As filed with the Securities and Exchange Commission on July
20, 2017
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington D.C. 20549
FORM F-3
REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OF 1933
SPHERE 3D CORP.
(Exact
name of registrant as specified in its charter)
Not Applicable
(Translation of
Registrants name into English)
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
Registrants 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.
OMelveny & 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 only securities being registered on this Form are being
offered pursuant to dividend or interest reinvestment plans, please check the
following box. [ ]
If any of the securities being registered on this Form are to
be offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933 check the following box. [X]
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act, please check the
following box and list the Securities Act registration statement number of the
earlier effective registration statement for the same offering. [ ]
If this Form is a registration statement pursuant to General
Instruction I.C. or a post-effective amendment thereto that shall become
effective upon filing with the Commission pursuant to Rule 462(e) under the
Securities Act, check the following box. [ ]
If this Form is a post-effective amendment 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.
CALCULATION OF REGISTRATION FEE
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Proposed
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Proposed
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Amount
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maximum
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maximum
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Title of each
class of
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to
be
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offering price
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aggregate
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Amount of
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securities to be registered
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registered(1)(3)
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per unit(2)
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offering price(2)
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registration fee
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Common Shares, no par value per share
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2,176,797
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$4.18
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$9,099,011
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$1,055
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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 725,599 common shares and 1,451,198 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 $4.45 and
low $3.91 sales prices of the registrants common shares on The NASDAQ
Capital Market on July 17, 2017.
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(3)
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Adjusted to reflect a 1-for-25 share consolidation of our
common shares effective July 11, 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 JULY 20,
2017
PROSPECTUS
2,176,797 Common Shares
This prospectus relates solely to the resale by
the selling shareholders identified in this prospectus of an aggregate of (i)
725,599 common shares at a price of $7.50 per share and (ii) 1,451,198 common
shares issuable upon exercise or exchange of warrants to purchase common shares
that we sold between December 30, 2016 and March 16, 2017, as amended on July
11, 2017. We will not receive any of the proceeds from the sale of our common
shares being sold by the selling shareholders.
From
the date of this prospectus, the selling shareholders may offer the common
shares from time to time in amounts, at prices and on terms determined by market
conditions at the time of the offering. The selling shareholders may sell or
otherwise transfer the common shares directly or alternatively through
underwriters, broker-dealers or agents they select. If such selling shareholders
use underwriters, broker-dealers or agents to sell or transfer the common
shares, we will name them and describe their compensation in a prospectus
supplement. 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. For more information regarding
the sales or transfers of common shares by the selling shareholders pursuant to
this prospectus, please read Plan of Distribution. Our common shares are
traded on The NASDAQ Capital Market under the symbol ANY. On July 17, 2017,
the last reported sale price for our common shares on NASDAQ was $3.93 per
share.
We
are an emerging growth company, as defined in the Jumpstart Our Business
Startups Act of 2012 and are subject to reduced public company reporting
requirements.
Our
business and an investment in our securities involve significant risks. Please
carefully consider the risks discussed in this prospectus under
Risk Factors
beginning on page 5 and the "Risk
Factors" in
Item 3. Key Information
Risk
Factors
of our most recent Annual Report on Form 20-F
incorporated by reference into this prospectus and the
Risk
Factors
section of any prospectus supplement for a discussion of
the factors you should consider carefully before deciding to purchase these
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 July 20, 2017.
TABLE OF CONTENTS
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ABOUT THIS PROSPECTUS
This
prospectus is part of a registration statement on Form F-3 that we filed with
the SEC under the Securities Act of 1933, as amended, or the Securities Act.
This prospectus and any accompanying prospectus supplement do not contain all of
the information included in the registration statement. For further information,
we refer you to the registration statement, including its exhibits, filed with
the SEC. Statements contained in this prospectus and any accompanying prospectus
supplement about the contents of any document are not necessarily complete. If
SEC rules require that a document be filed as an exhibit to the registration
statement, please see such document for a complete description of these matters.
This
prospectus only provides you with a general description of the securities being
offered. Each time a selling shareholder sells any of the offered securities,
such selling shareholder will provide this prospectus and a prospectus
supplement, if applicable, that will contain specific information about the
terms of the offering. The prospectus supplement may also add, update or change
any information contained in this prospectus. You should carefully read this
prospectus, any prospectus supplement and any free writing prospectus related to
the applicable securities that is prepared by us or on our behalf or that is
otherwise authorized by us, together with the additional information described
under the headings Where You Can Find More Information and Incorporation of
Certain Documents by Reference.
You
should rely only on the information contained or incorporated by reference in
this prospectus, any prospectus supplement and any free writing prospectus
related to these securities that is prepared by us or on our behalf or that is
otherwise authorized by us. We have not authorized any other person to provide
you with different information. If anyone provides you with different or
inconsistent information, you should not rely on it. You should assume that the
information contained in this prospectus, any prospectus supplement, any free
writing prospectus and the documents incorporated by reference herein and
therein is accurate only as of their respective dates. Our business, financial
condition, results of operations and prospects may have changed since those
dates. To the extent there is a conflict between the information contained in
this prospectus and the prospectus supplement, you should rely on the
information in the prospectus supplement, provided that if any statement in one
of these documents is inconsistent with a statement in another document having a
later date for example, a document incorporated by reference into this
prospectus or any prospectus supplement the statement in the document having
the later date modifies or supersedes the earlier statement.
