As
filed
with the Securities and Exchange Commission on October 27, 2005
Registration
No. 333-128490
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
Amendment
No. 1
to
FORM
S-3
REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OF 1933
SBE,
INC.
(Exact
name of registrant as specified in its charter)
Delaware
|
94-1517641
|
(State
or other jurisdiction of
incorporation
or organization)
|
(I.R.S.
Employer
Identification
No.)
|
4000
Executive Parkway, Suite 200
San
Ramon, CA 94583
(925)
355-2000
(Address,
including zip code, and telephone number, including area code, of registrant’s
principal executive offices)
DAVID
W. BRUNTON
Chief
Financial Officer, Vice President, Finance and Secretary
SBE,
INC.
4000
Executive Parkway, Suite 200
San
Ramon, CA 94583
(925)
355-2000
(Name,
address, including zip code, and telephone number, including area code, of
agent
for service)
Copies
to:
JODIE
M. BOURDET
COOLEY
GODWARD LLP
101
California Street, 5th Floor
San
Francisco, CA 94111
(415)
693-2000
Approximate
date of commencement of proposed sale to the public:
From
time
to time after the registration statement becomes effective.
If
the
only securities being registered on this form are being offered pursuant
to
dividend or interest reinvestment plans, please check the following box.
o
If
any of
the securities being registered on this form are to be offered on a delayed
or
continuous basis pursuant to Rule 415 under the Securities Act of 1933, other
than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. x
If
this
form is filed to register additional securities for an offering pursuant
to Rule
462(b) under the Securities Act, please check the following box and list
the
Securities Act registration statement number of the earlier effective
registration statement for the same offering. o
If
this
form is a post-effective amendment filed pursuant to Rule 462(c) under the
Securities Act, check the following box and list the Securities Act registration
statement number of the earlier effective registration statement for the
same
offering. o
If
delivery of the prospectus is expected to be made pursuant to Rule 434, please
check the following box. o
The
registrant hereby amends this registration statement on such date or dates
as
may be necessary to delay its effective date until the registrant shall file
a
further amendment that specifically states that this registration statement
shall thereafter become effective in accordance with Section 8(a) of the
Securities Act of 1933 or until the registration statement shall become
effective on such date as the Commission, acting pursuant to said Section
8(a),
may determine.
The
information in this prospectus is not complete and may be changed. We
may not
sell these securities until the registration statement filed with the
Securities
and Exchange Commission is effective. This prospectus is not an offer
to sell
these securities and it is not soliciting offers to buy these securities
in any
state where the offer or sale is not permitted.
SUBJECT
TO COMPLETION, DATED OCTOBER 27, 2005
PROSPECTUS
5,651,050
Shares
SBE,
Inc.
Common
Stock
This
prospectus relates to the offer and sale, from time to time, of up to 5,651,050
shares of SBE, Inc. common stock held by the selling security holders listed
on
page 8 of this prospectus, including up to 1,030,000 shares of common stock
issuable upon exercise of warrants. Certain of the selling security holders
received shares of SBE common stock in consideration of a transaction pursuant
to which PyX Technologies, Inc. was merged with and into PyX Acquisition
Sub,
LLC, a wholly-owned subsidiary of SBE. Certain other selling security holders
purchased shares of common stock and warrants to purchase shares of common
stock
from SBE in a private placement that closed in July 2005. SBE will not receive
any proceeds from the sale of the shares by any of the selling security holders.
We may, however, receive cash consideration in connection with the exercise
of
the warrants for cash.
For
a
description of the plan of distribution of the shares, see page 12 of this
prospectus.
Our
common stock is listed on the Nasdaq SmallCap Market under the symbol “SBEI.” On
October 26, 2005, the last reported sale price for our common stock was $2.68
per share.
Investing
in our common stock involves risks. See “Risk Factors” beginning on
page 4.
Neither
the Securities and Exchange Commission nor any state securities commission
has
approved or disapproved of the securities or passed upon the accuracy or
adequacy of this prospectus. Any representation to the contrary is a criminal
offense.
The
date
of this prospectus is __________________.
TABLE
OF CONTENTS
PLAN
OF DISTRIBUTION
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2
|
|
PLAN
OF DISTRIBUTION
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12
|
|
|
|
|
|
FORWARD-LOOKING
STATEMENTS
|
3
|
|
WHERE
YOU CAN FIND MORE
INFORMATION
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13
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RISK
FACTORS
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3
|
|
|
|
|
|
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LEGAL
MATTERS
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13
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USE
OF PROCEEDS
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8
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|
|
|
|
|
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EXPERTS
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14
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SELLING
SECURITY HOLDERS
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9
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|
|
You
should rely only on the information or representations provided in this
prospectus or incorporated by reference into this prospectus. We have not
authorized anyone to provide you with any different information or to make
any
different representations in connection with any offering made by this
prospectus. This prospectus does not constitute an offer to sell, or a
solicitation of an offer to buy, in any state where the offer or sale is
prohibited. Neither the delivery of this prospectus, nor any sale made
under
this prospectus shall, under any circumstances, imply that the information
in
this prospectus is correct as of any date after the date of this
prospectus.
PROSPECTUS
SUMMARY
The
following is a summary of our business. It does not contain all the information
that may be important to you. You should carefully read the entire prospectus,
including the section entitled "Risk Factors" in this prospectus and the
information incorporated by reference, including our financial statements,
and
the exhibits to the registration statement of which this prospectus is a
part,
for more information on our business and the risks involved in investing
in our
stock.
Our
Business
We
develop and provide network communications and storage solutions for original
equipment manufacturers in the embedded systems marketplace. Embedded networking
technology is hardware or software that serves as a component within a larger
networking or storage device or system, such as a Gigabit Ethernet or a T-1/T-3
input/output network interface card, that plugs into an expansion slot in
a
high-end computer or storage system. Embedded networking solutions enable
the
functionality of many commonly used devices or equipment, such as products
and
solutions for basic telephone and internet services, mobile phones, medical
equipment and storage networks.
We
deliver a product portfolio comprised of standards-based wide area networking
(“WAN”), local area networking (“LAN”) and storage area network (“SAN”), network
interface and intelligent communications controller cards. All of our products
are coupled with enabling Linux or Solaris software drivers. Our products
are
designed to be functionally compatible with each other and, since we use
industry standard form factors and technologies, our products are also
compatible with third party standards-based products. This standard scalability
and modularity offers our customers greater flexibility to develop solutions
for
unique product configurations and applications.
In
July
2005, we acquired the assets of PyX Technologies, Inc. (“PyX”). PyX is a
technology company that develops software products for the Internet Small
Computer System Interface (“iSCSI”) enterprise storage market. iSCSI enables
networked computers to access and store data using standard TCP/IP networks.
Among the many features it offers, iSCSI provides remote access to secure
multi-terabyte storage using desktops, laptops, PDAs, or other mobile devices,
and offers significant cost savings over existing storage alternatives. In
addition, our development of digital signal processor modules allows us to
leverage our current products to enable existing customers to take advantage
of
a new and explosive market: VoIP.
