As filed with the Securities and Exchange Commission on January
29, 2016
Registration No. __________________
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
___________________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
___________________
SPHERE 3D CORP.
(Exact Name of Registrant as Specified in Its Charter)
___________________
Ontario, Canada |
98-1220792 |
(State or Other Jurisdiction of |
(I.R.S. Employer |
Incorporation or Organization) |
Identification No.) |
240 Matheson Blvd. East
Mississauga, Ontario
L4Z 1X1
(Address, Including Zip Code, of Principal Executive
Offices)
___________________
Inducement Restricted Share Unit Grants
(Full Title of the Plan)
___________________
DL SERVICES
Columbia Centre,
701 Fifth
Avenue,
Suite 6100, Seattle,
Washington,
98104
(206) 903-8800
(Name, Address and
Telephone Number, Including Area Code, of Agent for Service)
COPY TO:
Warren T. Lazarow, Esq.
Paul Sieben, Esq.
OMelveny & Myers LLP
2765 Sand Hill Road
Menlo Park, California 94025
(650) 473-2600
___________________
Indicate by check mark whether the registrant is a large
accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller
reporting company. See the definitions of large accelerated filer,
accelerated filer, and smaller reporting company in Rule 12b-2 of the
Exchange Act. (Check one):
Large accelerated filer [ ] |
Accelerated
filer
[ ] |
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Non-accelerated filer [X] |
Smaller reporting company [ ]
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CALCULATION OF REGISTRATION FEE |
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Proposed |
Proposed |
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Maximum |
Maximum |
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Title of |
Amount |
Offering |
Aggregate |
Amount Of |
Securities |
To Be |
Price |
Offering |
Registration |
To
Be Registered |
Registered |
Per
Share |
Price
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Fee
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Common Shares, no par value per share,
issuable pursuant to Restricted Stock Unit Inducement Grants |
458,000 (1) shares |
$1.30(2) |
$595,400(2) |
$60.00 |
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(1) |
This Registration Statement covers, in addition to the
number of common shares, no par value per share (the Common Shares) of
Sphere 3D Corp., a corporation incorporated under the laws of the Province
of Ontario (the Company or the Registrant), stated above, options and
other rights to purchase or acquire the shares of Common Stock covered by
this Registration Statement and, pursuant to Rule 416 under the Securities
Act of 1933, as amended (the Securities Act), an additional
indeterminate number of shares, options and rights that may be offered or
issued pursuant to the Inducement Restricted Share Unit Grants (the
Inducement Grants) as a result of one or more adjustments under the
award agreements that evidence the Inducement Grants to prevent dilution
resulting from one or more stock splits, stock dividends or similar
transactions. |
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(2) |
Estimated solely for the purpose of calculating the
registration fee in accordance with Rule 457(h) and 457(c) under the
Securities Act, based upon the average of the high and low prices of the
Common Shares on January 22, 2016 (which is within five business days
prior to the date of this filing), as quoted on the Nasdaq Global Select
Market. |
The Exhibit Index
for this Registration Statement is at page 9. |
PART I
INFORMATION REQUIRED IN THE
SECTION 10(a) PROSPECTUS
The document(s) containing the information
specified in Part I of Form S-8 will be sent or given to participants as
specified by Securities Act Rule 428(b)(1).
PART II
INFORMATION REQUIRED IN THE
REGISTRATION STATEMENT
Item
3. Incorporation of
Certain Documents by Reference
The following documents of the Company filed with
the Securities and Exchange Commission (the Commission) are incorporated
herein by reference:
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(a) |
The Registrants Annual Report on Form 40-F (File No.
001-36532) filed with the Commission on March 31, 2015, (the Form 40-F),
which includes the audited consolidated balance sheets of the Registrant
and subsidiaries as of December 31, 2014 and 2013, and the related audited
consolidated statements of operations, equity and comprehensive income
(loss), and cash flows for the years ended December 31, 2014 and
2013. |
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(b) |
The description of the Registrants common shares
contained in its Registration Statement on Form 8-A (File No. 001-36532)
filed with the Commission on July 7, 2014 pursuant to Section 12 of the
Securities Exchange Act of 1934, as amended (the Exchange Act), and any
other amendment or report filed for the purpose of updating such
description. |
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(c) |
The Registrants Registration Statement on Form F-4 (File
No. 333-197569) filed with the Commission on July 23, 2014, as
subsequently amended (the Form F- 4), which includes (i) the audited
consolidated balance sheets of the Registrant 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, (ii) the
consolidated audited balance sheets of Overland Storage, Inc. and
Subsidiaries (Overland) 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, (iii) the audited consolidated balance sheets of Tandberg Data S.à
r.l. and subsidiaries (Tandberg) 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, and (iv) the unaudited pro forma condensed combined
financial information of the Registrant, Overland and Tandberg giving
effect to the acquisition of Overland by the Registrant and derived from
the historical consolidated financial statements and notes thereto of the
Registrant, Overland and Tandberg contained in the Form F- 4. |
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(d) |
The Registrants Reports of Foreign Private Issuer on
Form 6-K (File No. 001-36532) furnished to the SEC on January 22, 2015
(excluding Exhibit 99.1, News Release dated January 22, 2015), February 9,
2015, February 13, 2015, March 25, 2015 (excluding Exhibit 99.1, News
Release dated March 23, 2015), March 31, 2015 (three reports), April 1,
2015, May 15, 2015, May 27, 2015, June 2, 2015, July 31, 2015, August 13,
2015 (excluding Exhibit 99.1, News Release dated August 13, 2015), August
14, 2015 (excluding Exhibit 99.8, News Release dated August 13, 2015),
September 15, 2015, October 7, 2015, November 16, 2015 (excluding Exhibit
99.1, News Release dated November 16, 2015), December 2, 2015, and
December 21, 2015. |
All documents subsequently filed by the Company pursuant
to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934,
as amended (the Exchange Act), and all Reports of Foreign Private Issuer on
Form 6-K (or portions thereof) subsequently furnished to the Commission that are
identified in such form as being incorporated by reference into this
Registration Statement prior to the filing of a post-effective amendment which
indicates that all securities offered hereby have been sold or which deregisters
all securities then remaining unsold, shall be deemed to be incorporated by
reference into this Registration Statement and to be a part hereof from the date
of filing of such documents; provided, however, that unless otherwise
identified, documents or information deemed to have been furnished and not filed
in accordance with Commission rules shall not be deemed incorporated by reference into this
Registration Statement. 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.
Item
4. Description of
Securities
Not applicable.
Item
5. Interests of
Named Experts and Counsel
Not applicable.
Item
6. Indemnification
of Directors and Officers
Under the Business Corporations Act (Ontario), the Company may
indemnify a director or officer, a former director or officer or another
individual who acts or acted at the Companys 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 the Company or other
entity on condition that (i) the individual acted honestly and in good faith
with a view to the best interests of the Company 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 the Companys 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, the Company may, with court approval,
indemnify an individual described above in respect of an action by or on behalf
of the Company or other entity to obtain a judgment in its favor, to which the
individual is made a party because of the individuals association with the
Company or other 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 the Company 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), the Company has agreed to indemnify each of its 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 the Company or other
entity if he acted honestly and in good faith with a view to the best interests
of the Company or such other entity, and he had reasonable grounds for believing
that his conduct was lawful.
A policy of directors and officers liability
insurance is maintained by the Registrant which insures directors and officers
for losses as a result of claims against the directors and officers of the
Registrant in their capacity as directors and officers and also reimburses the
Registrant for payments made pursuant to the indemnity provisions under the
by-laws of the Registrant and the Business Corporations Act (Ontario).
Insofar as indemnification for liabilities arising
under the Securities Act of 1933, as amended, may be permitted to directors,
officers or persons controlling the Company pursuant to the foregoing
provisions, the Company has been informed that in the opinion of the SEC such
indemnification is against public policy as expressed in the Securities Act of
1933, as amended, and is therefore unenforceable.
Item
7. Exemption from
Registration Claimed
Not applicable.
Item
8. Exhibits
See the attached Exhibit Index at page 9, which is incorporated herein by
reference.
