As filed with the Securities and Exchange Commission on
June 27, 2017
Registration No.
333-217548
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington D.C. 20549
Amendment No. 2
to
FORM
F-1
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
SPHERE 3D CORP.
(Exact name of registrant as specified in its charter)
Not Applicable
(Translation of
Registrant’s name into English)
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Ontario, Canada
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240 Matheson Blvd. East
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98-1220792
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(State or other jurisdiction of
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Mississauga, Ontario L4Z 1X1
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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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(858) 571-5555
(Address and telephone number
of
Registrant’s principal executive offices)
Eric L. Kelly
Chief Executive Officer
9112 Spectrum Center Boulevard
San Diego, California 92123
(858) 571-5555
(Name, address, and telephone number of
agent for service)
Copy to:
Warren T. Lazarow, Esq.
Paul L. Sieben, Esq.
O’Melveny & Myers LLP
2765 Sand Hill Road
Menlo Park, California 94025
(650) 473-2600
Approximate date of commencement of proposed sale to the
public:
From time to time after the effective date of this registration
statement.
If any of the securities being registered on this Form are to
be offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933 check the following box. [X]
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act, please check the
following box and list the Securities Act registration statement number of the
earlier effective registration statement for the same offering. [
]
If this Form is a post-effective amendment filed pursuant to
Rule 462(c) under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to
Rule 462(d) under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ]
Indicate by check mark whether the registrant is an emerging
growth company as defined in Rule 405 of the Securities Act of 1933.
Emerging growth company [X]
If an emerging growth company that prepares its financial
statements in accordance with U.S. GAAP, indicate by check mark if the
registrant has elected not to use the extended transition period for complying
with any new or revised financial accounting standards† provided pursuant to
Section 7(a)(2)(B) of the Securities Act. [ ]
The term “new or revised financial accounting standard” refers
to any updated issued by the Financial Accounting Standards Board to its
Accounting Standards Codification after April 5, 2012.
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CALCULATION
OF REGISTRATION FEE
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Title of each class of
securities to be
registered
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Amount
to be
registered(1)
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Proposed
maximum
offering price
per unit(2)
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Proposed
maximum
aggregate
offering
price(2)
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Amount of
registration
fee(3)
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Secondary
Shares
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Common shares, no par value per share
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22,596,607
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$0.20
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$4,519,321
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$524
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(1)
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Pursuant to Rule 416 of the Securities Act of 1933, as
amended, this registration statement shall also cover any additional
common shares that become issuable by reason of any stock dividend, stock
split or other similar transaction effected without the receipt of
consideration that results in an increase in the number of the outstanding
common shares of the registrant. This registration statement relates to
the resale of common shares issuable upon exercise or exchange of warrants
previously issued to the selling shareholders.
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(2)
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Estimated solely for the purpose of calculating the
amount of registration fee pursuant to Rule 457(c) under the Securities
Act. The proposed maximum offering price per share and proposed maximum
aggregate offering price are based upon the average of the high $0.20 and
low $0.19 sales prices of the registrant’s common shares on The NASDAQ
Capital Market on April 24, 2017. The registrant is not selling any common
shares in this offering and, therefore, will not receive any proceeds from
this offering.
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(3)
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$524 was previously paid in the initial filing of the
registration statement on Form F-1, filed on April 28,
2017 and Amendment No. 1 filed on June 26, 2017.
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The
registrant hereby amends this registration statement on such date or dates as
may be necessary to delay its effective date until the registrant shall file a
further amendment that specifically states that this registration statement
shall thereafter become effective in accordance with Section 8(a) of the
Securities Act of 1933, as amended, or until this registration statement shall
become effective on such date as the Securities and Exchange Commission, acting
pursuant to said Section 8(a), may determine.
The information in this prospectus is
not complete and may be changed. The selling shareholders may not sell these
securities pursuant to this prospectus until the registration statement filed
with the Securities and Exchange Commission is effective. This prospectus is not
an offer to sell these securities, and the selling shareholders are not
soliciting offers to buy these securities in any state where the offer or sale
of these securities is not permitted.
SUBJECT TO COMPLETION, DATED JUNE 27,
2017
PROSPECTUS
22,596,607 Common Shares
This
prospectus relates to the resale or other disposition by certain selling
shareholders identified in this prospectus, or their transferees, of up to an
aggregate of 22,596,607 common shares issuable upon the exercise or exchange of
(i) 20,454,546 warrants issued to the selling stockholders in connection with a
private placement under a Securities Purchase Agreement entered into on March
24, 2017 and (ii) up to 2,142,061 warrants issued to Opus Bank in connection
with our Credit Agreement.
The
selling shareholders may, from time to time, sell, transfer, or otherwise
dispose of any or all of their common shares on any stock exchange, market or
trading facility on which the shares are traded or in private transactions.
These dispositions may be at fixed prices, at prevailing market prices at the
time of sale, at prices related to the prevailing market price, at varying
prices determined at the time of sale, or at negotiated prices. See “Plan of
Distribution” for additional information.
We
are not offering any common shares for sale under this prospectus, and we will
not receive any of the proceeds from the sale or other disposition of the common
shares covered hereby. However, we will receive the exercise price of any
warrants exercised for cash.
Our
common shares are traded on The NASDAQ Capital Market under the symbol “ANY”. On
June 23, 2017, the last reported sale price for our common shares on NASDAQ was
$0.17 per share.
We
will pay the expenses related to the registration of the common shares covered
by this prospectus. The selling shareholders will pay any commissions and
selling expenses they may incur.
Our
business and an investment in our securities involve significant risks. You
should read the section entitled "
Risk Factors
" on page 8
of this prospectus and the risk factors incorporated by reference into this
prospectus as described in that section before investing in our securities.
Neither
the Securities and Exchange Commission nor any state securities commission has
approved or disapproved of these securities or passed upon the adequacy or
accuracy of this prospectus. Any representation to the contrary is a criminal
offense.
The date of this prospectus is June 27, 2017.
TABLE OF CONTENTS
i
ABOUT THIS PROSPECTUS
This
prospectus is part of a registration statement on Form F-1 that we filed with
the Securities and Exchange Commission using a “shelf” registration or
continuous offering process.
You
should read this prospectus, the information and documents incorporated by
reference, and the additional information described under the heading “Where You
Can Find Additional Information” below carefully because these documents contain
important information you should consider when making your investment decision.
Whenever we make reference in this prospectus to any of our contracts,
agreements or other documents, the references are not necessarily complete and
you should refer to the exhibits attached to the registration statement or the
documents incorporated by reference for copies of the actual contract,
agreements or other document. See “Where You Can Find More Information” and
“Information Incorporated by Reference.”
You
should rely only on the information provided in this prospectus and the
information and documents incorporated by reference into this prospectus. We
have not, and the selling shareholders have not, authorized anyone to provide
you with different information. This prospectus is not an offer to sell these
securities, and the selling shareholders are not soliciting offers to buy these
securities, in any state where the offer or sale of these securities is not
permitted. The information contained in this prospectus is accurate only as of
the date of this prospectus, regardless of the time of delivery of this
prospectus or of any sale of common shares. You should not assume that the
information contained in this prospectus is accurate as of any date other than
the date on the front cover of this prospectus, or that the information
contained in any document incorporated by reference is accurate as of any date
other than the date of the document incorporated by reference, regardless of the
time of delivery of this prospectus or any sale of a security. As described
under the heading “Incorporation of Certain Documents By Reference,” some of the
information contained herein may be modified or superseded by documents
incorporated by reference herein and, to such extent, you should rely on the
later-dated information.
In
this prospectus, unless otherwise indicated or the context otherwise requires,
references to “Sphere,” “we,” “Company,” “us,” or “our” refer to Sphere 3D Corp.
and its consolidated subsidiaries, and references to “selling shareholders”
refer to those shareholders listed herein under “Selling Shareholders,” and
their transferees.
WHERE YOU CAN FIND ADDITIONAL INFORMATION
We
are subject to the informational requirements of the Securities Exchange Act of
1934, as amended, applicable to foreign private issuers. We anticipate filing
with the SEC, within three months after the end of each fiscal year, an Annual
Report on Form 20-F containing financial statements audited by an independent
accounting firm. We also furnish or file with the SEC Reports of Foreign Private
Issuer on Form 6-K and other information with the SEC as required by the
Exchange Act. We, as a “foreign private issuer,” are exempt from the rules under
the Exchange Act prescribing certain disclosure and procedural requirements for
proxy solicitations, and our officers, directors and principal shareholders are
exempt from the reporting and “short-swing” profit recovery provisions contained
in Section 16 of the Exchange Act, with respect to their purchases and sales of
shares. In addition, we are not required to file annual, quarterly and current
reports and financial statements with the SEC as frequently or as promptly as
U.S. companies whose securities are registered under the Exchange Act. You can
find, copy and inspect information we file with the SEC (including exhibits to
such documents) at the SEC’s Public Reference Room at 100 F Street, N.E.,
Washington, D.C. 20549. You may obtain additional information about the Public
Reference Room by calling the SEC at 1-800-SEC-0330. In addition, the SEC
maintains a site on the Internet at http://www.sec.gov which contains reports
and other information that we file electronically with the SEC. You may also
review such reports and other documents we file with the SEC on our website at
http://www.sphere3d.com. Information included on our website is not a part of
this prospectus. This prospectus is part of a registration statement that we
filed with the SEC. The registration statement contains more information than
this prospectus regarding our common shares and us, including exhibits.
- 1 -
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
We
are “incorporating by reference” information into this prospectus. This means
that we are disclosing important information to you by referring you to another
document that has been separately filed with or furnished to the SEC. The
information incorporated by reference is considered to be part of this
prospectus, and certain information that we later file with or furnish to the
SEC will automatically update and supersede the information contained in
documents earlier filed with or furnished to the SEC or contained in this
prospectus. The following documents filed with or furnished to the SEC are
incorporated herein by reference:
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Our Annual Report on Form 20-F (File No. 001-36532) filed
with the SEC on March 31, 2017;
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The description of our common shares contained in our
Registration Statement on Form 8-A (File No. 001- 36532) filed with the
Commission on July 7, 2014 pursuant to Section 12 of the Exchange Act, and
any other amendment or report filed for the purpose of updating such
description;
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the consolidated audited balance sheets of Overland
Storage, Inc. and subsidiaries as of June 30, 2014 and 2013, and the
related audited consolidated statements of operations, equity and
comprehensive income (loss), and cash flows for the fiscal years ended
June 30, 2014 and 2013; the unaudited pro forma condensed combined
financial information of our company, the Overland companies and the
Tandberg companies giving effect to the acquisition of the Overland
companies and derived from the historical consolidated financial
statements and notes thereto of our companies; the description of the
terms of our merger with Overland Storage, Inc., together with Annex A;
and the description of the rights of our shareholders contained in our
Registration Statement on Form F-4 (File No. 333- 197569) filed with the
SEC on July 23, 2014, as subsequently amended;
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Our Report of Foreign Private Issuer on Form 6-K (File
No. 001-36532) furnished to the SEC on June 19, 2017, March 29, 2017,
March 24, 2017, November 14, 2016, September 22, 2016, September 15, 2016,
August 12, 2016, August 11, 2016, May 13, 2016, May 12, 2016, April 21,
2016, and April 7, 2016.
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Unless
otherwise identified, documents or information deemed to have been furnished and
not filed in accordance with SEC rules shall not be deemed incorporated by
reference into this registration statement.
Any
statement contained herein or in a document, all or a portion of which is
incorporated or deemed to be incorporated by reference herein, shall be deemed
to be modified or superseded for purposes of this registration statement to the
extent that a statement contained herein or in any other subsequently filed
document which also is or is deemed to be incorporated by reference herein
modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or amended, to constitute
a part of this registration statement.
You
may obtain copies, without charge, of documents incorporated by reference in
this prospectus, by requesting them in writing or by telephone from us as
follows:
Sphere 3D Corp.
240 Matheson Blvd. East
Mississauga,
Ontario L4Z 1X1
Attention: Investor Relations
(800) 729-8725
Exhibits
to the filings will not be sent unless those exhibits have been specifically
incorporated by reference in this prospectus.
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CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS
Certain
statements in this prospectus and the documents we incorporate by reference in
this prospectus constitute forward-looking information that involves risks and
uncertainties. This forward-looking information includes, but is not limited to,
statements with respect to management’s expectations regarding our future growth
and business plans, business planning process, results of operations, uses of
cash, performance, and business prospects. This forward-looking information may
also include other statements that are predictive in nature, or that depend upon
or refer to future events or conditions. Statements with the words “could”,
“expects”, “may”, “will”, “anticipates”, “assumes”, “intends”, “plans”,
“believes”, “estimates”, “guidance” and similar expressions are intended to
identify statements containing forward-looking information, although not all
forward-looking statements include such words. In addition, any statements that
refer to expectations, projections or other characterizations of future events
or circumstances contain forward-looking information. Statements containing
forward-looking information are not historical facts but instead represent
management’s expectations, estimates and projections regarding future events.
Although
management believes the expectations reflected in such forward-looking
statements are reasonable, forward-looking statements are based on the opinions,
assumptions and estimates of management at the date the statements are made, and
are subject to a variety of risks and uncertainties and other factors that could
cause actual events or results to differ materially from those projected in the
forward-looking statements. These factors include, but are not limited to:
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our ability to maintain the listing of our common shares on the NASDAQ
Capital Market;
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our limited operating history;
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our ability to generate cash to fund operations;
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our ability to refinance our credit facilities prior to maturity or
otherwise raise additional debt or equity financing;
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our ability to integrate the businesses of HVE ConneXions, LLC, and
Unified ConneXions, Inc.;
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the impact of competition;
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any defects in components or design of our products;
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the retention or maintenance of key personnel;
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the possibility of significant fluctuations in operating results;
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currency fluctuations;
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our ability to maintain business relationships;
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financial, political or economic conditions;
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financing risks;
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future acquisitions;
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our ability to protect our intellectual property;
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third party intellectual property rights;
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volatility in the market price for our common shares;
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our compliance with financial reporting and other requirements as a public
company;
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conflicts of interests;
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future sales of our common shares by our directors, officers and other
shareholders;
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dilution and future sales of common shares;
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acquisition-related risks; and
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other factors described under the heading “Risk Factors” and other risk
factors described in the documents incorporated by reference in this
prospectus supplement and the accompanying prospectus.
In
addition, if any of the assumptions or estimates made by management prove to be
incorrect, actual results and developments are likely to differ, and may differ
materially, from those expressed or implied by the forward-looking information.
Accordingly, investors are cautioned not to place undue reliance on such
statements.
All
of this forward-looking information is qualified by these cautionary statements.
Statements containing forward-looking information are made only as of the date
of such document. We expressly disclaim any obligation to update or alter
statements containing any forward-looking information, or the factors or
assumptions underlying them, whether as a result of new information, future
events or otherwise, except as required by law.
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PROSPECTUS SUMMARY
The
following is only a summary and therefore does not contain all of the
information you should consider before investing in our securities. We urge you
to read this entire prospectus, including the matters discussed under “Risk
Factors” and the risk factors incorporated by reference into this prospectus as
described in that section, and the more detailed consolidated financial
statements, notes to the consolidated financial statements and other information
incorporated by reference from our other filings with the SEC.
Our Company
We
are a virtualization technology and data management solutions provider with a
portfolio of products that address the complete data continuum. We enable the
integration of virtual applications, virtual desktops, and storage into
workflow, and allow organizations to deploy a combination of public, private or
hybrid cloud strategies. We achieve this through the sale of solutions that are
derived from our primary product groups: disk systems, virtualization, and data
management and storage.