We
were
incorporated in 1961 as Linear Systems, Inc. In 1976, we completed our initial
public offering. In July 2000, we acquired LAN Media Corporation, a privately
held company, to complement and grow our WAN adapter product line from both
a
hardware and software perspective. In August 2003, we acquired the products
and
technologies of Antares Microsystems to increase the functionality of our
PCI
product line.
Following
the PyX acquisition, we operate in two business units; Storage Business Unit
and
Embedded Business Unit.
Our
principal executive offices are located at 4000 Executive Parkway, Suite
200,
San Ramon, California, 94583, and our telephone number is (925) 355-2000.
Our
Internet address is www.sbei.com. The information on our website is not
incorporated by reference into this prospectus.
FORWARD
LOOKING STATEMENTS
This
prospectus contains forward-looking statements that involve risks and
uncertainties. Words such as "believes," "anticipates," "expects," "intends"
and
similar expressions are intended to identify forward-looking statements,
but are
not the exclusive means of identifying such statements. Readers are cautioned
that the forward-looking statements reflect our analysis only as of the date
hereof, and we assume no obligation to update these statements. Actual events
or
results may differ materially from the results discussed in or implied by
the
forward-looking statements. Factors that might cause such a difference include,
but are not limited to, those risks and uncertainties set forth below under
the
caption "Risk Factors."
RISK
FACTORS
An
investment in our common stock involves a high degree of risk. We operate
in a
dynamic and rapidly changing environment that involves numerous risks and
uncertainties. You should carefully consider the factors described below
in
addition to other information contained in this prospectus or incorporated
by
reference into this prospectus before purchasing our shares. Additional risks
and uncertainties not presently known to us or that we currently see as
immaterial may also impair our business operations.
Risks
Related to Our Business
We
may not realize any anticipated benefits from the acquisition of PyX
Technologies, Inc.
We
acquired PyX Technologies, Inc. (“PyX”) on June 26, 2005. While we believe that
our opportunities subsequent to the acquisition are greater than our
opportunities prior to the acquisition, and that we will be able to create
substantially more stockholder value, there is substantial risk that the
synergies and benefits sought in the acquisition might not be fully achieved.
There is no assurance that PyX’s technology can be successfully integrated into
our existing product platforms or that our financial results will meet or
exceed
the financial results that would have been achieved absent the acquisition.
As a
result, our operations and financial results may suffer and the market price
of
our common stock may decline.
If
the Internet Small Computer System Interface (“iSCSI”) software products contain
undetected errors, we could incur significant unexpected expenses and experience
product returns and lost sales.
The
iSCSI
software products are highly technical and complex. While these products
have
been tested, because of their nature, we cannot be certain of their performance
either as stand-alone products or when integrated with our existing product
line. Because of PyX’s short operating history, we have little information on
the performance of its products, including the iSCSI products. There can
be no
assurance that defects or errors may not arise or be discovered in the future.
Any defects or errors in these products discovered in the future could result
in
a loss of customers or decrease in net revenue and market share.
If
an unauthorized disclosure of a significant portion of our source code occurs,
we could potentially lose future trade secret protection for the source code.
Source
code, the detailed program commands for our iSCSI software programs, is one
of
the most significant assets we own. While we license certain portions of
our
source code to certain licensees, we take significant measures to protect
the
secrecy of large portions of our source code. The loss of future trade secret
protection could make it easier for third parties to compete with our products
by copying functionality, which could adversely affect our revenue and operating
margins.
We
depend upon a small number of Original Equipment Manufacturer (“OEM”) customers.
The loss of any of these customers, or their failure to sell their products,
could limit our ability to generate revenues. In particular, the Hewlett-Packard
Company (“HP”) ceased to be a significant customer of ours in the first quarter
of fiscal 2005, and our success depends on being able to replace net sales
previously attributable to HP with sales to other
customers.
In
the
first three quarters of fiscal 2005 and 2004, sales of Versa Module Europa
(“VME”) products to HP accounted for 16% and 47%, respectively, of our net
sales.
We made
our final shipment for $1.0 million of our VME products to HP in the first
quarter of fiscal 2005. Our future success depends on being able to replace
net
sales previously attributable to HP with sales to other customers. We can
provide no assurance that we will succeed in obtaining new orders from existing
or new customers sufficient to replace or exceed the net sales previously
attributable to HP or that we will become a qualified supplier with new OEM
customers or remain a qualified supplier with existing OEM
customers.
Orders
by
our OEM customers are affected by factors such as new product introductions,
product life cycles, inventory levels, manufacturing strategies, contract
awards, competitive conditions and general economic conditions. Our sales
to any
single OEM customer are also subject to significant variability from quarter
to
quarter. Such fluctuations may have a material adverse effect on our operating
results. A significant reduction in orders from any of our OEM customers
could
have a material adverse effect on our operating results, financial condition
and
cash flows.
A
failure
to collect outstanding accounts receivable from any of our OEM customers
could
have a material adverse effect on our business, operating results, financial
condition and cash flows.
Our
future capital needs may exceed our ability to raise
capital.
The
development and marketing of our products is capital-intensive. We believe
that
our existing cash balances and our anticipated cash flow from operations
will
satisfy our working capital needs for the foreseeable future. Declines in
our
sales or a failure to keep expenses in line with revenues could require us
to
seek additional financing in fiscal 2006. In addition, should we experience
a
significant growth in customer orders or wish to make strategic acquisitions
of
a business or assets, we may be required to seek additional capital to meet
our
working capital needs. There can be no assurance that additional financing,
if
required, will be available on reasonable terms or at all. To the extent
that
additional capital is raised through the sale of additional equity or
convertible debt securities, the issuance of such securities could result
in
additional dilution to our stockholders.
Because
of our dependence on single suppliers for some components, we may be unable
to
obtain an adequate supply of such components, or we may be required to pay
higher prices or to purchase components of lesser
quality.
The
chip
sets used in certain of our products are currently available only from a
single
supplier. If these suppliers discontinue or upgrade some of the components
used
in our products, we could be required to redesign a product to incorporate
newer
or alternative technology. The inability to obtain sufficient key components
as
required, or to develop alternative sources if and as required in the future,
could result in delays or reductions in product shipments or margins that,
in
turn, would have a material adverse effect on our business, operating results,
financial condition and cash flows. If enough components are unavailable,
we may
have to pay a premium in order to meet customer demand. Paying premiums for
parts, building inventories of scarce parts and obsolesce of existing
inventories could lower or eliminate our profit margin, reduce our cash flow
and
otherwise harm our business. To offset potential component shortages, we
have in
the past, and may in the future, carry an inventory of these components.
As a
result, our inventory of component parts may become obsolete and may result
in
write-downs.
If
we fail to develop and produce new products, we may lose sales and our
reputation may be harmed.
