Sphere 3D Corp.
Annual Report 2017

Plain-text annual report

UNITED STATESSECURITIES AND EXCHANGE COMMISSIONWashington, D.C. 20549FORM 10-Kx ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934For the fiscal year ended December 31, 2017 ¨ TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934For the transition period from___________________________to ___________________________Commission File Number: 001-36532__________________________________Sphere 3D Corp.(Exact name of Registrant as specified in its charter)__________________________________Ontario, Canada 98-1220792(State or other jurisdiction of incorporation or organization) (IRS Employer Identification No.) 240 Matheson Blvd. East Mississauga, Ontario, Canada, L4Z 1X (Address of principal executive offices) (408) 283-4754(Registrant’s Telephone Number, Including Area Code)Securities registered pursuant to Section 12(b) of the Act:Title of Each Class Name of Each Exchange on Which RegisteredCommon Shares NASDAQ Capital MarketSecurities registered pursuant to Section 12(g) of the Act: NoneIndicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act.Yes ¨ No xIndicate by check mark if the registrant is not required to file reports pursuant to Section 13 or Section 15(d) of the Act.Yes ¨ No xIndicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filingrequirements for the past 90 days. Yes x No ¨Indicate by check mark whether the registrant has submitted electronically and posted on its corporate Web site, if any, every Interactive Data File required tobe submitted and posted pursuant to Rule 405 of Regulation S-T (§232.405 of this chapter) during the preceding 12 months (or for such shorter period thatthe registrant was required to submit and post such files). Yes x No ¨Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 of Regulation S-K is not contained herein, and will not be contained, to the bestof registrant’s knowledge, in definitive proxy or information statements incorporated by reference in Part III of this Form 10-K or any amendment to this Form10-K. xIndicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, oremerging 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.Large accelerated filer ¨ Accelerated filer ¨Non-accelerated filer ¨ Smaller reporting company x(Do not check if a smaller reporting company) Emerging growth company xIf 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 orrevised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ¨Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act). ¨The aggregate market value of the voting and non-voting common equity held by non-affiliates of the registrant as of June 30, 2017 wasapproximately $13.9 million based on the closing price on the NASDAQ Capital Market reported for such date. Shares of common stock held by each officerand director and by each person who is known to own 10% or more of the outstanding common stock have been excluded in that such persons may bedeemed to be affiliates of the registrant. This determination of affiliate status is not necessarily a conclusive determination for other purposes.As of March 16, 2018, there were 9,051,408 shares of the registrant’s common stock outstanding. TABLE OF CONTENTS PagePART IItem 1.Business4Item 1A.Risk Factors13Item 1B.Unresolved Staff Comments31Item 2.Properties31Item 3.Legal Proceedings32Item 4.Mine Safety Disclosures33PART IIItem 5.Market For Registrant’s Common Equity, Related Stockholder Matters and Issuer Purchases of Equity Securities33Item 6.Selected Financial Data33Item 7.Management’s Discussion and Analysis of Financial Condition and Results of Operations34Item 7A.Quantitative and Qualitative Disclosures About Market Risk42Item 8.Financial Statements and Supplementary Data42Item 9.Changes in and Disagreements with Accountants on Accounting and Financial Disclosure42Item 9A.Controls and Procedures42Item 9B.Other Information43PART IIIItem 10.Directors, Executive Officers and Corporate Governance43Item 11.Executive Compensation46Item 12.Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters54Item 13.Certain Relationship and Related Transactions, and Director Independence56Item 14.Principal Accounting Fees and Services59PART IVItem 15.Exhibits, Financial Statement Schedules60Item 16.Form 10-K Summary65SIGNATURES66PART IFORWARD-LOOKING INFORMATIONThis Annual Report on Form 10-K contains forward-looking information that involves risks and uncertainties. This forward-looking informationincludes, but is not limited to, statements with respect to management’s expectations regarding the future growth, results of operations, performance andbusiness prospects of Sphere 3D. This forward-looking information relates to, among other things, the Company’s future business plans and businessplanning process, the Company’s uses of cash, and may also include other statements that are predictive in nature, or that depend upon or refer to futureevents or conditions.The words “could”, “expects”, “may”, “will”, “anticipates”, “assumes”, “intends”, “plans”, “believes”, “estimates”, “guidance”, and similarexpressions are intended to identify statements containing forward-looking