OVRL (MM)

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

 

 

FORM 8-K

 

 

CURRENT REPORT

Pursuant to Section 13 or 15(d)

of the Securities Exchange Act of 1934

Date of Report (date of earliest event reported): December 2, 2014 (December 1, 2014)

 

 

OVERLAND STORAGE, INC.

(Exact name of registrant as specified in its charter)

 

 

 

California		000-22071		95-3535285
(State or other jurisdiction of incorporation)		(Commission File Number)		(I.R.S. Employer Identification No.)

9112 Spectrum Center Boulevard, San Diego, California 92123

(Address of principal executive offices, including zip code)

(858) 571-5555

(Registrant’s telephone number, including area code)

Not Applicable

(Former name or former address, if changed since last report)

 

 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):

 

¨	Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

 

¨	Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

 

¨	Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

 

¨	Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

 

 

 

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Item 2.01

Completion of Acquisition or Disposition of Assets.

On December 2, 2014, Overland Storage, Inc. (the “Company”) announced the consummation of the previously announced merger of the Company with S3D Acquisition Company (“Merger Subsidiary”), a California corporation and wholly-owned subsidiary of Sphere 3D Corporation (“Parent”), an Ontario corporation, with the Company surviving such merger as a wholly owned subsidiary of Parent (the “Merger”). As previously announced, the Agreement and Plan of Merger by and among the Company, Merger Subsidiary and Parent dated as of May 15, 2014, as amended on October 13, 2014 (the “Merger Agreement”) and the transactions contemplated thereby, including the Merger, were adopted and approved at a special meeting of the Company’s shareholders on November 28, 2014. The Company filed the agreement of merger and related certificates required under California law with the Secretary of State of the State of California on December 1, 2014.

At the effective time and as a result of the Merger, each share of the Company’s common stock (“Stock”) issued and outstanding immediately prior to the effective time of the Merger was converted into the right to receive 0.46385 shares of Parent’s common stock for each share of Stock currently held, in accordance with the Merger Agreement.

The foregoing description of the Merger does not purport to be complete and is qualified in its entirety by reference to the full text of the Merger Agreement, which is included as Exhibit 2.1 to the Company’s Current Report on Form 8-K filed on May 19, 2014 and which is incorporated by reference herein.

 

Item 3.01

Notice of Delisting or Failure to Satisfy a Continued Listing Rule or Standard; Transfer of Listing.

In connection with the closing of the Merger, the Company notified the NASDAQ Capital Market (“Nasdaq”) on December 1, 2014 that the Merger was consummated, and trading of the ordinary shares of the Company on Nasdaq has been suspended. The Company has also filed with the Securities and Exchange Commission (the “SEC”) an application on Form 25 to delist the Company’s ordinary shares from Nasdaq and deregister the Company’s ordinary shares under Section 12(b) of the Securities Exchange Act of 1934 (the “Exchange Act”).

The Company intends to file with the SEC a certification on Form 15 requesting the deregistration of the Company’s ordinary shares under Section 12(g) of the Exchange Act and the suspension of the Company’s reporting obligations under Section 15(d) of the Exchange Act.

 

Item 3.03

Material Modification to Rights of Security Holders.

The information set forth in Item 2.01 is incorporated herein by reference.

 

Item 5.01

Changes in Control of Registrant.

Upon the closing of the Merger, on December 1, 2014, a change in control of the Company occurred, and the Company now is a wholly owned subsidiary of Parent. See Items 2.01 and 3.03 of this Current Report on Form 8-K, which are incorporated herein by reference.

 

Item 5.02

Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangement of Certain Officers.

On December 1, 2014, Scott McClendon, Daniel Bordessa, Robert A. Degan, Joseph De Perio, Nils Hoff and Vivekanand Mahadevan resigned as directors of the Company, with such resignations effective as of the closing of the Merger.

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Item 5.03

Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.

Pursuant to the terms of the Merger Agreement, at the effective time of the Merger, the Articles of Incorporation of the Company were amended and restated in their entirety. The Amended and Restated Articles of Incorporation are filed as Exhibit 3.1 hereto and are incorporated by reference herein.

 

Item 8.01

Other Events

On December 1, 2014, the Company issued a press release regarding the consummation of the Merger and the delisting of the Company’s ordinary shares. A copy of such press release is attached hereto as Exhibit 99.1 and is incorporated herein by reference.

 

Item 9.01

Financial Statements and Exhibits

(d) Exhibits

 

2.1		Agreement and Plan of Merger dated May 15, 2014 (incorporated by reference to Exhibit 2.1 to the Company’s Form 8-K filed on May 19, 2014)
3.1		Amended and Restated Articles of Incorporation of Overland Storage, Inc.
99.1		Press Release dated December 2, 2014

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Signature

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

 

		OVERLAND STORAGE, INC.
Date: December 2, 2014		/s/ Eric L. Kelly
		Name: Eric L. Kelly Title: President and Chief Executive Officer

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Exhibit Index

 

Exhibit Number		Exhibit Title
2.1		Agreement and Plan of Merger dated May 15, 2014 (incorporated by reference to Exhibit 2.1 to the Company’s Form 8-K filed on May 19, 2014)
3.1		Amended and Restated Articles of Incorporation of Overland Storage, Inc.
99.1		Press Release dated December 2, 2014

Exhibit 3.1

SECOND AMENDED AND RESTATED ARTICLES OF INCORPORATION

OF

OVERLAND STORAGE, INC.

