-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: keymaster@town.hall.org Originator-Key-Asymmetric: MFkwCgYEVQgBAQICAgADSwAwSAJBALeWW4xDV4i7+b6+UyPn5RtObb1cJ7VkACDq pKb9/DClgTKIm08lCfoilvi9Wl4SODbR1+1waHhiGmeZO8OdgLUCAwEAAQ== MIC-Info: RSA-MD5,RSA, oRvnrixGHprAcW75HOrxIeo+XCVlCZp2rKh4OZ+Ue38JgR2X1HFbbziU+OaJnaZp 9e5IoAPK8Me8A08F8mrKGg== 0000912057-95-003314.txt : 19950509 0000912057-95-003314.hdr.sgml : 19950509 ACCESSION NUMBER: 0000912057-95-003314 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 5 FILED AS OF DATE: 19950508 EFFECTIVENESS DATE: 19950527 SROS: NASD FILER: COMPANY DATA: COMPANY CONFORMED NAME: SBE INC CENTRAL INDEX KEY: 0000087050 STANDARD INDUSTRIAL CLASSIFICATION: COMPUTER PERIPHERAL EQUIPMENT, NEC [3577] IRS NUMBER: 941517641 STATE OF INCORPORATION: CA FISCAL YEAR END: 1031 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 033-59167 FILM NUMBER: 95535449 BUSINESS ADDRESS: STREET 1: 4550 NORRIS CANYON ROAD CITY: SAN RAMON STATE: CA ZIP: 94583 BUSINESS PHONE: 5103552000 S-8 1 FORM S-8 As filed with the Securities and Exchange Commission on May 8, 1995 Registration No. 33-____ - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 ----------------------------- FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ----------------------------- SBE, INC. (Exact name of registrant as specified in its charter) ----------------------------- California 94-1517641 ------------------------ -------------------------------------- (State of Incorporation) (I.R.S. Employer Identification No.) ----------------------------- 4550 Norris Canyon Road San Ramon, California 94583 ----------------------------------------------------------- (Address and telephone number of principal executive offices) ----------------------------- 1987 Supplemental Stock Option Plan 1991 Non-Employee Directors' Stock Option Plan --------------------------------------------------------------- (Full title of the plans) TIMOTHY J. REPP Chief Financial Officer SBE, Inc. 4550 Norris Canyon Road San Ramon, California 94583 (510) 355-2000 --------------------------------------------------- (Name, address, including zip code, and telephone number, including area code, of agent for service) ---------------------------- Copies to: Christopher A. Westover, Esq. Maya L. Armour, Esq. Cooley Godward Castro Huddleson & Tatum One Maritime Plaza, Suite 2000 San Francisco, California 94111 (415) 693-2000 ---------------------------- Total Number of Pages: Exhibit Index at Page: CALCULATION OF REGISTRATION FEE
- ---------------------------------------------------------------------------------------------------------------------------------- - ---------------------------------------------------------------------------------------------------------------------------------- - ---------------------------------------------------------------------------------------------------------------------------------- - ---------------------------------------------------------------------------------------------------------------------------------- TITLE OF SECURITIES AMOUNT TO BE PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF TO BE REGISTERED REGISTERED OFFERING PRICE PER AGGREGATE OFFERING REGISTRATION FEE SHARE (1) PRICE (1) - ---------------------------------------------------------------------------------------------------------------------------------- Stock Options and Common Stock (no par 400,000 $7.50- $13.63 $4,195,448 $1,446.71 value) - ---------------------------------------------------------------------------------------------------------------------------------- - ---------------------------------------------------------------------------------------------------------------------------------- - ---------------------------------------------------------------------------------------------------------------------------------- - ---------------------------------------------------------------------------------------------------------------------------------- (1) Estimated solely for the purpose of calculating the amount of the registration fee pursuant to Rule 457(h)(1). The price per share and aggregate offering price are based upon (a) the actual exercise price for shares subject to previously granted options under the 1987 Supplemental Stock Option Plan and the 1991 Non-Employee Directors' Stock Option Plan and (b) the average of the bid and asked prices of the closing sales price of Registrant's Common Stock on May 1, 1995 as reported on the Nasdaq National Market System for shares subject to options to be granted under the 1987 Supplemental Stock Option Plan and the 1991 Non-Employee Directors' Stock Option Plan. The following chart shows the calculation of the registration fee: Number of Offering Price Aggregate Type of Shares Shares Per Share Offering Price -------------- --------- -------------- -------------- Outstanding Options 118,624 $7.50 $ 889,680 9,400 $8.00 $ 75,200 6,000 $8.50 $ 51,000 25,000 $8.75 $ 218,750 24,000 $9.00 $ 216,000 20,000 $9.50 $ 190,000 34,650 $9.75 $ 337,838 12,100 $14.00 $ 169,400 Shares Available for Grant 150,226 $13.63 $2,047,580 --------- --------- $4,195,448 - ---------------------------------------------------------------------------------------------------------------------------------- - ----------------------------------------------------------------------------------------------------------------------------------
