AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MAY 23, 2002
Registration No. 33-
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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)
2305 CAMINO RAMON, SUITE 200
SAN RAMON, CA 94583
(925) 355-2000
(Address, including zip code, and telephone number, including
area code of Registrant's principal executive offices)
DAVID W. BRUNTON
CHIEF FINANCIAL OFFICER, VICE PRESIDENT, FINANCE
AND SECRETARY
2305 CAMINO RAMON, SUITE 200
SAN RAMON, CA 94583
(925) 355-2000
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
----------------
Copies to:
CHRISTOPHER A. WESTOVER
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.
If the only securities being registered on this form are being offered pursuant
to dividend or interest reinvestment plans, please check the following
box. ___
If any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, as amended (the "Securities Act"), other than securities offered only in
connection with dividend or interest reinvestment plans, check the following
box. X
If this form is filed to register additional securities for an offering pursuant
to Rule 462(b) under the Securities Act, please check the following box and list
the Securities Act registration statement number of the earlier effective
registration statement for the same offering. __
If this form is a post-effective amendment filed pursuant to Rule 462(c) under
the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. __
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. __
CALCULATION OF REGISTRATION FEE
Title of Class of Proposed Maximum Proposed Maximum
Securities to be Offering Aggregate Amount of
Registered Amount to be Registered Price per Share (1) Offering Price (1) Registration Fee
----------------------- ----------------------- -------------------- ------------------- -----------------
COMMON STOCK, par 678,096 shares $ 1.97 $ 1,335,849.12 $ 122.90
value $0.001 per share
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c) of the Securities Act based upon the average of the
high and low prices of our Common Stock as reported the Nasdaq SmallCap
Market on May 21, 2002.
___________________
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 which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. 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.
PROSPECTUS
SBE, INC.
2305 CAMINO RAMON, SUITE 200
SAN RAMON, CALIFORNIA 94583
TELEPHONE: (925) 355-2000
678,096 SHARES
COMMON STOCK
THE SELLING STOCKHOLDERS: The selling stockholders identified in this
prospectus are selling up to 678,096 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
stockholder.
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 10.
TRADING MARKET: Our common stock is listed on the Nasdaq SmallCap Market under
the symbol "SBEI." On May 21, 2002, the last sale price of our common
stock, as reported on the Nasdaq SmallCap Market, was $2.02.
RISKS: INVESTING IN OUR COMMON STOCK INVOLVES A HIGH DEGREE OF RISK. SEE "RISK
FACTORS" BEGINNING ON PAGE 3.
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 MAY 23, 2002.
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TABLE OF CONTENTS PAGE
Prospectus Summary 2
Risk Factors 3
Use of Proceeds 9
Dividend Policy 9
Selling Stockholders 9
Plan of Distribution 10
Legal Matters 11
Experts 11
Where You Can Get More Information 11
PROSPECTUS SUMMARY
The following is a summary of our business. You should carefully read the
section entitled "Risk Factors" in this prospectus and our annual report on Form
10-K for the fiscal year ended October 31, 2001 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 3 of this prospectus, and "Management's Discussion and
Analysis of Financial Condition and Results of Operations" and "Business" in our
annual report on Form 10-K for the fiscal year ended October 31, 2001, filed on
January 25, 2002 with the Securities and Exchange Commission, and our quarterly
report on Form 10-Q for the quarter ended January 31, 2002, filed on March 18,
2002 with the Securities and Exchange Commission, contain a discussion of some
of the factors that could contribute to those differences.
OUR BUSINESS
OVERVIEW
SBE, Inc. designs, markets, sells and supports high-speed intelligent
communications controller and software products for use in telecommunications
systems worldwide. Our products enable both traditional 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. Our products
include WAN interface adapters and high performance communications controllers
for workstations, media gateways, routers, internet access devices, home
location registers and data messaging applications.
Founded in 1961 as Linear Systems, Inc., we evolved from a supplier of
radio communications equipment to a provider of comprehensive network
communications solutions for original equipment manufacturers and end users.
