As filed with the Securities and Exchange Commission on September 21, 2005
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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SBE, INC.
(Exact name of registrant as specified in its charter)
Delaware 94-1517641
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
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
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)
Copies to:
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:
From time to time 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, 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
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Proposed Maximum Proposed Maximum Amount of
Title of Class of Amount to be Offering Price Aggregate Registration Fee
Securities to be Registered Registered Per Security Offering Price (2)
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COMMON STOCK, par value $0.001 per share 2,561,050 Shares $2.52(1) $6,453,846 $759.62
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COMMON STOCK, par value $0.001 per share 2,060,000 Shares $2.50 $5,150,000 $606.16
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COMMON STOCK, par value $0.001 per share, 1,030,000 shares(3) $3.33 $3,424,750 $403.09
underlying certain Warrants
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TOTAL 5,651,050 $15,025,596 $1,768.87
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(1) Estimated in accordance with Rule 457(c) of the Securities Act solely for
the purpose of computing the amount of registration fee based on the
average of the high and low prices of the registrant's Common Stock as
reported on the Nasdaq National Market on September 14 2005.
(2) Calculated in accordance with Rule 457(o) of the Securities Act of 1933.
(3) Pursuant to Rule 416, there are also registered such indeterminable
additional shares as may be issued as result of the anti-dilution
provisions contained in the governing Warrants.
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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 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. We may
not sell these securities until the registration statement filed with the
Securities and Exchange Commission is effective. This prospectus is not an offer
to sell these securities and it is not soliciting offers to buy these securities
in any state where the offer or sale is not permitted.
SUBJECT TO COMPLETION, DATED SEPTEMBER 20, 2005
PROSPECTUS
5,651,050 Shares
SBE, Inc.
Common Stock
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This prospectus relates to the offer and sale, from time to time, of up to
5,651,050 shares of SBE, Inc. common stock held by the selling security holders
listed on page 8 of this prospectus, including up to 1,030,000 shares of common
stock issuable upon exercise of warrants. Certain of the selling security
holders received shares of SBE common stock in consideration of a transaction
pursuant to which PyX Technologies, Inc. was merged with and into PyX
Acquisition Sub, LLC, a wholly-owned subsidiary of SBE. Certain other selling
security holders purchased shares of common stock and warrants to purchase
shares of common stock from SBE in a private placement that closed in July 2005.
SBE will not receive any proceeds from the sale of the shares by any of the
selling security holders. We may, however, receive cash consideration in
connection with the exercise of the warrants for cash.
For a description of the plan of distribution of the shares, see page 12
of this prospectus.
Our common stock is listed on the Nasdaq SmallCap Market under the symbol
"SBEI." On September 16, 2005, the last reported sale price for our common stock
was $2.82 per share.
Investing in our common stock involves risks. See "Risk Factors" beginning
on page 4.
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of the securities or passed upon the
accuracy or adequacy of this prospectus. Any representation to the contrary is a
criminal offense.
The date of this prospectus is _____________, 2005.
TABLE OF CONTENTS
PROSPECTUS SUMMARY............................... 3
FORWARD-LOOKING STATEMENTS....................... 4
RISK FACTORS..................................... 4
USE OF PROCEEDS.................................. 8
SELLING SECURITY HOLDERS......................... 9
PLAN OF DISTRIBUTION............................. 12
WHERE YOU CAN FIND MORE INFORMATION.............. 13
LEGAL MATTERS.................................... 13
EXPERTS.......................................... 14
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You should rely only on the information or representations provided in this
prospectus or incorporated by reference into this prospectus. We have not
authorized anyone to provide you with any different information or to make any
different representations in connection with any offering made by this
prospectus. This prospectus does not constitute an offer to sell, or a
solicitation of an offer to buy, in any state where the offer or sale is
prohibited. Neither the delivery of this prospectus, nor any sale made under
this prospectus shall, under any circumstances, imply that the information in
this prospectus is correct as of any date after the date of this prospectus.
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2
PROSPECTUS SUMMARY
The following is a summary of our business. It does not contain all the
information that may be important to you. You should carefully read the entire
prospectus, including the section entitled "Risk Factors" in this prospectus and
the information incorporated by reference, including our financial statements,
and the exhibits to the registration statement of which this prospectus is a
part, for more information on our business and the risks involved in investing
in our stock.
Our Business
We develop and provide network communications and storage solutions for
original equipment manufacturers in the embedded systems marketplace. Embedded
networking technology is hardware or software that serves as a component within
a larger networking or storage device or system, such as a Gigabit Ethernet or a
T-1/T-3 input/output network interface card, that plugs into an expansion slot
in a high-end computer or storage system. Embedded networking solutions enable
the functionality of many commonly used devices or equipment, such as products
and solutions for basic telephone and internet services, mobile phones, medical
equipment and storage networks.