Approximate date of commencement of proposed sale to the public: As soon as practicable after this Registration Statement becomes effective. INCORPORATION BY REFERENCE OF CONTENTS OF REGISTRATION STATEMENTS ON FORM S-8 NOS. 33-42629 AND 33-45998 WITH SUCH MODIFICATIONS AS SET FORTH BELOW The contents of Registration Statements on Form S-8 Nos. 33-42629 and 33- 45998 filed with the Securities and Exchange Commission on September 9, 1991 and February 26, 1992, respectively, are incorporated by reference herein, with such modifications as set forth below. INDEMNIFICATION OF DIRECTORS AND OFFICERS In addition to the matters set forth under the heading "Indemnification of Officers and Directors" in the Registration Statements incorporated by reference herein, the following provide indemnification to the directors and officers of the Company: The Company has entered into Indemnification Agreements with each of its directors and executive officers. Such Indemnification Agreements contain provisions that are in some respects broader than the specific indemnification provisions contained in California law. EXHIBITS EXHIBIT NUMBER - ------- 5.1 Opinion of Cooley Godward Castro Huddleson & Tatum. 23.1 Consent of Independent Auditors. 23.2 Consent of Cooley Godward Castro Huddleson & Tatum is contained in Exhibit 5.1 to this Registration Statement. 24.1 Power of Attorney is contained on the signature pages. 99.1 Registrant's 1987 Supplemental Stock Option Plan. 99.2 Registrant's 1991 Non-Employee Directors' Stock Option Plan. 1. SIGNATURES THE REGISTRANT. 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 May 8, 1995. SBE, INC. By: /s/ WILLIAM B. HEYE, JR. ----------------------------------------------- William B. Heye, Jr. President and Chief Executive Officer POWER OF ATTORNEY KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints William B. Heye, Jr. 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. 2. 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, Chief Executive Officer May 8, 1995 - ----------------------------------- and Director (Principal Executive (William B. Heye, Jr.) Officer) /s/ TIMOTHY J. REPP Chief Financial Officer (Principal May 8, 1995 - ----------------------------------- Financial Officer and Principal (Timothy J. Repp) Accounting Officer) /s/ RAIMON L. CONLISK Director May 8, 1995 - ----------------------------------- (Raimon L. Conlisk) /s/ WILLIAM R. GAGE Director May 8, 1995 - ----------------------------------- (William R. Gage) /s/ GEORGE E. GREGA Director May 8, 1995 - ----------------------------------- (George E. Grega) /s/ HAROLD T. HAHN Director May 8, 1995 - ----------------------------------- (Harold T. Hahn) /s/ EDWARD H. LAIRD Director May 8, 1995 - ----------------------------------- (Edward H. Laird)
3. EXHIBIT INDEX
EXHIBIT NUMBER DESCRIPTION SEQUENTIAL PAGE NUMBER 5.1 Opinion of Cooley Godward Castro Huddleson & Tatum. 23.1 Consent of Independent Auditors. 23.2 Consent of Cooley Godward Castro Huddleson & Tatum is contained in Exhibit 5 to this Registration Statement. 24 Power of Attorney is contained on the signature pages. 99.1 Registrant's 1987 Supplemental Stock Option Plan. 99.2 Registrant's 1991 Non-Employee Directors' Stock Option Plan.
4. EX-5.1 2 EXHIBIT 5.1 [COOLEY GODWARD LETTERHEAD] MAYA L. ARMOUR DIRECT: (415) 693-2025 INTERNET: armourml@cooley.com May 8, 1995 SBE, Inc. 4550 Norris Canyon Road San Ramon, CA 94583 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 Registration Statement on Form S-8 (the "Registration Statement") with the Securities and Exchange Commission covering the offering of up to 400,000 shares of the Company's Common Stock, no par value (the "Shares"), pursuant to its 1987 Supplemental Stock Option Plan and its 1991 Non-Employee Directors' Stock Option Plan (collectively, the "Plans"). In connection with this opinion, we have examined the Registration Statement and related Prospectuses, your Articles 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 their respective Plans, the Registration Statement and related Prospectuses, will be validly issued, fully paid, and nonassessable. We consent to the filing of this opinion as an exhibit to the Registration Statement. Very truly yours, COOLEY GODWARD CASTRO HUDDLESON & TATUM By: /s/ Christopher A. Westover ------------------------------ Christopher A. Westover EX-23.1 3 EXHIBIT 23.1 [COOPERS & LYBRAND LETTERHEAD] CONSENT OF INDEPENDENT ACCOUNTANTS We consent to the incorporation by reference in this registration statement of SBE, Inc. and subsidiary (the Company) on Form S-8 (covering the offering of up to 400,000 shares of common stock of the Company pursuant to its 1987 Supplemental Stock Option Plan and its 1991 Non-Employee Directors' Stock Option Plan) of our report dated December 6, 1994, on our audits of the consolidated financial statements and financial statement schedules of the Company as of October 31, 1994 and 1993, and for the years ended October 31, 1994, 1993, and 1992, which report is included in the Company's 1994 Annual Report on Form 10-K. /s/ Coopers & Lybrand L.L.P. Oakland, California May 8, 1995 EX-99.1 4 EXHIBIT 99.1 SBE, INC. 1987 SUPPLEMENTAL STOCK OPTION PLAN ADOPTED BY THE BOARD OF DIRECTORS JULY 21, 1987, AS AMENDED MARCH 23, 1993, AUGUST 23, 1994 AND FEBRUARY , 1995 APPROVED BY SHAREHOLDERS MARCH 9, 1989 AND MARCH 21, 1995 1. PURPOSE. (a) The purpose of the Plan is to provide a means by which selected key employees of SBE, INC. (the "Company") and its Affiliates, as defined in subparagraph 1(b), may be given an opportunity to purchase stock of the Company. (b) The word "Affiliate" as used in the Plan means any parent corporation or subsidiary corporation of the Company as those terms are defined in Sections 424(e) and (f), respectively, of the Internal Revenue Code of 1986, as amended from time to time (the "Code"). (c) The Company, by means of the Plan, seeks to retain the services of persons now holding key positions, to secure and retain the services of persons capable of filling such positions, and to provide incentives for such persons to exert maximum efforts for the success of the Company. (d) The Company intends that the options issued under the Plan not be incentive stock options as that term is used in Section 422 of the Code. 2. ADMINISTRATION. (a) The Plan shall be administered by the Board of Directors (the "Board") of the Company unless and until the Board delegates administration to a committee, as provided in subparagraph 2(c). 