As filed with the Securities and Exchange Commission on
August 13, 2015
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)
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________________________ |
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Ontario, Canada |
240 Matheson Blvd. East |
Not Applicable |
(State or other jurisdiction of |
Mississauga, Ontario L4Z 1X1 |
(I.R.S. Employer |
Incorporation or Organization) |
(858) 571-5555 |
Identification No.) |
|
(Address and telephone number of
Registrants principal executive offices) |
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________________________
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 the 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 post-effective amendment filed pursuant to
Rule 462(c) under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering.[ ]
If this Form is a 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 to a registration
statement filed pursuant to General Instruction I.C. filed to register
additional securities or additional classes of securities pursuant to Rule
413(b) under the Securities Act, check the following box.[ ]
_______________________
CALCULATION OF REGISTRATION FEE
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Proposed |
Proposed |
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Amount |
maximum |
maximum |
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Title of each
class of |
to
be |
offering price |
aggregate |
Amount of |
securities to be registered |
registered(1) |
per unit(2) |
offering price(2) |
registration fee |
Secondary
Shares |
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Common Shares, no par value per share |
4,454,620 |
$3.98 |
$17,729,387.60 |
$2,060.15 |
(1) |
This registration statement shall also cover any
additional common shares that become issuable by reason of any stock
dividend, stock split or other similar transaction effected without the
receipt of consideration that results in an increase in the number of the
outstanding common shares of the registrant. This registration statement
relates to the resale of common shares previously issued to a selling
shareholder. |
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(2) |
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 $4.14 and
low $3.82 sales prices of the registrants common shares on The Nasdaq
Global Market on August 10, 2015. The registrant is not selling any common
shares in this offering and, therefore, will not receive any proceeds from
this offering. |
_______________________
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 August 13,
2015
PROSPECTUS
This prospectus relates to the resale or other disposition by
certain selling shareholders identified in this prospectus, or their
transferees, of up to an aggregate of (i) 2,227,310 outstanding common shares
and (ii) 2,227,310 common shares issuable upon the exercise of outstanding
warrants. 1,621,250 common shares and warrants exercisable to purchase up to
1,621,250
common shares were issued and sold to certain selling shareholders pursuant to
purchase agreements, dated on and between May 13, 2015 and May 28, 2015, between
us and the selling shareholders party thereto. 606,060 common shares and warrants
exercisable to purchase up to 606,060 common shares were issued and sold to
certain selling shareholders pursuant to a purchase agreement, dated August 10,
2015, between us and the selling shareholder party thereto.
The selling shareholders may, from time to time, sell,
transfer, or otherwise dispose of any or all of their common shares on any stock
exchange, market or trading facility on which the shares are traded or in
private transactions. These dispositions may be at fixed prices, at prevailing
market prices at the time of sale, at prices related to the prevailing market
price, at varying prices determined at the time of sale, or at negotiated
prices. See Plan of Distribution for additional information.
We are not offering any common shares for sale under this
prospectus, and we will not receive any of the proceeds from the sale or other
disposition of the common shares covered hereby. However, we will receive the
exercise price of any warrants exercised for cash.
Our common shares are traded on The Nasdaq Global Market under
the symbol ANY. On August 10, 2015, the last reported sale price for our common
shares on Nasdaq was $4.02 per share.
We will pay the expenses related to the registration of the
common shares covered by this prospectus. The selling shareholders will pay any
commissions and selling expenses they may incur.
________________________
Our business and an investment in our securities involve
significant risks. You should read the section entitled "Risk
Factors" on page 6 of this prospectus and the risk factors
incorporated by reference into this prospectus as described in that section
before investing in our securities.
Neither the Securities and Exchange Commission nor any state
securities commission has approved or disapproved of these securities or passed
upon the adequacy or accuracy of this prospectus. Any representation to the
contrary is a criminal offense.
________________________
The date of this prospectus is
.
TABLE OF CONTENTS
-i-
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement on Form F-3
that we filed with the Securities and Exchange Commission using a shelf
registration or continuous offering process.
You should read this prospectus, the information and documents
incorporated by reference, and the additional information described under the
heading Where You Can Find Additional Information below carefully because
these documents contain important information you should consider when making
your investment decision. Whenever we make reference in this prospectus to any
of our contracts, agreements or other documents, the references are not
necessarily complete and you should refer to the exhibits attached to the
registration statement or the documents incorporated by reference for copies of
the actual contract, agreements or other document. See Where You Can Find More
Information and Information Incorporated by Reference.
You should rely only
on the information provided in this prospectus and the information and documents
incorporated by reference into this prospectus. We have not, and the selling
shareholders have not, authorized anyone to provide you with different
information. This prospectus is not an offer to sell these securities, and the
selling shareholders are not soliciting offers to buy these securities, in any
state where the offer or sale of these securities is not permitted. The
information contained in this prospectus is accurate only as of the date of this
prospectus, regardless of the time of delivery of this prospectus or of any sale
of common shares. You should not assume that the information contained in this
prospectus is accurate as of any date other than the date on the front cover of
this prospectus, or that the information contained in any document incorporated
by reference is accurate as of any date other than the date of the document
incorporated by reference, regardless of the time of delivery of this prospectus
or any sale of a security.
In this prospectus, unless otherwise indicated or the context
otherwise requires, references to Sphere, we, company, us, or our
refer to Sphere 3D Corp. and its consolidated subsidiaries, and references to
selling shareholders refer to those shareholders listed herein under Selling
Shareholders, and their transferees.
WHERE YOU CAN FIND ADDITIONAL INFORMATION
We are subject to the informational requirements of the
Securities Exchange Act of 1934, as amended, applicable to foreign private
issuers. We anticipate filing with the SEC, within three months after the end of
each fiscal year, an Annual Report on Form 40-F containing financial statements
audited by an independent accounting firm. We also 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.