We
have a global presence and maintain offices in multiple locations. Executive
offices and our primary operations are conducted from our San Jose and San
Diego, California locations. Our main office is located at 9112 Spectrum Center
Blvd., San Diego, CA 92123. Our virtualization product development is primarily
done from its research and development center near Toronto, Canada. Our European
headquarters are located in Germany. We maintain additional offices in
Singapore, Japan, and the United Kingdom.
We
were incorporated on May 2, 2007 under the Business Corporations Act (Ontario)
as “T.B. Mining Ventures Inc.”. Our registered office is located at 240 Matheson
Blvd. East Mississauga, Ontario L4Z 1X1 and our main telephone number is (858)
571-5555. Our Internet address is
http://www.sphere3d.com
. Except for the
documents referred to under “Where You Can Find Additional Information” which
are specifically incorporated by reference into this prospectus, information
contained on our website or that can be accessed through our website does not
constitute a part of this prospectus. We have included our website address only
as an interactive textual reference and do not intend it to be an active link to
our website.
The Offering
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Securities offered by the selling shareholders:
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22,596,607 common shares issuable upon the exercise or
exchange of (i) 20,454,546 warrants issued to the selling shareholders in
connection with a private placement under a Securities Purchase Agreement
entered into on March 24, 2017 and (ii) 2,142,061 warrants issued to Opus
Bank in connection with our Credit Agreement.
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Common shares to be outstanding after the offering:
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126,757,255
(1)
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NASDAQ Capital Market symbol:
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ANY
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Use of proceeds:
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The common shares being offered by this prospectus are
solely for the account of the selling shareholders. We will not receive
any proceeds from the sale or disposition of common shares being offered
by this prospectus. See “Use of Proceeds” beginning on page 16.
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Risk factors:
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See “Risk Factors” beginning on page 8 and the risk
factors incorporated by reference into this prospectus as described in
that section, and the other information included in this prospectus or
incorporated by reference for a discussion of factors you should consider
before making an investment decision
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(1)
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The number of common shares shown to be outstanding is
based on the number of common shares outstanding as
of
June
7, 2017 is 104,160,648, and excludes as of such date:
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- 4 -
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3,113,866 common shares subject to outstanding options issued to employees
and consultants having a weighted- average exercise price of $1.99 per share;
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2,468,914 common shares reserved for issuance in connection with future
awards under our 2015 Performance Incentive Plan and 5,778,500 restricted
share units outstanding and unreleased under our stock plans;
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2,000,000 common shares reserved for future sale under our Employee Stock
Purchase Plan; and
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69,484,730 common shares issuable pursuant to outstanding warrants having a
weighted-average exercise price of $0.59 per share, including warrants to
purchase up to, in aggregate, 800,000 common shares issued on February 19,
2015, March 6, 2015, March 20, 2015 and December 2015 to FBC Holdings S.à r.l.
in connection with draws on our Revolving Credit Agreement with FBC (with each
such warrant’s exercise price being determined by reference to 110% of the
closing price for our common shares on The NASDAQ Global Market on the last
complete trading day immediately prior to issuance) and a warrant to purchase
up to, in aggregate, 500,000 common shares issued on February 26, 2016 in
connection with the amendment to our 8% Senior Secured Convertible Debenture
with FBC (with each such warrant's exercise price being determined by
reference to 110% of the closing price for our common shares on the NASDAQ
Global Market on the last complete trading day immediately prior to issuance).
Unless
otherwise indicated, this prospectus supplement reflects and assumes no exercise
of our outstanding warrants or options to purchase common shares described
above.
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Recent Developments
Private Placement and Concurrent Registered Direct
Offering
On
March 29, 2017, the Company closed a registered direct offering of 20,454,546 of
the Company’s common shares, no par value per share (the “Shares”), and warrants
(the “Warrants”) exercisable to purchase up to 20,454,546 of the Company’s
common shares, no par value per share, at an exercise price of $0.30 per share
by private placement (the “March Private Placement”). The Company sold the
Shares at a price of $0.22 per Share, and received gross proceeds from the
offering, before deducting placement agent fees and other estimated offering
expenses payable by the Company, of approximately $4,500,000. Roth Capital
Partners, LLC acted as the placement agent for the offering.
Private Placement
Between
December 30, 2016 and March 16, 2017, the Company issued a total of 18,139,998
“Units,” at a purchase price of U.S. $0.30 per Unit. Each Unit consisted of one
common share and one warrant from each of two series of warrants. The first
series of warrants is exercisable to purchase 18,139,998 common shares in the
aggregate and has an exercise price of U.S. $0.40 per share, a one-year term,
and is exercisable in whole or in part at any time prior to expiration. The
second series of warrants is exercisable for 18,139,998 common shares in the
aggregate and has an exercise price of U.S. $0.55 per share, a five-year term,
and is exercisable in whole or in part at any time prior to expiration. The
Company received gross proceeds of U.S. $5.4 million in connection with the sale
of the Units.
Consent, Waiver, Reaffirmation and Amendment Number One to
Credit Agreement
On
April 6, 2016, Overland Storage, Inc., a California corporation (“Overland”) and
wholly owned subsidiary of the Company, Tandberg Data GmbH, a limited liability
company organized under the laws of Germany (“Tandberg” and, together with
Overland, collectively the “Borrowers”), and Opus Bank, a California commercial
bank, as Lender (“Lender”), entered into a Credit Agreement (the “Credit
Agreement”) pursuant to which the Lender provided the Borrowers a $10 Million
revolving credit facility and Overland $10 Million term loan facility. On
December 30, 2016, the Borrowers and Lender entered into a Consent, Waiver,
Reaffirmation and Amendment Number One to Credit Agreement (the “First
Amendment”) pursuant to which (i) the maturity date for the revolving and term
loan credit facilities were amended to be the earlier of the maturity date in
the 8% Senior Secured Convertible Debenture, dated December 1, 2014, issued to
FBC Holdings S.a r.l. (the “Debenture”), or March 31, 2017, (ii) the Lender
granted a waiver of specified defaults under the Credit Agreement relating to a
minimum asset coverage ratio, (iii) the Lender provided its consent to the
consummation of the Acquisition (as defined below), and (iv) certain other terms
of the Credit Agreement were amended, including but not limited to terms related
to collateral coverage, milestone deliverables, and financial covenants.
Further,
as a condition of the entry into the First Amendment, the Company (i) cancelled
the warrant issued to Lender for the purchase of 1,541,768 common shares at an
exercise price of $1.30 per common share and (ii) issued to the Lender a warrant
for the purchase of up to 862,068 common shares at an exercise price of $0.01
per common share. In addition, the First Amendment warrant provide for
“piggyback” registration rights. These “piggyback” registration rights would be
triggered by the filing of a registration statement to register the resale of
the warrants and common shares issuable upon the exercise of the warrants. The
exercise price and number of common shares issuable upon exercise of the
warrants may be adjusted in certain circumstances including in the event of a
share dividend, extraordinary cash dividend or our recapitalization,
reorganization, merger or consolidation.
Amendments Number Two and Three to Credit Agreement,
Amendment Number One to Amendment Number 1, Waiver and Reaffirmation, Amendment
Number Four to Credit Agreement and Reaffirmation, and Amendment Number Five to
Credit Agreement and Reaffirmation
On
March 12, 2017, the Borrowers and Lender entered into an Amendment Number Two to
Credit Agreement, Amendment Number One to Amendment Number 1, Waiver and
Reaffirmation (the “Second Amendment”). On March 21, 2017, the Borrowers and
Lender entered into an Amendment Number Three to Credit Agreement (the “Third
Amendment”) further amending the Second Amendment. On April 28, 2017, the
Borrowers and Lender entered into an Amendment Number Four to Credit Agreement
and Reaffirmation (the “Fourth Amendment”). On June 10, 2017, the Borrowers and
Lender entered into an Amendment Number Five to Credit Agreement and
Reaffirmation (the “Fifth Amendment” and, together with the First Amendment,
Second Amendment, Third Amendment and Fourth Amendment, the “Opus Amendments”).
Under the terms of the Second Amendment, as modified by the Third Amendment, (i)
the maturity date for the revolving and term loan credit facilities were amended to be the earlier of (a) the maturity
date in the Debenture or (b) (x) June 30, 2017 if the Maturity Extension Trigger
Date (as defined below) occurs on or before March 31, 2017 or (y) if the
Maturity Extension Trigger Date has not occurred by such date, March 31, 2017,
(ii) the Lender granted a waiver of specified defaults under the Credit
Agreement relating to obligations to deliver to the Lender an executed letter of
intent with respect to refinancing the credit facility, and (iii) certain other
terms of the Credit Agreement were amended, including but not limited to terms
related to collateral coverage, milestone deliverables, and financial covenants.
The Maturity Extension Trigger Date, which occurred prior to March 31, 2017, was
the date upon which (a) the Company received gross cash proceeds of at least
$3,000,000 from the issuance of the common shares and related warrants and (b)
the Company deposited at least $2,500,000 of the funds raised in an equity
offering into the primary operating account that Overland maintains at Opus
Bank. Pursuant to the Opus Amendments, in the event of certain specified events
of default, including failure to meet certain monthly revenue and EBITDA targets
or failure to retain a financial advisor with respect to a sale of a significant
portion of the Company’s assets by June 30, 2017, all amounts under the Credit
Agreement may be accelerated and become immediately payable.
- 6 -
Further,
as a condition of the entry into the Second Amendment, the Company issued to the
Lender (i) a warrant, exercisable for 398,936 shares at an exercise price of
$0.01 per common share and (ii) a warrant, exercisable in the event that the
Company has not repaid all outstanding amounts due under the Credit Agreement on
or prior to May 31, 2017, for the purchase of 881,057 shares at an exercise
price of $0.01 per common share. In addition, the warrants provide for
“piggyback” registration rights. These “piggyback” registration rights would be
triggered by the filing of a registration statement to register the resale of
the warrants and common shares issuable upon the exercise of the warrants. The
exercise price and number of common shares issuable upon exercise or exchange of
the warrants may be adjusted in certain circumstances including in the event of
a share dividend, extraordinary cash dividend or our recapitalization,
reorganization, merger or consolidation.
Acquisition
In
January 2017, the Company completed its acquisition (the “Acquisition”) of all
of the outstanding equity interests of HVE ConneXions, LLC and Unified
ConneXions, Inc. (the “Sellers”). The Company initially purchased 19.9% of the
outstanding equity interests of the Sellers in December 2016, and in connection
with such purchase, issued 3,947,368 common shares. In January 2017, in
connection with the Company’s purchase of the remaining equity interests of the
Sellers, the Company paid to the Sellers $1,100,000 in cash and issued 2,205,883
common shares.
Grant of Inducement RSUs
In
January 2017, we granted 5,156,030 inducement RSUs in connection with the hiring
of additional employees, which will vest over the next one to three years.
- 7 -
RISK FACTORS
An
investment in our securities involves a high degree of risk. In addition to the
other information included in this prospectus, you should carefully consider the
risk factors set forth in our most recent Annual Report on Form 20-F on file
with the SEC, which is incorporated by reference into this prospectus, as well
as the following risk factors, which supplement or augment the risk factors set
forth in our Annual Report on Form 20-F. Before making an investment decision,
you should carefully consider these risks as well as other information we
include or incorporate by reference in this prospectus and the accompanying
prospectus supplement. The risks and uncertainties not presently known to us or
that we currently deem immaterial may also materially harm our business,
operating results and financial condition and could result in a complete loss of
your investment.
Risks Related to Our Common Shares and this Offering
Our share price has been volatile and your investment in
our common shares could decrease in value.
The
market price for securities of technology companies, including ours,
historically has been highly volatile, and the market from time to time has
experienced significant price and volume fluctuations that are unrelated to the
operating performance of such companies. For example, during the 12-month period
ended February 28, 2017, our closing stock price has ranged from a low of $0.20
to a high of $1.97. Fluctuations in the market price or liquidity of our common
shares may harm the value of your investment in our common shares. You may not
be able to resell your common shares at or above the price you pay for those
shares due to fluctuations in the market price caused by changes in our
operating performance or prospects and other factors, including, among
others:
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results or future prospects;
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our announcements or our competitors’ announcements of
new products;
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public reaction to our press releases, our other public
announcements and our filings with the SEC;
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strategic actions by us or our competitors;
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changes in financial markets or general economic
conditions;
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our ability to raise additional capital as needed;
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developments regarding our patents or proprietary rights
or those of our competitors; and
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changes in stock market analyst recommendations or
earnings estimates regarding our common shares, other comparable companies
or our industry generally.
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Future sales of our common shares could adversely affect
the market price and our future capital-raising activities could involve the
issuance of equity securities, which would dilute your investment and could
result in a decline in the trading price of our common shares.
We
will likely sell securities in the public or private equity markets if and when
conditions are favorable, even if we do not have an immediate need for
additional capital at that time. Sales of substantial amounts of common shares,
or the perception that such sales could occur, could adversely affect the
prevailing market price of our common shares and our ability to raise capital.
We may issue additional common shares in future financing transactions or as
incentive compensation for our executive management and other key personnel,
consultants and advisors. Issuing any equity securities would be dilutive to the
equity interests represented by our then-outstanding common shares. The market
price for our common shares could decrease as the market takes into account the
dilutive effect of any of these issuances.
Sales of shares issuable upon exercise or exchange of
outstanding warrants, the conversion of outstanding convertible debt, or the
effectiveness of our registration statement may cause the market price of our
shares to decline.
Excluding
the warrants issued pursuant to the Securities Purchase Agreement and the
warrants issued to Opus Bank, as of June 7, 2017, we have warrants outstanding
for the purchase of up to 46,522,919 common shares having a weighted-average exercise price of $0.74 per share. Our 8%
Senior Secured Convertible Debenture is currently convertible into common shares
at a conversion price of $3.00 per common share. The sale of our common shares
upon exercise of our outstanding warrants, the conversion of the debenture into
common shares, or the sale of a significant amount of the common shares issued
or issuable upon exercise of the warrants in the open market, or the perception
that these sales may occur, could cause the market price of our common shares to
decline or become highly volatile.
- 8 -
If our common shares are delisted from the NASDAQ Capital
Market, our business, financial condition, results of operations and share price
could be adversely affected, and the liquidity of our common shares and our
ability to obtain financing could be impaired.
In
August 2016, we received a letter from the NASDAQ Stock Market LLC (“NASDAQ”)
notifying us that we were not in compliance with the requirement of NASDAQ
Listing Rule 5450(a)(1) (“Listing Rule”) for continued listing on the NASDAQ
Global Market as a result of the closing bid price for our common shares being
below $1.00 for 30 consecutive business days. This notification has had no
effect on the listing of our common shares at this time. In accordance with the
Listing Rule, we had 180 calendar days, or until January 30, 2017, to regain
compliance with such rule. On February 1, 2017, we were granted an additional
180 calendar day period to regain compliance with the Listing Rule in connection
with the transfer of the listing of our common shares to the NASDAQ Capital
Market. To regain compliance, we must effectuate a reverse stock split in order
for our common shares to have a closing bid price above $1.00 for a minimum of
10 consecutive business days. No assurance can be given that we will regain
compliance during that period.
Future sales of our securities under certain
circumstances may trigger price-protection provisions in outstanding warrants,
which would dilute your investment and could result in a decline in the trading
price of our common shares.
