Sphere 3D Corp. — Registration Form 2017

Feb 24, 2017

S-8 1 forms8.htm FORM S-8 Sphere 3D Corp. - Form S-8 - Filed by newsfilecorp.com

| As filed with the Securities and Exchange Commission on
February 23, 2017 |
| --- |
| Registration
No.____ |

UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 ______

FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 _______

Sphere 3D Corp. (Exact Name of Registrant as Specified in Its Charter) _______

Ontario, Canada	Not Applicable
(State or Other Jurisdiction of	(I.R.S. Employer
Incorporation or Organization)	Identification No.)

240 Matheson Blvd. East Mississauga, Ontario L4Z 1X1 (Address, Including Zip Code, of Principal Executive Offices) _______

Inducement Restricted Share Unit Grants Sphere 3D Corp. 2015 Performance Incentive Plan (Full Title of the Plan) _______

DL SERVICES Columbia Centre, 701 Fifth Avenue, Suite 6100, Seattle, Washington, 98104 (206) 903-8800 (Name, Address and Telephone Number, Including Area Code, of Agent for Service)

COPY TO:

Warren T. Lazarow, Esq. Paul Sieben, Esq. O’Melveny & Myers LLP 2765 Sand Hill Road Menlo Park, California 94025 (650) 473-2600 _______

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer,” and “smaller reporting company” in Rule 12b-2 of the Exchange Act. (Check one):

Large accelerated filer [ ]	Accelerated filer [ ]
Non-accelerated filer [X]	Smaller reporting company [ ]

CALCULATION OF REGISTRATION FEE

		Proposed — Maximum	Proposed — Maximum
Title of	Amount	Offering	Aggregate	Amount Of
Securities	To Be	Price	Offering	Registration
To Be
Registered	Registered	Per Share	Price	Fee
Common Shares, no par value per share, issuable pursuant to	5,161,030 (1) shares	$0.32 (2)	$1,651,530 (2)	$192
Restricted Stock Unit Inducement Grants
Common Shares, no par value per share, issuable
pursuant to the Sphere 3D Corp. 2015 Performance Incentive
Plan	58,333 (1) shares	$0.32 (2)	$18,667 (2)	$3
Total	5,219,363 (1) shares	$0.32 (2)	$1,670,197 (2)	$195

| (1) | This Registration Statement covers, in addition to the
number of common shares, no par value per share (the “Common Shares”) of
Sphere 3D Corp., a corporation incorporated under the laws of the Province
of Ontario (the “Company” or the “Registrant”), stated above, options and
other rights to purchase or acquire the Common Shares covered by this
Registration Statement and, pursuant to Rule 416 under the Securities Act
of 1933, as amended (the “Securities Act”), an additional indeterminate
number of shares, options and rights that may be offered or issued
pursuant to the Inducement Restricted Share Unit Grants (the “Inducement
Grants”) and the Sphere 3D Corp. 2015 Performance Incentive Plan (the
“Plan”) as a result of one or more adjustments under the award agreements
that evidence the Inducement Grants and the grants under the Plan to
prevent dilution resulting from one or more stock splits, stock dividends
or similar transactions. |
| --- | --- |
| (2) | Estimated solely for the purpose of calculating the
registration fee in accordance with Rule 457(h) and 457(c) under the
Securities Act, based upon the average of the high and low prices of the
Common Shares on February 21, 2017 (which is within five business days
prior to the date of this filing), as quoted on the Nasdaq Capital
Market. |

The Exhibit Index for this Registration Statement is at page 9.

$$/page=

PART I

INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS

The document(s) containing the information specified in Part I of Form S-8 will be sent or given to participants as specified by Securities Act Rule 428(b)(1).

$$/page=

PART II

INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

ITEM 3. Incorporation of Certain Documents by Reference

The following documents of the Company filed with the Securities and Exchange Commission (the “Commission”) are incorporated herein by reference:

| (a) | The Registrant’s Annual Report on Form 40-F (File No.
001-36532) for its fiscal year ended December 31, 2015, filed with the
Commission on March 30, 2016 (the “Form 40-F”), which includes the audited
consolidated balance sheets of the Registrant and subsidiaries as of
December 31, 2015 and 2014, and the related audited consolidated
statements of operations, equity and comprehensive income (loss), and cash
flows for each of the years in the two-year period ended December 31,
2015. |
| --- | --- |
| (b) | The description of the Registrant’s common shares
contained in its Registration Statement on Form 8-A (File No. 001-36532)
filed with the Commission on July 7, 2014 pursuant to Section 12 of the
Securities Exchange Act of 1934, as amended (the “Exchange Act”), and any
other amendment or report filed for the purpose of updating such
description. |
| (c) | The audited consolidated balance sheets of the Registrant
and subsidiaries as of December 31, 2013, and the related audited
consolidated statements of operations, equity and comprehensive income
(loss), and cash flows and the notes to the financial statements related
thereto for the year ended December 31, 2013 contained in our Annual
Report on Form 40-F (File No. 001-36532) filed with the SEC on March 31,
2015 |
| (d) | The Registrant’s Registration Statement on Form F-4 (File
No. 333-197569) filed with the Commission on July 23, 2014, as
subsequently amended (the “Form F- 4”), which includes (i) the audited
consolidated balance sheets of the Registrant and subsidiaries as of
December 31, 2013, and the related audited consolidated statements of
operations, equity and comprehensive income (loss), and cash flows for the
period ended December 31, 2013, (ii) the consolidated audited balance
sheets of Overland Storage, Inc. and subsidiaries (“Overland”) as of June
30, 2014 and 2013, and the related audited consolidated statements of
operations, equity and comprehensive income (loss), and cash flows for the
period ended June 30, 2014, (iii) the audited consolidated balance sheets
of Tandberg Data S.à r.l. and subsidiaries (“Tandberg”) as of December 31,
2013, and the related audited consolidated statements of operations,
equity and comprehensive income (loss), and cash flows for each of the
years in the two-year period ended December 31, 2013, and (iv) the
unaudited pro forma condensed combined financial information of the
Registrant, Overland and Sphere giving effect to the acquisition of
Overland by the Registrant and derived from the historical consolidated
financial statements and notes thereto of the Registrant, Overland and
Tandberg contained in the Form F-4. |

$$/page=

(e) The Registrant’s Reports of Foreign Private Issuer on Form 6-K (File No. 001- 36532) furnished to the Commission on May 14, 2015, August 12, 2016 and November 14, 2016, which include unaudited consolidated balance sheets of the Registrant and subsidiaries for the three months ended March 31, 2015 and 2014, three and six months ended June 30, 2016 and 2015, and three and nine months ended September 30, 2016 and 2015, respectively.

All documents subsequently filed by the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and all Reports of Foreign Private Issuer on Form 6-K (or portions thereof) subsequently furnished to the Commission that are identified in such form as being incorporated by reference into this Registration Statement prior to the filing of a post-effective amendment which indicates that all securities offered hereby have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference into this Registration Statement and to be a part hereof from the date of filing of such documents; provided, however, that unless otherwise identified, documents or information deemed to have been furnished and not filed in accordance with Commission rules shall not be deemed incorporated by reference into this Registration Statement. Any statement contained herein or in a document, all or a portion of which is incorporated or deemed to be incorporated by reference herein, shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein or in any other subsequently filed document which also is or is deemed to be incorporated by reference herein modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or amended, to constitute a part of this Registration Statement.

ITEM 4. Description of Securities

Not applicable.

ITEM 5. Interests of Named Experts and Counsel

Not applicable.

ITEM 6. Indemnification of Directors and Officers

Under Section 136 the Business Corporations Act (Ontario), the Company may indemnify a director or officer, a former director or officer or another individual who acts or acted at the Company’s request as a director or officer, or an individual acting in a similar capacity, of another entity, against all costs, charges and expenses, including an amount paid to settle an action or satisfy a judgment, reasonably incurred by the individual in respect of any civil, criminal, administrative, investigative or other proceeding in which the individual is involved because of that association with the Company or other entity on condition that (i) the individual acted honestly and in good faith with a view to the best interests of the Company or, as the case may be, to the best interests of the other entity for which the individual acted as a director or officer or in a similar capacity at the Company’s request, and (ii) in the case of a criminal or administrative action or proceeding that is enforced by a monetary penalty, the individual also had reasonable grounds for believing that his or her conduct was lawful. Further, the Company may, with court approval, indemnify an individual described above in respect of an action by or on behalf of the Company or other entity to obtain a judgment in its favor, to which the individual is made a party because of the individual’s association with the Company or other entity, against all costs, charges and expenses reasonably incurred by the individual in connection with such action if the individual fulfills condition (i) above. An individual as described above is entitled to indemnity from the Company in respect of all costs, charges and expenses reasonably incurred by such individual in connection with the defense of any civil, criminal, administrative, investigative or other proceedings to which such individual is subject because of the individual’s association with the Company or other entity if he or she was not judged by a court or other competent authority to have committed any fault or omitted to do anything that he or she ought to have done, and has fulfilled conditions (i) and (ii) above.

$$/page=

A policy of directors’ and officers’ liability insurance is maintained by the Company which insures directors and officers for losses as a result of claims against the directors and officers of the Company in their capacity as directors and officers and also reimburses the Registrant for payments made pursuant to the indemnity provisions under the by-laws of the Registrant and the Business Corporations Act (Ontario).