1. (b) The Board shall have the power, subject to, and within the limitations of, the express provisions of the Plan: (i) To determine from time to time which of the persons eligible under the Plan shall be granted options; when and how the option shall be granted; the provisions of each option granted (which need not be identical), including the time or times during the term of each option within which all or portions of such option may be exercised; and the number of shares for which an option shall be granted to each such person. (ii) To construe and interpret the Plan and options granted under it, and to establish, amend and revoke rules and regulations for its administration. The Board, in the exercise of this power, may correct any defect, omission or inconsistency in the Plan or in any option agreement, in a manner and to the extent it shall deem necessary or expedient to make the Plan fully effective. (iii) To amend the Plan as provided in paragraph 10. (iv) Generally, to exercise such powers and to perform such acts as the Board deems necessary or expedient to promote the best interests of the Company. (c) The Board may delegate administration of the Plan to a committee composed of not fewer than two (2) members (the "Committee"), all of the members of which Committee shall be disinterested persons, if required and as defined by the provisions of subparagraph 2(d), and may also be, in the discretion of the Board, Outside Directors, as hereinafter defined. If administration is delegated to a Committee, the Committee shall have, in connection with the administration of the Plan, the powers theretofore possessed by the Board, subject, however, to such resolutions, not inconsistent with the provisions of the Plan, as may be adopted from time 2. to time by the Board. The Board may abolish the Committee at any time and revest in the Board the administration of the Plan. (d) The term "disinterested person," as used in this Plan, shall mean a director: (i) who was not during the one (1) year prior to service as an administrator of the Plan granted or awarded equity securities pursuant to the Plan or any other plan of the Company or any of its affiliates entitling the participants therein to acquire equity securities of the Company or any of its affiliates except as permitted by Rule 16b-3(c)(2)(i) promulgated under the Securities Exchange Act of 1934, as amended (the "Exchange Act") ("Rule 16b- 3(c)(2)(i)"); or (ii) who is otherwise considered to be a "disinterested person" in accordance with Rule 16b-3(c)(2)(i), or any other applicable rules, regulations or interpretations of the Securities and Exchange Commission. Any such person shall otherwise comply with the requirements of Rule 16b-3 promulgated under the Exchange Act. (e) The term "Outside Director" means a director who either (i) is not a current employee of the Company or an "affiliated corporation" (as defined in the Treasury regulations promulgated under Section 162(m) of the Code), is not a former employee of the Company or an affiliated corporation receiving compensation for prior services (other than benefits under a tax qualified pension plan), was not an officer of the Company or an affiliated corporation at any time, and is not currently receiving compensation for personal services in any capacity other than as a director, or (ii) is otherwise considered an "outside director" for purposes of Section 162(m) of the Code. (f) Any requirement that an administrator of the Plan be a disinterested person shall not apply if the Board or the Committee expressly declares that such requirement shall not apply. Any disinterested person shall otherwise comply with the requirements of Rule 16b-3. 3. 3. SHARES SUBJECT TO THE PLAN. (a) Subject to the provisions of paragraph 9 relating to adjustments upon changes in stock, the stock that may be sold pursuant to options granted under the Plan shall not exceed in the aggregate Six Hundred Forty Nine Thousand Two Hundred Fifty Nine (649,259) shares of the Company's common stock. If any option granted under the Plan shall for any reason expire or otherwise terminate without having been exercised in full, the stock not purchased under such option shall again become available for the Plan. (b) The stock subject to the Plan may be unissued shares or reacquired shares, bought on the market or otherwise. (c) There is no maximum limit on the aggregate fair market value of the stock for which any eligible person may be granted options under the Plan in any calendar year. 4. ELIGIBILITY. (a) Options may be granted only to key employees (including officers) of the Company or its Affiliates. A director of the Company shall not be eligible for the benefits of the Plan unless such director is also a key employee (including an officer) of the Company or any Affiliate. (b) A director shall in no event be eligible for the benefits of the Plan unless at the time discretion is exercised in the selection of the director as a person to whom options may be granted, or in the determination of the number of shares which may be covered by options granted to the director: (i) the Board has delegated its discretionary authority over the Plan to a Committee which consists solely of "disinterested persons" as defined in subparagraph 