We deliver a product portfolio comprised of standards-based wide area
networking ("WAN"), local area networking ("LAN") and storage area network
("SAN"), network interface and intelligent communications controller cards. All
of our products are coupled with enabling Linux or Solaris software drivers. Our
products are designed to be functionally compatible with each other and, since
we use industry standard form factors and technologies, our products are also
compatible with third party standards-based products. This standard scalability
and modularity offers our customers greater flexibility to develop solutions for
unique product configurations and applications.
In July 2005, we acquired the assets of PyX Technologies, Inc. ("PyX"). PyX
is a technology company that develops software products for the Internet Small
Computer System Interface ("iSCSI") enterprise storage market. iSCSI enables
networked computers to access and store data using standard TCP/IP networks.
Among the many features it offers, iSCSI provides remote access to secure
multi-terabyte storage using desktops, laptops, PDAs, or other mobile devices,
and offers significant cost savings over existing storage alternatives. In
addition, our development of digital signal processor modules allows us to
leverage our current products to enable existing customers to take advantage of
a new and explosive market: VoIP.
We were incorporated in 1961 as Linear Systems, Inc. In 1976, we completed
our initial public offering. In July 2000, we acquired LAN Media Corporation, a
privately held company, to complement and grow our WAN adapter product line from
both a hardware and software perspective. In August 2003, we acquired the
products and technologies of Antares Microsystems to increase the functionality
of our PCI product line.
Following the PyX acquisition, we operate in two business units; Storage
Business Unit and Embedded Business Unit.
Our principal executive offices are located at 2305 Camino Ramon, Suite
200, San Ramon, California, 94583, and our telephone number is (925) 355-2000.
Our Internet address is www.sbei.com. The information on our website is not
incorporated by reference into this prospectus.
3
FORWARD LOOKING STATEMENTS
This prospectus contains forward-looking statements that involve risks and
uncertainties. Words such as "believes," "anticipates," "expects," "intends" and
similar expressions are intended to identify forward-looking statements, but are
not the exclusive means of identifying such statements. Readers are cautioned
that the forward-looking statements reflect our analysis only as of the date
hereof, and we assume no obligation to update these statements. Actual events or
results may differ materially from the results discussed in or implied by the
forward-looking statements. Factors that might cause such a difference include,
but are not limited to, those risks and uncertainties set forth below under the
caption "Risk Factors."
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 Related to Our Business
We may not realize any anticipated benefits from the acquisition of PyX
Technologies, Inc.
We acquired PyX Technologies, Inc. ("PyX") on June 26, 2005. While we believe
that our opportunities subsequent to the acquisition are greater than our
opportunities prior to the acquisition, and that we will be able to create
substantially more stockholder value, there is substantial risk that the
synergies and benefits sought in the acquisition might not be fully achieved.
There is no assurance that PyX's technology can be successfully integrated into
our existing product platforms or that our financial results will meet or exceed
the financial results that would have been achieved absent the acquisition. As a
result, our operations and financial results may suffer and the market price of
our common stock may decline.
If the Internet Small Computer System Interface ("iSCSI") software products
contain undetected errors, we could incur significant unexpected expenses and
experience product returns and lost sales.
The iSCSI software products are highly technical and complex. While these
products have been tested, because of their nature, we cannot be certain of
their performance either as stand-alone products or when integrated with our
existing product line. Because of PyX's short operating history, we have little
information on the performance of its products, including the iSCSI products.
There can be no assurance that defects or errors may not arise or be discovered
in the future. Any defects or errors in these products discovered in the future
could result in a loss of customers or decrease in net revenue and market share.
If an unauthorized disclosure of a significant portion of our source code
occurs, we could potentially lose future trade secret protection for the source
code.
Source code, the detailed program commands for our iSCSI software programs, is
one of the most significant assets we own. While we license certain portions of
our source code to certain licensees, we take significant measures to protect
the secrecy of large portions of our source code. The loss of future trade
secret protection could make it easier for third parties to compete with our
products by copying functionality, which could adversely affect our revenue and
operating margins.
We depend upon a small number of Original Equipment Manufacturer ("OEM")
customers. The loss of any of these customers, or their failure to sell their
products, could limit our ability to generate revenues. In particular, the
Hewlett-Packard Company ("HP") ceased to be a significant customer of ours in
the first quarter of fiscal 2005, and our success depends on being able to
replace net sales previously attributable to HP with sales to other customers.
In the first three quarters of fiscal 2005 and 2004, sales of Versa Module
Europa ("VME") products to HP accounted for 16% and 47%, respectively, of our
net sales. We made our final shipment for $1.0 million of our VME products to HP
in the first quarter of fiscal 2005. Our future success depends on being able to
replace net sales previously attributable to HP with sales to other customers.
We can provide no assurance that we will succeed in obtaining new orders from
existing or new customers sufficient to replace or exceed the net sales
previously attributable to HP or that we will become a qualified supplier with
new OEM customers or remain a qualified supplier with existing OEM customers.
