As filed with the Securities and Exchange Commission on March 13, 2014
Registration No. 333-173542
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Post-Effective Amendment No. 5
to
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Overland Storage, Inc.
(Exact Name of Registrant as Specified in Its Charter)
| California | 3572 | 95-3535285 | ||
| (State or Other Jurisdiction of Incorporation or Organization) |
(Primary Standard Industrial Classification Code Number) |
(I.R.S. Employer Identification Number) |
9112 Spectrum Center Boulevard
San Diego, California 92123
(858) 571-5555
(Address, including zip code, and telephone number, including area code, of registrant’s principal executive offices)
Eric L. Kelly
President and Chief Executive Officer
9112 Spectrum Center Boulevard
San Diego, California 92123
(858) 571-5555
(Name, Address, Including Zip Code, and Telephone Number, Including Area Code, of Agent for Service)
Copies To:
Warren T. Lazarow, Esq.
Paul L. Sieben, Esq.
O’Melveny & 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 Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, 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 registration statement for the same offering. ¨
If this Form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing with the Commission pursuant to Rule 462(e) of 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.D. filed to register additional securities or additional classes of securities pursuant to Rule 413(b) of the Securities Act, check the following box. ¨
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act. (Check one):
| Large accelerated filer | ¨ | Accelerated filer | ¨ | |||||
| Non-accelerated filer | ¨ | (Do not check if a smaller reporting company) | Smaller reporting company | x |
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.
EXPLANATORY NOTE
This Post-Effective Amendment No. 5 (this “Amendment”) to Form S-3 Registration Statement (Registration No. 333-173542) (the “Registration Statement”) is being filed as an exhibit-only filing to re-file Exhibit 5.1 previously filed with post-effective amendment No. 4 to the Registration Statement, which was filed with the Securities and Exchange Commission on February 28, 2014. Accordingly, this Amendment consists only of the facing page, this explanatory note, Item 16 of Part II of the Registration Statement, the signature page to the Registration Statement, the exhibit index and the re-filed Exhibit 5.1. The prospectus and the balance of Part II of the Registration Statement are unchanged and have been omitted.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
| Item 16. | Exhibits and Financial Statement Schedules |
(a) Exhibits
EXHIBIT INDEX
The following documents are filed as exhibits to this registration statement:
| Exhibit No. |
Description | |
| 2.1 | Asset Purchase Agreement dated June 27, 2008 between the Company and Adaptec, Inc. (incorporated by reference to the Company’s Form 8-K filed on July 3, 2008). ++ | |
| 4.1 | Specimen stock certificate (incorporated by reference to the Company’s Form 10-Q filed on February 10, 2010). | |
| 4.2 | Shareholder Rights Agreement dated August 22, 2005 between the Company and Wells Fargo Bank, N.A., as Transfer Agent (incorporated by reference to the Company’s Form 8-K filed on August 26, 2005). | |
| 4.3 | Amendment No. 1 to Shareholder Rights Agreement dated March 21, 2011 (incorporated by reference to the Company’s Form 8-K filed on March 22, 2011). | |
| 4.4 | Common Stock Purchase Warrant between the Company and Roth Capital Partners, LLC dated November 4, 2009 (incorporated by reference to the Company’s Form 10-Q filed on February 10, 2010). | |
| 4.5 | Form of Common Stock Purchase Warrant dated February 18, 2010 (incorporated by reference to the Company’s Form 8-K filed on February 24, 2010). | |
| 4.6 | Form of Registration Rights Agreement dated February 22, 2010 (incorporated by reference to the Company’s Form 8-K filed on February 24, 2010). | |
| 4.7 | Form of Common Stock Purchase Warrant dated March 16, 2011 (incorporated by reference to the Company’s Form 8-K filed on March 22, 2011). | |
| 4.8 | Form of Registration Rights Agreement dated March 21, 2011 (incorporated by reference to the Company’s Form 8-K filed on March 22, 2011). | |
| 5.1* | Opinion of O’Melveny & Myers LLP. | |
| 23.1** | Consent of Moss Adams LLP, Independent Registered Public Accounting Firm. | |
| 23.2** |
Consent of RSM Deutschland GmbH Wirtschaftsprüfungsgesellschaft, Independent Registered Public Accounting Firm. | |
| 23.3* | Consent of O’Melveny & Myers LLP (included in Exhibit 5.1). | |
| 24.1** | Power of Attorney. | |
| ++ | Certain schedules and similar attachments have been omitted pursuant to Item 601(b)(2) of Regulation S-K. A copy of the omitted schedules and similar attachments will be provided supplementally to the SEC upon request. |
| * | Filed herewith. |
| ** | Previously filed. |
II-1
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 S-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 Jose, State of California, on this 13th day of March, 2014.