2(d); or (ii) the Plan otherwise complies with the requirements of Rule 16b-3 promulgated under the Exchange Act, as from time to time in effect. The Board shall otherwise comply with the 4. requirements of Rule 16b-3 promulgated under the Exchange Act, as from time to time in effect. This subparagraph 4(b) shall not apply if the Board or Committee expressly declares that such requirement shall not apply. (c) Subject to the provisions of Section 9 relating to adjustments upon changes in stock, no person shall be eligible to be granted options covering more than 150,000 shares of the Company's common stock in any calendar year. 5. OPTION PROVISIONS. Each option shall be in such form and shall contain such terms and conditions as the Board or the Committee shall deem appropriate. The provisions of separate options need not be identical, but each option shall include (through incorporation of provisions hereof by reference in the option or otherwise) the substance of each of the following provisions: (a) The term of any option shall not be greater than ten (10) years from the date it was granted. (b) The exercise price of each option shall be not less than eighty-five percent (85%) of the fair market value of the stock subject to the option on the date the option is granted. (c) The purchase price of stock acquired pursuant to an option shall be paid, to the extent permitted by applicable statutes and regulations, either (i) in cash at the time the option is exercised, or (ii) at the discretion of the Board or the Committee, either at the time of grant or exercise of the option (A) by delivery to the Company of other common stock of the Company, (B) according to a deferred payment or other arrangement (which may include, without limiting the generality of the foregoing, the use of other common stock of the Company) with the person to whom the option is granted or to whom the option is transferred pursuant to 5. subparagraph 5(d), or (C) in any other form of legal consideration that may be acceptable to the Board or the Committee. In the case of any deferred payment arrangement, any interest shall be payable at least annually and shall be charged at the minimum rate of interest necessary to avoid the treatment as interest, under any applicable provisions of the Code, of any amounts other than amounts stated to be interest under the deferred payment arrangement. (d) An option shall not be transferable except by will or by the laws of descent and distribution, and shall be exercisable during the lifetime of the person to whom the option is granted only by such person. The person to whom the option is granted may, by delivering written notice to the Company, in a form satisfactory to the Company, designate a third party who, in the event of the death of the optionee, shall thereafter be entitled to exercise the option. (e) The total number of shares of stock subject to an option may, but need not, be allotted in periodic installments (which may, but need not, be equal). From time to time during each of such installment periods, the option may be exercised with respect to some or all of the shares allotted to that period, and/or with respect to some or all of the shares allotted to any prior period as to which the option was not fully exercised. During the remainder of the term of the option (if its term extends beyond the end of the installment periods), the option may be exercised from time to time with respect to any shares then remaining subject to the option. The option may be subject to such other terms and conditions on the time or times when it may be exercised (which may be based on performance or other criteria) as the Board may deem appropriate. The provisions of this subparagraph 5(e) are subject to any option provisions governing the minimum number of shares as to which an option may be exercised. 6. (f) The Company may require any optionee, or any person to whom an option is transferred under subparagraph 5(d), as a condition of exercising any such option: (1) to give written assurances satisfactory to the Company as to the optionee's knowledge and experience in financial and business matters and/or to employ a purchaser representative reasonably satisfactory to the Company who is knowledgeable and experienced in financial and business matters that he or she is capable of evaluating, alone or together with the purchaser representative, the merits and risks of exercising the option; and (2) to give written assurances satisfactory to the Company stating that such person is acquiring the stock subject to the option for such person's own account and not with any present intention of selling or otherwise distributing the stock. These requirements, and any assurances given pursuant to such requirements, shall be inoperative if (i) the issuance of the shares upon the exercise of the option has been registered under a then currently effective registration statement under the Securities Act of 1933, as amended (the "Securities Act"), or (ii), as to any particular requirement, a determination is made by counsel for the Company that such requirement need not be met in the circumstances under the then applicable securities laws. The Company may, upon advice of counsel to the Company, place legends on stock certificates issued under the Plan as such counsel deems necessary or appropriate in order to comply with applicable securities laws, including, but not limited to, legends restricting the transfer of the stock. (g) An option shall terminate three (3) months after termination of the optionee's employment with the Company or an Affiliate, unless (i) the termination of employment of the optionee is due to such person's permanent and total disability, within