4
Orders by our OEM customers are affected by factors such as new product
introductions, product life cycles, inventory levels, manufacturing strategies,
contract awards, competitive conditions and general economic conditions. Our
sales to any single OEM customer are also subject to significant variability
from quarter to quarter. Such fluctuations may have a material adverse effect on
our operating results. A significant reduction in orders from any of our OEM
customers could have a material adverse effect on our operating results,
financial condition and cash flows.
A failure to collect outstanding accounts receivable from any of our OEM
customers could have a material adverse effect on our business, operating
results, financial condition and cash flows.
Our future capital needs may exceed our ability to raise capital.
The development and marketing of our products is capital-intensive. We believe
that our existing cash balances and our anticipated cash flow from operations
will satisfy our working capital needs for the foreseeable future. Declines in
our sales or a failure to keep expenses in line with revenues could require us
to seek additional financing in fiscal 2006. In addition, should we experience a
significant growth in customer orders or wish to make strategic acquisitions of
a business or assets, we may be required to seek additional capital to meet our
working capital needs. There can be no assurance that additional financing, if
required, will be available on 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.
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.
The chip sets used in certain of our products are currently available only from
a single supplier. If these suppliers discontinue or upgrade some of the
components used in our products, we could be required to redesign a product to
incorporate newer or alternative technology. 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 or
margins that, in turn, would have a material adverse effect on our business,
operating results, financial condition and cash flows. If enough components are
unavailable, we may have to pay a premium in order to meet customer demand.
Paying premiums for parts, building inventories of scarce parts and obsolesce of
existing inventories could lower or eliminate our profit margin, reduce our cash
flow and otherwise harm our business. To offset potential component shortages,
we have in the past, and may in the future, carry an inventory of these
components. As a result, our inventory of component parts may become obsolete
and may result in write-downs.
If we fail to develop and produce new products, we may lose sales and our
reputation may be harmed.
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 Voice over IP ("VoIP"), third
generation wireless services, Serial ATA, iSCSI, Serial Attached SCSI ("SAS"),
Gigabit Ethernet, 10 Gigabit Ethernet and TCP/IP Offload Engine ("TOE"). 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 obsolete.
We have focused a significant portion of our research and development, marketing
and sales efforts on VoIP, HighWire, WAN and LAN adapters, encryption, iSCSI and
TOE 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, market acceptance of our products and our ability to sell our
products. If the VoIP, TOE, iSCSI, HighWire, encryption and adapter products or
other new products developed by us do not gain market acceptance, our business,
operating results, financial condition and cash flows would be materially
adversely affected.
5
Our iSCSI and VoIP products will require a substantial product development
investment by us and we may not realize any return on our investment.
The development of new or enhanced products is a complex and uncertain process.
As we integrate the PyX products into our product line, our customers may
experience design, manufacturing, marketing and other difficulties that could
delay or prevent the development, introduction or marketing of new products and
enhancements, both to our existing product line as well as to the products we
acquired from PyX. Development costs and expenses are incurred before we
generate any net revenue from sales of the products resulting from these
efforts. We expect to incur substantial research and development expenses
relating to the product line we acquired from PyX, which could have a negative
impact on our earnings in future periods.
The storage and embedded products market is intensely competitive, and our
failure to compete effectively could reduce our revenues and margins.
We compete directly with traditional vendors of storage software and hardware
devices, including Fibre Channel SAN products, open source "free" software, TOE
and application-specific storage solutions. We compete with communications
suppliers of routers, switches, gateways, network interface cards and other
products that connect to the Public Switched Telephone Network and the Internet.
In the future, we expect competition from companies offering client/server
access solutions based on emerging technologies such as Fibre Channel, switched
digital telephone services, iSCSI, SAS, TOE, VoIP and other technologies. In
addition, we may encounter increased competition from operating system and
network operating system vendors to the extent that such vendors include full
communications and storage capabilities in their products. We may also encounter
future competition from telephony service providers (such as AT&T or the
regional Bell operating companies) and storage product providers (such as EMC
Corporation, Network Appliance, Inc. and Qlogic Corporation).
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, financial condition and cash flows. Many of our current and
potential competitors have greater financial, marketing, technical and other
resources than we do. There can be no assurance that we will be able to compete
successfully with our existing competitors or will be able to compete
successfully with new competitors.
We depend on our key personnel. If we are unable to retain our current personnel
and hire additional qualified personnel as needed, our business will be harmed.
We are highly dependent on the technical, management, marketing and sales skills
of a limited number of key employees. We do not have employment agreements with,
or life insurance on the lives of, any of our key employees. The loss of the
services of any key employees could adversely affect our business and operating
results. Our future success will depend on our ability to continue to attract
and retain highly talented personnel to the extent our business grows.
