Overland Storage Inc - Securities Registration: Employee Benefit Plan (S-8)
04 January 2008 - 10:02PM
Edgar (US Regulatory)
As filed with the Securities and Exchange Commission
on January 3, 2008
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
OVERLAND STORAGE, INC.
(Exact
Name of registrant as Specified in its Charter)
California
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95-3535285
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(State or Other Jurisdiction of
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(I.R.S. Employer
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Incorporation or Organization)
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Identification No.)
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4820
Overland Avenue, San Diego, CA 92123
(Address of Principal Executive Offices) (Zip Code)
2003
EQUITY INCENTIVE PLAN
(Full Title of
the Plan)
Vernon A.
LoForti
President and Chief Executive Officer
Overland Storage, Inc.
4820 Overland Avenue
San Diego, CA 92123
(Name and Address
of Agent For Service)
(858)
571-5555
(Telephone Number, Including Area Code, of Agent For Service)
Copy to:
John J.
Hentrich, Esq.
John D.
Tishler, Esq.
Robert L.
Wernli, Jr., Esq.
Sheppard,
Mullin, Richter & Hampton LLP
12275
El Camino Real, Suite 200
San Diego, California 92130-2006
CALCULATION
OF REGISTRATION FEE
Title of Each Class of Securities to be
Registered
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Amount to be
Registered (1)
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Proposed
Maximum
Offering Price
per Share
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Proposed
Maximum
Aggregate
Offering
Price
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Amount of
Registration
Fee
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Common Stock, no
par value per share
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831,700
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$
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1.455
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(2)
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$
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1,210,124
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(2)
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$
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47.56
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(1)
Includes such indeterminable number of
additional shares as may be issued as a result of an adjustment in the shares
in the event of a stock split, stock
dividend or similar capital adjustment, as required by the plans.
(2)
Estimated solely for the purpose of
calculating the amount of the registration fee pursuant to Rule 457 of the
Securities Act of 1933. The price per
share and aggregate offering price are based upon the average of the high and
low sales price on the NASDAQ Global Market on December 31, 2007.
EXPLANATORY NOTE
This registration statement registers 831,700 additional shares of
common stock, no par value per share, that may be issued pursuant to stock
awards under the Overland Storage, Inc. 2003 Equity Incentive Plan.
As permitted by the rules of the Securities and Exchange
Commission, this registration statement omits the information specified in Part I
of Form S-8. Document(s) containing
the information required by Part I of this registration statement will be
sent or given to participants in the plan subject to this registration
statement as specified by Rule 428(b)(1) under the Securities Act of
1933 (the Securities Act). Such
document(s) are not filed with the SEC pursuant to Rule 424 under the
Securities Act. Such document(s) and
the documents incorporated by reference pursuant to Item 3 of Part II
hereof, taken together, constitute a prospectus that meets the requirements of Section 10(a) of
the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3.
Incorporation of Documents by Reference
The following documents
of the registrant filed or to be filed with the Securities and Exchange
Commission (the Commission) by the registrant are incorporated by reference
in this registration statement:
(a) Annual report on Form 10-K for
the fiscal year ended July 1, 2007;
(b) Quarterly report on Form 10-Q
for the quarter ended September 30, 2007;
(c) Current reports on Form 8-K
filed with the Commission on August 9, 2007, September 24, 2007, October 1,
2007 and November 16, 2007; and
(d) The description of the registrants
common stock contained in the Form 8-A registration statement filed with
the SEC on January 29, 1997, including any amendment or reports filed for
the purpose of updating such description.
In
addition, all documents subsequently filed by the registrant pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934
after the date of this registration statement and prior to the filing of a
post-effective amendment which indicates that all securities offered have been
sold or which deregisters all securities then remaining unsold, shall be deemed
to be incorporated by reference in this registration statement and to be part
hereof from the date of filing of such documents.
Any statement contained
in a document incorporated or deemed to be incorporated by reference herein
shall be deemed to be modified or superseded for the purposes of this
registration statement to the extent that a statement contained herein or in
any other subsequently filed document which also is or deemed to be
incorporated by reference herein modifies or supersedes such statement. Any
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this registration statement.
Item 4.
Description of Securities
Not applicable.
Item 5.
Interests of Named Experts and Counsel
The validity of the
common stock offered hereby will be passed upon for the registrant by Sheppard,
Mullin, Richter & Hampton LLP, San Diego, California.
Item 6.
Indemnification of Director and Officers
Sections 204(a)(10),
204(a)(11), 204.5 and 317 of the California General Corporation Law (CGCL)
permit a corporation to indemnify its directors, officers, employees and other
agents in terms sufficiently broad to permit indemnification (including
reimbursement for expenses) under certain circumstances for liabilities arising
under the Securities Act of 1933 (the Securities Act). The registrants
Amended and Restated Articles of Incorporation provide that the liability of
directors for monetary damages shall be eliminated to the fullest extent
permitted under California law. In addition, the registrants Amended and
Restated Articles of Incorporation provide that the registrant is authorized to
provide indemnification of its directors, officers, employees and agents in
excess of the indemnification otherwise permitted by Section 317 of the
CGCL, subject only to the applicable limits set forth in Section 204 of
the CGCL with respect to actions for breach of duty to the registrant or its
shareholders.