the meaning of Section 422(c)(6) of the Code, in which case the option may, but need not, provide that it may be exercised at any time within one (1) year following such termination of employment; or (ii) the 7. optionee dies while in the employ of the Company or an Affiliate, or within not more than three (3) months after termination of such employment, in which case the option may, but need not, provide that it may be exercised at any time within eighteen (18) months following the death of the optionee by the person or persons to whom the optionee's rights under such option pass by will or by the laws of descent and distribution (or by the person designated as provided in the second sentence of subparagraph 5(d)); or (iii) the option by its terms specifies either (a) that it shall terminate sooner than three (3) months after termination of the optionee's employment, or (b) that it may be exercised more than three (3) months after termination of the optionee's employment with the Company or an Affiliate. This subparagraph 5(g) shall not be construed to extend the term of any option or to permit anyone to exercise the option after expiration of its term, nor shall it be construed to increase the number of shares as to which any option is exercisable from the amount exercisable on the date of termination of the optionee's employment. (h) The option may, but need not, include a provision whereby the optionee may elect at any time during the term of his or her employment with the Company or any Affiliate to exercise the option as to any part or all of the shares subject to the option prior to the stated vesting date of the option or of any installment or installments specified in the option. Any shares so purchased from any unvested installment or option may be subject to a repurchase right in favor of the Company or to any other restriction the Board or the Committee determines to be appropriate. 8. 6. COVENANTS OF THE COMPANY. (a) During the terms of the options granted under the Plan, the Company shall keep available at all times the number of shares of stock required to satisfy such options. (b) The Company shall seek to obtain from each regulatory commission or agency having jurisdiction over the Plan such authority as may be required to issue and sell shares of stock upon exercise of the options granted under the Plan; provided, however, that this undertaking shall not require the Company to register under the Securities Act either the Plan, any option granted under the Plan or any stock issued or issuable pursuant to any such option. If, after reasonable efforts, the Company is unable to obtain from any such regulatory commission or agency the authority which counsel for the Company deems necessary for the lawful issuance and sale of stock under the Plan, the Company shall be relieved from any liability for failure to issue and sell stock upon exercise of such options unless and until such authority is obtained. 7. USE OF PROCEEDS FROM STOCK. Proceeds from the sale of stock pursuant to options granted under the Plan shall constitute general funds of the Company. 8. MISCELLANEOUS. (a) The Board or the Committee shall have the power to accelerate the time during which an option may be exercised or the time during which an option or any portion thereof will vest pursuant to subparagraph 5(e), notwithstanding the provisions in the option stating the time during which it may be exercised or the time during which it will vest. (b) Neither an optionee nor any person to whom an option is transferred under subparagraph 5(d) shall be deemed to be the holder of, or to have any of the rights of a holder 9. with respect to, any shares subject to such option unless and until such person has satisfied all requirements for exercise of the option pursuant to its terms. (c) Throughout the term of any option granted pursuant to the Plan, the Company shall make available to the holder of such option, not later than one hundred twenty (120) days after the close of each of the Company's fiscal years during the option term, upon request, such financial and other information regarding the Company as comprises the annual report to the shareholders of the Company provided for in the bylaws of the Company. (d) Nothing in the Plan or any instrument executed or option granted pursuant thereto shall confer upon any eligible person or optionee any right to continue in the employ of the Company or any Affiliate or shall affect the right of the Company or any Affiliate to terminate the employment of any eligible person or optionee with or without cause. 9. ADJUSTMENTS UPON CHANGES IN STOCK. (a) If any change is made in the stock subject to the Plan, or subject to any option granted under the Plan (through merger, consolidation, reorganization, recapitalization, stock dividend, dividend in property other than cash, stock split, liquidating dividend, combination of shares, exchange of shares, change in corporate structure or otherwise), the Plan and outstanding options will be appropriately adjusted in the class(es) and maximum number of shares subject to the Plan, and the maximum number of shares subject to award to any person during any calendar year period, and the class(es) and number of shares and price per share of stock subject to outstanding options. (b) In the event of: (1) a dissolution or liquidation of the Company; (2) a merger or consolidation in which the Company is not the surviving corporation; or (3) a reverse merger in which the Company is the surviving corporation but the shares of the Company's common 10. stock outstanding immediately preceding the merger are converted by virtue of the merger into other property, whether in the form of securities, cash or otherwise then to the extent permitted by applicable law: (i) any surviving corporation shall assume any options outstanding under the Plan or shall substitute similar options for those outstanding under the Plan, or (ii) such options shall continue in full force and effect. In the event any surviving corporation refuses to assume or continue such options, or to substitute similar options for those outstanding under the Plan, then, with respect to options held by persons then performing services as employees, the time during which such options may be exercised shall be accelerated and the options terminated if not exercised prior to such event. 