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.
Unless
otherwise stated, references in this prospectus to shares of our common shares,
including prices per share of our common shares, have been retroactively
restated to reflect the 1-for-25 share consolidation that was approved by our
board of directors on July 5, 2017. Our common shares commenced trading on a
consolidation-adjusted basis on July 12, 2017.
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. Status as a foreign
private issuer is determined as of the second fiscal quarter with changes to
status becoming effective on the first day of the next fiscal year. We are
currently evaluating if we will continue to qualify as a foreign private issuer
based on our share holdings as of June 30, 2017. In accordance with the Exchange
Act, we file reports, including annual reports on Form 20-F, with the SEC
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 SECs 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.
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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. This prospectus incorporates by reference the documents listed below
and any future filings we make with the SEC under Sections 13(a), 13(c), 14 and
15(d) of the Exchange Act including all subsequent reports on Form 20-F and any
report on 6-K which indicates it is being incorporated by reference (in each
case, other than those documents or the portions of those documents deemed to be
furnished and not filed in accordance with SEC rules) until the offering of the
securities under the registration statement of which this prospectus forms a
part is terminated or completed:
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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; and
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Our Report of Foreign Private Issuer on Form 6-K (File
No. 001-36532) furnished to the SEC on July 20, 2017, July 17, 2017, June
19, 2017, May 12, 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 managements 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
managements 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.
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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 any 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 July 12, 2017, our closing stock price has ranged from a low of $2.44 to a
high of $23.75. Fluctuations in the market price or liquidity of our common
shares may harm the value of your investment in our common shares. You may not
be able to resell your common shares at or above the price you pay for those
shares due to fluctuations in the market price caused by changes in our
operating performance or prospects and other factors, including, among others:
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actual or anticipated fluctuations in our operating
results or future prospects;
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our announcements or our competitors announcements of
new products;
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public reaction to our press releases, our other public
announcements and our filings with the SEC;
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strategic actions by us or our competitors;
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changes in financial markets or general economic
conditions;
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our ability to raise additional capital as needed;
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developments regarding our patents or proprietary rights
or those of our competitors; and
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changes in stock market analyst recommendations or
earnings estimates regarding our common shares, other comparable companies
or our industry generally.
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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.
We
have warrants outstanding for the purchase of up to 1,161,470 common shares
having a weighted-average exercise price of $15.99 per share. Our 8% Senior
Secured Convertible Debenture is currently convertible into common shares at a
conversion price of $75.00 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.
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.
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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 effectuated a share consolidation on a 1-for-25
basis 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 60,000 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 $7.50, 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. The Companys share consolidation, which became effective on July 11,
2017, did 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.
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 $7.50, 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. The Companys reverse share consolidation, which became
effective on July 11, 2017, did 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.
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.
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.
- 6 -
USE OF PROCEEDS
Any selling shareholder will receive all of the
net proceeds from the sales of our common shares offered by such selling
shareholder pursuant to this prospectus.
- 7 -
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 818,181 common shares issuable upon exercise of the warrants issued on
March 29, 2017 or the 85,682 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
Managements 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,
4,108,337
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
|
|
- 8 -
SELLING SHAREHOLDERS
The
following tables provide certain information with respect to the common shares
beneficially owned by each selling shareholder as of July 12, 2017. Except as
otherwise noted in the footnotes following the table, none of the selling
shareholders has had a material relationship with us within the past three
years.
All
of the common shares acquired by the selling shareholders in certain private
placements between December, 2016 and March, 2017 and all the common shares
issuable upon exercise or exchange in the private placements are being
registered for sale pursuant to this prospectus. On July 11, 2017, the warrants
were amended to permit us, in our sole discretion, to opt to exchange no fewer
than all of the amended warrants for the same number of common shares. Between
July 14, 2017 and July 20, 2017, we notified such holders of our election to
exchange all of the warrants for common shares pursuant to the terms of the
amended warrants.
The
selling shareholders are not under any obligation to sell all or any portion of
their common shares, nor are they obligated to sell any of their common shares
immediately under this prospectus. No selling shareholder has indicated to us
that it presently intends to sell common shares offered by this prospectus.
Since the selling shareholders are not obligated to sell their common shares, we
do not know how many common shares each of them will own when this offer is
terminated.
In
the following table, we have determined the number and percentage of common
shares and common shares issuable under the warrants beneficially owned in
accordance with Rule 13d-3 of the Exchange Act, based on information provided to
us by the selling shareholders, and this information does not necessarily
indicate beneficial ownership for any other purpose. In determining the number
of shares of our common shares beneficially owned by a person and the percentage
ownership of that person, we include any shares as to which the person has sole
or shared voting power or investment power, as well as any shares subject to
warrants or options held by that person that are currently exercisable or
exercisable within 60 days after July 12, 2017. Applicable percentages are based
on 4,386,373 common shares outstanding on July 12, 2017.
We
have prepared the following tables and the related notes solely based on
information supplied to us by the selling shareholder. We have not sought to
verify such information. Additionally, the selling shareholder may have sold or
transferred some or all of the common shares and warrants listed below since the
date on which the information was provided to us. Other information about the
selling shareholder may change over time.
