As filed with the Securities and Exchange Commission on
August 13, 2015
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C.
20549
________________________
FORM F-3
REGISTRATION STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
________________________
SPHERE 3D CORP.
(Exact
name of registrant as specified in its charter)
Not Applicable
(Translation of
Registrant’s name into English)
________________________
| Ontario, Canada |
240 Matheson Blvd. East |
Not Applicable |
| (State or other jurisdiction of |
Mississauga, Ontario L4Z 1X1 |
(I.R.S. Employer |
| Incorporation or Organization) |
(858) 571-5555 |
Identification No.) |
| |
(Address and telephone number of
Registrant’s principal executive offices) |
|
________________________
Eric L. Kelly
Chief Executive Officer
9112 Spectrum Center Boulevard
San Diego, California 92123
(858) 571-5555
(Name, address, and telephone number of agent for service)
________________________
Copy to:
Warren
T. Lazarow, Esq.
Paul L. Sieben, Esq.
O’Melveny &
Myers LLP
2765 Sand Hill Road
Menlo Park, California
94025
(650) 473-2600
________________________
Approximate date of commencement of proposed sale to the public:
From time to time after the effective date of this registration
statement.
________________________
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 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 this Form is a registration
statement pursuant to General Instruction I.C. or a post-effective amendment
thereto that shall become effective upon filing with the Commission pursuant to
Rule 462(e) under the Securities Act, check the following box. [ ]
If this Form is a post-effective
amendment to a registration statement filed pursuant to General Instruction I.C.
filed to register additional securities or additional classes of securities
pursuant to Rule 413(b) under the Securities Act, check the following box. [ ]
_________________________
CALCULATION OF REGISTRATION FEE
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Amount |
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maximum |
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maximum |
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to be |
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offering price
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aggregate |
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Amount of |
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registered(1) |
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per unit(2) |
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offering price(3) |
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registration fee(4) |
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| Common Shares, no par value per share |
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| Warrants to purchase Common Shares, no par value per share |
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| Total |
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$ |
40,000,000 |
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$ |
4,648.00 |
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| (1) |
This registration statement registers such indeterminate
number of common shares, no par value, and/or warrants to purchase common
shares in any combination as shall have an aggregate initial offering
price not to exceed $40,000,000. Any securities registered hereunder may
be sold separately or as units with other securities registered hereunder. |
| (2) |
The proposed maximum initial offering price per unit will
be determined by the registrant, from time to time, in connection with the
issuance by the registrant of the securities registered hereunder. The
securities registered also include such indeterminate amounts and number
of common shares as may be issued upon exercise of warrants or rights or
pursuant to the antidilution provisions of such securities. This
registration statement shall also cover any additional common shares and
warrants that become issuable by reason of any stock dividend, stock split
or other similar transaction effected without the receipt of consideration
that results in an increase in the number of the outstanding common shares
of the registrant. Any securities registered hereunder may be sold
separately or as units with other securities registered hereunder. |
| (3) |
The proposed maximum aggregate offering price per class
of security will be determined from time to time by the registrant in
connection with the issuance by the registrant of the securities
registered hereunder and is not specified as to each class of security
pursuant to General Instruction II.C of Form F-3 under the Securities Act. |
| (4) |
Calculated in accordance with Rule 457(o) under the Securities Act. |
_________________________
The registrant hereby
amends this registration statement on such date or dates as may be necessary to
delay its effective date until the registrant shall file a further amendment
that specifically states that this registration statement shall thereafter
become effective in accordance with Section 8(a) of the Securities Act of 1933,
as amended, or until this registration statement shall become effective on such
date as the Securities and Exchange 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 pursuant to
this prospectus 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 of these securities is not permitted.
SUBJECT TO COMPLETION, DATED August 13,
2015
PROSPECTUS
Common Shares
Warrants to Purchase Common Shares
________________________
We may offer and sell common shares, no
par value, and/or warrants to purchase common shares in any combination as shall
have an aggregate initial offering price not to exceed $40,000,000, from time to
time in one or more offerings and in amounts, at prices and on terms that we
will determine at the time of the offering. We will provide the specific terms
of any securities offered, including their offering price and the methods by
which we will sell the securities, in supplements to this prospectus. We may
offer and sell the securities on an immediate, continuous or delayed basis
directly to investors or through underwriters, dealers or agents, or through a
combination of these methods. If we use agents, underwriters or dealers to sell
the securities, we will name them and describe their compensation in the
applicable prospectus supplement.
The prospectus supplements may
also add, update or change other information contained in this prospectus. You
should read this prospectus, the applicable prospectus supplement and the
documents incorporated by reference in this prospectus and any prospectus
supplements carefully before you make your investment decision.
Our common shares are traded on
The NASDAQ Global Market under the symbol “ANY”. On August 10, 2015, the last
reported sale price for our common shares on Nasdaq was $4.02 per share. Any of
our common shares sold pursuant to a prospectus supplement will be listed on Nasdaq.
________________________
Our business and an investment
in our securities involve significant risks. You should read the section
entitled " Risk Factors " on page 6 of this prospectus and
the risk factors incorporated by reference into this prospectus as described in
that section before investing in our securities.
Neither the Securities and
Exchange Commission nor any state securities commission has approved or
disapproved of these securities or passed upon the adequacy or accuracy of this
prospectus. Any representation to the contrary is a criminal offense.
This prospectus may not be
used to sell our common shares unless accompanied by a prospectus supplement
which will describe the method and terms of the offering, including the specific
plan of distribution.
________________________
The date of this prospectus is
.
TABLE OF CONTENTS
-i-
ABOUT THIS PROSPECTUS
This prospectus is part of a
registration statement on Form F-3 that we filed with the Securities and
Exchange Commission, or the SEC, using a “shelf” registration or continuous
offering process. Under this shelf registration process, we may offer and sell
common shares, no par value, and/or warrants to purchase common shares in any
combination as shall have an aggregate initial offering price not to exceed
$40,000,000, from time to time in one or more offerings and in amounts, at
prices and on terms that we will determine at the time of the offering. This
prospectus provides you with a general description of shares of the securities
we may offer.
Each time we offer and sell
securities pursuant to this registration statement, we will provide a prospectus
supplement containing specific information about the terms of that offering,
including a description of any risks related to that offering if those terms and
risks are not described in this prospectus. That prospectus supplement may
include or incorporate by reference a detailed and current discussion of any
risk factors and will discuss any special considerations applicable to any
securities offering. The prospectus supplement may also add, update or change
information contained in this prospectus.
You should read this prospectus,
any prospectus supplement, the information and documents incorporated by
reference, and the additional information described under the heading “Where You
Can Find Additional Information” below carefully because these documents contain
important information you should consider when making your investment decision.
Whenever we make reference in this prospectus to any of our contracts,
agreements or other documents, the references are not necessarily complete and
you should refer to the exhibits attached to the registration statement or the
documents incorporated by reference for copies of the actual contract,
agreements or other document. See “Where You Can Find More Information” and
“Information Incorporated by Reference.”
You should rely only on the information
provided in this prospectus and the information and documents incorporated by
reference into this prospectus. We have not authorized anyone to provide you
with different information. 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 of these securities is not permitted. The information
contained in this prospectus is accurate only as of the date of this prospectus,
regardless of the time of delivery of this prospectus or of any sale of any
securities. You should not assume that the information contained in this
prospectus is accurate as of any date other than the date on the front cover of
this prospectus, or that the information contained in any document incorporated
by reference is accurate as of any date other than the date of the document
incorporated by reference, regardless of the time of delivery of this prospectus
or any sale of a security.
In this prospectus, unless
otherwise indicated or the context otherwise requires, references to “Sphere,”
“we,” “company,” “us,” or “our” refer to Sphere 3D Corp. and its consolidated
subsidiaries.
WHERE YOU CAN FIND ADDITIONAL INFORMATION
We are subject to the
informational requirements of the Securities Exchange Act of 1934, as amended,
applicable to foreign private issuers. We anticipate filing with the SEC, within
three months after the end of each fiscal year, an Annual Report on Form 40-F
containing financial statements audited by an independent accounting firm. We
also file with the SEC Reports of Foreign Private Issuer on Form 6-K and other
information with the SEC as required by the Exchange Act. We, as a “foreign
private issuer,” are exempt from the rules under the Exchange Act prescribing
certain disclosure and procedural requirements for proxy solicitations, and our
officers, directors and principal shareholders are exempt from the reporting and
“short-swing” profit recovery provisions contained in Section 16 of the Exchange
Act, with respect to their purchases and sales of shares. In addition, we are
not required to file annual, quarterly and current reports and financial
statements with the SEC as frequently or as promptly as U.S. companies whose
securities are registered under the Exchange Act. You can find, copy and inspect
information we file with the SEC (including exhibits to such documents) at the
SEC’s Public Reference Room at 100 F Street, N.E., Washington, D.C. 20549. You
may obtain additional information about the Public Reference Room by calling the
SEC at 1-800-SEC-0330. In addition, the SEC maintains a site on the Internet at
http://www.sec.gov which contains reports and other information that we
file electronically with the SEC. You may also review such reports and other
documents we file with the SEC on our website at http://www.sphere3d.com.
Information included on our website is not a part of this prospectus. This
prospectus is part of a registration statement that we filed with the SEC. The
registration statement contains more information than this prospectus regarding
our common shares and us, including exhibits.
