached within thirty (30)
days of the date the Joint Product initiative is presented to the
Escalation Review Committee, either Party shall be permitted to
independently pursue the development of such Joint Product, subject to the
terms of this Agreement.
4.1.4. Development Agreement. Prior to beginning development or
manufacture work on any Joint Product unanimously approved by the Approval
Committee, the Approval Committee will approve the definition of the Joint
Product, including its classification as a Category A, B or C Product. The
Parties shall then execute a mutually acceptable development agreement
including terms no less favorable to Simtek than those contained in the
Prior Production and Development Agreement and mutually agree upon a
statement of work that sets forth the tasks and responsibilities of each
Party, the milestones for the project, the division of expenses between the
Parties, royalty terms, if applicable, and any ownership terms to the
extent not already addressed herein.
4.1.5. Controlling Party. In the event a Party commits to
approximately 75% or more of the time, effort and/or resources to develop a
Joint Product in accordance with the agreed to statement of work (the
"Controlling Party") and the other Party (the "Non-Controlling Party")
wishes to sell such Joint Product, the Parties shall negotiate a royalty
credit/debit for the Controlling Party, which would serve as a buy-in fee
and grant the Non-Controlling Party rights to sell such Joint Product. It
is intended that the fee would be set to approximately equalize the
relative commitment of resources of the Parties as to the Joint Product and
in any event bring the commitment of the Non-Controlling Party to more than
25% of the total commitment of resources for the Joint Product. For the
purpose of identifying the division of expenses or relative contribution of
each of the Parties to the development of a Joint Product (greater or less
than 75%), the Parties shall use Cypress's New Product Plan milestone
system, as then in effect (the "NPP"). The Parties may agree to use the NPP
more fully during the term of this Agreement.
4.2. Independent Development of Products. Notwithstanding anything to the
contrary in this Agreement, either Party may independently develop, manufacture,
or sell nvSRAM Products not incorporating or otherwise based on the Intellectual
Property of the other Party (and not based on or incorporating or any
Developments to or based on any Intellectual Property of the other Party)
without submitting such nvSRAM Product to the process in Section 4.1.
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5. PRODUCT RELATIONSHIP
5.1. Category A Product Relationship. The Parties agree that, with respect
to each Category A Product, the Cypress and Simtek relationship shall be
implemented in three phases, as mutually determined by the Parties and as
described below.
5.1.1. During the first phase, Simtek shall grant Cypress a
non-exclusive, royalty-free, worldwide right to buy from Simtek and resell
Simtek nvSRAM Products, at the prices and on terms and conditions as set
forth in Exhibit B.
5.1.2. During the second phase, Cypress may purchase Simtek nvSRAM
wafers directly from Simtek's foundries. The Parties shall negotiate wafer
prices jointly with Simtek's foundries and Simtek shall take all reasonable
steps to facilitate such negotiation and purchase by Cypress. Cypress shall
be responsible for all remaining activities related to the manufacture of
Category A Products to be sold by Cypress, including test, assembly and
qualification, at Cypress facilities and for pre and post sales,
application and failure analysis support; provided, however, the Parties
agree to share failure analysis information on problems that are not
specific to Cypress customers. To the extent permitted by applicable law or
contract, each Party agrees to assist the other Party in obtaining the best
pricing terms from such foundries. Simtek shall have the option to purchase
assembly and test services from Cypress at mutually agreed upon prices,
which shall be competitively priced in comparison to the market for such
services. Cypress will pay a Royalty on the sale of nvSRAMs to any third
party other than Simtek in accordance with the applicable Royalty rate
table set forth in Exhibit A.
5.1.3. During the third phase, Cypress will manufacture nvSRAM wafers
in its own foundries and pay a Royalty to Simtek on the sale of nvSRAMs to
any third party other than Simtek in accordance with the applicable Royalty
rate table set forth in Exhibit A.
5.1.4. During each phase of the product relationship, the Parties
agree to share test program source code, characterization data, failure
analysis and reliability and qualification data for all nvSRAM products.
5.2. Registered Design Wins.
5.2.1. The Parties shall, within ninety (90) days from the Effective
Date, develop a program for the registration of Design Wins (the
"Registration Program").
5.2.2. Either Party wishing to register a Design Win through the
Registration Program shall submit to the other Party, at a minimum the
following regarding the Design Win: (i) customer name and location; (ii)
name of responsible party at the customer location; (iii) project name
relating to the Design Win; (iv) application and nvSRAM product(s) designed
into the specific project; (v) estimated annual usage of nvSRAMs by the
specific project; (vi) projected production start date of the project; and
(vii) responsible sales manager applying for registration. Provided that
the Design Win is accepted for registration under the rules of the
Registration Program, the Design Win will be deemed a "Registered Design
Win".
5.2.3. For any given Registered Design Win, the Party registering the
Registered Design Win will be considered the prime supplier for the
specific product as used in the specific process or project that is the
subject of the Registered Design Win. The other Party will be considered
the secondary supplier for such product and process or project. If the
secondary supplier sells to a Registered Design Win of the prime supplier,
the secondary supplier will be required to pay to the prime supplier, in
addition to any other fees or royalties due under any other provision of
this Agreement, a premium royalty fee equal to ***(1) of the product
revenue realized by the secondary supplier with respect to the specific
Registered Design Win. Subject to applicable laws, the Parties shall not
actively pursue sales which represent pre-existing Registered Design Wins
for the other Party.
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(1) A portion of Section 5.2.3 has been omitted pursuant to a confidential
treatment request with the Commission and has been filed separately
with the Commission.
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5.2.4. Each Party registering a Design Win will use commercially
reasonable efforts to update the registration information for the
Registered Design Win at least monthly (with "on change" notice if
possible).
5.2.5. Provided that the project or product applicable to a Registered
Design Win remains fundamentally unchanged by the customer applicable to
the Design Win, the Registered Design Win will apply for the life of the
project or product. Any updates to the project or product made
independently by the customer will be considered a part of the existing
Design Win and not a new Design Win, provided however, at a minimum, the
following examples of changes would constitute a new design for the
purposes of Registration: changes to the customer assigned part number of
the applicable Simtek or Cypress device, excluding rev level; a change in
the microprocessor to which the Simtek or Cypress nvSRAM is connected, or
where more than 10% of the devices used to implement the system board
design to which a Registration applies have been changed.
5.2.6. If a dispute arises regarding the registration of a Design Win
or regarding the scope of any Registered Design Win, the Parties will
submit the dispute to a Design Win committee comprised of not less than the
Simtek Vice President of Marketing and Vice President of Engineering and
two (2) representatives of equivalent level designated by Cypress. The
committee will consider and attempt to resolve the dispute. If after thirty
(30) days following submission, the committee is unable to reach unanimous
agreement as to a resolution of the dispute, the decision shall be
escalated to the Responsible Officers for each of Cypress and Simtek. The
Responsible Officers will negotiate in good faith and use reasonable
efforts to reach a resolution for the dispute. If no agreement is reached
within thirty (30) days of the date the dispute is presented to the
Responsible Officers, either Party may address the dispute under Section
21.2.
5.3. Independent Sale Right. Simtek shall have the right to buy and resell
Category A and B Products manufactured by Cypress on terms to be negotiated in
good faith on a product-by-product basis, but not Category C Products.
6. MANUFACTURING SUPPORT
6.1. Production Planning and Production.
6.1.1. Cypress will perform all obligations necessary for the
production and delivery of all Simtek nvSRAM Products in accordance with
the terms of this Agreement. Simtek shall have reasonable access to
manufacturing capacity from Cypress' own fabrication facilities as well as
joint venture fabrication facilities. Cypress shall supply to Simtek from
its own and joint venture fabrication facilities through the Cypress
Foundry Business Unit, and shall provide all manufacturing services as
contemplated in this Agreement through the Cypress Foundry Business Unit.
Additional engineering services shall be provided to Simtek at a price to
be negotiated by the parties through such other groups within Cypress as
from time to time may be assigned by the Responsible Officer of Cypress in
his sole discretion.
6.1.2. If the Parties agree to jointly implement a common
manufacturing process, or jointly develop and market Category B Products,
the Parties shall use commercially reasonable efforts to work with an
independent outside fabrication facility to install a compatible process
whereby identical form, fit, and function products may be manufactured
specifically for Simtek.
6.1.3. Simtek shall be granted terms for foundry services from
Cypress, which shall include business practices common to the foundry
industry such as lead-times, manufacturing cycle times, priority
fabrication runs, yield enhancement and related actions.
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6.1.4. The Parties shall review in good faith the terms of the
commercial relationships on a regular basis and negotiate wafer prices,
costs for back-end services, and other commercial terms as reasonably
requested by Simtek.
6.1.5. Simtek may perform acceptance testing on any Simtek nvSRAM
Products in any shipment of Simtek nvSRAM Products received from Cypress in
accordance with Simtek's then-current testing procedures and specifications
for the Simtek nvSRAM Products.
6.1.6. If acceptance testing identifies any failure of a Simtek nvSRAM
Product in any shipment of Simtek nvSRAM Products received from Cypress to
operate in conformance with Simtek's applicable specifications for such
Simtek nvSRAM Product (a "Defect"), Simtek will notify Cypress of the
Defect and indicate to Cypress that Simtek is either rejecting in whole or
in part the shipment of Simtek nvSRAM Products or waiving the Defect. If
Simtek does not issue either a notice of rejection or waiver of any Simtek
nvSRAM Product in any shipment of Simtek nvSRAM Products within 10 business
days of receipt of the shipment of Simtek nvSRAM Products from Cypress, the
Simtek nvSRAM Products in such shipment will be deemed accepted by Simtek.
6.1.7. Following notice of any Defect, unless waived by Simtek, the
Approval Committee shall meet with senior management from Cypress and
Simtek no later than 15 days after notice of such Defect to agree upon an
Action Plan covering the affected Simtek nvSRAM Products.
6.2. Quality Control and Certification.
6.2.1. Cypress will produce and deliver all Simtek nvSRAM Products in
accordance with the quality standards used on similar products made and
distributed by Cypress (including products not using the S8 Process).
6.2.2. As part of its quality assurance obligations, Cypress will
conduct testing of Simtek nvSRAM Products after acceptance of such Simtek
nvSRAM Products in accordance with reasonable industry practices. If
testing of Simtek nvSRAM Products indicates a problem with the quality of
the Simtek nvSRAM Products generally based on evidence of failure of the
Simtek nvSRAM Products, then the Approval Committee shall meet with senior
management from Cypress and Simtek no later than 15 days after notice of
such failure of the Simtek nvSRAM Products to create an Action Plan to
correct the problem.
6.2.3. Simtek reserves the right to request changes in the Simtek
nvSRAM Products at Cypress' expense (or to take such action as it may deem
reasonable to protect its rights) based on a material breach of the terms
of this Section 6.2 by Cypress.
7. CUSTOMER SUPPORT
7.1. Customer support and initial failure analysis of Joint Products will
be the responsibility of the Party selling the Joint Product to the end user.
7.2. Upon request by Cypress and with data substantiating a Simtek
IP-related issue on a Cypress customer return, Simtek will provide Cypress with
failure analysis support of the identified or suspected Simtek IP-related
concern(s).
7.3. Upon request by Simtek and with data substantiating either a process
or Cypress SRAM IP-related issue on a Simtek customer return, Cypress will
provide Simtek with failure analysis support of the identified or suspected
process or Cypress SRAM IP-related concern(s), as applicable.
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8. PROPRIETARY INFORMATION
This Agreement is made subject to, and all Confidential Information of the
other Party obtained by either Party under this Agreement will be governed by,
the terms set forth in Exhibit E.
9. RIGHTS IN INTELLECTUAL PROPERTY
9.1. Simtek Rights. Simtek will retain ownership of all right, title and
interest in and to the Simtek IP. Except for the rights and licenses in and to
the Simtek IP expressly granted to Cypress under this Agreement, no other rights
are granted by Simtek in or to the Simtek IP under this Agreement and nothing in
this Agreement will be construed as granting by implication, estoppel, or
otherwise, any license or rights under patents, trade secrets, know-how,
copyrights, or other Intellectual Property of Simtek to Cypress. All
Intellectual Property in and to any Developments invented solely by Simtek under
the Agreement, whether or not based on or derived from Cypress SRAM IP, shall be
solely owned by Simtek and subject to the licenses in this Agreement.
9.2. Cypress Rights. Cypress will retain ownership of all right, title and
interest in and to the Cypress SRAM IP. Except for the rights and licenses in
and to the Cypress SRAM IP expressly granted to Simtek under this Agreement, no
other rights are granted by Cypress in or to the Cypress SRAM IP under this
Agreement and nothing in this Agreement will be construed as granting by
implication, estoppel, or otherwise, any license or rights under patents, trade
secrets, know-how, copyrights, or other Intellectual Property of Cypress to
Simtek. All Intellectual Property in and to any Developments invented solely by
Cypress in connection with the Agreement, whether or not based on or derived
from Simtek IP, shall be solely owned by Cypress and subject to the licenses in
this Agreement.