Beneficial Ownership
(1)
|
|
|
|
Common Shares
|
|
|
Number of
|
|
|
|
|
|
|
|
|
|
Beneficially
|
|
|
Common
|
|
|
Common Shares
|
|
|
|
Owned Prior to the
|
|
|
Shares Registered
|
|
|
Beneficially Owned
|
|
|
|
Offering
|
|
|
Hereby
(3)
|
|
|
After the Offering
|
|
Selling Shareholder Name and
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Address
(2)
|
|
Number
|
|
|
Percent
|
|
|
for
Sale
|
|
|
Number
|
|
|
Percent
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ThreeD Capital Inc.
|
|
84,000
|
|
|
1.44%
|
|
|
84,000
|
|
|
|
|
|
|
|
69 Yonge Street, Suite 1010
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Toronto, Ontario M5E 1K3
(4)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
1313366 Ontario Inc.
|
|
108,000
|
|
|
1.85%
|
|
|
108,000
|
|
|
|
|
|
|
|
55 Burbank Drive
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Thornhill, Ontario L4J 7T9
(5)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Sheldon Inwentash
|
|
249,280
|
|
|
4.27%
|
|
|
240,000
|
|
|
9,280
|
|
|
*
|
|
126 Old Forest Hill Road
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Toronto, Ontario M5P 2R9
(6)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
MF Ventures, LLC
|
|
1,576,389
|
|
|
25.54%
|
|
|
999,999
|
|
|
576,390
|
|
|
9.34%
|
|
201 Spear St., 14th Floor
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
San Francisco, CA 94105
(7)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Lynn Factor
|
|
441,780
|
|
|
7.53%
|
|
|
399,000
|
|
|
42,780
|
|
|
*
|
|
126 Old Forest Hill Road
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Toronto, Ontario M5P 2R9
(8)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Elizabeth Gargiulo
|
|
16,800
|
|
|
*
|
|
|
16,800
|
|
|
|
|
|
|
|
41 Limcombe Dr
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Thornhill, Ontario L3T 2V7
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Samuel Stern
|
|
106,666
|
|
|
1.83%
|
|
|
81,999
|
|
|
24,667
|
|
|
*
|
|
- 9 -
620 Wilson Ave #215
|
|
|
|
|
|
Toronto, Ontario M5K 1Z3
|
|
|
|
|
|
|
|
|
|
|
|
Manitex Capital Inc.
|
48,000
|
*
|
48,000
|
|
|
16667 Hymus Blvd.
|
|
|
|
|
|
Kirkland, Quebec H9H
4R9
(9)
|
|
|
|
|
|
|
|
|
|
|
|
Robert Halpern
|
9,000
|
*
|
9,000
|
|
|
8171 Vonge St, Suite 116
|
|
|
|
|
|
Thornhill, Ontario L37 2C6
|
|
|
|
|
|
|
|
|
|
|
|
Leonard Waldman
|
12,000
|
*
|
12,000
|
|
|
108 Highland Circle
|
|
|
|
|
|
Toronto, Ontario M2L 1H1
|
|
|
|
|
|
|
|
|
|
|
|
Pino Guido
|
9,999
|
*
|
9,999
|
|
|
125 Park Ridge Drive
|
|
|
|
|
|
Kleinburg, Ontario L0J 1C0
|
|
|
|
|
|
|
|
|
|
|
|
Skytrade Corporation
|
20,001
|
*
|
20,001
|
|
|
133 Hazelton Avenue, Suite
801
|
|
|
|
|
|
Toronto, Ontario M5R
0Z6
(10)
|
|
|
|
|
|
|
|
|
|
|
|
Countryman Investments Ltd.
|
157,684
|
2.70%
|
99,999
|
57,685
|
*
|
520 - 885 Dunsmuir Street
|
|
|
|
|
|
Vancouver, BC V6C
1N5
(11)
|
|
|
|
|
|
|
|
|
|
|
|
Michael Lamanna
|
36,000
|
*
|
36,000
|
|
|
5530 King Road
|
|
|
|
|
|
Nobleton, Ontario L0G 1N0
|
|
|
|
|
|
|
|
|
|
|
|
Rory O'Neill
|
12,000
|
*
|
12,000
|
|
|
1707 - 68 Abell Street
|
|
|
|
|
|
Toronto, Ontario M6J 0B1
|
|
|
|
|
|
* Less than 1%
Unless otherwise stated, the respective selling shareholder has
no relationship to us.
(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 July 12, 2017. We did not deem these shares outstanding,
however, for the purpose of computing the percentage ownership of any
other selling shareholder. Percentage ownership is based on an aggregation
of the 4,372,462 common shares issued and outstanding as of July 12, 2017
and assumes issuance of the remaining common shares issuable upon exercise
or exchange of warrants in the amount of 1,451,198. This amount totals
5,823,660 common shares.
|
|
|
(2)
|
Unless otherwise indicated, this table is based on
information supplied to us by the selling shareholders and our
records.
|
|
|
(3)
|
These shares include 725,599 common shares and 1,451,198
common shares issuable upon exchange of warrants sold in a private
placement, the closings of which occurred between December 30, 2016 and
March 16, 2017
|
|
|
(4)
|
By virtue of his position as Chief Executive Officer of
ThreeD Capital Inc., Sheldon Inwentash has voting and investment power
with respect to the common shares held by this selling
shareholder.