Item
9. Undertakings
(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;
(ii) To reflect in
the prospectus any facts or events arising after the effective date of this
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 this Registration Statement;
(iii) To include any
material information with respect to the plan of distribution not previously
disclosed in this Registration Statement or any material change to such
information in this Registration Statement;
provided, however, that
paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the information required to
be included in a post-effective amendment by those paragraphs is contained in
reports filed with or furnished to the Commission by the Registrant pursuant to
Section 13 or 15(d) of the Exchange Act that are incorporated by reference in
this Registration Statement.
(2)
That, for the purpose of determining any liability under the Securities Act,
each such post-effective amendment shall be deemed to be a new registration
statement relating to the securities offered 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.
(b)
The undersigned Registrant hereby undertakes that, for purposes of determining
any liability under the Securities Act, each filing of the Registrants annual
report pursuant to Section 13(a) or 15(d) of the Exchange Act (and, where
applicable, each filing of an employee benefit plans annual report pursuant to
Section 15(d) of the Exchange Act) that is incorporated by reference in this
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.
(h)
Insofar as indemnification for liabilities arising under the Securities Act may
be permitted to directors, executive officers and controlling persons of the
Registrant pursuant to the provisions described in Item 6 above, or otherwise,
the Registrant has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the Registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
SIGNATURES
Pursuant
to the requirements of the Securities Act, the Registrant certifies that it has
reasonable grounds to believe that it meets all of the requirements for filing
on Form S-8 and has duly caused this Form S-8 Registration Statement to be
signed on its behalf by the undersigned, thereunto duly authorized, in the City
of San Jose, State of California, on January 29, 2016.
SPHERE 3D CORP.
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By: |
/s/ Eric Kelly |
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Eric Kelly |
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Chief Executive Officer
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6
POWER OF ATTORNEY
Each
person whose signature appears below constitutes and appoints Eric Kelly and
Peter Tassiopoulos, or either one or both of them, as his or her true and lawful
attorneys-in-fact and agents, with full power of substitution and
resubstitution, for him or her and in his or her name, place, and stead, in any
and all capacities, to sign any and all amendments (including post-effective
amendments, exhibits thereto and other documents in connection therewith) to
this Registration Statement, and to file the same, with all exhibits thereto,
and other documents in connection therewith, with the Commission, granting unto
said attorneys-in-fact and agents, and each of them, full power and authority to
do and perform each and every act and thing requisite and necessary to be done
in and about the premises, as fully to all intents and purposes as he or she
might or could do in person, hereby ratifying and confirming all that each of
said attorneys-in-fact and agents, or his substitute or substitutes, may
lawfully do or cause to be done by virtue hereof.
Pursuant
to the requirements of the Securities Act, this Registration Statement has been
signed below by the following persons in the capacities and on the dates
indicated.
Signature |
Title |
Date |
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/s/ Eric Kelly |
Chairman of the Board and Chief |
January 29, 2016 |
Eric Kelly |
Executive Officer |
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(Principal Executive Officer) |
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/s/ Kurt Kalbfleisch |
Chief Financial Officer |
January 29, 2016 |
Kurt Kalbfleisch |
(Principal Financial and Accounting |
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Officer) |
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/s/ Peter Ashkin |
Director |
January 29, 2016 |
Peter Ashkin |
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/s/ Mario Biasini |
Director |
January 29, 2016 |
Mario Biasini |
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/s/ Daniel J. Bordessa |
Director |
January 29, 2016 |
Daniel J. Bordessa |
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/s/ Glenn M. Bowman |
Director |
January 29, 2016 |
Glenn M. Bowman |
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/s/ Vivekanand Mahadevan |
Director |
January 29, 2016 |
Vivekanand Mahadevan |
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/s/ Peter Tassiopoulos |
Director |
January 29, 2016 |
Peter Tassiopoulos |
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7
SIGNATURE OF AUTHORIZED REPRESENTATIVE IN THE UNITED
STATES
Pursuant to the requirements of the Securities
Act, the undersigned, the duly authorized representative in the United States of
the Registrant, has signed this registration statement in the City of San Jose,
State of California on January 29, 2016.
AUTHORIZED U.S. REPRESENTATIVE
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By: |
/s/ Eric Kelly |
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Eric Kelly |
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Chairman of the Board and Chief
Executive Officer |
8
EXHIBIT INDEX
9
EXHIBIT 4.1
SPHERE 3D CORP.
RESTRICTED STOCK UNIT AWARD
AGREEMENT
(Inducement Grant)
THIS RESTRICTED STOCK UNIT AWARD AGREEMENT
(this Agreement) dated _____________________ by and between Sphere
3D Corp., a corporation incorporated under the laws of the Province of Ontario
(the Corporation), and ___________________________ (the
Grantee) evidences the award (the Award) granted by the
Corporation to the Grantee as to the number of the Corporations stock units
(Stock Units) first set forth below. The Award and this Agreement are
intended to qualify (i) for exemption from any requirement under the listing
rules that may be applicable to the Corporation that equity compensation
arrangements be approved by the Corporations shareholders, and (ii) for
exemption from the Canadian prospectus requirements.
Number of Stock Units:1 |
Award Date:
___________________________ |
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Vesting Commencement
Date:
_________________________________ |
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Vesting1 [The Stock
Units subject to the Award will vest in six (6) equal installments, with
the first installment vesting six (6) months after the Vesting
Commencement Date and an additional installment vesting at the end of each
six-month period thereafter.] [Subject to
adjustment to reflect the vesting schedule approved by the
Board for the particular grant.] |
The
Award is subject to the Terms and Conditions of Restricted Stock Units (the
Terms) attached to this Agreement (incorporated herein by this
reference). The Award has been granted to the Grantee in addition to, and not in
lieu of, any other form of compensation otherwise payable or to be paid to the
Grantee. The Grantees participation in the Award is voluntary. The parties
agree to the terms of the Award set forth herein. The Grantee acknowledges
receipt of a copy of the Terms.
As
used herein, the term stock unit means a non-voting unit of measurement
which is deemed for bookkeeping purposes to be equivalent to one outstanding
Common Share of the Corporation (subject to adjustment as provided in Section
7(a) of the Terms) solely for purposes of this Agreement. The Stock Units shall
be used solely as a device for the determination of the payment to eventually be
made to the Grantee if such Stock Units vest pursuant to the terms hereof. The
Stock Units shall not be treated as property or as a trust fund of any kind.
GRANTEE |
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SPHERE 3D CORP. |
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a corporation incorporated under the laws of
the Province of Ontario |
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Signature |
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By:___________________________________________
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Print Name: |
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Name:
________________________________________ |
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Print Name |
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Title:
_________________________________________ |
_______________________________
1 Subject to
adjustment under Section 7(a) of the Terms.
SPHERE 3D CORP.
TERMS AND CONDITIONS OF RESTRICTED
STOCK UNITS
(Inducement Grant)
1.
Vesting. Subject to Section 6 below, the Award shall vest and
become nonforfeitable as set forth on the cover page of this Agreement.
2.
Continuance of Employment/Service. The vesting schedule
requires continued employment or service through each applicable vesting date as
a condition to the vesting of the applicable installment of the Award and the
rights and benefits under this Agreement. Employment or service for only a
portion of the vesting period, even if a substantial portion, will not entitle
the Grantee to any proportionate vesting or avoid or mitigate a termination of
rights and benefits upon or following a termination of employment or services as
provided in Section 6 below.
Nothing
contained in this Agreement constitutes an employment or service commitment by
the Corporation, affects the Grantees status as an employee at will who is
subject to termination without cause, confers upon the Grantee any right to
remain employed by or in service to the Corporation or any corporation or other
entity a majority of whose outstanding voting stock or voting power is
beneficially owned directly or indirectly by the Corporation (a
Subsidiary), interferes in any way with the right of the Corporation or
any Subsidiary at any time to terminate such employment or services, or affects
the right of the Corporation or any Subsidiary to increase or decrease the
Grantees other compensation or benefits. Nothing in this Agreement, however, is
intended to adversely affect any independent contractual right of the Grantee
without his or her consent thereto.
3.