9.3. Joint Rights. Intellectual Property invented jointly by both Simtek
and Cypress in connection with this Agreement, whether or not based on or
derived from Simtek IP or Cypress SRAM IP ("Joint Intellectual Property") shall
be jointly owned by Simtek and Cypress and subject to the licenses in this
Agreement. For the avoidance of doubt, derivatives, including improvements or
enhancements, to any existing Intellectual Property, will be owned by the
original owner of the existing Intellectual Property. Except as otherwise set
forth in this Agreement, neither Simtek nor Cypress shall have any obligation to
account to the other for profits, or to obtain any approval of the other Party
to license or otherwise exploit, Intellectual Property jointly owned by Simtek
and Cypress by reason of such joint ownership. Each Party shall be responsible
for protection of its own Intellectual Property at its own expense and in its
sole discretion. The Parties agree to cooperate in good faith as needed with
respect to enforcement, filing and pursuit of applications for protection and
registration of jointly owned Intellectual Property, and other activities
related to the jointly owned Intellectual Property. The Parties shall mutually
agree in advance upon the filing of applications for protection and registration
of jointly owned Intellectual Property and other actions to pursue protection
for jointly owned Intellectual Property, and the division of expenses and
responsibilities between the Parties for such activities.
9.4. Cross-License. Subject to the terms and conditions of this Agreement,
each Party grants and agrees to grant to the other Party an unrestricted, fully
paid, worldwide, perpetual, irrevocable, non-exclusive license to use, make,
have made, sell, offer for sale and import any Intellectual Property owned by
that Party which is a Development of the Intellectual Property of the other
Party licensed under this Agreement.
9.5. Procedures. To the extent necessary to provide either Party with the
foregoing ownership rights in the any Developments, each Party agrees to and
hereby does assign to the other Party any and all right, title and interest that
it may have or acquire in and to any Developments conceived of, discovered,
developed, made, or reduced to practice by the other Party. At the other Party's
request and expense, each Party will execute and deliver such instruments, and
take such other actions as may be reasonably requested by the other Party to
perfect, defend, or otherwise protect such ownership rights of the other Party
in any Developments.
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Simtek and Cypress Proprietary
9.6 Effect of Bankruptcy. All rights and licenses granted under or pursuant
to this Agreement by each Party to the other Party are, and shall otherwise be
deemed to be, for purposes of Section 365(n) of the United States Bankruptcy
Code, 11 U.S.C. Section 101 et seq. (the "Bankruptcy Code") (or any other
section(s) of the bankruptcy Code in effect on the Effective Date of this
Agreement that address rights in executory contracts), licenses of rights to
"intellectual property" as such term is defined in the Bankruptcy Code. The
parties agree that each Party shall retain and may fully exercise all of its
rights and elections under the Bankruptcy Code, including its right to accept,
reject, or retain such licenses and rights in the event of such Party's or the
other Party's bankruptcy.
10. WARRANTIES AND COVENANTS; INDEMNITY; DISCLAIMER; LIMITATION OF LIABILITY
10.1. Warranties By Both Parties. Each Party represents and warrants as
follows:
10.1.1. it has full power and authority to enter into and perform the
obligations under this Agreement, and the person signing this Agreement on
such Party's behalf has been duly authorized and empowered to enter into
this Agreement;
10.1.2. it will at all times comply with all applicable laws and
regulations and refrain from any unethical conduct or any other conduct
that tends to damage the reputation of the other Party or its products or
services in performing under this Agreement;
10.1.3. it is the owner or has the right to license or sublicense all
of the rights in Intellectual Property transferred by such Party under this
Agreement;
10.1.4. it has the right to grant the licenses and other rights
granted to the other Party under this Agreement without the infringement of
the Intellectual Property rights of any third party; and
10.1.5. it has not previously granted any rights to its Intellectual
Property to any third party which are conflicting, equal or senior to the
licenses granted to the other Party herein.
10.2. DISCLAIMER OF OTHER WARRANTIES. THE EXPRESS REPRESENTATIONS,
WARRANTIES AND COVENANTS IN THIS SECTION 10 ARE IN LIEU OF ALL OTHER WARRANTIES,
WHETHER EXPRESS, IMPLIED, OR STATUTORY, REGARDING THIS AGREEMENT, AND EACH PARTY
SPECIFICALLY DISCLAIMS ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT OF THIRD-PARTY RIGHTS.
10.3. General Indemnity Obligations. Each Party (the "Indemnifying Party")
will indemnify, defend and hold harmless the other Party, its Affiliates, and
such party and its Affiliates' respective officers, directors, employees,
agents, contractors, successors and assigns (collectively, the "Indemnified
Party"), from any and all losses, costs, expenses, liabilities and damages
reasonably incurred resulting from or relating to under any settlement,
litigation or final judgment, and all related reasonable costs and expenses,
including reasonable legal fees, fines, interest and penalties ("Losses")
arising from, in connection with, or based on allegations, claims, suits, or
proceedings of any of the following:
10.3.1. third party claims arising out of the Indemnifying Party's
performance under this Agreement, including breach of this Agreement;
10.3.2. third party claims arising out of the Indemnifying Party's
failure to observe or perform any duties or obligations to third parties,
including its subcontractors;
10.3.3. third party claims arising out of the production delivery, or
intended use of nvSRAM Products due to the Indemnifying Party's negligence
or willful misconduct;
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Simtek and Cypress Proprietary
10.3.4. third party claims arising out of the Indemnifying Party's
gross negligence or willful misconduct;
10.3.5. the Indemnifying Party's breach of its obligations with
respect to Confidential Information of the other Party; or
10.3.6. as set forth in Section 17.
10.4. IP Infringement Indemnification. The Indemnifying Party will further
indemnify, defend and hold harmless the Indemnified Parties from any and all
Losses arising from, in connection with, or based on allegations, claims, suits,
or proceedings brought against the Indemnified Parties that (1) the Intellectual
Property of the Indemnifying Party or the nvSRAM products designed, developed,
manufactured, marketed or sold by or on behalf of the Indemnifying Party
infringe any Intellectual Property (including misappropriation of trade secrets)
of any third party, or (2) that the Indemnifying Party does not have sufficient
rights in its Intellectual Property to enable the Indemnified Parties to perform
their obligations under this Agreement or exercise any of the rights granted to
the Indemnified Parties under this Agreement. If the Intellectual Property or
any nvSRAM product of the Indemnifying Party becomes, or in the Indemnifying
Party's opinion is likely to become, the subject of an infringement claim, then
the Indemnifying Party may, at its option and expense, either: (a) procure for
the Indemnified Parties the right to continue exercising the rights in question;
or (b) replace or modify the allegedly or potentially infringing processes or
materials so that such processes or materials become non-infringing. The
foregoing obligations in this Section 10.5 will not apply to the extent that any
allegation, claim, suit, or proceeding is based on the Intellectual Property of
the Indemnified Parties.
10.5. Indemnification Procedures. The indemnity obligation of the parties
under this Section 10 are contingent upon the following conditions: (a) the
Indemnified Party must promptly notify the other Party in writing of the claim
giving rise to indemnification; (b) the Indemnifying Party will have sole
control over the defense and settlement of the indemnified claim (provided that
each Indemnified Party will have the right to participate in such action, at its
own expense, using counsel of its choice and that the Indemnifying Party may not
enter into any settlement that would impose any non-monetary obligation on the
Indemnified Parties without first obtaining the consent of the Indemnified
Parties); and (c) each Indemnified Party will provide the Indemnifying Party
with reasonable assistance in the defense of the indemnified claim at the
expense of the Indemnifying Party.
10.6. Limitation of Liability. EXCEPT FOR EACH PARTY'S INDEMNIFICATION
OBLIGATIONS UNDER THIS SECTION 10, OR A BREACH OF SECTIONS 8 OR 9 AND
NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT: (1) IN NO EVENT WILL
EITHER PARTY'S TOTAL AGGREGATE LIABILITY TO THE OTHER ARISING FROM OR RELATING
TO THIS AGREEMENT EXCEED THE AMOUNT OF ROYALTIES PAYABLE TO SIMTEK BY CYPRESS
UNDER THIS AGREEMENT DURING THE PREVIOUS 12 MONTH PERIOD PRECEDING THE EVENTS
GIVING RISE TO SUCH LIABILITY, REGARDLESS OF THE FORM OF ACTION, WHETHER IN
CONTRACT, TORT OR OTHERWISE (IT BEING UNDERSTOOD THAT THE ROYALTIES PAYABLE
INCLUDE ACTUAL ROYALTY AMOUNTS PAYABLE TO SIMTEK AND DO NOT INCLUDE ANY
PREPAYMENTS BY CYPRESS); AND (2) NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR
ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, EXEMPLARY OR SPECIAL DAMAGES,
INCLUDING WITHOUT LIMITATION LOST DATA, INFORMATION OR MATERIALS, LOST PROFITS
OR REVENUE, BUSINESS INTERRUPTION, DOWNTIME OR UNAVAILABILITY, EVEN IF SUCH
PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EACH PARTY
ACKNOWLEDGES THAT THE FEES SET FORTH IN THIS AGREEMENT REFLECT THE ALLOCATION OF
RISK SET FORTH IN THIS AGREEMENT AND THAT THE OTHER PARTY WOULD NOT ENTER INTO
THIS AGREEMENT WITHOUT THESE LIMITATIONS ON ITS LIABILITY, AND EACH PARTY AGREES
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Simtek and Cypress Proprietary
THAT THESE LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL
PURPOSE OF ANY LIMITED REMEDY. THE FOREGOING LIMITATIONS OF LIABILITY ARE
INDEPENDENT OF ANY EXCLUSIVE REMEDIES FOR BREACH OF WARRANTY SET FORTH IN THIS
AGREEMENT.
11. REVENUE BALANCING
11.1. During the term of this Agreement, Cypress shall not use Simtek IP to
compete with Simtek's Category A Products, as such products are identified on
Exhibit C hereto, in a manner that has a material adverse effect on Simtek's
business.
11.2. In the interest of Simtek's position in the market for Category A
Products, if during any fiscal quarter prior to December 31, 2008, the ratio of
Cypress' Category A Revenue exceeds *** times but less than *** times (***x but
less than ***x) that of Simtek's Category A Revenue and Simtek has continued to
conduct its Category A Business with the good faith pursuit of a reasonable
market share, then Cypress will pay to Simtek a revenue balancing royalty of
***(2) of Excess Revenue I (as defined in Exhibit D). As long as Simtek's
Category A Revenue exceeds the Threshold as described in Exhibit D, no Royalty
Balancing shall be due.
11.3. If during any fiscal quarter prior to December 31, 2008, the ratio of
Cypress' Category A Revenue exceeds *** times (***x) that of Simtek's Category A
Revenue and Simtek has continued to conduct its Category A Business with the
good faith pursuit of a reasonable market share, then Cypress will pay to Simtek
a revenue balancing royalty of ***(3) of Excess Revenue II (as defined in
Exhibit D). As long as Simtek's Category A Revenue exceeds the Threshold as
described in Exhibit D, no Royalty Balancing shall be due.
11.4. Any additional royalty generated under Sections 11.2 and 11.3 shall
be in place of, not in addition to, the Royalties due under Section 3.1 on any
portion of revenue that is Excess Revenue or Excess Revenue II. Notwithstanding
the foregoing, the Excess Revenues shall be deemed not to have had a material
adverse effect on Simtek's business, and Cypress shall not be required to pay
the additional royalty rate set forth above in Sections 11.2 and 11.3, if
Cypress can show that the growth of Cypress' Category A Revenue was consistent
with the global nvRAM market growth, as reported by Webfeet Research or another
industry report that is deemed applicable and acceptable to the Parties. Upon
mutual agreement, the parties may agree to define terms to extend the revenue
balancing royalty beyond December 31, 2008.
12. RIGHTS OF FIRST NEGOTIATION
12.1. Cypress Right of Notice and Negotiation.
12.1.1. In the event Simtek proposes a sale of all or substantially
all of its assets to a third party, or a merger, acquisition or similar
transaction with a third party which would result in Simtek's equity
holders immediately prior to such transaction holding less than fifty
percent (50%) of the voting power of the surviving, continuing or
purchasing entity (collectively, for purposes of this Section 12.1.1, a
"Simtek Proposed Transaction"), Simtek shall give written notice of the
Simtek Proposed Transaction to Cypress, setting forth the material terms
and conditions thereof (to the extent permissible under then-existing
confidentiality obligations). Cypress shall have a non-exclusive right for
a period of 15 days to negotiate with Simtek. If the Parties are unable to
agree upon the terms and conditions of an alternative to the Simtek
Proposed Transaction, or revisions thereto, involving Simtek and Cypress,
where the Board of Directors of Simtek, shall, in its sole discretion,
determine that the alternative involving Simtek and Cypress is not superior
to the Simtek Proposed Transaction, or revisions thereto, within said
period, Simtek may proceed to enter into such sale, merger, acquisition or
similar transaction whether on terms contemplated by the Simtek Proposed
Transaction or otherwise. In the event Simtek is an active selling process
with one or more bidders to sell all or substantially all of its assets
(whether through merger or otherwise), the aforementioned non-exclusive
right to negotiate shall not reset for each subsequent third party
---------------------
(2) Portions of Section 11.2 have been omitted pursuant to a confidential
treatment request with the Commission and have been filed separately
with the Commission.
(3) Portions of Section 11.3 have been omitted pursuant to a confidential
treatment request with the Commission and have been filed separately
with the Commission.
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Simtek and Cypress Proprietary
acquiror. In the event Simtek is an active selling process with one or more
bidders to sell all or substantially all of its assets (whether through
merger or otherwise), the aforementioned 15 day negotiation right will
apply.