-1-
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
We are “incorporating by
reference” information into this prospectus. This means that we are disclosing
important information to you by referring you to another document that has been
separately filed with or furnished to the SEC. The information incorporated by
reference is considered to be part of this prospectus, and certain information
that we later file with or furnish to the SEC will automatically update and
supersede the information contained in documents earlier filed with or furnished
to the SEC or contained in this prospectus. The following documents filed with
or furnished to the SEC are incorporated herein by reference:
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Our Annual Report on Form 40-F (File No. 001-36532) filed
with the SEC on March 31, 2015; |
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The description of our common shares contained in our
Registration Statement on Form 8-A (File No. 001-36532) filed with the
Commission on July 7, 2014 pursuant to Section 12 of the Exchange Act, and
any other amendment or report filed for the purpose of updating such
description; |
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The audited consolidated balance sheets of our company
and subsidiaries as of December 31, 2013 and 2012, and the related audited
consolidated statements of operations, equity and comprehensive income
(loss), and cash flows for the years ended December 31, 2013 and 2012; the
consolidated audited balance sheets of Overland Storage, Inc. and
subsidiaries as of June 30, 2014 and 2013, and the related audited
consolidated statements of operations, equity and comprehensive income
(loss), and cash flows for the fiscal years ended June 30, 2014 and 2013;
the audited consolidated balance sheets of Tandberg Data S.à r.l. and
subsidiaries as of December 31, 2013 and 2012, and the related audited
consolidated statements of operations, equity and comprehensive income
(loss), and cash flows for the years ended December 31, 2013 and 2012; the
unaudited pro forma condensed combined financial information of our
company, the Overland companies and the Tandberg companies giving effect
to the acquisition of the Overland companies and derived from the
historical consolidated financial statements and notes thereto of our
companies; the description of the terms of our merger with Overland
Storage, Inc., together with Annex A; and the description of the rights of
our shareholders contained in our Registration Statement on Form F-4 (File
No. 333- 197569) filed with the SEC on July 23, 2014, as subsequently
amended; |
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Our Reports of Foreign Private Issuer on Form 6-K (File
No. 001-36532) furnished to the SEC on April 1, 2015, May 15, 2015, July
31, 2015, and August 13, 2015 (but not with respect to Exhibit 99.8, “News
Release dated August 13, 2015” or Exhibit 99.1, “News Release dated August
13, 2015”); and |
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All Annual Reports on Form 40-F and all Reports of
Foreign Private Issuer on Form 6-K (or portions thereof) that indicate
that they are being incorporated by reference into this registration
statement and that we file with the SEC on or after the date on which the
registration statement is first filed with the SEC until the termination
or completion of the offering under this prospectus.
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Unless otherwise identified,
documents or information deemed to have been furnished and not filed in
accordance with SEC rules shall not be deemed incorporated by reference into
this registration statement. We may incorporate future Reports of Foreign
Private Issuer on Form 6-K (or portions thereof) that we furnish subsequent to
the date of this prospectus by indicating in such Form 6-K (or portions thereof)
that they are being incorporated by reference into this prospectus.
Any statement contained herein or
in a document, all or a portion of which is incorporated or deemed to be
incorporated by reference herein, shall be deemed to be modified or superseded
for purposes of this registration statement to the extent that a statement
contained herein or in any other subsequently filed document which also is or is
deemed to be incorporated by reference herein modifies or supersedes such
statement. Any such statement so modified or superseded shall not be deemed,
except as so modified or amended, to constitute a part of this registration
statement.
You may obtain copies, without
charge, of documents incorporated by reference in this prospectus, by requesting
them in writing or by telephone from us as follows:
Sphere 3D Corp.
240 Matheson Blvd. East
Mississauga,
Ontario L4Z 1X1
Attention: Investor Relations
(800) 729-8725
Exhibits to the filings will not
be sent unless those exhibits have been specifically incorporated by reference
in this prospectus.
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CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS
Certain statements in this
prospectus, any prospectus supplement and the documents we incorporate by
reference in this prospectus or any prospectus supplement constitute
forward-looking information that involves risks and uncertainties. This
forward-looking information includes, but is not limited to, statements with
respect to management’s expectations regarding our future growth and business
plans, business planning process, results of operations, uses of cash,
performance, and business prospects. This forward-looking information may also
include other statements that are predictive in nature, or that depend upon or
refer to future events or conditions. Statements with the words “could”,
“expects”, “may”, “will”, “anticipates”, “assumes”, “intends”, “plans”,
“believes”, “estimates”, “guidance” and similar expressions are intended to
identify statements containing forward-looking information, although not all
forward-looking statements include such words. In addition, any statements that
refer to expectations, projections or other characterizations of future events
or circumstances contain forward-looking information. Statements containing
forward-looking information are not historical facts but instead represent
management’s expectations, estimates and projections regarding future events.
Although management believes the
expectations reflected in such forward-looking statements are reasonable,
forward-looking statements are based on the opinions, assumptions and estimates
of management at the date the statements are made, and are subject to a variety
of risks and uncertainties and other factors that could cause actual events or
results to differ materially from those projected in the forward-looking
statements. These factors include, but are not limited to: our limited operating
history; our ability to manage growth; our ability to integrate the businesses
of Overland Storage, Inc. and V3 Systems, Inc.; the impact of competition; the
investment in technological innovation; any defects in components or design of
our products; the retention or maintenance of key personnel; the possibility of
significant fluctuations in operating results; currency fluctuations; our
ability to maintain business relationships; financial, political or economic
conditions; financing risks; future acquisitions; our ability to protect our
intellectual property; third party intellectual property rights; volatility in
the market price for our common shares; our compliance with financial reporting
and other requirements as a public company; conflicts of interests; future sales
of our common shares by our directors, officers and other shareholders; dilution
and future sales of common shares; acquisition-related risks and other factors
described under the heading “Risk Factors”.
In addition, if any of the
assumptions or estimates made by management prove to be incorrect, actual
results and developments are likely to differ, and may differ materially, from
those expressed or implied by the forward-looking information. Accordingly,
investors are cautioned not to place undue reliance on such statements.
All of this forward-looking
information is qualified by these cautionary statements. Statements containing
forward-looking information are made only as of the date of such document. We
expressly disclaims any obligation to update or alter statements containing any
forward-looking information, or the factors or assumptions underlying them,
whether as a result of new information, future events or otherwise, except as
required by law.
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PROSPECTUS SUMMARY
The following is only a summary
and therefore does not contain all of the information you should consider before
investing in our securities. We urge you to read this entire prospectus,
including the matters discussed under “Risk Factors” and the risk factors
incorporated by reference into this prospectus as described in that section, and
the more detailed consolidated financial statements, notes to the consolidated
financial statements and other information incorporated by reference from our
other filings with the SEC.
Our Company
We are a virtualization
technology and data management solutions provider with a portfolio of products
that address the complete data continuum. We enable the integration of virtual
applications, virtual desktops, and storage into workflow, and allows
organizations to deploy a combination of public, private or hybrid cloud
strategies. We achieve this through the sale of solutions that are derived from
its primary product groups: disk systems, virtualization, and data management
and storage.
We have a global presence and
maintain offices in multiple locations. Executive offices and our primary
operations are conducted from our San Jose and San Diego, California locations.
Our main office is located at 9112 Spectrum Center Blvd., San Diego, CA 92123.
Our virtualization product development is primarily done from its research and
development center near Toronto, Canada. Our European headquarters are located
in Germany. We maintain additional offices in Singapore, Japan, and the United
Kingdom.
We were incorporated on May 2,
2007 under the Business Corporations Act (Ontario) as “T.B. Mining Ventures
Inc.”. Our registered office is located at 240 Matheson Blvd. East
Mississauga, Ontario L4Z 1X1 and our main telephone number is (858) 571-5555.
Our Internet address is http://www.sphere3d.com. Except for the documents
referred to under “Where You Can Find Additional Information” which are
specifically incorporated by reference into this prospectus, information
contained on our website or that can be accessed through our website does not
constitute a part of this prospectus. We have included our website address only
as an interactive textual reference and do not intend it to be an active link to
our website.
The Offering
We may offer and sell common shares, no
par value, and/or warrants to purchase common shares in any combination as shall
have an aggregate initial offering price not to exceed $40,000,000, from time to
time in one or more offerings and in amounts, at prices and on terms that we
will determine at the time of the offering.
When we use the term common
shares in this prospectus, we mean any of our common shares we may offer with
this prospectus from time to time, unless we indicate otherwise. This prospectus
describes the general terms that may apply to our common shares; the specific
terms of any particular common shares that we offer will be described in a
separate supplement to this prospectus.
When we issue new common shares,
we may offer them for sale to or through underwriters, dealers and agents, or
directly to purchasers. The applicable prospectus supplement will include any
required information about the firms we use and the discounts or commissions we
may pay them for their services.
Unless we specify otherwise in an
accompanying prospectus supplement, we will use the proceeds from the sale or
other disposition of the common shares offered hereby for general corporate
purposes.
For a discussion of factors you
should consider before making an investment decision, see “Risk Factors”
beginning on page 6, the risk factors incorporated by reference into this
prospectus as described in that section, and the other information included in
this prospectus or incorporated by reference.