Competition for qualified personnel in the networking and software industries,
and in the San Francisco Bay Area, is intense. 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.
We may be unable to protect our intellectual property, which could reduce any
competitive advantage we have.
Although we believe that our future success will depend primarily on continuing
innovation, sales, marketing and technical expertise and the quality of product
support and customer relations, we must also 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.
6
Risks Associated with Ownership of Our Common Stock
Our common stock has been at risk for delisting from the Nasdaq SmallCap Market.
If it is delisted, our stock price and your liquidity may be impacted.
Our common stock is currently listed on the Nasdaq SmallCap Market. Nasdaq has
requirements that a company must meet in order to remain listed on the Nasdaq
SmallCap Market. These requirements include maintaining a minimum closing bid
price of $1.00 and minimum stockholders' equity of $2.5 million. Our
stockholders' equity as of July 31, 2005 was approximately $19.7 million and our
closing bid price on September 16, 2005 was $2.82. Although we currently meet
all the minimum continued listing requirements for the Nasdaq SmallCap Market,
should our stock price decline, our common stock could be subject to potential
delisting from the Nasdaq SmallCap Market.
If we fail to maintain the standards necessary to be quoted on the Nasdaq
SmallCap Market and our common stock is delisted, trading in our common stock
would be conducted on the OTC Bulletin Board as long as we continue to file
reports required by the Securities and Exchange Commission. The OTC Bulletin
Board is generally considered to be a less efficient market than the Nasdaq
SmallCap Market, and our stock price, as well as the liquidity of our common
stock, may be adversely impacted as a result.
The market price of our common stock is likely to continue to be volatile. You
may not be able to resell your shares at or above the price at which you
purchased such shares.
The trading price of our common stock is subject to wide fluctuations in
response to quarter-to-quarter fluctuations in operating results, the failure to
meet analyst estimates, announcements of technological innovations or new
products by us or our competitors, general conditions in the computer and
communications industries and other events or factors. 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 price of the
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. Our
common stock has historically had relatively small trading volumes. As a result,
small transactions in our common stock can have a disproportionately large
impact on the quoted price of our common stock.
If we continue to experiences losses, we could experience difficulty meeting our
business plan, and our stock price could be negatively affected.
We may experience operating losses and negative cash flow from operations as we
develop and market the iSCSI software solution acquired in the PyX acquisition.
Any failure to achieve or maintain profitability could negatively impact the
market price of our common stock. We anticipate that we will continue to incur
significant product development, sales and marketing and administrative expenses
and, as a result, will incur net losses for the foreseeable future. We will need
to generate significant quarterly revenues if we are to achieve and maintain
profitability. A substantial failure to achieve profitability could make it
difficult or impossible for us to grow our business. Our business strategy may
not be successful, and we may not generate significant revenues or achieve
profitability. Any failure to significantly increase revenues would also harm
our ability to achieve and maintain profitability. If we do achieve
profitability in the future, we may not be able to sustain or increase
profitability on a quarterly or annual basis.
Future sales of our common stock, including the shares offered pursuant to this
prospectus, could cause the market price for our common stock to significantly
decline.
Sales of substantial amounts of our common stock in the public market could
cause the market price of our common stock to fall, and could make it more
difficult for us to raise capital through public offerings or other sales of our
capital stock. In addition, the public perception that these sales might occur
could have the same undesirable effects. The shares being offered pursuant to
this prospectus represent approximately 57.3% of our outstanding common stock as
of September 1, 2005. The shares issued in connection with the PyX acquisition,
which represent approximately 45.3% of the shares being offered pursuant to this
prospectus are subject to agreements that provide, in part, that, with respect
to 95% of such shares held by the selling security holder, the selling security
holder will not sell, transfer, make any short sale of, grant any option for the
purchase of, or enter into any hedging or similar transaction with the same
economic effect as a sale, such shares until August 3, 2006. The shares issued
to the purchasers in the private placement are not subject to any lockup and are
freely tradeable. Such free transferability could materially and adversely
affect the market price of our common stock. As a result, holders of
approximately 32.6% of the outstanding shares of our common stock will have the
immediate right to sell their shares pursuant to this prospectus and holders of
an additional approximately 24.7% of the outstanding shares of our common stock,
assuming no further issuances of shares of our common stock, will have the right
to sell their shares pursuant to this prospectus after August 3, 2006.
7
Our certificate of incorporation and bylaws and the Delaware General Corporation
Law contain provisions that could delay or prevent a change in control.
Our board of directors has the authority to issue up to 2,000,000 shares of
preferred stock and to determine the price, rights, preferences and privileges
of those shares without any further vote or action by the stockholders. The
rights of the holders of common stock will be subject to, and may be materially
adversely affected by, the rights of the holders of any preferred stock that may
be issued in the future. The issuance of preferred stock could have the effect
of making it more difficult for a third party to acquire a majority of our
outstanding voting stock. Furthermore, certain other provisions of our
certificate of incorporation and bylaws may have the effect of delaying or
preventing changes in control or management, which could adversely affect the
market price of our common stock. In addition, we are subject to the provisions
of Section 203 of the Delaware General Corporation Law, an anti-takeover law.