12.1.2. Notwithstanding the foregoing,
(1) Simtek may license or otherwise grant rights to the Simtek IP
to any third party for use in a *** Application only with Cypress'
prior written consent, which consent shall not be unreasonably
withheld. For purposes of this Agreement, a "*** Application" will
mean a ***(4).
(2) If Simtek proposes a license or transfer of any part of, or
rights to, the Simtek IP under terms that are more favorable to a
third party competitor of Cypress than those extended to Cypress under
this Agreement (taking into account the nature of the Simtek IP, the
rights in the Simtek IP, the consideration, and the other business,
financial and technical aspects of the proposed license or transfer),
Simtek shall give written notice of the proposed license or transfer
to Cypress, setting forth the material terms and conditions thereof.
Cypress shall have the right for a period of 15 days to negotiate with
Simtek. If the Parties are unable to agree upon the terms and
conditions of the proposed license or transfer within said period,
Simtek may proceed to enter into the proposed license or transfer with
the third party, on terms and conditions not more favorable than those
originally offered to Cypress. In the event Simtek is an active
selling process with one or more bidders to sell all or substantially
all of its assets (whether through merger or otherwise), the
aforementioned non-exclusive right to negotiate shall not reset for
each subsequent third party acquiror. In the event Simtek is an active
selling process with one or more bidders to sell all or substantially
all of its assets (whether through merger or otherwise), the
aforementioned 15 day negotiation right will apply.
(3) The Parties do not intend to otherwise restrict Simtek with
regard to Simtek's right to license its Intellectual Property to third
parties, regardless of the relationship established under this
Agreement.
12.2. Simtek Right of First Negotiation. In the event that Cypress proposes
a sale of assets that is intended primarily as a sale of all or substantially
all of its assets of its nvSRAM business, or a merger, acquisition or similar
transaction relating specifically to its nvSRAM business, but not Cypress
generally or in combination with any material and substantial portion of
Cypress' other businesses (collectively, for purposes of this Section 12.2, a
"Cypress Proposed Transaction"), Cypress shall give written notice of the
Cypress Proposed Transaction to Simtek, setting forth the material terms and
conditions thereof. Simtek shall have the right for a period of 15 days to
negotiate with respect to Simtek or its Affiliate entering into the Cypress
Proposed Transaction with Cypress. If the Parties are unable to agree upon the
terms and conditions of an alternative to the Cypress Proposed Transaction
involving Cypress and Simtek within said period, Cypress may proceed to enter
into the Cypress Proposed Transaction with the third party, on terms and
conditions not more favorable than those offered to Simtek under this Section
12.2; provided, however, if the Cypress Proposed Transaction is not consummated
within ninety (90) days, the foregoing provisions of this Section 12.2 shall
again apply to the Cypress Proposed Transaction and Simtek shall have a right of
first negotiation with respect to the Cypress Proposed Transaction.
13. TERM; TERMINATION
13.1. Term. This Agreement shall be effective as of the Effective Date and,
unless sooner terminated under the provisions of this Agreement, will continue
in force until December 31, 2010.
---------------------
(4) Portions of Section 12.1.2(1) have been omitted pursuant to a confidential
treatment request with the Commission and has been filed separately
with the Commission.
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Simtek and Cypress Proprietary
13.2. Termination Upon Default. Either Party may terminate this Agreement
if the other Party breaches any material provision of this Agreement and does
not cure such breach within 60 days after being provided with written notice
thereof, or, in the event that such breach is not reasonably capable of cure
with 60 days, does not provide the other Party with a written Action Plan for
curing such breach, including a reasonable deadline for curing such breach, and
take reasonable steps to implement such Action Plan within such reasonable
deadline.
13.3. Bankruptcy or Insolvency. Either Party may terminate this Agreement
by notice to the other Party if the other Party: (i) becomes insolvent; (ii)
fails to pay its debts or perform its obligations in the ordinary course of
business as they mature; (iii) admits in writing its insolvency or inability to
pay its debts or perform its obligations as they mature; or (iv) makes an
assignment for the benefit of creditors.
13.4. Effect of Termination. Upon termination of this Agreement by either
Party under Sections 13.2 or 13.3: (1) all licensed rights granted in this
Agreement to the non-terminating Party will immediately cease to exist; (2) the
non-terminating Party will return to the other Party all physical embodiments
(including, but not limited to, drafts, notes, sketches, documents, drawings,
and samples) of the Intellectual Property and Confidential Information of the
other Party; and (3) any amounts owed by the non-terminating Party to the other
Party under this Agreement before such termination will be immediately due and
payable. For the avoidance of doubt, upon termination of this Agreement by
either Party under Sections 13.2 or 13.3, or upon any expiration of this
Agreement, the licenses granted to the terminating Party (or, in the case of an
expiration, both Parties) under Section 2.1 and the related obligations
(including as to Royalties) shall survive the termination of this Agreement as
provided in Section 2.1. The following Sections will survive termination or
expiration of this Agreement for any reason: Sections 1, 3, 8, 9, 10.2, 10.6,
13.4, 15, 16, 18, 19, 20, 21, 22, 23, 24, 25, and 26.
14. INSURANCE
Each Party shall maintain and carry throughout the term of this Agreement
liability insurance which includes but is not limited to employer's liability,
xxxxxxx'x compensation, general liability, public liability, property damage
liability, product liability, completed operations liability and contractual
liability in mutually agreed amounts but in no event less than minimum statutory
requirements, if any. Each Party will, if requested by the other, furnish
certificates of insurance indicating the foregoing coverage.
15. FORCE MAJEURE
Neither Party shall be in default under this Agreement nor any delay or
failure to perform hereunder due to causes beyond its control and without its
fault or negligence, including but not limited to acts of God, acts of any
government in its sovereign or contractual capacity, strikes, fires, floods,
riots, terrorist acts or threats, wars or embargoes; provided, however, that
prompt written notice is given to the other Party describing such cause and the
affected Party will resume performance as soon as possible.
16. NOTICES
Any and all notices permitted or required to be given hereunder shall be
written and deemed to be duly given: (i) upon actual delivery, if delivery is by
hand; (ii) upon the third business day after delivery, if the postage is
properly prepaid and delivery is by first class, registered, certified (return
receipt requested) mail; or (iii) upon receipt of e-mail or facsimile
transmission, so long as the original is then sent by overnight delivery. Each
such notice shall be sent to the respective Party at the address indicated below
or to any other address that the respective Parties may designate from time to
time. The record address of Simtek for this purpose is:
Simtek Corporation
0000 Xxxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxx Xxxxxxx, XX 00000
Attn: Xxxxxx Xxxxxxxxx or Simtek CEO
Facsimile: (000) 000-0000
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Simtek and Cypress Proprietary
The record address of Cypress for this purpose is:
Cypress Semiconductor Corporation
000 Xxxxxxxx Xxxxx
Xxx Xxxx, Xxxxxxxxxx 00000-0000
Attn: Chief Financial Officer and General Counsel
Facsimile: (000) 000-0000
Either Party may, at any time, substitute for its previous record address
any other address by giving proper prior written notice to the other Party of
the substitution.
17. STATUS OF PERSONNEL
17.1. Simtek Personnel. Simtek acknowledges that all of the
responsibilities and duties of the employer of all employees, contractors and
agents ("Personnel") of Simtek visiting or otherwise working at Cypress'
facilities with respect to such persons' compliance with Simtek's obligations
under this Agreement are those of Simtek, and covenants and agrees that Simtek
itself will assume responsibility for such persons' compliance as stated in this
Agreement. Without limiting the generality of the foregoing, Simtek shall itself
impose on each of the Simtek Personnel all of such persons' obligations
hereunder, by contract or otherwise, and otherwise ensure that the principal
duty of each of the Simtek Personnel shall be to Simtek, notwithstanding the
location of such employee's place of work and the constraints imposed there.
17.2. Indemnification by Simtek. Simtek will indemnify, defend and hold
harmless Cypress against and from any and all Losses arising from, in connection
with, or based on allegations, claims, suits, or proceedings of any of the
following: (i) that any such Simtek Personnel is an employee of Cypress (such
Losses including without limitation any employee benefit that any such person
shall be so claimed or determined to be entitled to from Cypress after such a
claim or determination that such person is an employee of Cypress), (ii) based
upon any grossly negligent or intentionally wrongful act or grossly negligent or
intentionally wrongful omission of any Simtek Personnel, or (iii) based upon any
breach by any Simtek Personnel of any obligation of that person to Simtek
imposed by this Agreement.
17.3. Cypress Personnel. Cypress acknowledges that all of the
responsibilities and duties of the employer of all of the Personnel of Cypress
visiting or otherwise working at Cypress' or Simtek's facilities with respect to
such persons' compliance with Cypress' obligations under this Agreement are
those of Cypress, and covenants and agrees that Cypress itself will assume
responsibility for such persons' compliance as stated above. Without limiting
the generality of the foregoing, Cypress shall itself impose on each of the
Cypress Personnel all of such persons' obligations hereunder, by contract or
otherwise, and otherwise ensure that the principal duty of each of the Cypress
Personnel shall be to Cypress, notwithstanding the location of such employee's
place of work and the constraints imposed there.
17.4. Indemnification by Cypress. Cypress will indemnify, defend and hold
harmless the Simtek Indemnified Parties arising from, in connection with, or
based on allegations, claims, suits, or proceedings of any of the following: (i)
that any such Cypress Personnel is an employee of Simtek (such Losses including
without limitation any employee benefit that any such person shall be so claimed
or determined to be entitled to from Simtek after such a claim or determination
that such person is an employee of Simtek), (ii) based upon any grossly
negligent or intentionally wrongful act or grossly negligent or intentionally
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Simtek and Cypress Proprietary
wrongful omission of any Cypress Personnel, or (iii) based upon any breach by
any Cypress Personnel of any obligation of that person to Cypress imposed by
this Agreement.
17.5. Status of the Parties. The Parties shall remain independent
contractors hereunder and not an agent of the other. Nothing contained within
this Agreement nor any actions taken by, or arrangements entered into between,
the Parties of this Agreement in accordance with the provisions hereof shall be
construed as, or deemed to create, a partnership, joint venture or similar legal
relationship. No Party shall have authority to contractually or otherwise commit
the other Party to any obligations whatsoever to third parties.
17.6. Non-Solicitation. Each Party agrees not to solicit or hire the other
Party's Personnel during the term of this Agreement except by mutual consent;
provided, however, that nothing contained herein shall prevent either Party from
hiring such Personnel in response to a general hiring program conducted in the
ordinary course of business not specifically directed to such Personnel or
Personnel who approach the Party on an unsolicited basis.
18. ASSIGNMENT
18.1. Except as otherwise set forth in Section 2, neither Party shall
transfer or assign in whole or in part this Agreement or any rights or interest
hereunder without the prior written consent of the other Party, such consent not
to be unreasonably withheld. Any attempted assignment in violation of this
Section 18.1 shall be null and void.
18.2. This Agreement shall be binding upon and inure to the benefit of the
Parties hereto and their respective heirs, executors, successors and assigns.
19. WAIVER
The failure of either Party at any time to require performance by the other
Party of any section of this Agreement shall not affect the full right to
require such performance at any time thereafter, nor shall the waiver by either
Party of a breach of any section hereof be taken or held to be a waiver of any
succeeding breach of such article, or as a waiver of the section itself.
20. SEVERABILITY
In the event that any provision or portion thereof in this Agreement is
finally determined by a court of competent jurisdiction to be unenforceable or
void, then such provision or portion thereof shall be deemed deleted and the
balance of the provisions of this Agreement shall remain in full force and
effect.
21. DISPUTE RESOLUTION/INJUNCTIVE RELIEF/CHANGE MANAGEMENT
The Parties will in good faith attempt to resolve amicably all disputes,
controversies, or claims arising out of or related to this Agreement, including
without limitation, the breach, termination, performance, invalidity or
interpretation thereof (each, a "Dispute") in accordance with the procedures in
this Section 21. The Parties also agree that they will, in good faith, consider
reasonable changes to this agreement in response to the external environment,
including without limitation, new market trends, facts not otherwise known at
the inception of this agreement, or changes in customer demands (each a
"Change") short of terminating the agreement.
21.1. Initial Resolution Procedures.
21.1.1. Within 5 business days after either Party provides notice
to the other Party of a Dispute, the Approval Committee for each Party
will consider the Dispute in person or by telephone and will attempt
in good faith to resolve the Dispute for a period of 10 business days.
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Simtek and Cypress Proprietary
21.1.2. If the Dispute is not resolved, as agreed by the Parties
in writing, within such period, the Parties will escalate the Dispute
to the Senior Vice Presidents of Sales or similar level executive who
will consider the Dispute at a mutually agreeable location and will
attempt in good faith to resolve the Dispute for a period of 10
business days.
21.1.3. In the case of Disputes not previously resolved as set
forth above, the Parties will escalate the resolution of the Dispute
to the Responsible Officers of each Party who will consider the
Dispute in person at a location agreed to by the Parties. The parties
shall attempt in good faith to resolve the Dispute for a period of 10
business days.
21.2. Final Resolution Procedures. If the Dispute is not resolved, as
agreed by the Parties in writing, after following the initial resolution
procedures set forth in Section 21.1, either Party may bring suit regarding such
Dispute in the applicable state and federal courts having jurisdiction over such
Dispute, as permitted by law.