No Dividend and Voting Rights. The Grantee shall have no
rights as a shareholder of the Corporation, no dividend rights and no voting
rights, with respect to the Stock Units and any Common Shares underlying or
issuable in respect of such Stock Units until such Common Shares are actually
issued to and held of record by the Grantee. No adjustments will be made for
dividends or other rights of a holder for which the record date is prior to the
date of issuance of such shares.
4.
Restrictions on Transfer. Neither the Award, nor any interest
therein or amount or shares payable in respect thereof may be sold, assigned,
transferred, pledged or otherwise disposed of, alienated or encumbered, either
voluntarily or involuntarily. The transfer restrictions in the preceding
sentence shall not apply to (a) transfers to the Corporation, or (b) transfers
by will or the laws of descent and distribution, or (c) transfers to a family
member (or former family member) pursuant to a domestic relations order if
approved or ratified by the Administrator, or (d) subject to the written
approval of the Administrator and compliance with applicable federal,
provincial, state and foreign securities laws, transfers to a family member that
are not made for value (other than nominal consideration, settlement of marital
property rights, or for interests in an entity in which more than 50% of the
voting interests are held by the Grantee or by the Grantees family members).
As
used herein, the Administrator means the Board of Directors of the
Corporation (the Board) or one or more committees appointed by the
Board or another committee (within its delegated authority and in the manner and on the terms
authorized by the Board) to administer all or certain aspects of this
Agreement.
1
5.
Timing and Manner of Payment of Stock Units. Each Stock Unit
that becomes vested pursuant to the terms hereof (the date of such vesting, the
Vesting Date of such Stock Unit) will be paid on or as soon as
practicable after the Vesting Date (and in all events within two and one-half
months following the Vesting Date). In payment of the Stock Units, the
Corporation shall deliver to the Grantee a number of the Corporations common
shares (Common Shares) (either by delivering one or more certificates
for such shares or by entering such shares in book entry form, as determined by
the Corporation in its discretion, and, if the Grantee is a resident of Canada,
such shares to be issued from treasury if and to the extent required by
applicable law) equal to the number of Stock Units subject to this Award that
vest on the applicable Vesting Date, unless such Stock Units terminate prior to
the given Vesting Date pursuant to Section 6. The Award and the Corporations
obligation to deliver Common Shares or otherwise make payment with respect to
vested Stock Units is subject to (a) compliance with all applicable federal,
provincial, state, local and foreign laws, rules and regulations (including but
not limited to provincial, state and federal securities law and federal margin
requirements) and to such approvals by any listing, regulatory or governmental
authority as may, in the opinion of counsel for the Corporation, be necessary or
advisable in connection therewith and (b) the condition precedent that the
Grantee or other person entitled to receive any shares hereunder with respect to
the vested Stock Units deliver to the Corporation such assurances and
representations as the Administrator may deem necessary or desirable to assure
compliance with all applicable legal and accounting requirements. The Grantee
shall have no further rights with respect to any Stock Units that are paid or
that terminate pursuant to Section 6.
6.
Effect of Termination of Employment or Service; Change in Control;
[Employment Agreement].
(a)
General. Except as provided in Sections 6(b) and (c) below, the Grantees
Stock Units shall terminate to the extent such units have not become vested
prior to the Grantees Termination Date (as defined below). If any unvested
Stock Units are terminated hereunder, such Stock Units shall automatically
terminate and be cancelled as of the Termination Date without payment of any
consideration by the Corporation and without any other action by the Grantee, or
the Grantees beneficiary or personal representative, as the case may be. For
these purposes, Termination Date means the Grantees last day of actual
and active employment or service with the Corporation or any of its
Subsidiaries. For greater certainty, no period of notice of termination, if any,
or payment in lieu of notice that is given or ought to have been given pursuant
to the Grantees applicable employment agreement, contract for service or at law
that follows or is in respect of a period after the last date of actual and
active employment will be considered as extending Grantees period of employment
or services for purposes of determining the Grantees entitlement under the
Award.
(b)
[Acceleration Upon Certain Terminations.
(1)
If either (i) the Grantees employment or service with the Corporation or one of
its Subsidiaries terminates due to the Grantees Disability or death, or (ii) a
Change in Control Event occurs and, at any time within sixty (60) days before or two (2) years
after the Change in Control Event, the Grantees employment or service with the
Corporation or one of its Subsidiaries is terminated by the Corporation or such
Subsidiary without Cause or by the Executive for Good Reason, the Stock Units,
to the extent then outstanding and unvested, shall vest in full upon the date of
such termination of employment or service (or, if later, upon the Change in
Control Event).
2
(2)
If the Grantees employment or service with the Corporation or one of its
Subsidiaries is terminated by the Corporation or such Subsidiary without Cause
or by the Executive for Good Reason, and such termination occurs at any time
other than within sixty (60) days before or two (2) years after a Change in
Control Event, the Award will vest on the Termination Date with respect to a
number of Stock Units determined by multiplying (x) the number of
then-outstanding and unvested Stock Units that would have otherwise vested on
the next scheduled Vesting Date set forth on the cover page of this Agreement
that follows the Grantees Termination Date, by (y) a fraction, the numerator of
which will be the number of whole months that have elapsed between the Vesting
Date that immediately preceded the Grantees Termination Date (or, in the case
of a termination prior to the first scheduled Vesting Date, the Vesting
Commencement Date) and the Grantees Termination Date, and the denominator of
which will be the total number of months between the Vesting Date that
immediately preceded the Grantees Termination Date (or, in the case of a
termination prior to the first scheduled Vesting Date, the Vesting Commencement
Date) and the next scheduled Vesting Date that follows the Grantees Termination
Date. Any Stock Units subject to the Award that are not vested after giving
effect to the preceding sentence shall terminate on the Termination Date.
(3)
Notwithstanding any other provision herein, as a condition precedent to any
acceleration of vesting pursuant to this Section 6(b), the Grantee shall provide
the Corporation with a valid, executed general release agreement in the form
attached to any employment, severance, retention or similar agreement the
Grantee may have with the Corporation or any of its Subsidiaries in effect on
the Award Date (or, if there is no such agreement or no such form of release
attached thereto, in a form acceptable to the Corporation), and such release
shall have not been revoked pursuant to any revocation rights afforded by
applicable law. The Corporation shall provide the final form of release
agreement to the Grantee not later than seven (7) days following the Termination
Date, and the Grantee shall be required to execute and return such release to
the Corporation within twenty-one (21) days (or forty-five (45) days if such
longer period of time is required to make the release maximally enforceable
under applicable law) after the Corporation provides the form of release to the
Grantee. If the period for the Grantee to provide such release spans two
calendar years, then the payment of the Stock Units as provided in Section 5
shall in all events be made in the second of such two years.
3
[This Section 6(b) and Exhibit A
are subject to adjustment on a case-by-case basis to reflect any acceleration
provisions approved by the Board for the particular grant.]
(c)
[Employment Agreement. The Stock Units are also subject to
any rights to accelerated vesting the Grantee may have under any employment,
severance, retention or similar agreement with the Corporation or any of its
Subsidiaries in effect on the Award Date (with any such acceleration rights to
be applied, in the case of a termination of the Grantees employment or service
other than in connection with a Change in Control Event, after giving effect to
the prorated vesting described above).] [This paragraph to be
included only for a few key executives on a case-by-case basis.]
(d)
Defined Terms. For purposes of this Agreement, the terms Cause, Good
Reason, Disability and Change in Control Event have the meanings given to such
terms on Exhibit A hereto.
7.
Adjustments; Corporate Transactions.