In
connection with our registered direct offering in December 2015, we issued a
warrant exercisable to purchase up to 1,500,000 common shares that contains
certain price protection provisions. If we, at any time while these warrants are
outstanding, effect certain variable rate transactions and the issue price,
conversion price or exercise price per share applicable thereto is less than the
exercise price then in effect for the warrants, then the exercise price of the
warrants will be reduced to equal such price. Additionally, if at any time while
the warrants issued pursuant to the Securities Purchase Agreement entered into
in March 2017 are outstanding, the Company sells or grants options to purchase,
reprices or otherwise issues any common shares or securities convertible into
common shares at a price less than $0.30, then the exercise price for the
Warrants will be reduced to such price, provided that the exercise price will
not be lower than $0.10, and the number of common shares issuable under the
Warrants will be increased such that, after taking into account the decrease in
the exercise price, the aggregate exercise price under the Warrants will remain
the same. Any reverse stock split made in order to regain compliance with the
Listing Rule will not adjust the minimum exercise price of the warrants. The
triggering of these price protection provisions, together with the exercise of
these warrants, could cause the market price of our common shares to decline or
become highly volatile, and/or cause additional dilution to our
shareholders.
We may have to pay liquidated damages to our investors,
which will increase our negative cash flows.
Under
the terms of our registration rights agreements entered into with certain
investors in connection with private placements of our securities in May, June,
and August 2015, in connection with the warrant exchange agreement we entered
into in March 2016 and in connection with the private placement in March 2017,
if we fail to comply with certain provisions set forth in these agreements,
including covenants requiring that we maintain the effectiveness of the
registration statements registering these securities, then we will be required
to pay liquidated damages to our investors. There can be no assurance that the
registration statements will remain effective for the time periods necessary to
avoid payment of liquidated damages. If we are required to pay our investors
liquidated damages, this could materially harm our business and future
prospects.
The terms of our March 2017 private placements may
materially and adversely impact our ability to obtain additional financing in
the future.
We
are subject to certain restrictions and obligations in connection with our
private placement of warrants that was consummated in March 2017 which may
materially and adversely affect our ability to obtain additional financing in
the future. These restrictions and obligations include participation rights
whereby certain investors are entitled to purchase up to 50% in the aggregate of
the securities sold in any subsequent issuance for 15 months following the
closing of the private placement (the “Closing”), prohibitions on issuing common
shares or common share equivalents in a variable rate transaction for 90 days
following the Closing and prohibitions on issuing common shares or common share
equivalents through an equity line of credit, at-the-market offering, or similar
transaction for six months following the Closing. Additionally, if at any time
while the warrants are outstanding the Company sells or grants options to
purchase, reprices or otherwise issues any common shares or securities convertible into common shares at a price less than
$0.30, then the exercise price for the Warrants will be reduced to such price,
provided that the exercise price will not be lower than $0.10, and the number of
common shares issuable under the Warrants will be increased such that, after
taking into account the decrease in the exercise price, the aggregate exercise
price under the Warrants will remain the same. Any reverse stock split made in
order to regain compliance with the Listing Rule will not adjust the minimum
exercise price of the warrants. The triggering of these price protection
provisions, together with the exercise of these warrants, could materially and
adversely affect our ability to obtain additional financing in the future.
- 9 -
We do not expect to pay cash dividends on our common
shares for the foreseeable future.
We
have never paid cash dividends on our common shares and do not anticipate that
any cash dividends will be paid on the common shares for the foreseeable future.
The payment of any cash dividend by us will be at the discretion of our board of
directors and will depend on, among other things, our earnings, capital,
regulatory requirements and financial condition.
- 10 -
IDENTITY OF DIRECTORS, SENIOR MANAGEMENT AND ADVISORS
The following table sets forth information with respect to each
of the directors and officers of the Company, who share a business address at
9112 Spectrum Center Blvd, San Diego, CA 92123 USA.
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Name
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Position with Sphere 3D
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Peter Ashkin
(1)(2)(3)
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Director
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Dr. Cheemin Bo-Linn
(1)(2)(3)
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Director
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Eric L. Kelly
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Chief Executive Officer, Chairman and Director
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Vivekanand Mahadevan
(1)(2)(3)
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Director
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Duncan McEwan
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Director
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Peter Tassiopoulos
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President, Vice Chairman and Director
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Kurt L. Kalbfleisch
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Senior Vice President and Chief Financial
Officer
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Jenny C. Yeh
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Vice President, Legal and General Counsel
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(1)
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Member of Audit Committee.
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Member of Compensation Committee.
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Member of the Nominating and Governance
Committee.
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Peter Ashkin, Director
Mr.
Ashkin
member of the Board and also serves as the Chairman of its
Compensation Committee. Mr. Ashkin has been a Managing Partner of Baker, Cook
and Constable LLC, a venture capital firm that focuses on investing in, and
operating high-tech start-up companies since March 2012 and President of Peter
Ashkin Consulting, a consulting agency that focuses on high-tech startup
companies since 2006. Previously, Mr. Ashkin served as President of the
Technology Group for CanWest Mediaworks (2004 -2006), at that time, Canada’s
largest media company, with multiple locations across Canada consisting of
newspapers, broadcast television and cable. Prior to CanWest, Mr. Ashkin served
as President of Product Strategy for AOL (America Online) (2001 -2004), at that
time, the world’s largest internet provider. Mr. Ashkin also served as Senior
Vice President and Chief Technology Officer of Gateway Computer (1998 - 2001)
and prior thereto a number of senior and executive management positions at both
Toshiba Corporation and Apple.
Dr. Cheemin Bo-Linn, Director
Dr.
Bo-Linn has served as a member of our Board since April 2017 and also serves as
the Chairman of its Audit Committee. Dr. Bo-Linn is the CEO and President of
Peritus Partners Inc., an international consulting group focused on leading
companies to the next level growth and increasing business valuation, and has
held this position since January 2013. From September 2010 to November 2012, she
was Chief Marketing Officer, Chief Revenue Officer and consultant at NetLine
Corporation, a global online multi-channel digital media network, mobile
applications and content marketing services company. From July 2006 to August
2010, she was President of Peritus Partners Inc./BL Group. From June 1980 to
June 2006, she held a number of executive business management roles including
IBM Vice-President of Electronics, and other roles with responsibility ranging
from strategy, marketing, sales, operations and investments across storage and
software products and consulting services. She presently serves on the Advisory
Board of SpeedTrack, a business analytics software company, and Women in
Technology International, an online marketplace for research, publications,
media and career services. She previously served as a member of the Boards of
Directors of Violin Memory, Inc., NetLine Corporation, Association of Corporate
Growth-SV, American Electronics Association and several private companies. She
holds a Doctorate of Education focused on “Computer-based Management Information
Systems and Organizational Change” from the University of Houston.
Eric L. Kelly, Chief Executive Officer and Chairman
Eric
Kelly has served as CEO and chairman of Sphere 3D since the company's merger
with Overland Storage in December 2014. Mr. Kelly served as Overland Storage's
CEO since January 2009, its President & CEO since January 2010 and as a
board member since November 2007. Prior to joining Overland Storage, Mr. Kelly
was President of Silicon Valley Management Partners Inc., a management
consulting and M&A advisory firm which he co-founded in 2007. He is a
seasoned executive with over 35 years of experience in the technology industry.
Mr. Kelly served two terms, from 2013 to 2016, on the U.S. Department of
Commerce’s Manufacturing Council, where he offered advice and counsel to the
Obama administration on strategies and policy recommendations on ways to promote
and advance U.S. manufacturing globally, and from 2013-2014 he was appointed to
President Obama’s White House Advanced Manufacturing Steering Committee. He is
also serving on the Board of Directors-San Jose State University, is a member of
the Global Leadership Council for San Jose State University’s Lucas College and
Graduate School of Business and serves on the Advisory Board for San Francisco
State University Graduate School of Business. He earned an MBA from San
Francisco State University and a B.S. in Business Management from San Jose State
University
- 11 -
Vivekanand Mahadevan, Director
Mr.
Mahadevan has been the Chief Executive Officer of Dev Solutions, Inc., a
consulting firm that helps technology startups build next-generation market
leaders in data analytics, security, storage and cloud markets since March 2012.
Mr. Mahadevan was the Chief Strategy Officer for NetApp, Inc., a supplier of
enterprise storage and data management software and hardware products and
services, from November 2010 until February 2012. Prior to that time served as
Vice President of Marketing for LSI Corporation, an electronics company that
designs semiconductors and software that accelerate storage and networking, from
January 2009 to September 2010. Prior to LSI Corporation, he was Chief Executive
Officer for Deeya Energy, Inc., and has also held senior management positions
with leading storage and systems management companies including BMC Software,
Compaq, Ivita, and Maxxan Systems. Mr. Mahadevan is also a current board member
of Violin Memory, Inc. Mr. Mahadevan holds an M.B.A. in Marketing and MS in
Engineering from the University of Iowa as well a degree in Mechanical
Engineering from the Indian Institute of Technology.
Duncan McEwan, Director
Mr.
McEwan is president of Diligent Inc., a consulting company he founded in 1991
specializing in M&A and strategic advice for technology-based clients. Mr.
McEwan was Executive Vice President and Chief Strategy Officer of Call-Net
Enterprises Inc., a provider of long-distance telephone services until it merged
into Rogers Communication Inc. (2004-2005); President and Chief Operating
Officer of Sprint Canada Inc., an integrated, national telecommunications
provider (2001-2004); Chief Executive Officer of Northpoint Canada
Communications, a provider of high-speed data and Internet (DSL) lines
(2000-2001); President and Chief Executive Officer of Canadian Satellite
Communications (Cancom) (1996-2000). Mr. McEwan has been Chairman of the Board
of Geminare, Inc. since 2010, an emerging global leader in business continuity
and cloud-based software systems and has previously served on a number of other
public and private company boards. Mr. McEwan is a graduate of the University of
Toronto.
Peter Tassiopoulos, President, Vice Chairman and
Director
Mr.
Tassiopoulos is a current member of the Board and has served as President of the
Company since December 1, 2014. Mr. Tassiopoulos served as the Chief Executive
Officer of the Company from March 2013 until December 1, 2014. Mr. Tassiopoulos
has extensive experience in information technology business development and
global sales as well as a successful track record leading early-stage technology
companies. He has been actively involved as a business consultant over the past
10 years, including acting as Chief Operating Officer and then Chief Executive
Officer of BioSign Technologies Inc. from September 2009 to April 2011 and Chief
Executive Officer of IgeaCare Systems Inc. from February 2003 to December 2008.
Mr. Tassiopoulos is also a current board member of Northern Sphere Mining Corp.,
formerly Argentium Resources Inc.
Kurt L. Kalbfleisch, Senior Vice President and Chief
Financial Officer
Mr.
Kalbfleisch has served as Senior Vice President and Chief Financial Officer of
the Company since December 1, 2014. Mr. Kalbfleisch had 20 years of service with
Overland and served as Overland's Senior Vice President since June 2012, Chief
Financial Officer since February 2008, and Secretary since October 2009. Prior
to that, he served as Overland's Vice President of Finance from July 2007 to
June 2012.
Jenny C. Yeh, Vice President, Legal and General
Counsel
Ms.
Yeh has served as Vice President, Legal and General Counsel of the Company since
October 5, 2015. Prior to joining the Company, Ms. Yeh served as Executive
Counsel, Transactions and Finance, at General Electric Company where she was a
senior legal advisor to GE Corporate’s business development group, supporting
global corporate strategy and transactions across all GE industrial businesses
worldwide. From 2007 to 2011, Ms. Yeh was a corporate partner at Baker &
McKenzie LLP, where she advised clients in general corporate and securities
matters, with a specialization in complex cross-border transactions. Ms. Yeh
holds a Juris Doctorate from Georgetown University Law Center, and Bachelor of
Arts degrees from the University of California at Berkeley.
- 12 -
The
Company’s independent auditor is Moss Adams LLP, located at 4747 Executive
Drive, Suite 1300, San Diego, CA 92121.
RELATED PARTY TRANSACTIONS
Related
parties of the Company include the Company’s directors, key management personnel
and persons that beneficially own, control or direct, directly or indirectly,
more than 10% of the voting securities of the Company. Key management personnel
are those persons having authority and responsibility for planning, directing,
and controlling the activities of the Company, directly or indirectly. There
were no transactions between the Company and such related parties for the
preceding three financial years up to June 23, 2017 that were material to the
Company or such related party, except for the following:
Registered
Direct Offering and Concurrent Private Placement.
On March 24, 2017,
the Company entered into a Securities Purchase Agreement with certain investors,
pursuant to which the Company issued to the investors, in the aggregate,
20,454,546 of the Company’s common shares for gross proceeds of $4.5 million.
The purchase price for one common share was $0.22. The Securities Purchase
Agreement also provided for the concurrent private placement of warrants
exercisable to purchase up to 20,454,546 common shares.
MF
Ventures, LLC, which beneficially owns, directly or indirectly, securities of
the Company carrying more than 10% of the voting rights attached to the
outstanding voting securities of the Company (on a partially-diluted basis),
participated in the private placements by acquiring 4,545,454 common shares and
warrants to purchase 4,545,454 common shares, for an aggregate purchase price of
$1.0 million.
Private
Placement.
Between December 30, 2016 and March 16, 2017, the Company
completed a private placement and issued a total of 18,139,998 “Units” at a
purchase price of $0.30 per Unit. Each Unit consisted of one common share and
one warrant from each of two series of warrants. The Company received gross
proceeds of $5.4 million in connection with the sale of the Units. The first
series of warrants is exercisable to purchase 18,139,998 common shares in the
aggregate and has an exercise price of $0.40 per share, a one-year term, and is
exercisable in whole or in part at any time prior to expiration. The second
series of warrants is exercisable for 18,139,998 common shares in the aggregate
and has an exercise price of $0.55 per share, a five-year term, and is
exercisable in whole or in part at any time prior to expiration.
MF
Ventures, LLC, participated in the private placements by acquiring 8,333,333
common shares and warrants to purchase 16,666,666 shares.
Lynn
Factor and Sheldon Inwentash, a married couple who beneficially owns, directly
or indirectly, securities of the Company carrying more than 10% of the voting
rights attached to the outstanding voting securities of the Company (on a
partially-diluted basis), participated in the private placements by acquiring
5,325,000 common shares and warrants to purchase 10,650,000 shares. An
additional 700,000 common shares and warrants to purchase 1,400,000 shares were
acquired by ThreeD Capital Inc. Mr. Inwentash is the Chief Executive Officer of
ThreeD Capital Inc.
Related
Party Term Loan.
In September 2016, the Company entered into a $2.5
million term loan agreement with FBC Holdings (an affiliate of Cyrus Capital
Partners, a related party). The term loan has a maturity date of January 31,
2018 and bears interest at a 20.0% simple annual interest rate, payable monthly
in arrears. Monthly payments of principal on the term loan begin on January 31,
2017, in 13 equal installments. The Company has the option to pre-pay the
outstanding balance of the term loan, plus any accrued interest, at any
time.
Related
Party Warrant Exchange Agreement.