21.3. Injunctive Relief. Notwithstanding Sections 21.1 and 21.2 above, each
Party shall be entitled to seek equitable and injunctive relief in such court to
prevent or stop a violation of the terms and conditions contained herein. Either
Party's breach of this Agreement or violation of the other Party's Intellectual
Property Rights may cause irreparable injury to such other Party for which such
other Party may not have an adequate remedy at law. Each Party shall have the
right to seek immediate relief from the court for breach of any obligation of
confidentiality, infringement, misappropriation or misuse of any Intellectual
Property Right, or any other claim where interim relief from the court is sought
to prevent serious and irreparable injury to one of the Parties.
22. GOVERNING LAW; JURISDICTION
The terms and conditions of this Agreement shall be interpreted in
accordance with and governed by the laws of the State of California, without
giving effect to the doctrine of conflict of laws. The Parties hereto agree to
submit to the exclusive jurisdiction of the federal and state courts in Santa
Xxxxx County, California with respect to the interpretation of this Agreement or
for the purposes of any action arising out of or relating to this Agreement.
23. HEADINGS
All article, section, and paragraph headings of this Agreement, including
any exhibits hereto, are for convenience only and are not to be construed as
part of this Agreement or as defining or limiting in any way the purpose and
intent of the provisions thereof.
24. COUNTERPARTS
This Agreement may be executed in counterparts, any one of which need not
contain the signature of more than one Party and which shall be deemed an
original, and all such counterparts taken together shall be regarded as one and
the same instrument.
25. ENTIRE AGREEMENT
This Agreement, the Exhibits hereto and the Stock Purchase Warrants
constitute the entire agreement between the Parties relating to the subject
matter hereof, and supersede any and all prior written or oral understandings,
commitments or agreements relating thereto. This Agreement may not be amended or
modified except by a writing duly signed by the authorized representatives of
the Parties hereto.
26. EXPORT.
Cypress acknowledges that the export, import, and use of certain hardware,
software, and technical data provided hereunder is regulated by the United
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Simtek and Cypress Proprietary
States and other governments. Cypress will be responsible for performance of all
duties and obligations of the importer and exporter of record for all deliveries
and transfers hereunder (including by electronic means), and shall otherwise be
responsible for compliance with all applicable laws, regulations, tariffs,
duties, and fees, including the U.S. Export Administration Act, the regulations
implemented thereunder by the U.S. Department of Commerce, and any other
applicable import and export laws or regulations of the U.S. or any other
applicable nation, and obtaining any necessary export licenses and clearances
thereunder. Cypress represents and warrants that it is not subject to any
government order suspending, revoking or denying export or import privileges.
Cypress will not export or re-export any personal computer software, system,
part, technical data or sub-elements under this Agreement, directly or
indirectly, to any destinations prohibited by the U.S. Government, including
without limitation, to any country or other party listed on any list of
prohibited or restricted countries or parties maintained by the U.S. Treasury
Department or other applicable branch of the U.S. Government. The term
"technical data" in this context, means such data as is defined as technical
data by applicable U.S. Government export regulations.
[Remainder of Page Intentionally Left Blank]
-18-
Simtek and Cypress Proprietary
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed and
delivered by their respective duly authorized officers on the dates indicated
below. Notwithstanding any statute, regulation, or other rule of law, a
signature provided by facsimile shall be deemed to be an original signature.
FOR SIMTEK: FOR CYPRESS:
Simtek Corporation Cypress Semiconductor Corporation
By: /S/ XXXXXX XXXXXXXXX By: /S/ XXXXXX XXXXXXXX
-------------------------------- -----------------------------------
Title: CEO Title: V.P. - NV Memory Business
----------------------------- ---------------------------------
Date: March 24, 2006 Date: March 24, 2006
------------------------------ ----------------------------------
Simtek and Cypress Proprietary
Exhibit A
---------
Royalty Rate Tables
CATEGORY A - STANDARD NVSRAM MEMORY PRODUCTS:
Incremental Revenue ($M) Cumulative Revenue ($M) Incremental Royalty Rate
------------------------ ----------------------- ------------------------
*** *** ***
*** *** ***
*** *** ***
*** *** ***
CATEGORY B - CUSTOM NVSRAM MEMORY PRODUCTS:
Incremental Revenue ($M) Cumulative Revenue ($M) Incremental Royalty Rate
------------------------ ----------------------- ------------------------
*** *** ***
*** *** ***
*** *** ***
*** *** ***
CATEGORY C - EMBEDDED NVSRAM PRODUCTS:
Die Area Royalty Rate
-------- ------------
*** ***
*** ***
*** ***
*** ***(5)
---------------------
(5) Portions of Exhibit A have been omitted pursuant to a confidential
treatment request with the Commission and have been filed separately with
the Commission.
Simtek and Cypress Proprietary
Exhibit B
---------
Pricing
Simtek and Cypress Proprietary
Exhibit C
---------
Simtek Category A Products
--------------------- -------------------------------- --------------------------- ----------------------------------------
Memory Structure Memory Array Size Additional Features Input/Output Options
--------------------- -------------------------------- --------------------------- ----------------------------------------
*** *** *** *** *** ***
--------------------- --------------- ---------------- --------------------------- ------------------- --------------------
*** *** *** *** *** ***
--------------------- --------------- ---------------- --------------------------- ------------------- --------------------
*** *** *** *** *** ***
--------------------- --------------- ---------------- --------------------------- ------------------- --------------------
*** *** *** *** *** ***
--------------------- --------------- ---------------- --------------------------- ------------------- --------------------
*** *** *** *** *** ***
--------------------- --------------- ---------------- --------------------------- ------------------- --------------------
*** *** *** *** *** ***
--------------------- --------------- ---------------- --------------------------- ------------------- --------------------
*** *** *** *** *** ***
--------------------- --------------- ---------------- --------------------------- ------------------- --------------------
*** *** *** *** *** ***
--------------------- --------------- ---------------- --------------------------- ------------------- --------------------
*** *** *** *** *** ***(6)
--------------------- --------------- ---------------- --------------------------- ------------------- --------------------
---------------------
(6) Portions of Exhibit C have been omitted pursuant to a confidential
treatment request with the Commission and have been filed separately with
the Commission.
Simtek and Cypress Proprietary
Exhibit D
Revenue Balancing Royalty
2006 2007 2008
Planned Revenue Planned Revenue Planned Revenue
Planned Revenue *** *** ***
(in $ million)
Threshold *** *** ***
(in $ million)
For FY2006 the quarterly Planned Revenue and Thresholds are as defined below. In
the first 60 days of 2007 the quarterly numbers for 2007 will be added to this
document. Likewise in 2008.
Q106 Q206 Q306 Q406 Total
Planned Revenue *** *** *** *** ***
Threshold *** *** *** *** ***(7)
Excess Revenue I:
-----------------
Excess Revenue I shall mean Cypress Category A Revenue minus (Simtek Category A
Revenue multiplied by 3). If Simtek Category A Revenue exceeds the Threshold as
defined above for any period, Excess Revenue for that period is 0.
Excess Revenue II:
------------------
Excess Revenue II shall mean Cypress Category A Revenue minus (Simtek Category A
Revenue multiplied by 10). If Simtek Category A Revenue exceeds the Threshold as
defined above for any period, Excess Revenue for that period is 0.
---------------------
(7) Portions of Exhibit D have been omitted pursuant to a confidential
treatment request with the Commission and have been filed separately with
the Commission.
Simtek and Cypress Proprietary
Exhibit E
---------
Confidentiality
1. Protection of Confidential Information. Each Party (the "Disclosing Party")
may from time to time during the term of this Agreement disclose to the other
Party (the "Receiving Party") certain Confidential Information. The Receiving
Party will not use any Confidential Information of the Disclosing Party for any
purpose not expressly permitted by this Agreement, and will disclose the
Confidential Information of the Disclosing Party only to the employees or
contractors of the Receiving Party who have a need to know such Confidential
Information for purposes of this Agreement and who are under a duty of
confidentiality no less restrictive than the Receiving Party's duty hereunder.
The Receiving Party will protect the Disclosing Party's Confidential Information
from unauthorized use, access, or disclosure in the same manner as the Receiving
Party protects its own confidential or proprietary information of a similar
nature and with no less than reasonable care.
2. Exceptions. The Receiving Party's obligations with respect to any
Confidential Information of the Disclosing Party will terminate if such
information: (1) was already lawfully known to the Receiving Party at the time
of disclosure by the Disclosing Party; (2) is disclosed to the Receiving Party
by a third party who had the right to make such disclosure without any
confidentiality restrictions; (3) is, or through no fault of the Receiving Party
has become, generally available to the public; or (4) is proven by the Receiving
Party (who shall bear the burden of proof) to have been independently developed
by the Receiving Party without use of the Disclosing Party's Confidential
Information. In addition, the Receiving Party will be allowed to disclose
Confidential Information of the Disclosing Party to the extent that such
disclosure is: (a) approved in advance in writing by the Disclosing Party; (b)
necessary for the Receiving Party to enforce its rights under this Agreement in
connection with a legal proceeding; or (c) required by law or by the order or a
court of similar judicial or administrative body, provided that the Receiving
Party notifies the Disclosing Party in advance of such required disclosure
promptly and in writing and cooperates with the Disclosing Party, at the
Disclosing Party's reasonable request and expense, in any lawful action to
contest or limit the scope of such required disclosure.
3. Mask Sets. In particular, and without limiting any obligation of Cypress,
Cypress will protect all mask sets relating to the Simtek Products, whether
transferred to Cypress or otherwise obtained by Cypress, as Confidential
Information of Simtek in accordance with this Exhibit E.
4. Return of Confidential Information. The Receiving Party will return to the
Disclosing Party or destroy all Confidential Information of the Disclosing Party
in the Receiving Party's possession or control and permanently erase all
electronic copies of such Confidential Information promptly upon the request of
the Disclosing Party or at the expiration or termination of this Agreement or
when no longer needed in connection with its performance under this Agreement,
whichever comes first. Without limiting any obligation of Cypress, when any mask
set is no longer usable by Cypress for the purposes of the Agreement, Cypress
will return to Simtek or, at Simtek's request, destroy the mask set, and will
permanently erase all electronic copies of such mask set and the information
relating thereto. At the Disclosing Party's request, the Receiving Party will
certify in writing signed by an officer of the Receiving Party that it has fully
complied with the foregoing obligations.
5. Confidentiality of Agreement. Neither Party will disclose any terms of this
Agreement to anyone other than its attorneys, accountants, and other
professional advisors except: (1) as required by law; or (2) pursuant to a
mutually agreeable press release; or (3) in connection with a proposed merger,
financing, or sale of such Party's business (provided that any third party to
whom the terms of this Agreement are to be disclosed signs a confidentiality
agreement reasonably satisfactory to the other Party to this Agreement).
6. Independent Development. The terms of confidentiality under this Exhibit E
will not be construed to limit either Party's right to develop independently or
acquire products, concepts, systems, processes or techniques without use of the
other Party's Confidential Information. The Disclosing Party acknowledges that
Simtek and Cypress Proprietary
the Receiving Party may develop information internally, or may receive
information from other parties, that is similar to the Confidential Information
of the Disclosing Party. Accordingly, nothing in this Exhibit E or in the
Agreement will prohibit the Receiving Party from developing or having developed
for it products, concepts, systems, processes or techniques that are similar to
or compete with the products, concepts, systems, processes or techniques
contemplated by or embodied in the Confidential Information provided that the
Receiving Party does not violate any of its obligations under this Exhibit E in
connection with such development.
Simtek and Cypress Proprietary
Schedule 1
Stock Purchase Warrant (March 24, 2006)
---------------------------------------
VOID AFTER 5:00 P.M., COLORADO TIME, ON MARCH 23, 2016
NEITHER THESE SECURITIES NOR THE SECURITIES INTO WHICH THESE SECURITIES ARE
EXERCISABLE HAVE 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"), OR THE SECURITIES LAWS OF ANY STATE OF THE UNITED
STATES. THE SECURITIES REPRESENTED HEREBY MAY NOT BE OFFERED OR SOLD IN THE
ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES UNDER
APPLICABLE SECURITIES LAWS UNLESS OFFERED, SOLD OR TRANSFERRED UNDER AN
AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THOSE LAWS.
Date: March 24, 2006
SIMTEK CORPORATION
STOCK PURCHASE WARRANT
THIS CERTIFIES THAT, for value received, Cypress Semiconductor Corporation,
a Delaware corporation ("Cypress"), is entitled to purchase from SIMTEK
CORPORATION, a corporation organized under the laws of the State of Colorado
(the "Company"), at any time or from time to time during the Exercise Period (as
defined in Section 2 hereof), 10,000,000 fully paid and nonassessable shares of
the Company's common stock, $0.01 par value (the "Common Stock"), at an exercise
price per share (the "Exercise Price") of $0.75. The number of shares of Common
Stock purchasable hereunder (the "Warrant Shares") and the Exercise Price are
subject to adjustment as provided in Section 4 hereof. The term "Warrant" means
this Warrant issued in connection with that certain License and Development
Agreement, dated as of March 24, 2006, by and between the Company and Cypress.