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Listing
Our common shares are listed on
The NASDAQ Global Market and trades under the symbol “ANY”. Any common shares
sold pursuant to a prospectus supplement will be listed on The NASDAQ Global
Market.
-5-
RISK FACTORS
An investment in our
securities involves a high degree of risk. In addition to the other information
included in this prospectus, you should carefully consider the risk factors set forth in our most recent Annual Report on
Form 40-F on file with the SEC, which is incorporated by reference into this
prospectus, as well as the following risk factors, which supplement or augment
the risk factors set forth in our Annual Report on Form 40-F. Before making an investment decision, you should carefully consider
these risks as well as other information we include or incorporate by reference
in this prospectus and the accompanying prospectus supplement. The risks and
uncertainties not presently known to us or that we currently deem immaterial may
also materially harm our business, operating results and financial condition and
could result in a complete loss of your investment.
Risks Related to Our Common Shares and this Offering
Our stock price has been volatile and your investment in
our common shares could decrease in value.
The market price for securities
of technology companies, including ours, historically has been highly volatile,
and the market from time to time has experienced significant price and volume
fluctuations that are unrelated to the operating performance of such companies.
For example, during the 12-month period ended June 30, 2015, our closing stock price has
ranged from a low of $3.14 to a high of $11.15. Fluctuations in the market price
or liquidity of our common shares may harm the value of your investment in our
common shares. You may not be able to resell your common shares at or above the
price you pay for those shares due to fluctuations in the market price caused by
changes in our operating performance or prospects and other factors, including,
among others:
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actual or anticipated fluctuations in our operating
results or future prospects; |
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our announcements or our competitors’ announcements of
new products; |
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public reaction to our press releases, our other public
announcements and our filings with the SEC; |
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strategic actions by us or our competitors; |
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changes in financial markets or general economic
conditions; |
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our ability to raise additional capital as needed;
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developments regarding our patents or proprietary rights
or those of our competitors; and |
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changes in stock market analyst recommendations or
earnings estimates regarding our common shares, other comparable companies
or our industry generally. |
Future sales of our common shares could adversely affect
the market price and our future capital-raising activities could involve the
issuance of equity securities, which would dilute your investment and could
result in a decline in the trading price of our common shares.
We may sell securities in the
public or private equity markets if and when conditions are favorable, even if
we do not have an immediate need for additional capital at that time. Sales of
substantial amounts of common shares, or the perception that such sales could
occur, could adversely affect the prevailing market price of our common shares
and our ability to raise capital. We may issue additional common shares in
future financing transactions or as incentive compensation for our executive
management and other key personnel, consultants and advisors. Issuing any equity
securities would be dilutive to the equity interests represented by our
then-outstanding common shares. The market price for our common shares could
decrease as the market takes into account the dilutive effect of any of these
issuances.
Sales of shares issued in recent placements may cause the
market price of our shares to decline.
We have recently closed private
placements and issued common shares and warrants exercisable to purchase our
common shares. Further, we have agreed to register with the SEC the common
shares issued in these offerings and issuable upon exercise of the warrant for
resale. Upon the effectiveness of the registration statements for these
offerings, the common shares issued in the offerings and issuable upon exercise
of the warrants may be freely sold in the open market. The sale of a significant
amount of these common shares in the open market, or the perception that these
sales may occur, could cause the market price of our common shares to decline or
become highly volatile.
-6-
We may have to pay liquidated damages to our investors,
which will increase our negative cash flows.
In connection with our recent private
placements, we entered into registration rights agreements. Under the terms of
these registration rights agreements, subject to certain limited exceptions, if
registration statements covering the shares issued or issuable pursuant to warrants issued in such placements have not been declared effective within the time
periods specified in the registration rights agreements or we otherwise fail to
comply with certain provisions set forth in the registration rights agreements,
then we will be required to pay liquidated damages. There can be no assurance
that the registration statements will be declared effective by the SEC or will
remain effective for the time periods necessary to avoid payment of liquidated
damages.
We do not expect to pay cash dividends on our common
shares for the foreseeable future.
We have never paid cash dividends
on our common shares and do not anticipate that any cash dividends will be paid
on the common shares for the foreseeable future. The payment of any cash
dividend by us will be at the discretion of our board of directors and will
depend on, among other things, our earnings, capital, regulatory requirements
and financial condition.
Risks Related to Intellectual Property
Although we believe we have a proprietary platform for
our technologies and products, we or our customers may in the future become
subject to claims for infringement of intellectual property rights owned by
others. Further, to protect our own intellectual property rights, we may in the
future bring claims for infringement against others.
Our commercial success depends,
in part, upon not infringing intellectual property rights owned by others.
Although we believe that we have a proprietary platform for our technologies and
products, we cannot determine with certainty whether any existing third party
patents or the issuance of any third party patents would require us to alter our
technology, obtain licenses or cease certain activities. We may become subject
to claims by third parties that our technology infringes their intellectual
property rights. While we provide our customers with a qualified indemnity
against the infringement of third party intellectual property rights, we may
become subject to these claims either directly or through indemnities against
these claims that we routinely provide to our end-users and channel
partners.
Further, our customers may use
our products in ways that may infringe the intellectual property rights of third
parties and/or require a license from third parties. Although we encourage our
customers to use our products only in a manner that does not infringe third
party intellectual property rights, and we know that most of our clients do so,
we cannot guarantee that such third parties will not seek remedies against us
for providing products that may enable our customers to infringe the
intellectual property rights of others. We would vigorously defend any such
claims.
In addition, we may receive in
the future, claims from third parties asserting infringement, claims based on
indemnities provided by us, and other related claims. Litigation may be
necessary to determine the scope, enforceability and validity of third party
proprietary or other rights, or to establish our proprietary or other rights.
Furthermore, despite precautions, it may be possible for third parties to obtain
and use our intellectual property without our authorization. Policing
unauthorized use of intellectual property is difficult, and some foreign laws do
not protect proprietary rights to the same extent as the laws of Canada or the
United States. To protect our intellectual property, we may become involved in
litigation. In addition, other companies may initiate similar proceedings
against us. The patent position of information technology firms in particular is
highly uncertain, involves complex legal and factual questions, and continues to
be the subject of much litigation. No consistent policy has emerged from the
U.S. Patent and Trademark Office or the courts regarding the breadth of claims
allowed or the degree of protection afforded under information technology
patents.
Some of our competitors have, or
are affiliated with companies having, substantially greater resources than us
and these competitors may be able to sustain the costs of complex intellectual
property litigation to a greater degree and for a longer period of time than us.
Regardless of their merit, any such claims could:
| |
• |
divert the attention of our management, cause significant
delays, materially disrupt the conduct of our business or materially
adversely affect our revenue, financial condition and results of
operations; |
| |
• |
be time consuming to evaluate and defend; |
| |
• |
result in costly litigation and substantial expenses;
|
| |
• |
cause product shipment delays or stoppages; |
| |
• |
subject us to significant liabilities; |
| |
• |
require us to enter into costly royalty or licensing
agreements; |
-7-
| |
• |
require us to modify or stop using the infringing
technology; or |
| |
• |
result in costs or other consequences that have a
material adverse effect on our business, results of operations and
financial condition. |
USE OF PROCEEDS
Unless we specify otherwise in
the accompanying prospectus supplement, we currently intend to use the net
proceeds from the sale of our common shares and warrants for general corporate
purposes. These purposes may include repayment of debt, working capital needs,
capital expenditures, acquisitions and any other general corporate purpose.
Pending application of the net proceeds, we may temporarily invest the net
proceeds in short-term marketable securities.
If a material part of the net
proceeds is to be used to repay indebtedness, we will set forth the interest
rate and maturity of such indebtedness in the accompanying prospectus
supplement.
We may set forth additional
information on the use of the net proceeds from the sale of the common shares
and warrants we offer under this prospectus in the prospectus supplement
relating to the specific offering.
PLAN OF DISTRIBUTION
We may sell the securities in one
or more of the following ways from time to time:
| |
• |
to or through underwriters or dealers; |
| |
|
|
| |
• |
directly to one or more purchasers; |
| |
|
|
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• |
through agents; or |
| |
|
|
| |
• |
through a combination of any of these methods
of sale. |
| |
|
|
| |
|
We may effect the distribution of the
securities from time to time in one or more transactions either: |
| |
|
|
| |
• |
at a fixed price or prices which may be
changed; |
| |
|
|
| |
• |
at market prices prevailing at the time of
sale; |
| |
|
|
| |
• |
at prices relating to such prevailing market
prices; or |
| |
|
|
| |
• |
at negotiated prices. |
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|
|
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|
The prospectus supplements relating to an
offering of offered securities will set forth the terms of such offering,
including: |
| |
|
|
| |
• |
the name or names of any underwriters, dealers
or agents; |
| |
|
|
| |
• |
the purchase price of the offered securities
and the proceeds we will receive from the sale; |
| |
|
|
| |
• |
any underwriting discounts and commissions or
agency fees and other items constituting underwriters’ or agents’
compensation; and |
| |
|
|
| |
• |
any initial public offering price, any
discounts or concessions allowed or reallowed or paid to dealers and any
securities exchanges on which such offered securities are listed.
|
We may grant underwriters who
participate in the distribution of shares of securities an option to purchase
additional securities to cover over-allotments, if any, in connection with the
distribution.