| OVERLAND STORAGE, INC. | ||
| By: | /s/ Eric L. Kelly | |
| Eric L. Kelly | ||
| President and Chief Executive Officer | ||
Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in their capacities and on the date indicated.
| Signature |
Title |
Date | ||||
| /s/ Eric L. Kelly Eric L. Kelly |
President, Chief Executive Officer and Director (Principal Executive Officer) |
March 13, 2014 | ||||
| /s/ Kurt L. Kalbfleisch Kurt L. Kalbfleisch |
Senior Vice President and Chief Financial Officer (Principal Financial and Accounting Officer) | March 13, 2014 | ||||
| * Robert A. Degan |
Director | March 13, 2014 | ||||
| * Joseph De Perio |
Director | March 13, 2014 | ||||
| * Vivekanand Mahadevan |
Director | March 13, 2014 | ||||
| * Scott McClendon |
Executive Chairperson of the Board of Directors | March 13, 2014 | ||||
| * By: |
/s/ Kurt L. Kalbfleisch Kurt L. Kalbfleisch Attorney-In-Fact |
|||||
EXHIBIT INDEX
The following documents are filed as exhibits to this registration statement:
| Exhibit No. |
Description | |
| 2.1 | Asset Purchase Agreement dated June 27, 2008 between the Company and Adaptec, Inc. (incorporated by reference to the Company’s Form 8-K filed on July 3, 2008). ++ | |
| 4.1 | Specimen stock certificate (incorporated by reference to the Company’s Form 10-Q filed on February 10, 2010). | |
| 4.2 | Shareholder Rights Agreement dated August 22, 2005 between the Company and Wells Fargo Bank, N.A., as Transfer Agent (incorporated by reference to the Company’s Form 8-K filed on August 26, 2005). | |
| 4.3 | Amendment No. 1 to Shareholder Rights Agreement dated March 21, 2011 (incorporated by reference to the Company’s Form 8-K filed on March 22, 2011). | |
| 4.4 | Common Stock Purchase Warrant between the Company and Roth Capital Partners, LLC dated November 4, 2009 (incorporated by reference to the Company’s Form 10-Q filed on February 10, 2010). | |
| 4.5 | Form of Common Stock Purchase Warrant dated February 18, 2010 (incorporated by reference to the Company’s Form 8-K filed on February 24, 2010). | |
| 4.6 | Form of Registration Rights Agreement dated February 22, 2010 (incorporated by reference to the Company’s Form 8-K filed on February 24, 2010). | |
| 4.7 | Form of Common Stock Purchase Warrant dated March 16, 2011 (incorporated by reference to the Company’s Form 8-K filed on March 22, 2011). | |
| 4.8 | Form of Registration Rights Agreement dated March 21, 2011 (incorporated by reference to the Company’s Form 8-K filed on March 22, 2011). | |
| 5.1* | Opinion of O’Melveny & Myers LLP. | |
| 23.1** | Consent of Moss Adams LLP, Independent Registered Public Accounting Firm. | |
| 23.2** | Consent of RSM Deutschland GmbH Wirtschaftsprüfungsgesellschaft, Independent Registered Public Accounting Firm. | |
| 23.3* | Consent of O’Melveny & Myers LLP (included in Exhibit 5.1). | |
| 24.1** | Power of Attorney. | |
| ++ | Certain schedules and similar attachments have been omitted pursuant to Item 601(b)(2) of Regulation S-K. A copy of the omitted schedules and similar attachments will be provided supplementally to the SEC upon request. |
| * | Filed herewith. |
| ** | Previously filed. |
Exhibit 5.1
[Letterhead of O’Melveny & Myers LLP]
March 13, 2014
Overland Storage, Inc.
9112 Spectrum Center Boulevard
San Diego, California 92123
Re: Registration of Securities of Overland Storage, Inc.