Insofar as indemnification for liabilities arising under the Securities Act, as amended, may be permitted to directors, officers or persons controlling the Company pursuant to the foregoing provisions, the Company has been informed that in the opinion of the SEC such indemnification is against public policy as expressed in the Securities Act, as amended, and is therefore unenforceable.

ITEM 7. Exemption from Registration Claimed

Not applicable.

ITEM 8. Exhibits

See the attached Exhibit Index at page 9, which is incorporated herein by reference.

ITEM 9. Undertakings

(a) The undersigned Registrant hereby undertakes:

(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement:

(i) To include any prospectus required by Section 10(a)(3) of the Securities Act;

(ii) To reflect in the prospectus any facts or events arising after the effective date of this Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in this Registration Statement;

(iii) To include any material information with respect to the plan of distribution not previously disclosed in this Registration Statement or any material change to such information in this Registration Statement;

provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the Registrant pursuant to Section 13 or 15(d) of the Exchange Act that are incorporated by reference in this Registration Statement.

$$/page=

(2) That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

(3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.

(b) The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the Registrant’s annual report pursuant to Section 13(a) or 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in this Registration Statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

(h) Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, executive officers and controlling persons of the Registrant pursuant to the provisions described in Item 6 above, or otherwise, the Registrant has been advised that in the opinion of the Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.

$$/page=

SIGNATURES

Pursuant to the requirements of the Securities Act, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Form S-8 Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of San Jose, State of California, on February 23, 2017.

SPHERE 3D CORP.
By:	/s/
Eric Kelly
	Eric Kelly
	Chief Executive Officer

7

$$/page=

POWER OF ATTORNEY

Each person whose signature appears below constitutes and appoints Eric Kelly and Peter Tassiopoulos, or either one or both of them, as his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her name, place, and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments, exhibits thereto and other documents in connection therewith) to this Registration Statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that each of said attorneys-in-fact and agents, or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

Pursuant to the requirements of the Securities Act, this Registration Statement has been signed below by the following persons in the capacities and on the dates indicated.

Signature	Title	Date
/s/ Eric Kelly	Chairman of the Board and Chief	February 23, 2017
Eric Kelly	Executive Officer
	(Principal Executive
Officer)
/s/ Kurt Kalbfleisch	Chief Financial Officer	February 23, 2017
Kurt Kalbfleisch	(Principal Financial and Accounting
	Officer)
/s/ Peter Ashkin	Director	February 23, 2017
Peter Ashkin
/s/ Glenn M. Bowman	Director	February 23, 2017
Glenn M. Bowman
/s/ Vivekanand Mahadevan	Director	February 23, 2017
Vivekanand Mahadevan
/s/ Peter Tassiopoulos	Director	February 23, 2017
Peter Tassiopoulos

8

$$/page=

SIGNATURE OF AUTHORIZED REPRESENTATIVE IN THE UNITED STATES

Pursuant to the requirements of the Securities Act, the undersigned, the duly authorized representative in the United States of the Registrant, has signed this registration statement in the City of San Jose, State of California on February 23, 2017.

AUTHORIZED U.S. REPRESENTATIVE
By:	/s/
Eric Kelly
	Eric Kelly
	Chairman of the Board and Chief Executive
Officer

9

EXHIBIT INDEX

Exhibit Number	Description of Exhibit
4.1	Form of Executive Inducement
Restricted Stock Unit Agreement. (Filed as Exhibit 4.1 to the Company’s
Registration Statement on Form S-8 (SEC File No. 333-209251), filed with
the SEC on February 1, 2016 and incorporated herein by this reference.)
4.2	Form of Inducement Restricted
Stock Unit Agreement. (Filed as Exhibit 4.2 to the Company’s Registration
Statement on Form S-8 (SEC File No. 333-209251), filed with the SEC on
February 1, 2016 and incorporated herein by this reference.)
4.3	Sphere 3D Corp. 2015
Performance Incentive Plan. (Filed as Exhibit 4 to the Company’s
Registration Statement on Form S-8 (SEC File No. 333-214605), filed with
the SEC on November 15, 2016 and incorporated herein by this reference.)
5	Opinion of Stikeman Elliot LLP
(opinion re legality).
23.1	Consents of Collins Barrow
(consent of independent registered public accounting firm).
23.2	Consents of Moss Adams LLP
(consent of independent registered public accounting firm).
23.3	Consent of RSM Deutschland GmbH
Wirtschaftsprüfungsgesellschaft (consent of independent registered public
accounting firm).
23.4	Consent of Counsel (included in
Exhibit 5).
24	Power of Attorney (included in
this Registration Statement under “Signatures”).

10