Over the last two years, we expanded our product lines to include our Highwire
family of high performance 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 Intelligent Network and Advanced Intelligent Network services such as
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Caller ID, voice messaging, personal number calling, Service Provider Local
Number Portability and customized routing and billing, as well as digital
wireless services such as Personal Communications Systems and Global System for
Mobile Telecommunications. The Highwire products are designed for integration
with standard server platforms that will enable traditional carriers and new
telecom entrants to pursue cost-reduced and performance-enhanced network
architectures based on Internet Protocol, Asynchronous Transfer Mode or other
"packet" technologies. We are focusing substantial resources on the continued
development, marketing and sales activities for the Highwire products.
On July 14, 2000, we acquired LAN Media Corporation, a privately-held wide
area networking adapter company headquartered in Sunnyvale, California. In the
acquisition, we issued approximately 316,000 shares of our common stock for all
of LAN Media's outstanding common stock. The acquisition was accounted for as a
pooling of interests under Accounting Principles Board Opinion No. 16.
We market, sell and support four lines of high-speed intelligent
communications controller products: Highwire, Wan Adapter, WanXL and VMEbus. All
of these products are sold primarily to original equipment manufacturers. These
products are often customized for a specific customer's application, and they
support applications in a broad spectrum of industrial and commercial markets.
Markets and application areas that our products serve include cellular network
data communication, data networking, process control, medical imaging,
CAE/automated test equipment, military defense systems and telecommunications
networks.
Our Highwire communications controllers leverage our core technology
strength into the telecommunications applications market. Our Wan Adapter
products are focused on the need for wide area network connectivity in customer
premise equipment such as routers, firewalls, virtual private network servers
and network switches. Our WanXL products are designed for applications that
require high-performance and high-speed communications capability such as
transmission of financial data and real time video data. Our VMEbus products
are designed for high reliability industrial applications and are used in many
wireline, wireless, and satellite based communications networks. All of these
products, except the Wan Adapter products, are "intelligent," containing their
own microprocessors 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. The Wan Adapter products are designed to be low cost and high
performance connectivity products that provide developers of customer premise
equipment with an easy to integrate WAN interface for their systems. All four
product lines are supported by communications software developed both by us and
a variety of third party partners.
RISK FACTORS
An investment in our common stock involves a high degree of risk. We
operate in a dynamic and rapidly changing environment that involves numerous
risks and uncertainties. You should carefully consider the factors described
below in addition to other information contained in this prospectus or
incorporated by reference into this prospectus before purchasing our shares.
Additional risks and uncertainties not presently known to us or that we
currently see as immaterial may also impair our business operations.
RISKS ASSOCIATED WITH OUR BUSINESS
WE DEPEND ON A LIMITED NUMBER OF CUSTOMERS FOR A SIGNIFICANT PORTION OF OUR
SALES.
Most of our sales are derived from a limited number of customers. A
significant reduction in orders from any of our customers, particularly Compaq
Computer, would have a material adverse effect on our operating results and
financial condition. In fiscal 2001, sales to Compaq Computer accounted for 34%
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of our net sales. We expect that sales to Compaq Computer will also constitute
a substantial portion of our net sales in fiscal 2002. There can be no
assurance that we will succeed in attracting new customers or that we will
retain existing customers. Orders by our 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 sales to any single customer are also subject to significant
variability from quarter to quarter due to the foregoing factors. Such
fluctuations may have a material adverse effect on our operating results and
cash flows.
WE MAY NOT BE ABLE TO MARKET AND SELL NEW PRODUCTS SUCCESSFULLY.
If our Highwire products or other new products developed by us do not gain
market acceptance, our business, operating results and financial condition would
be materially adversely affected. Since late 1998, we have focused a
significant portion of our research and development, marketing and sales efforts
on Highwire products. The success of these products is dependent on several
factors, including:
- timely completion of new product designs;
- achievement of acceptable manufacturing quality and yields;
- introduction of competitive products by other companies; and
- market acceptance of our products.
We cannot assure you that our products will be successful or gain market
acceptance in light of these factors.
WE ARE SUBJECT TO SIGNIFICANT COMPETITION.
The market for communications products is highly competitive. 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. We
compete directly with traditional vendors of terminal servers, modems, remote
control software, terminal emulation 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
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competition from telephony service providers (such as AT&T or the regional Bell
operating companies) that may offer communications services through their
telephone networks. Increased competition with respect to any of our products
could result in price reductions and loss of market share, which would adversely
affect our business, operating results and financial condition. Many of our
current and potential competitors have greater financial, marketing, technical
and other resources than we do.