Underwriters, dealers or agents
may receive compensation in the form of discounts, concessions or commissions
from us or our purchasers, as their agents in connection with the sale of
securities. These underwriters, dealers or agents may be considered to be
underwriters under the Securities Act. As a result, discounts, commissions or
profits on resale received by the underwriters, dealers or agents may be treated as underwriting discounts and
commissions. The prospectus supplement will identify any such underwriter,
dealer or agent and describe any compensation received by them from us.
-8-
Any initial public offering
prices, discounts or concessions allowed or reallowed or paid to dealers may be
changed from time to time.
Pursuant to a requirement by the
Financial Industry Regulatory Authority, or FINRA, the maximum compensation to
be received by any FINRA member or independent broker/dealer generally, as
calculated consistent with FINRA’s rules, may not be greater than 8.0% of the
gross proceeds received by us from the sale of any securities registered
pursuant to SEC Rule 415.
If underwriters are used in the
sale, the underwriters will acquire the offered securities for their own account
and may resell them from time to time in one or more transactions, including
negotiated transactions, at a fixed public offering price or at varying prices
determined at the time of sale. The offered securities may be offered either to
the public through underwriting syndicates represented by one or more managing
underwriters or by one or more underwriters without a syndicate.
We may authorize underwriters,
dealers or agents to solicit offers by certain purchasers to purchase the
securities from us at the public offering price set forth in the prospectus
supplement pursuant to delayed delivery contracts providing for payment and
delivery on a specified date in the future. The contracts will be subject only
to those conditions set forth in the prospectus supplement, and the prospectus
supplement will set forth any commissions we pay for solicitation of these
contracts.
We may enter into derivative
transactions with third parties, or sell securities not covered by this
prospectus to third parties in privately negotiated transactions. If the
applicable prospectus supplement indicates, in connection with those
derivatives, the third parties may sell securities covered by this prospectus
and the applicable prospectus supplement, including in short sale transactions.
If so, the third party may use securities pledged by us or borrowed from us or
others to settle those sales or to close out any related open borrowings of
stock, and may use securities received from us in settlement of those
derivatives to close out any related open borrowings of stock. The third party
in such sale transactions will be an underwriter and will be identified in the
applicable prospectus supplement or in a post-effective amendment.
In connection with underwritten
offerings of the offered securities and in accordance with applicable law and
industry practice, underwriters may over-allot or effect transactions that
stabilize, maintain or otherwise affect the market price of the offered
securities at levels above those that might otherwise prevail in the open market
in accordance with Regulation M under the Exchange Act, including by entering
stabilizing bids, effecting syndicate covering transactions or imposing penalty
bids, each of which is described below.
| |
• |
A stabilizing bid means the placing of any bid, or
the effecting of any purchase, for the purpose of pegging, fixing or
maintaining the price of a security. |
| |
|
|
| |
• |
A syndicate covering transaction means the placing of any
bid on behalf of the underwriting syndicate or the effecting of any
purchase to reduce a short position created in connection with the
offering. |
| |
|
|
| |
• |
A penalty bid means an arrangement that permits the
managing underwriter to reclaim a selling concession from a syndicate
member in connection with the offering when offered securities originally
sold by the syndicate member are purchased in syndicate covering
transactions. |
Those activities may cause the
price of the securities to be higher than it would otherwise be. If commenced,
the underwriters may discontinue any of the activities at any time. We make no
representation or prediction as to the direction or magnitude of any effect that
such transactions may have on the price of the securities. For a description of
these activities, see the information under the heading “Underwriting” in the
applicable prospectus supplement.
These transactions may be
effected on Nasdaq, in the over-the-counter market, or otherwise. Underwriters
are not required to engage in any of these activities, or to continue such
activities if commenced.
If a dealer is used in the sale,
we will sell such offered securities to the dealer, as principal. The dealer may
then resell the offered securities to the public at varying prices to be
determined by that dealer at the time for resale. The names of the dealers and
the terms of the transaction will be set forth in the prospectus supplement
relating to that transaction.
Offered securities may be sold
directly by us to one or more institutional purchasers, or through agents
designated by us from time to time, at a fixed price or prices, which may be
changed, or at varying prices determined at the time of sale. Any agent involved
in the offer or sale of the offered securities in respect of
which this prospectus is delivered will be named, and any commissions payable by
us to such agent will be set forth, in the prospectus supplement relating to
that offering. Unless otherwise indicated in such prospectus supplement, any
such agent will be acting on a best efforts basis for the period of its
appointment.
-9-
Underwriters, dealers and agents
may be entitled under agreements entered into with us to indemnification by us
against certain civil liabilities, including liabilities under the Securities
Act, or to contribution with respect to payments that the underwriters, dealers
or agents may be required to make in respect thereof. Underwriters, dealers and
agents may be customers of, engage in transactions with, or perform services for
us and our affiliates in the ordinary course of their business for which they
receive compensation.
Any underwriters to whom we sell
securities for public offering and sale may make a market in the securities, but
such underwriters will not be obligated to do so and may discontinue any market
making at any time without notice. Any common shares sold pursuant to a
prospectus supplement will be listed on Nasdaq. We may apply to list any
warrants on a securities exchange, but we are not obligated to do so. Therefore,
there may not be liquidity or a trading market for such securities.
We are registering the common
shares issuable upon exercise of the warrants to permit the resale of these
common shares by the holders of the warrants from time to time after the date of
this prospectus. We will not receive any of the proceeds from the sales of the
common shares issuable upon exercise of the warrants. However, we will receive
the exercise price of any warrants exercised for cash. To the extent that we
receive cash upon exercise of any warrants, we expect to use that cash as
described in the section entitled “Use of Proceeds.”
-10-
CAPITALIZATION AND INDEBTEDNESS
The table below sets forth our
capitalization and indebtedness as of June 30, 2015, on an actual basis. You
should read this table in conjunction with our consolidated financial statements
and the related notes included in our Annual Report on Form 40-F, which is
incorporated by reference herein.
| |
|
|
As of June 30, 2015 |
|
| |
|
|
(in thousands of
US$) |
|
| |
|
|
|
|
| |
Shareholders’ Equity
|
|
|
|
| |
Common Shares |
$ |
114,976 |
|
| |
Accumulated Deficit |
|
(37,954 |
) |
| |
Accumulated Other
Comprehensive Loss |
|
(1,489 |
) |
| |
|
|
|
|
| |
Total Shareholders’ Equity |
|
75,533 |
|
| |
|
|
|
|
| |
Total
Capitalization |
$ |
46,082 |
|
| |
|
|
|
|
| |
|
|
As of June 30, 2015 |
|
| |
|
|
(in thousands of
US$) |
|
| |
|
|
|
|
| |
Revolving Credit Agreement |
$ |
5,000 |
|
| |
Amended and Restated Loan and
Security Agreement |
|
4,951 |
|
| |
Convertible Debenture (Long
Term) |
|
19,500 |
|
| |
|
|
|
|
| |
Total Indebtedness |
$ |
29,451 |
|
-11-
PRICE RANGE OF OUR SHARES
On December 28, 2012, our common
shares commenced trading on the TSX Venture Exchange under the symbol “ANY”. On
July 8, 2014, our common shares commenced trading on the Nasdaq Global Market
under the symbol “ANY”. On December 10, 2014, we voluntarily delisted our common
shares from the TSXV.
The tables below set forth, for
the periods indicated, the per share high and low closing sales prices for our
common shares as reported on the Nasdaq and the TSXV. TSXV closing prices of our
common shares are presented in Canadian dollars, and the Nasdaq closing prices
of our common shares are presented in U.S. dollars.
TSXV:
| |
|
|
ANY shares
TSXV |
|
| |
|
|
(in C$)
|
|
| |
|
|
High |
|
|
Low |
|
| |
Annual information for
2012, 2013, 2014 |
|
|
|
|
|
|
| |
2012 (from
December 28, 2012) |
|
0.80 |
|
|
0.74 |
|
| |
2013 |
|
6.56 |
|
|
0.45 |
|
| |
2014
(through December 10, 2014) |
|
11.15 |
|
|
5.45 |
|
| |
Quarterly information for
the past two fiscal years and subsequent quarters: |
|
|
|
|
|
|
| |
2013, quarter ended |
|
|
|
|
|
|
| |
December 31 |
|
6.56 |
|
|
2.70 |
|
| |
September
30 |
|
2.88 |
|
|
0.50 |
|
| |
June 30 |
|
0.73 |
|
|
0.45 |
|
| |
March 31
|
|
0.85 |
|
|
0.53 |
|
| |
2014, quarter ended
|
|
|
|
|
|
|
| |
December 31
(through December 10, 2014) |
|
10.84 |
|
|
5.90 |
|
| |
September 30 |
|
11.15 |
|
|
6.70 |
|
| |
June 30 |
|
10.84 |
|
|
6.75 |
|
| |
March 31 |
|
8.49 |
|
|
5.45 |
|
Nasdaq:
| |
|
|
ANY shares
NASDAQ |
|
| |
|
|
(in
US$) |
|
| |
|
|
High |
|
|
Low |
|
| |
Annual information for
2014 |
|
|
|
|
|
|
| |
2014 (from
July 8, 2014) |
|
10.00 |
|
|
5.21 |
|
| |
2014, quarter ended
|
|
|
|
|
|
|
| |
December 31
|
|
9.50 |
|
|
5.21 |
|
| |
September 30 (from July 8, 2014) |
|
10.00 |
|
|
6.15 |
|
| |
2015, quarter ended |
|
|
|
|
|
|
| |
September 30 (through July 28, 2015) |
|
5.71 |
|
|
5.03 |
|
| |
June 30 |
|
5.17 |
|
|
3.14 |
|
| |
March 31 |
|
7.13 |
|
|
3.47 |
|
| |
Monthly information for the most recent
six months |
|
|
|
|
|
|
| |
February 2015 |
|
4.66 |
|
|
3.47 |
|
| |
March 2015
|
|
7.13 |
|
|
3.70 |
|
| |
April 2015 |
|
4.27 |
|
|
3.14 |
|
| |
May 2015
|
|
4.22 |
|
|
3.32 |
|
| |
June 2015 |
|
5.17 |
|
|
3.66 |
|
| |
July 2015 |
|
5.71 |
|
|
4.95 |
|
-12-
Fluctuations in the exchange rate
between the Canadian dollar and the U.S. dollar will affect any comparisons of
our common shares traded on the TSXV and our common shares traded on the Nasdaq.