The
markets for our products are characterized by rapidly changing technologies,
evolving industry standards and frequent new product introductions. Our future
success will depend on our ability to enhance our existing products and to
introduce new products and features to meet and adapt to changing customer
requirements and emerging technologies such as Voice over IP (“VoIP”), third
generation wireless services, Serial ATA, iSCSI, Serial Attached SCSI (“SAS”),
Gigabit Ethernet, 10 Gigabit Ethernet and TCP/IP Offload Engine (“TOE”). There
can be no assurance that we will be successful in identifying, developing,
manufacturing and marketing new products or enhancing our existing products.
In
addition, there can be no assurance that services, products or technologies
developed by others will not render our products obsolete.
We
have
focused a significant portion of our research and development, marketing
and
sales efforts on VoIP, HighWire, WAN and LAN adapters, encryption, iSCSI
and TOE
products. The success of these products is dependent on several factors,
including timely completion of new product designs, achievement of acceptable
manufacturing quality and yields, introduction of competitive products by
other
companies, market acceptance of our products and our ability to sell our
products. If the VoIP, TOE, iSCSI, HighWire, encryption and adapter products
or
other new products developed by us do not gain market acceptance, our business,
operating results, financial condition and cash flows would be materially
adversely affected.
Our
iSCSI and VoIP products will require a substantial product development
investment by us and we may not realize any return on our
investment.
The
development of new or enhanced products is a complex and uncertain process.
As
we integrate the PyX products into our product line, our customers may
experience design, manufacturing, marketing and other difficulties that could
delay or prevent the development, introduction or marketing of new products
and
enhancements, both to our existing product line as well as to the products
we
acquired from PyX. Development costs and expenses are incurred before we
generate any net revenue from sales of the products resulting from these
efforts. We expect to incur substantial research and development expenses
relating to the product line we acquired from PyX, which could have a negative
impact on our earnings in future periods.
The
storage and embedded products market is intensely competitive, and our failure
to compete effectively could reduce our revenues and
margins.
We
compete directly with traditional vendors of storage software and hardware
devices, including Fibre Channel SAN products, open source “free” software, TOE
and application-specific storage solutions. We compete with communications
suppliers of routers, switches, gateways, network interface cards and other
products that connect to the Public Switched Telephone Network and the Internet.
In the future, we expect competition from companies offering client/server
access solutions based on emerging technologies such as Fibre Channel, switched
digital telephone services, iSCSI, SAS, TOE, VoIP and other technologies.
In
addition, we may encounter increased competition from operating system and
network operating system vendors to the extent that such vendors include
full
communications and storage capabilities in their products. We may also encounter
future competition from telephony service providers (such as AT&T or the
regional Bell operating companies) and storage product providers (such as
EMC
Corporation, Network Appliance, Inc. and Qlogic Corporation).
Increased
competition with respect to any of our products could result in price reductions
and loss of market share, which would adversely affect our business, operating
results, financial condition and cash flows. Many of our current and potential
competitors have greater financial, marketing, technical and other resources
than we do. There can be no assurance that we will be able to compete
successfully with our existing competitors or will be able to compete
successfully with new competitors.
We
depend on our key personnel. If we are unable to retain our current personnel
and hire additional qualified personnel as needed, our business will be harmed.
We
are
highly dependent on the technical, management, marketing and sales skills
of a
limited number of key employees. We do not have employment agreements with,
or
life insurance on the lives of, any of our key employees. The loss of the
services of any key employees could adversely affect our business and operating
results. Our future success will depend on our ability to continue to attract
and retain highly talented personnel to the extent our business grows.
Competition for qualified personnel in the networking and software industries,
and in the San Francisco Bay Area, is intense. There can be no assurance
that we
will be successful in retaining our key employees or that we can attract
or
retain additional skilled personnel as required.
We
may be unable to protect our intellectual property, which could reduce any
competitive advantage we have.
Although
we believe that our future success will depend primarily on continuing
innovation, sales, marketing and technical expertise and the quality of product
support and customer relations, we must also protect the proprietary technology
contained in our products. We do not currently hold any patents and rely
on a
combination of copyright, trademark, trade secret laws and contractual
provisions to establish and protect proprietary rights in our products. There
can be no assurance that steps taken by us in this regard will be adequate
to
deter misappropriation or independent third-party development of our technology.
Although we believe that our products and technology do not infringe on the
proprietary rights of others, there can be no assurance that third parties
will
not assert infringement claims against us.
Risks
Associated with Ownership of Our Common Stock
The
market price of our common stock is likely to continue to be volatile. You
may
not be able to resell your shares at or above the price at which you purchased
such shares.
The
trading price of our common stock is subject to wide fluctuations in response
to
quarter-to-quarter fluctuations in operating results, the failure to meet
analyst estimates, announcements of technological innovations or new products
by
us or our competitors, general conditions in the computer and communications
industries and other events or factors. In addition, stock markets have
experienced extreme price and trading volume volatility in recent years.
This
volatility has had a substantial effect on the market price of the securities
of
many high technology companies for reasons frequently unrelated to the operating
performance of the specific companies. These broad market fluctuations may
adversely affect the market price of our common stock. Our common stock has
historically had relatively small trading volumes. As a result, small
transactions in our common stock can have a disproportionately large impact
on
the quoted price of our common stock.
If
we continue to experiences losses, we could experience difficulty meeting
our
business plan, and our stock price could be negatively
affected.
We
may
experience operating losses and negative cash flow from operations as we
develop
and market the iSCSI software solution acquired in the PyX acquisition. Any
failure to achieve or maintain profitability could negatively impact the
market
price of our common stock. We anticipate that we will continue to incur
significant product development, sales and marketing and administrative expenses
and, as a result, will incur net losses for the foreseeable future. We will
need
to generate significant quarterly revenues if we are to achieve and maintain
profitability. A substantial failure to achieve profitability could make
it
difficult or impossible for us to grow our business. Our business strategy
may
not be successful, and we may not generate significant revenues or achieve
profitability. Any failure to significantly increase revenues would also
harm
our ability to achieve and maintain profitability. If we do achieve
profitability in the future, we may not be able to sustain or increase
profitability on a quarterly or annual basis.
Future
sales of our common stock, including the shares offered pursuant to this
prospectus, could cause the market price for our common stock to significantly
decline.
Sales
of
substantial amounts of our common stock in the public market could cause
the
market price of our common stock to fall, and could make it more difficult
for
us to raise capital through public offerings or other sales of our capital
stock. In addition, the public perception that these sales might occur could
have the same undesirable effects. The shares being offered pursuant to this
prospectus represent approximately 57% of our outstanding common stock as
of
October 26, 2005. The shares issued in connection with the PyX acquisition,
which represent approximately 45.3% of the shares being offered pursuant
to this
prospectus are subject to agreements that provide, in part, that, with respect
to 95% of such shares held by the selling security holder, the selling security
holder will not sell, transfer, make any short sale of, grant any option
for the
purchase of, or enter into any hedging or similar transaction with the same
economic effect as a sale, such shares until August 3, 2006. The shares issued
to the purchasers in the private placement are not subject to any lockup
and are
freely tradeable. Such free transferability could materially and adversely
affect the market price of our common stock. As a result, holders of
approximately 32.6% of the outstanding shares of our common stock will have
the
immediate right to sell their shares pursuant to this prospectus and holders
of
an additional approximately 24.7% of the outstanding shares of our common
stock,
assuming no further issuances of shares of our common stock, will have the
right
to sell their shares pursuant to this prospectus after August 3, 2006.