|
|
|
(5)
|
Jeff Kopman, President of 1313366 Ontario Inc., has
voting and investment power over these securities.
|
|
|
(6)
|
Includes 8,800 common shares issuable pursuant to
warrants.
|
|
|
(7)
|
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. Includes 181,818 common shares issuable
pursuant to warrants and 166,719 common shares to be issued under an
amended and restated warrant exchange agreement entered into with the
selling shareholder on July 11, 2017 (the MF Ventures replacement
warrant) which superseded and replaced the warrant exchange agreement
dated March 25, 2016. Under the terms of the MF Ventures replacement
warrant, we may, at our sole discretion, opt to exchange no fewer than all
of such replacement warrant for the same number of common shares. On or
about July 20, we notified the selling shareholder of our intent
to exchange the MF Ventures replacement warrant. Immediately
after the exchange, the MF Ventures replacement warrant is wholly void and
of no valid or binding effect. This MF Ventures replacement warrant is in
addition to the replacement warrants discussed above.
|
- 10 -
(8)
|
Includes 42,780 common shares issuable pursuant to
warrants.
|
|
|
(9)
|
Mr. Steve Saviuk, President and Chief Executive Officer
of Manitex Capital Inc., has voting and investment power over these
securities.
|
|
|
(10)
|
Mr. Jason Meretsky has voting and investment power over
these securities.
|
|
|
(11)
|
Mr. G. David Richardson has voting and investment power
over these securities. Includes 8,000 common shares issuable pursuant to
warrants.
|
- 11 -
SHARE CAPITAL
As
of July 12, 2017, 4,372,462 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
|
444
|
Common
shares issued for warrants exercised
|
84
|
Shares issued under
equity incentive plan
|
10
|
Shares issued during the year ended
December 31, 2015:
(2)
|
|
Common shares issued
|
351
|
Common
shares issued for warrants exercised
|
14
|
Shares issued under
equity incentive plan
|
61
|
Shares issued during the year ended
December 31, 2016:
(3)
|
|
Common shares issued
|
605
|
Common
shares issued for warrants exercised
|
140
|
Shares issued under
equity incentive plan
|
109
|
Shares issued during the year ending
December 31, 2017:
(4)
|
|
Common shares issued
|
1,531
|
Shares
issued under equity incentive plan
|
179
|
________________
(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 342,275 common shares for
all of the outstanding Overland shares on the basis of one Overland share
for 11.59625 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 43,595 of our common shares at $148.00.
|
|
|
|
The Company issued 3,484 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 72,160 common shares in connection
with the exercise of warrants issued in a private placement relating to
the companys 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 $25.00. Additionally, the company issued 11,880 common
shares in connection with the exercise of warrants issued in connection
with a November 2013 underwritten financing for the sale of 50,000 units
that included one common share and one-half of one common share purchase
warrant, at a price of $83.75 per unit of gross proceeds of $4,187,500.
Each such warrant was exercisable to acquire one common share at a
purchase price of $112.50.
|
|
|
(2)
|
In May and June 2015, we completed private placements for
a total of 64,850 common shares of the Company and warrants to purchase up
to 64,850 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 $80.00. The
warrants have an exercise price of $100.00 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).
|
- 12 -
|
In August 2015, we completed a private placement of
24,242 common shares of the Company and warrants to purchase up to 24,242
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 $82.50. The warrants
had an exercise price of $82.50 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
$58.25. In September 2015, we issued an additional 10,092 common shares
and 10,092 warrants to purchase 10,092 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 5,665 common shares and 5,665warrants to purchase
5,665common 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
$58.25. 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.
|
|
|
|
On August 10, 2015, we completed an acquisition of assets
related to the RDX® removable disk product lines from Imation Corp.
(Imation). We issued 61,165 common shares with an approximate value of
$6.1 million, and a warrant exercisable for 10,000 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 10,000 common shares at $0.25.
|
|
|
|
In September and October 2015, we entered into
subscription agreements with certain investors pursuant to which we
issued, in the aggregate, 56,718 common shares, warrants exercisable to
purchase up to 14,180 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 $58.25.
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 $58.25 per Warrant Share. The warrants are immediately
exercisable and have a five-year term. Each Adjustment Warrant has an
initial exercise price of $0.25 per common share. In December 2015, we
issued an additional 51,897 warrants to purchase 51,897 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 $58.25. In December 2015, we issued 9,359
Adjustment Warrants to purchase 9,359 common shares in conjunction with
the equity financing completed in December 2015. In January 2016, 9,062
Adjustment Warrants were exercised at $0.25 per common share. The
remaining Adjustment Warrants expired on March 31, 2016.
|
|
|
|
In December 2015, we completed an equity financing of
101,100 common shares and warrants to purchase up to 101,100 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 $50.00. The warrants have
an exercise price of $62.50 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
$44.75. Warrants to purchase up to 60,000 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 $62.50.
|
|
|
|
The Company issued 26,738 common shares 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 13,963 common shares in connection
with the exercise of warrants issued in connection with a November 2013
underwritten financing for the sale of 50,000 units that included one
common share and one-half of one common share purchase warrant, at a price
of $83.75 per unit of gross proceeds of $4,187,500. Each such warrant was
exercisable to acquire one common share at a purchase price of
$112.50.
|
|
|
(3)
|
In March 2016, the company issued 1,200 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 287,969 common shares (the Warrant
Shares) in exchange for the surrender and cancellation of previously
outstanding warrants for the purchase of up to, in aggregate, 121,250
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 $30.50 per common share. On March 25, 2016, MF Ventures
exercised 121,250 of the Warrant Shares for 121,250 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.
|
- 13 -
|
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
157,895 common shares.