ENFORCEABILITY OF CIVIL LIABILITIES AGAINST FOREIGN PERSONS
We are a corporation governed by
the Business Corporations Act (Ontario) and by the applicable federal laws of
Canada. Certain of our directors and officers and some of the experts named in
this prospectus reside outside the United States and a majority of their assets
are located outside the United States. It may not be possible for you to effect
service of process within the United States on these persons. Furthermore, it
may not be possible for you to enforce against us or them, in the United States,
judgments obtained in United States courts, because a significant portion of our
assets and the assets of these persons are located outside the United
States.
We have been advised that there
are strong defenses that can be raised to the enforceability, in original
actions in Canadian courts, of liabilities based on the United States federal
securities laws or “blue sky” laws of any state within the United States and to
the enforceability in Canadian courts of judgments of United States courts
obtained in actions based on the civil liability provisions of the United States
federal securities laws or any such state securities or blue sky laws such that
the enforcement in Canada of such liabilities and judgments is not certain such
that the enforcement in Canada of such liabilities and judgements is not certain.
Therefore, it may not be possible to enforce those judgments against us, our
directors and officers and some of the experts named in this prospectus.
OFFERING EXPENSES
The following table sets forth
the estimated fees and expenses, other than underwriting discounts and
commissions, expected to be incurred in connection with the offering or
offerings described in this registration statement. The estimates do not include
expenses related to offerings of particular securities. Each prospectus
supplement describing an offering of securities will reflect the estimated
expenses related to the offering of securities under that prospectus supplement.
All amounts shown are estimates except for the SEC registration fee.
| |
SEC registration fee
|
$ |
4,648 |
|
| |
Legal fees and expenses |
|
* |
|
| |
Accounting fees and expenses
|
|
* |
|
| |
Miscellaneous expenses |
|
* |
|
| |
Total |
$ |
* |
|
|
|
(*) |
Estimated expenses are not presently known. An estimate
of the aggregate expenses in connection with sale and distribution of our
common shares being offered will be included in the applicable prospectus
supplement. |
SHARE CAPITAL
As of August 13, 2015, 39,571,357(1) common shares were issued and outstanding, all of which have been duly approved
and are registered on our books. Our articles of amalgamation permit the
issuance of an unlimited number of common shares. All of the outstanding common
shares are fully paid and non-assessable. Within the past five years, more than
10% of our capital stock has been paid for with assets other than cash.
Our articles of amalgamation and Registration Statement on Form 8-A describe the
rights attached to our common
shares more fully. These documents are filed as exhibits to the registration
statement of which this prospectus forms a part or are incorporated by
reference. See the section entitled “Where You Can Find Additional Information”
on page 1.
|
|
(1) |
The number of common shares shown to be outstanding does
not include common shares issuable or reserved for issuance upon the
exercise of outstanding warrants or options granted or available under our
equity compensation plans. At our June 2015 annual meeting of our
shareholders, the shareholders ratified the adoption of our 2015 Performance
Incentive Plan, initially authorizing the award of up to a maximum of
8,790,315 common shares pursuant to the plan, as well as our Employee Stock
Purchase Plan, authorizing the purchase by employees of up to 2,000,000
common shares under the plan. |
-13-
DESCRIPTION OF WARRANTS
We may issue warrants for the
purchase of common shares in one or more series. We may issue warrants
independently or together with common shares, and the warrants may be attached
to or separate from these securities. While the terms summarized below will
apply generally to any warrants that we may sell, we will describe the
particular terms of any series of warrants in more detail in the applicable
prospectus supplement. The terms of any warrants offered under a prospectus
supplement may differ from the terms described below.
We will file as exhibits to the
registration statement of which this prospectus is a part, or will incorporate
by reference from reports that we file with the SEC, the form of warrant
agreement, including a form of warrant certificate, that describes the terms of
the particular series of warrants we are offering before the issuance of the
related series of warrants. The following summaries of material provisions of
the warrants and the warrant agreements are subject to, and qualified in their
entirety by reference to, all the provisions of the warrant agreement and
warrant certificate applicable to the particular series of warrants that we may
offer under this prospectus and the accompanying prospectus supplement. We urge
you to read the applicable prospectus supplements related to the particular
series of warrants that we may offer under this prospectus, as well as any
related free writing prospectuses, and the complete warrant agreements and
warrant certificates that contain the terms of the warrants.
General
You should review the applicable
prospectus supplement for the specific terms of any warrants that may be
offered, including the following:
| |
• |
the title of the warrants; |
| |
|
|
| |
• |
the aggregate number of the warrants; |
| |
|
|
| |
• |
the price or prices at which the warrants will be issued;
|
| |
|
|
| |
• |
the number of shares and the purchase price per share of
common shares purchasable upon the exercise of warrants to purchase common
shares; |
| |
|
|
| |
• |
if applicable, the date on and after which the warrants
and the related securities will be separately transferable; |
| |
|
|
| |
• |
the effect of any merger, consolidation, sale or other
disposition of our business on the warrant agreements and the warrants;
|
| |
|
|
| |
• |
the terms of any rights to redeem or call the warrants;
|
| |
|
|
| |
• |
any provisions for changes to or adjustments in the
exercise price or number of securities issuable upon exercise of the
warrants; |
| |
|
|
| |
• |
the date on which the right to exercise the warrants will
commence and the date on which the right will expire; |
| |
|
|
| |
• |
if applicable, the minimum or maximum number of warrants
that may be exercised at any one time; |
| |
|
|
| |
• |
the manner in which the warrant agreements and warrants
may be modified; |
| |
|
|
| |
• |
information relating to book-entry procedures, if any;
|
| |
|
|
| |
• |
if applicable, a discussion of material United States
federal income tax considerations of holding or exercising the warrants;
and |
| |
|
|
| |
• |
any other terms of the warrants, including terms,
procedures and limitations relating to the exchange and exercise of the
warrants. |
Before exercising their warrants,
holders of warrants will not have any of the rights of holders of the securities
purchasable upon such exercise, including, the right to receive dividends, if
any, or, payments upon our liquidation, dissolution or winding up or to exercise
voting rights, if any.
Exercise of Warrants
Each warrant will entitle the
holder to purchase the securities that we specify in the applicable prospectus
supplement at the exercise price that we describe in the applicable prospectus
supplement. Unless we otherwise specify in the applicable prospectus supplement,
holders of the warrants may exercise the warrants at any time up to the
specified time on the expiration date that we set forth in the applicable prospectus supplement. After the close
of business on the expiration date, unexercised warrants will become void.
-14-
Holders of the warrants may
exercise the warrants by delivering the warrant certificate representing the
warrants to be exercised together with specified information, and paying the
required amount to the warrant agent in immediately available funds, as provided
in the applicable prospectus supplement. We will set forth on the reverse side
of the warrant certificate and in the applicable prospectus supplement the
information that the holder of the warrant will be required to deliver to the
warrant agent.
Upon receipt of the required
payment and the warrant certificate properly completed and duly executed at the
corporate trust office of the warrant agent or any other office indicated in the
applicable prospectus supplement, we will issue and deliver the securities
purchasable upon such exercise. If fewer than all of the warrants represented by
the warrant certificate are exercised, then we will issue a new warrant
certificate for the remaining amount of warrants. If we so indicate in the
applicable prospectus supplement, holders of the warrants may surrender
securities as all or part of the exercise price for warrants.
Enforceability of Rights By Holders of Warrants
Each series of warrants will be
issued under a separate warrant agreement to be entered into between a warrant
agent and us. Each warrant agent will act solely as our agent under the
applicable warrant agreement and will not assume any obligation or relationship
of agency or trust with any holder of any warrant. A single bank or trust
company may act as warrant agent for more than one issue of warrants. A warrant
agent will have no duty or responsibility in case of any default by us under the
applicable warrant agreement or warrant, including any duty or responsibility to
initiate any proceedings at law or otherwise, or to make any demand upon us. Any
holder of a warrant may, without the consent of the related warrant agent or the
holder of any other warrant, enforce by appropriate legal action its right to
exercise, and receive the securities purchasable upon exercise of, its
warrants.
