Securities Registration: Employee Benefit Plan (s-8)
February 24 2017 - 6:03AM
Edgar (US Regulatory)
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As filed with the Securities and Exchange Commission on
February 23, 2017
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Registration
No.________________
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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)
___________________
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Ontario, Canada
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Not Applicable
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(State or Other Jurisdiction of
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(I.R.S. Employer
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Incorporation or Organization)
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Identification No.)
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240 Matheson Blvd. East
Mississauga, Ontario L4Z 1X1
(Address, Including Zip Code, of Principal Executive
Offices)
___________________
Inducement Restricted Share Unit Grants
Sphere 3D
Corp. 2015 Performance Incentive Plan
(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.
O’Melveny
& 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):
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Large accelerated filer [ ]
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Accelerated filer [ ]
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Non-accelerated filer [X]
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Smaller reporting company [ ]
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CALCULATION OF REGISTRATION FEE
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Proposed
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Proposed
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Maximum
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Maximum
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Title of
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Amount
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Offering
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Aggregate
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Amount Of
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Securities
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To Be
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Price
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Offering
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Registration
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To Be
Registered
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Registered
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Per Share
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Price
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Fee
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Common Shares, no
par value per share,
issuable pursuant to
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5,161,030
(1)
shares
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$0.32
(2)
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$1,651,530
(2)
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$192
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Restricted Stock Unit
Inducement Grants
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Common Shares, no
par value per share,
issuable
pursuant to
the Sphere 3D Corp.
2015 Performance
Incentive
Plan
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58,333
(1)
shares
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$0.32
(2)
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$18,667
(2)
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$3
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Total
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5,219,363
(1)
shares
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$0.32
(2)
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$1,670,197
(2)
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$195
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(1)
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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 Common Shares 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”) and the Sphere 3D Corp. 2015 Performance Incentive Plan (the
“Plan”) as a result of one or more adjustments under the award agreements
that evidence the Inducement Grants and the grants under the Plan to
prevent dilution resulting from one or more stock splits, stock dividends
or similar transactions.
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(2)
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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 February 21, 2017 (which is within five business days
prior to the date of this filing), as quoted on the Nasdaq Capital
Market.
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The Exhibit
Index for this Registration Statement is at page 9.
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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
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Item 3.
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Incorporation of Certain Documents by
Reference
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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)
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The Registrant’s Annual Report on Form 40-F (File No.
001-36532) for its fiscal year ended December 31, 2015, filed with the
Commission on March 30, 2016 (the “Form 40-F”), which includes the audited
consolidated balance sheets of the Registrant and subsidiaries as of
December 31, 2015 and 2014, and the related audited consolidated
statements of operations, equity and comprehensive income (loss), and cash
flows for each of the years in the two-year period ended December 31,
2015.
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(b)
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The description of the Registrant’s 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)
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The audited consolidated balance sheets of the Registrant
and subsidiaries as of December 31, 2013, and the related audited
consolidated statements of operations, equity and comprehensive income
(loss), and cash flows and the notes to the financial statements related
thereto for the year ended December 31, 2013 contained in our Annual
Report on Form 40-F (File No. 001-36532) filed with the SEC on March 31,
2015
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(d)
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The Registrant’s 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 the related audited consolidated statements of
operations, equity and comprehensive income (loss), and cash flows for the
period ended December 31, 2013, (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
period ended June 30, 2014, (iii) the audited consolidated balance sheets
of Tandberg Data S.à r.l. and subsidiaries (“Tandberg”) as of December 31,
2013, and the related audited consolidated statements of operations,
equity and comprehensive income (loss), and cash flows for each of the
years in the two-year period ended December 31, 2013, and (iv) the
unaudited pro forma condensed combined financial information of the
Registrant, Overland and Sphere 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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(e)
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The Registrant’s Reports of Foreign Private Issuer on
Form 6-K (File No. 001- 36532) furnished to the Commission on May 14,
2015, August 12, 2016 and November 14, 2016, which include unaudited
consolidated balance sheets of the Registrant and subsidiaries for the
three months ended March 31, 2015 and 2014, three and six months ended
June 30, 2016 and 2015, and three and nine months ended September 30, 2016
and 2015, respectively.
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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.
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Item 4.
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Description of Securities
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Not applicable.
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Item 5.
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Interests of Named Experts and Counsel
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Not applicable.
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Item 6.
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Indemnification of Directors and
Officers
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Under Section 136 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 Company’s 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 Company’s 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 individual’s
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 to indemnity
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 because of the individual’s association with the Company
or other entity 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.
A policy of directors’ and officers’ liability insurance is
maintained by the Company which insures directors and officers for losses as a
result of claims against the directors and officers of the Company 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, 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, as amended, and is therefore
unenforceable.
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Item 7.
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Exemption from Registration Claimed
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Not applicable.
See the attached Exhibit Index at page
9, which is incorporated herein by reference.
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(a)
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The undersigned Registrant hereby
undertakes:
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(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 Registrant’s annual report pursuant to Section 13(a) or
15(d) of the Exchange Act (and, where applicable, each filing of an employee
benefit plan’s annual report pursuant to Section 15(d) of the Exchange Act) that
is incorporated by reference in 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 February 23,
2017.
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SPHERE 3D CORP.
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By:
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/s/
Eric Kelly
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Eric Kelly
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Chief Executive Officer
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7
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.
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Signature
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Title
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Date
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/s/
Eric Kelly
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Chairman of the Board and Chief
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February 23, 2017
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Eric Kelly
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Executive Officer
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(Principal Executive
Officer)
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/s/ Kurt Kalbfleisch
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Chief Financial Officer
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February 23, 2017
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Kurt Kalbfleisch
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(Principal Financial and Accounting
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Officer)
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/s/
Peter Ashkin
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Director
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February 23, 2017
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Peter Ashkin
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/s/
Glenn M. Bowman
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Director
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February 23, 2017
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Glenn M. Bowman
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/s/
Vivekanand Mahadevan
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Director
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February 23, 2017
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Vivekanand Mahadevan
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/s/
Peter Tassiopoulos
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Director
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February 23, 2017
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Peter Tassiopoulos
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8
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 February 23, 2017.
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AUTHORIZED U.S. REPRESENTATIVE
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By:
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/s/
Eric Kelly
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Eric Kelly
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Chairman of the Board and Chief Executive
Officer
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9
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