As filed with the Securities and Exchange Commission on August 19, 1998
Registration No._________
========================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
____________________________
FORM S-8 POS
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
____________________________
SBE, INC.
(Exact name of registrant as specified in its charter)
____________________________
Delaware 94-1517641
------------------------ ------------------------------------
(State of Incorporation) (I.R.S. Employer Identification No.)
4550 Norris Canyon Road
San Ramon, CA 94583
(Address of principal executive offices)
1991 Non-Employee Directors' Stock Option Plan
(Full title of the plan)
TIMOTHY J. REPP
Chief Financial Officer
SBE, Inc.
4550 Norris Canyon Road
San Ramon, CA 94583
(925) 355-2000
(Name, address, including zip code, and telephone number, including
area code, of agent for service)
____________________________
Copies to:
Christopher A. Westover, Esq.
Cooley Godward LLP
One Maritime Plaza, 20th Floor
San Francisco, CA 94111
(415) 693-2000
____________________________
Exhibit Index at Page 8
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<PAGE>
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
=========================================================================
TITLE OF PROPOSED PROPOSED
SECURITIES AMOUNT MAXIMUM MAXIMUM AMOUNT OF
TO BE TO BE OFFERING AGGREGATE REGISTRATION
REGISTERED REGISTERED PRICE PER SHARE OFFERING PRICE FEE
- ---------- ---------- --------------- -------------- ------------
<S> <C> <C> <C> <C>
See below* N/A* N/A* N/A* N/A*
*No additional securities are to be registered, and registration fees
were paid upon filing of the original Registration Statement Nos. 33-
42629 and 33-59167. Therefore, no further registration fee is required.
</TABLE>
SBE, INC.
POST-EFFECTIVE AMENDMENT NO. 1 TO
REGISTRATION STATEMENT ON FORM S-8
This Post-Effective Amendment No. 1 (this "Amendment") to that
certain Registration Statement on Form S-8 (File No. 0-8419) the
("Registration Statement") is being filed pursuant to Rule 414 under
the Securities Act of 1933, as amended (the "Securities Act") by SBE,
Inc. , a Delaware corporation ("SBE Delaware" or the "Company"), which
is the successor to SBE, Inc., a California corporation ("SBE
California"), following a statutory merger effective on December 15,
1997 (the "Merger") for the purpose of changing SBE California's state
of incorporation. Prior to the Merger, SBE Delaware had no assets or
liabilities other than nominal assets or liabilities. In connection
with the Merger, SBE Delaware succeeded by operation of law to all of
the assets and liabilities of SBE California. The Merger was approved
by the shareholders of SBE California at a meeting for which proxies
were solicited pursuant to Section 14 (a) of the Securities Exchange
Act of 1934, as amended (the "Exchange Act").
Except as modified by this Amendment, SBE Delaware, by virtue of
this Amendment, expressly adopts the Registration Statements as its own
registration statements for all purposes of the Securities Act and the
Exchange Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by SBE, Inc. (the "Company") with
the Securities and Exchange Commission are incorporated by reference
into this Registration Statement:
(a) The Company's latest annual report on Form 10-K filed
pursuant to Sections 13(a) or 15(d) of the Securities Exchange Act of
1934, as amended (the "Exchange Act").
(b) All other reports filed pursuant to Sections 13(a) or 15(d)
of the Exchange Act since the end of the fiscal year covered by the
annual reports, the prospectus or the registration statement referred
to in (a) above.
(c) The description of the Company's Common Stock which is
contained in a registration statement filed under the Exchange Act,
including any amendment or report filed for the purpose of updating
such description.
All reports and other documents subsequently filed by the Company
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act
prior to the filing of a post-effective amendment which indicates that
all securities offered have been sold or which deregisters all
securities then remaining unsold, shall be deemed to be incorporated by
reference herein and to be a part of this registration statement from
the date of the filing of such reports and documents.
2
<PAGE>
Item 4: Description of Securities.
Not applicable
Item 5. Interests of Named Experts and Counsel
Not applicable
Item 6. Indemnification of Directors and Officers
The Company reincorporated in Delaware on December 15, 1997 and
thus adopted new By-Laws and entered into new indemnification
agreements with its officers and directors as more specifically
described below.
As permitted by Section 145 of the Delaware General Corporation
Law, the By-Laws of the Company provide that (i) the Company is
required to indemnify its directors and executive officers to the
fullest extent not prohibited by the Delaware General Corporation Law,
(ii) the Company may, in its discretion, indemnify other officers,
employees and agents as set forth in the Delaware General Corporation
Law, (iii) the Company is required to advance all expenses incurred by
its directors and executive officers in connection with certain legal
proceedings (subject to certain exceptions), (iv) the rights conferred
in the By-Laws are not exclusive, (v) the Company is authorized to
enter into indemnification agreements with its directors, officers,
employees and agents and (vi) the Company may not retroactively amend
the By-Laws provisions relating to indemnify.
The Company has entered into agreements with its directors and
executive officers that require the Company to indemnify such persons
against expenses, judgements, fines, settlements and other amounts that
such person becomes legally obligated to pay (including expenses of a
derivative action ) in connection with any proceeding, whether actual
or threatened, to which any such person may be made a party by reason
of the fact that such person is or was a director of or officer of the
Company or any of its affiliated enterprises, provided such person
acted in good faith and in a manner such person reasonably believed to
be in or not opposed to the best interests of the Company. The
indemnification agreements also set forth certain procedures that will
apply in the event of a claim for indemnification thereunder.