Between December 2016 and March 16, 2017, the Company
completed private placements and issued a total of 725,599 Units at a
purchase price of $7.50 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 725,599 common
shares in the aggregate and has an exercise price of $10.00 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 725,599
common shares in the aggregate and has an exercise price of $13.75 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 277,333
common shares under the Units described above.
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|
|
|
The company issued 124,205 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 10,000 common shares
upon exercise, at a price of $0.25 per common share, of warrants issued in
connection with the Companys August 2015 acquisition of assets related to
the RDX® removable disk product lines and related inventory from Imation
Corp. Additionally, the company issued 9,062 common shares in connection
with the exercise of adjustment warrants issued in connection with the
Companys October 2015 registered direct offering of, in the aggregate,
56,718 of the Companys common shares, warrants exercisable to purchase up
to 14,180 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 $58.25. Each adjustment warrant had an
initial exercise price of $0.25 per common share.
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|
|
(4)
|
In connection with the December 2016 to March 2017
Private Placement, from January 2017 to March 2017, the Company issued
448,267 common shares and the warrants under the Units described in the
footnote above. The warrants were amended on July 11, 2017 to provide the
Company the right to exchange the warrants for common shares.
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|
|
|
In January 2017, the Company completed the Acquisition,
and in connection with such purchase of the remaining outstanding equity
interests of the Sellers, issued 88,235 common shares.
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|
|
|
In March 2017, the Company completed a registered direct
offering of 818,181 of the Companys common shares, and warrants
exercisable to purchase up to 818,181 of the Companys common shares, at
an exercise price of $7.50 per share (the March 2017 Offering). The
Company sold the common shares at a price of $5.50 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.
|
|
|
|
The Company issued 176,317 common shares in connection
with its election to pay accrued and outstanding interest under the
convertible debenture either entirely in cash or common
shares.
|
- 14 -
At July 12, 2017, the Company had the following outstanding
warrants to purchase common shares:
|
|
Contractual
|
|
Exercise
|
|
Number
|
|
|
Date
issued
|
|
life (years)
|
|
price
|
|
outstanding
|
|
Expiration
|
February 2015
(1)
|
|
3
|
|
$112.50
|
|
4,000
|
|
February 20, 2018
|
March 2015
(2)
|
|
3
|
|
$180.25
|
|
4,000
|
|
March 6, 2018
|
March 2015
(3)
|
|
3
|
|
$125.50
|
|
4,000
|
|
March 20, 2018
|
May 2015
(4)
|
|
5
|
|
$100.00
|
|
33,600
|
|
May 31, 2020
|
October 2015
(5)
|
|
5
|
|
$58.25
|
|
16,077
|
|
October 14, 2020
|
December 2015
(6)
|
|
3
|
|
$38.50
|
|
20,000
|
|
December 21, 2018
|
December 2015
(7)
|
|
5
|
|
$62.50
|
|
41,100
|
|
December 15, 2020
|
December 2015
(8)
|
|
5
|
|
$27.00
|
(9)
|
60,000
|
(10)
|
December 4, 2020
|
January 2016
(11)
|
|
3
|
|
$51.50
|
|
3,539
|
|
November 30, 2018
|
February 2016
(12)
|
|
3
|
|
$40.50
|
|
20,000
|
|
February 26, 2019
|
March 2016
(13)
|
|
5
|
|
$62.50
|
|
1,200
|
|
March 4, 2021
|
November 2016
(14)
|
|
3
|
|
$50.00
|
|
1,000
|
|
November 8, 2019
|
December 2016
(15)
|
|
6
|
|
$0.25
|
|
34,483
|
|
December 30, 2022
|
March 2017
(16)
|
|
6
|
|
$0.25
|
|
15,957
|
|
April 18, 2023
|
March 2017
(17)
|
|
6
|
|
$0.25
|
|
35,242
|
|
June 1, 2023
|
March 2017
(18)
|
|
5
|
|
$7.50
|
|
867,272
|
(19)
|
March 24, 2022
|
|
|
|
|
|
|
1,161,470
|
|
|
___________________
(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 $62.50. On May 28, 2016, the exercise price was
adjusted to $27.00 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.
|
|
|
(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 companys convertible
note.
|
|
|
(13)
|
Issued in connection with the December 2015 Registered
Direct Offering.
|
|
|
(14)
|
Issued to Peter Smiechowski in connection with
compensation for consulting services.
|
|
|
(15)
|
Issued in connection with the First Amendment entered
into with Opus Bank.
|
|
|
(16)
|
Issued in connection with the Second Amendment entered
into with Opus Bank.
|
|
|
(17)
|
Issued in connection with the Second Amendment entered
into with Opus Bank.
|
- 15 -
(18)
|
Issued in connection with the March 2017
Offering.
|
|
|
(19)
|
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 $7.50, 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.
