As
filed with the Securities and Exchange Commission on March 24,
2006
Registration
No. 333-
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
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94-1517641
|
(State
of Incorporation)
|
(I.R.S.
Employer Identification
No.)
|
4000
Executive Parkway, Suite 200
San
Ramon, California 94583
(Address
of principal executive offices)
2006
EQUITY INCENTIVE PLAN
(Full
title of the plans)
David
W. Brunton
Chief
Financial Officer, Vice President, Finance
and
Secretary
SBE,
Inc.
4000
Executive Parkway, Suite 200
San
Ramon, California 94583
(925)
355-2000
(Name,
address, including zip code, and telephone number, including area code, of
agent
for service)
Copy
to:
Jodie
M. Bourdet
Cooley
Godward llp
101
California Street, 5th
Floor
San
Francisco, CA 94111
(415)
693-2000
CALCULATION
OF REGISTRATION FEE
Title
of Securities to be Registered
|
Amount
to be Registered (1)
|
Proposed
Maximum Offering Price Per Share (2)
|
Proposed
Maximum Aggregate Offering Price (2)
|
Amount
of Registration Fee
|
Shares
of Common Stock, par value $0.001 per share, reserved for future
grant
under the 2006 Equity Incentive Plan.
|
1,500,000
|
$1.01
|
$1,515,000
|
$162.11
|
(1)
|
This
registration statement is intended to cover the offering of up to
1,500,000 shares of the Registrant’s Common Stock pursuant to its 2006
Equity Incentive Plan (the “Plan”). This registration statement shall also
cover any additional shares of Common Stock that become issuable
under the
Plan by reason of any stock dividend, stock split, recapitalization
or any
other similar transaction without receipt of consideration that results
in
an increase in the number of shares of the Registrant’s outstanding Common
Stock.
|
(2)
|
Estimated
solely for the purpose of calculating the amount of the registration
fee
pursuant to Rule 457(c). The price per share and aggregate offering
price
are based upon the high and low sales prices of Registrant’s Common Stock
on March 20, 2006 as reported on the Nasdaq SmallCap Market reporting
system.
|
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 Securities Act of 1933, as amended (the “Securities 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; and
(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.
DESCRIPTION
OF SECURITIES
Not
applicable.
INTERESTS
OF NAMED EXPERTS AND COUNSEL
Not
applicable.
INDEMNIFICATION
OF DIRECTORS AND OFFICERS
As
permitted by Section 145 of the Delaware General Corporation Law, the Bylaws
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
Bylaws 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 Bylaws 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.
EXEMPTION
FROM REGISTRATION CLAIMED
Not
applicable.
EXHIBITS
Exhibit
Number
|
|
5.1
|
|
Opinion
of Cooley Godward LLP
|
23.1
|
|
Consent
of BDO Seidman, LLP,
Independent
Registered Public Accounting Firm
|
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
|
|
2006
Equity Incentive Plan
|
99.2
|
|
Agreements
used in connection with the 2006 Equity Incentive Plan
|
UNDERTAKINGS
1.
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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) 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
reports filed with or furnished to the Commission by the registrant pursuant
to
section 13 or section 15(d) of the Exchange Act that are incorporated
by reference in the registration statement.
(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.
(d) That,
for
the purpose of determining liability of the registrant under the Securities
Act
to any purchaser in the initial distribution of the securities, the undersigned
registrant undertakes that in a primary offering of securities of the
undersigned registrant pursuant to this registration statement, regardless
of
the underwriting method used to sell the securities to the purchaser, if the
securities are offered or sold to such purchaser by means of any of the
following communications, the undersigned registrant will be a seller to the
purchaser and will be considered to offer or sell such securities to such
purchaser:
(i) Any
preliminary prospectus or prospectus of the undersigned registrant relating
to
the offering required to be filed pursuant to Rule 424;
(ii) Any
free
writing prospectus relating to the offering prepared by or on behalf of the
undersigned registrant or used or referred to by the undersigned
registrant;
(iii) The
portion of any other free writing prospectus relating to the offering containing
material information about the undersigned registrant or its securities provided
by or on behalf of the undersigned registrant; and
(iv) Any
other
communication that is an offer in the offering made by the undersigned
registrant to the purchaser.
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.
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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.
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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 March 24,
2006.
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|
|
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SBE,
INC. |
|
|
|
|
By: |
/s/
David W.
Brunton
|
|
David Brunton |
|
Chief
Financial Officer, VP, Finance and
Secretary |
POWER
OF ATTORNEY
KNOW
ALL PERSONS BY THESE PRESENTS,
that
each person whose signature appears below constitutes and appoints Kenneth
G.
Yamamoto and David W. Brunton, 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.
/s/
Kenneth G. Yamamoto
(Kenneth
G. Yamamoto)
|
Chief
Executive Officer, President and Director (principal executive
officer)
|
March
24, 2006
|
/s/
David W.
Brunton
(David
W. Brunton)
|
Chief
Financial Officer, Vice President, Finance and Secretary (principal
financial and accounting officer)
|
March
24, 2006
|
/s/
John
Reardon
(John
Reardon)
|
Director
|
March
24, 2006
|
/s/
Ronald J.
Ritchie
(Ronald
J. Ritchie)
|
Director
|
March
24, 2006
|
/s/
M.M.
Stuckey
(M.M.
(Mel) Stuckey)
|
Director
|
March
24, 2006
|
/s/
William B. Heye,
Jr.
William
B. Heye, Jr.
|
Director
|
March
24, 2006
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EXHIBIT
INDEX
Exhibit
Number
|
|
|
5.1
|
|
Opinion
of Cooley Godward llp
|
23.1
|
|
Consent
of BDO Seidman, llp,
Independent
Registered Public Accounting Firm
|
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
|
|
2006
Equity Incentive Plan
|
99.2
|
|
Agreements
used in connection with the 2006 Equity Incentive Plan
|