As filed with the Securities and Exchange Commission on September 13, 2000
Registration No. 333-_________
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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SBE, INC.
(Exact name of registrant as specified in its charter)
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DELAWARE 94-1517641
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(State of Incorporation) (I.R.S. Employer Identification No.)
4550 NORRIS CANYON ROAD
SAN RAMON, CA 94583
(Address of principal executive offices)
LAN MEDIA CORPORATION 1998 STOCK OPTION/STOCK ISSUANCE PLAN
(Full title of the plans)
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)
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Copies to:
CHRISTOPHER A. WESTOVER, ESQ.
COOLEY GODWARD LLP
ONE MARITIME PLAZA, 20TH FLOOR
SAN FRANCISCO, CALIFORNIA 94111
(415) 693-2000
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Exhibit Index at Page 6
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<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
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TITLE OF PROPOSED MAXIMUM PROPOSED MAXIMUM
SECURITIES TO BE AMOUNT TO BE OFFERING PRICE PER AGGREGATE AMOUNT OF
REGISTERED REGISTERED SHARE (1) OFFERING PRICE (1) REGISTRATION FEE
------------------------ --------------- ------------------ ------------------- ------------------
<S> <C> <C> <C> <C>
Stock Options and Common 108,956 shares $ 14.81 $ 1,613,638 $ 323.00
Stock (par value $.001)
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<FN>
(1) Estimated solely for the purpose of calculating the amount of the registration fee pursuant to Rule 457(c)
and (h)(1) under the Securities Act of 1933, as amended (the "Act"). The offering price per share and
aggregate offering price are based upon the weighted average exercise price for shares subject to
outstanding options granted under the LAN Media Corporation 1998 Stock Option/Stock Issuance plan.
</TABLE>
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by SBE, Inc. (the "Company") with the
Securities and Exchange Commission (the "Commission") are incorporated by
reference into this Registration Statement:
(a) The Company's Annual Report on Form 10-K for the fiscal year ended
October 31, 1999, filed with the Commission on January 31, 2000.
(b) The Company's quarterly reports on Form 10-Q for the quarters ended
January 31, 2000, and April 30, 2000, filed with the Commission on March 10,
2000, and June 14, 2000, respectively.
(c) The Company's Current Report on Form 8-K filed with the Commission on
July 28, 2000.
(d) The description of the Company's Common Stock set forth in a
registration statement filed under the Securities and Exchange Act of 1934, as
amended (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.
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
Indemnity.
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.
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EXHIBITS
EXHIBIT
NUMBER
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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 page
99.1 LAN Media Corporation 1998 Stock Option/Stock Issuance Plan
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) ( 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.
(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)(1)(i) and (a)(1)(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.
3
<PAGE>
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.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of San San Ramon, State of California, on September 13,
2000.
SBE, INC.
By:/s/ Timothy J. Repp
Timothy J. Repp
Title: Vice President, Finance, Chief
Financial Officer 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, 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 and Chief Executive September 13, 2000
William B. Heye, Jr. Officer (Principal Executive
Officer)
/s/ Timothy J. Repp Vice President, Finance, Chief September 13, 2000
Timothy J. Repp Financial Officer and Secretary
Principal Financial Officer and
Accounting Officer)
/s/ Raimon L. Conlisk Director , Chairman of the September 13, 2000
Raimon L. Conlisk Board
/s/ Ronald J. Ritchie Director September 13, 2000
Ronald J. Ritchie
/s/ Randall L-W. Caudill Director September 13, 2000
Randall L-W. Caudill
5
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EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION SEQUENTIAL PAGE NUMBERS
5 Opinion of Cooley Godward LLP 7
23.1 Consent of PricewaterhouseCoopers LLP 8
23.2 Consent of Cooley Godward LLP is contained in Exhibit 5 to this
Registration Statement 7
24.1 Power of Attorney is contained on the signature page 5
99.1 LAN Media Corporation 1998 Stock Option/Stock Issuance Plan 9
6