10. AMENDMENT OF THE PLAN. (a) The Board at any time, and from time to time, may amend the Plan. However, except as provided in paragraph 9 relating to adjustments upon changes in stock, no amendment shall be effective unless approved by the shareholders of the Company within twelve (12) months before or after the adoption of the amendment, where the amendment will: (i) Increase the number of shares reserved for options under the Plan; (ii) Materially modify the requirements as to eligibility for participation in the Plan; or (iii) Materially increase the benefits accruing to participants under the Plan. (b) The Board may in its sole discretion submit any other amendment to the Plan for stockholder approval, including, but not limited to, amendments to the Plan intended to satisfy the requirements of Section 162(m) of the Code and the regulations promulgated thereunder regarding the exclusion of performance- based compensation from the limit on corporate deductibility of compensation paid to certain executive officers. 11. (c) Rights and obligations under any option granted before amendment of the Plan shall not be altered or impaired by any amendment of the Plan, except with the consent of the person to whom the option was granted. 11. TERMINATION OR SUSPENSION OF THE PLAN. (a) The Board may suspend or terminate the Plan at any time. Unless sooner terminated, the Plan shall terminate ten (10) years from August 23, 1994. No options may be granted under the Plan while the Plan is suspended or after it is terminated. (b) Rights and obligations under any option granted while the Plan is in effect shall not be altered or impaired by suspension or termination of the Plan, except with the consent of the person to whom the option was granted. 12. EFFECTIVE DATE OF PLAN. The Plan shall become effective as determined by the Board, but no options granted under the Plan shall be exercised unless and until the Plan has been approved by the vote or written consent of the holders of a majority of the outstanding shares of the Company entitled to vote, and, if required, an appropriate permit has been issued by the Commissioner of Corporations of the State of California. 12. EX-99.2 5 EXHIBIT 99.2 SBE, INC. 1991 NON-EMPLOYEE DIRECTORS' STOCK OPTION PLAN ADOPTED BY THE BOARD OF DIRECTORS JANUARY 24, 1991, AS AMENDED AUGUST __, 1993 AND FEBRUARY __, 1995 APPROVED BY THE SHAREHOLDERS MARCH 19, 1991 AND MARCH 15, 1994 1. PURPOSE. (a) The purpose of the 1991 Non-Employee Directors' Stock Option Plan (the "Plan") is to provide a means by which each director of SBE, Inc., a California corporation (the "Company"), who is not otherwise an employee of the Company or any Affiliate as defined in subparagraph 1(b) (each such person being referred to as a "Non-Employee Director"), may be given an opportunity to purchase stock of the Company. (b) The word "Affiliate" as used in the Plan means any parent corporation or subsidiary corporation of the Company as those terms are defined in Sections 424(e) and (f), respectively, of the Internal Revenue Code of 1986, as amended (the "Code"). (c) The Company, by means of the Plan, seeks to retain the services of persons now serving as Non-Employee Directors, to secure and retain the services of persons capable of serving in such capacity, and to provide incentives for such persons to exert maximum efforts for the success of the Company. (d) The Company intends that the options issued under the Plan not be incentive stock options as that term is used in Section 422 of the Code. 1. 2. ADMINISTRATION. (a) The Plan shall be administered by the Board of Directors of the Company (the "Board") unless and until the Board delegates administration to a committee, as provided in subparagraph 2(c). (b) The Board may delegate administration of the Plan to a committee (the "Committee") composed of not fewer than the minimum number of members which may be required to comply with the requirements of Rule 16b-3 promulgated under the Securities Exchange Act of 1934, as amended (the "Exchange Act"). If administration is delegated to a Committee, the Committee shall have, in connection with the administration of the Plan, the powers theretofore possessed by the Board, subject, however, to such resolutions, not inconsistent with the provisions of the Plan, as may be adopted from time to time by the Board. The Board may abolish the Committee at any time and revest in the Board the administration of the Plan. 3. SHARES SUBJECT TO THE PLAN. (a) Subject to the provisions of paragraph 10 relating to adjustments upon changes in stock, the stock that may be sold pursuant to options granted under the Plan shall not exceed in the aggregate one hundred forty thousand (140,000) shares of the Company's common stock. If any option granted under the Plan shall for any reason expire or otherwise terminate without having been exercised in full, the stock not purchased under such option shall again become available for the Plan. (b) The stock subject to the Plan may be unissued shares or reacquired shares, bought on the market or otherwise. 