-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, FopHSGnbUXaqtX+7zMqmQR8nhE3rAQb7EI9VPzPeG+P6tSgcIWX7SKTSuzC82Awy weXcXWyUr/dQYHmJliQYVA== 0000087050-98-000024.txt : 19980820 0000087050-98-000024.hdr.sgml : 19980820 ACCESSION NUMBER: 0000087050-98-000024 CONFORMED SUBMISSION TYPE: S-8 POS PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 19980819 EFFECTIVENESS DATE: 19980819 SROS: NASD FILER: COMPANY DATA: COMPANY CONFORMED NAME: SBE INC CENTRAL INDEX KEY: 0000087050 STANDARD INDUSTRIAL CLASSIFICATION: COMPUTER COMMUNICATIONS EQUIPMENT [3576] IRS NUMBER: 941517641 STATE OF INCORPORATION: DE FISCAL YEAR END: 1031 FILING VALUES: FORM TYPE: S-8 POS SEC ACT: SEC FILE NUMBER: 033-45998 FILM NUMBER: 98694631 BUSINESS ADDRESS: STREET 1: 4550 NORRIS CANYON ROAD CITY: SAN RAMON STATE: CA ZIP: 94583 BUSINESS PHONE: 5103552000 MAIL ADDRESS: STREET 1: 4550 NORRIS CANYON RD CITY: SAN RAMON STATE: CA ZIP: 94583 S-8 POS 1 As filed with the Securities and Exchange Commission on August 19, 1998 Registration No._________ ======================================================================== SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 ____________________________ FORM S-8 POS REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ____________________________ SBE, INC. (Exact name of registrant as specified in its charter) ____________________________ Delaware 94-1517641 ------------------------ ------------------------------------ (State of Incorporation) (I.R.S. Employer Identification No.) 4550 Norris Canyon Road San Ramon, CA 94583 (Address of principal executive offices) 1996 Stock Option Plan (Full title of the plan) TIMOTHY J. REPP Chief Financial Officer SBE, Inc. 4550 Norris Canyon Road San Ramon, CA 94583 (925) 355-2000 (Name, address, including zip code, and telephone number, including area code, of agent for service) ____________________________ Copies to: Christopher A. Westover, Esq. Cooley Godward LLP One Maritime Plaza, 20th Floor San Francisco, CA 94111 (415) 693-2000 ____________________________ Exhibit Index at Page 8 1 CALCULATION OF REGISTRATION FEE
========================================================================= TITLE OF PROPOSED PROPOSED SECURITIES AMOUNT MAXIMUM MAXIMUM AMOUNT OF TO BE TO BE OFFERING AGGREGATE REGISTRATION REGISTERED REGISTERED PRICE PER SHARE OFFERING PRICE FEE - ---------- ---------- --------------- -------------- ------------ See below* N/A* N/A* N/A* N/A* *No additional securities are to be registered, and registration fees were paid upon filing of the original Registration Statement Nos. 33- 45998 and 33-59167. Therefore, no further registration fee is required.