USE OF PROCEEDS
We will not receive any of the proceeds from the sale of the shares by the
selling security holders. All proceeds from the sale of the shares will be for
the accounts of the selling security holders. We may, however, receive cash
consideration in connection with the exercise of the warrants for cash.
8
SELLING SECURITY HOLDERS
We are registering for resale shares of our common stock that have been issued
or sold to the selling security holders identified below or that may be issued
upon exercise of the warrants held by certain of the selling security holders.
The table below presents information as of September 1, 2005 regarding the
selling security holders and the shares that they may offer and sell from time
to time under this prospectus. The shares of common stock covered, as to their
resale, under this prospectus include shares of common stock issued in the PyX
acquisition and shares of common stock sold in the private placement and
issuable upon exercise of warrants sold in the private placement. In connection
with the acquisition of PyX Technologies, Inc. ("PyX") that we consummated on
July 26, 2005, we issued to certain of the selling stockholders 2,561,050 shares
of our common stock and agreed to register such shares of common stock for
resale. Also on July 26, 2005, we completed a private placement with certain
other of the selling security holders, pursuant to which we issued and sold, for
an aggregate purchase price of $5,150,000, an aggregate of 2,060,000 shares of
our common stock and warrants to purchase an aggregate of an additional
1,030,000 shares of our common stock bearing an exercise price of $3.33 per
share, which warrants are exercisable at the election of the selling security
holders prior to July 26, 2010.
This table is prepared based, in part, on information supplied to us by the
listed selling security holders. The table assumes that the selling security
holders will fully exercise the warrants issued in the private placement and
sell all of the shares offered under this prospectus. However, because the
selling security holders may offer from time to time all or some of their shares
under this prospectus, or in another permitted manner, we cannot assure you as
to the actual number of shares that will be sold by the selling security holders
or that will be held by the selling security holders after completion of the
sales. Information concerning the security holders may change from time to time
and changed information will be presented in a supplement to this prospectus if
and when necessary and required.
Shares Owned Prior to Shares Owned After
Offering(1) Offering
---------------------- Number of Shares --------------------
Security Holders Number Percent Being Offered Number Percent
---------------- ------ ------- ---------------- ------ -------
Andre Hedrick(2) 1,472,000 14.9% 1,472,000 0 0%
Nick Bellinger(3) 345,000 3.5 345,000 0 0
Jan Fuxell(4) 230,000 2.3 230,000 0 0
Dennis Burke(5) 230,000 2.3 230,000 0 0
Greg Yamamoto(6) 212,000 * 212,000 0 0
Leo Fang(7) 57,500 * 57,500 0 0
Andrew Johnson(8) 41,400 * 41,400 0 0
Tzu-Wang Pan(9) 53,000 * 53,000 0 0
Richard Contreras(10) 23,000 * 23,000 0 0
Helge Mortensen(11) 13,800 * 13,800 0 0
Ignacio C. Munio(12) 156,275 1.6 11,500 144,775 1.5
Leon Chiu(13) 11,500 * 11,500 0 0
Wim Coekaerts(14) 5,750 * 5,750 0 0
Jerry Johansson(15) 4,600 * 4,600 0 0
AIGH Investment Partners LLC(16) 788,120 8.0 495,000 293,120 3.0
Globis Capital Partners(17) 462,997 4.7 300,000 162,997 1.7
Anfel Trading Limited(18) 411,400 4.2 390,000 21,400 *
Cam Co(19) 265,000 2.7 210,000 55,000 *
Ganot Corporation(20) 240,000 2.4 210,000 30,000 *
LaPlace Group, LLC(21) 180,000 1.8 180,000 0 0
Herschel Berkowitz(22) 151,500 1.5 90,000 61,500 *
Sandra Pessin(23) 150,000 1.5 150,000 0 0
Globis Overseas Fund Ltd. (24) 120,000 1.2 120,000 0 0
Jack Dodick(25) 135,000 1.4 120,000 15,000 *
Ellis International LLC(26) 60,000 * 60,000 0 0
Stephen Spira(27) 60,000 * 60,000 0 0
Fame Associates(28) 60,000 * 60,000 0 0
Kevin McCaffrey
c/o Smith Barney(29) 60,000 * 60,000 0 0
William Heinzerling
c/o Smith Barney(30) 60,000 * 60,000 0 0
John A. Moore(31) 60,000 * 60,000 0 0
Joshua Hirsch(32) 30,000 * 30,000 13,000 *
Richard Grossman(33) 41,100 * 30,000 11,100 *
Citigroup Global Markets Inc. FBO
F. Lyon Polk(34) 36,000 * 36,000 0 0
Citigroup Global Markets Inc. FBO
Hilary Edson(35) 36,000 * 36,000 0 0
Mark Giordano(36) 33,000 * 18,000 15,000 *
Paul Packer(37) 30,000 * 30,000 0 0
Paul Tramontano(38) 30,000 * 30,000 0 0
Kurt Miyatake(39) 30,000 * 30,000 0 0
Greg Yamamoto, as UTMA custodian for
Melanie Yamamoto(40) 30,000 * 30,000 0 0
Greg Yamamoto, as UTMA custodian for
Nicholas Yamamoto(41) 30,000 * 30,000 0 0
James Kardon(42) 10,200 * 10,200 0 0
Jeffrey Schwartz(43) 4,800 * 4,800 0 0
9
------------------
* Less than 1%.