This Warrant is subject to the following terms, provisions and conditions:
1. (a) Manner of Exercise; Issuance of Certificates. Subject to the
provisions hereof, this Warrant may be exercised at any time during the Exercise
Period by the holder hereof, in whole or in part, by delivery of a completed
exercise agreement in the form attached hereto (the "Exercise Agreement"), to
the Company by 5 p.m. Colorado time on any Business Day at the Company's
principal executive offices (or such other office or agency of the Company as it
may designate by notice to the holder hereof) and upon payment to the Company as
provided in Section 1(b) below of the applicable Exercise Price for the Warrant
Shares specified in the Exercise Agreement. The Warrant Shares so purchased
shall be deemed to be issued to the holder hereof or such holder's designee, as
the record owner of such shares, as of the close of business on the date on
which this Warrant shall have been surrendered and the completed Exercise
Agreement shall have been delivered and payment shall have been made for such
shares as set forth above. The Warrant Shares so purchased, representing the
aggregate number of shares specified in the Exercise Agreement, shall be
delivered to the holder hereof within a reasonable time, not exceeding five (5)
Business Days, after this Warrant shall have been so exercised (the "Delivery
Period"). If the Company's transfer agent is participating in the Depository
Trust Company ("DTC") Fast Automated Securities Transfer program, and so long as
the certificates therefor do not require a legend and the holder is not
obligated to return such certificate for the placement of a legend thereon, the
Company shall cause its transfer agent to electronically transmit the Warrant
Shares so purchased to the holder by crediting the account of the holder or its
nominee with DTC through its Deposit Withdrawal Agent Commission system ("DTC
Transfer"). If the aforementioned conditions to a DTC Transfer are not
satisfied, the Company shall deliver to the holder physical certificates
representing the Warrant Shares so purchased. Further, the holder may instruct
the Company to deliver to the holder physical certificates representing the
Warrant Shares so purchased in lieu of delivering such shares by way of DTC
Transfer. Any certificates so delivered shall be in such denominations as may be
requested by the holder hereof, shall be registered in the name of such holder
or such other name as shall be designated by such holder and, following the date
on which the Warrant Shares may be sold by the holder pursuant to Rule 144(k)
promulgated under the Securities Act (or a successor rule), shall not bear any
restrictive legend relating to the Securities Act. If this Warrant shall have
been exercised only in part, then, unless this Warrant has expired, the Company
shall, at its expense, at the time of delivery of such certificates, deliver to
the holder a new Warrant representing the number of shares with respect to which
this Warrant shall not then have been exercised.
(b) Payment of Exercise Price. The holder shall pay the Exercise Price
in immediately available funds.
2. Period of Exercise. This Warrant may be exercised at any time or from
time to time (an "Exercise Date") during the period (the "Exercise Period")
beginning on (a) the date hereof and ending (b) at 5:00 p.m., Colorado time, on
March 23, 2016.
3. Certain Agreements of the Company. The Company hereby warrants,
covenants and agrees as follows:
(a) Shares to be Fully Paid. All Warrant Shares will, upon issuance in
accordance with the terms of this Warrant, be validly issued, fully paid and
nonassessable and free from all taxes, liens, claims and encumbrances (except
for restrictions existing under applicable securities laws).
2
(b) Reservation of Shares. During the Exercise Period, the Company shall
at all times have authorized, and reserved for the purpose of issuance upon
exercise of this Warrant, a sufficient number of shares of Common Stock to
provide for the exercise in full of this Warrant.
(c) Successors and Assigns. This Warrant shall be binding upon any
entity succeeding to the Company by merger, consolidation, or acquisition of all
or substantially all of the Company's assets.
4. Antidilution Provisions. During the Exercise Period, the Exercise Price and
the number of Warrant Shares issuable upon the exercise of the Warrants shall be
subject to adjustment from time to time as provided in this Section 4. In the
event that any adjustment of the Exercise Price as required herein results in a
fraction of a cent, such Exercise Price shall be rounded up or down to the
nearest cent; provided that, in no event shall the Exercise Price per share be
reduced below $0.01.
(a) Subdivision or Combination of Common Stock. If the Company, at any
time during the Exercise Period, subdivides (by any stock split, stock dividend,
recapitalization, reorganization, reclassification or otherwise) its shares of
Common Stock into a greater number of shares, then, after the date of record for
effecting such subdivision, the Exercise Price in effect immediately prior to
such subdivision will be proportionately reduced and the number of shares which
may be purchased hereunder shall be proportionately increased. If the Company,
at any time during the Exercise Period, combines (by reverse stock split,
recapitalization, reorganization, reclassification or otherwise) its shares of
Common Stock into a smaller number of shares, then, after the date of record for
effecting such combination, the Exercise Price in effect immediately prior to
such combination will be proportionately increased and the number of shares
which may be purchased hereunder shall be proportionately reduced.
(b) Consolidation, Merger or Sale. In case of any consolidation of the
Company with, or merger of the Company into, any other entity, or in case of any
sale or conveyance of all or substantially all of the assets of the Company
other than in connection with a plan of complete liquidation of the Company at
any time during the Exercise Period, then as a condition of such consolidation,
merger or sale or conveyance, adequate provision will be made whereby the holder
of this Warrant will have the right to acquire and receive upon exercise of this
Warrant in lieu of the shares of Common Stock immediately theretofore acquirable
upon the exercise of this Warrant, such shares of stock, securities, cash or
assets as may be issued or payable with respect to or in exchange for the number
of shares of Common Stock immediately theretofore acquirable and receivable upon
exercise of this Warrant had such consolidation, merger or sale or conveyance
not taken place. In any such case, the Company will make appropriate provision
to cause the provisions of this Section 4 thereafter to be applicable as nearly
as may be in relation to any shares of stock or securities thereafter
deliverable upon the exercise of this Warrant. The Company will not effect any
consolidation, merger, sale, or conveyance unless prior to the consummation
thereof, the successor entity (if other than the Company) assumes by written
instrument the obligations under this Warrant and the obligations to deliver to
the holder of this Warrant such shares of stock, securities or assets as, in
accordance with the foregoing provisions, the holder may be entitled to acquire.
3
(c) Notice of Adjustment. Upon the occurrence of any event which
requires any adjustment of the Exercise Price, then, and in each such case, the
Company shall give notice thereof to the holder of this Warrant, which notice
shall state the Exercise Price resulting from such adjustment and the increase
or decrease in the number of Warrant Shares issuable upon exercise of this
Warrant, setting forth in reasonable detail the method of calculation and the
facts upon which such calculation is based. Such calculation shall be certified
by the chief financial officer of the Company.
(d) Minimum Adjustment of the Exercise Price. No adjustment of the
Exercise Price shall be made in an amount of less than 1% of the Exercise Price
in effect at the time such adjustment is otherwise required to be made, but any
such lesser adjustment shall be carried forward and shall be made at the time
and together with the next subsequent adjustment which, together with any
adjustments so carried forward, shall amount to not less than 1% of such
Exercise Price.
(e) No Fractional Shares. No fractional shares of Common Stock are to
be issued upon the exercise of this Warrant, but the Company shall pay a cash
adjustment in respect of any fractional share which would otherwise be issuable
in an amount equal to the same fraction of the closing bid price of a share of
Common Stock on the Principal Market on the date of such exercise.
(f) Certain Definitions.
(i) "Business Day" means any day, other than a Saturday or Sunday
or a day on which banking institutions in the State of New York are authorized
or obligated by law, regulation or executive order to close.
(ii) "Principal Market" means the Over-the-Counter Bulletin Board
or, if the Common Stock is not traded on the Over-the-Counter Bulletin Board,
then the principal securities exchange or trading market for the Common Stock.
5. No Rights or Liabilities as a Stockholder. This Warrant shall not
entitle the holder hereof to any voting rights or other rights as a stockholder
of the Company. No provision of this Warrant, in the absence of affirmative
action by the holder hereof to purchase Warrant Shares, and no mere enumeration
herein of the rights or privileges of the holder hereof, shall give rise to any
liability of such holder for the Exercise Price or as a stockholder of the
Company, whether such liability is asserted by the Company or by creditors of
the Company.
6. Transfer, Exchange, Redemption and Replacement of Warrant.
(a) Restriction on Transfer. Subject to the terms of this Agreement,
this Warrant and the rights granted to the holder hereof are transferable in
whole or in part, at any time, upon surrender of this Warrant, together with a
properly executed assignment in the form attached hereto, at the office or
agency of the Company referred to in Section 6(e) below. Until due presentment
for registration of transfer on the books of the Company, the Company may treat
4
the registered holder hereof as the owner and holder hereof for all purposes,
and the Company shall not be affected by any notice to the contrary.
(b) Warrant Exchangeable for Different Denominations. This Warrant is
exchangeable, upon the surrender hereof by the holder hereof at the office or
agency of the Company referred to in Section 6(e) below, for new Warrants of
like tenor of different denominations representing in the aggregate the right to
purchase the number of shares of Common Stock which may be purchased hereunder,
each of such new Warrant to represent the right to purchase such number of
shares as shall be designated by the holder hereof at the time of such
surrender.
(c) Replacement of Warrant. Upon receipt of evidence reasonably
satisfactory to the Company of the loss, theft, destruction, or mutilation of
this Warrant and, in the case of any such loss, theft, or destruction, upon
delivery of an indemnity agreement reasonably satisfactory in form and amount to
the Company, or, in the case of any such mutilation, upon surrender and
cancellation of this Warrant, the Company, at its expense, will execute and
deliver, in lieu thereof, a new Warrant of like tenor.
(d) Cancellation. Upon the surrender of this Warrant in connection with
any transfer, exchange, or replacement as provided in this Section 6, this
Warrant shall be promptly canceled by the Company.
(e) Warrant Register. The Company shall maintain, at its principal
executive offices (or such other office or agency of the Company as it may
designate by notice to the holder hereof), a register for this Warrant, in which
the Company shall record the name and address of the person in whose name this
Warrant has been issued, as well as the name and address of each transferee and
each prior owner of this Warrant.
(f) Exercise or Transfer Without Registration. If, at the time of the
surrender of this Warrant in connection with any exercise, transfer, or exchange
of this Warrant, this Warrant (or, in the case of any exercise, the Warrant
Shares issuable hereunder), shall not be registered under the Securities Act and
under applicable state securities or blue sky laws, the Company may require, as
a condition of allowing such exercise, transfer, or exchange, (i) that the
holder or transferee of this Warrant, as the case may be, furnish to the Company
a written opinion of counsel (which opinion shall be reasonably acceptable to
the Company and shall be in form, substance and scope customary for opinions of
counsel in comparable transactions) to the effect that such exercise, transfer,
or exchange may be made without registration under the Securities Act and under
applicable state securities or blue sky laws, (ii) that the holder or transferee
execute and deliver to the Company an investment letter in form and substance
reasonably acceptable to the Company and (iii) that the transferee be an
"accredited investor" as defined in Rule 501(a) promulgated under the Securities
Act.
7. Registration Rights. The initial holder of this Warrant (and certain
assignees thereof) are entitled to the benefit of such registration rights in
5
respect of the Warrant Shares as are set forth in the Amended and Restated
Registration Rights Agreement, dated March 24, 2006, by and between the Company
and Cypress.
8. Notices. Any notices required or permitted to be given under the terms
of this Warrant shall be sent by certified or registered mail (return receipt
requested) or delivered personally or by courier or by confirmed telecopy, and
shall be effective five (5) days after being placed in the mail, if mailed, or
upon receipt or refusal of receipt, if delivered personally or by courier, or by
confirmed facsimile, in each case addressed to a party. The addresses for such
communications shall be:
If to the Company:
Simtek Corporation
0000 Xxxxxxxxxx Xx., Xxxxx 000
Xxxxxxxx Xxxxxxx, XX 00000
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
Attention: Xxxxxx Xxxxxxxxx, President
With a copy to:
Holme Xxxxxxx & Xxxx LLP
0000 Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, XX 00000-0000
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxx, Esq.
If to Cypress:
Cypress Semiconductor Corporation
000 Xxxxxxxx Xxxxx
Xxx Xxxx, Xxxxxxxxxx 00000-0000
Attn: Chief Financial Officer and General Counsel
Facsimile: (000) 000-0000
With a copy to:
Cypress Semiconductor Corporation
000 Xxxxxxxx Xxxxx
Xxx Xxxx, Xxxxxxxxxx 00000-0000
Attn: Sr. Vice President of Memory and Imaging Division
Facsimile: (000) 000-0000
6
Either the Company or the holder may at any time designate any other
person or address in place of that provided in this Section by giving written
notice to the other in accordance with this Section.
9. Governing Law. All questions concerning the construction, validity,
enforcement and interpretation of this warrant shall be governed by and
construed and enforced in accordance with the laws of the state of California.
10. Miscellaneous.
(a) This Warrant and any provision hereof may only be amended by an
instrument in writing signed by the Company and the holder hereof.
(b) The descriptive headings of the several Sections of this Warrant
are inserted for purposes of reference only, and shall not affect the meaning or
construction of any of the provisions hereof.
(c) In case any one or more of the provisions of this Warrant shall be
invalid or unenforceable in any respect, the validity and enforceability of the
remaining terms and provisions of this Warrant shall not in any way be affected
or impaired thereby and the parties will attempt in good faith to agree upon a
valid and enforceable provision which shall be a commercially reasonable
substitute therefor, and upon so agreeing, shall incorporate such substitute
provision in this Warrant.