- 16 -
PLAN OF DISTRIBUTION
The
selling shareholders may, from time to time, sell, transfer or otherwise dispose
of any or all of their common shares and warrants or interests in common shares
and warrants on any stock exchange, market or trading facility on which the
common shares or warrants 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
securities being offered by this prospectus may be sold:
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|
through agents;
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|
|
|
|
|
to or through one or more underwriters on a
firm commitment or agency basis;
|
|
|
|
|
|
through put or call option transactions
relating to the securities;
|
|
|
|
|
|
through broker-dealers (acting as agent or
principal);
|
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|
|
|
|
directly to purchasers, through a specific
bidding or auction process, on a negotiated basis or otherwise;
|
|
|
|
|
|
through any other method permitted pursuant to
applicable law; or
|
|
|
|
|
|
through a combination of any such methods of
sale.
|
At
any time a particular offer of the securities covered by this prospectus is
made, a revised prospectus or prospectus supplement, if required, will be
distributed which will set forth the aggregate amount of securities covered by
this prospectus being offered and the terms of the offering, including the name
or names of any underwriters, dealers, brokers or agents, any discounts,
commissions, concessions and other items constituting compensation from us and
any discounts, commissions or concessions allowed or reallowed or paid to
dealers. Such prospectus supplement, if required, and, if necessary, a
post-effective amendment to the registration statement of which this prospectus
is a part, will be filed with the SEC to reflect the disclosure of additional
information with respect to the distribution of the securities covered by this
prospectus. In order to comply with the securities laws of certain states, if
applicable, the securities sold under this prospectus may only be sold through
registered or licensed broker-dealers. In addition, in some states the
securities may not be sold unless they have been registered or qualified for
sale in the applicable state or an exemption from registration or qualification
requirements is available and is complied with.
Any
public offering price and any discounts or concessions allowed or reallowed or
paid to dealers may be changed from time to time.
The
distribution of securities may be effected from time to time in one or more
transactions, including block transactions and transactions on The NASDAQ
Capital Market or any other organized market where the securities may be traded.
The securities may be sold at a fixed price or prices, which may be changed, or
at market prices prevailing at the time of sale, at prices relating to the
prevailing market prices or at negotiated prices. The consideration may be cash
or another form negotiated by the parties. Agents, underwriters or
broker-dealers may be paid compensation for offering and selling the securities.
That compensation may be in the form of discounts, concessions or commissions to
be received from the selling shareholders or the purchasers of the securities.
Any dealers and agents participating in the distribution of the securities may
be deemed to be underwriters, and compensation received by them on resale of the
securities may be deemed to be underwriting discounts. If any such dealers or
agents were deemed to be underwriters, they may be subject to statutory
liabilities under the Securities Act.
Agents
may from time to time solicit offers to purchase the securities. If required, we
will name in the applicable prospectus supplement any agent involved in the
offer or sale of the securities and set forth any compensation payable to the
agent. Unless otherwise indicated in a prospectus supplement, any agent will be
acting on a best efforts basis for the period of its appointment. Any agent
selling the securities covered by this prospectus may be deemed to be an
underwriter, as that term is defined in the Securities Act, of the
securities.
If
underwriters are used in a sale, securities will be acquired by the underwriters
for their own account and may be resold from time to time in one or more
transactions, including negotiated transactions, at a fixed public offering
price or at varying prices determined at the time of sale, or other contractual
commitments. Securities may be offered to the public either through underwriting
syndicates represented by one or more managing underwriters or directly by one
or more firms acting as underwriters. If an underwriter or underwriters are used
in the sale of securities, an underwriting agreement will be executed with the
underwriter or underwriters, as well as any other underwriter or underwriters,
with respect to a particular underwritten offering of securities, and will set
forth the terms of the transactions, including compensation of the underwriters
and dealers and the public offering price, if applicable. The prospectus and, if
required, prospectus supplement will be used by the underwriters to resell the
securities.
If a dealer is used in any sale of the securities,
the selling shareholders or an underwriter will sell the securities to the
dealer, as principal. The dealer may then resell the securities to the public at
varying prices to be determined by the dealer at the time of resale.
- 17 -
To the extent required, we will set forth in a prospectus
supplement the name of the dealer and the terms of the transactions.
The
selling shareholders may directly solicit offers to purchase the securities and
may make sales of securities directly to institutional investors or others.
These persons may be deemed to be underwriters within the meaning of the
Securities Act with respect to any resale of the securities. To the extent
required, a prospectus supplement will describe the terms of any such sales,
including the terms of any bidding or auction process, if used.
Agents,
underwriters and dealers may be entitled under agreements which may be entered
into with us or the selling shareholders to indemnification by us and the
selling shareholders against specified liabilities, including liabilities
incurred under the Securities Act, or to contribution by us or the selling
shareholders to payments they may be required to make in respect of such
liabilities. If required, a prospectus supplement will describe the terms and
conditions of the indemnification or contribution. Some of the agents,
underwriters or dealers, or their affiliates may be customers of, engage in
transactions with or perform services for us or our subsidiaries.
Any
person participating in the distribution of securities registered under the
registration statement that includes this prospectus will be subject to
applicable provisions of the Exchange Act and the applicable SEC rules and
regulations, including, among others, Regulation M, which may limit the timing
of purchases and sales of any of our securities by that person. Furthermore,
Regulation M may restrict the ability of any person engaged in the distribution
of our securities to engage in market-making activities with respect to our
securities. These restrictions may affect the marketability of our securities
and the ability of any person or entity to engage in market-making activities
with respect to our securities.