(a)
Adjustments. Subject to Section 7(b), upon (or, as may be necessary to
effect the adjustment, immediately prior to): any reclassification,
recapitalization, stock split (including a stock split in the form of a stock
dividend) or reverse stock split; any merger, amalgamation, combination,
consolidation, conversion or other reorganization; any spin-off, split-up, or
similar extraordinary dividend distribution in respect of the Common Shares; or
any exchange of Common Shares or other securities of the Corporation, or any
similar, unusual or extraordinary corporate transaction in respect of the Common
Shares; then the Administrator shall equitably and proportionately adjust the
number, amount and type of Common Shares (or other securities or property)
subject to the Award, to the extent necessary to preserve (but not increase) the
level of incentives intended by the Award. Upon (or, as may be necessary to
effect the adjustment, immediately prior to) any event or transaction described
in the preceding sentence or a sale of all or substantially all of the business
or assets of the Corporation as an entirety, the Administrator shall equitably
and proportionately adjust the performance standards (if any) applicable to the
Award to the extent necessary to preserve (but not increase) the level of
incentives intended by the Award. It is intended that, if possible, any
adjustments contemplated by the preceding two sentences be made in a manner that
satisfies applicable Canadian and U.S. legal, tax (including, without limitation
and as applicable in the circumstances, Section 424 of Internal Revenue Code of
1986, as amended (the Code), Section 409A of the Code and Section
162(m) of the Code) and accounting (so as to not trigger any charge to earnings
with respect to such adjustment) requirements. Any good faith determination by
the Administrator as to whether an adjustment is required in the circumstances
pursuant to this Section 7.1(a) and the extent and nature of any such
adjustment, shall be conclusive and binding on all persons.
(b)
Corporate Transactions - Assumption and Termination of Award. Upon the
occurrence of any of the following: any recapitalization, merger, amalgamation,
combination, consolidation, conversion or other reorganization in connection
with which the Corporation does not survive (or does not survive as a public
company in respect of its Common Shares); any exchange of Common Shares or other
securities of the Corporation in connection with which the Corporation does not
survive (or does not survive as a public company in respect of its Common Shares); a sale of all or substantially all the business, stock
or assets of the Corporation in connection with which the Corporation does not
survive (or does not survive as a public company in respect of its Common
Shares); a dissolution of the Corporation; or any other event in which the
Corporation does not survive (or does not survive as a public company in respect
of its Common Shares); then the Administrator may make provision for a cash
payment in settlement of, or for the termination, assumption, substitution or
exchange of the Award or the cash, securities or property deliverable to the
Grantee pursuant to the Award, based upon, to the extent relevant under the
circumstances, the distribution or consideration payable to holders of the
Common Shares upon or in respect of such event. Upon the occurrence of any event
described in the preceding sentence, then, unless the Administrator has made a
provision for the substitution, assumption, exchange or other continuation or
settlement of the Award or the Award would otherwise continue in accordance with
its terms in the circumstances, the Award shall become payable to the Grantee
and shall terminate upon the related event. Without limiting the foregoing, in
connection with any event referred to in the preceding sentence or any Change in
Control Event, the Administrator may, in its discretion, provide for the
accelerated vesting of the Award as and to the extent determined by the
Administrator in the circumstances. The Administrator may adopt such valuation
methodologies for the Award as it deems reasonable in the event of a cash or
property settlement. In any of the events referred to in this Section 7(b), the
Administrator may take such action contemplated by this Section 7(b) prior to
such event (as opposed to on the occurrence of such event) to the extent that
the Administrator deems the action necessary to permit the Grantee to realize
the benefits intended to be conveyed with respect to the underlying shares.
Without limiting the generality of the foregoing, the Administrator may deem an
acceleration and/or termination to occur immediately prior to the applicable
event and, in such circumstances, will reinstate the original terms of the award
if an event giving rise to an acceleration and/or termination does not occur.
Any good faith determination by the Administrator pursuant to its authority
under this Section 7(b) shall be conclusive and binding on all persons.
4
8.
Tax Withholding. The Corporation shall reasonably determine
the amount of any federal, state, local, foreign, provincial or other income,
employment, or other taxes which the Corporation or any of its Subsidiaries may
reasonably be obligated to withhold with respect to the grant, vesting or other
event with respect to the Stock Units. If such withholding event occurs in
connection with the distribution of Common Shares in respect of the Stock Units
and subject to compliance with all applicable laws, the Grantee hereby agrees
that the appropriate number of whole shares, valued at their then fair market
value (with the fair market value of such shares determined in accordance with
the applicable provisions of Section 5.6 of the Sphere 3D Corp. 2015 Performance
Incentive Plan (or the corresponding provisions of a successor plan thereto)),
to satisfy any withholding obligations of the Corporation or its Subsidiaries
with respect to such distribution at the minimum applicable withholding rates
(such number of shares, the Minimum Withholding Shares) shall
automatically be sold by or on behalf of the Grantee on the open market and the
proceeds of such sale shall be promptly remitted to the Corporation to satisfy
such tax withholding obligations. In the event the Grantee has (prior to the
applicable Vesting Date) entered into an irrevocable arrangement (on terms
reasonably acceptable to the Corporation) with a third-party broker to use the
proceeds of a sale of Common Shares on the market to provide for tax withholding
in connection with any payment of the Stock Units and has provided the terms of
such arrangement to the Corporation (a Broker Arrangement), the Grantee
and the Corporation agree that, at the time of such payment of the Stock Units,
the Corporation will deliver to the Grantees designated broker a
number of whole Common Shares equal to the Minimum Withholding Shares. If there
is no such Broker Arrangement in place on the applicable Vesting Date, such sale
of the Minimum Withholding Shares shall be conducted through a broker designated
by the Corporation. The Grantee shall execute such documents as may reasonably
be requested by the Corporation or the broker, as applicable, in order to
implement such transactions and shall otherwise comply with the administrative
rules and procedures established by the Corporation with respect to such
transactions. If, however, any withholding event occurs with respect to the
Stock Units other than in connection with the distribution of shares of Common
Stock in respect of the Stock Units, or if the Corporations withholding
obligations cannot be satisfied by such market sale or such withholding and
reacquisition of shares as described above because such a sale, withholding or
reacquisition, as the case may be, would cause the Corporation to violate
applicable law, the Corporation shall be entitled to require a cash payment by
or on behalf of the Grantee and/or to deduct from other compensation payable to
the Grantee the amount of any such withholding obligations.
5
9.
Notices. Any notice to be given under the terms of this
Agreement shall be in writing and addressed to the Corporation at its principal
office to the attention of the Secretary, and to the Grantee at the Grantees
last address reflected on the Corporations records, or at such other address as
either party may hereafter designate in writing to the other. Any such notice
shall be given only when received, but if the Grantee is no longer an employee
of or in service to the Corporation, shall be deemed to have been duly given by
the Corporation when enclosed in a properly sealed envelope addressed as
aforesaid, registered or certified, and deposited (postage and registry or
certification fee prepaid) in a post office or branch post office regularly
maintained by the United States Government.
10.
Entire Agreement; Amendment. This Agreement constitutes the
entire agreement and supersede all prior understandings and agreements, written
or oral, of the parties hereto with respect to the subject matter hereof. The
Administrator by agreement or resolution may waive conditions of or limitations
on the Award, without the consent of the Grantee, and may make other changes to
the terms and conditions of the Award; provided, however, that no amendment of
the Award shall, without written consent of the Grantee, affect in any manner
materially adverse to the Grantee any rights or benefits of the Grantee or
obligations of the Corporation under the Award. Changes, settlements and other
actions contemplated by Section 7 above shall not be deemed to constitute
changes or amendments for purposes of this Section 10. Notwithstanding the
foregoing, the Corporation may, without the consent of the Grantee, amend the
tax-withholding procedures set forth in Section 8 above to provide that the
Corporations tax withholding obligations in connection with a distribution of
Common Shares in respect of the Stock Units shall be satisfied by the
Corporation reducing the number of Common Shares subject to such distribution by
the number of the Minimum Withholding Shares (as opposed to a market sale of
such shares); provided, however, that if the Corporation adopts such an
amendment of the procedures set forth in Section 8, such procedures shall not be
further amended within the one-year period thereafter.
11.
Limitation on Grantees Rights. The Award
confers no rights or interests other than as herein provided. This
Agreement creates only a contractual obligation on the part of the Corporation
as to amounts payable and shall not be construed as creating a trust. The Award
does not, in and of itself, have any assets. The Grantee shall have only the
rights of a general unsecured creditor of the Corporation with respect to amounts
credited and benefits payable, if any, with respect to the Stock Units, and
rights no greater than the right to receive the Common Shares as a general
unsecured creditor with respect to Stock Units, as and when payable
hereunder.
6
12.