Amendments and Supplements to the Warrant Agreements
We may amend or supplement a
warrant agreement without the consent of the holders of the applicable warrants
to cure ambiguities in the warrant agreement, to cure or correct a defective
provision in the warrant agreement, or to provide for other matters under the
warrant agreement that we and the warrant agent deem necessary or desirable, so
long as, in each case, such amendments or supplements do not materially
adversely affect the interests of the holders of the warrants.
Warrant Adjustments
Unless the applicable prospectus
supplement states otherwise, the exercise price of, and the number of securities
covered by, a warrant to purchase common shares will be adjusted proportionately
if we subdivide or combine our common shares. In addition, unless the prospectus
supplement states otherwise, if we, without payment:
| |
• |
issue capital stock or other securities convertible into
or exchangeable for common shares, or any rights to subscribe for,
purchase or otherwise acquire common shares, as a dividend or distribution
to holders of our common shares; |
| |
|
|
| |
• |
pay any cash to holders of our common shares other than a
cash dividend paid out of our current or retained earnings; |
| |
|
|
| |
• |
issue any evidence of our indebtedness or rights to
subscribe for or purchase our indebtedness to holders of our common
shares; or |
| |
|
|
| |
• |
issue common shares or additional stock or other
securities or property to holders of our common shares by way of spinoff,
split-up, reclassification, combination of shares or similar corporate
rearrangement, |
then the holders of common share warrants will be entitled to
receive upon exercise of the warrants, in addition to the securities otherwise
receivable upon exercise of the warrants and without paying any additional
consideration, the amount of common shares and other securities and property
those holders would have been entitled to receive had they held the common
shares issuable under the warrants on the dates on which holders of those
securities received or became entitled to receive the additional common shares
and other securities and property.
Except as stated above, the
exercise price and number of securities covered by a common share warrant, and
the amounts of other securities or property to be received, if any, upon
exercise of those warrants, will not be adjusted or provided for if we issue
those securities or any securities convertible into or exchangeable for those
securities, or securities carrying the right to purchase those securities or
securities convertible into or exchangeable for those securities.
Holders of common share warrants
may have additional rights under the following circumstances:
-15-
| |
• |
certain reclassifications, capital
reorganizations or changes of the common shares, as applicable; |
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• |
certain share exchanges, mergers, or similar
transactions involving our company and which result in changes of the
common shares, as applicable; or |
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• |
certain sales or dispositions to another entity
of all or substantially all of our property and assets.
|
If one of the above transactions
occurs and holders of our common shares are entitled to receive common shares,
securities or other property with respect to or in exchange for their
securities, the holders of the common share warrants then outstanding will be
entitled to receive upon exercise of their warrants the kind and amount of
common shares and other securities or property that they would have received
upon the applicable transaction if they had exercised their warrants immediately
before the transaction.
INDEMNIFICATION OF DIRECTORS AND OFFICERS
Under the Business Corporations
Act (Ontario), we may indemnify a director or officer, a former director or
officer or another individual who acts or acted at our request as a director or
officer, or an individual acting in a similar capacity, of another entity,
against all costs, charges and expenses, including an amount paid to settle an
action or satisfy a judgment, reasonably incurred by the individual in respect
of any civil, criminal, administrative, investigative or other proceeding in
which the individual is involved because of that association with us or another
entity on condition that (i) the individual acted honestly and in good faith
with a view to our best interests or, as the case may be, to the best interests
of the other entity for which the individual acted as a director or officer or
in a similar capacity at our request, and (ii) in the case of a criminal or
administrative action or proceeding that is enforced by a monetary penalty, the
individual also had reasonable grounds for believing that his or her conduct was
lawful. Further, we may, with court approval, indemnify an individual described
above in respect of an action by or on our behalf or other entity to obtain a
judgment in its favor, to which the individual is made a party because of the
individual’s association with us or another entity, against all costs, charges
and expenses reasonably incurred by the individual in connection with such
action if the individual fulfills condition (i) above. An individual as
described above is entitled as a matter of right to indemnification from us in
respect of all costs, charges and expenses reasonably incurred by such
individual in connection with the defense of any civil, criminal,
administrative, investigative or other proceedings to which such individual is
subject if he or she was not judged by a court or other competent authority to
have committed any fault or omitted to do anything that he or she ought to have
done, and has fulfilled conditions (i) and (ii) above.
In accordance with the Business
Corporations Act (Ontario), we have agreed to indemnify each of our directors
and officers against all costs, charges and expenses, including an amount paid
to settle an action or satisfy a judgment, reasonably incurred by him in respect
of any civil, criminal, administrative action or proceeding in which such
individual is involved by reason of his association with us or another entity if
he acted honestly and in good faith with a view to our best interests or such
other entity, and he had reasonable grounds for believing that his conduct was
lawful.
We maintain a policy of
directors’ and officers’ liability insurance, which insures directors and
officers for losses as a result of claims against our directors and officers in
their capacity as directors and officers and also reimburses us for payments
made pursuant to the indemnity provisions under our bylaws and the Business
Corporations Act (Ontario).
Insofar as indemnification for
liabilities arising under the Securities Act may be permitted to directors,
officers or persons controlling us pursuant to the foregoing provisions, we have
been informed that in the opinion of the SEC such indemnification is against
public policy as expressed in the Securities Act and is therefore unenforceable.
LEGAL MATTERS
The validity of the common shares
offered hereby will be passed upon for us by Stikeman Elliot LLP, 1155
René-Lévesque Blvd. West, 40th Floor, Montréal, QC H3B 3V2.
-16-
EXPERTS
Moss Adams LLP, 4747 Executive
Drive, Suite 1300, San Diego, CA 92121, an independent registered public
accounting firm, has audited our consolidated financial statements as of
December 31, 2014, and for the year then ended, included in our Annual Report on
Form 40-F for the year ended December 31, 2014, as set forth in its report,
which is incorporated by reference in this prospectus and elsewhere in the
registration statement of which this prospectus forms a part. Further, Moss
Adams has audited the consolidated financial statements of Overland Storage,
Inc., as of June 30, 2014 and 2013, and for the years then ended, included in
our Form F-4, as set forth in its report, which is incorporated by reference in
this prospectus and elsewhere in the registration statement of which this
prospectus forms a part. Such consolidated financial statements are incorporated
herein by reference in reliance upon such report given on the authority of such
firm as experts in accounting and auditing.
Collins Barrow Toronto LLP,
Collins Barrow Place 11 King Street West, Suite 700 Toronto, Ontario M5H 4C7, a
licensed public accounting firm, has audited our consolidated financial
statements at December 31, 2013 and for the year ended December 31, 2013
included in our Annual Report on Form 40-F for the year ended December 31, 2014,
as set forth in its report, which is incorporated by reference in this
prospectus and elsewhere in the registration statement of which this prospectus
forms a part. Further, Collins Barrow has audited our consolidated balance
sheets, as of December 31, 2013 and 2012, and the related consolidated
statements of operations, equity and comprehensive income (loss), and cash flows
for the fiscal years ended December 31, 2013 and 2012 included in our Form F-4,
as set forth in its report, which is incorporated by reference in this
prospectus and elsewhere in the registration statement of which this prospectus
forms a part. Such consolidated financial statements are incorporated herein by
reference in reliance upon such report given on the authority of such firm as
experts in accounting and auditing.
RSM Deutschland GmbH
Wirtschaftsprüfungsgesellschaft, Friedrichstrasse 188, D-10117 Berlin, has
audited the consolidated balance sheets of the Tandberg Companies, as of
December 31, 2013 and 2012, and the related audited consolidated statements of
operations, equity and comprehensive income (loss), and cash flows for the years
ended December 31, 2013 and 2012 included in our Form F-4, as set forth in its
report, which is incorporated by reference in this prospectus and elsewhere in
the registration statement of which this prospectus forms a part. Such
consolidated financial statements are incorporated herein by reference in
reliance upon such report given on the authority of such firm as experts in
accounting and auditing.
-17-
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
| Item 9. |
Exhibits and Financial Statement
Schedules |
The exhibits to this registration
statement are listed in the Exhibit Index that appears immediately following the
signature pages of this registration statement. Such Exhibit Index is hereby
incorporated in this Item 9 by reference.
(a) 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
Securities and Exchange 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.
(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 (i), (ii), and (iii)
do not apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in reports filed with or furnished to
the Commission 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, or is contained in a form of prospectus filed pursuant
to Rule 424(b) that is part of 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.
4. To file a post-effective amendment
to the registration statement to include any financial statements required by
Item 8.A. of Form 20-F at the start of any delayed offering or throughout a
continuous offering. Financial statements and information otherwise required by
Section 10(a)(3) of the Securities Act need not be furnished, provided, that we
include in the prospectus, by means of a post-effective amendment, financial
statements required pursuant to this paragraph (4) and other information
necessary to ensure that all other information in the prospectus is at least as
current as the date of those financial statements. Notwithstanding the
foregoing, a post-effective amendment need not be filed to include financial
statements and information required by Section 10(a)(3) of the Securities Act or
Rule 3-19 of Regulation S-X if such financial statements and information are
contained in periodic reports filed with or furnished to the SEC by the
Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are
incorporated by reference in this Registration Statement.