-1-
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
We are incorporating by reference information into this
prospectus. This means that we are disclosing important information to you by
referring you to another document that has been separately filed with or
furnished to the SEC. The information incorporated by reference is considered to
be part of this prospectus, and certain information that we later file with or
furnish to the SEC will automatically update and supersede the information
contained in documents earlier filed with or furnished to the SEC or contained
in this prospectus. The following documents filed with or furnished to the SEC
are incorporated herein by reference:
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Our Annual Report on Form 40-F (File No. 001-36532) filed
with the SEC on March 31, 2015; |
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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 audited consolidated balance sheets of our company
and subsidiaries as of December 31, 2013 and 2012, and the related audited
consolidated statements of operations, equity and comprehensive income
(loss), and cash flows for the years ended December 31, 2013 and 2012; 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 audited consolidated balance sheets of Tandberg Data S.à r.l. and
subsidiaries as of December 31, 2013 and 2012, and the related audited
consolidated statements of operations, equity and comprehensive income
(loss), and cash flows for the years ended December 31, 2013 and 2012; the
unaudited pro forma condensed combined financial information of our
company, the Overland companies and the Tandberg companies giving effect
to the acquisition of the Overland companies and derived from the
historical consolidated financial statements and notes thereto of our
companies; the description of the terms of our merger with Overland
Storage, Inc., together with Annex A; and the description of the rights of
our shareholders contained in our Registration Statement on Form F-4 (File
No. 333- 197569) filed with the SEC on July 23, 2014, as subsequently
amended; |
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Our Reports of Foreign Private Issuer on Form 6-K (File
No. 001-36532) furnished to the SEC on April 1, 2015, May 15, 2015, July 31, 2015
and August 13, 2015 (but not with respect to Exhibit 99.8, News Release
dated August 13, 2015 or Exhibit 99.1, News Release dated August 13,
2015); and |
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All Annual Reports on Form 40-F and all Reports of
Foreign Private Issuer on Form 6-K (or portions thereof) that indicate
that they are being incorporated by reference into this registration
statement and that we file with the SEC on or after the date on which the
registration statement is first filed with the SEC until the termination
or completion of the offering under this prospectus.
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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. We may
incorporate future Reports of Foreign Private Issuer on Form 6-K (or portions
thereof) that we furnish subsequent to the date of this prospectus by indicating
in such Form 6-K (or portions thereof) that they are being incorporated by
reference into this prospectus.
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.
-2-
CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS
Certain statements in this prospectus, any prospectus
supplement and the documents we incorporate by reference in this prospectus or
any prospectus supplement 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: our limited operating history; our ability to manage
growth; our ability to integrate the businesses of Overland Storage, Inc. and V3
Systems, Inc.; the impact of competition; the investment in technological
innovation; any defects in components or design of our products; the retention
or maintenance of key personnel; the possibility of significant fluctuations in
operating results; currency fluctuations; our ability to maintain business
relationships; financial, political or economic conditions; financing risks;
future acquisitions; our ability to protect our intellectual property; third
party intellectual property rights; volatility in the market price for our
common shares; our compliance with financial reporting and other requirements as
a public company; conflicts of interests; future sales of our common shares by
our directors, officers and other shareholders; dilution and future sales of
common shares; acquisition-related risks and other factors described under the
heading Risk Factors.
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.
-3-
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 allows organizations to deploy a combination of
public, private or hybrid cloud strategies. We achieve this through the sale of
solutions that are derived from its 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.
-4-
The Offering
Common shares offered by the selling shareholders,
including |
4,454,620 shares |
common shares issuable upon exercise of the warrants: |
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Common shares to be outstanding after the offering: |
41,798,667 (1) |
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Nasdaq Global Market symbol: |
ANY |
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Use of proceeds: |
We will not receive any of the proceeds from
the sale or |
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other disposition of the common shares offered
hereby. |
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However, we will receive the exercise price of
any warrants |
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exercised for cash. |
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Risk factors: |
See Risk Factors beginning on page 6 and the
risk factors |
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incorporated by reference into this prospectus
as described |
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in that section, and the other information
included in this |
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prospectus or incorporated by reference for a
discussion of |
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factors you should consider before making an
investment |
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decision |
(1) |
The number of common shares shown to be outstanding is
based on the number of common shares outstanding as of August 13, 2015,
and includes 2,227,310 common shares issuable upon the exercise of the
warrants issued pursuant to the purchase agreements. The number does not
include common shares issuable or reserved for issuance upon the exercise
of other outstanding warrants or options granted or available under our
equity compensation plans. At our June 2015 annual meeting of our
shareholders, the shareholders ratified the adoption of our 2015
Performance Incentive Plan, initially authorizing the award of up to a
maximum of 8,790,315 common shares pursuant to the plan, as well as our
Employee Stock Purchase Plan, authorizing the purchase by employees of up
to 2,000,000 common shares under the plan. |
-5-
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 40-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 40-F. Before making an
investment decision, you should carefully consider these risks as well as other
information we include or incorporate by reference in this prospectus and the
accompanying prospectus supplement. The risks and uncertainties not presently
known to us or that we currently deem immaterial may also materially harm our
business, operating results and financial condition and could result in a
complete loss of your investment.
Risks Related to Our Common Shares and this Offering
Our stock 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 June 30, 2015, our closing stock price has ranged from a low
of $3.14 to a high of $11.15. 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. |
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 may 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 issued in recent placements may cause the
market price of our shares to decline.
We have recently closed private
placements and issued common shares and warrants exercisable to purchase our
common shares. Further, we have agreed to register with the SEC the common
shares issued in these offerings and issuable upon exercise of the warrant for
resale. Upon the effectiveness of the registration statements for these
offerings, the common shares issued in the offerings and issuable upon exercise
of the warrants may be freely sold in the open market. The sale of a significant
amount of these common shares 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.
-6-
We may have to pay liquidated damages to our investors,
which will increase our negative cash flows.
In connection with our recent private
placements, we entered into registration rights agreements. Under the terms of
these registration rights agreements, subject to certain limited exceptions, if
registration statements covering the shares issued or issuable pursuant to warrants issued in such placements have not been declared effective within the time
periods specified in the registration rights agreements or we otherwise fail to
comply with certain provisions set forth in the registration rights agreements,
then we will be required to pay liquidated damages. There can be no assurance
that the registration statements will be declared effective by the SEC or will
remain effective for the time periods necessary to avoid payment of liquidated
damages.
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.
Risks Related to Intellectual Property
Although we believe we have a proprietary platform for
our technologies and products, we or our customers may in the future become
subject to claims for infringement of intellectual property rights owned by
others. Further, to protect our own intellectual property rights, we may in the
future bring claims for infringement against others.