(1) The shares of common stock owned prior to the offering equals the sum of
(a) shares of common stock and (b) shares of common stock issuable upon
exercise of warrants. Percentages are based on 9,865,782 shares of our
common stock that were outstanding (on an as-converted to common stock
basis) on September 1, 2005. In calculating the percentage for each
selling security holder, the shares represented by item (b) above are
included in the denominator of the shares outstanding for that selling
security holder but are not included in the denominator for any other
person.
(2) Includes 1,398,400 shares of common stock. that are subject to a lock-up
agreement providing that such stockholder will not sell, transfer, make
any short sale of, grant any option for the purchase of, or enter into any
hedging or similar transaction with the same economic effect as a sale,
such shares until August 3, 2006 (the "Lockup").
(3) Includes 327,850 shares of common stock. that are subject to the Lockup.
(4) Includes 218,500 shares of common stock. that are subject to the Lockup.
(5) Includes 218,500 shares of common stock. that are subject to the Lockup.
(6) Includes 87,400 shares of common stock. that are subject to the Lockup.
Also includes warrants to purchase 40,000 shares of common stock.
(7) Includes 54,625 shares of common stock. that are subject to the Lockup.
(8) Includes 39,330 shares of common stock. that are subject to the Lockup.
(9) Includes 21,850 shares of common stock. that are subject to the Lockup.
Also includes warrants to purchase 10,000 shares of common stock.
(10) Includes 21,850 shares of common stock. that are subject to the Lockup.
(11) Includes 13,110 shares of common stock. that are subject to the Lockup.
(12) Includes 10,925 shares of common stock. that are subject to the Lockup.
Includes 45,830 shares issuable upon exercise of options exercisable
within 60 days of the date of this table.
(13) Includes 10,925 shares of common stock. that are subject to the Lockup.
(14) Includes 5,463 shares of common stock. that are subject to the Lockup.
(15) Includes 4,370 shares of common stock. that are subject to the Lockup.
(16) Includes warrants to purchase 165,000 shares of common stock.
(17) Includes warrants to purchase 100,000 shares of common stock.
(18) Includes warrants to purchase 130,000 shares of common stock.
(19) Includes warrants to purchase 70,000 shares of common stock.
(20) Includes warrants to purchase 70,000 shares of common stock.
(21) Includes warrants to purchase 60,000 shares of common stock.
10
(22) Includes warrants to purchase 30,000 shares of common stock.
(23) Includes warrants to purchase 50,000 shares of common stock.
(24) Includes warrants to purchase 40,000 shares of common stock.
(25) Includes warrants to purchase 40,000 shares of common stock.
(26) Includes warrants to purchase 20,000 shares of common stock.
(27) Includes warrants to purchase 20,000 shares of common stock.
(28) Includes warrants to purchase 50,000 shares of common stock.
(29) Includes warrants to purchase 20,000 shares of common stock.
(30) Includes warrants to purchase 20,000 shares of common stock.
(31) Includes warrants to purchase 20,000 shares of common stock.
(32) Includes warrants to purchase 10,000 shares of common stock.
(33) Includes warrants to purchase 10,000 shares of common stock.
(34) Includes warrants to purchase 12,000 shares of common stock.
(35) Includes warrants to purchase 12,000 shares of common stock.
(42) Includes warrants to purchase 6,000 shares of common stock.
(37) Includes warrants to purchase 10,000 shares of common stock.
(38) Includes warrants to purchase 10,000 shares of common stock.
(39) Includes warrants to purchase 10,000 shares of common stock.
(40) Includes warrants to purchase 10,000 shares of common stock.
(41) Includes warrants to purchase 10,000 shares of common stock.
(42) Includes warrants to purchase 3,400 shares of common stock.
(43) Includes warrants to purchase 1,600 shares of common stock.
