AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON SEPTEMBER 27, 2000
Registration No. 333-________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
___________
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
___________
SBE, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 3577 94-1517641
(State or other juris- (Primary Standard (I.R.S. Employer
diction of incorporation Industrial Classification Identification
or organization) Code Number) Number)
4550 NORRIS CANYON ROAD
SAN RAMON, CA 94583-1369
(925) 355-2000
(Address, including zip code, and telephone number, including
area code, of registrant's principal executive offices)
TIMOTHY J. REPP
CHIEF FINANCIAL OFFICER AND VICE PRESIDENT, FINANCE
4550 NORRIS CANYON ROAD
SAN RAMON, CA 94583-1369
(925) 355-2000
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
___________
Copies to:
CHRISTOPHER A. WESTOVER
JODIE M. BOURDET
COOLEY GODWARD LLP
ONE MARITIME PLAZA, 20TH FLOOR
SAN FRANCISCO, CA 94111
(415) 693-2000
___________
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
AS SOON AS PRACTICABLE AFTER THE REGISTRATION STATEMENT BECOMES EFFECTIVE.
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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,
check the following: ___X___.
If this Form is filed to register additional securities for an offering
Pursuant to Rule 462(b) under the Securities Act, check the following and list
the Securities Act registration statement number of the earlier effective
registration statement for the same offering: _______.
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
Under the Securities Act, check the following and list the Securities Act
registration statement number of the earlier effective registration statement
number for the same offering: _______.
If this Form is a post-effective amendment filed pursuant to Rule 462(d)
under the Securities Act, check the following box and list the Securities Act
registration number of the earlier effective registration statement for the same
offering: _______.
If delivery of the prospectus is expected to be made pursuant to Rule 434,
Check the following: _______.
================================================================================
CALCULATION OF REGISTRATION FEE
Title of Class Proposed Maximum Proposed Maximum Amount of
of Securities Amount to be Offering Price Aggregate Registration
to be Registered Registered per Share(1) Offering Price(1) Fee
---------------- ------------ ---------------- ---------------- ------------
Common Stock,
par value $0.001 316,101 $ 10.34 $ 3,268,484 $ 653.70
per share shares
================================================================================
(1) Estimated solely for the purpose of calculating the registration
fee based on the average of the high and low sales prices of the common stock on
the Nasdaq National Market on September 26, 2000.
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, as amended, or until the Registration Statement
shall become effective on such date as the Commission, acting pursuant to said
Section 8 (a), may determine.
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THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. THE
SELLING STOCKHOLDERS MAY NOT SELL THESE SECURITIES UNTIL THE REGISTRATION
STATEMENT CONTAINING THIS PROSPECTUS THAT WAS FILED WITH THE SECURITIES AND
EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS NOT AN OFFER TO SELL THESE
SECURITIES AND IT IS NOT SOLICITING AN OFFER TO BUY THESE SECURITIES IN ANY
STATE WHERE THE OFFER OR SALE IS NOT PERMITTED.
SUBJECT TO COMPLETION
(SEPTEMBER 27, 2000)
SBE, INC.
316,101 SHARES
COMMON STOCK
THE SELLING STOCKHOLDERS: The selling stockholders identified in this
prospectus are selling 316,101 shares of our
common stock. We are not selling any shares of
our common stock under this prospectus and will
not receive any of the proceeds from the sale of
shares by the selling stockholders
OFFERING PRICE: The selling stockholders may sell the shares of
common stock described in this prospectus in a
number of different ways and at varying prices.
We provide more information about how they may
sell their shares in the section titled "Plan of
Distribution" on page 12.
TRADING MARKET: Our common stock is listed on the Nasdaq National
Market under the symbol "SBEI." On September 26,
2000, the closing sale price of our common stock
as reported on the Nasdaq National Market, was
$10.34.
RISKS: INVESTING IN OUR COMMON STOCK INVOLVES A HIGH
DEGREE OF RISK. SEE "RISK FACTORS" BEGINNING ON
PAGE 5.
The shares offered or sold under this prospectus have not been approved by
the Securities and Exchange Commission or any state securities commission, nor
have these organizations determined that this prospectus is accurate or
complete. Any representation to the contrary is a criminal offense.