SBE, INC. POST-EFFECTIVE AMENDMENT NO. 1 TO REGISTRATION STATEMENT ON FORM S-8 This Post-Effective Amendment No. 1 (this "Amendment") to that certain Registration Statement on Form S-8 (File No. 0-8419) the ("Registration Statement") is being filed pursuant to Rule 414 under the Securities Act of 1933, as amended (the "Securities Act") by SBE, Inc. , a Delaware corporation ("SBE Delaware" or the "Company"), which is the successor to SBE, Inc., a California corporation ("SBE California"), following a statutory merger effective on December 15, 1997 (the "Merger") for the purpose of changing SBE California's state of incorporation. Prior to the Merger, SBE Delaware had no assets or liabilities other than nominal assets or liabilities. In connection with the Merger, SBE Delaware succeeded by operation of law to all of the assets and liabilities of SBE California. The Merger was approved by the shareholders of SBE California at a meeting for which proxies were solicited pursuant to Section 14 (a) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"). Except as modified by this Amendment, SBE Delaware, by virtue of this Amendment, expressly adopts the Registration Statements as its own registration statements for all purposes of the Securities Act and the Exchange Act. The Company's 1987 Supplemental Stock Option Plan was amended and restated by the Board on January 18, 1996, approved by the shareholders on April 16, 1996. Among other things, the Board changed the plan's name to the 1996 Stock Option Plan. PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT Item 3. Incorporation of Documents by Reference. The following documents filed by SBE, Inc. (the "Company") with the Securities and Exchange Commission are incorporated by reference into this Registration Statement: (a) The Company's latest annual report on Form 10-K filed pursuant to Sections 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"). (b) All other reports filed pursuant to Sections 13(a) or 15(d) of the Exchange Act since the end of the fiscal year covered by the annual reports, the prospectus or the registration statement referred to in (a) above. (c) The description of the Company's Common Stock which is contained in a registration statement filed under the Exchange Act, including any amendment or report filed for the purpose of updating such description. All reports and other documents subsequently filed by the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the filing of a post-effective amendment which indicates that all securities offered have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference herein and to be a part of this registration statement from the date of the filing of such reports and documents. 2 Item 4: Description of Securities. Not applicable Item 5. Interests of Named Experts and Counsel Not applicable Item 6. Indemnification of Directors and Officers The Company reincorporated in Delaware on December 15, 1997 and thus adopted new By-Laws and entered into new indemnification agreements with its officers and directors as more specifically described below. As permitted by Section 145 of the Delaware General Corporation Law, the By-Laws of the Company provide that (i) the Company is required to indemnify its directors and executive officers to the fullest extent not prohibited by the Delaware General Corporation Law, (ii) the Company may, in its discretion, indemnify other officers, employees and agents as set forth in the Delaware General Corporation Law, (iii) the Company is required to advance all expenses incurred by its directors and executive officers in connection with certain legal proceedings (subject to certain exceptions), (iv) the rights conferred in the By-Laws are not exclusive, (v) the Company is authorized to enter into indemnification agreements with its directors, officers, employees and agents and (vi) the Company may not retroactively amend the By-Laws provisions relating to indemnify. The Company has entered into agreements with its directors and executive officers that require the Company to indemnify such persons against expenses, judgements, fines, settlements and other amounts that such person becomes legally obligated to pay (including expenses of a derivative action ) in connection with any proceeding, whether actual or threatened, to which any such person may be made a party by reason of the fact that such person is or was a director of or officer of the Company or any of its affiliated enterprises, provided such person acted in good faith and in a manner such person reasonably believed to be in or not opposed to the best interests of the Company. The indemnification agreements also set forth certain procedures that will apply in the event of a claim for indemnification thereunder. Item 7. Exemption from Registration Claimed Not applicable Item 9. Undertakings 1. The undersigned registrant hereby undertakes: (a) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement: (i) To include any prospectus required by section 10(a)(3) of the Securities Act; (ii) To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) (Sec. 230.424(b) of this chapter) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the "Calculation of Registration Fee" table in the effective registration statement. 3 (iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement; PROVIDED, HOWEVER, that paragraphs (a)(i) and (a)(ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed by the issuer pursuant to section 13 or section 15(d) of the Exchange Act that are incorporated by reference herein. (b) That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered herein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (c) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. 2. The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the registrant's annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan's annual report pursuant to section 15(d) of the Exchange Act) that is incorporated by reference in the Registration Statement shall be deemed to be a new registration statement relating to the securities offered herein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. 3. Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue. 4 EXHIBITS Exhibit Number - ------- 5 Opinion of Cooley Godward LLP 23.1 Consent of PricewaterhouseCoopers LLP 23.2 Consent of Cooley Godward LLP is contained in Exhibit 5 to this Registration Statement 24.1 Power of Attorney is contained on the signature pages. 5 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, as amended, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of San Ramon, State of California, on August 19, 1998. SBE, INC. By: /s/ Timothy J. Repp ________________________________ Timothy J. Repp Title: Chief Financial Officer, Vice President, Finance and Secretary POWER OF ATTORNEY KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints William B. Heye and Timothy J. Repp, and each or any one of them, his true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments (including post- effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or his substitutes or substitute, may lawfully do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.