information, although not all forward-looking statements include such words. Inaddition, any statements that refer to expectations, projections or other characterizations of future events or circumstances contain forward-lookinginformation. Statements containing forward-looking information are not historical facts but instead represent management’s expectations, estimates andprojections regarding future events.Although forward-looking statements in this Annual Report reflect the good faith judgment of our management, such statements can only be based onfacts and factors currently known by us. Consequently, forward-looking statements are inherently subject to risks and uncertainties and actual results andoutcomes may differ materially from the results and outcomes discussed in or anticipated by the forward-looking statements. Factors that could cause orcontribute to such differences in results and outcomes include without limitation those discussed under the heading “Risk Factors” in Part I, Item 1A below,as well as those discussed elsewhere in this Annual Report. Readers are urged not to place undue reliance on these forward-looking statements, which speakonly as of the date of this Annual Report. We undertake no obligation to revise or update any forward-looking statements in order to reflect any event orcircumstance that may arise after the date of this Annual Report. Readers are urged to carefully review and consider the various disclosures made in thisAnnual Report, which attempt to advise interested parties of the risks and factors that may affect our business, financial condition, results of operations andprospects.Any reference to the “Company”, “Sphere 3D”, “Sphere”, “we”, “our”, “us”, or similar terms refers to Sphere 3D Corp. and its subsidiaries. Unlessotherwise indicated, all dollar amounts are expressed in U.S. dollars and references to “$” are to the lawful currency of the United States (“U.S.”). Referencesto “Notes” are Notes included in our Notes to Consolidated Financial Statements.Item 1. BusinessSphere 3D provides next-generation solutions for standalone storage and long-term data archive products, as well as technologies that converge thetraditional silos of compute, storage and network into one integrated “hyper-converged” or converged solution. We provide enterprise storage managementsolutions, the archiving of the data created by these solutions, and the ability to connect to public cloud services such as Microsoft Azure for additionaldelivery options and hybrid cloud capabilities. Our solutions are tightly integrated and include a patented portfolio for operating systems for storage,proprietary virtual desktop orchestration software, and proprietary application container software. Our software, combined with commodity x86 servers, or itspurpose built appliances, deliver solutions that provide application mobility, security, data integrity and simplified management. These solutions can bedeployed through a public, private or hybrid cloud and are delivered through our global reseller network and professional services organization. We have aportfolio of brands including Overland-Tandberg™, HVE ConneXions and UCX ConneXions, dedicated to helping customers achieve their IT goals.We have created our own platform, Glassware 2.0TM (“Glassware”), for the delivery of applications from a server-based computing architecture. This isaccomplished through a number of approaches to virtualization utilized by Glassware including the use of software “containers” and “microvisors.” Acontainer refers to software that takes an application and all the things required to run that application and encapsulates them with software. By doing so,users can run numerous applications from a single server and on a single copy of the operating system. A microvisor refers to the technology that allows non-Windows® based applications to run on the same servers as Windows software using a lightweight emulator. Glassware sales are not material.4Warrant Exchange AgreementOn March 16, 2018, the Company entered into warrant exchange agreements, in a privately negotiated exchange under Section 4(a)(2) of theSecurities Act of 1933, as amended, pursuant to which the Company issued 1,430,998 common shares in exchange for the surrender and cancellation of theCompany’s outstanding March 24, 2017 warrants (the “Exchange”). Immediately after the Exchange, the previously issued warrants became null and void.MF Ventures, LLC, participated in the Exchange by acquiring 299,999 common shares in exchange for a warrant to purchase 272,727 common shares.Related Party Share Purchase Agreement On February 20, 2018, the Company, Overland Storage, Inc., a California corporation and a wholly owned subsidiary of the Company (“Overland”),and Silicon Valley Technology Partners LLC, a Delaware limited liability company established and controlled by Eric Kelly, the Company’s ChiefExecutive Officer and Chairman of the Board of Directors (the “Purchaser”) entered into a share purchase agreement (the “Purchase Agreement”), pursuant towhich, among other things, and subject to certain closing conditions, the Company will sell to Purchaser