THE DATE OF THIS PROSPECTUS IS SEPTEMBER 27, 2000
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PROSPECTUS SUMMARY
The following is a summary of our business. You should carefully read the
section entitled "Risk Factors" in this prospectus, our Annual Report on Form
10-K for the year ended October 31, 1999 and our Quarterly Reports on Form 10-Q
for the quarters ended January 31, 2000, April 30, 2000, and July 31, 2000 for
more information on our business and the risks involved in investing in our
stock.
In addition to the historical information contained in this prospectus, this
prospectus contains forward-looking statements within the meaning of Section 27A
of the Securities Act of 1933 and Section 21E of the Exchange Act of 1934.
These statements may be identified by the use of words such as "expects,"
"anticipates," "intends," "plans" and similar expressions. The outcome of the
events described in these forward-looking statements is subject to risks and
actual results could differ materially. The sections entitled "Risk Factors"
beginning on page 6 of this prospectus, and "Management's Discussion and
Analysis of Financial Condition and Results of Operations" and "Business" in our
Annual Report and Quarterly Report contain a discussion of some of the factors
that could contribute to those differences.
OUR BUSINESS
OVERVIEW
SBE designs, markets, sells and supports high-speed intelligent
communications controller and software products for use in telecommunications
systems worldwide. Our products enable both traditional telecommunications
service providers and emerging telecommunications service providers to deliver
advanced communications products and services, which we believe help these
providers compete more effectively in today's highly competitive
telecommunications service market
We offer three families of high-speed communications controller products:
Highwire , WanXL and VMEbus. All of our products are "intelligent," containing
their own microprocessors, software and memory. This architecture allows these
communications controllers to offload many of the lower-level communications
tasks that would typically be performed by the host platform, improving overall
system performance. All three product lines are supported by communications
software developed by us and a variety of third party partners. All of our
products are sold primarily to original equipment manufacturers, or OEMs, that
incorporate our products into computer servers that are used to manage wireless,
wireline and Internet communications. These products are often customized for a
specific customer's application, and they support applications in a broad
spectrum of industrial and commercial markets.
Our newest product line is our Highwire family of telecommunications
controllers. The Highwire family provides high bandwidth intelligent
connectivity to servers designed to act as gateways and signaling points within
telecommunication networks. The Highwire coprocessing controllers enable
operators of wireline and wireless networks to deliver services such as caller
identification, voice messaging and customized routing and billing, as well as
digital wireless services such as Personal Communications Systems (PCS) and
Global System for Mobile Telecommunications (GSM). The Highwire products are
designed for integration with standard server platforms to enable traditional
carriers and new telecommunications service providers to pursue cost-reduced and
performance-enhanced network architectures based on Internet Protocol (IP),
Asynchronous Transfer Mode (ATM) or other "packet" technologies. We are
focusing substantial resources on the continued development, marketing and sales
activities for our Highwire products.
Our WanXL products are designed to move data between locations within
applications that require high-performance and high-speed communications
capability, such as financial data feeds, private network services and video
feeds. Our VMEbus products are designed for industrial applications requiring
high reliability, like financial feeds and private network services, and are
used in wireline, wireless and satellite-based communications networks.
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RECENT ACQUISITION
In July 2000, we acquired all of the outstanding shares of LAN Media
Corporation, a provider of communications adapter products, in exchange for
316,101 shares of our common stock. We also assumed outstanding options to
purchase common stock of LAN Media. Such options are exercisable for up to
108,899 shares of our common stock. For financial reporting purposes, it is
intended that the LAN Media acquisition be accounted for as a "pooling of
interests."
RISK FACTORS
You should carefully consider the risks described below before making an
investment decision. The risks and uncertainties described below are not the
only ones facing our company. Additional risks and uncertainties not presently
known to us or that we currently deem immaterial also may impair our business
operations. If any of the following risks actually occur, our business could be
harmed. In such case, the trading price of our common stock could decline, and
you may lose all or part of your investment.
RISKS RELATED TO OUR BUSINESS
WE DEPEND AND EXPECT TO REMAIN DEPENDENT ON A SMALL NUMBER OF CUSTOMERS,
WHICH CAUSES OUR RESULTS TO FLUCTUATE.