5. That, for purposes of determining
liability under the Securities Act of 1933 to any purchaser:
(i) if relying on Rule 430B:
(A) Each prospectus filed by the
registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the
registration statement as of the date the filed prospectus was deemed part of
and included in the registration statement; and
(B) Each prospectus required to be
filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration
statement in reliance on Rule 430B relating to an offering made pursuant to Rule
415(a)(1)(i), (vii), or (x) for the purpose of providing the information
required by section 10(a) of the Securities Act of 1933 shall be deemed to be
part of and included in the registration statement as of the earlier of the date
such form of prospectus is first used after effectiveness or the date of the
first contract of sale of securities in the offering described in the
prospectus. As provided in Rule 430B, for liability purposes of the issuer and
any person that is at that date an underwriter, such date shall be deemed to be
a new effective date of the registration statement relating to the securities in
the registration statement to which that prospectus relates, and the offering of
such securities at that time shall be deemed to be the initial bona fide
offering thereof. Provided, however, that no statement made in a
registration statement or prospectus that is part of the registration statement
or made in a document incorporated or deemed incorporated by reference into the
registration statement or prospectus that is part of the registration statement
will, as to a purchaser with a time of contract of sale prior to such effective
date, supersede or modify any statement that was made in the registration
statement or prospectus that was part of the registration statement or made in
any such document immediately prior to such effective date.
(ii) if subject to 430C, each
prospectus filed pursuant to Rule 424(b) as part of a registration statement
relating to an offering, other than registration statements relying on Rule 430B
or other than prospectuses filed in reliance on Rule 430A, shall be deemed to be
part of and included in the registration statement as of the date it is first
used after effectiveness. Provided, however, that no statement made in a
registration statement or prospectus that is part of the registration statement
or made in a document incorporated or deemed incorporated by reference into the
registration statement or prospectus that is part of the registration statement
will, as to a purchaser with a time of contract of sale prior to such first use,
supersede or modify any statement that was made in the registration statement or
prospectus that was part of the registration statement or made in any such
document immediately prior to such date of first use.
6. That, for the purpose of determining
liability under the Securities Act of 1933 to any purchaser in the initial
distribution of the securities: the undersigned registrant undertakes that in a
primary offering of securities pursuant to this registration statement,
regardless of the underwriting method used to sell the securities to the
purchaser, if the securities are offered or sold to such purchaser by means of
any of the following communications, the undersigned registrant will be a seller
to the purchaser and will be considered to offer or sell such securities to such
purchaser:
(i) Any preliminary prospectus or
prospectus of the undersigned registrant relating to the offering required to be
filed pursuant to Rule 424;
(ii) Any free writing prospectus
relating to the offering prepared by or on behalf of the undersigned registrant
or used or referred to by the undersigned registrant;
(iii) The portion of any other free
writing prospectus relating to the offering containing material information
about the undersigned registrant or its securities provided by or on behalf of
the undersigned registrant; and
(iv) Any other communication that is
an offer in the offering made by the undersigned registrant to the purchaser.
(b) The undersigned registrant hereby
undertakes that, for purposes of determining any liability under the Securities
Act of 1933, each filing of the registrant’s annual report pursuant to Section
13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and, where
applicable, each filing of an employee benefit plan’s annual report pursuant to
Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by
reference in the registration statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide
offering thereof.
(c) Insofar as indemnification for
liabilities arising under the Securities Act of 1933 may be permitted to
directors, officers and controlling persons of the registrant pursuant to the
foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Commission such indemnification is
against public policy as expressed in the Act and is, therefore, unenforceable.
In the event that a claim for indemnification against such liabilities (other
than the payment by the registrant of expenses incurred or paid by a director,
officer or controlling person of the registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the registrant will,
unless in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
(d) The undersigned registrant hereby
undertakes that:
(i) For purposes of determining any
liability under the Securities Act of 1933, the information omitted from the
form of prospectus filed as part of this registration statement in reliance upon
Rule 430A and contained in a form of prospectus filed pursuant to Rule 424(b)
(1) or (4) or 497(h) under the Securities Act shall be deemed to be part of this
registration statement as of the time it was declared effective.
(ii) For the purpose of determining
any liability under the Securities Act of 1933, each post-effective amendment
that contains a form of prospectus 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.
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 F-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 Diego, State of
California, on this 13th day of August, 2015.
| SPHERE 3D CORP. |
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| By: |
/s/
ERIC L. KELLY |
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Eric L. Kelly |
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Chief Executive Officer
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POWER OF ATTORNEY
Each person whose signature
appears below hereby constitutes and appoints Eric L. Kelly and Kurt L.
Kalbfleisch, jointly and severally, as his or her attorney-in-fact, each with
the power of substitution, for him or her in any and all capacities, to sign any
and all amendments to this registration statement, including post-effective
amendments or any abbreviated registration statement and any amendments thereto
filed pursuant to Rule 462(b) increasing the number of securities for which
registration is sought, 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, with full power of
each to act alone, 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
for all intents and purposes as he or she might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and agents, or his or
her or their substitute or substitutes, 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 by the following persons in their capacities and on the date indicated.
| Signature |
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Title |
Date |
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| /s/
ERIC L. KELLY |
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Chairman of the Board and Chief
Executive Officer |
August 13, 2015 |
| Eric L. Kelly |
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(Principal Executive Officer) |
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| /s/
KURT L. KALBFLEISCH |
|
Chief Financial Officer |
August 13, 2015 |
| Kurt L. Kalbfleisch |
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(Principal Financial and Accounting Officer) |
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| /s/
PETER ASHKIN |
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Director |
August 13, 2015 |
| Peter Ashkin |
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| /s/
MARIO BIASINI |
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Director |
August 13, 2015 |
| Mario Biasini |
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| /s/
DANIEL J. BORDESSA |
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Director |
August 13, 2015 |
| Daniel J. Bordessa |
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| /s/
GLENN M. BOWMAN |
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Director |
August 13, 2015 |
| Glenn M. Bowman |
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| /s/
VIVEKANAND MAHADEVAN |
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Director |
August 13, 2015 |
| Vivekanand Mahadevan |
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| /s/
PETER TASSIOPOULOS |
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Director |
August 13, 2015 |
| Peter Tassiopoulos |
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EXHIBIT INDEX
Exhibit 4.2
Form of Common Share Certificate
Stikeman Elliott LLP Barristers & Solicitors
1155 René Lévesque Blvd. West, 40th Floor, Montréal, Quebec,
Canada H3B 3V2
Tel: (514) 397-3000 Fax: (514) 397-3222 www.stikeman.com
August 13, 2015
Sphere 3D Corp.
240 Matheson Boulevard East
Mississauga, ON L4Z 1X1
Canada
Dear Sirs/Mesdames:
| Re: |
Registration of common shares of Sphere 3D Corp. |
We have acted as Canadian special
counsel to Sphere 3D Corp., a corporation amalgamated under the Business
Corporations Act (Ontario) (the “Company”), in connection with the
registration under the United States Securities Act of 1933, as amended (the
“Act”), pursuant to a Registration Statement on Form F-3 (the
“Registration Statement”), filed on or about the date hereof with the
United States Securities and Exchange Commission, relating to the offer and
sale, from time to time by the Company of such indeterminate number of common shares of the Company (the
“Shares”) and/or warrants (the “Warrants” and together with the
Shares, the “Registration Securities”) to purchase common shares of the
Company (the “Underlying Shares”) in any combination as shall have
an aggregate initial offering price not to exceed $40,000,000.
The Registration Securities may
be sold by the Company from time to time as set forth in the Registration
Statement, the prospectus which forms a part of the Registration Statement (the
“Prospectus”) and as to be set forth in one or more supplements to such
Prospectus (each, a “Prospectus Supplement”). The Warrants may be issued
under warrant agreements, indentures and/or certificates (collectively, the
“Warrant Documents”), to be entered into among the Company and other
applicable parties thereto.
For the purposes of this opinion,
we have examined copies of the Registration Statement and the Prospectus. We
have also examined originals or copies, certified or otherwise identified to our
satisfaction, of and relied upon the following documents (collectively, the
“Corporate Documents”):
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(a) |
the certificate and articles of amalgamation of the
Company (the “Articles”); |
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(b) |
the by-laws of the Company (together with the Articles,
the “Constating Documents”); |
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(c) |
certain resolutions of the Company’s directors;
and |
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(d) |
a certificate of an officer of the Company (the
“Officer’s Certificate”). |
We also have reviewed such other
documents, and have considered such questions of law, as we have deemed relevant
and necessary as a basis for the opinion expressed herein. We have relied upon the Corporate Documents without independent
investigation of the matters provided for therein for the purpose of providing
our opinion expressed herein.