Our commercial success depends, in part, upon not infringing
intellectual property rights owned by others. Although we believe that we have a
proprietary platform for our technologies and products, we cannot determine with
certainty whether any existing third party patents or the issuance of any third
party patents would require us to alter our technology, obtain licenses or cease
certain activities. We may become subject to claims by third parties that our
technology infringes their intellectual property rights. While we provide our
customers with a qualified indemnity against the infringement of third party
intellectual property rights, we may become subject to these claims either
directly or through indemnities against these claims that we routinely provide
to our end-users and channel partners.
Further, our customers may use our products in ways that may
infringe the intellectual property rights of third parties and/or require a
license from third parties. Although we encourage our customers to use our
products only in a manner that does not infringe third party intellectual
property rights, and we know that most of our clients do so, we cannot guarantee
that such third parties will not seek remedies against us for providing products
that may enable our customers to infringe the intellectual property rights of
others. We would vigorously defend any such claims.
In addition, we may receive in the future, claims from third
parties asserting infringement, claims based on indemnities provided by us, and
other related claims. Litigation may be necessary to determine the scope,
enforceability and validity of third party proprietary or other rights, or to
establish our proprietary or other rights. Furthermore, despite precautions, it
may be possible for third parties to obtain and use our intellectual property
without our authorization. Policing unauthorized use of intellectual property is
difficult, and some foreign laws do not protect proprietary rights to the same
extent as the laws of Canada or the United States. To protect our intellectual
property, we may become involved in litigation. In addition, other companies may
initiate similar proceedings against us. The patent position of information
technology firms in particular is highly uncertain, involves complex legal and
factual questions, and continues to be the subject of much litigation. No
consistent policy has emerged from the U.S. Patent and Trademark Office or the
courts regarding the breadth of claims allowed or the degree of protection
afforded under information technology patents.
-7-
Some of our competitors have, or are affiliated with companies
having, substantially greater resources than us and these competitors may be
able to sustain the costs of complex intellectual property litigation to a
greater degree and for a longer period of time than us. Regardless of their
merit, any such claims could:
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divert the attention of our management, cause
significant delays, materially disrupt the conduct of our business or
materially adversely affect our revenue, financial condition and results
of operations; |
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be time consuming to evaluate and defend;
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result in costly litigation and substantial
expenses; |
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cause product shipment delays or stoppages;
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subject us to significant liabilities;
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require us to enter into costly royalty or
licensing agreements; |
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require us to modify or stop using the
infringing technology; or |
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result in costs or other consequences that have
a material adverse effect on our business, results of operations and
financial condition. |
-8-
USE OF PROCEEDS
We will not receive any of the proceeds from the sale or other
disposition of the common shares offered hereby. However, we will receive the
exercise price of any warrants exercised for cash. To the extent that we receive
cash upon exercise of any warrants, we expect to use that cash for general
corporate purposes.
SELLING SHAREHOLDERS
We have prepared this prospectus to allow the selling
shareholders or their donees, pledgees, transferees or other successors in
interest to sell or otherwise dispose of, from time to time, up to an aggregate
of 4,454,620 common shares or common shares issuable upon exercise of the
warrants. The table below presents information regarding the selling
shareholders, the common shares beneficially owned prior to the private
placement offering and the common shares that they may sell or otherwise dispose
of from time to time under this prospectus.
We do not know when or in what amounts the selling shareholders
may sell or otherwise dispose of the common shares covered hereby. The selling
shareholders might not sell any or all of the shares covered by this prospectus
or may sell or dispose of some or all of the shares other than pursuant to this
prospectus. Because the selling shareholders may not sell or otherwise dispose
of some or all of the shares covered by this prospectus and because there are
currently no agreements, arrangements or understandings with respect to the sale
or other disposition of any of the shares, we cannot estimate the number of the
shares that will be held by the selling shareholders after completion of the
offering. However, for purposes of this table, we have assumed that all of the
common shares covered by this prospectus will be sold by the selling
shareholders.
|
|
|
|
|
Beneficial Ownership
(1)
|
|
|
|
|
|
|
Number of |
|
|
Percent |
|
|
|
|
|
Number of |
|
|
Percent |
|
|
|
Shares |
|
|
of |
|
|
|
|
|
Shares |
|
|
of |
|
|
|
Beneficially |
|
|
Class |
|
|
Number of |
|
|
Beneficially |
|
|
Class |
|
|
|
Owned Prior |
|
|
Prior |
|
|
Shares |
|
|
Owned |
|
|
After |
|
Name of Selling |
|
to the |
|
|
to the |
|
|
Offered |
|
|
After this |
|
|
this |
|
Shareholder
(2)
|
|
Offering |
|
|
Offering |
|
|
Hereby (3) |
|
|
Offering |
|
|
Offering |
|
MacFarlane Family Ventures
LLC (4) |
|
|
|
|
|
|
|
2,774,620 |
|
|
|
|
|
|
|
GMP Securities LP ITF Lynn Factor
(5) |
|
1,757,390 |
|
|
4.2% |
|
|
1,000,000 |
|
|
757,390 |
|
|
1.8% |
|
Countryman Investments Ltd.
(6) |
|
1,373,500 |
|
|
3.3% |
|
|
300,000 |
|
|
1,073,500 |
|
|
2.5% |
|
Greenlaw International LP (7)
|
|
902,938 |
|
|
2.1% |
|
|
220,000 |
|
|
682,938 |
|
|
1.6% |
|
Laidar Holdings Ltd
(8) |
|
110,000 |
|
|
* |
|
|
100,000 |
|
|
10,000 |
|
|
* |
|
Delbrook Enhanced Return Fund (9)
|
|
315,000 |
|
|
* |
|
|
20,000 |
|
|
255,000 |
|
|
* |
|
Delbrook Capital Advisors
Inc. (10) |
|
315,000 |
|
|
* |
|
|
40,000 |
|
|
255,000 |
|
|
* |
|
(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 August 13, 2015. Percentage ownership is based on an
aggregation of the 39,571,357 common shares issued and outstanding as of
August 12, 2015 and assuming full exercise of all warrants to purchase an
aggregate of 2,227,310 common shares issued in this private placement.