OUR QUARTERLY RESULTS FLUCTUATE.
Our quarterly operating results have fluctuated significantly in the past
and are likely to fluctuate significantly in the future due to several factors,
some of which are outside our control. 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 be materially adversely affected. Some of the factors that
may cause our quarterly results to fluctuate include:
- timing of significant orders from customers;
- fluctuating market demand for, and declines in, the average selling
prices of our products;
- delays in the introduction of our new products;
- competitive product introductions;
- the mix of products sold;
- changes in our distribution network;
- the failure to anticipate changing customer product requirements; and
- the cost and availability of components and general economic
conditions.
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. Accordingly, our sales expectations are based almost entirely
on our internal estimates of future demand and not on firm customer orders.
Based on the foregoing, we believe that quarterly operating results are likely
to vary significantly in the future and that period-to-period comparisons of our
results of operations are not necessarily meaningful and should not be relied
upon as indications of future performance.
OUR MARKET IS CHARACTERIZED BY RAPIDLY CHANGING TECHNOLOGIES THAT REQUIRE US TO
MEET AND ADAPT TO CHANGING CUSTOMER REQUIREMENTS.
The markets for our products are characterized by rapidly changing
technologies, evolving industry standards and frequent new product
introductions. There can be no assurance that we will be successful in
identifying, developing, manufacturing and marketing new products or enhancing
our existing products. In addition, there can be no assurance that services,
products or technologies developed by others will not render our products
noncompetitive or obsolete. 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
Integrated Services Digital Network, Frame Relay, Asymmetric Digital Subscriber
Line and Asynchronous Transfer Mode.
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WE DEPEND ON A LIMITED NUMBER OF KEY EMPLOYEES.
We are highly dependent on the technical, management, marketing and sales
skills of a limited number of key employees. The loss of the services of any
key employees could adversely affect our business and operating results. We do
not have employment agreements with, or life insurance on the lives of any of
our key employees.
WE NEED TO RECRUIT AND RETAIN QUALIFIED PERSONNEL.
Our success also depends on our ability to continue to attract and retain
additional highly talented personnel. There can be no assurance that we will be
successful in retaining our key employees or that we can attract or retain
additional skilled personnel as required. Competition for qualified personnel
in the networking industry, and in the San Francisco Bay Area, is intense.
WE DEPEND ON KEY SUPPLIERS.
The chipsets used in our products are currently available only from
Motorola. In addition, certain other components used in our products are
currently available only from single suppliers. The inability to obtain
sufficient key components as required, or to develop alternative sources if and
as required in the future could result in delays or reductions in product
shipments, which in turn would have a material adverse effect on our business,
operating results and financial condition.
WE DEPEND ON A SINGLE CONTRACT MANUFACTURER.
We have entered into an exclusive manufacturing service agreement with
XeTel Corporation, a contract manufacturing company headquartered in Austin,
Texas. Under this agreement, XeTel is to manufacture all of our products until
at least May 2002. The agreement is now month to month, and we are evaluating
other contract manufacturers to take the place of, or provide manufacturing
services in addition to XeTel. We are dependent on XeTel's ability to
manufacture our products according to specifications and in required volumes on
a timely basis. The failure of XeTel to perform its obligations under the
manufacturing service agreement could have a material adverse effect on our
business, operating results and financial condition.
WE MAY BE UNABLE TO PROTECT OUR INTELLECTUAL PROPERTY, WHICH COULD REDUCE OR
ELIMINATE ANY COMPETITIVE ADVANTAGE WE HAVE.
Although we believe that our future success will depend primarily on
continuing innovation, sales, marketing and technical expertise, the quality of
product support and customer relations, our success also depends upon our
ability to protect the proprietary technology contained in our products. We do
not currently hold any patents and rely on a combination of copyright,
trademark, trade secret laws and contractual provisions to establish and protect
proprietary rights in our products. There can be no assurance that steps taken
by us in this regard will be adequate to deter misappropriation or independent
third-party development of our technology. Although we believe that our
products and technology do not infringe on the proprietary rights of others,
there can be no assurance that third parties will not assert infringement claims
against us. Third party infringement claims would subject us to additional
legal expense and could divert management resources.
OUR FUTURE CAPITAL NEEDS MAY EXCEED OUR ABILITY TO RAISE CAPITAL.