Certain
persons participating in an offering may engage in over-allotment, stabilizing
transactions, short-covering transactions and penalty bids that stabilize,
maintain or otherwise affect the price of the offered securities. These
activities may maintain the price of the offered securities at levels above
those that might otherwise prevail in the open market, including by entering
stabilizing bids, effecting syndicate covering transactions or imposing penalty
bids, each of which is described below.
|
|
A stabilizing bid means the placing of any bid, or the
effecting of any purchase, for the purpose of pegging, fixing or
maintaining the price of a security.
|
|
|
|
|
|
A syndicate covering transaction means the placing of any
bid on behalf of the underwriting syndicate or the effecting of any
purchase to reduce a short position created in connection with the
offering.
|
|
|
|
|
|
A penalty bid means an arrangement that permits the
managing underwriter to reclaim a selling concession from a syndicate
member in connection with the offering when offered securities originally
sold by the syndicate member are purchased in syndicate covering
transactions.
|
These
transactions may be effected on an exchange, if the securities are listed on
that exchange, or in the over-the-counter market or otherwise.
Any
underwriters to whom offered securities are sold for public offering and sale
may make a market in such offered securities, but such underwriters will not be
obligated to do so and may discontinue any market making at any time without
notice.
Any
securities that qualify for sale pursuant to Rule 144 or Regulation S under the
Securities Act, may be sold under Rule 144 or Regulation S rather than pursuant
to this prospectus.
To
the extent that the selling shareholders make sales to or through one or more
underwriters or agents in at-the-market offerings, the selling shareholders will
do so pursuant to the terms of a distribution agreement among us, the selling
shareholders and the underwriters or agents. If the selling shareholders engage
in at-the-market sales pursuant to a distribution agreement, the selling
shareholders will sell our common shares and warrants to or through one or more
underwriters or agents, which may act on an agency basis or on a principal
basis. During the term of any such agreement, the selling shareholders may sell
common shares and warrants on a daily basis in exchange transactions or
otherwise as the selling shareholders agree with the underwriters or agents. The
distribution agreement will provide that any common shares or warrants sold will
be sold at prices related to the then prevailing market prices for our common
shares and warrants. Therefore, exact figures regarding proceeds that will be
raised or commissions to be paid cannot be determined at this time and will be
described in a prospectus supplement. Pursuant to the terms of the distribution
agreement, the selling shareholders also may agree to sell, and the relevant
underwriters or agents may agree to solicit offers to purchase, blocks of our
common shares and warrants. The terms of each such distribution agreement will
be set forth in more detail in a prospectus supplement to this prospectus.
In
the event that any underwriter or agent acts as principal, or broker-dealer acts
as underwriter, it may engage in certain transactions that stabilize, maintain
or otherwise affect the price of our securities. We will describe any such
activities in the prospectus supplement relating to the transaction.
The
selling shareholders may enter into derivative transactions with third parties
or sell securities not covered by this prospectus to third parties in privately
negotiated transactions. If the applicable prospectus supplement indicates, in
connection with those derivatives, such third parties (or affiliates of such
third parties) may sell securities covered by this prospectus and the applicable prospectus supplement, including in short-sale
transactions. If so, such third parties (or affiliates of such third parties)
may use securities pledged by the selling shareholders or borrowed from the
selling shareholders or others to settle those sales or to close out any related
open borrowings of shares, and may use securities received from the selling
shareholders in settlement of those derivatives to close out any related open
borrowings of shares. The third parties (or affiliates of such third parties) in
such sale transactions will be underwriters and, if not identified in this
prospectus, will be identified in a prospectus supplement (or a post-effective
amendment), if required.
- 18 -
The
selling shareholders may loan or pledge securities to a financial institution or
other third party that in turn may sell or transfer the securities using this
prospectus. Such financial institution or third party may transfer its short
position to investors in our securities or in connection with a simultaneous
offering of other securities offered by this prospectus or in connection with a
simultaneous offering of other securities offered by this prospectus.
We
cannot advise you as to whether the selling shareholders will, in fact, sell or
transfer any or all of such shares, and the selling shareholders are not
obligated to do so pursuant to this registration statement and may retain their
common shares or warrants.
- 19 -
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.
EXPENSES
The
following table lists the costs and expenses payable by us in connection with
the potential sale of the common shares and warrants 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. Any 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
|
$
|
1,055
|
|
|
Legal fees and expenses
|
|
40,000
|
|
|
Accounting fees and expenses
|
|
5,000
|
|
|
Miscellaneous expenses
|
|
3,000
|
|
|
Total
|
$
|
49,055
|
|
- 20 -
LEGAL MATTERS
The
validity of the common shares and warrants 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.
- 21 -
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item
8.
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 individuals 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
9.
Exhibits
The
exhibits to this registration statement are listed in the Exhibit Index that
appears immediately following the signature pages of this registration
statement. Such Exhibit Index is hereby incorporated in this Item 9 by
reference.
Item
10.
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 high end of the estimated maximum
offering range may be reflected in the form of prospectus filed with the
Securities and Exchange Commission pursuant to Rule 424(b) if, in the aggregate,
the changes in volume and price represent no more than a 20% change in the
maximum aggregate offering price set forth in the Calculation of Registration
Fee table in the effective registration statement; and
(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.