This amounts totals 41,798,667 common shares. |
(2) |
Unless otherwise indicated, this table is based on
information supplied to us by the selling shareholders and certain of our
records. |
(3) |
All 4,454,620 common shares offered pursuant to this
prospectus were acquired in private placement offerings or are issuable
upon exercise of the warrants. |
(4) |
Mr. Victor B. MacFarlane has voting and investment power
with respect to the common shares held by this selling shareholder. The
address for this selling shareholder is: 201 Spear Street 14th
Floor, San Francisco, California 94105. |
(5) |
GMP Securities LP is a registered securities dealer under
Canadian securities laws. Ms. Lynn Factor has voting and investment power
with respect to the common shares held by this selling shareholder. The
address for this selling shareholder is: 145 King Street West, Suite 300,
Toronto, Ontario, M5H 1J8. |
(6) |
Mr. G. David Richardson has voting and investment power
over these securities. The number of shares listed as beneficially owned
includes 53,800 shares owned by Mr. G. David Richardson. The address for this selling shareholder is:
520-885 Dunsmuir St., Vancouver, B.C. VGC 1N5. |
-9-
(7) |
Mr. Hyonmyong Cho has voting and investment power over
these securities. The number of shares listed as beneficially owned
includes 4,824 shares owned by Mr. Hyonmyong Cho. The address for this selling shareholder is: 8449 Robidoux Road, Sandy, UT, 84093. |
(8) |
Mr. Gerald Wittenberg and Ms. Sherry Wittenberg share
voting and investment power over these securities. The number of shares listed
as beneficially owned includes 10,000
shares owned by Mr. Gerald Wittenberg. The address for this selling
shareholder is: 6857 Churchill St, Vancouver, British Columbia, V6P 5B4. |
(9) |
Matthew Zabloski, Managing Director has voting and
investment power over these securities, and Delbrook Enhenced Return Fund
is an affiliate of Delbrook Capital Advisers Inc. The number of
shares listed or beneficially owned includes those listed as
beneficially owned by Delbrook Capital Advisers Inc. The address for this selling
shareholder is: 301-525 Seymour Street, Vancouver, British Columbia,
V6B3H7. |
(10) |
Matthew Zabloski, Managing Director has voting and
investment power over these securities, and Delbrook Capital Advisers Inc.
is an affiliate of Delbrook Enhenced Return Fund. The number of shares
listed or beneficially owned includes those listed as beneficially
owned by Delbrook Enhenced Return Fund. The address for this selling
shareholder is: 301-525 Seymour Street, Vancouver, British Columbia,
V6B3H7. |
-10-
PLAN OF DISTRIBUTION
We are registering the common shares previously issued and
issuable upon exercise of the warrants to permit the resale of the common shares
by the selling shareholders. We will not receive any of the proceeds from the
sale by the selling shareholders of the common shares. We will bear all fees and
expenses incident to our obligation to register the common shares.
The selling shareholders, which as used herein includes donees,
pledgees, transferees or other successors-in-interest selling common shares or
interests in common shares received after the date of this prospectus from a
selling shareholder as a gift, pledge, partnership distribution or other
transfer, may, from time to time, sell, transfer or otherwise dispose of any or
all of their common shares or interests in common shares on any stock exchange,
market or trading facility on which the shares are traded or in private
transactions. These dispositions may be at fixed prices, at prevailing market
prices at the time of sale, at prices related to the prevailing market price, at
varying prices determined at the time of sale, or at negotiated prices.
The selling shareholders may use any one or more of the
following methods when disposing of shares or interests therein:
|
|
ordinary brokerage transactions and
transactions in which the broker-dealer solicits purchasers; |
|
|
|
|
|
block trades in which the broker-dealer will
attempt to sell the shares as agent, but may position and resell a portion
of the block as principal to facilitate the transaction; |
|
|
|
|
|
purchases by a broker-dealer as principal and
resale by the broker-dealer for its account; |
|
|
|
|
|
an exchange distribution in accordance with the
rules of the applicable exchange; |
|
|
|
|
|
privately negotiated transactions; |
|
|
|
|
|
short sales effected after the date the
registration statement of which this prospectus is a part is declared
effective by the SEC; |
|
|
|
|
|
through the writing or settlement of options or
other hedging transactions, whether through an options exchange or
otherwise; |
|
|
|
|
|
broker-dealers may agree with the selling
shareholders to sell a specified number of such shares at a stipulated
price per share; |
|
|
|
|
|
a combination of any such methods of sale; and
|
|
|
|
|
|
any other method permitted by applicable law.
|
If the selling shareholders effect such transactions by selling
common shares to or through underwriters, broker-dealers or agents, such
underwriters, broker-dealers or agents may receive commissions in the form of
discounts, concessions or commissions from the selling shareholders or
commissions from purchasers of the common shares for whom they may act as agent
or to whom they may sell as principal (which discounts, concessions or
commissions as to particular underwriters, broker-dealers or agents may be in
excess of those customary in the types of transactions involved).
The selling shareholders may, from time to time, pledge or
grant a security interest in some or all of the common shares owned by them and,
if they default in the performance of their secured obligations, the pledgees or
secured parties may offer and sell the common shares, from time to time, under
this prospectus, or under an amendment to this prospectus under Rule 424(b)(3)
or other applicable provision of the Securities Act amending the list of selling
shareholders to include the pledgee, transferee or other successors in interest
as selling shareholders under this prospectus. The selling shareholders also may
transfer the common shares in other circumstances, in which case the
transferees, pledgees or other successors in interest will be the selling
beneficial owners for purposes of this prospectus.
-11-
In connection with the sale of our common shares or interests
therein, the selling shareholders may enter into hedging transactions with
broker-dealers or other financial institutions, which may in turn engage in
short sales of the common shares in the course of hedging the positions they
assume. The selling shareholders may also sell our common shares short and
deliver these securities to close out their short positions, or loan or pledge
the common shares to broker-dealers that in turn may sell these securities. The
selling shareholders may also enter into option or other transactions with
broker-dealers or other financial institutions or the creation of one or more
derivative securities which require the delivery to such broker-dealer or other
financial institution of shares offered by this prospectus, which shares such
broker-dealer or other financial institution may resell pursuant to this
prospectus (as supplemented or amended to reflect such transaction).