Item 7. Exemption from Registration Claimed
Not applicable
Item 9. Undertakings
1. The undersigned registrant hereby undertakes:
(a) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by section
10(a)(3) of the Securities Act;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental change
in the information set forth in the registration statement.
Notwithstanding the foregoing, any increase or decrease in
volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered)
and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b)
(Sec. 230.424(b) of this chapter) if, in the aggregate, the
changes in volume and price represent no more than a 20% change
in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective
registration statement.
3
<PAGE>
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in the
registration statement or any material change to such
information in the registration statement;
PROVIDED, HOWEVER, that paragraphs (a)(i) and (a)(ii) do not
apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed by
the issuer pursuant to section 13 or section 15(d) of the Exchange Act
that are incorporated by reference herein.
(b) That, for the purpose of determining any liability under
the Securities Act, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
herein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(c) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
2. The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act, each
filing of the registrant's annual report pursuant to Section 13(a) or
Section 15(d) of the Exchange Act (and, where applicable, each filing
of an employee benefit plan's annual report pursuant to section 15(d)
of the Exchange Act) that is incorporated by reference in the
Registration Statement shall be deemed to be a new registration
statement relating to the securities offered herein, and the offering
of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
3. Insofar as indemnification for liabilities arising under
the Securities Act may be permitted to directors, officers and
controlling persons of the registrant pursuant to the foregoing
provisions, or otherwise, the registrant has been advised that in the
opinion of the Securities and Exchange Commission such indemnification
is against public policy as expressed in the Securities Act and is,
therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or
controlling person of the registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered,
the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by
it is against public policy as expressed in the Securities Act and will
be governed by the final adjudication of such issue.
4
<PAGE>
EXHIBITS
Exhibit
Number
- -------
5 Opinion of Cooley Godward LLP
23.1 Consent of PricewaterhouseCoopers LLP
23.2 Consent of Cooley Godward LLP is contained in
Exhibit 5 to this Registration Statement
24.1 Power of Attorney is contained on the signature
pages.
5
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as
amended, the Registrant certifies that it has reasonable grounds to
believe that it meets all of the requirements for filing on Form S-8
and has duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of
San Ramon, State of California, on August 19, 1998.
SBE, INC.
By: /s/ Timothy J. Repp
________________________________
Timothy J. Repp
Title: Chief Financial Officer,
Vice President, Finance
and Secretary
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose
signature appears below constitutes and appoints William B. Heye and
Timothy J. Repp, and each or any one of them, his true and lawful
attorney-in-fact and agent, with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and
all capacities, to sign any and all amendments (including post-
effective amendments) to this Registration Statement, and to file the
same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto
said attorneys-in-fact and agents, and each of them, full power and
authority to do and perform each and every act and thing requisite and
necessary to be done in connection therewith, as fully to all intents
and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or any of them,
or their or his substitutes or substitute, may lawfully do or cause to
be done by virtue hereof.
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 and Chief August 19, 1998
__________________________ Executive Officer
William B. Heye, Jr. (Principal Executive
Officer)
/s/ Timothy J. Repp Vice President, August 19, 1998
__________________________ Finance, Chief
Timothy J. Repp Financial Officer and
Secretary (Principal
Financial Officer and
Accounting Officer)
6
<PAGE>
/s/ Raimon L. Conlisk Director August 19, 1998
__________________________
Raimon L. Conlisk
/s/ George E. Grega Director August 19, 1998
__________________________
George E. Grega
/s/ Ronald J. Ritchie Director August 19, 1998
__________________________
Ronald J. Ritchie
/s/ Randall L-W. Caudill Director August 19, 1998
__________________________
Randall L-W. Caudill
</TABLE>
7
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit Sequential Page
Number Description Number
<S> <C> <C>
5 Opinion of Cooley Godward LLP
23.1 Consent of PricewaterhouseCoopers LLP
23.2 Consent of Cooley Godward LLP is contained in
Exhibit 5 to this Registration Statement
24.1 Power of Attorney is contained on the signature
pages.
8
</TABLE>
<PAGE>
EXHIBIT 5
[COOLEY GODWARD LETTERHEAD]
CHRISTOPHER A. WESTOVER
415 693-2066
[email protected]
August 19, 1998
SBE, Inc.
4550 Norris Canyon Road
San Ramon, CA 94583
Re: Post-Effective Amendment No. 1 to Registration Statement on Form S-8
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 Post-
Effective Amendment No. 1 to the Registration Statement on Form S-8
(the "Registration Statement") to be filed by SBE, Inc., a Delaware
corporation (the "Company"), with the Securities and Exchange
Commission in connection with the registration under the Securities Act
of 1933, as amended, of shares of the Company's Common Stock, par value
$0.001 per share, (the "Shares") reserved for issuance pursuant to its
1991 Non-Employee Directors' Stock Option Plan, as amended (the
"Plan"), which Shares were registered by SBE, Inc., a California
corporation, prior to the reincorporation into Delaware.
In connection with this opinion, we have examined the Registration
Statement and related Prospectus, your Certificate 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 the
Plan, the Registration Statement and related Prospectus, 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 LLP
By: /s/ Christopher A. Westover
___________________________
Christopher A. Westover
9
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in these three registration
statements of SBE, Inc. on Form S-8 of our report dated November 20,
1997, except for Note 13 as to which the date is December 15, 1997,
on our audits of the consolidated financial statements and financial
statement schedule of SBE, Inc. as of October 31, 1997 and 1996 and for
the years ended October 31, 1997, 1996, and 1995.
/s/ PricewaterhouseCoopers LLP
- ------------------------------
San Francisco, California
August 19, 1998
10