Counterparts. This Agreement may be executed simultaneously in
any number of counterparts, each of which shall be deemed an original but all of
which together shall constitute one and the same instrument.
13.
Section Headings. The section headings of this Agreement are
for convenience of reference only and shall not be deemed to alter or affect any
provision hereof.
14.
Governing Law. This Agreement shall be governed by and
construed and enforced in accordance with the laws of the State of California
without regard to conflict of law principles thereunder.
15.
Construction. It is intended that the terms of the Award will
not result in the imposition of any tax liability pursuant to Section 409A of
the Code. The Award is intended as a short-term deferral under Section 409A of
the Code, and this Agreement shall be construed and interpreted consistent with
that intent.
16.
Language. The parties hereto have agreed that this Agreement
be drafted in English. Les parties aux présentes ont convenu que le présent
document soit rédigé en anglais.
17.
No Advice Regarding Grant. The Grantee is hereby advised to
consult with his or her own tax, legal and/or investment advisors with respect
to any advice the Grantee may determine is needed or appropriate with respect to
the Stock Units (including, without limitation, to determine the foreign, state,
local, estate and/or gift tax consequences with respect to the Award). Neither
the Corporation nor any of its officers, directors, affiliates or advisors makes
any representation (except for the terms and conditions expressly set forth in
this Award Agreement) or recommendation with respect to the Award. Except for
the withholding rights set forth in Section 8 above, the Grantee is solely
responsible for any and all tax and other liability that may arise with respect
to the Award or any sale of shares issued or delivered with respect to the
Award.
18.
Insider Trading Rules. The Grantee hereby acknowledges being
subject to all applicable laws, rules and regulations, as well as Corporation
policies, regarding insider trading.
7
EXHIBIT A
DEFINED TERMS
For purposes of this Agreement, the
following definitions shall apply:
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Cause has the meaning given to such term in any
employment agreement between the Grantee and the Corporation or any of its
Subsidiaries as in effect on the Award Date or, if there is no such
agreement (or such agreement does not include a definition of such term),
shall mean: (a) acts or omissions constituting reckless or willful
misconduct on the Grantees part with respect to the Grantees obligations
or otherwise relating to the business of the Corporation or any of its
Subsidiaries that causes material harm to the Corporation or such
Subsidiary or to the reputation of the Corporation or such Subsidiary; (b)
the Grantees material breach of any agreement between the Grantee and the
Corporation or one of its Subsidiaries, which breach the Grantee fails to
cure within thirty (30) days after receiving written notice from the Board
that specifies the specific conduct giving rise to the alleged breach; (c)
the Grantees conviction or entry of a plea of nolo contendere for fraud,
theft or embezzlement, or any felony or crime of moral turpitude; or (d)
the Grantees willful neglect of duties as reasonably determined by the
Board, which the Grantee fails to cure within thirty (30) days after
receiving written notice from the Board that specifies the specific duties
that the Grantee has failed to perform. |
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Good Reason has the meaning given to such term
in any employment agreement between the Grantee and the Corporation or any
of its Subsidiaries as in effect on the Award Date or, if there is no such
agreement (or such agreement does not include a definition of such term),
shall mean a voluntary termination by the Grantee of the Grantees
employment with the Corporation or one of its Subsidiaries within one (1)
year after the initial occurrence of one or more of the following (without
the Grantees written consent): (a) the Corporation or such Subsidiary
reduces the Grantees base compensation (including commissions) by more
than ten percent (10%), (b) the Grantees authority, responsibilities
and/or duties are materially reduced so that the Grantees duties are no
longer consistent with the Grantees position as of the Award Date and the
Grantee no longer reports directly to the [_______________] of the
Corporation; (c) a material breach by the Corporation or one of its
Subsidiaries of any agreement between the Grantee and the Corporation or
such Subsidiary; or (d) the Corporation or one of its Subsidiaries
relocates the Grantees principal place of work to a location more than
fifty (50) miles from the Grantees principal place of work as of the
Award Date; provided, however, that such a termination by the Grantee
shall not be a termination for Good Reason unless the Grantee notifies the
Corporation in writing within sixty (60) days following the initial
existence of the circumstance constituting Good Reason, the Corporation is
given thirty (30) days from the receipt of such notice in which the
Corporation may remedy or cure such condition, and the Corporation fails
to remedy or cure the condition set forth in the Grantees notice within
thirty (30) days of receipt of such notice. For purposes of the foregoing,
if the Grantee does not timely provide notice to the Corporation as to a
particular circumstance constituting Good Reason, then the
Grantee shall be deemed to have waived the right to
terminate for Good Reason with respect to such circumstance. |
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Disability has the meaning given to such term
(or a similar term) in any employment agreement between the Grantee and
the Corporation or any of its Subsidiaries as in effect on the Award Date
or, if there is no such agreement (or such agreement does not include a
definition of such term), shall mean the Grantee (as determined solely by
the Administrator on the basis of such medical evidence as the
Administrator deems warranted under the circumstances) is unable to engage
in any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to result
in death or which has lasted or can be expected to last for a continuous
period of not less than twelve (12) months. |
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Change in Control Event means any of the
following: |
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The acquisition by any individual, entity or group
(within the meaning of Section 13(d)(3) or 14(d)(2) of the Exchange Act (a
Person)) of beneficial ownership (within the meaning of Rule
13d-3 promulgated under the Exchange Act) of more than fifty percent (50%)
of either (1) the then- outstanding common shares of the Corporation (the
Outstanding Company Common Shares) or (2) the combined voting
power of the then-outstanding voting securities of the Corporation
entitled to vote generally in the election of directors (the
Outstanding Company Voting Securities); provided, however, that,
for purposes of this clause (i), the following acquisitions shall not
constitute a Change in Control Event; (A) any acquisition directly from
the Corporation, (B) any acquisition by the Corporation, (C) any
acquisition by any employee benefit plan (or related trust) sponsored or
maintained by the Corporation or any affiliate of the Corporation or a
successor, or (D) any acquisition by any entity pursuant to a transaction
that complies with clauses (iii)(1), (2) and (3) below; |
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(ii) |
Individuals who, as of the Award Date, constitute the
Board (the Incumbent Board) cease for any reason to constitute at
least a majority of the Board; provided, however, that any individual
becoming a director subsequent to the Award Date whose election, or
nomination for election by the Corporations shareholders, was approved by
a vote of at least two-thirds of the directors then comprising the
Incumbent Board (including for these purposes, the new members whose
election or nomination was so approved, without counting the member and
his predecessor twice) shall be considered as though such individual were
a member of the Incumbent Board, but excluding, for this purpose, any such
individual whose initial assumption of office occurs as a result of an
actual or threatened election contest with respect to the election or
removal of directors or other actual or threatened solicitation of proxies
or consents by or on behalf of a Person other than the Board; |
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(iii) |
Consummation of a reorganization, merger, amalgamation,
statutory share exchange or consolidation or similar corporate transaction
involving the Corporation or any of its Subsidiaries, a sale or other
disposition of all or substantially all of the assets of the Corporation,
or the acquisition of assets or stock of another entity by the Corporation
or any of its Subsidiaries (each, a Business Combination), in
each case unless, following such Business Combination, (1) all or
substantially all of the individuals and entities that were the beneficial
owners of the Outstanding Company Common Shares and the Outstanding
Company Voting Securities immediately prior to such Business Combination
beneficially own, directly or indirectly, more than fifty percent (50%) of
the then-outstanding common shares and the combined voting power of the
then-outstanding voting securities entitled to vote generally in the
election of directors, as the case may be, of the entity resulting from
such Business Combination (including, without limitation, an entity that,
as a result of such transaction, owns the Corporation or all or
substantially all of the Corporation's assets directly or through one or
more subsidiaries (a Parent)) in substantially the same
proportions as their ownership immediately prior to such Business
Combination of the Outstanding Company Common Shares and the Outstanding
Company Voting Securities, as the case may be, (2) no Person (excluding
any entity resulting from such Business Combination or a Parent or any
employee benefit plan (or related trust) of the Corporation or such entity
