As filed with the Securities and Exchange Commission on __________, 2005.
Registration No. 333-__________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
SBE, INC.
(Exact name of registrant as specified in its charter)
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Delaware 94-1517641
(State of Incorporation) (I.R.S. Employer Identification No.)
2305 Camino Ramon, Suite 200
San Ramon, CA 94583
(Address of Principal Executive Offices)
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PYX TECHNOLOGIES, INC.
2005 STOCK PLAN
(Full title of the plan)
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David W. Brunton
Vice President, Finance and Chief Financial Officer
SBE, Inc.
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)
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Copies to:
Jodie M. Bourdet, Esq.
COOLEY GODWARD LLP
One Maritime Plaza, 20th Floor
San Francisco, CA 94111
(415) 693-2000
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CALCULATION OF REGISTRATION FEE
-------------------------------------------------------------------------------------------------------------------------
Proposed Maximum Proposed Maximum
Title of Securities Amount to be Offering Aggregate Offering Amount of
to be Registered Registered(1) Price per Share(2) Price(2) Registration Fee
-------------------------------------------------------------------------------------------------------------------------
Common Stock, par value 2,038,950 $2.17 $4,424,521 $520.77
$.01 per share
---------------------------- ---------------------- ------------------------ -------------------------- -----------------
(1) Pursuant to Rule 416(a) promulgated under the Securities Act of 1933, as
amended (the "Act"), this Registration Statement shall also cover any
additional shares of Registrant's common stock that become issuable under
the PyX Technologies, Inc. 2005 Stock Plan (the "Plan") by reason of any
stock dividend, stock split, recapitalization or other similar transaction
effected without receipt of consideration that increases the number of
outstanding shares of Registrant's common stock.
(2) Estimated solely for the purpose of calculating the amount of the
registration fee pursuant to Rule 457(h) promulgated under the Act. The
offering price per share and aggregate offering price are based upon the
weighted average exercise price for shares subject to options previously
granted under the Plan.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by SBE, Inc. (the "Company") with the
Securities and Exchange Commission are incorporated by reference into this
Registration Statement:
(a) The Company's Annual Report on Form 10-K for the fiscal year ended
October 31, 2004, as filed with the Securities and Exchange Commission
(the "SEC") under the Securities Exchange Act of 1934 (the "Exchange Act")
on January 14, 2005.
(b) The Company's (i) Quarterly Report on Form 10-Q for the quarterly
period ended January 31, 2005, as filed with the SEC on March 2, 2005
under the Exchange Act, (ii) Quarterly Report on Form 10-Q for the
quarterly period ended April 30, 2005, as filed with the SEC on June 2,
2005, under the Exchange Act, (iii) Quarterly Report on Form 10-Q for the
quarterly period ended July 31, 2005, as filed with the SEC on August 31,
2005 under the Exchange Act, (iv) Current Report on Form 8-K as filed with
the SEC on January 14, 2005 under the Exchange Act, (v) Current Report on
Form 8-K as filed with the SEC on March 28, 2005 under the Exchange Act,
(vi) Current Report on Form 8-K as filed with the SEC on May 5, 2005 under
the Exchange Act and (vii) Current Report on Form 8-K as filed with the
SEC on August 1, 2005 under the Exchange Act.
(c) The description of the Company's Common Stock which is contained in a
registration statement on Form 8-A, as filed with the SEC under the
Exchange Act, including any amendment or report filed for the purpose of
updating such description.
All reports and other documents subsequently filed by the Company pursuant
to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the filing
of a post-effective amendment which indicates that all securities offered have
been sold or which deregisters all securities then remaining unsold, shall be
deemed to be incorporated by reference herein and to be a part of this
registration statement from the date of the filing of such reports and
documents.
DESCRIPTION OF SECURITIES
Not applicable.
INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
INDEMNIFICATION OF DIRECTORS AND OFFICERS
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-Law provisions relating
to indemnification.
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 reasonable 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.
EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
EXHIBITS
EXHIBIT
NUMBER DESCRIPTION
------ -----------
5.1 Opinion of Cooley Godward LLP
23.1 Consent of BDO Seidman LLP. Independent Registered Public Accounting
Firm
23.2 Consent of PricewaterhouseCoopers LLP. Independent Registered Public
Accounting Firm
23.3 Consent of Cooley Godward LLP is contained in Exhibit 5.1 to this
Registration Statement
24.1 Power of Attorney is contained on the signature page to this
Registration Statement
99.1 PyX Technologies, Inc. 2005 Stock Plan and forms of agreement
thereunder
UNDERTAKINGS
1. The Company 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) (ss. 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)(i) and (a)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the issuer pursuant to
section 13 or section 15(d) of the Exchange Act that are incorporated by
reference herein.
(b) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered herein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
2. The Company hereby undertakes that, for purposes of determining any
liability under the Securities Act, each filing of its 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
Company pursuant to the foregoing provisions, or otherwise, the Company
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 Company of expenses incurred or paid by a director, officer or
controlling person of the Company 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 Company
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.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
the Company certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of San Ramon, State of California, on September 20,
2005.
SBE, INC.
By: /s/ Daniel Grey
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Daniel Grey
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Dan Grey 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, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated:
Signature Title Date
--------- ----- ----
/s/ Daniel Grey
--------------------------------------- President and Chief Executive Officer September 20, 2005
Daniel Grey (Principal Executive Officer)
/s/ David W. Brunton Vice President, Finance and September 20, 2005
--------------------------------------- Chief Financial Officer
David W. Brunton (Principal Financial and Accounting Officer)
/s/ Ronald J. Ritchie Chairman of the Board September 20, 2005
---------------------------------------
Ronald J. Ritchie
/s/ William B. Heye, Jr. Director September 20, 2005
---------------------------------------
William B. Heye, Jr.
/s/ John Reardon Director September 20, 2005
---------------------------------------
John Reardon
/s Marion M. Stuckey Director September 20, 2005
---------------------------------------
Marion M. Stuckey
EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION
------ -----------
5.1 Opinion of Cooley Godward LLP
23.1 Consent of BDO Seidman, LLP. Independent Registered Public Accounting
Firm
23.2 Consent of PricewaterhouseCoopers LLP. Independent Registered Public
Accounting Firm
23.3 Consent of Cooley Godward LLP is contained in Exhibit 5.1 to this
Registration Statement
24.1 Power of Attorney is contained on the signature page to this
Registration Statement
99.1 PyX Technologies, Inc. 2005 Stock Plan and forms of agreement
thereunder