all of the issued and outstanding shares of capitalstock of Overland for $45.0 million (the “Purchase Price”), subject to a working capital adjustment (the “Share Purchase”). The net proceeds from the SharePurchase will be used to repay: (i) the Company’s outstanding obligations under its Credit Agreement with Opus Bank; (ii) its outstanding obligations underthe related party convertible note with FBC Holdings S.a.r.l. (“FBC Holdings”); and (iii) its related party subordinated promissory note with MF Ventures,LLC. The Special Committee of the Board of Directors of the Company and the Board of Directors of the Company (with Eric Kelly recusing himself)unanimously approved the entry into the Purchase Agreement by the Company. Under the terms of the Purchase Agreement, the Share Purchase is contingent upon, and Purchaser must use its best efforts to arrange for, debt and/orequity financing in an amount at least equal to the Purchase Price in order to consummate the Share Purchase (the “Financing”). In addition, the Companymust use commercially reasonable efforts to provide all cooperation reasonably requested by Purchaser regarding the Financing. Until the Financing iscommitted in accordance with Contingency Termination Event (as defined below), the Company is free to solicit and negotiate other offers to purchase theCompany, Overland or any or all of their assets and has the right to terminate the Purchase Agreement for any or no reason without penalty (subject to theexpense reimbursement provisions described below).The closing of the Share Purchase and of the other transactions contemplated by the Purchase Agreement are subject to (i) the adoption of the PurchaseAgreement by the affirmative vote of the holders of (a) at least 66 2/3% of the outstanding common shares of the Company cast in person or by proxy at thespecial meeting of shareholders and (b) a majority of the votes cast by certain “minority shareholders” in person or by proxy at the special meeting ofshareholders (the “Shareholder Approval”) and (ii) the transfer by the Company of (a) the businesses of (x) Unified ConneXions, Inc. and (y) HVEConneXions, LLC (including the provision of information technology consulting services and hardware solutions around cloud computing, data storage andserver virtualization to corporate, government, and educational institutions), and (b) the SNAP® network attached storage business to a subsidiary of theCompany other than Overland or a subsidiary of Overland. The closing of the Share Purchase and of the other transactions contemplated by the PurchaseAgreement are also subject to various other conditions, including the consummation of the Financing, the absence of any order, statute, rule, regulation,executive order, decree or injunction issued by any governmental entity prohibiting the Share Purchase, the absence of a pending claim, suit, action orproceeding material claims seeking to prohibit the Share Purchase, the accuracy of the representations and warranties contained in the Purchase Agreement,compliance with the covenants and agreements contained in the Purchase Agreement in all material respects, and the absence of a material adverse effect oneither the Company or Overland.5The Company has made customary representations, warranties and covenants in the Purchase Agreement, including, among others, covenants (i) toconduct its business in the ordinary course during the period between the execution of the Purchaser Agreement and the closing of the Share Purchase, (ii) notto engage in specified types of transactions during this period unless agreed to in writing by Purchaser, (iii) to convene and hold a meeting of its shareholdersfor the purpose of obtaining the Shareholder Approval and (iv) subject to certain exceptions and only following the occurrence of the ContingencyTermination Event (as defined below), not to solicit and negotiate other offers to purchase the Company, Overland or any or all of their assets or to withdraw,modify or qualify in a manner adverse to Purchaser the recommendation of the Board that the Company’s shareholders vote in favor of approving the SharePurchase. The Company has also agreed to indemnification provisions in favor of Purchaser that are customary for transactions of this type.Prior to the (i) execution and delivery of financing commitments in forms reasonably acceptable to the Company, which provide, among other things,for commitments from financing sources sufficient to pay the Purchase Price in the Share Purchase, (ii) execution and delivery by Purchaser of an irrevocablewaiver in a form reasonably acceptable to the Company waiving Purchaser’s condition to the obligation to close the Share Purchase that the Financing hasbeen received and (iii) an executed certificate delivered by Purchaser to the Company regarding the accuracy of certain representations regarding theFinancing (the “Contingency Termination Event”), the Company has the right to terminate the Purchase Agreement for any reason or for no reason. ThePurchase Agreement also provides that, upon such termination of the Purchase Agreement by the Company, the Company has agreed to