The Company entered into a warrant
exchange agreement (the “Warrant Exchange Agreement”), dated March 25, 2016,
with MF Ventures, LLC (the “Holder”) pursuant to which the Company agreed to
issue a warrant (the “New Warrant”) for the purchase of up to 7,199,216 common
shares (the “Warrant Shares”), no par value, in a privately negotiated exchange
under Section 3(a)(9) of the Securities Act of 1933, as amended, in exchange for
the surrender and cancellation of previously outstanding warrants for the
purchase of up to, in aggregate, 3,031,249 common shares (the “Previously
Outstanding Warrants”). The Previously Outstanding Warrants were issued pursuant
to: (i) that certain Purchase Agreement, dated as of May 13, 2015, by and
between the Company and the Holder (the “May Purchase Agreement”); (ii) that
certain Purchase Agreement, dated as of August 10, 2015, by and between the
Company and the Holder (the “August Purchase Agreement”); and (iii) that certain
Subscription Agreement, dated as of September 22, 2015, by and between the
Company and the Holder (the “2015 Subscription Agreement”). The terms of the New
Warrant are substantially similar to the Previously Outstanding Warrants except:
(i) in the case of the Previously Outstanding Warrants issued pursuant to the
May Purchase Agreement, the exercise price changed from $4.00 per common share
to $1.22 per common share; (ii) in the case of the Previously Outstanding
Warrants issued pursuant to the August Purchase Agreement and the 2015
Subscription Agreement, the exercise price changed from $2.33 per common share
to $1.22 per common share; and (iii) the expiry date changed from various dates between May
18, 2020 and September 22, 2020 to April 14, 2016. However, if the holder
exercises the New Warrant for the purchase of at least 3,031,249 common shares
before April 14, 2016, then the expiry date for the balance of any unexercised
portion of the New Warrant shall become March 25, 2021. On March 25, 2016, the
Holder exercised 3,031,249 of the Warrant Shares for 3,031,249 common shares
pursuant to which the Company received $3.7 million in proceeds. The expiration
date for the remaining balance of the New Warrant is March 25, 2021. The Company
also entered into a Registration Rights Agreement (the “Registration Rights
Agreement”), dated as of March 25, 2016, with the Holder. Pursuant to the
Registration Rights Agreement, the Company filed a registration statement with
the SEC to register the resale of the Warrant Shares.
- 13 -
Related
Party Convertible Notes.
On December 1, 2014, in connection with the
acquisition of Overland, the existing debt of Overland and the remaining debt of
the Company were amended and restated into a $19.5 million convertible note with
FBC Holdings. In April 2016, the Company modified its convertible note with FBC
Holdings, pursuant to which the holder made an additional advance of $5.0
million to the Company. The convertible note was originally convertible into
common shares at a price equal to $7.50 per share with respect to $10 million of
the convertible note and $8.50 per share with respect to $9.5 million of the
convertible note. In November 2015, the convertible note was modified and the
conversion prices of $7.50 per share and $8.50 per share were adjusted to $3.00
per share. The convertible note is scheduled to mature March 31, 2018 and bears
interest at an 8.0% simple annual interest rate, payable semi-annually. The
obligations under the convertible note are secured by substantially all assets
of the Company. At December 31, 2016, the Company had $24.2 million, net of
unamortized debt costs of $0.3 million, outstanding on the convertible note.
In
February 2016, in connection with the November 2015 modification and certain
specified terms, we issued to the holder of the convertible note a warrant to
purchase 500,000 of common shares of the Company at a price of $1.62.
In
June and December 2015, we issued 157,872 and 510,590 common shares,
respectively, for the payment of interest expense on our convertible note. In
2016, we issued 4,214,849 common shares for the payment of interest expense on
our convertible note.
Terminated
Related Party Credit Facility.
In December 2014, the Company
entered into a revolving credit agreement with FBC Holdings for a revolving
credit facility of $5.0 million. In July 2015, the credit facility was amended
to extend the scheduled maturity date to May 2016 with an automatic extension to
November 2016, and the aggregate borrowing amount was increased from $5.0
million to $10.0 million. In April 2016, the credit facility was terminated upon
repayment of the outstanding balance.
For
the year ended December 31, 2016, interest expense for the credit facility was
$0.9 million, which included $0.7 million of amortization of issuance costs.
Interest expense for the credit facility was $1.2 million, which included $0.7
million of amortization of issuance costs in 2015. At December 31, 2015, there
were $0.1 million in accrued liabilities related to fees.
In
February 2015, we issued warrants to purchase up to 100,000 common shares to FBC
Holdings in connection with draws on our related party credit facility. The
warrants expire in February 2018 and have an exercise price of $4.50 per
share.
In
March 2015, we issued warrants to purchase up to 200,000 common shares to FBC
Holdings in connection with draws on our related party credit facility. The
warrants expire in March 2018 and have an exercise price of: (i) in the case of
100,000 of the warrants, $7.21 per share; and (ii) in the case of 100,000 of the
warrants, $5.02 per share.
In
December 2015, we issued warrants to purchase 500,000 common shares of the
Company to FBC Holdings in connection with draws on our related party credit
facility. The warrants expire in December 2018 and have an exercise price of
$1.54 per share.
Related
Commercial Agreements
. In July 2013, the Company entered into a supply
agreement, and a technology license agreement, with Overland Storage, Inc.. As
payments under the supply agreement, Sphere 3D issued common shares with a value
as of the date of issuance equal to approximately $0.5 million to Overland
during each of the years ended December 31, 2014 and 2013.
In
September 2014, the Company entered into a commercial relationship with a third
party customer to sell a license to its Glassware product. The customer required
that the Glassware product be provided through one of its preapproved
distribution partners. The Company did not have a relationship with such
distribution partner and in order to facilitate such transaction on a timely
basis, the Company and Overland agreed that Overland would purchase the
Glassware product from the Company and resell it to the distribution partner,
with whom Overland had a preexisting relationship.
- 14 -
The
Company recognized $0.8 million and zero in revenue related to these agreements
during the years ended December 31, 2014 and 2013, respectively. The Company
made purchases of $1.4 million from Overland related to the supply agreement
prior to the acquisition of Overland on December 1, 2014. The Company recognized
$0.2 million in interest income from a note receivable from Overland that
existed prior to the acquisition of Overland. No related party expense, other
than debt interest expense, was recognized during the years ended December 31,
2014 and 2013. Amounts included in other current assets and accounts payable
under these agreements was $0.4 million and $0.1 million as of December 31,
2013.
Related
Party Legal Services
. Legal services of $0.4 million and $0.1 million
were provided by a legal firm affiliated with a former director of the Company
during the years ended December 31, 2014 and 2013, respectively. Professional
services of $0.4 million and $0.6 million were provided by a company controlled
by a director of the Company during the years ended December 31, 2014 and 2013,
respectively.
- 15 -
REASONS FOR THE OFFER AND USE OF PROCEEDS
We
are required under the terms of the Registration Rights Agreement entered into
with the investors in the March Private Placement to file a registration
statement on Form F-1, of which this prospectus is a part, to cover the resale
of the common shares issuable upon conversion of the warrants. The common shares
being offered by this prospectus are solely for the account of the selling
shareholders. To the extent that we have received or will receive additional
cash upon exercise of the warrants, we currently expect to use that cash for
general corporate purposes. These purposes may include repayment of debt,
working capital needs, capital expenditures, acquisitions and any other general
corporate purpose.
SELLING SHAREHOLDERS
We
have prepared this prospectus to allow the selling shareholders or their donees,
pledgees, transferees or other successors in interest to sell or otherwise
dispose of, from time to time, up to an aggregate of 22,596,607 common shares
issuable upon the exercise or exchange of (i) 20,454,546 warrants issued to the
selling shareholders in connection with a private placement under a Securities
Purchase Agreement entered into on March 24, 2017 and (ii) 2,142,061 warrants
issued to Opus Bank in connection with our Credit Agreement. The table below
presents information regarding the selling shareholders, the common shares
beneficially owned and the common shares that they may sell or otherwise dispose
of from time to time under this prospectus.
We
do not know when or in what amounts the selling shareholder may sell or
otherwise dispose of the common shares covered hereby. The selling shareholder
might not sell any or all of the shares covered by this prospectus or may sell
or dispose of some or all of the shares other than pursuant to this prospectus.
Because the selling shareholder may not sell or otherwise dispose of some or all
of the shares covered by this prospectus and because there are currently no
agreements, arrangements or understandings with respect to the sale or other
disposition of any of the shares, we cannot estimate the number of the shares
that will be held by the selling shareholder after completion of the offering.
However, for purposes of this table, we have assumed that all of the common
shares covered by this prospectus will be sold by the selling shareholder.
|
|
Beneficial Ownership
(1)
|
|
|
Number of
|
|
Percent
|
|
|
|
Number of
|
|
Percent
|
|
|
Shares
|
|
of
|
|
|
|
Shares
|
|
of
|
|
|
Beneficially
|
|
Class
|
|
Number of
|
|
Beneficially
|
|
Class
|
|
Name of
|
Owned Prior
|
|
Prior
|
|
Shares
|
|
Owned
|
|
After
|
|
Selling
|
to the
|
|
to the
|
|
Offered
|
|
After this
|
|
this
|
|
Shareholder
(2)
|
Offering
|
|
Offering
|
|
Hereby
(3)
|
|
Offering
|
|
Offering
|
|
MF Ventures, LLC
(4)
|
41,913,869
|
(5)
|
33.07%
|
|
4,545,454
|
|
37,368,415
|
|
29.48%
|
|
Anson Investments Master Fund LP
(6)
|
4,210,000
|
|
3.32%
|
|
2,500,000
|
|
1,710,000
|
|
1.35%
|
|
Alto Opportunity Master Fund, SPC -
Segregated Master Portfolio B
(7)
|
2,500,000
|
|
1.97%
|
|
2,500,000
|
|
0
|
|
0%
|
|
CVI Investments, Inc.
(8)
|
2,829,484
|
|
2.23%
|
|
2,272,728
|
|
556,756
|
|
0.44%
|
|
Hudson Bay Master Fund Ltd.
(9)
|
4,545,454
|
|
3.59%
|
|
4,545,454
|
|
0
|
|
0%
|
|
Intracoastal Capital, LLC
(10)
|
3,090,910
|
|
2.44%
|
|
3,090,910
|
|
0
|
|
0%
|
|
Black Mountain Equities, Inc.
(11)
|
500,000
|
|
0.39%
|
|
500,000
|
|
0
|
|
0%
|
- 16 -
|
Gemini Master Fund, Ltd.
(12)
|
500,000
|
|
0.39%
|
|
500,000
|
|
0
|
|
0%
|
|
Opus Bank
(13)
|
2,142,061
|
|
1.69%
|
|
2,142,061
|
|
0
|
|
0%
|
|
*
|
Less than 1.0% .
|
|
(1)
|
Beneficial ownership is determined in accordance with
Section 13(d) of the Exchange Act and generally includes voting and
investment power with respect to securities and including any securities
that grant the selling shareholder the right to acquire common shares
within 60 days of June 7, 2017. Percentage ownership is based on an
aggregation of the 104,160,648 common shares issued and outstanding as of
June 7, 2017 and assumes issuance of the remaining common shares issuable
upon exercise or exchange of warrants. This amount totals 126,757,255
common shares.
|
|
(2)
|
Unless otherwise indicated, this table is based on
information supplied to us by the selling shareholders and our
records.
|
|
(3)
|
All 22,596,607 common shares offered pursuant to this
prospectus are issuable upon exercise or exchange of warrants.
|
|
(4)
|
MF Ventures, LLC beneficially owns, directly or
indirectly, securities of the Company carrying more than 10% of the voting
rights attached to the outstanding voting securities of the Company (on a
partially-diluted basis). Victor B. MacFarlane and Thaderine D. MacFarlane
have shared voting and investment power with respect to the common shares
held by this selling shareholder. The address for this selling shareholder
is: 201 Spear Street 14
th
Floor, San Francisco, California
94105.
|
|
(5)
|
Consists of warrants currently exercisable for 25,380,087
common shares and 16,533,782 common shares currently issued to and held
directly by MF Ventures, LLC, and, further, assumes MF Ventures, LLC is
not subject to a 4.99% blocker that would prevent the exercise of warrants
for 4,545,454 common shares that are registered hereunder. Please refer to
the SC 13D/A filed by MF Ventures, LLC, among others, on March 31,
2017.
|
|
(6)
|
Voting and investment power over the shares held by Anson
Investments Master Fund LP is exercised by the co-investment advisors to
Anson Investments Master Fund LP. The co-investment advisors of Anson
Investments Master Fund LP consist of Anson Advisors Inc. and Anson Funds
Management LP. Bruce Winson is the managing member of Anson Management GP
LLC, which is the general partner of Anson Funds Management LP. Moez
Kassam and Adam Spears are directors of Anson Advisors Inc. Mr. Winson,
Mr. Kassam and Mr. Spears each disclaim beneficial ownership of these
shares. The principal business address for this selling shareholder is:
190 Elgin Ave; George Town, Grand Cayman.
|
|
(7)
|
Ayrton Capital LLC, the investment manager to Alto
Opportunity Master Fund, SPC - Segregated Master Portfolio B, has
discretionary authority to vote and dispose of the shares held by Alto
Opportunity Master Fund, SPC - Segregated Master Portfolio B and may be
deemed to be the beneficial owner of these shares. Waqas Khatri, in his
capacity as Managing Member of Ayrton Capital LLC, may also be deemed to
have investment discretion and voting power over the shares held by Alto
Opportunity Master Fund, SPC - Segregated Master Portfolio B. Alto
Opportunity Master Fund, SPC - Segregated Master Portfolio B and Mr.
Khatri each disclaim any beneficial ownership of these shares. The address
of Ayrton Capital LLC is 1180 Avenue of Americas, Suite 842, New York, NY
10036.
|
|
(8)
|
Heights Capital Management, Inc., the authorized agent of
CVI Investments, Inc. ("CVI"), has discretionary authority to vote and
dispose of the shares held by CVI and may be deemed to be the beneficial
owner of these shares. Martin Kobinger, in his capacity as Investment
Manager of Heights Capital Management, Inc., may also be deemed to have
investment discretion and voting power over the shares held by CVI. Mr.
Kobinger disclaims any such beneficial ownership of the shares. The
address for this selling shareholder is: 101 California Street, Suite
3250, San Francisco, CA 94111.
|
|
(9)
|
Hudson Bay Capital Management LP, the investment manager
of Hudson Bay Master Fund Ltd., has voting and investment power over these
securities. Sander Gerber is the managing member of Hudson Bay Capital GP
LLC, which is the general partner of Hudson Bay Capital Management LP.
Each of Hudson Bay Master Fund Ltd. and Sander Gerber disclaims beneficial
ownership over these securities. The address for this selling shareholder
is: 777 Third Avenue, 30
th
Floor, New York, NY 10017.
|
|
(10)
|
Mitchell P. Kopin and Daniel B. Asher, are each managers
of Intracoastal Capital LLC ("lntracoastal") and have shared voting
control and investment discretion over the securities reported herein that
are held by Intracoastal. As a result, each of Mr. Kopin and Mr. Asher may
be deemed to have beneficial ownership of the shares held by Intracoastal.
Mr. Asher, who is a manager of Intracoastal, is also a control person of a
broker-dealer. As a result of such common control, Intracoastal may be
deemed to be an affiliate of a broker-dealer. Intracoastal acquired the
ordinary shares being registered hereunder in the ordinary course of
business, and at the time of the acquisition of the ordinary shares and
warrants described herein, Intracoastal did not have any arrangements or
understandings with any person to distribute such securities. The address
for this selling shareholder is: 2211A Lakeside Drive Bannockbum IL
60015.
|
|
(11)
|
Adam Baker, President of Black Mountain Equities, Inc.,
has sole voting and dispositive power over shares held by Black Mountain
Equities, Inc. The address for this selling shareholder is: 13366
Greenstone Court, San Diego, CA 92131.
|
- 17 -
|
(12)
|
Steven Winters, President of Gemini Strategies Inc.,
investment manager of Gemini Master Fund, Ltd. has sole voting and
dispositive power over shares held by Gemini Master Fund, Ltd. The address
for this selling shareholder is: c/o Gemini Strategies, 6619 South Vulcan
Ave, Suite 203, Encinitas, CA 92024.
|
|
(13)
|
Opus Bank is a California commercial bank and lender to
the company under its credit agreement. The address for this selling
shareholder is: 19900 MacArthur Boulevard, 12th Floor, Irvine, California
92612.
|
- 18 -
PLAN OF DISTRIBUTION
We
are registering up to an aggregate of 22,596,607 common shares issuable upon the
exercise or exchange of (i) 20,454,546 warrants issued to the selling
shareholders in connection with a private placement under a Securities Purchase
Agreement entered into on March 24, 2017 and (ii) 2,142,061 warrants issued to
Opus Bank in connection with our Credit Agreement. We will not receive any of
the proceeds from the sale by the selling shareholders of the common shares. We
will bear all fees and expenses incident to our obligation to register the
common shares.