We depend, and expect to remain dependent, on a small number of OEM
customers, particularly Compaq Computer Corporation. If any of our major
customers, especially Compaq, reduces orders for our products, we could lose
revenues and suffer damage to our business reputation. Sales to Compaq Computer
accounted for 73% of our net sales in the nine months ended July 31, 2000 and
70%, 49% and 35% of our net sales in fiscal 1999, 1998 and 1997. Orders by our
OEM customers are affected by factors such as new product introductions, product
life cycles, inventory levels, manufacturing strategy, contract awards,
competitive conditions and general economic conditions.
OUR QUARTERLY RESULTS OF OPERATIONS WILL FLUCTUATE AND MAY FAIL TO MEET THE
EXPECTATIONS OF SECURITIES ANALYSTS OR INVESTORS, CAUSING OUR STOCK PRICE TO
FALL.
Our quarterly operating results have fluctuated significantly in the past
and will fluctuate significantly in the future. We generally do not operate
with a significant order backlog, and a substantial portion of our revenues in
any quarter is derived from orders booked in that quarter. Further, it is
likely that in some future quarter our revenues or operating results will be
below the expectations of public market analysts and investors. In such event,
the price of our common stock is likely to decrease. Our operating results
fluctuate due to several factors, including:
-- variations in the timing and size of, or cancellations or reductions of,
customer orders and shipments;
-- variations in the availability, cost and quality of components from our
suppliers, particularly from our single source suppliers and suppliers
of scarce components;
-- competitive factors, including pricing, availability and demand for
competing products;
-- constraints on our ability to have our products manufactured by,
and variations in manufacturing yields from, current and future
manufacturing partners;
-- changes in our sales prices;
-- changes in the mix of products with different gross margins;
-- write offs of our component inventories due to obsolescence;
-- hiring and loss of personnel, particularly in engineering and sales and
marketing;
-- failure to timely or successfully complete the integration of LAN
Media's operations with ours; and
-- product defect claims and associated warranty expenses.
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IF OUR HIGHWIRE FAMILY OF PRODUCTS DOES NOT ACHIEVE A SIGNIFICANT DEGREE OF
MARKET ACCEPTANCE, OUR BUSINESS WILL BE SIGNIFICANTLY HARMED.
Since late 1998, we have focused a significant portion of our research and
development, marketing and sales efforts on our new Highwire products. If the
Highwire products or other new products developed by us do not gain market
acceptance, our results of operations and financial condition would be harmed.
These products are designed to operate in communications service equipment in
wireline, wireless and Internet networks. These networks are complex and are
evolving rapidly. Features that our products do not have may become desirable
or become product requirements and could prevent potential customers from
using our products.
IF WE ARE UNABLE TO SUCCESSFULLY INTEGRATE LAN MEDIA'S OPERATIONS WITH OUR OWN,
OUR OPERATING RESULTS WOULD BE HARMED.
In July 2000, we completed our acquisition of LAN Media Corporation. We
Are in the process of integrating LAN Media's operations with our operations.
We have no experience integrating acquired operations into our own. We may fail
to successfully operate LAN Media or to integrate it with our existing business
on schedule or within our budget, which could result in diversion of management
time and attention, loss of LAN Media employees, loss of customers and
additional expenses.
OUR DEPENDENCE ON XETEL CORPORATION FOR ALL OF OUR MANUFACTURING MAY CAUSE A
SIGNIFICANT DELAY IN OUR ABILITY TO FILL ORDERS AND LIMIT OUR ABILITY TO ASSURE
PRODUCT QUALITY AND CONTROL COSTS.
In December 1996, we sold all of our manufacturing operations to XeTel
Corporation, a contract manufacturing company headquartered in Austin, Texas. At
the same time, we entered into an exclusive manufacturing service agreement
under which XeTel is to manufacture all of our products until at least December
2000. We may not be able to negotiate an extension to our XeTel agreement on
favorable terms, if at all. We also may not be successful in forming
alternative commercially attractive manufacturing arrangements. If we are
unable to negotiate an extension or form alternative arrangements, we will be
unable to deliver high-quality products to our customers on a timely basis and
to adequately control costs.
In addition, our reliance on XeTel involves several additional risks,
including reduced control over manufacturing costs, delivery times, reliability
and product quality. In the past, XeTel has suffered inadequate production
yields, delays in its shipments and inability to obtain parts, and these events
could recur in the future. These events could cause us to experience lost
revenues, increased costs and delays in, cancellations or rescheduling of orders
or shipments, any of which would harm our business.