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2
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In examining all documents and in
providing our opinion expressed herein we have assumed that:
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(a) |
all individuals had the requisite legal
capacity; |
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(b) |
all signatures are genuine; |
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(c) |
all documents submitted to us as originals are complete
and authentic and all photostatic, certified, telecopied, notarial or
other copies conform to the originals; |
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(d) |
all facts set forth in the official public records,
certificates and documents supplied by public officials or otherwise
conveyed to us by public officials are complete, true and
accurate; |
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(e) |
the certificate of amalgamation of the Company is
conclusive evidence that the Company is amalgamated under the Business
Corporations Act (Ontario); |
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(f) |
all facts set forth in the certificates supplied by the
respective officers and directors, as applicable, of the Company
including, without limitation, the Officer’s Certificate, are complete,
true and accurate; |
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(g) |
at the time of the issuance of any Registration
Securities, the Constating Documents and applicable laws shall not have
been amended so as to affect the validity of such issuance; |
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(h) |
an appropriate Prospectus Supplement with respect to the
Registration Securities will have been prepared and filed in compliance
with the Act and the applicable rules and regulations
thereunder; |
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(i) |
at or prior to the time of the delivery of any
Registration Securities, the Registration Statement, as finally amended
(including all necessary post-effective amendments), will have become
effective under the Act and such effectiveness will not have been
terminated or rescinded; |
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(j) |
the Registration Securities are issued in accordance with
the terms of their governing instruments, and so as not to violate any
applicable law, Warrant Document or other governing document, or result in
a default under or breach of any agreement or instrument binding upon the
Company, and so as to comply with any requirement or restriction imposed
by any court or governmental body having jurisdiction over the
Company; |
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(k) |
the board of directors of the Company, any appropriate
committee duly appointed thereby, and appropriate officers of the Company,
will have taken all necessary corporate action, including the adoption of
a resolution or resolutions of the board of directors in form and content
as required by applicable law, to approve the issuance, reservation (if
applicable), and terms of the Registration Securities, the consideration
to be received therefor, the Warrant Documents and the execution thereof,
and related matters (the
“Authorization”); |
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3 |
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(l) |
all applicable Warrant Documents will have been duly
authorized, executed and delivered by the Company and the other parties
thereto, and constitute legally binding and valid obligations of the
parties thereto, enforceable against each of them in accordance with their
terms; |
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(m) |
all Registration Securities will be offered, issued and
sold in compliance with applicable United States federal and state
securities laws and in the manner stated in the Registration Statement,
the Prospectus and the appropriate Prospectus Supplement; and |
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(n) |
if the Registration Securities are to be sold pursuant to
a definitive purchase, subscription, underwriting or similar agreement,
such agreement will have been duly authorized, executed and delivered by
the Company and the other parties thereto, enforceable against each of
them in accordance with its terms. |
We express no opinion as to any
laws, or matters governed by any laws, other than the laws of the province of
Ontario and the federal laws of Canada applicable therein. Our opinion is
expressed with respect to the laws in effect on the date of this opinion and we
do not accept any responsibility to take into account or inform the addressee,
or any other person authorized to rely on this opinion, of any changes in law,
facts or other developments subsequent to this date that do or may affect the
opinion we express, nor do we have any obligation to advise you of any other
change in any matter addressed in this opinion or to consider whether it would
be appropriate for any person other than the addressee to rely on our opinion.
Where our opinion expressed
herein refers to consideration being paid for the Registration Securities, no
opinion is expressed as to the adequacy of any consideration received.
Based and relying upon the foregoing, we are of the opinion
that:
| |
(a) |
When the terms, issuance and sale of the Shares, the
Registration Statement, have been
duly authorized and established by applicable Authorization, in accordance
with the Constating Documents, the Registration Statement, and applicable law, and when (i) all
required consideration (in whatever form), determined to be adequate by
the Authorization, for the Shares has been received in full by the
Company, and (ii) if certificated, the certificates representing the
Shares have been duly executed and delivered by the proper officers of the
Company to the purchasers thereof against payment of the agreed- upon
consideration therefor in the manner contemplated in the Authorization,
any definitive purchase, subscription, underwriting or similar agreement,
the Registration Statement, the Prospectus and any Prospectus Supplement
relating thereto, the Shares will be validly issued as fully paid and
non-assessable. |
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(b) |
When the terms, issuance, and sale of the Warrants, the
performance under the Warrant Documents, the reservation and issuance of
the Underlying Shares upon the exercise of the Warrants, and the Warrant
Documents have been duly authorized and established by applicable
Authorization, in accordance with the Constating Documents, the
Registration Statement, and applicable
law, and when (i) all required consideration (in whatever form),
determined to be adequate by the Authorization, for the Warrants has been
received in full by the Company; and (ii) the certificates representing
the Warrants have been duly executed, countersigned (if required), issued,
and delivered to the purchasers thereof against payment of the agreed-upon
consideration therefor in the manner contemplated in the Authorization, any definitive purchase,
subscription, underwriting or similar agreement, the Warrant Documents, the
Registration Statement, the Prospectus and any Prospectus Supplement, the
Warrants will be validly issued as fully paid and non-assessable. |
|
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4 |
This opinion has been prepared
for your use in connection with the Registration Statement and is expressed as
of the date hereof. Our opinion is expressly limited to the matters set forth
above and we render no opinion, whether by implication or otherwise, as to any
other matters relating to the Company, the Registration Statement or the
Registration Securities.
We hereby consent to the filing
of this opinion as an exhibit to the Registration Statement and to the reference
to this firm on the cover page and under the caption "Legal Matters". In giving
this consent, we do not admit that we are within the category of persons whose
consent is required under the Act or the rules and regulations promulgated
thereunder. This opinion may not be quoted from or referred to in any documents
other than the Registration Statement as provided for herein without our prior
written consent.
Yours truly,
/s/ Stikeman Elliot LPP
Exhibit 23.1
Collins Barrow Toronto LLP
Collins Barrow Place
11 King
Street West
Suite 700, PO Box 27
Toronto, Ontario
M5H 4C7 Canada
T. 416.480.0160
F. 416.480.2646
www.collinsbarrow.com
Consent of Independent Registered Public Accounting
Firm
The Board of Directors of Sphere 3D Corp.
We consent to the incorporation by reference in this registration statement on
Form F-3 of Sphere 3D Corp., being filed with the United States Securities and
Exchange Commission of:
| • |
our Independent Auditors’ Report dated October
14, 2014, on the consolidated financial statements of Sphere 3D Corp.,
which comprise the consolidated balance sheets as at December 31, 2013 and
December 31, 2012 and the consolidated statements of loss and
comprehensive loss, changes in equity and cash flows for the years ended
December 31, 2013 and 2012 and a summary of significant accounting
policies and other explanatory information, prepared in accordance with
International Financial Reporting Standards as issued by the International
Accounting Standards Board; |
| • |
our Independent Auditors’ Report dated April
10, 2013, on the consolidated financial statements of Sphere 3D Corp.,
which comprise the consolidated balance sheets as at December 31, 2012 and
December 31, 2011 and the consolidated statements of loss and
comprehensive loss, changes in equity and cash flows for the years ended
December 31, 2012 and 2011 and a summary of significant accounting
policies and other explanatory information, prepared in accordance with
International Financial Reporting Standards as issued by the International
Accounting Standards Board. |
Licensed Public Accountants
Chartered Accountants
August 13, 2015
Toronto, Canada
Collins Barrow Toronto LLP
Collins Barrow Place
11 King
Street West
Suite 700, PO Box 27
Toronto, Ontario
M5H 4C7 Canada
T. 416.480.0160
F. 416.480.2646
www.collinsbarrow.com
Consent of Independent Registered Public Accounting
Firm
The Board of Directors of Sphere 3D Corp.
We consent to the incorporation by reference in this registration statement on
Form F-3 of Sphere 3D Corp., being filed with the United States Securities and
Exchange Commission of:
| • |
our Independent Auditors’ Report dated March
31, 2015, on the consolidated financial statements of Sphere 3D Corp.,
which comprise the consolidated balance sheet as at December 31, 2013 and
the consolidated statements of operations, comprehensive loss,
shareholders’ equity and cash flows for the year ended December 31, 2013.
|
Licensed Public Accountants
Chartered Accountants
August 13, 2015
Toronto, Canada
Exhibit 23.2
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We consent to the incorporation by reference in this
Registration Statement on Form F-3 of Sphere 3D Corp. of our report dated March
31, 2015, relating to the 2014 consolidated financial statements of Sphere 3D
Corp. (which report expresses an unqualified opinion and includes an explanatory
paragraph regarding Sphere 3D Corp.’s going concern uncertainty), appearing in
its Annual Report on Form 40-F for the year ended December 31, 2014, filed with
the Securities and Exchange Commission.
/s/ Moss Adams LLP
San Diego, California
August 13, 2015
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We consent to the incorporation by reference in this
Registration Statement on Form F-3 of Sphere 3D Corp. of our report dated
September 23, 2014, relating to the consolidated financial statements of
Overland Storage, Inc. as of and for the years ended June 30, 2014 and 2013,
appearing in the Registration Statement of Sphere 3D Corp. on Form F-4/A (No.
333-197569), filed with the Securities and Exchange Commission.
/s/ Moss Adams LLP
San Diego, California
August 13, 2015
Exhibit 23.3
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We consent to the incorporation by reference in this
Registration Statement on Form F-3 of Sphere 3D Corp. (the “Company”) of our
report dated May 14, 2014, with respect to the consolidated financial statements
of Tandberg Data Holdings S.à r.l., which report appears in the Company’s
Registration Statement on Form F- 4/A (number 333-197569) filed with the
Securities and Exchange Commission.
/s/ RSM Deutschland GmbH Wirtschaftsprüfungsgesellschaft
Berlin, Germany
August 13, 2015
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