Securities Registration: Employee Benefit Plan (s-8)
January 29 2018 - 4:48PM
Edgar (US Regulatory)
As filed with the Securities and Exchange Commission on
January 29, 2018
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Registration No. __________________
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
___________________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
___________________
SPHERE 3D CORP.
(Exact Name of Registrant as Specified in Its Charter)
___________________
Ontario, Canada
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98-1220792
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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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240 Matheson Blvd. East
Mississauga, Ontario
L4Z 1X1
(Address, Including Zip Code, of Principal Executive
Offices)
___________________
Sphere 3D Corp. 2015 Performance Incentive Plan
Sphere 3D Corp. Employee Stock Purchase Plan
(Full Title of the Plan)
___________________
Eric L. Kelly
Chief Executive
Officer
9112 Spectrum Center Boulevard
San Diego, California
92123
(858) 571-5555
(Name, Address and
Telephone Number, Including Area Code, of Agent for Service)
COPY TO:
Warren T. Lazarow, Esq.
Paul Sieben, Esq.
OMelveny & Myers LLP
2765 Sand Hill Road
Menlo Park, California 94025
(650) 473-2600
___________________
Indicate by check mark whether the registrant is a large
accelerated filer, an accelerated filer, a non-accelerated filer, a smaller
reporting company or an emerging growth company. See the definitions of large
accelerated filer, accelerated filer, smaller reporting company, and
emerging growth company in Rule 12b-2 of the Exchange Act. (Check one):
Large accelerated filer [ ]
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Accelerated
filer
[ ]
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Non-accelerated filer [ ]
(Do not
check if a smaller reporting company)
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Smaller reporting company
[X]
Emerging growth company [X]
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If an emerging growth company, indicate by check mark if the
registrant has elected not to use the extended transition period for complying
with any new or revised financial accounting standards provided pursuant to
Section 7(a)(2)(B) of the Securities Act. [ ]
CALCULATION OF REGISTRATION FEE
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Proposed
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Proposed
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Maximum
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Maximum
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Title of
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Amount
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Offering
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Aggregate
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Amount Of
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Securities
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To Be
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Price
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Offering
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Registration
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To
Be Registered
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Registered
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Per
Share
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Price
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Fee
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Common Shares, no par value per share, issuable pursuant to
awards granted under the Sphere 3D Corp. 2015 Performance Incentive Plan
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1,250,000
(1)
shares
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$2.335
(2)
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$2,918,750
(2)
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$364
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Common Shares, no par value per share, issuable pursuant to
awards granted under the Sphere 3D Corp. Employee Stock Purchase Plan
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220,000
(1)
shares
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$2.335
(2)
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$513,700
(2)
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$64
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TOTAL
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1,470,000
(1)
shares
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$3,432,450
(2)
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$428
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(1)
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This Registration Statement covers, in addition to the
number of common shares, no par value per share (the Common Shares) of
Sphere 3D Corp., a corporation incorporated under the laws of the Province
of Ontario (the Company or the Registrant), stated above, options and
other rights to purchase or acquire the Common Shares covered by this
Registration Statement and, pursuant to Rule 416 under the Securities Act
of 1933, as amended (the Securities Act), an additional indeterminate
number of shares, options and rights that may be offered or issued
pursuant to the Sphere 3D Corp. 2015 Performance Incentive Plan and the
Sphere 3D Corp. Employee Stock Purchase Plan (each a Plan and,
collectively, the Plans) as a result of one or more adjustments under
the Plans to prevent dilution resulting from one or more stock splits,
stock dividends or similar transactions.
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(2)
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Estimated solely for the purpose of calculating the
registration fee in accordance with Rule 457(h) and 457(c) under the
Securities Act, based upon the average of the high and low prices of the
Common Shares on January 23, 2018 (which is within five business days
prior to the date of this filing), as quoted on the Nasdaq Global Select
Market.
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The Exhibit Index for this Registration Statement is at page
7.
EXPLANATORY NOTE
This Registration Statement is filed by the Company to register
additional securities issuable pursuant to the Plans and consists of only those
items required by General Instruction E to Form S-8.
__________________________
PART I
INFORMATION REQUIRED IN THE
SECTION 10(a) PROSPECTUS
The document(s) containing the information specified in Part I of Form
S-8 will be sent or given to participants as specified by Securities Act Rule
428(b)(1).
PART II
INFORMATION REQUIRED IN THE
REGISTRATION STATEMENT
Item
3.
Incorporation of Certain Documents by Reference
The following documents of the Company filed with the Securities and
Exchange Commission (the Commission) are incorporated herein by reference:
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(a)
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The Registrants Registration Statements on Form S-8,
filed with the Commission on June 25, 2015 (Commission File No.