Signature Title Date /s/ William B. Heye, Jr. President and Chief August 19, 1998 __________________________ Executive Officer William B. Heye, Jr. (Principal Executive Officer) /s/ Timothy J. Repp Vice President, August 19, 1998 __________________________ Finance, Chief Timothy J. Repp Financial Officer and Secretary (Principal Financial Officer and Accounting Officer) 6 /s/ Raimon L. Conlisk Director August 19, 1998 __________________________ Raimon L. Conlisk /s/ George E. Grega Director August 19, 1998 __________________________ George E. Grega /s/ Ronald J. Ritchie Director August 19, 1998 __________________________ Ronald J. Ritchie /s/ Randall L-W. Caudill Director August 19, 1998 __________________________ Randall L-W. Caudill
7 EXHIBIT INDEX
Exhibit Sequential Page Number Description Number 5 Opinion of Cooley Godward LLP 23.1 Consent of PricewaterhouseCoopers LLP 23.2 Consent of Cooley Godward LLP is contained in Exhibit 5 to this Registration Statement 24.1 Power of Attorney is contained on the signature pages. 8
EX-5 2 EXHIBIT 5 [COOLEY GODWARD LETTERHEAD] CHRISTOPHER A. WESTOVER 415 693-2066 westoverca@cooley.com August 19, 1998 SBE, Inc. 4550 Norris Canyon Road San Ramon, CA 94583 Re: Post-Effective Amendment No. 1 to Registration Statement on Form S-8 Ladies and Gentlemen: You have requested our opinion with respect to certain matters in connection with the filing by SBE, Inc. (the "Company") of a Post- Effective Amendment No. 1 to the Registration Statement on Form S-8 (the "Registration Statement") to be filed by SBE, Inc., a Delaware corporation (the "Company"), with the Securities and Exchange Commission in connection with the registration under the Securities Act of 1933, as amended, of shares of the Company's Common Stock, par value $0.001 per share, (the "Shares") reserved for issuance pursuant to its 1996 Stock Option Plan, as amended (the "Plan"), which Shares were registered by SBE, Inc., a California corporation, prior to the reincorporation into Delaware. In connection with this opinion, we have examined the Registration Statement and related Prospectus, your Certificate of Incorporation and By-laws, and such other documents, records, certificates, memoranda and other instruments as we deem necessary as a basis for this opinion. We have assumed the genuineness and authenticity of all documents submitted to us as originals, the conformity to originals of all documents submitted to us as copies thereof, and the due execution and delivery of all documents where due execution and delivery are a prerequisite to the effectiveness thereof. On the basis of the foregoing, and in reliance thereon, we are of the opinion that the Shares, when sold and issued in accordance with the Plan, the Registration Statement and related Prospectus, will be validly issued, fully paid, and nonassessable (except as to shares issued pursuant to certain deferred payment arrangements, which will be fully paid and nonassessable when such deferred payments are made in full). We consent to the filing of this opinion as an exhibit to the Registration Statement. Very truly yours, Cooley Godward LLP By: /s/ Christopher A. Westover ___________________________ Christopher A. Westover 9 EX-23.1 3 EXHIBIT 23.1 CONSENT OF INDEPENDENT ACCOUNTANTS We consent to the incorporation by reference in these three registration statements of SBE, Inc. on Form S-8 of our report dated November 20, 1997, except for Note 13 as to which the date is December 15, 1997, on our audits of the consolidated financial statements and financial statement schedule of SBE, Inc. as of October 31, 1997 and 1996 and for the years ended October 31, 1997, 1996, and 1995. /s/ PricewaterhouseCoopers LLP - ------------------------------ San Francisco, California August 19, 1998 10 -----END PRIVACY-ENHANCED MESSAGE-----