Ladies and Gentlemen:
At your request, we have examined the Post-Effective Amendment No. 3 to Registration Statement on Form S-3 (the “Registration Statement”) filed by you (the “Company”) with the Securities and Exchange Commission (“SEC”) on February 12, 2014 in connection with the registration under the Securities Act of 1933, as amended (the “Securities Act”), of an aggregate of (i) 8,653,045 shares (the “Common Shares”) of your common stock, no par value per share (the “Common Stock”), (ii) 3,898,703 shares of Common Stock (the “Warrant Shares”) issuable upon exercise of outstanding warrants (the “Warrants”) and (iii) 12,464 shares of Common Stock issued upon exercise of a Warrant in June 2012 (the “June 2012 Shares” and, together with the Common Shares and the Warrant Shares, the “Shares”). The Shares are accompanied by a Common Stock purchase right (the “Purchase Right”) pursuant to the Shareholder Rights Agreement, dated August 22, 2005, as amended by Amendment No. 1 to Shareholder Rights Agreement dated March 21, 2011, between the Company and Wells Fargo Bank, N.A., as Rights Agent (the “Rights Agreement”). We understand that the Shares are to be sold by the selling shareholders to the public from time to time as described in the Registration Statement.
We have examined originals or copies of those corporate and other records and documents we considered appropriate. In our examination, we have assumed the legal capacity of all natural persons, the genuineness of all signatures, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as certified, conformed or photostatic copies and the authenticity of the originals of such latter documents. As to any facts material to the opinions expressed herein which were not independently established or verified, we have relied upon oral or written statements and representations of officers and other representatives of the Company.
In connection with the opinions expressed below, we have assumed that, at or prior to the time of delivery of any Shares, (i) the Board of Directors of the Company (the “Board of Directors”) has not modified or rescinded the authorization of the issuance and sale of such Shares, (ii) there has not occurred any change in law affecting the validity or enforceability of such Shares and (iii) with respect to the Warrant Shares, no event has occurred after the date hereof that would result in the Company having an insufficient number of shares of Common Stock authorized and available for issuance. We have also assumed that the terms of the issuance and sale of any Shares have been duly established in conformity with the Amended and Restated Articles of Incorporation of the Company, as amended, as presently in effect (the “Articles of Incorporation”), the Amended and Restated Bylaws of the Company, as amended, as presently in effect (the “Bylaws”) and, in the case of the Warrant Shares, the terms of the Warrants, and that none of the terms of any Shares to be established after the date hereof, nor the issuance and delivery of such Shares, nor the compliance by the Company with the terms of such Shares will violate any applicable law or public policy or result in a violation of any provision of any instrument or agreement then binding upon the Company or any restriction imposed by any court or governmental body having jurisdiction over the Company.
On the basis of such examination, our reliance upon the assumptions in this opinion and our consideration of those questions of law we considered relevant, and subject to the limitations and qualifications in this opinion, we are of the opinion that when certificates representing the Shares in the form required under the California Corporations Code have been duly executed, countersigned, registered and delivered upon payment of the agreed upon consideration therefor, or, in the case of Shares issued in “street name,” the Shares have been entered on the books of the transfer agent and registrar under the names of the nominal owners, the issuance and sale of such Shares will have been duly authorized by all necessary corporate action on the part of the Company, and such Shares will be validly issued, fully paid and nonassessable and the Purchase Rights will be legally valid and binding obligations of the Company, enforceable against the Company in accordance with their terms and under California law, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or affecting creditors’ rights generally (including, without limitation, fraudulent conveyance laws), and by general principles of equity including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing and the possible unavailability of specific performance or injunctive relief, regardless of whether considered in a proceeding in equity or at law.
With respect to our opinion as to the Purchase Rights, we have assumed that, at the time of issuance and sale of the Shares, that the Rights Agreement has been duly authorized, executed and delivered by the Rights Agent and that the members of the Board of Directors have acted in a manner consistent with their fiduciary duties as required under applicable law in adopting the Rights Agreement. This opinion does not address the determination a court of competent jurisdiction may make regarding whether the Board of Directors of the Company would be required to redeem or terminate, or take other action with respect to, the Purchase Rights at some future time based on the facts and circumstances existing at that time. In addition, it should be understood that our opinion addresses the Rights Agreement and the Purchase Rights in their entirety and not any particular provision of the Rights Agreement or the Purchase Rights. It should also be understood that it is not settled whether the invalidity of any particular provision of a rights agreement or of rights issued thereunder would result in invalidating such rights in their entirety.
The law covered by this opinion is limited to the present law of the State of California and the State of New York. We express no opinion as to the laws of any other jurisdiction and no opinion regarding the statutes, administrative decisions, rules, regulations or requirements of any county, municipality, subdivision or local authority of any jurisdiction.
We hereby consent to the use of this opinion as an exhibit to the Registration Statement and to the reference to this firm under the heading “Legal Matters” in the prospectus constituting part of the Registration Statement.
| Respectfully submitted, | ||
| /s/ O’Melveny & Myers LLP | ||
| O’MELVENY & MYERS LLP | ||