resulting from such Business Combination or Parent) beneficially owns,
directly or indirectly, more than fifty percent (50%) of, respectively,
the then-outstanding shares of common stock of the entity resulting from
such Business Combination or the combined voting power of the
then-outstanding voting securities of such entity, except to the extent
that the ownership in excess of fifty percent (50%) existed prior to the
Business Combination, and (3) at least a majority of the members of the
board of directors or trustees of the entity resulting from such Business
Combination or a Parent were members of the Incumbent Board at the time of
the execution of the initial agreement or of the action of the Board
providing for such Business Combination; or |
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(iii) |
Consummation of a reorganization, merger, amalgamation,
statutory share exchange or consolidation or similar corporate transaction
involving the Corporation or any of its Subsidiaries, a sale or other
disposition of all or substantially all of the assets of the Corporation,
or the acquisition of assets or stock of another entity by the Corporation
or any of its Subsidiaries (each, a Business Combination), in
each case unless, following such Business Combination, (1) all or
substantially all of the individuals and entities that were the beneficial
owners of the Outstanding Company Common Shares and the Outstanding
Company Voting Securities immediately prior to such Business Combination
beneficially own, directly or indirectly, more than fifty percent (50%) of
the then-outstanding common shares and the combined voting power of the
then-outstanding voting securities entitled to vote generally in the
election of directors, as the case may be, of the entity resulting from
such Business Combination (including, without limitation, an entity that,
as a result of such transaction, owns the Corporation or all or
substantially all of the Corporation's assets directly or through one or
more subsidiaries (a Parent)) in substantially the same
proportions as their ownership immediately prior to such Business
Combination of the Outstanding Company Common Shares and the Outstanding
Company Voting Securities, as the case may be, (2) no Person (excluding
any entity resulting from such Business Combination or a Parent or any
employee benefit plan (or related trust) of the Corporation or such entity
resulting from such Business Combination or Parent) beneficially owns,
directly or indirectly, more than fifty percent (50%) of, respectively,
the then-outstanding shares of common stock of the entity resulting from
such Business Combination or the combined voting power of the
then-outstanding voting securities of such entity, except to the extent
that the ownership in excess of fifty percent (50%) existed prior to the
Business Combination, and (3) at least a majority of the members of the
board of directors or trustees of the entity resulting from such Business
Combination or a Parent were members of the Incumbent Board at the time of
the execution of the initial agreement or of the action of the Board
providing for such Business Combination; or |
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(iv) |
Approval by the shareholders of the Corporation of a
complete liquidation or dissolution of the Corporation other than in the
context of a transaction that does not constitute a Change in Control
Event under clause (iii) above. |
10
EXHIBIT 4.2
SPHERE 3D CORP.
RESTRICTED STOCK UNIT AWARD
AGREEMENT
(Inducement Grant)
THIS
RESTRICTED STOCK UNIT AWARD AGREEMENT (this Agreement) dated
_____________________ by and between Sphere 3D Corp., a corporation incorporated
under the laws of the Province of Ontario (the Corporation), and
___________________________ (the Grantee) evidences the award (the
Award) granted by the Corporation to the Grantee as to the number of
the Corporations stock units (Stock Units) first set forth below. The
Award and this Agreement are intended to qualify (i) for exemption from any
requirement under the listing rules that may be applicable to the Corporation
that equity compensation arrangements be approved by the Corporations
shareholders, and (ii) for exemption from the Canadian prospectus requirements.
le to the Corporation that equity compensation
arrangements be approved by the Corporations shareholders, and (ii) for
exemption from the Canadian prospectus requirements.
Number of Stock Units:1 |
Award Date: ___________________________ |
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Vesting Commencement
Date:
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Vesting1 [The Stock
Units subject to the Award will vest in six (6) equal installments, with
the first installment vesting six (6) months after the Vesting
Commencement Date and an additional installment vesting at the end of each
six-month period thereafter.] [Subject to adjustment to reflect the vesting schedule approved by the
Board for the particular grant.] |
The Award is subject to the Terms and Conditions of Restricted Stock Units (the
Terms) attached to this Agreement (incorporated herein by this
reference). The Award has been granted to the Grantee in addition to, and not in
lieu of, any other form of compensation otherwise payable or to be paid to the
Grantee. The Grantees participation in the Award is voluntary. The parties
agree to the terms of the Award set forth herein. The Grantee acknowledges
receipt of a copy of the Terms.
As
used herein, the term stock unit means a non-voting unit of measurement
which is deemed for bookkeeping purposes to be equivalent to one outstanding
Common Share of the Corporation (subject to adjustment as provided in Section
7(a) of the Terms) solely for purposes of this Agreement. The Stock Units shall
be used solely as a device for the determination of the payment to eventually be
made to the Grantee if such Stock Units vest pursuant to the terms hereof. The
Stock Units shall not be treated as property or as a trust fund of any kind.
GRANTEE |
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SPHERE 3D CORP. |
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a corporation incorporated under the laws of
the Province of Ontario |
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Signature |
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By:___________________________________________ |
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Print Name: |
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Name:
________________________________________ |
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Print Name |
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Title:
_________________________________________ |
___________________________
1 Subject to
adjustment under Section 7(a) of the Terms.
SPHERE 3D CORP.
TERMS AND CONDITIONS OF RESTRICTED
STOCK UNITS
(Inducement Grant)
1.
Vesting. Subject to Section 6 below, the Award shall vest and
become nonforfeitable as set forth on the cover page of this Agreement.
2.
Continuance of Employment/Service. The vesting schedule
requires continued employment or service through each applicable vesting date as
a condition to the vesting of the applicable installment of the Award and the
rights and benefits under this Agreement. Employment or service for only a
portion of the vesting period, even if a substantial portion, will not entitle
the Grantee to any proportionate vesting or avoid or mitigate a termination of
rights and benefits upon or following a termination of employment or services as
provided in Section 6 below.
Nothing
contained in this Agreement constitutes an employment or service commitment by
the Corporation, affects the Grantees status as an employee at will who is
subject to termination without cause, confers upon the Grantee any right to
remain employed by or in service to the Corporation or any corporation or other
entity a majority of whose outstanding voting stock or voting power is
beneficially owned directly or indirectly by the Corporation (a
Subsidiary), interferes in any way with the right of the Corporation or
any Subsidiary at any time to terminate such employment or services, or affects
the right of the Corporation or any Subsidiary to increase or decrease the
Grantees other compensation or benefits. Nothing in this Agreement, however, is
intended to adversely affect any independent contractual right of the Grantee
without his or her consent thereto.
3.
No Dividend and Voting Rights. The Grantee shall have no
rights as a shareholder of the Corporation, no dividend rights and no voting
rights, with respect to the Stock Units and any Common Shares underlying or
issuable in respect of such Stock Units until such Common Shares are actually
issued to and held of record by the Grantee. No adjustments will be made for
dividends or other rights of a holder for which the record date is prior to the
date of issuance of such shares.
4.
Restrictions on Transfer. Neither the Award, nor any interest
therein or amount or shares payable in respect thereof may be sold, assigned,
transferred, pledged or otherwise disposed of, alienated or encumbered, either
voluntarily or involuntarily. The transfer restrictions in the preceding
sentence shall not apply to (a) transfers to the Corporation, or (b) transfers
by will or the laws of descent and distribution, or (c) transfers to a family
member (or former family member) pursuant to a domestic relations order if
approved or ratified by the Administrator, or (d) subject to the written
approval of the Administrator and compliance with applicable federal,
provincial, state and foreign securities laws, transfers to a family member that
are not made for value (other than nominal consideration, settlement of marital
property rights, or for interests in an entity in which more than 50% of the
voting interests are held by the Grantee or by the Grantees family members).
As
used herein, the Administrator means the Board of Directors of the
Corporation (the Board) or one or more committees appointed by the
Board or another committee (within its delegated authority and in the manner and on the terms
authorized by the Board) to administer all or certain aspects of this
Agreement.
1
5.