The
selling shareholders, which as used herein includes donees, pledgees,
transferees or other successors-in-interest selling common shares or interests
in common shares received after the date of this prospectus from a selling
shareholder as a gift, pledge, partnership distribution or other transfer, may,
from time to time, sell, transfer or otherwise dispose of any or all of their
common shares or interests in common shares on any stock exchange, market or
trading facility on which the shares are traded or in private transactions.
These dispositions may be at fixed prices, at prevailing market prices at the
time of sale, at prices related to the prevailing market price, at varying
prices determined at the time of sale, or at negotiated prices.
The
selling shareholders may use any one or more of the following methods when
disposing of shares or interests therein:
|
|
•
|
ordinary brokerage transactions and transactions in which
the broker-dealer solicits purchasers;
|
|
|
|
|
|
|
•
|
block trades in which the broker-dealer will attempt to
sell the shares as agent, but may position and resell a portion of the
block as principal to facilitate the transaction;
|
|
|
|
|
|
|
•
|
purchases by a broker-dealer as principal and resale by
the broker-dealer for its account;
|
|
|
|
|
|
|
•
|
an exchange distribution in accordance with the rules of
the applicable exchange;
|
|
|
|
|
|
|
•
|
privately negotiated transactions;
|
|
|
|
|
|
|
•
|
short sales effected after the date the registration
statement of which this prospectus is a part is declared effective by the
SEC;
|
|
|
|
|
|
|
•
|
through the writing or settlement of options or other
hedging transactions, whether through an options exchange or otherwise;
|
|
|
|
|
|
|
•
|
broker-dealers may agree with the selling shareholders to
sell a specified number of such shares at a stipulated price per share;
|
|
|
|
|
|
|
•
|
a combination of any such methods of sale; and
|
|
|
|
|
|
|
•
|
any other method permitted by applicable law.
|
If
the selling shareholders effect such transactions by selling common shares to or
through underwriters, broker-dealers or agents, such underwriters,
broker-dealers or agents may receive commissions in the form of discounts,
concessions or commissions from the selling shareholders or commissions from
purchasers of the common shares for whom they may act as agent or to whom they
may sell as principal (which discounts, concessions or commissions as to
particular underwriters, broker-dealers or agents may be in excess of those
customary in the types of transactions involved). The selling shareholders may,
from time to time, pledge or grant a security interest in some or all of the
common shares owned by them and, if they default in the performance of their
secured obligations, the pledgees or secured parties may offer and sell the
common shares, from time to time, under this prospectus, or under an amendment
to this prospectus under Rule 424(b)(3) or other applicable provision of the
Securities Act amending the list of selling shareholders to include the pledgee,
transferee or other successors in interest as selling shareholders under this
prospectus. The selling shareholders also may transfer the common shares in
other circumstances, in which case the transferees, pledgees or other successors
in interest will be the selling beneficial owners for purposes of this
prospectus.
In
connection with the sale of our common shares or interests therein, the selling
shareholders may enter into hedging transactions with broker-dealers or other
financial institutions, which may in turn engage in short sales of the common
shares in the course of hedging the positions they assume. The selling
shareholders may also sell shares of our common shares short and deliver these securities to close out their short positions, or
loan or pledge the common shares to broker-dealers that in turn may sell these
securities. The selling shareholders may also enter into option or other
transactions with broker-dealers or other financial institutions or the creation
of one or more derivative securities which require the delivery to such
broker-dealer or other financial institution of shares offered by this
prospectus, which shares such broker-dealer or other financial institution may
resell pursuant to this prospectus (as supplemented or amended to reflect such
transaction).
- 19 -
The
aggregate proceeds to the selling shareholders from the sale of the common
shares offered by them will be the aggregate purchase price of the common shares
less aggregate discounts or commissions, if any. Each of the selling
shareholders reserves the right to accept and, together with their agents from
time to time, to reject, in whole or in part, any proposed purchase of common
shares to be made directly or through agents. We will not receive any of the
proceeds from this offering. Upon any exercise of the warrants by payment of
cash, however, we will receive the exercise price of the warrants.
The
selling shareholders also may resell all or a portion of the common shares in
open market transactions in reliance upon Rule 144 under the Securities Act,
provided that they meet the criteria and conform to the requirements of that
rule.
The
selling shareholders and any underwriters, broker-dealers or agents that
participate in the sale of the common shares or interests therein may be,
“underwriters” within the meaning of Section 2(a)(11) of the Securities Act. Any
discounts, commissions, concessions or profit they earn on any resale of the
common shares may be underwriting discounts and commissions under the Securities
Act. Selling shareholders who are “underwriters” within the meaning of Section
2(a)(11) of the Securities Act will be subject to the prospectus delivery
requirements of the Securities Act.
To
the extent required, the common shares to be sold, the names of the selling
shareholders, the respective purchase prices and public offering prices, the
names of any agents, dealer or underwriter, any applicable commissions or
discounts with respect to a particular offer will be set forth in an
accompanying prospectus supplement or, if appropriate, a post-effective
amendment to the registration statement that includes this prospectus.
In
order to comply with the securities laws of some states, if applicable, the
common shares may be sold in these jurisdictions only through registered or
licensed brokers or dealers. In addition, in some states the common shares may
not be sold unless they have been registered or qualified for sale or an
exemption from registration or qualification requirements is available and is
complied with.
We
have advised the selling shareholders that the anti-manipulation rules of
Regulation M under the Exchange Act may apply to sales of shares in the market
and to the activities of the selling shareholders and their affiliates. In
addition, to the extent applicable we will make copies of this prospectus (as it
may be supplemented or amended from time to time) available to the selling
shareholders for the purpose of satisfying the prospectus delivery requirements
of the Securities Act. The selling shareholders may indemnify any broker-dealer
that participates in transactions involving the sale of the shares against
certain liabilities, including liabilities arising under the Securities Act.
We
have agreed to indemnify the selling shareholders against liabilities, including
liabilities under the Securities Act and state securities laws, relating to the
registration of the common shares offered by this prospectus.
We
have agreed with certain of the selling shareholders to keep the registration
statement of which this prospectus constitutes a part effective until the
earlier of (1) such time as all of the common shares held by such shareholders
and covered by this prospectus have been disposed of pursuant to and in
accordance with the registration statement, (2) such time as all of the common
shares held by such shareholders and covered by this prospectus have been
disposed of in accordance with Rule 144 of the Securities Act, or (3) the date
on which such common shares may be sold without restriction pursuant to Rule 144
of the Securities Act without volume or manner-of-sale restrictions and without
the Company being in compliance with the reporting requirements set forth under
Rule 144(d)(1)(i).
- 20 -
CAPITALIZATION
The
following table sets forth our cash and cash-equivalents and our capitalization
as of March 31, 2017 on an actual basis. The table below does not present our
capitalization on an as-adjusted basis to give effect to the issuance and sale
of the 20,454,546 common shares issuable upon exercise or exchange of the
warrants issued on March 29, 2017 or the 2,142,061 common shares issuable upon
exercise of the warrants issued to Opus Bank. The holders of the warrants are
not obligated to exercise them for the purchase of our common shares, and as a
result, there can be no assurance that the holders will exercise the
warrants.
You
should read the information in the following table in conjunction with our
consolidated financial statements and the related notes and the section entitled
“Management’s Discussion and Analysis of Financial Condition and Results of
Operations” contained in our Annual Report on Form 20-F for the year ended
December 31, 2016 filed with the SEC on March 31, 2017 incorporated by reference
in this prospectus.
|
|
(In thousands,
except share and per share information)
|
|
|
|
|
|
|
Cash and cash equivalents
|
|
$
|
6,904
|
|
|
|
Current portion of long-term debt, net
|
|
$
|
44,049
|
|
|
|
Warrant liability
|
|
|
2,945
|
|
|
|
Shareholders’ equity
|
|
|
|
|
|
|
Common stock, no par value per share;
unlimited shares authorized, 102,708,418 shares issued and outstanding,
actual
|
|
|
164,105
|
|
|
|
Accumulated deficit
|
|
$
|
(143,052
|
)
|
|
|
Accumulated other comprehensive loss
|
|
$
|
(1,574
|
)
|
|
|
Total shareholders’ equity
|
|
$
|
19,479
|
|
|
|
Total liabilities and shareholders’ equity
|
|
$
|
96,302
|
|
- 21 -
PRICE RANGE OF OUR SHARES
On
December 28, 2012, our common shares commenced trading on the TSX Venture
Exchange under the symbol “ANY”. On July 8, 2014, our common shares commenced
trading on the NASDAQ Global Market under the symbol “ANY”. On December 10,
2014, we voluntarily delisted our common shares from the TSXV. On February 1,
2017, our common shares commenced trading on the NASDAQ Capital Market in
connection with our application to transfer our shares from the NASDAQ Global
Market.
The
tables below set forth, for the periods indicated, the per share high and low
closing sales prices for our common shares as reported on the NASDAQ and the
TSXV. TSXV closing prices of our common shares are presented in Canadian
dollars, and the NASDAQ closing prices of our common shares are presented in
U.S. dollars.
|
|
|
TSXV (CAD$)
|
|
Annual Highs
and Lows
|
|
High
|
|
Low
|
|
Fiscal 2012 (from December 28, 2012)
|
|
0.95
|
|
0.74
|
|
Fiscal 2013
|
|
6.80
|
|
0.41
|
|
Fiscal 2014 (through December 10, 2014)
|
|
11.20
|
|
5.35
|
|
|
|
NASDAQ (USD$)
|
|
Annual Highs
and Lows
|
|
High
|
|
Low
|
|
Fiscal 2014 (from July 8, 2014)
|
|
11.00
|
|
4.87
|
|
Fiscal 2015
|
|
7.49
|
|
1.30
|
|
Fiscal 2016
|
|
2.00
|
|
0.18
|
|
Fiscal 2017 (through April 19, 2017)
|
|
0.37
|
|
0.19
|
|
|
|
NASDAQ (USD$)
|
|
Quarterly Highs
and Lows for Fiscal 2015 and 2016
|
|
High
|
|
Low
|
|
First Quarter Fiscal 2015
|
|
7.49
|
|
3.35
|
|
Second Quarter Fiscal 2015
|
|
5.46
|
|
2.98
|
|
Third Quarter Fiscal 2015
|
|
5.73
|
|
1.66
|
|
Fourth Quarter Fiscal 2015
|
|
3.80
|
|
1.30
|
|
First Quarter Fiscal 2016
|
|
2.00
|
|
1.02
|
|
Second Quarter Fiscal 2016
|
|
1.38
|
|
0.66
|
|
Third Quarter Fiscal 2016
|
|
0.95
|
|
0.40
|
|
Fourth Quarter Fiscal 2016
|
|
0.92
|
|
0.18
|
|
First Quarter Fiscal 2017
|
|
0.37
|
|
0.21
|
|
|
|
NASDAQ (USD$)
|
|
Monthly Highs
and Lows
|
|
High
|
|
Low
|
|
September 2016
|
|
0.84
|
|
0.40
|
|
October 2016
|
|
0.68
|
|
0.45
|
|
November 2016
|
|
0.92
|
|
0.42
|
|
December 2016
|
|
0.85
|
|
0.18
|
|
January 2017
|
|
0.56
|
|
0.26
|
|
February 2017
|
|
0.36
|
|
0.26
|
|
March 2017
|
|
0.34
|
|
0.20
|
|
April 2017
|
|
0.22
|
|
0.16
|
|
May 2017
|
|
0.23
|
|
0.12
|
Fluctuations
in the exchange rate between the Canadian dollar and the U.S. dollar will affect
any comparisons of our common shares traded on the TSXV and our common shares
traded on the NASDAQ.
- 22 -
ENFORCEABILITY OF CIVIL LIABILITIES AGAINST FOREIGN
PERSONS
We
are a corporation governed by the Business Corporations Act (Ontario) and by the
applicable federal laws of Canada. Certain of our directors and officers and
some of the experts named in this prospectus reside outside the United States
and a majority of their assets are located outside the United States. It may not
be possible for you to effect service of process within the United States on
these persons. Furthermore, it may not be possible for you to enforce against us
or them, in the United States, judgments obtained in United States courts,
because a significant portion of our assets and the assets of these persons are
located outside the United States.
We
have been advised that there are strong defenses that can be raised as to the
enforceability, in original actions in Canadian courts, of liabilities based on
the United States federal securities laws or “blue sky” laws of any state within
the United States and to the enforceability in Canadian courts of judgments of
United States courts obtained in actions based on the civil liability provisions
of the United States federal securities laws or any such state securities or
blue sky laws such that the enforcement in Canada of such liabilities and
judgments is not certain. Therefore, it may not be possible to enforce those
judgments against us, our directors and officers and some of the experts named
in this prospectus.
OFFERING EXPENSES
The following table lists the costs and expenses payable by us
in connection with the sale of the common shares covered by this prospectus
other than any sales commissions or discounts, which expenses will be paid by
the selling shareholders. The estimates do not include expenses related to
offerings of particular securities. Each prospectus supplement describing an
offering of securities will reflect the estimated expenses related to the
offering of securities under that prospectus supplement. All amounts shown are
estimates except for the SEC registration fee.
|
|
SEC registration fee
|
$
|
524
|
|
|
|
Legal fees and expenses
|
|
40,000
|
|
|
|
Accounting fees and expenses
|
|
5,000
|
|
|
|
Miscellaneous expenses
|
|
3,000
|
|
|
|
Total
|
$
|
48,524
|
|
- 23 -
SHARE CAPITAL
As
of June 7, 2017, 104,160,648 common shares were issued and outstanding, all of
which have been duly approved and are registered on our books. Our articles of
amalgamation permit the issuance of an unlimited number of common shares. All of
the outstanding common shares are fully paid and non-assessable. Within the past
five years, more than 10% of our capital stock has been paid for with assets
other than cash.