The undersigned certify that:

1. They are the President and Chief Executive Officer and the Senior Vice President, Chief Financial Officer and Secretary, respectively, of Overland Storage, Inc., a California corporation (this “Corporation”).

2. The Amended and Restated Articles of Incorporation of this Corporation are amended and restated in their entirety to read as follows:

NAME

One: The name of the corporation is Overland Storage, Inc.

PURPOSE

Two: The purpose of the corporation is to engage in any lawful act or activity for which a corporation may be organized under the General Corporation Law of California other than the banking business, the trust company business or the practice of a profession permitted to be incorporated by the California Corporations Code.

AUTHORIZED SHARES

Three: The corporation is authorized to issue only one class of shares of stock; the total number of shares of stock which the corporation shall have the authority to issue is one thousand (1,000) shares of Common Stock, par value $0.001 per share.

LIMITATION ON LIABILITY OF DIRECTORS

AND AUTHORITY TO INDEMNIFY AGENTS

Four: The liability of directors of the corporation for monetary damages shall be eliminated to the fullest extent permissible under California law.

The corporation is authorized to provide indemnification of agents (as defined in Section 317 of the California Corporations Code) for breach of duty to the corporation and its shareholders through bylaw provisions, agreements with agents, vote of shareholders or disinterested directors, or otherwise, in excess of the indemnification otherwise permitted by Section 317 of the California Corporations Code, subject only to the applicable limits set forth in Section 204 of the California Corporations Code.

3. The foregoing amendment and restatement of Articles of Incorporation of this Corporation has been duly approved by the Board of Directors.

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4. The foregoing amendment and restatement of Articles of Incorporation has been duly approved by the required vote of shareholders in accordance with Section 902 of the California Corporations Code. The total number of outstanding shares of the Corporation is one thousand (1,000). The number of shares voting in favor of the amendment equaled or exceeded the vote required. The percentage vote required was more than 50%.

[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]

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We further declare under penalty of perjury under the laws of the State of California that the matters set forth in this certificate are true and correct of our own knowledge.

DATE: December 1, 2014.

 

Exhibit 99.1

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Overland Storage and Sphere 3D Complete Merger

Combination Creates Leading Global Virtualization and Enterprise-Class Data Management Solutions Company

SAN JOSE, Calif. and MISSISSAUGA, Ontario – December 2, 2014 – Sphere 3D Corporation (TSX-V: ANY, NASDAQ:ANY), a leading provider of virtualization technology solutions, and Overland Storage^®, Inc., a trusted global provider of unified data management and data protection solutions across the data lifecycle, today announced the successful completion of their previously-announced merger. The transaction was previously approved by the boards of directors of both companies, and over 99% of Overland’s shares voted at the special meeting of Overland’s shareholders held on Nov. 28 were voted in favor of approving the merger.

The integration of the Overland Storage, Tandberg Data, V3 Systems, and Sphere 3D brands positions the company to deliver a comprehensive and innovative portfolio of virtualization and cloud solutions. Through offerings designed for active data and data at rest, the company is able to address the rapidly growing cloud, virtualization and data storage markets in the software-defined IT arena.

As per the terms of the merger, Overland has become a wholly-owned subsidiary of Sphere 3D, and Overland’s common stock will no longer trade on the NASDAQ Capital Market. Each issued and outstanding share of Overland common stock immediately prior to the merger has been converted into the right to receive 0.46385 of a Sphere 3D common share. The common share of the combined company, named Sphere 3D Corporation, will continue to trade on the NASDAQ Global Market under the symbol “ANY” as well as on the TSX-V under the symbol “ANY”. Sphere 3D, however intends to delist its common shares from the TSX-V and continue to be listed on the NASDAQ Global Market.

“In addition to creating a world-class technology company, this combination underscores our vision to deliver a full range of the most innovative end-to-end solutions designed as purpose-built building blocks for the software-defined IT era,” said Eric Kelly, Chairman and CEO of Sphere 3D. “Our mission is to securely deliver applications, desktops and data any place and on any device while meeting the most stringent of IT requirements. Adding the Overland and Tandberg Data storage portfolio to Sphere 3D’s next-generation virtualization and cloud solutions enables us to accelerate the pace of our innovation and to create a compelling strategic advantage and a firm foundation for our future growth.”