333-205236), November 15, 2016 (Commission File No. 333-214605), February
24, 2017 (Commission File No. 333-216209) and August 24, 2017 (Commission
File No. 333-220152);
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(b)
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The Registrants Annual Report on Form 20-F (File No.
001-36532) for its fiscal year ended December 31, 2016, filed with the
Commission on March 31, 2017 (the Form 20-F), which includes the audited
consolidated balance sheets of the Registrant and subsidiaries as of
December 31, 2016 and 2015, and the related audited consolidated
statements of operations, equity and comprehensive income (loss), and cash
flows for each of the years in the three-year period ended December 31,
2016;
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(c)
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The description of the Registrants common shares
contained in its Registration Statement on Form 8-A (File No. 001-36532)
filed with the Commission on July 7, 2014 pursuant to Section 12 of the
Securities Exchange Act of 1934, as amended (the Exchange Act), and any
other amendment or report filed for the purpose of updating such
description; and
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(d)
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All other reports filed by the Registrant pursuant to
Section 13(a) or 15(d) of the Exchange Act since December 31,
2016.
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All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended
(the Exchange Act), and all Reports of Foreign Private Issuer on Form 6-K (or
portions thereof) subsequently furnished to the Commission that are identified
in such form as being incorporated by reference into this Registration Statement
prior to the filing of a post-effective amendment which indicates that all
securities offered hereby have been sold or which deregisters all securities
then remaining unsold, shall be deemed to be incorporated by reference into this
Registration Statement and to be a part hereof from the date of filing of such
documents; provided, however, that unless otherwise identified, documents or
information deemed to have been furnished and not filed in accordance with
Commission rules shall not be deemed incorporated by reference into this
Registration Statement. Any statement contained herein or in a document, all or
a portion of which is incorporated or deemed to be incorporated by reference
herein, shall be deemed to be modified or superseded for purposes of this
Registration Statement to the extent that a statement contained herein or in any
other subsequently filed document which also is or is deemed to be incorporated
by reference herein modifies or supersedes such statement. Any such statement so
modified or superseded shall not be deemed, except as so modified or amended, to
constitute a part of this Registration Statement.
Item
5.
Interests of Named Experts and Counsel
Not applicable.
Item
8.
Exhibits
See the attached Exhibit Index at page 7, which is incorporated herein
by reference.
SIGNATURES
Pursuant to the requirements of the Securities Act, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Form S-8
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of San Jose, State of California, on January 29,
2018.
SPHERE 3D CORP.
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By:
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/s/ Eric Kelly
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Eric Kelly
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Chief Executive Officer
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POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints
Eric Kelly and Peter Tassiopoulos, or either one or both of them, as his or her
true and lawful attorneys-in-fact and agents, with full power of substitution
and resubstitution, for him or her and in his or her name, place, and stead, in
any and all capacities, to sign any and all amendments (including post-effective
amendments, exhibits thereto and other documents in connection therewith) to
this Registration Statement, and to file the same, with all exhibits thereto,
and other documents in connection therewith, with the Commission, granting unto
said attorneys-in-fact and agents, and each of them, full power and authority to
do and perform each and every act and thing requisite and necessary to be done
in and about the premises, as fully to all intents and purposes as he or she
might or could do in person, hereby ratifying and confirming all that each of
said attorneys-in-fact and agents, or his substitute or substitutes, may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
Signature
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Title
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Date
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/s/ Eric Kelly
Eric Kelly
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Chairman of the Board and Chief
Executive Officer (Principal Executive Officer)
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January 29, 2018
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/s/ Kurt Kalbfleisch
Kurt Kalbfleisch
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Chief Financial Officer
(Principal Financial and Accounting Officer)
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January 29, 2018
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/s/ Cheemin Bo-Linn
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Director
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January 29, 2018
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Cheemin Bo-Linn
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/s/ Vivekanand Mahadevan
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Director
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January 29, 2018
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Vivekanand Mahadevan
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/s/ Duncan McEwan
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Director
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January 29, 2018
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Duncan McEwan
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/s/ Peter Tassiopoulos
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Director
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January 29, 2018
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Peter Tassiopoulos
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SIGNATURE OF AUTHORIZED REPRESENTATIVE IN THE UNITED
STATES
Pursuant to the requirements of the Securities
Act, the undersigned, the duly authorized representative in the United States of
the Registrant, has signed this registration statement in the City of San Jose,
State of California on January 29, 2018.
AUTHORIZED U.S. REPRESENTATIVE
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By:
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/s/ Eric Kelly
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Eric Kelly
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Chairman of the Board and Chief
Executive Officer
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6
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