Our
common stock has been at risk for delisting from the Nasdaq SmallCap Market.
If
it is delisted, our stock price and your liquidity may be
impacted.
Our
common stock is currently listed on the Nasdaq SmallCap Market. Nasdaq has
requirements that a company must meet in order to remain listed on the Nasdaq
SmallCap Market. These requirements include maintaining a minimum closing
bid
price of $1.00 and minimum stockholders’ equity of $2.5 million. Our
stockholders’ equity as of July 31, 2005 was approximately $19.7 million and our
closing bid price on September 16, 2005 was $2.82. Although we currently
meet
all the minimum continued listing requirements for the Nasdaq SmallCap Market,
should our stock price decline, our common stock could be subject to potential
delisting from the Nasdaq SmallCap Market.
If
we
fail to maintain the standards necessary to be quoted on the Nasdaq SmallCap
Market and our common stock is delisted, trading in our common stock would
be
conducted on the OTC Bulletin Board as long as we continue to file reports
required by the Securities and Exchange Commission. The OTC Bulletin Board
is
generally considered to be a less efficient market than the Nasdaq SmallCap
Market, and our stock price, as well as the liquidity of our common stock,
may
be adversely impacted as a result.
Our
certificate of incorporation and bylaws and the Delaware General Corporation
Law
contain provisions that could delay or prevent a change in
control.
Our
board
of directors has the authority to issue up to 2,000,000 shares of preferred
stock and to determine the price, rights, preferences and privileges of those
shares without any further vote or action by the stockholders. The rights
of the
holders of common stock will be subject to, and may be materially adversely
affected by, the rights of the holders of any preferred stock that may be
issued
in the future. The issuance of preferred stock could have the effect of making
it more difficult for a third party to acquire a majority of our outstanding
voting stock. Furthermore, certain other provisions of our certificate of
incorporation and bylaws may have the effect of delaying or preventing changes
in control or management, which could adversely affect the market price of
our
common stock. In addition, we are subject to the provisions of Section 203
of
the Delaware General Corporation Law, an anti-takeover law.
USE
OF PROCEEDS
We
will
not receive any of the proceeds from the sale of the shares by the selling
security holders. All proceeds from the sale of the shares will be for the
accounts of the selling security holders. We may, however, receive cash
consideration in connection with the exercise of the warrants for
cash.
SELLING
SECURITY HOLDERS
We
are
registering for resale shares of our common stock that have been issued or
sold
to the selling security holders identified below or that may be issued upon
exercise of the warrants held by certain of the selling security holders.
The
table
below presents information as of September 1, 2005 regarding the selling
security holders and the shares that they may offer and sell from time to
time
under this prospectus. The shares of common stock covered, as to their resale,
under this prospectus include shares of common stock issued in the PyX
acquisition and shares of common stock sold in the private placement and
issuable upon exercise of warrants sold in the private placement. In connection
with the acquisition of PyX Technologies, Inc. (“PyX”) that we consummated on
July 26, 2005, we issued to certain of the selling stockholders 2,561,050
shares
of our common stock and agreed to register such shares of common stock for
resale. Also on July 26, 2005, we completed a private placement with certain
other of the selling security holders, pursuant to which we issued and sold,
for
an aggregate purchase price of $5,150,000, an aggregate of 2,060,000 shares
of
our common stock and warrants to purchase an aggregate of an additional
1,030,000 shares of our common stock bearing an exercise price of $3.33 per
share, which warrants are exercisable at the election of the selling security
holders prior to July 26, 2010.
This
table is prepared based, in part, on information supplied to us by the listed
selling security holders. The table assumes that the selling security holders
will fully exercise the warrants issued in the private placement and sell
all of
the shares offered under this prospectus. However, because the selling security
holders may offer from time to time all or some of their shares under this
prospectus, or in another permitted manner, we cannot assure you as to the
actual number of shares that will be sold by the selling security holders
or
that will be held by the selling security holders after completion of the
sales.
Information concerning the security holders may change from time to time
and
changed information will be presented in a supplement to this prospectus
if and
when necessary and required.
|
Shares
Beneficially Owned Prior to Offering(1)
|
Number
of Shares Being
Offered
|
Shares
Owned After Offering
|
Security
Holders
|
Number
|
Percent
|
Number
|
Percent
|
Andre
Hedrick(2)
|
1,472,000
|
14.9%
|
1,472,000
|
0
|
0%
|
Nick
Bellinger(3)
|
345,000
|
3.5
|
345,000
|
0
|
0
|
Jan
Fuxell(4)
|
230,000
|
2.3
|
230,000
|
0
|
0
|
Dennis
Burke(5)
|
230,000
|
2.3
|
230,000
|
0
|
0
|
Greg
Yamamoto(6)
|
212,000
|
*
|
212,000
|
0
|
0
|
Leo
Fang(7)
|
57,500
|
*
|
57,500
|
0
|
0
|
Andrew
Johnson(8)
|
41,400
|
*
|
41,400
|
0
|
0
|
Tzu-Wang
Pan(9)
|
53,000
|
*
|
53,000
|
0
|
0
|
Richard
Contreras(10)
|
23,000
|
*
|
23,000
|
0
|
0
|
Helge
Mortensen(11)
|
13,800
|
*
|
13,800
|
0
|
0
|
Ignacio
C. Munio(12)
|
156,275
|
1.6
|
11,500
|
144,775
|
1.5
|
Leon
Chiu(13)
|
11,500
|
*
|
11,500
|
0
|
0
|
Wim
Coekaerts(14)
|
5,750
|
*
|
5,750
|
0
|
0
|
Jerry
Johansson(15)
|
4,600
|
*
|
4,600
|
0
|
0
|
AIGH
Investment Partners LLC(16)
|
788,120
|