2. 4. ELIGIBILITY. Options shall be granted only to Non-Employee Directors of the Company. 5. NON-DISCRETIONARY GRANTS. (a) Each person who is elected for the first time to be a Non-Employee Director after the date of approval of the Plan by the shareholders of the Company (the "Approval Date") shall, on the date of his initial election to be a Non-Employee Director by the Board or shareholders of the Company, automatically be granted an option to purchase five thousand (5,000) shares of the Company's common stock (subject to adjustment as provided in paragraph 10 hereof) upon the terms and conditions set forth herein. (b) On April 1 of each year (or the next business day should such date be a legal holiday), commencing April 1, 1994, an option to purchase five thousand (5,000) shares of the Company's common stock (subject to adjustment as provided in paragraph 10 hereof) shall automatically be granted to each person who (i) is at that time a Non-Employee Director, and (ii) has served continuously as a Non- Employee Director of the Company for the entire preceding twelve (12) months. 6. OPTION PROVISIONS. Each option shall be subject to the following terms and conditions: (a) The term of each option shall be five (5) years from the date it was granted. Notwithstanding the foregoing an option shall terminate seven (7) months after termination of the optionee's directorship with or subsequent service as an employee of the Company unless (1) such termination is due to such person's death or permanent and total disability, within the meaning of Section 422(c)(7) of the Code, in which case the option may be exercised at any time within eighteen (18) months following termination of such directorship or service. This 3. subparagraph 6(a) shall not be construed to extend the term of any option or to permit anyone to exercise the option after expiration of its term, nor shall it be construed to increase the number of shares as to which any option is exercisable from the amount exercisable on the date of termination of the optionee's directorship or subsequent service as an employee. (b) The exercise price of each option shall be one hundred percent (100%) of the fair market value of the stock subject to such option on the date such option is granted. (c) The optionee may elect to make payment of the purchase price of common stock acquired upon exercise of an option under one of the following alternatives: (i) payment of the exercise price in cash at the time the option is exercised; (ii) provided that at the time of exercise the Company's common stock is publicly traded and quoted regularly in THE WALL STREET JOURNAL, payment by delivery of shares of common stock of the Company that have been owned by the optionee for at least six (6) months and that are owned free and clear of any liens, claims, encumbrances, or security interests, which common stock shall be valued at fair market value on the date of exercise; or (iii) payment by a combination of the methods of payment specified in subparagraphs 6(c)(i) and 6(c)(ii) above. (d) An option shall not be transferable except by will or by the laws of descent and distribution, and shall be exercisable during the lifetime of the person to whom the option is granted only by such person or by his guardian or legal representative. The person to whom the Option is granted may, by delivering written notice to the Company, in a form satisfactory to the Company, designate a third party who, in the event of the death of the optionee, shall thereafter be entitled to exercise the option. (e) An option shall vest with respect to each optionee in four (4) equal installments commencing on the date one year after the date of grant of the option, provided that the optionee 4. has, during the entire year prior to such vesting date, continuously served as a Non-Employee Director or as an employee of the Company or any Affiliate of the Company, whereupon such option shall become fully exercisable in accordance with its terms with respect to that portion of the shares represented by that installment. (f) The Company may require any optionee, or any person to whom an option is transferred under subparagraph 6(d), as a condition of exercising any such option: (i) to give written assurances satisfactory to the Company as to the optionee's knowledge and experience in financial and business matters; and (ii) to give written assurance satisfactory to the Company stating that such person is acquiring the stock subject to the option for such person's own account and not with any present intention of selling or otherwise distributing the stock. These requirements, and any assurances given pursuant to such requirements, shall be inoperative if (i) the issuance of the shares upon the exercise of the option has been registered under a then currently effective registration statement under the Securities Act of 1933, as amended (the "Securities Act"), or (ii) as to any particular requirement, a determination is made by counsel for the Company that such requirement need not be met in the circumstances under the then applicable securities laws. 7. COVENANTS OF THE COMPANY. (a) During the terms of the options granted under the Plan, the Company shall keep available at all times the number of shares of common stock required to satisfy such options. (b) The Company shall seek to obtain from each regulatory commission or agency having jurisdiction over the Plan such authority as may be required to issue and sell shares of common stock upon exercise of the options granted under the Plan; provided, however, that this undertaking shall not require the Company to register under the Securities Act either the Plan, 5. any option granted under the Plan, or any stock issued or issuable pursuant to any such option. If, after reasonable efforts, the Company is unable to obtain from any such regulatory commission or agency the authority for which counsel for the Company deems necessary for the lawful issuance and sale of common stock under the Plan, the Company shall be relieved from any liability for failure to issue and sell common stock upon exercise of such options. 