The development and marketing of our products is capital-intensive. There
can be no assurance that additional financing, if required, will be available on
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reasonable terms or at all. To the extent that additional capital is raised
through the sale of additional equity or convertible debt securities, the
issuance of such securities could result in additional dilution to our
stockholders. We believe that our existing cash balances, working capital line
of credit with a bank, and our anticipated cash flow from operations will
satisfy our financing requirements for the next twelve months. However, rapid
revenue growth may require that we seek additional capital to meet our working
capital needs beyond the next 12 months. Likewise, a further decline in future
orders and revenues might have a similar effect should we be unable to reduce
our expenses to the degree necessary to avoid incurring losses.
WE NEED TO SUCCESSFULLY INTEGRATE OUR ACQUISITIONS.
If we engage in acquisitions or divestitures in future periods, we may not
be able to address the risks associated with these acquisitions or divestitures,
and our business may be harmed. In the future, we may continue to acquire
companies, technologies or products or to sell or discontinue some of our
technologies or products in future periods. Our acquisitions involve numerous
risks, including the use of significant amounts of our cash, diversion of the
attention of our management from our core business, loss of our key employees
and significant expenses and write-offs. Incremental acquisition related
charges including in-process research and development and amortization of
intangibles or divestitures of profitable technologies or products could
adversely impact our profitability. The success of these acquisitions depends
upon our ability to timely and successfully develop, manufacture and gain market
acceptance for the products we acquired.
RISKS ASSOCIATED WITH THIS OFFERING
TRADING IN OUR COMMON STOCK MAY BECOME MORE DIFFICULT BECAUSE FEWER INVESTORS
MAY BE WILLING TO PURCHASE OUR COMMON STOCK AND OUR STOCK PRICE MAY DECLINE
BECAUSE OUR COMMON STOCK IS LISTED ON THE NASDAQ SMALLCAP MARKET, AND WE MAY
EVENTUALLY BECOME TRADED ON THE OTC BULLETIN BOARD.
On May 9, 2002 our common stock was transferred from the Nasdaq National
Market to the Nasdaq SmallCap Market. In order to remain listed on the Nasdaq
SmallCap Market we must meet various requirements, including maintaining a
minimum bid price of $1.00, a minimum market value of our public float of $1.0
million and a stockholders' equity minimum of $2.5 million. If we fail to
maintain the standards necessary to remain listed on the Nasdaq SmallCap
Market, we may be forced to conduct trading in our common stock on the OTC
Bulletin Board or in the over-the-counter market in what is commonly
referred to as the "pink sheets." Our common stock price may decline as a
result of the listing of our common stock on the Nasdaq SmallCap Market or the
OTC Bulletin Board. Both markets are seen as less prestigious and less
efficient, making it more difficult to trade in our common stock. The liquidity
of our common stock would then be adversely impacted. Certain analysts may no
longer provide research coverage of SBE, making it more difficult for investors
to keep apprised of our corporate developments. In addition, our stock could
potentially be subject to what are known as the "penny stock" rules, which place
additional requirements on broker-dealers who sell or make a market in such
securities. Consequently, the ability or willingness of broker-dealers to sell
or make a market in our common stock may decline. Further, our ability to raise
additional capital through the issuance of stock could be seriously impaired
because investors, including many institutional investors, may be unwilling or
unable to purchase shares of our common stock.
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:
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- 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.
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
a third party from acquiring us. 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.
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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 us.
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.
SELLING STOCKHOLDERS
In connection with the private placement of 555,556 shares of our common
stock and a warrant to purchase 111,111 shares of our common stock to
Stonestreet Limited Partnership, we agreed to register all of those shares for
resale. In addition we paid a finders fee to Vintage Partners LLC. A portion
of the finders fee was paid with a warrant to purchase 11,429 shares of our
common stock, and we also agreed to register all of those shares for resale.
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 following table sets forth certain information regarding the beneficial
ownership of our common stock, as of May 1, 2002, by 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, the selling stockholders have not, or within the past
three years 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.