Timing and Manner of Payment of Stock Units. Each Stock Unit
that becomes vested pursuant to the terms hereof (the date of such vesting, the
Vesting Date of such Stock Unit) will be paid on or as soon as
practicable after the Vesting Date (and in all events within two and one-half
months following the Vesting Date). In payment of the Stock Units, the
Corporation shall deliver to the Grantee a number of the Corporations common
shares (Common Shares) (either by delivering one or more certificates
for such shares or by entering such shares in book entry form, as determined by
the Corporation in its discretion, and, if the Grantee is a resident of Canada,
such shares to be issued from treasury if and to the extent required by
applicable law) equal to the number of Stock Units subject to this Award that
vest on the applicable Vesting Date, unless such Stock Units terminate prior to
the given Vesting Date pursuant to Section 6. The Award and the Corporations
obligation to deliver Common Shares or otherwise make payment with respect to
vested Stock Units is subject to (a) compliance with all applicable federal,
provincial, state, local and foreign laws, rules and regulations (including but
not limited to provincial, state and federal securities law and federal margin
requirements) and to such approvals by any listing, regulatory or governmental
authority as may, in the opinion of counsel for the Corporation, be necessary or
advisable in connection therewith and (b) the condition precedent that the
Grantee or other person entitled to receive any shares hereunder with respect to
the vested Stock Units deliver to the Corporation such assurances and
representations as the Administrator may deem necessary or desirable to assure
compliance with all applicable legal and accounting requirements. The Grantee
shall have no further rights with respect to any Stock Units that are paid or
that terminate pursuant to Section 6.
6.
Effect of Termination of Employment or Service. The
Grantees Stock Units shall terminate to the extent such units have not become
vested prior to the Grantees Termination Date (as defined below), regardless of
the reason for the termination of the Grantees employment or service with the
Corporation or a Subsidiary, whether with or without cause, voluntarily or
involuntarily. If any unvested Stock Units are terminated hereunder, such Stock
Units shall automatically terminate and be cancelled as of the Termination Date
without payment of any consideration by the Corporation and without any other
action by the Grantee, or the Grantees beneficiary or personal representative,
as the case may be. For these purposes, Termination Date means the
Grantees last day of actual and active employment or service with the
Corporation or any of its Subsidiaries. For greater certainty, no period of
notice of termination, if any, or payment in lieu of notice that is given or
ought to have been given pursuant to the Grantees applicable employment
agreement, contract for service or at law that follows or is in respect of a
period after the last date of actual and active employment will be considered as
extending Grantees period of employment or services for purposes of determining
the Grantees entitlement under the Award.
7.
Adjustments; Corporate Transactions.
(a)
Adjustments. Subject to Section 7(b), upon (or, as may be necessary to
effect the adjustment, immediately prior to): any reclassification,
recapitalization, stock split (including a stock split in the form of a stock
dividend) or reverse stock split; any merger, amalgamation, combination,
consolidation, conversion or other reorganization; any spin-off, split-up, or
similar extraordinary dividend distribution in respect of the Common
Shares; or any exchange of Common Shares or other securities of the Corporation,
or any similar, unusual or extraordinary corporate transaction in respect of the
Common Shares; then the Administrator shall equitably and proportionately adjust
the number, amount and type of Common Shares (or other securities or property)
subject to the Award, to the extent necessary to preserve (but not increase) the
level of incentives intended by the Award. Upon (or, as may be necessary to
effect the adjustment, immediately prior to) any event or transaction described
in the preceding sentence or a sale of all or substantially all of the business
or assets of the Corporation as an entirety, the Administrator shall equitably
and proportionately adjust the performance standards (if any) applicable to the
Award to the extent necessary to preserve (but not increase) the level of
incentives intended by the Award. It is intended that, if possible, any
adjustments contemplated by the preceding two sentences be made in a manner that
satisfies applicable Canadian and U.S. legal, tax (including, without limitation
and as applicable in the circumstances, Section 424 of Internal Revenue Code of
1986, as amended (the Code), Section 409A of the Code and Section
162(m) of the Code) and accounting (so as to not trigger any charge to earnings
with respect to such adjustment) requirements. Any good faith determination by
the Administrator as to whether an adjustment is required in the circumstances
pursuant to this Section 7.1(a) and the extent and nature of any such
adjustment, shall be conclusive and binding on all persons.
2
(b)
Corporate Transactions - Assumption and Termination of Award. Upon the
occurrence of any of the following: any recapitalization, merger, amalgamation,
combination, consolidation, conversion or other reorganization in connection
with which the Corporation does not survive (or does not survive as a public
company in respect of its Common Shares); any exchange of Common Shares or other
securities of the Corporation in connection with which the Corporation does not
survive (or does not survive as a public company in respect of its Common
Shares); a sale of all or substantially all the business, stock or assets of the
Corporation in connection with which the Corporation does not survive (or does
not survive as a public company in respect of its Common Shares); a dissolution
of the Corporation; or any other event in which the Corporation does not survive
(or does not survive as a public company in respect of its Common Shares); then
the Administrator may make provision for a cash payment in settlement of, or for
the termination, assumption, substitution or exchange of the Award or the cash,
securities or property deliverable to the Grantee pursuant to the Award, based
upon, to the extent relevant under the circumstances, the distribution or
consideration payable to holders of the Common Shares upon or in respect of such
event. Upon the occurrence of any event described in the preceding sentence,
then, unless the Administrator has made a provision for the substitution,
assumption, exchange or other continuation or settlement of the Award or the
Award would otherwise continue in accordance with its terms in the
circumstances, the Award shall become payable to the Grantee and shall terminate
upon the related event. Without limiting the foregoing, in connection with any
event referred to in the preceding sentence or any Change in Control Event, the
Administrator may, in its discretion, provide for the accelerated vesting of the
Award as and to the extent determined by the Administrator in the circumstances.
The Administrator may adopt such valuation methodologies for the Award as it
deems reasonable in the event of a cash or property settlement. In any of the
events referred to in this Section 7(b), the Administrator may take such action
contemplated by this Section 7(b) prior to such event (as opposed to on the
occurrence of such event) to the extent that the Administrator deems the action
necessary to permit the Grantee to realize the benefits intended to be conveyed
with respect to the underlying shares. Without limiting the generality of the
foregoing, the Administrator may deem an acceleration and/or termination to occur immediately
prior to the applicable event and, in such circumstances, will reinstate the
original terms of the award if an event giving rise to an acceleration and/or
termination does not occur. Any good faith determination by the Administrator
pursuant to its authority under this Section 7(b) shall be conclusive and
binding on all persons.
3
8.
Tax Withholding. The Corporation shall reasonably determine
the amount of any federal, state, local, foreign, provincial or other income,
employment, or other taxes which the Corporation or any of its Subsidiaries may
reasonably be obligated to withhold with respect to the grant, vesting or other
event with respect to the Stock Units. If such withholding event occurs in
connection with the distribution of Common Shares in respect of the Stock Units
and subject to compliance with all applicable laws, the Grantee hereby agrees
that the appropriate number of whole shares, valued at their then fair market
value (with the fair market value of such shares determined in accordance with
the applicable provisions of Section 5.6 of the Sphere 3D Corp. 2015 Performance
Incentive Plan (or the corresponding provisions of a successor plan thereto)),
to satisfy any withholding obligations of the Corporation or its Subsidiaries
with respect to such distribution at the minimum applicable withholding rates
(such number of shares, the Minimum Withholding Shares) shall
automatically be sold by or on behalf of the Grantee on the open market and the
proceeds of such sale shall be promptly remitted to the Corporation to satisfy
such tax withholding obligations. In the event the Grantee has (prior to the
applicable Vesting Date) entered into an irrevocable arrangement (on terms
reasonably acceptable to the Corporation) with a third-party broker to use the
proceeds of a sale of Common Shares on the market to provide for tax withholding
in connection with any payment of the Stock Units and has provided the terms of
such arrangement to the Corporation (a Broker Arrangement), the Grantee
and the Corporation agree that, at the time of such payment of the Stock Units,
the Corporation will deliver to the Grantees designated broker a number of
whole Common Shares equal to the Minimum Withholding Shares. If there is no such
Broker Arrangement in place on the applicable Vesting Date, such sale of the
Minimum Withholding Shares shall be conducted through a broker designated by the
Corporation. The Grantee shall execute such documents as may reasonably be
requested by the Corporation or the broker, as applicable, in order to implement
such transactions and shall otherwise comply with the administrative rules and
procedures established by the Corporation with respect to such transactions. If,
however, any withholding event occurs with respect to the Stock Units other than
in connection with the distribution of shares of Common Stock in respect of the
Stock Units, or if the Corporations withholding obligations cannot be satisfied
by such market sale or such withholding and reacquisition of shares as described
above because such a sale, withholding or reacquisition, as the case may be,
would cause the Corporation to violate applicable law, the Corporation shall be
entitled to require a cash payment by or on behalf of the Grantee and/or to
deduct from other compensation payable to the Grantee the amount of any such
withholding obligations.