The registrants Amended
and Restated Bylaws provide that, to the maximum extent permitted by the CGCL,
the registrant shall indemnify each of its directors and officers against
expenses, judgments, fines, settlements and other amounts actually and
reasonably incurred in connection with any proceedings arising by reason of the
fact that any such person is or was a director or officer of the registrant.
The registrants Amended and Restated Bylaws also provide that the registrant
shall advance to each director or officer expenses incurred in defending any
such proceeding to the maximum extent permitted by the CGCL. In addition, the
registrants Amended and Restated Bylaws provide that the board of directors
may in its discretion provide by resolution for indemnification of, or advance
of expenses to, other agents.
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The registrant has
entered into indemnification agreements with its directors and executive
officers, in addition to the indemnification provided for in the Amended and
Restated Articles of Incorporation and Amended and Restated Bylaws. These
indemnification agreements provide for indemnification to the fullest extent
permitted by law, and set forth specific procedures to be followed when
indemnification is sought.
The registrant currently
maintains directors and officers liability insurance to provide directors and
officers with insurance coverage for losses arising from claims based on
breaches of duty, negligence, errors and other wrongful acts.
Item 7.
Exemption from Registration Claimed.
Not Applicable
Item 8.
Exhibits
See Index of Exhibits.
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 the registration statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information 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
Commission pursuant to Rule 424(b) if, in the aggregate, the changes
in volume and price represent no more than a 20% change in the maximum
aggregate offering price set forth in the Calculation of Registration Fee
table in the effective registration statement; and
(iii)
To include any material information with respect to
the plan of distribution not previously disclosed in the registration statement
or any material change to such information in the registration statement;
provided
,
however
, that
subsections (i) and (ii) next above do not apply if the information
required to be included in a post-effective amendment by those subsections 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;
(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; and
(b)
The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act, 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 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or otherwise,
the
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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.
3
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 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 3
rd
day of January, 2008.
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OVERLAND
STORAGE, INC.
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By:
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/s/ Vernon A. LoForti
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Vernon A. LoForti
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President and Chief
Executive Officer
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POWER OF
ATTORNEY
We, the undersigned
directors and/or officers of Overland Storage, Inc., hereby severally
constitute and appoint Vernon A. LoForti, President and Chief Executive
Officer, and Kurt L. Kalbfleisch, Vice President, Finance and Interim Chief
Financial Officer, and each of them individually, with full powers of
substitution and resubstitution, our true and lawful attorneys, with full
powers to them and each of them to sign for us, in our names and in the
capacities indicated below, the registration statement on Form S-8 filed
with the Commission, and any and all amendments to such registration statement
(including post-effective amendments), and any registration statement filed
pursuant to Rule 462(b) under the Securities Act in connection with
the registration under the Securities Act of the registrants equity
securities, and to file or cause to be filed the same, with all exhibits
thereto and other documents in connection therewith, with the Commission,
granting unto said attorneys, 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
connection therewith, as fully to all intents and purposes as each of them might
or could do in person, and hereby ratifying and confirming all that said
attorneys, and each of them, or their substitute or substitutes, shall do or
cause to be done by virtue of this power of attorney.
Pursuant to the
requirements of the Securities Act this registration statement has been signed
by the following persons in the capacities indicated below.
Signature
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Title(s)
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Date
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/s/ Vernon A. LoForti
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President, Chief
Executive Officer,
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January 3, 2008
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Vernon A. LoForti
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Secretary and Director
(Principal
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Executive
Officer)
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/s/ Kurt L.
Kalbfleisch
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Vice President,
Finance and Interim
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January 3, 2008
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Kurt L.
Kalbfleisch
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Chief Financial
Officer (Principal
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Financial and
Accounting Officer)
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/s/ Robert A.
Degan
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Director
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January 3, 2008
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Robert A. Degan
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/s/ Nora J.
Denzel
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Director
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January 3, 2008
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Nora J. Denzel
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/s/ Eric L.
Kelly
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Director
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January 3, 2008
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Eric L. Kelly
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/s/ Scott
McClendon
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Chairman of the
Board
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January 3, 2008
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Scott McClendon
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/s/ William J.
Miller
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Director
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January 3, 2008
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William J.
Miller
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/s/ Michael
Norkus
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Director
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January 3, 2008
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Michael Norkus
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4
INDEX OF
EXHIBITS
5.1
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Opinion
of Sheppard, Mullin, Richter & Hampton LLP.
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23.1
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Consent
of PricewaterhouseCoopers LLP.
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23.2
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Consent
of Sheppard, Mullin, Richter & Hampton LLP (contained in the opinion
of counsel filed as Exhibit 5.1 to this registration statement).
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24.1
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Power
of Attorney (set forth on the signature page of this registration
statement).
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99.1
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Overland
Storage, Inc. 2003 Equity Incentive Plan (1)
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(1)
Incorporated by reference from Exhibit 99.1
to the registrants Form 8-K filed with the Commission on November 16,
2007.
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