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.
We currently purchase numerous components from single source suppliers for
which alternative sources are not readily available. For example, the chipsets
used in our products are currently available only from Motorola. Any delay or
interruption in the supply of these or other components could impair our ability
to deliver our products, harm our reputation and cause a reduction in our
revenues. Our single source suppliers could enter into exclusive agreements
with our competitors, increase their prices, refuse to sell their products to us
or discontinue the products that we purchase. Even to the extent alternative
suppliers are available to us, identifying them and entering into arrangements
with them is difficult and time consuming, and they may not meet our quality
standards. We may not be able to obtain sufficient quantities of required
components on the same or substantially the same terms. Additionally,
consolidations among our suppliers could result in other sole source suppliers.
Any increase in the cost of components that we use in our products could make
our products less competitive and lower our margins.
OUR PRODUCTS MAY CONTAIN MANUFACTURING OR DESIGN DEFECTS OR MAY NOT MEET OUR
CUSTOMERS' PERFORMANCE CRITERIA, WHICH COULD HARM OUR CUSTOMER RELATIONSHIPS,
INDUSTRY REPUTATION, REVENUES AND PROFITABILITY.
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We have experienced manufacturing quality problems with our products in the
past and may have similar problems in the future. As a result of these
problems, we have replaced components in some products in accordance with our
product warranties. Our product warranties typically last usually one to two
years. As a result of manufacturing or design defects, we may be required to
repair or replace a substantial number of products under our product warranties.
Further, our customers may discover latent defects in our products that were not
apparent when the warranty period expired. These defects may also cause repair
or replacement expenses, the loss of customers or damage to our reputation.
OUR FUTURE SUCCESS DEPENDS ON OUR ABILITY TO ATTRACT AND RETAIN QUALIFIED
PERSONNEL.
We are highly dependent on the technical, management, marketing and sales
skills of many of our employees. In addition, we need to attract and retain
additional technical and other personnel. Competition for qualified personnel
in our industry, and in the San Francisco Bay Area generally, is intense. If we
fail to retain our key personnel or to adequately attract and retain additional
skilled personnel, our business will be harmed. We cannot assure you that we
will be successful in retaining our key employees or that we can attract or
retain additional skilled personnel as required. We do not have life insurance
on the lives of any of our key employees.
WE MAY BE UNABLE TO PROTECT OUR INTELLECTUAL PROPERTY, WHICH COULD REDUCE OR
ELIMINATE ANY COMPETITIVE ADVANTAGE WE HAVE.
Our success will depend, in part, on our ability to protect our
intellectual property. We rely primarily on a combination of copyright,
trademark and trade secret laws to protect our proprietary technologies and
processes. We do not have any patents other than four United States patents we
acquired as a result of the LAN Media acquisition. Patent, copyright, trademark
and trade secret laws may not be sufficient to safeguard the proprietary
technology underlying our products. Our existing and future patents,
copyrights, trademarks and trade secrets may be challenged, invalidated or
circumvented, and may not provide meaningful protection to us. The failure of
any of these proprietary rights to provide protection for our technology might
make it easier for our competitors to offer similar products.
We generally enter into confidentiality and assignment of rights to
inventions agreements with our employees, and confidentiality and non-disclosure
agreements with our business partners, and generally control access to and
distribution of our documentation and other proprietary information. Despite
these precautions, it may be possible for a third party to copy or otherwise
obtain and use our products and technology without authorization, develop
similar technology independently or design around our patents. In addition,
effective patent, copyright, trademark and trade secret protection may be
unavailable or limited outside of the United States, Europe and Japan. We may
not be able to obtain any meaningful intellectual property protection in such
countries and territories. Moreover, litigation may be necessary in the future
to enforce our intellectual property rights, to protect our trade secrets or to
determine the validity and scope of proprietary rights of others, including our
customers. Litigation of this type could result in substantial costs and
diversion of our resources.
RISKS ASSOCIATED WITH OUR INDUSTRY
THE MARKET FOR COMMUNICATIONS CONTROLLER PRODUCTS IS HIGHLY COMPETITIVE, AND OUR
FAILURE TO COMPETE EFFECTIVELY COULD REDUCE OUR REVENUES AND MARGINS.