The aggregate proceeds to the selling shareholders from the
sale of the common shares offered by them will be the aggregate purchase price
of the common shares less aggregate discounts or commissions, if any. Each of
the selling shareholders reserves the right to accept and, together with their
agents from time to time, to reject, in whole or in part, any proposed purchase
of common shares to be made directly or through agents. We will not receive any
of the proceeds from this offering. Upon any exercise of the warrants by payment
of cash, however, we will receive the exercise price of the warrants.
The selling shareholders also may resell all or a portion of
the shares in open market transactions in reliance upon Rule 144 under the
Securities Act, provided that they meet the criteria and conform to the
requirements of that rule.
The selling shareholders and any underwriters, broker-dealers
or agents that participate in the sale of the common shares or interests therein
may be, underwriters within the meaning of Section 2(11) of the Securities
Act. Any discounts, commissions, concessions or profit they earn on any resale
of the shares may be underwriting discounts and commissions under the Securities
Act. Selling shareholders who are underwriters within the meaning of Section
2(11) of the Securities Act will be subject to the prospectus delivery
requirements of the Securities Act.
To the extent required, the common shares to be sold, the names
of the selling shareholders, the respective purchase prices and public offering
prices, the names of any agents, dealer or underwriter, any applicable
commissions or discounts with respect to a particular offer will be set forth in
an accompanying prospectus supplement or, if appropriate, a post-effective
amendment to the registration statement that includes this prospectus.
In order to comply with the securities laws of some states, if
applicable, the common shares may be sold in these jurisdictions only through
registered or licensed brokers or dealers. In addition, in some states the
common shares may not be sold unless it has been registered or qualified for
sale or an exemption from registration or qualification requirements is
available and is complied with.
We have advised the selling shareholders that the
anti-manipulation rules of Regulation M under the Exchange Act may apply to
sales of shares in the market and to the activities of the selling shareholders
and their affiliates. In addition, to the extent applicable we will make copies
of this prospectus (as it may be supplemented or amended from time to time)
available to the selling shareholders for the purpose of satisfying the
prospectus delivery requirements of the Securities Act. The selling shareholders
may indemnify any broker-dealer that participates in transactions involving the
sale of the shares against certain liabilities, including liabilities arising
under the Securities Act.
We have agreed to indemnify the selling shareholders against
liabilities, including liabilities under the Securities Act and state securities
laws, relating to the registration of the shares offered by this prospectus.
We have agreed with the selling shareholders to keep the
registration statement of which this prospectus constitutes a part effective
until the earlier of (1) such time as all of the shares covered by this
prospectus have been disposed of pursuant to and in accordance with the
registration statement or (2) the date on which the shares may be sold without
restriction pursuant to Rule 144 of the Securities Act.
-12-
CAPITALIZATION AND INDEBTEDNESS
The table below sets forth our capitalization and indebtedness
as of June 30, 2015, on an actual basis. You should read this table in
conjunction with our consolidated financial statements and the related notes
included in our Annual Report on Form 40-F, which is incorporated by reference
herein.
|
|
|
As of June 30, 2015 |
|
|
|
|
(in thousands of
US$) |
|
|
Shareholders Equity
|
|
|
|
|
Common Shares |
$ |
114,976 |
|
|
Accumulated Deficit |
|
(37,954 |
) |
|
Accumulated Other Comprehensive Loss |
|
(1,489 |
) |
|
|
|
|
|
|
Total
Shareholders Equity |
|
75,533 |
|
|
|
|
|
|
|
Total Capitalization |
$ |
46,082 |
|
|
|
|
As of June 30, 2015 |
|
|
|
|
(in thousands of
US$) |
|
|
|
|
|
|
|
Revolving Credit Agreement |
$ |
5,000 |
|
|
Amended and Restated Loan and Security
Agreement |
|
4,951 |
|
|
Convertible Debenture (Long
Term) |
|
19,500 |
|
|
|
|
|
|
|
Total Indebtedness |
$ |
29,451 |
|
-13-
PRICE RANGE OF OUR SHARES
On December 28, 2012, our common shares commenced trading on
the TSX Venture Exchange under the symbol ANY. On July 8, 2014, our common
shares commenced trading on the Nasdaq Global Market under the symbol ANY. On
December 10, 2014, we voluntarily delisted our common shares from the TSXV.
The tables below set forth, for the periods indicated, the per
share high and low closing sales prices for our common shares as reported on the
Nasdaq and the TSXV. TSXV closing prices of our common shares are presented in
Canadian dollars, and the Nasdaq closing prices of our common shares are
presented in U.S. dollars.
TSXV:
|
|
|
ANY shares
TSXV |
|
|
|
|
(in C$) |
|
|
|
|
High |
|
|
Low |
|
|
Annual information for
2012, 2013, 2014 |
|
|
|
|
|
|
|
2012 (from
December 28, 2012) |
|
0.80 |
|
|
0.74 |
|
|
2013 |
|
6.56 |
|
|
0.45 |
|
|
2014
(through December 10, 2014) |
|
11.15 |
|
|
5.45 |
|
|
Quarterly information for
the past two fiscal years and subsequent quarters: |
|
|
|
|
|
|
|
2013, quarter ended |
|
|
|
|
|
|
|
December 31 |
|
6.56 |
|
|
2.70 |
|
|
September
30 |
|
2.88 |
|
|
0.50 |
|
|
June 30 |
|
0.73 |
|
|
0.45 |
|
|
March 31
|
|
0.85 |
|
|
0.53 |
|
|
2014, quarter ended
|
|
|
|
|
|
|
|
December 31
(through December 10, 2014) |
|
10.84 |
|
|
5.90 |
|
|
September 30 |
|
11.15 |
|
|
6.70 |
|
|
June 30 |
|
10.84 |
|
|
6.75 |
|
|
March 31 |
|
8.49 |
|
|
5.45 |
|
Nasdaq:
|
|
|
ANY shares
NASDAQ |
|
|
|
|
(in US$) |
|
|
|
|
High |
|
|
Low |
|
|
Annual information for
2014 |
|
|
|
|
|
|
|
2014 (from
July 8, 2014) |
|
10.00 |
|
|
5.21 |
|
|
2014, quarter ended
|
|
|
|
|
|
|
|
December 31
|
|
9.50 |
|
|
5.21 |
|
|
September 30 (from July 8, 2014) |
|
10.00 |
|
|
6.15 |
|
|
2015, quarter ended |
|
|
|
|
|
|
|
September 30 (through July 28, 2015) |
|
5.71 |
|
|
5.03 |
|
|
June 30 |
|
5.17 |
|
|
3.14 |
|
|
March 31 |
|
7.13 |
|
|
3.47 |
|
|
Monthly information for the most recent
six months |
|
|
|
|
|
|
|
February 2015 |
|
4.66 |
|
|
3.47 |
|
|
March 2015
|
|
7.13 |
|
|
3.70 |
|
|
April 2015 |
|
4.27 |
|
|
3.14 |
|
|
May 2015
|
|
4.22 |
|
|
3.32 |
|
|
June 2015 |
|
5.17 |
|
|
3.66 |
|
|
July 2015 |
|
5.71 |
|
|
4.95 |
|
-14-
Fluctuations in the exchange rate between the Canadian dollar
and the U.S. dollar will affect any comparisons of our common shares traded on
the TSXV and our common shares traded on the Nasdaq.