The
Company has unlimited authorized shares of common shares at no par value. The
share capital activity was as follows (in thousands):
|
|
|
|
Number of
|
|
|
|
|
|
Shares
|
|
|
|
Shares issued during the year ended
December 31, 2014
(1)
|
|
|
|
|
|
Common shares issued
|
|
11,108
|
|
|
|
Common shares issued for warrants exercised
|
|
2,101
|
|
|
|
Shares issued under equity incentive plan
|
|
247
|
|
|
|
Shares issued during the year ended
December 31, 2015:
(2)
|
|
|
|
|
|
Common shares issued
|
|
8,764
|
|
|
|
Common shares issued for warrants exercised
|
|
349
|
|
|
|
Shares issued under equity incentive plan
|
|
1,531
|
|
|
|
Shares issued during the year ended
December 31, 2016:
(3)
|
|
|
|
|
|
Common shares issued
|
|
15,126
|
|
|
|
Common shares issued for warrants exercised
|
|
3,508
|
|
|
|
Shares issued under equity incentive plan
|
|
2,733
|
|
|
|
Shares issued during the year ended
December 31, 2017:
(4)
|
|
|
|
|
|
Common shares issued
|
|
33,867
|
|
|
|
Shares issued under equity incentive plan
|
|
3,730
|
|
____________________
|
(1)
|
On December 1, 2014, the Company completed its
acquisition of Overland. The acquisition was carried out pursuant to the
terms and conditions contained in an Agreement and Plan of Merger dated
May 15, 2014 (as amended, the “merger agreement”). Under the terms of the
merger agreement, Sphere 3D issued a total of 8,556,865 common shares for
all of the outstanding Overland shares on the basis of one Overland share
for 0.46385 common shares.
|
|
|
|
|
|
On March 21, 2014, the Company acquired from V3 Systems
certain Virtual Desktop Infrastructure (“VDI”) technology, including
Desktop Cloud Orchestrator
®
software, which allows
administrators to manage local, cloud hosted, or hybrid virtual desktop
deployments, and a series of purpose-built, compact, efficient and
easy-to-manage servers. The purchase price for the acquired technology
assets of V3 Systems was $14.4 million, consisting of $4.2 million in cash
and the issuance of 1,089,867 of our common shares at $5.92.
|
|
|
|
|
|
The company issued 87,103 in connection with its election
to pay accrued and outstanding interest under the convertible debenture
either entirely in cash or common shares.
|
|
|
|
|
|
The company issued 1,804,000 common shares in connection
with the exercise of warrants issued in a private placement relating to
the company’s acquisition of Sphere 3D Inc. in 2012 and a concurrent
financing. The warrants were exercisable to purchase one common share at a
purchase price of $1.00. Additionally, the company issued 297,000 common
shares in connection with the exercise of warrants issued in connection
with a November 2013 underwritten financing for the sale of 1,250,000
units that included one common share and one-half of one common share
purchase warrant, at a price of $3.35 per unit of gross proceeds of
$4,187,500. Each such warrant was exercisable to acquire one common share
at a purchase price of $4.50.
|
|
|
|
|
(2)
|
In May and June 2015, we completed private placements for
a total of 1,621,250 common shares of the Company and warrants to purchase
up to 1,621,250 common shares for a gross purchase price of approximately
$5.2 million (the “May 2015 Private Placement”). The purchase price for
one common share and a warrant to purchase one common share was $3.20. The
warrants have an exercise price of $4.00 per share and a five-year term.
These warrants have no anti-dilution provisions. We filed a registration
statement to register the resale of the shares to be issued in the
offering and the shares issuable upon exercise of the warrants with the
U.S. Securities and Exchange Commission (“SEC”).
|
|
|
|
|
|
In August 2015, we completed a private placement of
606,060 common shares of the Company and warrants to purchase up to
606,060 common shares for a gross purchase price of approximately $2.0
million (the “August 2015 Private Placement”). The purchase price for one common
share and a warrant to purchase one common share was $3.30. The warrants
had an exercise price of $3.30 per share and a five-year term. We have the
right to force the exercise of the warrants if the weighted average price
of the common shares for 10 consecutive trading days exceeds 400% of
$2.33. In September 2015, we issued an additional 252,308 common shares
and 252,308 warrants to purchase 252,308 common shares in conjunction with
the price protection clause in effect through December 31, 2015 and the
equity financing completed in September 2015. In December 2015, we issued
an additional 141,631 common shares and 141,631 warrants to purchase
141,631 common shares in conjunction with the price protection clause and
the equity financing completed in December 2015. The purchase price for
one common share and a warrant to purchase one common share was adjusted
to $2.33. We filed a registration statement to register the resale of the
shares to be issued in the offering and the shares issuable upon exercise
of the warrants with the SEC.
|
- 24 -
|
|
On August 10, 2015, we completed an acquisition of assets
related to the RDX® removable disk product lines from Imation Corp.
(“Imation”). We issued 1,529,126 common shares with an approximate value
of $6.1 million, and a warrant exercisable for 250,000 additional common
shares exercisable in connection with certain purchase price adjustments
under the asset purchase agreement. In February 2016, Imation exercised
the warrant and we issued 250,000 common shares at $0.01.
|
|
|
|
|
|
In September and October 2015, we entered into
subscription agreements with certain investors pursuant to which we
issued, in the aggregate, 1,417,961 common shares, warrants exercisable to
purchase up to 354,490 common shares, and adjustment warrants (the
“Adjustment Warrants”) for an aggregate offering price of approximately
$3.3 million (the “October 2015 Registered Direct Offering”). The purchase
price for one common share, a warrant to purchase one quarter of one
common share (the “Warrant Shares”), and an Adjustment Warrant was $2.33.
The Adjustment Warrants become exercisable to purchase a number of common
shares to be determined at such time following an additional financing by
the Company prior to December 31, 2015. Each warrant has an initial
exercise price of $2.33 per Warrant Share. The warrants are immediately
exercisable and have a five-year term. Each Adjustment Warrant has an
initial exercise price of $0.01 per common share. In December 2015, we
issued an additional 1,297,435 warrants to purchase 1,297,435 common
shares in connection with the price protection clauses in effect through
December 31, 2015 and the equity financing completed in December 2015.
Each warrant has an exercise price of $2.33. In December 2015, we issued
233,964 Adjustment Warrants to purchase 233,964 common shares in
conjunction with the equity financing completed in December 2015. In
January 2016, 226,539 Adjustment Warrants were exercised at $0.01 per
common share. The remaining Adjustment Warrants will expire on March 31,
2016.
|
|
|
|
|
|
In December 2015, we completed an equity financing of
2,527,500 common shares and warrants to purchase up to 2,527,500 common
shares for a gross purchase price of approximately $5.1 million (the
“December 2015 Registered Direct Offering”). The purchase price for one
common share and a warrant to purchase one common share was $2.00. The
warrants have an exercise price of $2.50 per share and a five-year term.
We have the right to force the exercise of the warrants if the weighted
average price of the common shares for 10 consecutive trading days exceeds
400% of $1.79. Warrants to purchase up to 1,500,000 common shares include
a one-time adjustment provision, as defined in the agreement, which
provides that the exercise price will be automatically adjusted, if the
adjustment price as calculated on May 28, 2016, is less than
$2.50.
|
|
|
|
|
|
The company issued 668,462 in connection with its
election to pay accrued and outstanding interest under the convertible
debenture either entirely in cash or common shares.
|
|
|
|
|
|
The company issued 349,076 common shares in connection
with the exercise of warrants issued in connection with a November 2013
underwritten financing for the sale of 1,250,000 units that included one
common share and one-half of one common share purchase warrant, at a price
of $3.35 per unit of gross proceeds of $4,187,500. Each such warrant was
exercisable to acquire one common share at a purchase price of
$4.50.
|
|
|
|
|
(3)
|
In March 2016, the company issued 30,000 shares in
connection with subscription agreements dated December 2015 and entered
into in connection with the December 2015 Registered Direct
Offering.
|
|
|
|
|
|
In March 2016, the Company entered into a warrant
exchange agreement with MF Ventures, LLC (“MF Ventures”), a related party,
pursuant to which the Company agreed to issue a warrant (the “New
Warrant”) for the purchase of up to 7,199,216 common shares (the “Warrant
Shares”) in exchange for the surrender and cancellation of previously
outstanding warrants for the purchase of up to, in aggregate, 3,031,249
common shares (the “Previously Outstanding Warrants”) (the “March 2016
Warrant Exchange”). The terms of the New Warrant are substantially similar
to the Previously Outstanding Warrants except the exercise price has
changed to $1.22 per common share. On March 25, 2016, MF Ventures exercised 3,031,249 of the Warrant
Shares for 3,031,249 common shares pursuant to which the Company received
$3.7 million in proceeds. The expiration date for the remaining balance of
the New Warrant is March 25, 2021.
|
- 25 -
|
|
In January 2017, the Company completed its acquisition
(the “Acquisition”) of all of the outstanding equity interests of HVE
ConneXions, LLC and Unified ConneXions, Inc. (the “Sellers”). The Company
initially purchased 19.9% of the outstanding equity interests of the
Sellers in December 2016, and in connection with such purchase, issued
3,947,368 common shares.
|
|
|
|
|
|
Between December 2016 and March 16, 2017, the Company
completed private placements and issued a total of 18,139,998 “Units” at a
purchase price of $0.30 per Unit (the “December 2016 to March 2017 Private
Placement”). Each Unit consisted of one common share and one warrant from
each of two series of warrants, as described below. The Company received
gross proceeds of $5.4 million in connection with the sale of the Units.
The first series of warrants is exercisable to purchase 18,139,998 common
shares in the aggregate and has an exercise price of $0.40 per share, a
one-year term, and is exercisable in whole or in part at any time prior to
expiration. The second series of warrants is exercisable for 18,139,998
common shares in the aggregate and has an exercise price of $0.55 per
share, a five-year term, and is exercisable in whole or in part at any
time prior to expiration. In December 2016, the Company issued 6,933,333
common shares under the Units described above.
|
|
|
|
|
|
The company issued 3,105,137 in connection with its
election to pay accrued and outstanding interest under the convertible
debenture either entirely in cash or common shares.
|
|
|
|
|
|
In February 2016, the company issued 250,000 common
shares upon exercise, at a price of $0.01 per common share, of warrants
issued in connection with the Company’s August 2015 acquisition of assets
related to the RDX® removable disk product lines and related inventory
from Imation Corp. Additionally, the company issued 226,539 common shares
in connection with the exercise of adjustment warrants issued in
connection with the Company’s October 2015 registered direct offering of,
in the aggregate, 1,417,961 of the Company’s common shares, warrants
exercisable to purchase up to 354,490 common shares, and adjustment
warrants. The purchase price for one common share, a warrant to purchase
one quarter of one common share, and an adjustment warrant was $2.33. Each
adjustment warrant had an initial exercise price of $0.01 per common
share.
|
|
|
|
|
(4)
|
In connection with the December 2016 to March 2017
Private Placement, from January 2017 to March 2017, the Company issued
11,206,665 common shares and the warrants under the Units described in the
footnote above.
|
|
|
|
|
|
In January 2017, the Company completed the Acquisition,
and in connection with such purchase of the remaining outstanding equity
interests of the Sellers, issued 2,205,883 common shares.
|
|
|
|
|
|
In March 2017, the Company completed a registered direct
offering of 20,454,546 of the Company’s common shares, and warrants
exercisable to purchase up to 20,454,546 of the Company’s common shares,
at an exercise price of $0.30 per share (the “March 2017 Offering”). The
Company sold the common shares at a price of $0.22 per share, and received
gross proceeds from the offering, before deducting placement agent fees
and other estimated offering expenses payable by the Company, of
approximately $4,500,000.
|
At June 7, 2017, the Company had the following outstanding
warrants to purchase common shares:
- 26 -
|
|
|
|
|
|
|
Number
|
|
|
|
|
|
Contractual
|
|
Exercise
|
|
outstanding
|
|
|
|
Date
issued
|
|
life (years)
|
|
price
|
|
(in thousands)
|
|
Expiration
|
|
February 2015
(1)
|
|
3
|
|
$4.50
|
|
100
|
|
February 20,
2018
|
|
March 2015
(2)
|
|
3
|
|
$7.21
|
|
100
|
|
March 6, 2018
|
|
March 2015
(3)
|
|
3
|
|
$5.02
|
|
100
|
|
March 20, 2018
|
|
May 2015
(4)
|
|
5
|
|
$4.00
|
|
840
|
|
May 31, 2020
|
|
October 2015
(5)
|
|
5
|
|
$2.33
|
|
402
|
|
October 14,
2020
|
|
December 2015
(6)
|
|
3
|
|
$1.54
|
|
500
|
|
December 21, 2018
|
|
December 2015
(7)
|
|
5
|
|
$2.50
|
|
1,028
|
|
December 15,
2020
|
|
December 2015
(8)
|
|
5
|
|
$1.08
|
(9)
|
1,500
|
(10)
|
December 4, 2020
|
|
January 2016
(11)
|
|
3
|
|
$2.06
|
|
88
|
|
November 30,
2018
|
|
February 2016
(12)
|
|
3
|
|
$1.62
|
|
500
|
|
February 26, 2019
|
|
March 2016
(13)
|
|
5
|
|
$2.50
|
|
30
|
|
March 4, 2021
|
|
March 2016
(14)
|
|
5
|
|
$1.22
|
|
4,168
|
|
March 25, 2021
|
|
November 2016
(15)
|
|
3
|
|
$2.00
|
|
25
|
|
November 8,
2019
|
|
December 2016
(16)
|
|
6
|
|
$0.01
|
|
862
|
|
December 30, 2022
|
|
January 2017
(17)
|
|
1
|
|
$0.40
|
|
16,907
|
|
January 24,
2018
|
|
January 2017
(18)
|
|
5
|
|
$0.55
|
|
16,907
|
|
January 24, 2022
|
|
March 2017
(19)
|
|
6
|
|
$0.01
|
|
399
|
|
April 18, 2023
|
|
March 2017
(20)
|
|
6
|
|
$0.01
|
|
* 881
|
|
June 1, 2023
|
|
March 2017
(21)
|
|
1
|
|
$0.40
|
|
1,233
|
|
March 16, 2018
|
|
March 2017
(22)
|
|
5
|
|
$0.55
|
|
1,233
|
|
March 16, 2022
|
|
March 2017
(23)
|
|
5
|
|
$0.30
|
|
21,682
|
(24)
|
March 24, 2022
|
|
|
|
|
|
|
|
68,604
|
|
|
|
(1)
|
Issued to FBC Holdings in connection with draws on a
revolving credit facility.
|
|
|
|
|
(2)
|
Issued to FBC Holdings in connection with draws on a
revolving credit facility.
|
|
|
|
|
(3)
|
Issued to FBC Holdings in connection with draws on a
revolving credit facility.
|
|
|
|
|
(4)
|
Issued in connection with the May 2015 Private
Placement.
|
|
|
|
|
(5)
|
Issued in connection with the October 2015 Registered
Direct Offering.
|
|
|
|
|
(6)
|
Issued in connection with the December 2015 Registered
Direct Offering.
|
|
|
|
|
(7)
|
Issued in connection with the December 2015 Registered
Direct Offering.
|
|
|
|
|
(8)
|
Issued in connection with the December 2015 Registered
Direct Offering.
|
|
|
|
|
(9)
|
Include a one-time adjustment provision, as defined in
the agreement, which provided that the exercise price would be
automatically adjusted, if the adjustment price as calculated on May 28,
2016, was less than $2.50. On May 28, 2016, the exercise price was
adjusted to $1.08 for the one-time adjustment provision.
|
|
|
|
|
(10)
|
If the Company or any subsidiary thereof, at any time
while this warrant is outstanding, enters into a Variable Rate Transaction
(as defined in the related purchase agreement) and the issue price,
conversion price or exercise price per share applicable thereto is less
than the warrant exercise price then in effect, the exercise price shall
be reduced to equal the VRT price.
|
- 27 -
|
(11)
|
Issued in connection with the December 2015 Registered
Direct Offering.
|
|
|
|
|
(12)
|
Issued to FBC Holdings in connection with the November
2015 modification of certain terms in the company’s convertible
note.
|
|
|
|
|
(13)
|
Issued in connection with the December 2015 Registered
Direct Offering.
|
|
|
|
|
(14)
|
Issued in connection with the March 2016 Warrant
Exchange.
|
|
|
|
|
(15)
|
Issued to Peter Smiechowski in connection with
compensation for consulting services.
|
|
|
|
|
(16)
|
Issued in connection with the First Amendment entered
into with Opus Bank.
|
|
|
|
|
(17)
|
Issued in connection with the December 2016 to March 2017
Private Placement.
|
|
|
|
|
(18)
|
Issued in connection with the December 2016 to March 2017
Private Placement.
|
|
|
|
|
(19)
|
Issued in connection with the Second Amendment entered
into with Opus Bank.
|
|
|
|
|
(20)
|
Issued in connection with the Second Amendment entered
into with Opus Bank.
|
|
|
|
|
(21)
|
Issued in connection with the December 2016 to March 2017
Private Placement.
|
|
|
|
|
(22)
|
Issued in connection with the December 2016 to March 2017
Private Placement.
|
|
|
|
|
(23)
|
Issued in connection with the March 2017
Offering.
|
|
|
|
|
(24)
|
If at any time while these warrants are outstanding, the
Company sells or grants options to purchase, reprices or otherwise issues
any common shares or securities convertible into common shares at a price
less than $0.30, then the exercise price for the Warrants will be reduced
to such price, provided that the exercise price will not be lower than
$0.10, and the number of common shares issuable under the Warrants will be
increased such that, after taking into account the decrease in the
exercise price, the aggregate exercise price under the Warrants will
remain the same. In addition, upon the occurrence of certain fundamental
transactions, including certain mergers, sales of substantially all of our
assets or those of our significant subsidiaries, and other significant
corporate events, the warrant holders will have certain rights, including
for the exchange of the Warrants for warrants to purchase common shares of
the successor entity and the right to have the Company purchase the
warrants for their Black Scholes Value.
|
Our
articles of amalgamation, bylaws, and Registration Statement on Form 8-A
describe the rights attached to our common shares more fully. These documents
are filed as exhibits to the registration statement of which this prospectus
forms a part or are incorporated by reference. See the section entitled “Where
You Can Find Additional Information” on page 1.