We compete directly with traditional vendors of communications controllers,
wide area network adapters, specialized communications products, communications
software and application-specific communications solutions. We also compete
with suppliers of routers, hubs, network interface cards and other data
communications products. In the future, we expect competition from companies
offering client/server access solutions based on emerging technologies such as
switched digital telephone services. In addition, we may encounter increased
competition from operating system and network operating system vendors to the
extent such vendors include full communications capabilities in their products.
We may also encounter future competition from telephony service providers (such
as AT&T or the regional Bell operating companies) that may offer communications
services through their telephone networks.
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Competition with respect to any of our products could result in price
reductions, and therefore reduction of revenues and margins. Many of our
current and potential competitors have greater financial, marketing, technical
and other resources than we do. We cannot assure you that we will be able to
compete successfully with our existing competitors or will be able to compete
successfully with new competitors.
IF WE ARE UNABLE TO KEEP PACE WITH RAPID TECHNOLOGICAL CHANGE THAT CHARACTERIZES
OUR INDUSTRY, OUR BUSINESS WOULD SUFFER.
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 ISDN
(Integrated Services Digital Network), Frame Relay, ADSL (Asymmetric Digital
Subscriber Line) and ATM (Asynchronous Transfer Mode). We cannot assure you
that we will be successful in identifying, developing, manufacturing and
marketing new products or enhancing our existing products. In addition, we
cannot assure you that services, products or technologies developed by others
will not render our products noncompetitive or obsolete.
OUR INDUSTRY IS CHARACTERIZED BY VIGOROUS PROTECTION AND PURSUIT OF INTELLECTUAL
PROPERTY RIGHTS. THIS COULD CAUSE US TO BECOME INVOLVED IN COSTLY AND LENGTHY
LITIGATION, WHICH COULD SUBJECT US TO LIABILITY, PREVENT US FROM SELLING OUR
PRODUCTS AND FORCE US TO REDESIGN OUR PRODUCTS.
The communications industry is characterized by vigorous protection and
pursuit of intellectual property rights. We may receive in the future notices
of claims of infringement of other parties' intellectual property rights. As a
result of any such claim, we could be required to withdraw products from the
market or redesign products offered for sale or under development. Regardless
of whether any such claim is resolved in a manner adverse to us, we would likely
incur significant costs and diversion of our resources with respect to the
defense of such claims. To address any potential claims or actions asserted
against us, we may seek to obtain a license under a third party's intellectual
property rights. Under such circumstances, a license may not be available on
commercially reasonable terms or at all.
RISKS ASSOCIATED WITH THIS OFFERING
THE MARKET PRICE FOR OUR COMMON STOCK IS LIKELY TO BE VOLATILE AND YOU MAY NOT
BE ABLE TO RESELL YOUR SHARES AT OR ABOVE YOUR PURCHASE PRICE.
The market price of our common stock has been subject to wide fluctuations
and is likely to be volatile in the future. The market price of our common
stock could fluctuate for many reasons, including:
-- our financial performance or the performance of our competitors;
-- technological innovations or other trends or changes in the
communications industry;
-- the introduction of new products by us or our competitors;
-- the arrival or departure of key personnel;
-- acquisitions, strategic alliances or joint ventures involving us or our
competitors;
-- changes in estimates of our performance or recommendations by securities
analysts;
-- decisions by major participants in the communications industry not to
purchase products from us or to pursue alternative technologies;
-- decisions by investors to de-emphasize investment categories, groups or
strategies that include our company or industry; and
-- market conditions in the industry, the financial markets and the economy
as a whole.
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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 prices of 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. When the market price of a company's stock drops
significantly in a short time period, stockholders often institute securities
class action lawsuits against the company. A lawsuit against us could cause
us to incur substantial costs and could divert the time and attention of our
management and other resources.
DELAWARE LAWS AND PROVISIONS IN OUR CHARTER DOCUMENTS CONTAIN PROVISIONS THAT
COULD DELAY OR PREVENT A CHANGE IN CONTROL.