- 22 -
3.
To remove from registration by means of a post-effective amendment any of the
securities being registered which remain unsold at the termination of the
offering.
4.
To file a post-effective amendment to the registration statement to include any
financial statements required by Item 8.A. of Form 20-F at the start of any
delayed offering or throughout a continuous offering. Financial statements and
information otherwise required by Section 10(a)(3) of the Securities Act need
not be furnished, provided, that we include in the prospectus, by means of a
post-effective amendment, financial statements required pursuant to this
paragraph (4) and other information necessary to ensure that all other
information in the prospectus is at least as current as the date of those
financial statements. Notwithstanding the foregoing, a post-effective amendment
need not be filed to include financial statements and information required by
Section 10(a)(3) of the Securities Act or Rule 3-19 of Regulation S-X if such
financial statements and information are contained in periodic reports filed
with or furnished to the SEC by the Registrant pursuant to Section 13 or Section
15(d) of the Exchange Act that are incorporated by reference in this
Registration Statement.
5. That, for purposes of determining
liability under the Securities Act of 1933 to any purchaser, 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)
That, for the purpose of determining liability of a registrant under the
Securities Act to any purchaser in the initial distribution of the securities,
the undersigned registrant undertakes that in a primary offering of securities
of the undersigned registrant pursuant to this registration statement,
regardless of the underwriting method used to sell the securities to the
purchaser, if the securities are offered or sold to such purchaser by means of
any of the following communications, the undersigned registrant will be a seller
to the purchaser and will be considered to offer or sell such securities to such
purchaser:
|
1.
|
any preliminary prospectus or prospectus of the
undersigned registrant to the offering required to be filed pursuant to
Rule 424;
|
|
|
|
|
2.
|
any free writing prospectus relating to the offering
prepared by or on behalf of the undersigned registrant or used or referred
to by an undersigned registrant;
|
|
|
|
|
3.
|
the portion of any other free writing prospectus relating
to the offering containing material information about the undersigned
registrant or its securities provided by or on behalf of the undersigned
registrant; and
|
|
|
|
|
4.
|
any other communication that is an offer in the offering
made by the undersigned registrant to the
purchaser.
|
(c)
The undersigned registrant hereby undertakes that, for purposes of determining
any liability under the Securities Act of 1933, each filing of the registrants
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
plans 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.
(d)
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.
- 23 -
(e)
The undersigned registrant hereby undertakes that, for purposes of determining
any liability under the Securities Act, the information omitted from the form of
prospectus filed as part of this Registration Statement in reliance upon Rule
430A and contained in a form of prospectus filed by the registrant pursuant to
Rule 424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed to be
part of this Registration Statement as of the time it was declared effective.
(f)
The undersigned registrant hereby undertakes that, for the purpose of
determining any liability under the Securities Act, each post-effective
amendment that contains a form of prospectus shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial
bona fide
offering thereof.
- 24 -
SIGNATURES
Pursuant to the requirements of the Securities Act
of 1933, the registrant certifies that it has reasonable grounds to believe that
it meets all of the requirements for filing on Form F-3 and has duly caused this
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of San Diego, State of California, on this
20th
day of July, 2017.
SPHERE 3D CORP.
|
By:
|
/s/ ERIC L. KELLY
|
|
|
Eric L. Kelly
|
|
|
Chief Executive Officer
|
POWER OF ATTORNEY
Each person whose signature appears below hereby
constitutes and appoints Eric L. Kelly and Kurt L. Kalbfleisch, jointly and
severally, as his attorney-in-fact, each with the power of substitution, for him
in any and all capacities, to sign any and all amendments to this registration
statement, including post-effective amendments or any abbreviated registration
statement and any amendments thereto filed pursuant to Rule 462(b) increasing
the number of securities for which registration is sought, and to file the same,
with all exhibits thereto and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents, with full power of each to act alone, full power and authority to do and
perform each and every act and thing requisite and necessary to be done in
connection therewith, as fully for all intents and purposes as he or she might
or could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or his or her or their substitute or substitutes,
may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as
amended, this registration statement has been signed by the following persons in
their capacities and on the date indicated.
Signature
|
|
Title
|
Date
|
|
|
|
|
/s/ ERIC L.
KELLY
|
|
Chairman of the Board and Chief Executive
Officer
|
July 20, 2017
|
Eric L. Kelly
|
|
Principal Executive Officer
)
|
|
|
|
|
|
/s/ KURT L.
KALBFLEISCH
|
|
Chief Financial Officer
|
July 20, 2017
|
Kurt L. Kalbfleisch
|
|
(
Principal Financial and
Accounting
Officer
)
|
|
|
|
|
|
/s/ CHEEMIN
BO-LINN
|
|
Director
|
July 20, 2017
|
Dr. Cheemin Bo-Linn
|
|
|
|
|
|
|
|
/s/ VIVEKANAND
MAHADEVAN
|
|
Director
|
July 20, 2017
|
Vivekanand Mahadevan
|
|
|
|
|
|
|
|
/s/ DUNCAN
McEWAN
|
|
Director
|
July 20, 2017
|
Duncan McEwan
|
|
|
|
|
|
|
|
/s/ PETER
TASSIOPOULOS
|
|
Director
|
July 20, 2017
|
Peter Tassiopoulos
|
|
|
|
- 25 -
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