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 such that the enforcement in
Canada of such liabilities and judgements is not certain. Therefore, it may not be possible
to enforce those judgments against us, our directors and officers and some of
the experts named in this prospectus.
OFFERING EXPENSES
The following table lists the costs and expenses payable us in
connection with the sale of the common shares covered by this prospectus other
than any sales commissions or discounts, which expenses will be paid by the
selling shareholders. The estimates do not include expenses related to offerings
of particular securities. Each prospectus supplement describing an offering of
securities will reflect the estimated expenses related to the offering of
securities under that prospectus supplement. All amounts shown are estimates
except for the SEC registration fee.
|
SEC registration fee |
$ |
2060.15 |
|
|
Legal fees and expenses |
|
25,000 |
|
|
Accounting fees and expenses
|
|
5,000 |
|
|
Miscellaneous expenses |
|
5,000 |
|
|
Total |
$ |
37,060.15 |
|
-15-
SHARE CAPITAL
As of August 13, 2015, 39,571,357 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.
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.
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).
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.
LEGAL MATTERS
The validity of the common shares offered hereby will be passed
upon for us by Stikeman Elliot LLP, 1155 René-Lévesque Blvd. West, 40th Floor,
Montréal, QC H3B 3V2.
-16-
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, 2014, and for the year then
ended, included in our Annual Report on Form 40-F for the year ended December
31, 2014, 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.
Collins Barrow Toronto LLP, Collins Barrow Place 11 King Street
West, Suite 700 Toronto, Ontario M5H 4C7, a licensed public accounting firm, has
audited our consolidated financial statements at December 31, 2013 and for the
year ended December 31, 2013 included in our Annual Report on Form 40-F for the
year ended December 31, 2014, 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, Collins Barrow has audited our
consolidated balance sheets, as of December 31, 2013 and 2012, and the related
consolidated statements of operations, equity and comprehensive income (loss),
and cash flows for the fiscal years ended December 31, 2013 and 2012 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.
RSM Deutschland GmbH Wirtschaftsprüfungsgesellschaft,
Friedrichstrasse 188, D-10117 Berlin, has audited the consolidated balance
sheets of the Tandberg Companies, as of December 31, 2013 and 2012, and the
related audited consolidated statements of operations, equity and comprehensive
income (loss), and cash flows for the years ended December 31, 2013 and 2012
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.
-17-
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 9. |
Exhibits and Financial Statement
Schedules |
The exhibits to this registration statement are listed in the
Exhibit Index that appears immediately following the signature pages of this
registration statement. Such Exhibit Index is hereby incorporated in this Item 9
by reference.
(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 percent change in the maximum aggregate
offering price set forth in the Calculation of Registration Fee table in the
effective registration statement.
(iii) To include any material
information with respect to the plan of distribution not previously disclosed in
the registration statement or any material change to such information in the
registration statement.
provided, however, that paragraphs (i), (ii), and (iii)
do not apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in reports filed with or furnished to
the Commission by the registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in the
registration statement, or is contained in a form of prospectus filed pursuant
to Rule 424(b) that is part of the registration statement.
2. That, for the purpose of determining
any liability under the Securities Act of 1933, each such post-effective
amendment shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
3. To remove from registration by means
of a post-effective amendment any of the securities being registered which
remain unsold at the termination of the offering.
4. To file a post-effective amendment
to the registration statement to include any financial statements required by
Item 8.A. of Form 20-F at the start of any delayed offering or throughout a
continuous offering. Financial statements and information otherwise required by
Section 10(a)(3) of the Securities Act need not be furnished, provided, that we
include in the prospectus, by means of a post-effective amendment, financial
statements required pursuant to this paragraph (4) and other information
necessary to ensure that all other information in the prospectus is at least as
current as the date of those financial statements. Notwithstanding the
foregoing, a post-effective amendment need not be filed to include financial
statements and information required by Section 10(a)(3) of the Securities Act or
Rule 3-19 of Regulation S-X if such financial statements and information are
contained in periodic reports filed with or furnished to the SEC by the
Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are
incorporated by reference in this Registration Statement.
5. That, for purposes of determining
liability under the Securities Act of 1933 to any purchaser, if relying on Rule
430B:
(i) Each prospectus filed by the
registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the
registration statement as of the date the filed prospectus was deemed part of
and included in the registration statement; and
(ii) Each prospectus required to
be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration
statement in reliance on Rule 430B relating to an offering made pursuant to Rule
415(a)(1)(i), (vii), or (x) for the purpose of providing the information
required by section 10(a) of the Securities Act of 1933 shall be deemed to be
part of and included in the registration statement as of the earlier of the date
such form of prospectus is first used after effectiveness or the date of the
first contract of sale of securities in the offering described in the
prospectus. As provided in Rule 430B, for liability purposes of the issuer and
any person that is at that date an underwriter, such date shall be deemed to be
a new effective date of the registration statement relating to the securities in
the registration statement to which that prospectus relates, and the offering of
such securities at that time shall be deemed to be the initial bona fide
offering thereof. Provided, however, that no statement made in a
registration statement or prospectus that is part of the registration statement
or made in a document incorporated or deemed incorporated by reference into the
registration statement or prospectus that is part of the registration statement
will, as to a purchaser with a time of contract of sale prior to such effective
date, supersede or modify any statement that was made in the registration
statement or prospectus that was part of the registration statement or made in
any such document immediately prior to such effective date.