NASDAQ
Stock Market Marketplace Rules permit NASDAQ-listed companies that are foreign
private issuers to follow home country practices in lieu of the corporate
governance provisions specified by the NASDAQ with limited exceptions. While we
intend to comply with most of these rules, we plan to follow home country rules
with respect to shareholder approval requirements for the issuance of securities
in lieu of following NASDAQ's shareholder approval requirements under NASDAQ
Listing Rule 5635. Other than with respect to certain actions, including
consummation of amalgamations (mergers), plans of arrangement, and certain
related party transactions, the Business Corporations Act (Ontario) and
applicable Canadian securities legislation generally do not require that
shareholders approve the issuance of securities. As a result of this election or
if in the future we elect to follow other home country practices, shareholders
may be afforded less protection than they otherwise would have under the NASDAQ
corporate listing standards applicable to U.S. domestic issuers. Sphere 3D
relied upon this exemption in connection with the integrated offerings of common
shares and warrants to purchase common shares consummated in September, October,
and December 2015; in connection with the warrant exchange in March 2016; and
the integrated offerings of common shares and warrants to purchase common shares
consummated in the period between December 2016 and March 2017.
- 28 -
LEGAL MATTERS
The
validity of the common shares offered hereby will be passed upon for us by
Stikeman Elliot LLP, 1155 René-Lévesque Blvd. West, 40th Floor, Montréal, QC H3B
3V2.
EXPERTS
Moss
Adams LLP, 4747 Executive Drive, Suite 1300, San Diego, CA 92121, an independent
registered public accounting firm, has audited our consolidated financial
statements as of December 31, 2016 and 2015, and for each of the three years in
the period ended December 31, 2016, included in our Annual Report on Form 20-F
for the year ended December 31, 2016, as set forth in its report, which is
incorporated by reference in this prospectus and elsewhere in the registration
statement of which this prospectus forms a part. Further, Moss Adams has audited
the consolidated financial statements of Overland Storage, Inc., as of June 30,
2014 and 2013, and for the years then ended, included in our Form F-4, as set
forth in its report, which is incorporated by reference in this prospectus and
elsewhere in the registration statement of which this prospectus forms a part.
Such consolidated financial statements are incorporated herein by reference in
reliance upon such report given on the authority of such firm as experts in
accounting and auditing.
INDEMNIFICATION FOR SECURITIES ACT LIABILITIES
Insofar
as indemnification for liabilities arising under the Securities Act may be
permitted to directors, officers or persons controlling us pursuant to the
foregoing provisions, we have been informed that in the opinion of the SEC such
indemnification is against public policy as expressed in the Securities Act and
is therefore unenforceable.
- 29 -
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item
6. Indemnification
of Directors and Officers
Under
the Business Corporations Act (Ontario), we may indemnify a director or officer,
a former director or officer or another individual who acts or acted at our
request as a director or officer, or an individual acting in a similar capacity,
of another entity, against all costs, charges and expenses, including an amount
paid to settle an action or satisfy a judgment, reasonably incurred by the
individual in respect of any civil, criminal, administrative, investigative or
other proceeding in which the individual is involved because of that association
with us or another entity on condition that (i) the individual acted honestly
and in good faith with a view to our best interests or, as the case may be, to
the best interests of the other entity for which the individual acted as a
director or officer or in a similar capacity at our request, and (ii) in the
case of a criminal or administrative action or proceeding that is enforced by a
monetary penalty, the individual also had reasonable grounds for believing that
his or her conduct was lawful. Further, we may, with court approval, indemnify
an individual described above in respect of an action by or on our behalf or
other entity to obtain a judgment in its favor, to which the individual is made
a party because of the individual’s association with us or another entity,
against all costs, charges and expenses reasonably incurred by the individual in
connection with such action if the individual fulfills condition (i) above. An
individual as described above is entitled as a matter of right to
indemnification from us in respect of all costs, charges and expenses reasonably
incurred by such individual in connection with the defense of any civil,
criminal, administrative, investigative or other proceedings to which such
individual is subject if he or she was not judged by a court or other competent
authority to have committed any fault or omitted to do anything that he or she
ought to have done, and has fulfilled conditions (i) and (ii) above.
In
accordance with the Business Corporations Act (Ontario), we have agreed to
indemnify each of our directors and officers against all costs, charges and
expenses, including an amount paid to settle an action or satisfy a judgment,
reasonably incurred by him in respect of any civil, criminal, administrative
action or proceeding in which such individual is involved by reason of his
association with us or another entity if he acted honestly and in good faith
with a view to our best interests or such other entity, and he had reasonable
grounds for believing that his conduct was lawful.
We
maintain a policy of directors’ and officers’ liability insurance, which insures
directors and officers for losses as a result of claims against our directors
and officers in their capacity as directors and officers and also reimburses us
for payments made pursuant to the indemnity provisions under our bylaws and the
Business Corporations Act (Ontario).
Item
7. Recent
Sales of Unregistered Securities
In
the three years preceding the filing of this registration statement, we have
issued the following securities that were not registered under the Securities
Act:
|
|
•
|
warrants exercisable to purchase up to 1,227,272 of the
Company’s common shares, at an exercise price of $0.30 per share, issued
to Roth Capital Partners, LLC as the placement agent for the March 2017
Offering.
|
|
|
•
|
warrants exercisable to purchase up to 2,142,061 of the
Company’s common shares issued to Opus Bank in connection with the Credit
Agreement.
|
|
|
•
|
warrants exercisable to purchase up to 20,454,546 of the
Company’s common shares, no par value per share, at an exercise price of
$0.30 per share in connection with the March 2017 Offering. Roth Capital
Partners, LLC acted as the placement agent for the offering.
|
|
|
•
|
18,139,998 “Units,” at a purchase price of U.S. $0.30 per
Unit, consisting of one common share and one warrant from each of two
series of warrants, as described below, in connection with the December
2016 to March 2017 Private Placement. The first series of warrants is
exercisable to purchase 18,139,998 common shares in the aggregate and has
an exercise price of U.S. $0.40 per share, a one-year term, and is
exercisable in whole or in part at any time prior to expiration. The
second series of warrants is exercisable for 18,139,998 common shares in
the aggregate and has an exercise price of U.S. $0.55 per share, a
five-year term, and is exercisable in whole or in part at any time prior
to expiration.
|
|
|
•
|
3,947,368 common shares issued in December 2017 in
connection with the Company’s acquisition of 19.9% of the outstanding
equity interests of HVE ConneXions, LLC and Unified ConneXions, Inc.
|
|
|
•
|
2,205,883 common shares issued in January 2017 in
connection with the completion of the Company’s acquisition of all of the
outstanding equity interests of HVE ConneXions, LLC and Unified
ConneXions, Inc.
|
|
|
•
|
a warrant for the purchase of up to 25,000 common shares,
no par value, issued to Peter Smiechowski in connection with compensation
for consulting services.
|
|
|
•
|
a warrant for the purchase of up to 7,199,216 common
shares, no par value, issued to MF Ventures, LLC in a privately negotiated
exchange under Section 3(a)(9) of the Securities Act of 1933, as amended,
in exchange for the surrender and cancellation of previously outstanding
warrants for the purchase of up to, in aggregate, 3,031,249 common shares.
|
|
|
•
|
1,529,126 common shares and a warrant exercisable for
250,000 common shares issued in connection with the acquisition of RDX®
removable disk product lines from Imation.
|
|
|
•
|
999,999 common shares of the Company and warrants to
purchase up to 999,999 common shares in connection with the August 2015
Private Placement, after giving effect to triggered price protection
provisions.
|
|
|
•
|
1,621,250 common shares and warrants to purchase up to
1,621,250 common shares in connection with the May 2015 Private Placement.
|
Unless
otherwise noted, all sales of securities described above were exempt from the
registration requirements of the Securities Act in reliance on Section 4(a)(2)
of the Securities Act or Regulation D promulgated under the Securities Act,
relating to transactions by an issuer not involving a public offering.
Item
8. Exhibits
and Financial Statement Schedules
The
exhibits to this registration statement are listed in the Exhibit Index that
appears immediately following the signature pages of this registration
statement. Such Exhibit Index is hereby incorporated in this Item 8 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 of 1933;
(ii) To reflect in the prospectus any facts
or events arising after the effective date of the registration statement (or the
most recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth in the
registration statement. Notwithstanding the foregoing, any increase or decrease
in volume of securities offered (if the total dollar value of securities offered
would not exceed that which was registered) and any deviation from the low or
percent change in the maximum aggregate offering price set forth in the
“Calculation of Registration Fee” table in the effective registration statement.
(iii)
To include any material information with respect to the plan of distribution not
previously disclosed in the registration statement or any material change to
such information in the registration statement.
provided, however
, that
paragraphs (i), (ii), and (iii) do not apply if the information required to be
included in a post-effective amendment by those paragraphs is contained in
reports filed with or furnished to the Commission by the registrant pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the registration statement, or is contained in a
form of prospectus filed pursuant to Rule 424(b) that is part of the
registration statement.
2.
That, for the purpose of determining any liability under the Securities Act of
1933, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial
bona fide
offering thereof.
3. To
remove from registration by means of a post-effective amendment any of the
securities being registered which remain unsold at the termination of the
offering.
4.
To file a post-effective amendment to the registration statement to include any
financial statements required by Item 8.A. of Form 20-F at the start of any
delayed offering or throughout a continuous offering. Financial statements and
information otherwise required by Section 10(a)(3) of the Securities Act need
not be furnished, provided, that we include in the prospectus, by means of
a post-effective amendment, financial statements required pursuant to this
paragraph (4) and other information necessary to ensure that all other
information in the prospectus is at least as current as the date of those
financial statements. Notwithstanding the foregoing, a post-effective amendment
need not be filed to include financial statements and information required by
Section 10(a)(3) of the Securities Act or Rule 3-19 of Regulation S-X if such
financial statements and information are contained in periodic reports filed
with or furnished to the SEC by the Registrant pursuant to Section 13 or Section
15(d) of the Exchange Act that are incorporated by reference in this
Registration Statement.
- 31 -
5. That, for purposes of determining
liability under the Securities Act of 1933 to any purchaser, if relying on Rule
430B:
(i) Each prospectus filed by the
registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the
registration statement as of the date the filed prospectus was deemed part of
and included in the registration statement; and
(ii) Each prospectus required to be
filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration
statement in reliance on Rule 430B relating to an offering made pursuant to Rule
415(a)(1)(i), (vii), or (x) for the purpose of providing the information
required by section 10(a) of the Securities Act of 1933 shall be deemed to be
part of and included in the registration statement as of the earlier of the date
such form of prospectus is first used after effectiveness or the date of the
first contract of sale of securities in the offering described in the
prospectus. As provided in Rule 430B, for liability purposes of the issuer and
any person that is at that date an underwriter, such date shall be deemed to be
a new effective date of the registration statement relating to the securities in
the registration statement to which that prospectus relates, and the offering of
such securities at that time shall be deemed to be the initial
bona fide
offering thereof.
Provided, however
, that no statement made in a
registration statement or prospectus that is part of the registration statement
or made in a document incorporated or deemed incorporated by reference into the
registration statement or prospectus that is part of the registration statement
will, as to a purchaser with a time of contract of sale prior to such effective
date, supersede or modify any statement that was made in the registration
statement or prospectus that was part of the registration statement or made in
any such document immediately prior to such effective date.
(b)
The undersigned registrant hereby undertakes that, for purposes of determining
any liability under the Securities Act of 1933, each filing of the registrant’s
annual report pursuant to Section 13(a) or Section 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan’s annual report pursuant to Section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in the registration statement shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial
bona fide
offering thereof.
(c)
Insofar as indemnification for liabilities arising under the Securities Act of
1933 may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise, the registrant
has been advised that in the opinion of the Commission such indemnification is
against public policy as expressed in the Act and is, therefore, unenforceable.
In the event that a claim for indemnification against such liabilities (other
than the payment by the registrant of expenses incurred or paid by a director,
officer or controlling person of the registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the registrant will,
unless in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
- 32 -
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, the registrant certifies that
it has reasonable grounds to believe that it meets all of the requirements for
filing on Form F-1 and has duly caused this Amendment No. 2 to the registration statement to be signed
on its behalf by the undersigned, thereunto duly authorized, in the City of San
Diego, State of California, on this 27 day of June, 2017.