9.
Notices. Any notice to be given under the terms of this
Agreement shall be in writing and addressed to the Corporation at its principal
office to the attention of the Secretary, and to the Grantee at the Grantees
last address reflected on the Corporations records, or at such other address as
either party may hereafter designate in writing to the other. Any such notice
shall be given only when received, but if the Grantee is no longer an employee
of or in service to the Corporation, shall be deemed to have been duly given by
the Corporation when enclosed in a properly sealed envelope addressed as
aforesaid, registered or certified, and deposited (postage and registry or certification fee prepaid) in a post office or
branch post office regularly maintained by the United States Government.
4
10.
Entire Agreement; Amendment. This Agreement constitutes the
entire agreement and supersede all prior understandings and agreements, written
or oral, of the parties hereto with respect to the subject matter hereof. The
Administrator by agreement or resolution may waive conditions of or limitations
on the Award, without the consent of the Grantee, and may make other changes to
the terms and conditions of the Award; provided, however, that no amendment of
the Award shall, without written consent of the Grantee, affect in any manner
materially adverse to the Grantee any rights or benefits of the Grantee or
obligations of the Corporation under the Award. Changes, settlements and other
actions contemplated by Section 7 above shall not be deemed to constitute
changes or amendments for purposes of this Section 10. Notwithstanding the
foregoing, the Corporation may, without the consent of the Grantee, amend the
tax-withholding procedures set forth in Section 8 above to provide that the
Corporations tax withholding obligations in connection with a distribution of
Common Shares in respect of the Stock Units shall be satisfied by the
Corporation reducing the number of Common Shares subject to such distribution by
the number of the Minimum Withholding Shares (as opposed to a market sale of
such shares); provided, however, that if the Corporation adopts such an
amendment of the procedures set forth in Section 8, such procedures shall not be
further amended within the one-year period thereafter.
11.
Limitation on Grantees Rights. The Award
confers no rights or interests other than as herein provided. This
Agreement creates only a contractual obligation on the part of the Corporation
as to amounts payable and shall not be construed as creating a trust. The Award
does not, in and of itself, have any assets. The Grantee shall have only the
rights of a general unsecured creditor of the Corporation with respect to
amounts credited and benefits payable, if any, with respect to the Stock Units,
and rights no greater than the right to receive the Common Shares as a general
unsecured creditor with respect to Stock Units, as and when payable
hereunder.
12.
Counterparts. This Agreement may be executed simultaneously in
any number of counterparts, each of which shall be deemed an original but all of
which together shall constitute one and the same instrument.
13.
Section Headings. The section headings of this Agreement are
for convenience of reference only and shall not be deemed to alter or affect any
provision hereof.
14.
Governing Law. This Agreement shall be governed by and
construed and enforced in accordance with the laws of the State of California
without regard to conflict of law principles thereunder.
15.
Construction. It is intended that the terms of the Award will
not result in the imposition of any tax liability pursuant to Section 409A of
the Code. The Award is intended as a short-term deferral under Section 409A of
the Code, and this Agreement shall be construed and interpreted consistent with
that intent.
5
16.
Language. The parties hereto have agreed that this Agreement
be drafted in English. Les parties aux présentes ont convenu que le présent
document soit rédigé en anglais.
17.
No Advice Regarding Grant. The Grantee is hereby advised to
consult with his or her own tax, legal and/or investment advisors with respect
to any advice the Grantee may determine is needed or appropriate with respect to
the Stock Units (including, without limitation, to determine the foreign, state,
local, estate and/or gift tax consequences with respect to the Award). Neither
the Corporation nor any of its officers, directors, affiliates or advisors makes
any representation (except for the terms and conditions expressly set forth in
this Award Agreement) or recommendation with respect to the Award. Except for
the withholding rights set forth in Section 8 above, the Grantee is solely
responsible for any and all tax and other liability that may arise with respect
to the Award or any sale of shares issued or delivered with respect to the
Award.
18. Insider Trading
Rules. The Grantee hereby acknowledges being subject to all applicable
laws, rules and regulations, as well as Corporation policies, regarding insider
trading.
6
EXHIBIT 5
|
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 |
January 29, 2016
Sphere 3D Corp.
240 Matheson Boulevard East
Mississauga, ON L4Z 1X1
Canada
Dear Sirs/Mesdames:
Re: Registration
of 458,000 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 pursuant to a Registration Statement
on Form S-8 (the "Registration Statement"), filed on or about the date
hereof with the United States Securities and Exchange Commission (the
"SEC"), of 458,000 common shares of the Company (the "RSU Shares")
to be issued pursuant to inducement restricted share units granted under
restricted stock unit award agreements entered into between the Company and
certain executive officers and employees of the Company (the "RSU
Agreements").
For
the purposes of this opinion, we have examined forms of restricted stock unit award agreements (the "Forms of RSU Agreements"). 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"):
|
(a) |
the certificate and articles of amalgamation of the
Company; |
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(b) |
the by-laws of the Company; |
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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.
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; |
|
(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; and |
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(g) |
the RSU Shares will be issued pursuant to the RSU Agreements, which are or will be in all material respects in the form of the Forms of RSU Agreements. |
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 the RSU Shares being issued as "fully-paid and non-assessable" common shares of the Company, such opinion
assumes that all required consideration (in whatever form) will be paid or
provided. No opinion is expressed as to the adequacy of any consideration
received.
Based
and relying upon the foregoing, we are of the opinion that the RSU Shares have
been duly authorized and reserved for issuance pursuant to the RSU Agreements
and will, when issued in accordance with such authorization and the terms of the
RSU Agreements, be validly issued as fully paid and non-assessable common shares
of the Company.
This
opinion is rendered solely to the addressee in connection with the Registration
Statement and may not be used or relied upon by you for any other purpose or
used or relied upon by any other person.
We hereby consent to the filing of this opinion as
an exhibit to the Registration Statement. By the giving of such consent, we do
not admit that we are experts with respect to any part of the Registration
Statement, or otherwise, within the meaning of the rules and regulations of the
SEC. 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
Elliott LLP
EXHIBIT 23.1
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Collins Barrow Toronto LLP |
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Collins Barrow Place |
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11 King Street West |
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Suite 700, PO Box 27 |
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Toronto, Ontario |
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M5H 4C7 Canada |
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T. 416.480.0160 |
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F. 416.480.2646 |
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www.collinsbarrow.com
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Consent of Independent Registered Public Accounting Firm
The Board of Directors of Sphere 3D Corp.
We consent to the inclusion in this registration statement on
Form S-8 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
January 29, 2016
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 inclusion in this annual report on Form 40-F
and in registration statement on Form S-8 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, changes in shareholders equity and cash flows
for the year ended December 31, 2013 and a summary of significant accounting
policies and other explanatory information.
Licensed Public Accountants
Chartered Accountants
January 29, 2016
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 S-8 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) (and expresses an unqualified opinion and includes an explanatory paragraph regarding Overland Storage, Inc.’s going concern uncertainty), filed with the Securities and Exchange Commission.
/s/ Moss Adams LLP
San Diego, California
January 29, 2016
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We consent to the incorporation by reference in this Registration Statement on Form S-8 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 (No. 001-36532) 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
January 29, 2016
EXHIBIT 23.3
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We consent to the incorporation by reference in this
Registration Statement on Form S-8 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 Companys
Registration Statement on Form F-4/A (number 333-197569) filed with the
Securities and Exchange Commission.
/s/ RSM Deutschland GmbH Wirtschaftsprüfungsgesellschaft
Berlin, Germany
January 29, 2016
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