8.0
|
495,000
|
293,120
|
3.0
|
Globis
Capital Partners(17)
|
462,997
|
4.7
|
300,000
|
162,997
|
1.7
|
Anfel
Trading Limited(18)
|
411,400
|
4.2
|
390,000
|
21,400
|
*
|
Cam
Co(19)
|
265,000
|
2.7
|
210,000
|
55,000
|
*
|
Ganot
Corporation(20)
|
240,000
|
2.4
|
210,000
|
30,000
|
*
|
LaPlace
Group, LLC(21)
|
180,000
|
1.8
|
180,000
|
0
|
0
|
Herschel
Berkowitz(22)
|
151,500
|
1.5
|
90,000
|
61,500
|
*
|
Sandra
Pessin(23)
|
150,000
|
1.5
|
150,000
|
0
|
0
|
Globis
Overseas Fund Ltd. (24)
|
120,000
|
1.2
|
120,000
|
0
|
0
|
Jack
Dodick(25)
|
135,000
|
1.4
|
120,000
|
15,000
|
*
|
Ellis
International LLC(26)
|
60,000
|
*
|
60,000
|
0
|
0
|
Stephen
Spira(27)
|
60,000
|
*
|
60,000
|
0
|
0
|
Fame
Associates(28)
|
60,000
|
*
|
60,000
|
0
|
0
|
Kevin
McCaffrey(29)
|
60,000
|
*
|
60,000
|
0
|
0
|
William
Heinzerling (30)
|
60,000
|
*
|
60,000
|
0
|
0
|
John
A. Moore(31)
|
60,000
|
*
|
60,000
|
0
|
0
|
Joshua
Hirsch(32)
|
30,000
|
*
|
30,000
|
13,000
|
*
|
Richard
Grossman(33)
|
41,100
|
*
|
30,000
|
11,100
|
*
|
Citigroup
Global Markets Inc. FBO F. Lyon Polk(34)
|
36,000
|
*
|
36,000
|
0
|
0
|
Citigroup
Global Markets Inc. FBO Hilary Edson(35)
|
36,000
|
*
|
36,000
|
0
|
0
|
Mark
Giordano(36)
|
33,000
|
*
|
18,000
|
15,000
|
*
|
Paul
Packer(37)
|
612,997
|
*
|
30,000
|
162,997
|
0
|
Paul
Tramontano(38)
|
30,000
|
*
|
30,000
|
0
|
0
|
Kurt
Miyatake(39)
|
30,000
|
*
|
30,000
|
0
|
0
|
Greg
Yamamoto, as UTMA
custodian
for Melanie Yamamoto(40)
|
30,000
|
*
|
30,000
|
0
|
0
|
Greg
Yamamoto, as UTMA
custodian
for Nicholas Yamamoto(41)
|
30,000
|
*
|
30,000
|
0
|
0
|
James
Kardon(42)
|
10,200
|
*
|
10,200
|
0
|
0
|
Jeffrey
Schwartz(43)
|
4,800
|
*
|
4,800
|
0
|
0
|
(1) |
The
shares of common stock owned prior to the offering equals the sum
of (a)
shares of common stock and (b) shares of common stock issuable
upon
exercise of warrants. Percentages are based on 9,865,782 shares
of our
common stock that were outstanding (on an as-converted to common
stock
basis) on September 1, 2005. In calculating the percentage for
each
selling security holder, the shares represented by item (b) above
are
included in the denominator of the shares outstanding for that
selling
security holder but are not included in the denominator for any
other
person.
|
(2) |
Acquired
in connection with our acquisition of PyX consummated on July 26,
2005.
Includes 1,398,400 shares of common stock. that are subject to
a lock-up
agreement providing that such stockholder will not sell, transfer,
make
any short sale of, grant any option for the purchase of, or enter
into any
hedging or similar transaction with the same economic effect as
a sale,
such shares until August 3, 2006 (the “Lockup”). Andre Hedrick is the
Chief Technical Officer of the Company and the business mailing
address is
4000 Executive Parkway, Suite 200, San Ramon, California,
95483.
|
(3) |
Acquired
in connection with our acquisition of PyX consummated on July 26,
2005.
Includes 327,850 shares of common stock. that are subject to the
Lockup.
Nick Bellinger is the Chief Architect of iSCSI at the
Company.
|
(4) |
Acquired
in connection with our acquisition of PyX consummated on July 26,
2005.
Includes 218,500 shares of common stock. that are subject to the
Lockup.
|
(5) |
Acquired
in connection with our acquisition of PyX consummated on July 26,
2005.
Includes 218,500 shares of common stock. that are subject to the
Lockup.
|
(6) |
Includes
92,000 shares acquired in connection with our acquisition of PyX
consummated on July 26, 2005 and 80,000 shares and warrants to
purchase
40,000 shares of common stock acquired in connection with the private
placement completed on July 26, 2005. Includes 87,400 shares of
common
stock. that are subject to the Lockup. Greg Yamamoto is the General
Manager of Storage Unit of the Company.
|
(7) |
Acquired
in connection with our acquisition of PyX consummated on July 26,
2005.
Includes 54,625 shares of common stock. that are subject to the
Lockup.
Leo Fang is the Vice President of Storage at the
Company.
|
(8) |
Acquired
in connection with our acquisition of PyX consummated on July 26,
2005.
Includes 39,330 shares of common stock. that are subject to the
Lockup.
|
(9) |
Includes
23,000 shares acquired in connection with our acquisition of PyX
consummated on July 26, 2005 and 20,000 shares and warrants to
purchase
10,000 shares of common stock acquired in connection with the private
placement completed on July 26, 2005. Also includes 21,850 shares
of
common stock. that are subject to the Lockup..
|
(10) |
Acquired
in connection with our acquisition of PyX consummated on July 26,
2005.
Includes 21,850 shares of common stock. that are subject to the
Lockup.
|
(11) |
Acquired
in connection with our acquisition of PyX consummated on July 26,
2005.
Includes 13,110 shares of common stock. that are subject to the
Lockup.
|
(12) |
Includes
11,500 shares acquired in connection with our acquisition of PyX
consummated on July 26, 2005. Includes 10,925 shares of common
stock that
are subject to the Lockup. Includes 45,830 shares issuable upon
exercise
of options exercisable within 60 days of the date of this
table.
|
(13) |
Acquired
in connection with our acquisition of PyX consummated on July 26,
2005.
Includes 10,925 shares of common stock. that are subject to the
Lockup.
|
(14)
|
Acquired
in connection with our acquisition of PyX consummated on July 26,
2005.
Includes 5,463 shares of common stock. that are subject to the
Lockup.
|
(15) |
Acquired
in connection with our acquisition of PyX consummated on July 26,
2005.
Includes 4,370 shares of common stock. that are subject to the
Lockup.
|
(16) |
Includes
330,000 shares and warrants to purchase 165,000 shares of common
stock
acquired in connection with the private placement completed on
July 26,
2005. Orin Hirschman is the managing member of AIGH Investment
Partners,
LLC and has voting and dispositive power with respect to such shares.