We are subject to the Delaware anti-takeover laws, which may delay or deter
an acquisition of SBE. These laws prevent us from engaging in a merger or sale
of more than 10% of our voting stock with any stockholder, including all
affiliates and associates of any stockholder, who owns 15% or more of our
outstanding voting stock, for three years following the date that such
stockholder acquired 15% or more of our voting stock, unless:
-- our board of directors approves the transaction where the stockholder
acquires 15% or more of our voting stock;
-- after the transaction where the stockholder acquires 15% or more of
our voting stock, the stockholder owns at least 85% of our outstanding
voting stock, excluding shares owned by directors, officers and
employee stock plans in which employee participants do not have the
right to determine confidentially whether shares held under the plan
will be tendered in an exchange or tender offer; or
-- on or after this date, the merger or sale is approved by the board of
directors and the holders of at least two thirds of the outstanding
voting stock that is not owned by the stockholder.
In addition, our certificate of incorporation and bylaws include a number
of provisions that may deter or impede hostile takeovers or changes of control
of management. These provisions include:
-- a board of directors classified into three classes of directors with
staggered three-year terms;
-- the authority of the board of directors to issue up to 2,000,000
shares of preferred stock, and to determine the price, rights,
preferences and privileges of these shares, without stockholder
approval;
-- elimination of the ability of stockholders to act by written consent
instead of at a duly called meeting of stockholders; and
-- the indemnification of officers and directors against losses incurred
during investigations and legal proceedings resulting from their
service to SBE.
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USE OF PROCEEDS
We will not receive any of the proceeds from the sale of the shares of
common stock offered by the selling stockholders.
DIVIDEND POLICY
We have never declared or paid any cash dividends on our capital stock. We
intend to retain any future earnings to support operations and to finance the
growth and development of our business and we do not anticipate paying cash
dividends for the foreseeable future.
WHERE YOU CAN GET 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. You may read and copy these reports, proxy statements and other
information at the SEC's public reference rooms at Room 1024, 450 Fifth Street,
N.W., Washington, D.C., as well as at the SEC's regional offices at 500 West
Madison Street, Suite 1400, Chicago, Illinois 60661 and 7 World Trade Center,
Suite 1300, New York, NY 10048. You can request copies of these documents by
writing to the SEC and paying a fee for the copying cost. Please call the SEC at
1-800-SEC-0330 for more information about the operation of the public reference
rooms. Our SEC filings are also available at the SEC's website at
"http://www.sec.gov." In addition, you can read and copy our SEC filings at the
office of the National Association of Securities Dealers, Inc. at 1735 "K"
Street, Washington, D.C. 20006.
The SEC allows us to "incorporate by reference" information that we file
with them, 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, and information that we file later with
the SEC will automatically update and supersede this information. We incorporate
by reference the documents listed below and any future filings we will make with
the SEC under Section 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act
of 1934:
- Annual report on Form 10-K for the year ended October 31, 1999;
- Quarterly report on Form 10-Q for the quarter ended January 31, 2000;
- Quarterly report on Form 10-Q for the quarter ended April 30, 2000;
- Quarterly report on Form 10-Q for the quarter ended July 31, 2000;
- Current report on Form 8-K, filed July 28, 2000;
- Ammended report on Form 8-K/A filed September 27, 2000;
- The proxy statement from our Annual Meeting of Stockholders held on March
23, 2000; and
- The description of the common stock contained in our registration
statement on Form 8-A.
You may request a copy of these filings at no cost, by writing or
telephoning us at the following address:
SBE, Inc.
4550 Norris Canyon Road
San Ramon, CA 94583-1369
Attention: Chief Financial Officer
(925) 355-2000
This prospectus is part of a registration statement we filed with the SEC.
You should rely only on the information incorporated by reference or provided in
this prospectus and the registration statement. We have authorized no one to
provide you with different information. You should not assume that the
information in this prospectus is accurate as of any date other than the date on
the front of the document.
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SELLING STOCKHOLDERS
In connection with our acquisition of LAN Media Corporation, we issued to
all of the selling stockholders shares of our common stock, and we agreed to
register all of those shares for resale. We also agreed to use reasonable
efforts to keep the registration statement effective until the earlier of (a)
the date the shares of common stock offered under this prospectus have been sold
to the public and (b) January 14, 2001, plus the amount of time, if any, that we
suspend the selling stockholders' rights to make sales of their shares. Our
registration of the shares of common stock does not necessarily mean that the
selling stockholders will sell all or any of the shares. The selling
stockholders' shares are subject to a restriction on resale that lapses as to
25% of their shares on October 13, 2000, 25% of their shares on January 11,
2000, 25% of their shares on April 10, 2001, and the remainder of their shares
on July 14, 2001.