8. USE OF PROCEEDS FROM STOCK. Proceeds from the sale of stock pursuant to options granted under the Plan shall constitute general funds of the Company. 9. MISCELLANEOUS. (a) Neither an optionee nor any person to whom an option is transferred under subparagraph 6(d) hereof shall be deemed to be the holder of, or to have any of the rights of a holder with respect to, any shares subject to such option unless and until such person has satisfied all requirements for exercise of the option pursuant to its terms. (b) Nothing in the Plan or in any instrument executed pursuant thereto shall confer upon any Non-Employee Director any right to continue acting as a director of (or to employment by) the Company or shall affect any right of the Company, its Board or shareholders to terminate the directorship (or employment) of any Non-Employee Director with or without cause. (c) In connection with each option granted pursuant to the Plan, it shall be a condition precedent to the Company's obligation to issue or transfer shares to a Non-Employee Director, or to evidence the removal of any restrictions on transfer, that such Non-Employee Director make arrangements satisfactory to the Company to insure that the amount of any federal or other 6. withholding tax required to be withheld with respect to such sale or transfer, or such removal or lapse, is made available to the Company for timely payment of such tax. (d) Throughout the term of any option granted pursuant to the Plan, the Company shall make available to the holder of such option, not later than one hundred twenty (120) days after the close of each of the Company's fiscal years during the option term, upon request, such financial and other information regarding the Company as comprises the annual report to the stockholders of the Company provided for in the bylaws of the Company. 10. ADJUSTMENTS UPON CHANGES IN STOCK. (a) If any change is made in the common stock subject to the Plan, or subject to any option granted under the Plan (through merger, consolidation, reorganization, recapitalization, stock dividend, dividend in property other than cash, stock split, liquidating dividend, combination of shares, exchange of shares, change in corporate structure, or otherwise), the Plan and outstanding options will be appropriately adjusted in the class and maximum number of shares subject to the Plan and the class and number of shares and price per share of stock subject to outstanding options. (b) In the event of (i) a dissolution or liquidation of the Company; (ii) a merger or consolidation in which the Company is not the surviving corporation; (iii) a reverse merger in which the Company is the surviving corporation but the shares of the Company's common stock outstanding immediately preceding the merger are converted by virtue of the merger into other property, whether in the form of securities, cash or otherwise; or (iv) any other capital reorganization in which more than fifty percent (50%) of the shares of the Company entitled to vote are exchanged, then, with respect to options held by persons then performing services as directors or employees of the Company, all outstanding options shall become exercisable in full 7. at least ten (10) days prior to such event. Outstanding options which have not been exercised prior to such event shall terminate on the date of such event. 11. AMENDMENT OF THE PLAN. (a) The Board at any time, and from time to time, may amend the Plan; provided, however, that (i) except as provided in paragraph 10 relating to adjustments upon changes in stock, no amendment shall be effective unless approved by the shareholders of the Company within twelve (12) months before or after the adoption of the amendment, where the amendment will modify the Plan in any way if such modification requires shareholder approval in order for the Plan to comply with the requirements of Rule 16b-3 promulgated under the Exchange Act or to prevent disqualification of the Non-Employee Directors as "disinterested persons" within the meaning of Rule 16b-3 promulgated under the Exchange Act, and (ii) the provisions of paragraphs 5 and 6 relating to the determination of the amount, price and timing of the option grants may not be amended more than once every six months, other than to comport with changes in the Code, the Employee Retirement Income Security Act of 1974, as amended, or the rules thereunder. (b) Rights and obligations under any option granted before amendment of the Plan shall not be altered or impaired by any amendment of the Plan, except with the consent of the person to whom the option was granted. 12. TERMINATION OR SUSPENSION OF THE PLAN. (a) The Board may suspend or terminate the Plan at any time. Unless sooner terminated, the Plan shall terminate ten (10) years from the Approval Date. No options may be granted under the Plan while the Plan is suspended or after it is terminated. 8. (b) Rights and obligations under any option granted while the Plan is in effect shall not be altered or impaired by suspension or termination of the Plan, except with the consent of the person to whom the option was granted. 13. EFFECTIVE DATE OF THE PLAN. The Plan shall become effective on the date the Plan is approved by the shareholders of the Company. 9. -----END PRIVACY-ENHANCED MESSAGE-----