The
business address for the selling stockholder is 6006 Berkeley Ave.,
Baltimore, MD 21209.
|
(17) |
Includes
200,000 shares and warrants to purchase 100,000 shares of common
stock
acquired in connection with the private placement completed on
July 26,
2005. Paul Packer , managing member of Globis Capital Partners,
exercises
voting and dispositive power with respect to the such
shares.
|
(18) |
Includes
260,000 shares and warrants to purchase 130,000 shares of common
stock
acquired in connection with the private placement completed on
July 26,
2005. Tzvi Levy exercises voting and dispositive control with respect
to
such shares.
|
(19) |
Includes
140,000 shares and warrants to purchase 70,000 shares of common
stock
acquired in connection with the private placement completed on
July 26,
2005. Charles Alpert exercises voting and dispositive power with
respect
to such shares.
|
(20) |
Includes
140,000 shares and warrants to purchase 70,000 shares of common
stock
acquired in connection with the private placement completed on
July 26,
2005. Sisel Klurman exercises voting and dispositive power with
respect to
such shares.
|
(21) |
Includes
120,000 shares and warrants to purchase 60,000 shares of common
stock
acquired in connection with the private placement completed on
July 26,
2005. Reuven Dessler exercises voting and dispositive power with
respect
to such shares.
|
(22) |
Includes
60,000 shares and warrants to purchase 30,000 shares of common
stock
acquired in connection with the private placement completed on
July 26,
2005.
|
(23) |
Includes
100,000 shares and warrants to purchase 50,000 shares of common
stock
acquired in connection with the private placement completed on
July 26,
2005.
|
(24) |
Includes
80,000 shares and warrants to purchase 40,000 shares of common
stock
acquired in connection with the private placement completed on
July 26,
2005. Paul Packer , managing member of Globis Overseas Fund, Ltd.,
exercises voting and dispositive power with respect to the such
shares.
|
(25) |
Includes
80,000 shares and warrants to purchase 40,000 shares of common
stock
acquired in connection with the private placement completed on
July 26,
2005.
|
(26) |
Includes
40,000 shares and warrants to purchase 20,000 shares of common
stock
acquired in connection with the private placement completed on
July 26,
2005. Wilhelm Ungar exercises voting and dispositive power with
respect to
such shares.
|
(27) |
Includes
40,000 shares and warrants to purchase 20,000 shares of common
stock
acquired in connection with the private placement completed on
July 26,
2005.
|
(28) |
Includes
warrants to purchase 50,000 shares of common stock acquired in
connection
with the private placement completed on July 26, 2005. Abraham
Fruchthandler, general partner of Fame Associates, exercises voting
and
dispositive power with respect to such
shares.
|
(29) |
Includes
warrants to purchase 20,000 shares of common stock acquired in
connection
with the private placement completed on July 26, 2005.
|
(30) |
Includes
40,000 warrants to purchase 20,000 shares of common stock acquired
in
connection with the private placement completed on July 26, 2005.
|
(31) |
Includes
40,000 shares and warrants to purchase 20,000 shares of common
stock
acquired in connection with the private placement completed on
July 26,
2005.
|
(32) |
Includes
20,000 shares and warrants to purchase 10,000 shares of common
stock
acquired in connection with the private placement completed on
July 26,
2005.
|
(33) |
Includes
20,000 shares and warrants to purchase 10,000 shares of common
stock
acquired in connection with the private placement completed on
July 26,
2005.
|
(34) |
Includes
24,000 shares and warrants to purchase 12,000 shares of common
stock
acquired in connection with the private placement completed on
July 26,
2005.
|
(35) |
Includes
24,000 shares and warrants to purchase 12,000 shares of common
stock
acquired in connection with the private placement completed on
July 26,
2005.
|
(36) |
Includes
12,000 shares and warrants to purchase 6,000 shares of common stock
acquired in connection with the private placement completed on
July 26,
2005. Mr. Giordano, a person associated with a registered broker-dealer,
purchased such securities in the ordinary course of business for
his
personal account and investment and, at the time of the purchase
of
securities to be resold, Mr. Giordano had no agreements or understandings,
directly or indirectly, with any person to distribute the securities
(based on information provided to us by Mr.
Giordano).
|
(37)
|
Includes
20,000 shares and warrants to purchase 10,000 shares of common
stock
acquired in connection with the private placement completed on
July 26,
2005. Also includes 80,000 shares and warrants to purchase 40,000
shares
of common held by Globis Overseas Fund, Ltd. and 362,997 shares
and
warrants to purchase 100,000 shares of common stock held by Globis
Capital
Partners.
|
(38) |
Includes
20,000 shares and warrants to purchase 10,000 shares of common
stock
acquired in connection with the private placement completed on
July 26,
2005.
|
(39) |
Includes
20,000 shares and warrants to purchase 10,000 shares of common
stock
acquired in connection with the private placement completed on
July 26,
2005.
|
(40) |
Includes
20,000 shares warrants to purchase 10,000 shares of common stock
acquired
in connection with the private placement completed on July 26,
2005.
|
(41) |
Includes
20,000 shares and warrants to purchase 10,000 shares of common
stock
acquired in connection with the private placement completed on
July 26,
2005.
|
(42) |
Includes
6,800 shares and warrants to purchase 3,400 shares of common stock
acquired in connection with the private placement completed on
July 26,
2005.
|
(43) |
Includes
3,200 shares and warrants to purchase 1,600 shares of common stock
acquired in connection with the private placement completed on
July 26,
2005.
|
PLAN
OF DISTRIBUTION
The
shares of common stock offered pursuant to this prospectus may be sold from
time
to time by the selling security holders in one or more transactions at fixed
prices, at market prices at the time of sale, at varying prices determined
at
the time of sale or at negotiated prices. As used in this prospectus, "selling
security holders" includes donees, pledgees, transferees and other successors
in
interest selling shares received from the selling security holders after
the
date of this prospectus as a gift, pledge, partnership distribution or other
non-sale transfer. Upon receiving notice from the selling security holders
that
a donee, pledgee, transferee or other successor in interest intends to sell
more
than 500 shares, we will file a supplement to this prospectus. The selling
security holders may offer their shares of common stock:
|
-
|
on
any national securities exchange or quotation service on which
the common
stock may be listed or quoted at the time of sale, including the
Nasdaq
SmallCap Market;
|
|
-
|
in
the over-the-counter market;
|
|
-
|
in
private transactions;
|
|
-
|
by
pledge to secure debts and other obligations; or
|
|
-
|
a
combination of any of the above transactions.
|
The
shares of common stock described in this prospectus may be sold from time
to
time directly by the selling security holders. Alternatively, the selling
security holders may, from time to time, offer shares of common stock to
or
through underwriters, broker/dealers or agents. The selling security holders
and
any underwriters, broker/dealers or agents that participate in the distribution
of the shares of common stock may be deemed to be "underwriters" within the
meaning of the Securities Act of 1933, as amended. Any profits on the resale
of
shares of common stock and any compensation received by any underwriter,
broker/dealer or agent may be deemed to be underwriting discounts and
commissions under the Securities Act of 1933, as amended. We have agreed
to
indemnify the selling security holders against certain liabilities, including
liabilities arising under the Securities Act of 1933, as amended. The selling
security holders may agree to indemnify any agent, dealer or broker-dealer
that
participates in the sale of shares of common stock described in this prospectus
against certain liabilities, including liabilities arising under the Securities
Act of 1933.
Any
shares covered by this prospectus that qualify for sale pursuant to Rule
144
under the Securities Act of 1933, as amended, may be sold under Rule 144
rather
than pursuant to this prospectus. The selling security holders may elect
to not
sell the shares they hold. The selling security holders may engage in short
sales, short sales versus the box, puts, calls and other similar transactions.
However, the selling security holders may not maintain a net short position
whereby one or more sales are marked as a short sale at a time with a selling
security holder has no equivalent offsetting long position in our common
stock.