(b) The undersigned registrant hereby
undertakes that, for purposes of determining any liability under the Securities
Act of 1933, each filing of the 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.
(c) Insofar as indemnification for
liabilities arising under the Securities Act of 1933 may be permitted to
directors, officers and controlling persons of the registrant pursuant to the
foregoing provisions, or otherwise, the registrant has been advised that in the
opinion of the Commission such indemnification is against public policy as
expressed in the Act and is, therefore, unenforceable. In the event that a claim
for indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
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 13th day of
August, 2015.
SPHERE 3D CORP. |
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By: |
/s/
ERIC L. KELLY |
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Eric L. Kelly |
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Chief Executive Officer
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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 or her attorney-in-fact, each with the power of substitution, for him or her
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 |
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Title |
Date |
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/s/ ERIC L.
KELLY |
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Chairman of the Board and Chief Executive
Officer |
August 13, 2015
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Eric L. Kelly |
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(Principal
Executive Officer) |
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/s/ KURT L.
KALBFLEISCH |
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Chief Financial Officer |
August 13, 2015 |
Kurt L. Kalbfleisch |
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(Principal
Financial and Accounting Officer) |
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/s/ PETER ASHKIN
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Director |
August 13, 2015 |
Peter Ashkin |
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/s/ MARIO
BIASINI |
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Director |
August 13, 2015 |
Mario Biasini |
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/s/ DANIEL J.
BORDESSA |
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Director |
August 13, 2015 |
Daniel J. Bordessa |
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/s/ GLENN M.
BOWMAN |
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Director |
August 13, 2015 |
Glenn M. Bowman |
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/s/ VIVEKANAND
MAHADEVAN |
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Director |
August 13, 2015 |
Vivekanand Mahadevan |
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/s/ PETER
TASSIOPOULOS |
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Director |
August 13, 2015 |
Peter Tassiopoulos |
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EXHIBIT INDEX
Exhibit 4.2
Form of Common Share Certificate
Stikeman Elliott LLP Barristers & Solicitors
1155 René Lévesque Blvd. West, 40th Floor, Montréal, Quebec,
Canada H3B 3V2
Tel: (514) 397-3000 Fax: (514) 397-3222 www.stikeman.com
August 13, 2015
Sphere 3D Corp.
240 Matheson Boulevard East
Mississauga, ON L4Z 1X1
Canada
Dear Sirs/Mesdames:
Re: |
Registration of 4,454,620
common shares of Sphere 3D Corp. |
We have acted as Canadian special
counsel to Sphere 3D Corp., a corporation amalgamated under the Business
Corporations Act (Ontario) (the Company), in connection with the
registration under the United States Securities Act of 1933, as amended,
pursuant to a Registration Statement on Form F-3 (the Registration
Statement), filed on or about the date hereof with the United States
Securities and Exchange Commission, relating to the offer and sale, from time to
time by the selling security holders listed on Schedule "A" hereof, of:
|
(a) |
2,227,310 outstanding common shares of the Company (the
Shares); and |
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(b) |
2,227,310 common shares issuable upon the exercise of
outstanding warrants of the Company (the Warrants Shares and,
collectively with the Shares, the Registration Shares) in
accordance with warrant agreements listed on Schedule "B" hereof (the
Warrants Agreement). |
For the purposes of this opinion,
we have examined copies of the Registration Statement and of the Warrant
Agreements. We have also examined originals or copies, certified or otherwise
identified to our satisfaction, of and relied upon the following documents
(collectively, the Corporate Documents):
|
(a) |
the certificate and articles of amalgamation of the
Company; |
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(b) |
the by-laws of the Company; |
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(c) |
certain resolutions of the Companys directors;
and |
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(d) |
a certificate of an officer of the Company (the
Officers Certificate). |
We also have reviewed such other
documents, and have considered such questions of law, as we have deemed relevant
and necessary as a basis for the opinion expressed herein. We have relied upon
the Corporate Documents without independent investigation of the matters
provided for therein for the purpose of providing our opinion expressed herein.
In examining all documents and in
providing our opinion expressed herein we have assumed that:
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(a) |
all individuals had the requisite legal
capacity; |
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2 |
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(b) |
all signatures are genuine; |
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(c) |
all documents submitted to us as originals are complete
and authentic and all photostatic, certified, telecopied, notarial or
other copies conform to the originals; |
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(d) |
all facts set forth in the official public records,
certificates and documents supplied by public officials or otherwise
conveyed to us by public officials are complete, true and
accurate; |
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(e) |
the certificate of amalgamation of the Company is
conclusive evidence that the Company is amalgamated under the Business
Corporations Act (Ontario); and |
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(f) |
all facts set forth in the certificates supplied by the
respective officers and directors, as applicable, of the Company
including, without limitation, the Officers Certificate, are complete,
true and accurate. |
We express no opinion as to any
laws, or matters governed by any laws, other than the laws of the province of
Ontario and the federal laws of Canada applicable therein. Our opinion is
expressed with respect to the laws in effect on the date of this opinion and we
do not accept any responsibility to take into account or inform the addressee,
or any other person authorized to rely on this opinion, of any changes in law,
facts or other developments subsequent to this date that do or may affect the
opinion we express, nor do we have any obligation to advise you of any other
change in any matter addressed in this opinion or to consider whether it would
be appropriate for any person other than the addressee to rely on our opinion.
Where our opinion expressed
herein refers to the Registration Shares having been issued as being fully-paid
and non-assessable common shares of the Company, such opinion assumes that all
required consideration (in whatever form) has been paid or provided. No opinion
is expressed as to the adequacy of any consideration received.
Based and relying upon the
foregoing, we are of the opinion that the Shares have been duly issued by the
Company as fully paid and non-assessable and the Warrant Shares, when issued
upon exercise of the Warrants as described in the Registration Statement and in
accordance with the terms of their respective Warrant Agreements, will be
validly issued as fully paid and non-assessable.
This opinion has been prepared
for your use in connection with the Registration Statement and is expressed as
of the date hereof. Our opinion is expressly limited to the matters set forth
above and we render no opinion, whether by implication or otherwise, as to any
other matters relating to the Company, the Registration Statement or the
Registration Shares.