(d) Subject to the restrictions on transfer set forth herein, this
Warrant may be assigned by the holder. This Warrant may not be assigned by the
Company. This Warrant shall be binding on and inure to the benefit of the
parties hereto and their respective successors and assigns. Subject to the
preceding sentence, nothing in this Warrant shall be construed to give to any
Person other than the Company and the holder any legal or equitable right,
remedy or cause of action under this Warrant. Cypress may assign this Warrant
only to a transferee or assignee that is an Affiliate of Cypress. The term
"Affiliate" shall mean with respect to any individual, corporation, partnership,
association, trust, or any other entity (in each case, a "Person"), any Person,
which, directly or indirectly, controls, is controlled by or is under common
control with such Person.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
7
IN WITNESS WHEREOF, the Company has caused this Warrant to be signed by its
duly authorized officer.
SIMTEK CORPORATION
By:
--------------------------------------------
Name:
Title:
FORM OF EXERCISE AGREEMENT
(To be Executed by the holder in order to Exercise the Warrant)
To: Simtek Corporation
0000 Xxxxxxxxxx Xx., Xxxxx 000
Xxxxxxxx Xxxxxxx, XX 00000
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
Attention: _____________________
Its:__________________________
The undersigned hereby irrevocably exercises the right to purchase _____________
shares of the Common Stock, $.01 par value per share, of SIMTEK CORPORATION, a
corporation organized under the laws of the State of Colorado (the "Company"),
and tenders herewith payment of the Exercise Price in full, in the amount of
$_____________, in cash, by certified bank check or by wire transfer of
immediately available funds for the account of the Company; and
The undersigned agrees not to offer, sell, transfer or otherwise dispose of
any Common Stock obtained on exercise of the Warrant, except under circumstances
that will not result in a violation of the Securities Act of 1933, as amended,
or any state securities laws.
[ ] The undersigned requests that the Company cause its transfer agent to
electronically transmit the Common Stock issuable pursuant to this Exercise
Agreement to the account of the undersigned or its nominee (which is
_________________) with DTC through its Deposit Withdrawal Agent Commission
System ("DTC Transfer").
[ ] In lieu of receiving the shares of Common Stock issuable pursuant to this
Exercise Agreement by way of DTC Transfer, the undersigned hereby requests
that the Company cause its transfer agent to issue and deliver to the
undersigned physical certificates representing such shares of Common Stock.
The undersigned requests that a Warrant representing any unexercised
portion hereof be issued, pursuant to the Warrant, in the name of the Holder and
delivered to the undersigned at the address set forth below:
Dated:_________________ _____________________________________
Signature of Holder
_____________________________________
Name of Holder (Print)
Address:
_____________________________________
_____________________________________
_____________________________________
FORM OF ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sells, assigns, and transfers
all the rights of the undersigned under the attached Warrant, with respect to
the number of shares of Common Stock covered thereby issuable pursuant to the
attached Warrant set forth hereinbelow, to:
Name of Assignee Address No of Shares
---------------- ------- ------------
and hereby irrevocably constitutes and appoints ________________________________
as agent and attorney-in-fact to transfer said Warrant on the books of the
within-named corporation, with full power of substitution in the premises.
Dated: _____________________, ____
In the presence of
____________________________
Name: ____________________________
Signature: _______________________
Title of Signing Officer or Agent
(if any):
Address: __________________________
__________________________
Note: The above signature should
correspond exactly with the
name on theface of the
within Warrant.
Simtek and Cypress Proprietary
Schedule 2
Stock Purchase Warrant (June 30, 2006)
--------------------------------------
VOID AFTER 5:00 P.M., COLORADO TIME,
ON JUNE 30, 2016
NEITHER THESE SECURITIES NOR THE SECURITIES INTO WHICH THESE SECURITIES ARE
EXERCISABLE HAVE 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"), or the securities laws of any state of the United
States. The securities represented hereby may not be offered or sold in the
absence of an effective registration statement for the securities under
applicable securities laws unless offered, sold or transferred under an
available exemption from the registration requirements of those laws.
Date: June 30, 2006
SIMTEK CORPORATION
STOCK PURCHASE WARRANT
THIS CERTIFIES THAT, for value received, Cypress Semiconductor Corporation,
a Delaware corporation ("Cypress"), is entitled to purchase from SIMTEK
CORPORATION, a corporation organized under the laws of the State of Colorado
(the "Company"), at any time or from time to time during the Exercise Period (as
defined in Section 2 hereof), 5,000,000 fully paid and nonassessable shares of
the Company's common stock, $0.01 par value (the "Common Stock"), at an exercise
price per share (the "Exercise Price") of $0.75. The number of shares of Common
Stock purchasable hereunder (the "Warrant Shares") and the Exercise Price are
subject to adjustment as provided in Section 4 hereof. The term "Warrant" means
this Warrant issued in connection with that certain License and Development
Agreement, dated as of March 24, 2006, by and between the Company and Cypress.
This Warrant is subject to the following terms, provisions and conditions:
1. (a) Manner of Exercise; Issuance of Certificates. Subject to the
provisions hereof, this Warrant may be exercised at any time during the Exercise
Period by the holder hereof, in whole or in part, by delivery of a completed
exercise agreement in the form attached hereto (the "Exercise Agreement"), to
the Company by 5 p.m. Colorado time on any Business Day at the Company's
principal executive offices (or such other office or agency of the Company as it
may designate by notice to the holder hereof) and upon payment to the Company as
provided in Section 1(b) below of the applicable Exercise Price for the Warrant
Shares specified in the Exercise Agreement. The Warrant Shares so purchased
shall be deemed to be issued to the holder hereof or such holder's designee, as
the record owner of such shares, as of the close of business on the date on
which this Warrant shall have been surrendered and the completed Exercise
Agreement shall have been delivered and payment shall have been made for such
shares as set forth above. The Warrant Shares so purchased, representing the
aggregate number of shares specified in the Exercise Agreement, shall be
delivered to the holder hereof within a reasonable time, not exceeding five (5)
Business Days, after this Warrant shall have been so exercised (the "Delivery
Period"). If the Company's transfer agent is participating in the Depository
Trust Company ("DTC") Fast Automated Securities Transfer program, and so long as
the certificates therefor do not require a legend and the holder is not
obligated to return such certificate for the placement of a legend thereon, the
Company shall cause its transfer agent to electronically transmit the Warrant
Shares so purchased to the holder by crediting the account of the holder or its
nominee with DTC through its Deposit Withdrawal Agent Commission system ("DTC
Transfer"). If the aforementioned conditions to a DTC Transfer are not
satisfied, the Company shall deliver to the holder physical certificates
representing the Warrant Shares so purchased. Further, the holder may instruct
the Company to deliver to the holder physical certificates representing the
Warrant Shares so purchased in lieu of delivering such shares by way of DTC
Transfer. Any certificates so delivered shall be in such denominations as may be
requested by the holder hereof, shall be registered in the name of such holder
or such other name as shall be designated by such holder and, following the date
on which the Warrant Shares may be sold by the holder pursuant to Rule 144(k)
promulgated under the Securities Act (or a successor rule), shall not bear any
restrictive legend relating to the Securities Act. If this Warrant shall have
been exercised only in part, then, unless this Warrant has expired, the Company
shall, at its expense, at the time of delivery of such certificates, deliver to
the holder a new Warrant representing the number of shares with respect to which
this Warrant shall not then have been exercised.
(b) Payment of Exercise Price. The holder shall pay the Exercise Price
in immediately available funds.
2. Period of Exercise. This Warrant may be exercised at any time or from
time to time (an "Exercise Date") during the period (the "Exercise Period")
beginning on (a) the date hereof and ending (b) at 5:00 p.m., Colorado time, on
June 30, 2016.
3. Certain Agreements of the Company. The Company hereby warrants,
covenants and agrees as follows:
(a) Shares to be Fully Paid. All Warrant Shares will, upon issuance in
accordance with the terms of this Warrant, be validly issued, fully paid and
nonassessable and free from all taxes, liens, claims and encumbrances (except
for restrictions existing under applicable securities laws).
2
(b) Reservation of Shares. During the Exercise Period, the Company
shall at all times have authorized, and reserved for the purpose of issuance
upon exercise of this Warrant, a sufficient number of shares of Common Stock to
provide for the exercise in full of this Warrant.
(c) Successors and Assigns. This Warrant shall be binding upon any
entity succeeding to the Company by merger, consolidation, or acquisition of all
or substantially all of the Company's assets.
4. Antidilution Provisions. During the Exercise Period, the Exercise Price
and the number of Warrant Shares issuable upon the exercise of the Warrants
shall be subject to adjustment from time to time as provided in this Section 4.
In the event that any adjustment of the Exercise Price as required herein
results in a fraction of a cent, such Exercise Price shall be rounded up or down
to the nearest cent; provided that, in no event shall the Exercise Price per
share be reduced below $0.01.
(a) Subdivision or Combination of Common Stock. If the Company, at any
time during the Exercise Period, subdivides (by any stock split, stock dividend,
recapitalization, reorganization, reclassification or otherwise) its shares of
Common Stock into a greater number of shares, then, after the date of record for
effecting such subdivision, the Exercise Price in effect immediately prior to
such subdivision will be proportionately reduced and the number of shares which
may be purchased hereunder shall be proportionately increased. If the Company,
at any time during the Exercise Period, combines (by reverse stock split,
recapitalization, reorganization, reclassification or otherwise) its shares of
Common Stock into a smaller number of shares, then, after the date of record for
effecting such combination, the Exercise Price in effect immediately prior to
such combination will be proportionately increased and the number of shares
which may be purchased hereunder shall be proportionately reduced.
(b) Consolidation, Merger or Sale. In case of any consolidation of the
Company with, or merger of the Company into, any other entity, or in case of any
sale or conveyance of all or substantially all of the assets of the Company
other than in connection with a plan of complete liquidation of the Company at
any time during the Exercise Period, then as a condition of such consolidation,
merger or sale or conveyance, adequate provision will be made whereby the holder
of this Warrant will have the right to acquire and receive upon exercise of this
Warrant in lieu of the shares of Common Stock immediately theretofore acquirable
upon the exercise of this Warrant, such shares of stock, securities, cash or
assets as may be issued or payable with respect to or in exchange for the number
of shares of Common Stock immediately theretofore acquirable and receivable upon
exercise of this Warrant had such consolidation, merger or sale or conveyance
not taken place. In any such case, the Company will make appropriate provision
to cause the provisions of this Section 4 thereafter to be applicable as nearly
as may be in relation to any shares of stock or securities thereafter
deliverable upon the exercise of this Warrant. The Company will not effect any
consolidation, merger, sale, or conveyance unless prior to the consummation
thereof, the successor entity (if other than the Company) assumes by written
instrument the obligations under this Warrant and the obligations to deliver to
the holder of this Warrant such shares of stock, securities or assets as, in
accordance with the foregoing provisions, the holder may be entitled to acquire.
3
(c) Notice of Adjustment. Upon the occurrence of any event which
requires any adjustment of the Exercise Price, then, and in each such case, the
Company shall give notice thereof to the holder of this Warrant, which notice
shall state the Exercise Price resulting from such adjustment and the increase
or decrease in the number of Warrant Shares issuable upon exercise of this
Warrant, setting forth in reasonable detail the method of calculation and the
facts upon which such calculation is based. Such calculation shall be certified
by the chief financial officer of the Company.
(d) Minimum Adjustment of the Exercise Price. No adjustment of the
Exercise Price shall be made in an amount of less than 1% of the Exercise Price
in effect at the time such adjustment is otherwise required to be made, but any
such lesser adjustment shall be carried forward and shall be made at the time
and together with the next subsequent adjustment which, together with any
adjustments so carried forward, shall amount to not less than 1% of such
Exercise Price.
(e) No Fractional Shares. No fractional shares of Common Stock are to
be issued upon the exercise of this Warrant, but the Company shall pay a cash
adjustment in respect of any fractional share which would otherwise be issuable
in an amount equal to the same fraction of the closing bid price of a share of
Common Stock on the Principal Market on the date of such exercise.
(f) Certain Definitions.
(i) "Business Day" means any day, other than a Saturday or Sunday
or a day on which banking institutions in the State of New York are authorized
or obligated by law, regulation or executive order to close.
(ii) "Principal Market" means the Over-the-Counter Bulletin Board
or, if the Common Stock is not traded on the Over-the-Counter Bulletin Board,
then the principal securities exchange or trading market for the Common Stock.
5. No Rights or Liabilities as a Stockholder. This Warrant shall not
entitle the holder hereof to any voting rights or other rights as a stockholder
of the Company. No provision of this Warrant, in the absence of affirmative
action by the holder hereof to purchase Warrant Shares, and no mere enumeration
herein of the rights or privileges of the holder hereof, shall give rise to any
liability of such holder for the Exercise Price or as a stockholder of the
Company, whether such liability is asserted by the Company or by creditors of
the Company.
6. Transfer, Exchange, Redemption and Replacement of Warrant.
(a) Restriction on Transfer. Subject to the terms of this Agreement,
this Warrant and the rights granted to the holder hereof are transferable in
whole or in part, at any time, upon surrender of this Warrant, together with a
properly executed assignment in the form attached hereto, at the office or
agency of the Company referred to in Section 6(e) below. Until due presentment
4
for registration of transfer on the books of the Company, the Company may treat
the registered holder hereof as the owner and holder hereof for all purposes,
and the Company shall not be affected by any notice to the contrary.