11
PLAN OF DISTRIBUTION
The shares of common stock offered pursuant to this prospectus may be sold from
time to time by the selling security holders 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 security holders" includes donees, pledgees, transferees and other
successors in interest selling shares received from the selling security holders
after the date of this prospectus as a gift, pledge, partnership distribution or
other non-sale transfer. Upon receiving notice from the selling security holders
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
security holders 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 security holders. Alternatively, the selling
security holders may, from time to time, offer shares of common stock to or
through underwriters, broker/dealers or agents. The selling security holders 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, as amended. 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, as amended. We have agreed to
indemnify the selling security holders against certain liabilities, including
liabilities arising under the Securities Act of 1933, as amended. The selling
security holders 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, as amended, may be sold under Rule 144 rather
than pursuant to this prospectus. The selling security holders may elect to not
sell the shares they hold. The selling security holders may engage in short
sales, short sales versus the box, puts, calls and other similar transactions.
However, the selling security holders may not maintain a net short position
whereby one or more sales are marked as a short sale at a time with a selling
security holder has no equivalent offsetting long position in our common stock.
The selling security holders may transfer, distribute, 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, as amended, 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 security holder and any
other person participating in a distribution will be subject to the Securities
Exchange Act of 1934, as amended, which may limit the timing of purchases and
sales of common stock by the selling security holder 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.
We will bear all costs, expenses and fees in connection with the registration of
the shares. The selling security holders will pay all commissions and discounts,
if any, associated with the sale of the shares.
12
WHERE YOU CAN FIND 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.
For further information with respect to us and the securities offered pursuant
to this prospectus, we refer you to the exhibits hereto and the other
information incorporated herein by reference. You may read and copy the
registration statement, as well as our reports, proxy statements and other
information, at the Securities and Exchange Commission's public reference room
at 100 F Street, NE, Room 1580, Washington, D.C. 20549. You can request copies
of these documents by writing to the Securities and Exchange Commission and
paying a fee for the copying costs. Please call the Securities and Exchange
Commission at 1-800-SEC-0330 for more information about the operation of the
public reference room. Our Securities and Exchange Commission filings are also
available at the Securities and Exchange Commission's web site at
http://www.sec.gov. In addition, you can read and copy our Securities and
Exchange Commission filings at the office of the National Association of
Securities Dealers, Inc. at 1735 K Street, N.W., Washington, D.C. 20006.
The Securities and Exchange Commission allows us to "incorporate by reference"
information that we file with it, 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. Information
in this prospectus supersedes information incorporated by reference that we
filed with the Securities and Exchange Commission prior to the date of this
prospectus, while information that we file later with the Securities and
Exchange Commission will automatically update and supersede this information. We
incorporate by reference into this registration statement and prospectus the
documents listed below and any future filings we will make with the Securities
and Exchange Commission under Sections 13(a), 13(c), 14 or 15(d) of the
Securities Exchange Act of 1934, as amended, after the date of the initial
registration statement but prior to effectiveness of the registration statement
and after the date of this prospectus but prior to the termination of the
offering of the securities covered by this prospectus.
The following documents filed with the Securities and Exchange Commission are
incorporated by reference in this prospectus:
(i) Our Annual Report on Form 10-K for the fiscal year ended October
31, 2004, including all material incorporated by reference
therein;
(ii) Our Quarterly Report on Form 10-Q for the quarter ended January
31, 2005;
(iii) Our Quarterly Report on Form 10-Q for the quarter ended April
30, 2005;
(iv) Our Quarterly Report on Form 10-Q for the quarter ended July 31,
2005;
(v) Our Current Report on Form 8-K dated January 1, 2005;
(vi) Our Current Report on Form 8-K dated March 28, 2005;
(vii) Our Current Report on Form 8-K dated May 4, 2005;
(viii) Our Current Report on Form 8-K dated July 26, 2005; and
(ix) The description of the common stock contained in our
Registration Statement on Form 8-A.
We will provide without charge to you, upon written or oral request, a copy of
any and all of the documents that have been incorporated by reference in this
prospectus (not including exhibits to such documents, unless such exhibits are
specifically incorporated by reference in this prospectus or into such
documents). Such request may be directed to: SBE, Inc., 2305 Camino Ramon, Suite
200, San Ramon, California, 95483, Attention: Chief Financial Officer, telephone
(925) 355-2000.
LEGAL MATTERS
The validity of the securities being offered hereby will be passed upon by
Cooley Godward LLP, San Francisco, California.
EXPERTS
The financial statements incorporated by reference in this prospectus have been
so incorporated in reliance on the report (which contains an explanatory
paragraph relating to the ability of SBE, Inc. to continue as a going concern,
as described in Note 1 to the financial statements) of PricewaterhouseCoopers
LLP, independent registered public accounting firm, which audited our financial
statements at October 31, 2002, given on the authority of said firm as experts
in auditing and accounting.