SPHERE 3D CORP.
|
|
By:
|
/s/
ERIC L. KELLY
|
|
|
|
Eric L. Kelly
|
|
|
|
Chief Executive Officer
|
Pursuant
to the requirements of the Securities Act of 1933, as amended, this registration
statement has been signed by the following persons in their capacities and on
the date indicated.
|
/s/ Eric L. Kelly
|
Chairman of the Board and Chief Executive Officer
|
June 27, 2017
|
|
Eric L. Kelly
|
(Principal Executive Officer)
|
|
|
|
|
|
|
/s/ Kurt L. Kalbfleisch
|
Chief
Financial Officer
|
June 27, 2017
|
|
Kurt L. Kalbfleisch
|
(
Principal Financial and
|
|
|
|
Accounting Officer
)
|
|
|
|
|
|
|
*
|
Director
|
June 27, 2017
|
|
Peter Ashkin
|
|
|
|
*
|
Director
|
June 27, 2017
|
|
Dr. Cheemin Bo-Linn
|
|
|
|
|
|
|
|
*
|
Director
|
June 27, 2017
|
|
Duncan McEwan
|
|
|
|
|
|
|
|
*
|
Director
|
June 27, 2017
|
|
Vivekanand Mahadevan
|
|
|
|
*
|
Director
|
June 27, 2017
|
|
Peter Tassiopoulos
|
|
|
|
*By:
|
/s/
ERIC L. KELLY
|
|
|
|
Eric L. Kelly
|
|
|
|
Attorney-in-Fact
|
|
|
|
|
|
|
|
/s/
KURT L. KALBFLEISCH
|
|
|
|
Kurt L. Kalbfleisch
|
|
|
|
Attorney-in-Fact
|
|
- 33 -
EXHIBIT INDEX
|
Exhibit
|
|
Filed
|
|
Incorporated by Reference
|
|
|
Number
|
Description
|
Herewith
|
Form
|
File No.
|
Date Filed
|
|
|
|
|
|
|
|
|
1.1
|
Placement Agency Agreement
dated March 24, 2017 between the Company and Roth Capital Partners, LLC
|
|
6-K
|
001-36532
|
3/24/2017
|
|
|
|
|
|
|
|
|
3.1
|
Certificate and Articles of
Amalgamation
|
|
6-K
|
001-36532
|
3/25/2015
|
|
|
|
|
|
|
|
|
3.2
|
By-Law Certificate
|
|
6-K
|
001-36532
|
3/25/2015
|
|
|
|
|
|
|
|
|
4.1
|
Specimen certificate evidencing
Common Shares
|
|
F-3
|
333-210735
|
4/13/2016
|
|
|
|
|
|
|
|
|
4.2
|
Warrant to Purchase up to
862,068 common shares dated December 30, 2016 issued by the Company to
Opus Bank
|
|
6-K
|
001-36532
|
3/24/2017
|
|
|
|
|
|
|
|
|
4.3
|
First Additional Warrant to
Purchase common shares dated March 12, 2017 issued by the Company to Opus
Bank
|
|
6-K
|
001-36532
|
3/24/2017
|
|
|
|
|
|
|
|
|
4.4
|
Second Additional Warrant to
Purchase common shares dated March 12, 2017 issued by the Company to Opus
Bank
|
|
6-K
|
001-36532
|
3/24/2017
|
|
|
|
|
|
|
|
|
4.5
|
Form of Registration Rights
Agreement
|
|
6-K
|
001-36532
|
3/24/2017
|
|
|
|
|
|
|
|
|
4.6
|
Form of Warrant
|
|
6-K
|
001-36532
|
3/24/2017
|
|
|
|
|
|
|
|
|
5.1
|
Opinion of Stikeman Elliot LLP
|
|
F-1/A
|
333-217548
|
6/26/2017
|
|
|
|
|
|
|
|
|
10.1
|
Voting Agreements each dated
July 15, 2013 between Eric L. Kelly and various shareholders of the
Company
|
|
40-F
|
000-55232
|
6/27/2014
|
|
|
|
|
|
|
|
|
10.2
|
Board Nomination Rights
Agreement dated July 15, 2013 between Eric L. Kelly and the Company
|
|
40-F
|
000-55232
|
6/27/2014
|
|
|
|
|
|
|
|
|
10.3
|
8% Senior Secured Convertible
Debenture dated December 1, 2014 between the Company and FBC Holdings
S.A.R.L. for $19.5 million
|
|
6-K
|
001-36532
|
12/16/2014
|
|
|
|
|
|
|
|
|
10.4
|
First Amendment to 8% Senior
Secured Convertible Debenture dated November 30, 2015 between the Company
and FBC Holdings S.A.R.L.
|
|
6-K
|
001-36532
|
12/2/2015
|
|
|
|
|
|
|
|
|
10.5
|
Second Amendment to 8% Senior
Secured Convertible Debenture dated April 6, 2016 between the Company and
FBC Holdings S.A.R.L.
|
|
6-K
|
001-36532
|
4/7/2016
|
- 34 -
|
10.6
|
Escrow Agreement dated December
1, 2014 between the Company and Continental Stock Transfer and Trust
Company
|
|
6-K
|
001-36532
|
4/1/2015
|
|
|
|
|
|
|
|
|
10.7
|
Revolving Credit Agreement
dated December 30, 2014 between the Company, Overland Storage, Inc. and
FBC Holdings S.A.R.L. for $5.0 million
|
|
6-K
|
001-36532
|
1/22/2015
|
|
|
|
|
|
|
|
|
10.8
|
First Amendment to Revolving
Credit Agreement dated July 10, 2015 between the Company, Overland
Storage, Inc. and FBC Holdings S.A.R.L.
|
|
6-K
|
001-36532
|
7/31/2015
|
|
|
|
|
|
|
|
|
10.9
|
Form of Purchase Agreement
|
|
6-K
|
001-36532
|
6/2/2015
|
|
|
|
|
|
|
|
|
10.10
|
Form of Warrant
|
|
6-K
|
001-36532
|
6/2/2016
|
|
|
|
|
|
|
|
|
10.11
|
Asset Purchase Agreement dated
August 10, 2015 between Imation Corp., Overland Storage, Inc. and Sphere
3D Corp.
|
|
6-K
|
001-36532
|
8/14/2015
|
|
|
|
|
|
|
|
|
10.12
|
Form of Subscription Agreement
|
|
6-K
|
001-36532
|
10/7/2015
|
|
|
|
|
|
|
|
|
10.13
|
Form of Warrant
|
|
6-K
|
001-36532
|
10/7/2015
|
|
|
|
|
|
|
|
|
10.14
|
Form of Subscription Agreement
|
|
6-K
|
001-36532
|
12/2/2015
|
|
|
|
|
|
|
|
|
10.15
|
Form of Canadian Warrant
|
|
6-K
|
001-36532
|
12/2/2015
|
|
|
|
|
|
|
|
|
10.16
|
Form of Securities Purchase
Agreement
|
|
6-K
|
001-36532
|
12/2/2015
|
|
|
|
|
|
|
|
|
10.17
|
Form of Fund Warrant
|
|
6-K
|
001-36532
|
12/2/2015
|
|
|
|
|
|
|
|
|
10.18
|
Warrant Exchange Agreement,
dated March 25, 2016, by and between the Company and MF Ventures, LLC
|
|
40-F
|
001-36532
|
3/30/2016
|
|
|
|
|
|
|
|
|
10.19
|
Warrant for the purchase of up
to 7,199,216 common shares, dated March 25, 2016, issued to MF Ventures,
LLC
|
|
40-F
|
001-36532
|
3/30/2016
|
|
|
|
|
|
|
|
|
10.20*
|
Credit Agreement dated April 6,
2016 between Overland Storage, Inc., Tandberg Data Gmbh and Opus Bank
|
|
6-K
|
001-36532
|
4/21/2016
|
|
|
|
|
|
|
|
|
10.21*
|
Consent, Waiver, Reaffirmation
and Amendment Number One to Credit Agreement dated December 30, 2016
between Overland Storage, Inc., Tandberg Data Gmbh and Opus Bank
|
|
6-K/A
|
001-36532
|
6/19/2017
|
|
|
|
|
|
|
|
|
10.22
|
Amendment Number Two to Credit
Agreement, Amendment Number One to Amendment Number 1, Waiver and
Reaffirmation dated March 12, 2017 between Overland Storage, Inc.,
Tandberg Data Gmbh and Opus Bank
|
|
6-K/A
|
001-36532
|
6/19/2017
|
- 35 -
|
10.23
|
Third Amendment to Credit
Agreement dated March 21, 2017 between Overland Storage, Inc., Tandberg
Data Gmbh and Opus Bank
|
|
6-K/A
|
001-36532
|
6/19/2017
|
|
|
|
|
|
|
|
|
10.24
|
Term Loan Agreement dated
September 16, 2016 between Sphere 3D Corp. and FBC Holdings S.A.R.L.
|
|
6-K
|
001-36532
|
3/24/2017
|
|
|
|
|
|
|
|
|
10.25
|
Warrant to Purchase up to
862,068 common shares dated December 30, 2016 issued by the Company to
Opus Bank
|
|
6-K
|
001-36532
|
3/24/2017
|
|
|
|
|
|
|
|
|
10.26
|
First Additional Warrant to
Purchase common shares dated March 12, 2017 issued by the Company to Opus
Bank
|
|
6-K
|
001-36532
|
3/24/2017
|
|
|
|
|
|
|
|
|
10.27
|
Second Additional Warrant to
Purchase common shares dated March 12, 2017 issued by the Company to Opus
Bank
|
|
6-K
|
001-36532
|
3/24/2017
|
|
|
|
|
|
|
|
|
10.28
|
Form of Securities Purchase
Agreement dated March 24, 2017
|
|
6-K
|
001-36532
|
3/24/2017
|
|
|
|
|
|
|
|
|
10.29
|
Form of Warrant
|
|
6-K
|
001-36532
|
3/24/2017
|
|
|
|
|
|
|
|
|
10.30
|
Form of Leak-Out Agreement
|
|
6-K
|
001-36532
|
3/24/2017
|
|
|
|
|
|
|
|
|
10.31
|
Form of Registration Rights
Agreement
|
|
6-K
|
001-36532
|
3/24/2017
|
|
|
|
|
|
|
|
|
10.32
|
Placement Agency Agreement
dated March 24, 2017 between the Company and Roth Capital Partners, LLC
|
|
6-K
|
001-36532
|
3/24/2017
|
|
|
|
|
|
|
|
|
10.33
|
Form of Lock-Up Agreement
|
|
6-K
|
001-36532
|
3/24/2017
|
|
|
|
|
|
|
|
|
10.34
|
Sphere 3D Second Amended and
Restated Stock Option Plan
|
|
F-4
|
333-197569
|
7/23/2014
|
|
|
|
|
|
|
|
|
10.35
|
Overland Storage, Inc. 2009
Equity Incentive Plan
|
|
S-8
|
333-203149
|
3/31/2015
|
|
|
|
|
|
|
|
|
10.36
|
Overland Storage, Inc. Form of
Stock Option Agreement Under 2009 Plan
|
|
S-8
|
333-203149
|
3/31/2015
|
|
|
|
|
|
|
|
|
10.37
|
Overland Storage, Inc. Form of
Inducement Stock Option Agreement
|
|
S-8
|
333-203149
|
3/31/2015
|
|
|
|
|
|
|
|
|
10.38
|
Sphere 3D Corp. 2015
Performance Incentive Plan
|
|
S-8
|
333-214605
|
11/15/2016
|
|
|
|
|
|
|
|
|
10.39
|
Form of Inducement Restricted
Stock Unit Agreement.
|
|
S-8
|
333-209251
|
2/1/2016
|
|
|
|
|
|
|
|
|
10.40
|
Form of Executive Inducement
Restricted Stock Unit Agreement
|
|
S-8
|
333-209251
|
2/1/2016
|
|
|
|
|
|
|
|
|
10.41
|
Sphere 3D Corp. Employee Stock
Purchase Plan
|
|
S-8
|
333-205236
|
6/25/2016
|
|
|
|
|
|
|
|
|
10.42
|
Retention Agreement between
Overland Storage, Inc. and Eric Kelly dated June 24, 2009
|
|
10-Q
|
000-22071
|
2/10/2010
|
- 36 -
|
10.43
|
Employment Agreement between
Overland Storage, Inc. and Eric Kelly dated August 3, 2011
|
|
8-K
|
000-22071
|
8/4/2011
|
|
|
|
|
|
|
|
|
10.44
|
San Diego, California
Headquarters Facility Lease dated October 12, 2000 between the Company and
LBA-VIF One, LLC
|
|
10-Q
|
000-22071
|
2/14/2001
|
|
|
|
|
|
|
|
|
10.45
|
First Amendment to Lease dated
January 18, 2001 between Overland Storage, Inc. and LBA Overland, LLC, (as
successor-in-interest to LBA-VIF One, LLC)
|
|
10-K
|
000-22071
|
9/28/2001
|
|
|
|
|
|
|
|
|
10.46
|
Second Amendment to Lease dated
July 1, 2010 between Overland Storage, Inc. between the Company and LBA
Overland, LLC (as successor-in-interest to LBA-VIF One, LLC)
|
|
10-K
|
000-22071
|
9/28/2001
|
|
|
|
|
|
|
|
|
10.47
|
Third Amendment to Lease dated
July 1, 2010 between the Company and Overtape (CA) QRS 15-14, Inc.
(successor-in- interest to LBA Overland, LLC, the successor-in-interest to
LBA-VIF One, LLC
|
|
10-K
|
000-22071
|
9/24/2010
|
|
|
|
|
|
|
|
|
10.48
|
Fourth Amendment to Lease dated
October 15, 2013 between the Company and Overtape (CA) QRS 15-14, Inc.
(successor- in-interest to LBA Overland, LLC, the successor-in-interest to
LBA-VIF One, LLC
|
|
10-Q
|
000-22071
|
2/13/2014
|
|
|
|
|
|
|
|
|
10.49
|
Fifth Amendment to Lease dated
December 8, 2015 between the Company and Overtape (CA) QRS 15-14, Inc.
(successor- in-interest to LBA Overland, LLC, the successor-in-interest to
LBA-VIF One, LLC
|
|
20-F
|
001-36532
|
3/31/2017
|
|
|
|
|
|
|
|
|
10.50
|
San Jose, California
Headquarters Office Lease dated February 9, 2010 between Overland Storage,
Inc. and Park Center Plaza Investors, L.P.
|
|
20-F
|
001-36532
|
3/31/2017
|
|
|
|
|
|
|
|
|
10.51
|
First Amendment to San Jose,
California Headquarters Office Lease dated March 22, 2017 between Sphere
3D Corp. and Park Center Plaza Investors, L.P.
|
|
20-F
|
001-36532
|
3/31/2017
|
|
|
|
|
|
|
|
|
10.52
|
Lease Contract dated May 19,
2016 between Guangzhou Tandberg Electronic Components Co., Ltd. And
Guangzhu Shi Panyu Tongxing Paper Products Co., Ltd.
|
|
20-F
|
001-36532
|
3/31/2017
|
|
|
|
|
|
|
|
|
10.53
|
Form of Stock Purchase
Agreement
|
|
20-F
|
001-36532
|
3/31/2017
|
|
|
|
|
|
|
|
|
10.54
|
Form of One-Year Warrant
Agreement
|
|
20-F
|
001-36532
|
3/31/2017
|
|
|
|
|
|
|
|
|
10.55
|
Form of Five-Year Warrant
Agreement
|
|
20-F
|
001-36532
|
3/31/2017
|
- 37 -
|
10.56
|
Fourth Amendment to Credit
Agreement dated April 28, 2017 between Overland Storage, Inc., Tandberg
Data Gmbh and Opus Bank
|
|
6-K
|
001-36532
|
6/19/2017
|
|
|
|
|
|
|
|
|
10.57
|
Fifth Amendment to Credit
Agreement dated June 10, 2017 between Overland Storage, Inc., Tandberg
Data Gmbh and Opus Bank
|
|
6-K
|
001-36532
|
6/19/2017
|
|
|
|
|
|
|
|
|
21.1
|
Subsidiaries of Registrant
|
|
20-F
|
001-36532
|
3/31/2017
|
|
|
|
|
|
|
|
|
23.1
|
Consent of Moss Adams LLP
(consent of independent registered public accounting firm for Sphere 3D)
|
|
F-1/A
|
333-217548
|
6/26/2017
|
|
|
|
|
|
|
|
|
23.2
|
Consent of Moss Adams LLP
(consent of independent registered public accounting firm for Overland
Storage)
|
|
F-1/A
|
333-217548
|
6/26/2017
|
*Portions of this exhibit have been omitted pursuant to a
request for confidential treatment.
- 38 -
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