The selling security holders may transfer, distribute, devise or gift such
shares by other means not described in this prospectus. To comply with the
securities laws of certain jurisdictions, the common stock must be offered
or
sold only through registered or licensed brokers or dealers. In addition,
in
certain jurisdictions, the shares of common stock may not be offered or sold
unless they have been registered or qualified for sale or an exemption is
available and complied with.
Under
the
Securities Exchange Act of 1934, as amended, any person engaged in a
distribution of the common stock may not simultaneously engage in market-making
activities with respect to the common stock for five business days prior
to the
start of the distribution. In addition, each selling security holder and
any
other person participating in a distribution will be subject to the Securities
Exchange Act of 1934, as amended, which may limit the timing of purchases
and
sales of common stock by the selling security holder or any such other person.
These factors may affect the marketability of the common stock and the ability
of brokers or dealers to engage in market-making activities.
We
will
bear all costs, expenses and fees in connection with the registration of
the
shares. The selling security holders will pay all commissions and discounts,
if
any, associated with the sale of the shares.
WHERE
YOU CAN FIND MORE INFORMATION
We
are a
reporting company and file annual, quarterly and current reports, proxy
statements and other information with the Securities and Exchange Commission.
For further information with respect to us and the securities offered pursuant
to this prospectus, we refer you to the exhibits hereto and the other
information incorporated herein by reference. You may read and copy the
registration statement, as well as our reports, proxy statements and other
information, at the Securities and Exchange Commission's public reference
room
at 100 F Street, NE, Room 1580, Washington, D.C. 20549. You can request copies
of these documents by writing to the Securities and Exchange Commission and
paying a fee for the copying costs. Please call the Securities and Exchange
Commission at 1-800-SEC-0330 for more information about the operation of
the
public reference room. Our Securities and Exchange Commission filings are
also
available at the Securities and Exchange Commission's web site at
http://www.sec.gov. In addition, you can read and copy our Securities and
Exchange Commission filings at the office of the National Association of
Securities Dealers, Inc. at 1735 K Street, N.W., Washington,
D.C.
20006.
The
Securities and Exchange Commission allows us to "incorporate by reference"
information that we file with it, which means that we can disclose important
information to you by referring you to those documents. The information
incorporated by reference is an important part of this prospectus. Information
in this prospectus supersedes information incorporated by reference that
we
filed with the Securities and Exchange Commission prior to the date of this
prospectus, while information that we file later with the Securities and
Exchange Commission will automatically update and supersede this information.
We
incorporate by reference into this registration statement and prospectus
the
documents listed below and any future filings we will make with the Securities
and Exchange Commission under Sections 13(a), 13(c), 14 or 15(d) of
the
Securities Exchange Act of 1934, as amended, after the date of the initial
registration statement but prior to effectiveness of the registration statement
and after the date of this prospectus but prior to the termination of the
offering of the securities covered by this prospectus.
The
following documents filed with the Securities and Exchange Commission are
incorporated by reference in this prospectus:
|
(i)
|
Our
Annual Report on Form 10-K for the fiscal year ended October 31,
2004,
including all material incorporated by reference therein;
|
|
(ii)
|
Our
Quarterly Report on Form 10-Q for the quarter ended January 31,
2005;
|
|
(iii)
|
Our
Quarterly Report on Form 10-Q for the quarter ended April 30,
2005;
|
|
(iv)
|
Our
Quarterly Report on Form 10-Q for the quarter ended July 31,
2005;
|
|
(v)
|
Our
Current Report on Form 8-K dated January 1, 2005;
|
|
(vi)
|
Our
Current Report on Form 8-K dated January 31,
2005;
|
|
(vii)
|
Our
Current Report on Form 8-K dated March 28, 2005;
|
|
(viii)
|
Our
Current Report on Form 8-K dated May 4,
2005;
|
|
(ix)
|
Our
Current Report on Form 8-K dated April 30,
2005;
|
|
(x)
|
Our
Current Report on Form 8-K dated July 26, 2005;
|
|
(xi)
|
Our
Current Report on Form 8-K dated July 31, 2005;
and
|
|
(iix) |
The
description of the common stock contained in our Registration Statement
on
Form 8-A.
|
We
will
provide without charge to you, upon written or oral request, a copy of any
and
all of the documents that have been incorporated by reference in this prospectus
(not including exhibits to such documents, unless such exhibits are specifically
incorporated by reference in this prospectus or into such documents). Such
request may be directed to: SBE, Inc., 4000 Executive Parkway, Suite 200,
San
Ramon, California, 95483, Attention: Chief Financial Officer, telephone (925)
355-2000.
LEGAL
MATTERS
The
validity of the securities being offered hereby will be passed upon by Cooley
Godward LLP, San Francisco, California.
EXPERTS
The
financial statements for the year ended October 31, 2002 incorporated in
this
Prospectus by reference to the Annual Report on Form 10-K for the year ended
October 31, 2004 have been so incorporated in reliance on the report (which
contains an explanatory paragraph relating to the Company’s ability to continue
as a going concern, as described in Note 1 to the financial statements) of
PricewaterhouseCoopers LLP, independent registered public accounting firm,
given
on the authority of said firm as experts in auditing and accounting.
The
financial statements of SBE, Inc. as of October 31, 2004 and 2003 and for
the
years then ended and of PyX Technologies as of December 31, 2004 and 2003
and
for the year ended December 31, 2004, the period from inception (November
26,
2002) through December 31, 2003, and the period from inception (November
26,
2002) through December 31, 2004, incorporated by reference in this prospectus
have been audited by BDO Seidman LLP, an independent registered public
accounting firm, to the extent and for the periods set forth in their report
incorporated herein by reference, and are incorporated herein in reliance
upon
such report given on the authority of said firm as experts in accounting
and
auditing.
PART
II
INFORMATION
NOT REQUIRED IN PROSPECTUS
Item:
14. Other
Expenses of Issuance and Distribution
The
following table sets forth all expenses, other than the underwriting discounts
and commissions, payable by the registrant in connection with the sale of
the
shares of common stock being registered. All the amounts shown are estimates
except for the registration fee.
Securities
and Exchange Commission registration fee
|
|
$
|
1,769
|
|
Nasdaq
SmallCap Market additional shares listing fee
|
|
$
|
45,000
|
|
Legal
fees and expenses
|
|
$
|
5,000
|
|
Accounting
fees and expenses
|
|
$
|
2,500
|
|
Miscellaneous
|
|
$
|
1,000
|
|
Total
|
|
$
|
55,269
|
|
Item
15. Indemnification
of Officers and Directors
As
permitted by Section 145 of the Delaware General Corporation Law, our Bylaws
provide that (i) we are required to indemnify our directors and executive
officers to the fullest extent permitted by the Delaware General Corporation
Law, (ii) we may, in our discretion, indemnify other officers, employees
and
agents as set forth in the Delaware General Corporation Law, (iii) to the
fullest extent permitted by the Delaware General Corporation Law, we are
required to advance all expenses incurred by our directors and executive
officers in connection with a legal proceeding (subject to certain exceptions),
(iv) the rights conferred in our Bylaws are not exclusive, (v) we are authorized
to enter into indemnification agreements with our directors, officers, employees
and agents and (vi) we may not retroactively amend the Bylaws provisions
relating to indemnity.