“This merger transaction marks a significant milestone for Sphere 3D and the culmination of many months of hard work by both organizations. We look forward to coupling the expertise, experience and capabilities of our teams, and working together to accelerate innovation and market adoption of our disruptive approach to virtualization, converged infrastructure and data management solutions,” said Peter Tassiopoulos, Vice Chairman and President of Sphere 3D. “Moving forward, Overland’s existing scale, infrastructure and resources position us to further expand the footprint and awareness of Sphere 3D’s virtualization platform, providing key partnerships and market opportunities to create long-term value for our shareholders.”

After closing the transaction, Sphere 3D reorganized its senior management suite and expanded its Board of Directors, to position itself for future growth. Eric Kelly, Chairman of Sphere 3D, remains Chairman and has also been appointed Chief Executive Officer of Sphere 3D. Peter Tassiopoulos, the former CEO of Sphere 3D, has been appointed Vice Chairman and President of Sphere 3D. Kurt Kalbfleisch, the former Chief Financial

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Officer of Overland, has been appointed as the CFO of Sphere 3D. Vivekanand Mahadevan and Daniel Bordessa, former directors of Overland, have joined Sphere 3D’s Board of Directors, which also includes existing Board members Peter Ashkin, Mario Biasini, Glenn M. Bowman, Eric Kelly and Peter Tassiopoulos.

 

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Daniel (Dan) Bordessa has been appointed a director of Sphere 3D. Dan is currently a partner of Cyrus Capital Partners, L.P. and Cyrus Capital Partners Europe, L.P. Prior to joining Cyrus Capital, Mr. Bordessa was an Executive Director at Lazard where he was responsible for providing restructuring and mergers and acquisitions advice. While at Lazard, Mr. Bordessa advised on many of Europe’s largest restructurings and was a frequent speaker at industry conferences and other events. Mr. Bordessa has also worked at National Bank Financial, the investment banking arm of the National Bank of Canada. Mr. Bordessa has an MBA from the Schulich School of Business at York University in Toronto and holds an Honors Bachelor of Commerce degree.

 

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Vivekanand (Vic) Mahadevan has been appointed a director of Sphere 3D. Vic has over 25 years of senior level strategic planning and marketing experience. He was the Chief Strategy Officer at NetApp from 2010 until October 2012 and prior to that time served as Vice President of Marketing for LSI Corporation. Prior to LSI Corporation, Vic was Chief Executive Officer for Deeya Energy and has also held senior management positions with leading storage and systems management companies including BMC Software, Compaq, Ivita, and Maxxan Systems. Vic holds an MBA in Marketing and MS in Engineering from the University of Iowa as well a degree in Mechanical Engineering from the Indian Institute of Technology.

“I would like to thank our former directors, Chairman Scott McClendon, Robert A. Degan, Joseph A. De Perio, and Nils Hoff, for their leadership and service to Overland Storage,” said Eric Kelly.

About Sphere 3D

Sphere 3D Corporation (TSX-V: ANY, NASDAQ: ANY) is a virtualization technology solution provider with a portfolio of products that address the complete data continuum from active data to data at rest. Dedicated to continue to lead through innovation, Sphere 3D enables 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. Sphere 3D’s Glassware 2.0™ platform delivers virtualization of some of the most demanding applications in the marketplace today, making it easy to move applications from a physical PC or workstation to a virtual environment. Sphere 3D’s V3 converged infrastructure solutions include one of the industry’s first purpose-built appliances for virtualization and the Desktop Cloud Orchestrator management software for VDI. Overland Storage and Tandberg Data, wholly-owned subsidiaries of Sphere 3D, provide an integrated range of technologies and services for primary, nearline, offline, and archival data storage that make it easy and cost-effective to manage different tiers of information over the data lifecycle. For additional information, visit www.sphere3d.com, www.overlandstorage.com, and www.tandbergdata.com.

Overland Storage and the Overland logo are trademarks of Overland Storage, Inc., and Tandberg Data is a trademark of Tandberg Data Holdings, S.à r.l. that may be registered in some jurisdictions. All other trademarks are the property of their respective owners.

Safe Harbor Statement

This press release contains forward-looking statements that involve risks, uncertainties, and assumptions that are difficult to predict. Actual results and the timing of events could differ materially from those anticipated in such forward-looking statements as a result of risks and uncertainties including, without limitation, unforeseen changes in the course of the integration of the Sphere 3D, Overland and Tandberg businesses; any increase in our cash needs; possible actions by customers, suppliers, competitors or regulatory authorities; other risks detailed in the Form F-4/A we filed with the SEC; and other risks detailed from time to time in our periodic reports contained in our Annual Information Form and other filings with Canadian securities regulators (www.sedar.com) and in Overland’s prior periodic reports filed with the United States Securities and Exchange Commission (www.sec.gov). We undertake no obligation to update any forward-looking statement, whether

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written or oral, that may be made from time to time, whether as a result of new information, future developments or otherwise.

Media Contact:

Pattie Adams

Director, Global Corporate Communications

+1 408/283-4779

padams@overlandstorage.com

Investor Contact:

MKR Group Inc.

Todd Kehrli or Jim Byers

+1 323/468-2300

ovrl@mkr-group.com

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