We hereby consent to the filing
of this opinion as an exhibit to the Registration Statement and to the reference
to this firm on the cover page and under the caption "Legal Matters". In giving
this consent, we do not admit that we are within the category of persons whose
consent is required under the Act or the rules and regulations promulgated
thereunder. This opinion may not be quoted from or referred to in any documents
other than the Registration Statement as provided for herein without our prior
written consent.
Yours truly,
/s/ Stikeman Elliott LLP
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3 |
Schedule "A"
Selling Security Holders
Countryman Investments Ltd.
Delbrook Enhanced Return Fund
Delbrook Capital Advisors Inc.
GMP Securities LP ITF Lynn Factor
Greenlaw International LP
Laidar Holdings Ltd
MacFarlane Family
Ventures LLC
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4 |
Schedule "B"
Warrant Agreements
Warrant Certificate No.1 for the purchase of 781,250 common
shares, dated May 19, 2015, issued to MacFarlane Family Ventures, LLC
Warrant Certificate No.3 for the purchase of 150,000 common
shares, dated May 22, 2015, issued to Countryman Investments Ltd.
Warrant Certificate No.4 for the purchase of 110,000 common
shares, dated May 22, 2015, issued to Greenlaw International LP
Warrant Certificate No.5 for the purchase of 50,000 common
shares, dated May 29, 2015, issued to Laidar Holdings Ltd
Warrant Certificate No.6 for the purchase of 10,000 common
shares, dated June 1, 2015, issued to Delbrook Enhanced Return Fund
Warrant Certificate No.7 for the purchase of 5,000 common
shares, dated June 1, 2015, issued to Delbrook Capital Advisors Inc.
Warrant Certificate No.8 for the purchase of 10,000 common
shares, dated June 1, 2015, issued to Delbrook Capital Advisors Inc.
Warrant Certificate No.9 for the purchase of 5,000 common
shares, dated June 1, 2015, issued to Delbrook Capital Advisors Inc.
Warrant Certificate No.10 for the purchase of 500,000 common
shares, dated June 30, 2015, issued to GMP Securities LP ITF Lynn Factor
Warrant Certificate No.11 for the purchase of 606,060 common
shares, dated August 13, 2015, issued to MacFarlane Family Ventures LLC
Exhibit 23.1
Collins Barrow Toronto LLP
Collins Barrow Place
11 King Street
West
Suite 700, PO Box 27
Toronto, Ontario
M5H 4C7 Canada
T. 416.480.0160
F. 416.480.2646
www.collinsbarrow.com
Consent of Independent Registered Public Accounting
Firm
The Board of Directors of Sphere 3D Corp.
We consent to the incorporation by reference in this registration statement on
Form F-3 of Sphere 3D Corp., being filed with the United States Securities and
Exchange Commission of:
|
our Independent Auditors Report dated October 14, 2014,
on the consolidated financial statements of Sphere 3D Corp., which
comprise the consolidated balance sheets as at December 31, 2013 and
December 31, 2012 and the consolidated statements of loss and
comprehensive loss, changes in equity and cash flows for the years ended
December 31, 2013 and 2012 and a summary of significant accounting
policies and other explanatory information, prepared in accordance with
International Financial Reporting Standards as issued by the International
Accounting Standards Board; |
|
our Independent Auditors Report dated April 10, 2013, on
the consolidated financial statements of Sphere 3D Corp., which comprise
the consolidated balance sheets as at December 31, 2012 and December 31,
2011 and the consolidated statements of loss and comprehensive loss,
changes in equity and cash flows for the years ended December 31, 2012 and
2011 and a summary of significant accounting policies and other
explanatory information, prepared in accordance with International
Financial Reporting Standards as issued by the International Accounting
Standards Board. |
Licensed Public Accountants
Chartered Accountants
August 13, 2015
Toronto, Canada
Collins Barrow Toronto LLP
Collins Barrow Place
11 King Street
West
Suite 700, PO Box 27
Toronto, Ontario
M5H 4C7 Canada
T. 416.480.0160
F. 416.480.2646
www.collinsbarrow.com
Consent of Independent Registered Public Accounting
Firm
The Board of Directors of Sphere 3D Corp.
We consent to the incorporation by reference in this registration statement on
Form F-3 of Sphere 3D Corp., being filed with the United States Securities and
Exchange Commission of:
|
our Independent Auditors Report dated March 31, 2015, on
the consolidated financial statements of Sphere 3D Corp., which comprise
the consolidated balance sheet as at December 31, 2013 and the
consolidated statements of operations, comprehensive loss, shareholders
equity and cash flows for the year ended December 31, 2013.
|
Licensed Public Accountants
Chartered Accountants
August 13, 2015
Toronto, Canada
Exhibit 23.2
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We consent to the incorporation by reference in this
Registration Statement on Form F-3 of Sphere 3D Corp. of our report dated March
31, 2015, relating to the 2014 consolidated financial statements of Sphere 3D
Corp. (which report expresses an unqualified opinion and includes an explanatory
paragraph regarding Sphere 3D Corp.s going concern uncertainty), appearing in
its Annual Report on Form 40-F for the year ended December 31, 2014, filed with
the Securities and Exchange Commission.
/s/ Moss Adams LLP
San Diego, California
August 13, 2015
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We consent to the incorporation by reference in this
Registration Statement on Form F-3 of Sphere 3D Corp. of our report dated
September 23, 2014, relating to the consolidated financial statements of
Overland Storage, Inc. as of and for the years ended June 30, 2014 and 2013,
appearing in the Registration Statement of Sphere 3D Corp. on Form F-4/A (No.
333-197569), filed with the Securities and Exchange Commission.
/s/ Moss Adams LLP
San Diego, California
August 13, 2015
Exhibit 23.3
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We consent to the incorporation by reference in this
Registration Statement on Form F-3 of Sphere 3D Corp. (the Company) of our
report dated May 14, 2014, with respect to the consolidated financial statements
of Tandberg Data Holdings S.à r.l., which report appears in the Companys
Registration Statement on Form F- 4/A (number 333-197569) filed with the
Securities and Exchange Commission.
/s/ RSM Deutschland GmbH Wirtschaftsprüfungsgesellschaft
Berlin, Germany
August 13, 2015
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