We
have
entered into agreements with our directors and officers that require us to
indemnify such persons against expenses, judgments, 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 our director or officer or any of our affiliated
enterprises. Our obligation to indemnify our officers and directors is subject
to certain limitations set forth in the indemnification agreements. The
indemnification agreements also set forth certain procedures that will apply
in
the event of a claim for indemnification thereunder.
The
selling security holders have entered into an agreement with us whereby they
jointly and severally agree, to the extent permitted by law, to indemnify
and
hold harmless SBE, each officer of SBE who signs this registration statement
and
each director of SBE, against all losses, claims, damages or liabilities,
joint
or several, to which SBE or such officer or director may become subject under
the 1933 Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon
any
untrue statement or alleged untrue statement of any material fact contained
in
this registration statement, any preliminary prospectus or final prospectus
contained therein, or any amendment or exhibit thereof, or arise out of or
are
based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein,
in
light of the circumstances in which they were made, not misleading in each
case,
and will reimburse SBE and each such officer and director for any legal or
other
expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action, provided, however,
that the selling security holders will be liable hereunder in any such case
if
and only to the extent that any such loss, claim, damage or liability arises
out
of or is based upon an untrue statement or alleged untrue statement or omission
or alleged omission made in reliance upon and in conformity with information
pertaining to such selling security holders, as such, furnished in writing
to
SBE by or on behalf of a selling security holder specifically for use in
such
registration statement or prospectus, and provided, further, however, that
the
liability of the selling security holders hereunder shall be limited to the
gross proceeds (net of the amount of any damages the selling security holders
have otherwise been required to pay by reason of such untrue statement or
omission or alleged untrue statement or omission) received by the selling
security holders from the sale of the common stock covered by this registration
statement. The agreement also sets forth certain procedures that will apply
in
the event of a claim for indemnification thereunder.
Item
16. Exhibits
Exhibit
Number
|
Description
of Document
|
2.1*
|
Agreement
and Plan of Merger and Reorganization, dated March 28, 2005, by
and among
SBE, Inc., PyX Acquisition Sub, LLC, PyX Technologies, Inc. and
the
parties identified on Exhibit A thereto.
|
4.1*
|
Investor
Rights Agreement, dated July 26, 2005, between SBE, Inc. and the
investors
listed on Exhibit A thereto.
|
4.2*
|
Form
of warrant issued on July 26, 2005.
|
10.1*
|
Unit
Subscription Agreement, dated May 4, 2005, by and between SBE,
Inc. and
the other parties thereto.
|
5.1**
|
Opinion
of Cooley Godward llp
|
23.1
|
Consent
of BDO Seidman LLP, Independent Registered Public Accounting
Firm
|
23.2
|
Consent
of PricewaterhouseCoopers LLP, Independent Registered Public Accounting
Firm
|
23.3**
|
Consent
of Cooley Godward llp
included in Exhibit 5.1
|
24.1**
|
Power
of Attorney. See signature page.
|
*
|
Filed
as an exhibit to SBE’s Definitive Proxy Statement on Schedule 14A, filed
on June 24, 2005, and incorporated herein by
reference.
|
Item
17. Undertakings
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 provisions described in Item 15 above, the registrant has
been
informed that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Securities Act
of
1933 and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by registrant
of expenses incurred or paid by a director, officer or controlling person
of
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, 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 Act and will be governed by the
final
adjudication of such issue.
The
undersigned registrant hereby undertakes:
(1) 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
of
1933;
(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 percent 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 distribution not previously
disclosed in the registration statement or any material change to such
information in the registration statement; provided, however, that paragraphs
(a)(1)(i) and (a)(1)(ii) do not apply if the registration statement is on
Form
S-3, Form S-8 or Form F-3, and the information required to be included in
a
post-effective amendment by those paragraphs is contained in periodic reports
filed by the registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in the
registration statement.
(2) That,
for
the purpose of determining any liability under the Securities Act of 1933,
each
such post-effective amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering
thereof.
(3) 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.
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 15(d) of the Securities Exchange Act
of 1934
that is incorporated by reference in the registration statement shall be
deemed
to be a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, the registrant certifies
that
it has reasonable grounds to believe that it meets all of the requirements
for
filing on Form S-3 and has duly caused this Amendment No. 1 to the registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of San Ramon, State of California, on the 27th day
of
October, 2005.
|
|
|
|
SBE, Inc. |
|
|
|
|
By: |
/s/
Daniel Grey |
|
Daniel
Grey
|
|
President
and Chief Executive Officer |
Pursuant
to the requirements of the Securities Act of 1933, this Amendment No. 1 to
the
registration statement has been signed below by the following persons in
the
capacities and on the dates indicated. This document may be executed by the
signatories hereto on any number of counterparts, all of which shall constitute
one and the same instrument.
Signature
|
Title
|
Date
|
|
|
|
/s/
Daniel Grey
Daniel
Grey
|
President
and Chief Executive Officer
(Principal
Executive Officer)
|
October
27, 2005
|
|
|
|
/s/
David W. Brunton
David
W. Brunton
|
Vice
President, Finance and
Chief
Financial Officer
(Principal
Financial and Accounting Officer)
|
October
27, 2005
|
|
|
|
*
Ronald
J. Ritchie
|
Chairman
of the Board
|
October
27, 2005
|
|
|
|
*
William
B. Heye, Jr.
|
Director
|
October
27, 2005
|
|
|
|
*
John
Reardon
|
Director
|
October
27, 2005
|
|
|
|
*
Marion
M. Stuckey
|
Director
|
October
27, 2005
|
*By:/s/
David
Brunton
Pursuant to power of attorney
INDEX
OF EXHIBITS
Exhibit
Number
|
Description
of Document
|
2.1*
|
Agreement
and Plan of Merger and Reorganization, dated March 28, 2005, by
and among
SBE, Inc., PyX Acquisition Sub, LLC, PyX Technologies, Inc. and
the
parties identified on Exhibit A thereto.
|
4.1*
|
Investor
Rights Agreement, dated July 26, 2005, between SBE, Inc. and the
investors
listed on Exhibit A thereto.
|
4.2*
|
Form
of warrant issued on July 26, 2005.
|
10.1*
|
Unit
Subscription Agreement, dated May 4, 2005, by and between SBE,
Inc. and
the other parties thereto.
|
5.1**
|
Opinion
of Cooley Godward llp
|
23.1
|
Consent
of BDO Seidman LLP, Independent Registered Public Accounting
Firm
|
23.2
|
Consent
of PricewaterhouseCoopers LLP, Independent Registered Public Accounting
Firm
|
23.3**
|
Consent
of Cooley Godward llp
included in Exhibit 5.1
|
24.1**
|
Power
of Attorney.
|
*
|
Filed
as an exhibit to SBE’s Definitive Proxy Statement on Schedule 14A, filed
on June 24, 2005, and incorporated herein by
reference.
|