The following table sets forth certain information regarding the beneficial
ownership of our common stock, as of July 31, 2000, by each of the selling
stockholders. The information provided in the table below with respect to each
selling stockholder has been obtained from that selling stockholder. Except as
otherwise disclosed below, none of the selling stockholders has, or within the
past three years has had, any position, office or other material relationship
with us. Because the selling stockholders may sell all or some portion of the
shares of common stock beneficially owned by them, we cannot estimate the number
of shares of common stock that will be beneficially owned by the selling
stockholders after this offering. In addition, the selling stockholders may
have sold, transferred or otherwise disposed of, or may sell, transfer or
otherwise dispose of, at any time or from time to time since the date on which
they provided the information regarding the shares of common stock beneficially
owned by them, all or a portion of the shares of common stock beneficially owned
by them in transactions exempt from the registration requirements of the
Securities Act of 1933.
Unless otherwise noted, each person or group identified possesses sole
voting and investment power with respect to shares,subject to community property
laws where applicable. None of the share amounts set forth below represents more
than 1% of our outstanding stock as of July 31, 2000, adjusted as required by
rules promulgated by the SEC.
<TABLE>
<CAPTION>
NUMBER OF SHARES BEING SHARES HELD
SELLING STOCKHOLDER SHARES OFFERED IN ESCROW
--------------------------- --------- ------------ -----------
<S> <C> <C> <C>
Ronald C. Crane 224,838 224,838 22,484
David R. Boggs 22,797 22,797 2,280
William S. Gunn 1,236 1,236 124
David E. DuPuy 37,667 37,667 3,767
John Marman 20,774 20,774 2,077
Robert Rolla 8,789 8,789 879
</TABLE>
In connection with the LAN Media acquisition, Ronald C. Crane and David R.
Boggs entered into employment agreements with us, pursuant to which Mr. Crane
serves as Vice President, WAN Engineering, and Mr. Boggs serves as Director, WAN
Engineering.
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PLAN OF DISTRIBUTION
The shares of common stock may be sold from time to time by the selling
stockholders 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 stockholders" includes
donees, pledgees, transferees and other successors in interest selling shares
received from a selling stockholder after the date of this prospectus as a gift,
pledge, partnership distribution or other non-sale transfer. Upon receiving
notice from a selling stockholder 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 stockholders 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 National Market;
- in the over-the-counter market;
- in private transactions;
- through options;
- 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 stockholders. Alternatively, the selling
stockholders may from time to time offer shares of common stock to or through
underwriters, broker/dealers or agents. The selling stockholders 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. 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. We have agreed to indemnify each selling stockholder against
certain liabilities, including liabilities arising under the Securities Act of
1933. The selling stockholders 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 may be sold under Rule 144 rather than
pursuant to this prospectus. The selling stockholders may elect to not sell the
shares they hold. The selling stockholders may transfer, 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, 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 stockholder and any other
person participating in a distribution will be subject to the Securities
Exchange Act of 1934,which may limit the timing of purchases and sales of common
stock by the selling stockholders 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.
All expenses of this registration will be paid by us. These expenses include
the SEC's filing fees and fees under state securities or "blue sky" laws.
LEGAL MATTERS
For the purpose of this offering, Cooley Godward LLP, San Francisco,
California, is giving an opinion as to the validity of the common stock offered
by this prospectus.
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EXPERTS
The financial statements incorporated in this Registration Statement by
reference to the Annual Report on Form 10-K for the year ended October 31, 1999,
have been so incorporated in reliance on the report of PricewaterhouseCoopers
LLP, independent accountants, given the authority of said firm as experts in
auditing and accounting.
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We have not authorized any dealer, sales person or other person to give any
information or to make any representations other than those contained in this
prospectus or any prospectus supplement. You must not rely on any unauthorized
information. This prospectus is not an offer of these securities in any state
where an offer is not permitted. The information in this prospectus is current
as of September 27, 2000. You should not assume that this prospectus is
accurate as of any other date.
316,101 SHARES
COMMON STOCK
PROSPECTUS
SBE, INC.