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Selling Stockholder Number of Shares Shares Being Offered
------------------- ---------------- --------------------
Stonestreet Limited
Partnership 666,667 666,667
------------------- ---------------- --------------------
Vintage Partners
LLC 11,429 11,429
------------------- ---------------- --------------------
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 the selling stockholders after the date of this prospectus as a
gift, pledge, partnership distribution or other non-sale transfer. Upon
receiving notice from the selling stockholders 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 SmallCap 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 Stonestreet Limited Partnership
against certain liabilities, including liabilities arising under the Securities
Act of 1933. Stonestreet Limited Partnership 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
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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 stockholder 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.
EXPERTS
The financial statements incorporated in this prospectus by reference to
the Annual Report on Form 10-K for the year ended October 31, 2001, have been
incorporated by reference on the report of PricewaterhouseCoopers LLP,
independent accountants, given on the authority of said firm as experts in
auditing and accounting.
WHERE YOU CAN GET MORE INFORMATION
We 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 office at 500 West Madison Street, Suite 1400, Chicago,
Illinois 60661. 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, 2002;
- Quarterly report on Form 10-Q for the quarter ended January 31, 2002;
- Current report on Form 8-K, filed May 3, 2002; and
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- 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.
2305 Camino Ramon, Suite 200
San Ramon, California 95483
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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PROSPECTUS
SBE, INC.
2305 CAMINO RAMON, SUITE 200
SAN RAMON, CALIFORNIA 94583
TELEPHONE: (925) 355-2000
678,096 SHARES
COMMON STOCK
MAY 23, 2002
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 $ 123
Accounting fees 10,000
Legal fees and expenses 10,000
Miscellaneous 5,000
Total $ 25,123
=========
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.
Stonestreet Limited Partnership has entered into an agreement with us
whereby it agrees, to the extent permitted by law, to indemnify and hold
harmless SBE, and each person, if any, who controls SBE within the meaning of
the 1933 Act, each officer of SBE who signs this registration statement, each
director of SBE, each underwriter and each person who controls any underwriter
within the meaning of the 1933 Act, against all losses, claims, damages or
liabilities, joint or several, to which SBE or such officer, director,
underwriter or controlling person may become subject under the 1933 Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in this registration statement,
any preliminary prospectus or final prospectus contained therein, or any
amendment or supplement thereof, or arise out of or are based upon the omission
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or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, and will
reimburse SBE and each such officer, director, underwriter and controlling
person for any legal or other expenses reasonably incurred by them in connection
with investigating or defending any such loss, claim, damage, liability or
action, provided, however, that Stonestreet Limited Partnership will be liable
hereunder in any such case if and only to the extent that any such loss, claim,
damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in reliance upon
and in conformity with information pertaining to such selling stockholder, as
such, furnished in writing to SBE by Stonestreet Limited Partnership
specifically for use in such registration statement or prospectus, and provided,
further, however, that the liability of Stonestreet Limited Partnership
hereunder shall be limited to the gross proceeds received by Stonestreet Limited
Partnership from the sale of the common stock covered by this registration
statement. The agreement also sets forth certain procedures that will apply in
the event of a claim for indemnification thereunder.
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
EXHIBIT
NUMBER DESCRIPTION OF DOCUMENT
5.1 Opinion of Cooley Godward LLP
23.1 Consent of PricewaterhouseCoopers LLP, independent accountants
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 our 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 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
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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 the initial bona fide offering thereof.
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SIGNATURES AND POWER OF ATTORNEY
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 amendment to
the registration statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of San Ramon, State of California, on the
23rd day of May 2002.
By: /s/ David W. Brunton
-----------------------
David W. Brunton
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 David W. Brunton, 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, 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/ Raimon L. Conlisk Chairman of the Board May 23, 2002
--------------------------
(Raimon L. Conlisk)
/s/ William B. Heye President, Chief Executive May 23, 2002
-------------------------- Officer and Director
(William B. Heye) (principal executive officer)
/s/ David W. Brunton Chief Financial Officer, May 23, 2002
-------------------------- Vice President, Finance and
(David W. Brunton) Secretary (principal financial
and accounting officer)
/s/ Randall L-W. Caudill Director May 23, 2002
---------------------------
(Randall L-W. Caudill)
/s/ Ronald J. Ritchie Director May 23, 2002
---------------------------
(Ronald J. Ritchie)
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EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION OF DOCUMENT
5.1 Opinion of Cooley Godward LLP
23.1 Consent of PricewaterhouseCoopers LLP
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)
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