As filed with the Securities and Exchange Commission
on October 16, 1998
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)
____________________________
Delaware 94-517641
________________________ ____________________________________
(State of Incorporation) (I.R.S. Employer Identification No.)
4550 Norris Canyon Road
San Ramon, CA 94583
(Address of principal executive offices)
____________________________
1998 Non-Officer Stock Option Plan
(Full title of the plans)
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 4
CALCULATION OF REGISTRATION FEE
========================================================================
Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Per Offering Registration
Registered Registered Share (1) Price (1) Fee
- ------------------------------------------------------------------------
Stock Options
and Common
Stock (par
value $.001) 300,000 $4.6914 $1,407,420 $391
========================================================================
<FN>
(1) Estimated solely for the purpose of calculating the amount of the
registration fee pursuant to Rule 457(c) and (h)(1) under the
Securities Act of 1933, as amended (the "Act"). The offering
price per share and the aggregate offering price are based upon
(a) the weighted average exercise price, for shares subject to
outstanding options granted under the Registrant's 1998 Non-
Officer Stock Option Plan (the "Plan") in accordance with Rule
457 (h) under the Act or (b) the average of the high and low
prices of the Registrant's Common Stock as reported on the Nasdaq
National Market on October 8, 1998, in accordance with Rule 457
(c) under the Act, for shares issuable pursuant to the Plan, in
accordance with Rule 457(c) of the Act. The following chart
illustrates the calculation of the registration fee:
========================================================================
OFFERING AGGREGATE
NUMBER OF PRICE PER OFFERING
TYPE OF SHARES SHARES SHARE PRICE
- ------------------------------------------------------------------------
Shares issuable pursuant to
outstanding options under the
1998 Non-Officer Stock Option
Plan 206,575 $5.09(1)(a) $1,051,469
- ------------------------------------------------------------------------
Shares issuable pursuant to
unissued stock options under
the 1998 Non-Officer Stock
Option Plan 93,425 $3.81(1)(b) $355,951
- ------------------------------------------------------------------------
Proposed Maximum Aggregate
Offering Price $1,407,420
- ------------------------------------------------------------------------
Registration Fee $391
========================================================================
Approximate date of commencement of proposed sale to the public:
As soon as practicable after this Registration Statement becomes
effective.
2
PART II
ITEM 3. INCORPORATION OF CERTAIN 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"), or either (1) the Company's
latest prospectus filed pursuant to Rule 424(b) under the Act, that
contains audited financial statements for the Company's latest fiscal
year for which such statements have been filed, or (2) the Company's
effective registration statement on Form 10 or 20-F filed under the
Exchange Act containing audited financial statements for the Company's
latest fiscal year.
(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.
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
3
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 8. 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 Power of Attorney is contained on the signature pages.
99.1 1998 Non-Officer Stock Option Plan
99.2 Form of Stock Option Agreement and Grant Notice used in connection
with the 1998 Non-Officer Stock Option Plan
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.
(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.
4
(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.
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 October 16, 1998.
SBE, Inc.
By /s/ Timothy J. Repp
___________________
Timothy J. Repp
Title: Chief Financial
Officer, Vice
President, Finance and
Secretary
5
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.
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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 October 16, 1998
_________________________ Executive Officer
William B. Heye, Jr. (Principal Executive
Officer)
/s/ Timothy J. Repp Vice President, October 16, 1998
_________________________ Finance, Chief
Timothy J. Repp Financial Officer and
Secretary (Principal
Financial Officer and
Accounting Officer)
/s/ Raimon L. Conlisk Director October 16, 1998
_________________________
Raimon L. Conlisk
/s/ George E. Grega Director October 16, 1998
_________________________
George E. Grega
/s/ Ronald J. Ritchie Director October 16, 1998
_________________________
Ronald J. Ritchie
/s/ Randall L-W. Caudill Director October 16, 1998
_________________________
Randall L-W. Caudill
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EXHIBIT INDEX
Exhibit Sequential Page
Number Description Number
5 Opinion of Cooley Godward LLP 9
23.1 Consent of PricewaterhouseCoopers LLP 10
23.2 Consent of Cooley Godward LLP is contained in 9
Exhibit 5 to this Registration Statement
24 Power of Attorney is contained on the signature 6
pages.
99.1 1998 Non-Officer Stock Option Plan 11
99.2 Form of Stock Option Agreement and Grant Notice 20
used in connection with the 1998 Non-Officer
Stock Option Plan
8