SEPTEMBER 27, 2000
TABLE OF CONTENTS PAGE
Prospectus Summary 4
Risk Factors 5
Use of Proceeds. 10
Dividend Policy 10
Where You Can Find More Information 10
Selling Stockholders 11
Plan of Distribution 12
Legal Matters. 12
Experts. 13
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the costs and expenses, all of which will be
paid by us, in connection with the distribution of our common stock being
registered. All amounts are estimated, except the SEC registration fee:
SEC registration fee $ 654
Accounting fees 10,000
Legal fees and expenses 30,000
Printing and engraving 20,000
Miscellaneous 5,000
-----
Total $ 65,654
========
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 stockholders have entered into an agreement with us whereby each
selling stockholder will severally (but not jointly and pro rata with the other
selling stockholders) indemnify and hold harmless our officers and directors
against any losses, claims, damages, liabilities or actions (joint or several)
to which they may become subject under the 1933 Act, the 1934 Act or other
federal or state law, arising out of or based upon any untrue statement or
alleged untrue statement of a material fact contained in this registration
statement, including any preliminary prospectus or final prospectus contained
therein or any amendments or supplements thereto, or arising out of or 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 the context
in which made, not misleading; provided that such untrue statement or alleged
untrue statement or omission or alleged omission was made in reliance upon and
in conformity with written information furnished by such selling shareholder
expressly for use in the registration by such selling shareholder, and provided,
however, that such selling shareholder shall not be liable for any reimbursement
or indemnification thereunder in excess of the gross proceeds (less underwriting
discounts and commissions) received by such selling shareholder in the offering.
Each selling shareholder will reimburse each officer or 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. The agreement
also sets forth certain procedures that will apply in the event of a claim for
indemnification thereunder.
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ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
Exhibit
Number Description of Document
5.1 Opinion of Cooley Godward LLP.
23.1 Consent of PricewaterhouseCoopers LLP, independent auditors.
23.2 Consent of Cooley Godward LLP (reference is made to Exhibit 5.1).
24.1 Power of Attorney. Reference is made to the signature page.
ITEM 17. UNDERTAKINGS.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to our directors, officers, and controlling persons
pursuant to the provisions described in Item 15 or otherwise, we have been
advised 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 us of
expenses incurred or paid by one of our directors, officers, or controlling
persons 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, we 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.
We hereby undertake:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement 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;
(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; and
(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.
We hereby undertake that, for purposes of determining any liability under
the Securities Act of 1933, each filing of our annual report pursuant to Section
13(a) or 15(d) of the Securities Exchange Act of 1934 (and, where applicable,
each filing of an employee benefit plan's annual report pursuant to Section
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.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Registrant certifies that it has reasonable grounds to believe it meets all of
the requirements for filing on Form S-3 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 the 27th day of
September, 2000.
SBE, INC.
By:/s/Timothy J. Repp
Timothy J. Repp
Chief Financial Officer
and Vice President, Finance
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, or
either of them, each with the power of substitution, his attorney-in-fact, to
sign any amendments to this Registration Statement (including post-effective
amendments), with exhibits thereto and other documents in connection therewith,
with the Securities and Exchange Commission, hereby ratifying and confirming all
that each of said attorneys-in-fact, or his substitute or substitutes, may do or
cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed below by the following persons in
the capacities and on the dates indicated.
SIGNATURE TITLE DATE
--------- ----- ----
/s/William B. Heye, Jr. President, Chief Executive September 27, 2000
William B. Heye, Jr. Officer and Director
(Principal Executive Officer)
/s/Timothy J. Repp Vice President, Finance, September 27, 2000
Timothy J. Repp Chief Financial Officer and
Secretary (Principal Financial
and Accounting Officer)
/s/Raimon L. Conlisk Director, Chairman of the September 27, 2000
Raimon L. Conlisk Board
/s/Ronald J. Ritchie Director September 27, 2000
Ronald J. Ritchie
/s/Randall L-W Caudill Director September 27, 2000
Randall L-W. Caudill
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EXHIBIT INDEX
Exhibit No. Description of Document Page No.
5.1 Opinion of Cooley Godward LLP 19
23.1 Consent of PricewaterhouseCoopers LLP 20
23.2 Consent of Cooley Godward LLP (reference is made to Exhibit 5.1) 19
24.1 Power of Attorney (reference is made to the signature page) 17
18
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