(b) Warrant Exchangeable for Different Denominations. This Warrant is
exchangeable, upon the surrender hereof by the holder hereof at the office or
agency of the Company referred to in Section 6(e) below, for new Warrants of
like tenor of different denominations representing in the aggregate the right to
purchase the number of shares of Common Stock which may be purchased hereunder,
each of such new Warrant to represent the right to purchase such number of
shares as shall be designated by the holder hereof at the time of such
surrender.
(c) Replacement of Warrant. Upon receipt of evidence reasonably
satisfactory to the Company of the loss, theft, destruction, or mutilation of
this Warrant and, in the case of any such loss, theft, or destruction, upon
delivery of an indemnity agreement reasonably satisfactory in form and amount to
the Company, or, in the case of any such mutilation, upon surrender and
cancellation of this Warrant, the Company, at its expense, will execute and
deliver, in lieu thereof, a new Warrant of like tenor.
(d) Cancellation. Upon the surrender of this Warrant in connection with
any transfer, exchange, or replacement as provided in this Section 6, this
Warrant shall be promptly canceled by the Company.
(e) Warrant Register. The Company shall maintain, at its principal
executive offices (or such other office or agency of the Company as it may
designate by notice to the holder hereof), a register for this Warrant, in which
the Company shall record the name and address of the person in whose name this
Warrant has been issued, as well as the name and address of each transferee and
each prior owner of this Warrant.
(f) Exercise or Transfer Without Registration. If, at the time of the
surrender of this Warrant in connection with any exercise, transfer, or exchange
of this Warrant, this Warrant (or, in the case of any exercise, the Warrant
Shares issuable hereunder), shall not be registered under the Securities Act and
under applicable state securities or blue sky laws, the Company may require, as
a condition of allowing such exercise, transfer, or exchange, (i) that the
holder or transferee of this Warrant, as the case may be, furnish to the Company
a written opinion of counsel (which opinion shall be reasonably acceptable to
the Company and shall be in form, substance and scope customary for opinions of
counsel in comparable transactions) to the effect that such exercise, transfer,
or exchange may be made without registration under the Securities Act and under
applicable state securities or blue sky laws, (ii) that the holder or transferee
execute and deliver to the Company an investment letter in form and substance
reasonably acceptable to the Company and (iii) that the transferee be an
"accredited investor" as defined in Rule 501(a) promulgated under the Securities
Act.
7. Registration Rights. The initial holder of this Warrant (and certain
assignees thereof) are entitled to the benefit of such registration rights in
5
respect of the Warrant Shares as are set forth in the Amended and Restated
Registration Rights Agreement, dated March 24, 2006, by and between the Company
and Cypress. 8. Notices. Any notices required or permitted to be given under the
terms of this Warrant shall be sent by certified or registered mail (return
receipt requested) or delivered personally or by courier or by confirmed
telecopy, and shall be effective five (5) days after being placed in the mail,
if mailed, or upon receipt or refusal of receipt, if delivered personally or by
courier, or by confirmed facsimile, in each case addressed to a party. The
addresses for such communications shall be:
If to the Company:
Simtek Corporation
0000 Xxxxxxxxxx Xx., Xxxxx 000
Xxxxxxxx Xxxxxxx, XX 00000
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
Attention: Xxxxxx Xxxxxxxxx, President
With a copy to:
Holme Xxxxxxx & Xxxx LLP
0000 Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, XX 00000-0000
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxx, Esq.
If to Cypress:
Cypress Semiconductor Corporation
000 Xxxxxxxx Xxxxx
Xxx Xxxx, Xxxxxxxxxx 00000-0000
Attn: Chief Financial Officer and General Counsel
Facsimile: (000) 000-0000
With a copy to:
Cypress Semiconductor Corporation
000 Xxxxxxxx Xxxxx
Xxx Xxxx, Xxxxxxxxxx 00000-0000
Attn: Sr. Vice President of Memory and Imaging Division
Facsimile: (000) 000-0000
6
Either the Company or the holder may at any time designate any other person
or address in place of that provided in this Section by giving written notice to
the other in accordance with this Section.
9. Governing Law. All questions concerning the construction, validity,
enforcement and interpretation of this warrant shall be governed by and
construed and enforced in accordance with the laws of the state of California.
10. Miscellaneous.
(a) This Warrant and any provision hereof may only be amended by an
instrument in writing signed by the Company and the holder hereof.
(b) The descriptive headings of the several Sections of this Warrant
are inserted for purposes of reference only, and shall not affect the meaning or
construction of any of the provisions hereof.
(c) In case any one or more of the provisions of this Warrant shall be
invalid or unenforceable in any respect, the validity and enforceability of the
remaining terms and provisions of this Warrant shall not in any way be affected
or impaired thereby and the parties will attempt in good faith to agree upon a
valid and enforceable provision which shall be a commercially reasonable
substitute therefor, and upon so agreeing, shall incorporate such substitute
provision in this Warrant.
(d) Subject to the restrictions on transfer set forth herein, this
Warrant may be assigned by the holder. This Warrant may not be assigned by the
Company. This Warrant shall be binding on and inure to the benefit of the
parties hereto and their respective successors and assigns. Subject to the
preceding sentence, nothing in this Warrant shall be construed to give to any
Person other than the Company and the holder any legal or equitable right,
remedy or cause of action under this Warrant. Cypress may assign this Warrant
only to a transferee or assignee that is an Affiliate of Cypress. The term
"Affiliate" shall mean with respect to any individual, corporation, partnership,
association, trust, or any other entity (in each case, a "Person"), any Person,
which, directly or indirectly, controls, is controlled by or is under common
control with such Person.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
7
IN WITNESS WHEREOF, the Company has caused this Warrant to be signed by its
duly authorized officer.
SIMTEK CORPORATION
By:
--------------------------------------------
Name:
Title:
8
FORM OF EXERCISE AGREEMENT
(To be Executed by the holder in order to Exercise the Warrant)
To: Simtek Corporation
0000 Xxxxxxxxxx Xx., Xxxxx 000
Xxxxxxxx Xxxxxxx, XX 00000
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
Attention: _____________________
Its:__________________________
The undersigned hereby irrevocably exercises the right to purchase _____________
shares of the Common Stock, $.01 par value per share, of SIMTEK CORPORATION, a
corporation organized under the laws of the State of Colorado (the "Company"),
and tenders herewith payment of the Exercise Price in full, in the amount of
$_____________, in cash, by certified bank check or by wire transfer of
immediately available funds for the account of the Company; and
The undersigned agrees not to offer, sell, transfer or otherwise dispose of
any Common Stock obtained on exercise of the Warrant, except under circumstances
that will not result in a violation of the Securities Act of 1933, as amended,
or any state securities laws.
[ ] The undersigned requests that the Company cause its transfer agent to
electronically transmit the Common Stock issuable pursuant to this Exercise
Agreement to the account of the undersigned or its nominee (which is
_________________) with DTC through its Deposit Withdrawal Agent Commission
System ("DTC Transfer").
[ ] In lieu of receiving the shares of Common Stock issuable pursuant to this
Exercise Agreement by way of DTC Transfer, the undersigned hereby requests
that the Company cause its transfer agent to issue and deliver to the
undersigned physical certificates representing such shares of Common Stock.
The undersigned requests that a Warrant representing any unexercised
portion hereof be issued, pursuant to the Warrant, in the name of the Holder and
delivered to the undersigned at the address set forth below:
Dated:_________________ _____________________________________
Signature of Holder
_____________________________________
Name of Holder (Print)
Address:
_____________________________________
_____________________________________
_____________________________________
FORM OF ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sells, assigns, and transfers
all the rights of the undersigned under the attached Warrant, with respect to
the number of shares of Common Stock covered thereby issuable pursuant to the
attached Warrant set forth hereinbelow, to:
Name of Assignee Address No of Shares
---------------- ------- ------------
and hereby irrevocably constitutes and appoints ________________________________
as agent and attorney-in-fact to transfer said Warrant on the books of the
within-named corporation, with full power of substitution in the premises.
Dated: _____________________, ____
In the presence of
____________________________
Name: ____________________________
Signature: _______________________
Title of Signing Officer or Agent
(if any):
Address: __________________________
__________________________
Note: The above signature should
correspond exactly with the
name on theface of the
within Warrant.
Simtek and Cypress Proprietary
Schedule 3
Stock Purchase Warrant (December 31, 2006)
VOID AFTER 5:00 P.M., COLORADO TIME,
ON DECEMBER 31, 2016
NEITHER THESE SECURITIES NOR THE SECURITIES INTO WHICH THESE SECURITIES ARE
EXERCISABLE HAVE 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"), or the securities laws of any state of the United
States. The securities represented hereby may not be offered or sold in the
absence of an effective registration statement for the securities under
applicable securities laws unless offered, sold or transferred under an
available exemption from the registration requirements of those laws.
Date: December 31, 2006
SIMTEK CORPORATION
STOCK PURCHASE WARRANT
THIS CERTIFIES THAT, for value received, Cypress Semiconductor Corporation,
a Delaware corporation ("Cypress"), is entitled to purchase from SIMTEK
CORPORATION, a corporation organized under the laws of the State of Colorado
(the "Company"), at any time or from time to time during the Exercise Period (as
defined in Section 2 hereof), 5,000,000 fully paid and nonassessable shares of
the Company's common stock, $0.01 par value (the "Common Stock"), at an exercise
price per share (the "Exercise Price") of $0.75. The number of shares of Common
Stock purchasable hereunder (the "Warrant Shares") and the Exercise Price are
subject to adjustment as provided in Section 4 hereof. The term "Warrant" means
this Warrant issued in connection with that certain License and Development
Agreement, dated as of March 24, 2006, by and between the Company and Cypress.
This Warrant is subject to the following terms, provisions and conditions:
1. (a) Manner of Exercise; Issuance of Certificates. Subject to the
provisions hereof, this Warrant may be exercised at any time during the Exercise
Period by the holder hereof, in whole or in part, by delivery of a completed
exercise agreement in the form attached hereto (the "Exercise Agreement"), to
the Company by 5 p.m. Colorado time on any Business Day at the Company's
principal executive offices (or such other office or agency of the Company as it
may designate by notice to the holder hereof) and upon payment to the Company as
provided in Section 1(b) below of the applicable Exercise Price for the Warrant
Shares specified in the Exercise Agreement. The Warrant Shares so purchased
shall be deemed to be issued to the holder hereof or such holder's designee, as
the record owner of such shares, as of the close of business on the date on
which this Warrant shall have been surrendered and the completed Exercise
Agreement shall have been delivered and payment shall have been made for such
shares as set forth above. The Warrant Shares so purchased, representing the
aggregate number of shares specified in the Exercise Agreement, shall be
delivered to the holder hereof within a reasonable time, not exceeding five (5)
Business Days, after this Warrant shall have been so exercised (the "Delivery
Period"). If the Company's transfer agent is participating in the Depository
Trust Company ("DTC") Fast Automated Securities Transfer program, and so long as
the certificates therefor do not require a legend and the holder is not
obligated to return such certificate for the placement of a legend thereon, the
Company shall cause its transfer agent to electronically transmit the Warrant
Shares so purchased to the holder by crediting the account of the holder or its
nominee with DTC through its Deposit Withdrawal Agent Commission system ("DTC
Transfer"). If the aforementioned conditions to a DTC Transfer are not
satisfied, the Company shall deliver to the holder physical certificates
representing the Warrant Shares so purchased. Further, the holder may instruct
the Company to deliver to the holder physical certificates representing the
Warrant Shares so purchased in lieu of delivering such shares by way of DTC
Transfer. Any certificates so delivered shall be in such denominations as may be
requested by the holder hereof, shall be registered in the name of such holder
or such other name as shall be designated by such holder and, following the date
on which the Warrant Shares may be sold by the holder pursuant to Rule 144(k)
promulgated under the Securities Act (or a successor rule), shall not bear any
restrictive legend relating to the Securities Act. If this Warrant shall have
been exercised only in part, then, unless this Warrant has expired, the Company
shall, at its expense, at the time of delivery of such certificates, deliver to
the holder a new Warrant representing the number of shares with respect to which
this Warrant shall not then have been exercised.
(b) Payment of Exercise Price. The holder shall pay the Exercise Price
in immediately available funds.
2. Period of Exercise. This Warrant may be exercised at any time or from
time to time (an "Exercise Date") during the period (the "Exercise Period")
beginning on (a) the date hereof and ending (b) at 5:00 p.m., Colorado time, on
December 31, 2016.
3. Certain Agreements of the Company. The Company hereby warrants,
covenants and agrees as follows:
(a) Shares to be Fully Paid. All Warrant Shares will, upon issuance in
accordance with the terms of this Warrant, be validly issued, fully paid and
nonassessable and free from all taxes, liens, claims and encumbrances (except
for restrictions existing under applicable securities laws).
2
(b) Reservation of Shares. During the Exercise Period, the Company
shall at all times have authorized, and reserved for the purpose of issuance
upon exercise of this Warrant, a sufficient number of shares of Common Stock to
provide for the exercise in full of this Warrant.
(c) Successors and Assigns. This Warrant shall be binding upon any
entity succeeding to the Company by merger, consolidation, or acquisition of all
or substantially all of the Company's assets.
