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