13
The financial statements incorporated by reference in this prospectus have been
audited by BDO Seidman LLP, an independent registered public accounting firm, to
the extent and for the periods set forth in their report incorporated herein by
reference, and are incorporated herein in reliance upon such report given on the
authority of said firm as experts in accounting and auditing.
14
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item: 14. Other Expenses of Issuance and Distribution
The following table sets forth all expenses, other than the underwriting
discounts and commissions, payable by the registrant in connection with the sale
of the shares of common stock being registered. All the amounts shown are
estimates except for the registration fee.
Securities and Exchange Commission registration fee............. $ 1,769
Nasdaq SmallCap Market additional shares listing fee............ $ 45,000
Legal fees and expenses ........................................ $ 5,000
Accounting fees and expenses ................................... $ 2,500
Miscellaneous .................................................. $ 1,000
-----------
Total......................................... $ 55,269
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 security holders have entered into an agreement with us whereby they
jointly and severally agree, to the extent permitted by law, to indemnify and
hold harmless SBE, each officer of SBE who signs this registration statement and
each director of SBE, against all losses, claims, damages or liabilities, joint
or several, to which SBE or such officer or director 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 exhibit thereof, or arise out of or are
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
light of the circumstances in which they were made, not misleading in each case,
and will reimburse SBE and each such officer and 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, provided, however,
that the selling security holders 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 security holders, as such, furnished in writing to
SBE by or on behalf of a selling security holder specifically for use in such
registration statement or prospectus, and provided, further, however, that the
liability of the selling security holders hereunder shall be limited to the
gross proceeds (net of the amount of any damages the selling security holders
have otherwise been required to pay by reason of such untrue statement or
omission or alleged untrue statement or omission) received by the selling
security holders 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.
II-1
Item 16. Exhibits
Exhibit
Number Description of Document
------- -----------------------
2.1* Agreement and Plan of Merger and Reorganization, dated March 28,
2005, by and among SBE, Inc., PyX Acquisition Sub, LLC, PyX
Technologies, Inc. and the parties identified on Exhibit A
thereto.
4.1* Investor Rights Agreement, dated July 26, 2005, between SBE, Inc.
and the investors listed on Exhibit A thereto.
4.2* Form of warrant issued on July 26, 2005.
10.1* Unit Subscription Agreement, dated May 4, 2005, by and between
SBE, Inc. and the other parties thereto.
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 included in Exhibit 5.1
24.1 Power of Attorney. See signature page.
* Filed as an exhibit to SBE's Definitive Proxy Statement on Schedule 14A,
filed on June 24, 2005, and incorporated herein by reference.
Item 17. Undertakings
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 provisions described in Item 15 above, the registrant has been
informed 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 registrant
of expenses incurred or paid by a director, officer or controlling person of
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, 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 Act and will be governed by the final
adjudication of such issue.
The undersigned registrant hereby undertakes:
(1) 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 of 1933;
(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) if, in the aggregate, the
changes in volume and price represent no more than a 20 percent change in the
maximum aggregate offering price set forth in the "Calculation of Registration
Fee" table in the effective registration statement;
II-2
(iii) To include any material information with respect to the
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
registration statement is on Form S-3, Form S-8 or Form F-3, and the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed by the registrant pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by
reference 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.
(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.
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 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.
II-3
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that 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 20th day of
September, 2005.
SBE, INC.
By: /s/ Daniel Grey
--------------------------------------
Daniel Grey
President and Chief Executive Officer
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears
below hereby constitutes and appoints jointly and severally, Dan Grey and David
W. Brunton, and each or any one of them, his or her true and lawful
attorney-in-fact and agent, each with the full power of substitution and
resubstitution, for him or her and in his or her name, place and stead, in any
way and all capacities, to sign any and all amendments (including post-effective
amendments and registration statements filed pursuant to Rule 462) to this
registration statement and to file the same, with 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 each said attorney-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, this registration
statement has been signed below 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
------------------------------------- (Principal Executive Officer)
Daniel Grey
/s/ David W. Brunton Vice President, Finance and Chief September 20, 2005
------------------------------------- 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
II-4
INDEX OF EXHIBITS
Exhibit
Number Description of Document
------- -----------------------
2.1* Agreement and Plan of Merger and Reorganization, dated March 28,
2005, by and among SBE, Inc., PyX Acquisition Sub, LLC, PyX
Technologies, Inc. and the parties identified on Exhibit A thereto.
4.1* Investor Rights Agreement, dated July 26, 2005, between SBE, Inc.
and the investors listed on Exhibit A thereto.
4.2* Form of warrant issued on July 26, 2005.
10.1* Unit Subscription Agreement, dated May 4, 2005, by and between SBE,
Inc. and the other parties thereto.
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 included in Exhibit 5.1
24.1 Power of Attorney. See signature page.
* Filed as an exhibit to SBE's Definitive Proxy Statement on Schedule 14A,
filed on June 24, 2005, and incorporated herein by reference.
II-5