4. Antidilution Provisions. During the Exercise Period, the Exercise Price
and the number of Warrant Shares issuable upon the exercise of the Warrants
shall be subject to adjustment from time to time as provided in this Section 4.
In the event that any adjustment of the Exercise Price as required herein
results in a fraction of a cent, such Exercise Price shall be rounded up or down
to the nearest cent; provided that, in no event shall the Exercise Price per
share be reduced below $0.01.
(a) Subdivision or Combination of Common Stock. If the Company, at any
time during the Exercise Period, subdivides (by any stock split, stock dividend,
recapitalization, reorganization, reclassification or otherwise) its shares of
Common Stock into a greater number of shares, then, after the date of record for
effecting such subdivision, the Exercise Price in effect immediately prior to
such subdivision will be proportionately reduced and the number of shares which
may be purchased hereunder shall be proportionately increased. If the Company,
at any time during the Exercise Period, combines (by reverse stock split,
recapitalization, reorganization, reclassification or otherwise) its shares of
Common Stock into a smaller number of shares, then, after the date of record for
effecting such combination, the Exercise Price in effect immediately prior to
such combination will be proportionately increased and the number of shares
which may be purchased hereunder shall be proportionately reduced.
(b) Consolidation, Merger or Sale. In case of any consolidation of the
Company with, or merger of the Company into, any other entity, or in case of any
sale or conveyance of all or substantially all of the assets of the Company
other than in connection with a plan of complete liquidation of the Company at
any time during the Exercise Period, then as a condition of such consolidation,
merger or sale or conveyance, adequate provision will be made whereby the holder
of this Warrant will have the right to acquire and receive upon exercise of this
Warrant in lieu of the shares of Common Stock immediately theretofore acquirable
upon the exercise of this Warrant, such shares of stock, securities, cash or
assets as may be issued or payable with respect to or in exchange for the number
of shares of Common Stock immediately theretofore acquirable and receivable upon
exercise of this Warrant had such consolidation, merger or sale or conveyance
not taken place. In any such case, the Company will make appropriate provision
to cause the provisions of this Section 4 thereafter to be applicable as nearly
as may be in relation to any shares of stock or securities thereafter
deliverable upon the exercise of this Warrant. The Company will not effect any
consolidation, merger, sale, or conveyance unless prior to the consummation
thereof, the successor entity (if other than the Company) assumes by written
instrument the obligations under this Warrant and the obligations to deliver to
the holder of this Warrant such shares of stock, securities or assets as, in
accordance with the foregoing provisions, the holder may be entitled to acquire.
3
(c) Notice of Adjustment. Upon the occurrence of any event which
requires any adjustment of the Exercise Price, then, and in each such case, the
Company shall give notice thereof to the holder of this Warrant, which notice
shall state the Exercise Price resulting from such adjustment and the increase
or decrease in the number of Warrant Shares issuable upon exercise of this
Warrant, setting forth in reasonable detail the method of calculation and the
facts upon which such calculation is based. Such calculation shall be certified
by the chief financial officer of the Company.
(d) Minimum Adjustment of the Exercise Price. No adjustment of the
Exercise Price shall be made in an amount of less than 1% of the Exercise Price
in effect at the time such adjustment is otherwise required to be made, but any
such lesser adjustment shall be carried forward and shall be made at the time
and together with the next subsequent adjustment which, together with any
adjustments so carried forward, shall amount to not less than 1% of such
Exercise Price.
(e) No Fractional Shares. No fractional shares of Common Stock are to
be issued upon the exercise of this Warrant, but the Company shall pay a cash
adjustment in respect of any fractional share which would otherwise be issuable
in an amount equal to the same fraction of the closing bid price of a share of
Common Stock on the Principal Market on the date of such exercise.
(f) Certain Definitions.
(i) "Business Day" means any day, other than a Saturday or Sunday
or a day on which banking institutions in the State of New York are authorized
or obligated by law, regulation or executive order to close.
(ii) "Principal Market" means the Over-the-Counter Bulletin Board
or, if the Common Stock is not traded on the Over-the-Counter Bulletin Board,
then the principal securities exchange or trading market for the Common Stock.
5. No Rights or Liabilities as a Stockholder. This Warrant shall not
entitle the holder hereof to any voting rights or other rights as a stockholder
of the Company. No provision of this Warrant, in the absence of affirmative
action by the holder hereof to purchase Warrant Shares, and no mere enumeration
herein of the rights or privileges of the holder hereof, shall give rise to any
liability of such holder for the Exercise Price or as a stockholder of the
Company, whether such liability is asserted by the Company or by creditors of
the Company.
6. Transfer, Exchange, Redemption and Replacement of Warrant.
(a) Restriction on Transfer. Subject to the terms of this Agreement,
this Warrant and the rights granted to the holder hereof are transferable in
whole or in part, at any time, upon surrender of this Warrant, together with a
properly executed assignment in the form attached hereto, at the office or
agency of the Company referred to in Section 6(e) below. Until due presentment
4
for registration of transfer on the books of the Company, the Company may treat
the registered holder hereof as the owner and holder hereof for all purposes,
and the Company shall not be affected by any notice to the contrary.
(b) Warrant Exchangeable for Different Denominations. This Warrant is
exchangeable, upon the surrender hereof by the holder hereof at the office or
agency of the Company referred to in Section 6(e) below, for new Warrants of
like tenor of different denominations representing in the aggregate the right to
purchase the number of shares of Common Stock which may be purchased hereunder,
each of such new Warrant to represent the right to purchase such number of
shares as shall be designated by the holder hereof at the time of such
surrender.
(c) Replacement of Warrant. Upon receipt of evidence reasonably
satisfactory to the Company of the loss, theft, destruction, or mutilation of
this Warrant and, in the case of any such loss, theft, or destruction, upon
delivery of an indemnity agreement reasonably satisfactory in form and amount to
the Company, or, in the case of any such mutilation, upon surrender and
cancellation of this Warrant, the Company, at its expense, will execute and
deliver, in lieu thereof, a new Warrant of like tenor.
(d) Cancellation. Upon the surrender of this Warrant in connection with
any transfer, exchange, or replacement as provided in this Section 6, this
Warrant shall be promptly canceled by the Company.
(e) Warrant Register. The Company shall maintain, at its principal
executive offices (or such other office or agency of the Company as it may
designate by notice to the holder hereof), a register for this Warrant, in which
the Company shall record the name and address of the person in whose name this
Warrant has been issued, as well as the name and address of each transferee and
each prior owner of this Warrant.
(f) Exercise or Transfer Without Registration. If, at the time of the
surrender of this Warrant in connection with any exercise, transfer, or exchange
of this Warrant, this Warrant (or, in the case of any exercise, the Warrant
Shares issuable hereunder), shall not be registered under the Securities Act and
under applicable state securities or blue sky laws, the Company may require, as
a condition of allowing such exercise, transfer, or exchange, (i) that the
holder or transferee of this Warrant, as the case may be, furnish to the Company
a written opinion of counsel (which opinion shall be reasonably acceptable to
the Company and shall be in form, substance and scope customary for opinions of
counsel in comparable transactions) to the effect that such exercise, transfer,
or exchange may be made without registration under the Securities Act and under
applicable state securities or blue sky laws, (ii) that the holder or transferee
execute and deliver to the Company an investment letter in form and substance
reasonably acceptable to the Company and (iii) that the transferee be an
"accredited investor" as defined in Rule 501(a) promulgated under the Securities
Act.
7. Registration Rights. The initial holder of this Warrant (and certain
assignees thereof) are entitled to the benefit of such registration rights in
5
respect of the Warrant Shares as are set forth in the Amended and Restated
Registration Rights Agreement, dated March 24, 2006, by and between the Company
and Cypress. 8. Notices. Any notices required or permitted to be given under the
terms of this Warrant shall be sent by certified or registered mail (return
receipt requested) or delivered personally or by courier or by confirmed
telecopy, and shall be effective five (5) days after being placed in the mail,
if mailed, or upon receipt or refusal of receipt, if delivered personally or by
courier, or by confirmed facsimile, in each case addressed to a party. The
addresses for such communications shall be:
If to the Company:
Simtek Corporation
0000 Xxxxxxxxxx Xx., Xxxxx 000
Xxxxxxxx Xxxxxxx, XX 00000
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
Attention: Xxxxxx Xxxxxxxxx, President
With a copy to:
Holme Xxxxxxx & Xxxx LLP
0000 Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, XX 00000-0000
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxx, Esq.
If to Cypress:
Cypress Semiconductor Corporation
000 Xxxxxxxx Xxxxx
Xxx Xxxx, Xxxxxxxxxx 00000-0000
Attn: Chief Financial Officer and General Counsel
Facsimile: (000) 000-0000
With a copy to:
Cypress Semiconductor Corporation
000 Xxxxxxxx Xxxxx
Xxx Xxxx, Xxxxxxxxxx 00000-0000
Attn: Sr. Vice President of Memory and Imaging Division
Facsimile: (000) 000-0000
6
Either the Company or the holder may at any time designate any other person
or address in place of that provided in this Section by giving written notice to
the other in accordance with this Section.
9. Governing Law. All questions concerning the construction, validity,
enforcement and interpretation of this warrant shall be governed by and
construed and enforced in accordance with the laws of the state of California.
10. Miscellaneous.
(a) This Warrant and any provision hereof may only be amended by an
instrument in writing signed by the Company and the holder hereof.
(b) The descriptive headings of the several Sections of this Warrant
are inserted for purposes of reference only, and shall not affect the meaning or
construction of any of the provisions hereof.
(c) In case any one or more of the provisions of this Warrant shall be
invalid or unenforceable in any respect, the validity and enforceability of the
remaining terms and provisions of this Warrant shall not in any way be affected
or impaired thereby and the parties will attempt in good faith to agree upon a
valid and enforceable provision which shall be a commercially reasonable
substitute therefor, and upon so agreeing, shall incorporate such substitute
provision in this Warrant.
(d) Subject to the restrictions on transfer set forth herein, this
Warrant may be assigned by the holder. This Warrant may not be assigned by the
Company. This Warrant shall be binding on and inure to the benefit of the
parties hereto and their respective successors and assigns. Subject to the
preceding sentence, nothing in this Warrant shall be construed to give to any
Person other than the Company and the holder any legal or equitable right,
remedy or cause of action under this Warrant. Cypress may assign this Warrant
only to a transferee or assignee that is an Affiliate of Cypress. The term
"Affiliate" shall mean with respect to any individual, corporation, partnership,
association, trust, or any other entity (in each case, a "Person"), any Person,
which, directly or indirectly, controls, is controlled by or is under common
control with such Person.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the Company has caused this Warrant to be signed by its
duly authorized officer.
SIMTEK CORPORATION
By:
--------------------------------------------
Name:
Title:
8
FORM OF EXERCISE AGREEMENT
(To be Executed by the holder in order to Exercise the Warrant)
To: Simtek Corporation
0000 Xxxxxxxxxx Xx., Xxxxx 000
Xxxxxxxx Xxxxxxx, XX 00000
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
Attention: _____________________
Its:__________________________
The undersigned hereby irrevocably exercises the right to purchase _____________
shares of the Common Stock, $.01 par value per share, of SIMTEK CORPORATION, a
corporation organized under the laws of the State of Colorado (the "Company"),
and tenders herewith payment of the Exercise Price in full, in the amount of
$_____________, in cash, by certified bank check or by wire transfer of
immediately available funds for the account of the Company; and
The undersigned agrees not to offer, sell, transfer or otherwise dispose of
any Common Stock obtained on exercise of the Warrant, except under circumstances
that will not result in a violation of the Securities Act of 1933, as amended,
or any state securities laws.
[ ] The undersigned requests that the Company cause its transfer agent to
electronically transmit the Common Stock issuable pursuant to this Exercise
Agreement to the account of the undersigned or its nominee (which is
_________________) with DTC through its Deposit Withdrawal Agent Commission
System ("DTC Transfer").
[ ] In lieu of receiving the shares of Common Stock issuable pursuant to this
Exercise Agreement by way of DTC Transfer, the undersigned hereby requests
that the Company cause its transfer agent to issue and deliver to the
undersigned physical certificates representing such shares of Common Stock.
The undersigned requests that a Warrant representing any unexercised
portion hereof be issued, pursuant to the Warrant, in the name of the Holder and
delivered to the undersigned at the address set forth below:
Dated:_________________ _____________________________________
Signature of Holder
_____________________________________
Name of Holder (Print)
Address:
_____________________________________
_____________________________________
_____________________________________
FORM OF ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sells, assigns, and transfers
all the rights of the undersigned under the attached Warrant, with respect to
the number of shares of Common Stock covered thereby issuable pursuant to the
attached Warrant set forth hereinbelow, to:
Name of Assignee Address No of Shares
---------------- ------- ------------
and hereby irrevocably constitutes and appoints ________________________________
as agent and attorney-in-fact to transfer said Warrant on the books of the
within-named corporation, with full power of substitution in the premises.
Dated: _____________________, ____
In the presence of
____________________________
Name: ____________________________
Signature: _______________________
Title of Signing Officer or Agent
(if any):
Address: __________________________
__________________________
Note: The above signature should
correspond exactly with the
name on theface of the
within Warrant.
Simtek and Cypress Proprietary