reimburse Purchaserup to approximately $350,000 for the reasonable and documented out-of-pocket expenses incurred by the Purchaser and the sources for the Financing inconnection with the negotiation, execution and performance of the Purchase Agreement and the transactions contemplated thereby, as well as the fees andexpenses of the Purchaser's outside counsel.In addition, the Purchase Agreement contains certain other termination rights, including, following the occurrence of the Contingency TerminationEvent, the right of the Company to terminate the Purchase Agreement under specified circumstances to accept an unsolicited superior proposal from a thirdparty. The Purchase Agreement provides that, following the occurrence of the Contingency Termination Event and upon termination of the PurchaseAgreement by the Company under specified circumstances (including termination by the Company to accept a superior proposal) or by Purchaser underspecified circumstances, a termination fee equal to the lesser of (i) $1.0 million and (ii) the amount of Purchaser’s reasonable fees and expenses in connectionwith the negotiation, execution and performance of the Purchase Agreement (including the amount that the Purchaser must pay or reimburse to the sources forthe Financing) will be payable by the Company to the Purchaser. Such termination fee is also payable following the occurrence of the ContingencyTermination Event under certain other specified circumstances set forth in the Purchase Agreement. The Purchase Agreement also provides that each party tothe Purchase Agreement may compel the other party or parties thereto to specifically perform its or their obligations under the Purchase Agreement. However,if the Purchase Agreement is terminated such that the Company termination fee becomes payable, the Purchaser will be precluded from any other remedyagainst the Company or Overland, including expense reimbursement and specific performance. Further, if the Purchase Agreement is terminated such that theexpense reimbursement becomes payable, the Purchaser will be precluded from any other remedy against the Company or Overland, including the Companytermination fee and specific performance. Subject to certain exceptions and limitations, either party may terminate the Purchase Agreement if the SharePurchase is not consummated by August 19, 2018.Reverse Stock SplitOn July 5, 2017, the Board of Directors of the Company authorized a share consolidation (also known as a reverse stock split) of the Company’s issuedand outstanding common shares at a ratio of 1-for-25, which became effective on July 11, 2017. All share and per share amounts in the accompanyingconsolidated financial statements and the notes thereto have been restated for all periods to reflect the share consolidation.6UCX and HVE AcquisitionIn January 2017, we completed our acquisition of all of the outstanding equity interests of UCX and HVE (the “January 2017 acquisition”). UCX andHVE provide information technology consulting services and hardware solutions around cloud computing, data storage and server virtualization tocorporate, government, and educational institutions primarily in the southern central United States. By adding UCX’s products, technologies, professionalservices and engineering talent, and HVE’s engineering and virtualization expertise, we intend to expand our virtualization offerings as well as enhance ourability to accelerate the delivery of hybrid cloud solutions to customers.At this time, we have included UCX and HVE’s product revenue with our disk systems products. The business activities of UCX and HVE may result inindividual transactions that are more significant than those that normally result from our legacy business lines. Those significant transactions may involvemultiple elements and may involve circumstances where, based on customer requests, equipment may be delivered either to the end customer location or to athird-party location specified by the customer.RDX® Asset AcquisitionIn August 2015, we completed an acquisition of assets related to the RDX® removable disk product lines from Imation Corp. (“Imation”). We issued61,165 common shares with an approximate value of $6.1 million, and a warrant exercisable for 10,000 additional common shares exercisable in connectionwith certain purchase price adjustments under the asset purchase agreement.Products and ServiceDisk SystemsRDX® Removable Disk SolutionsRDX® is a removable, purpose built back-up appliance on the market. The RDX® series provides scalability, centralized management, encryption andduplication, and reliability for backup, archive, data interchange and disaster recovery. RDX® provides enterprise performance and fast access, with transferrates of up to 1188 gigabytes (“GB”) per hour and capacities up to four terabytes (“TB”) per cartridge, plus future expansion to larger capacity media enabledby our RDX+™ technology.RDX® QuikStor® is available as an external desktop or internal server drive with SATA III, USB 3.0 or USB3+ connectivity. RDX QuikStation®4 andRDX QuikStation®8 are rackmount and removable disk appliances for SMBs, offering one GbE or ten GbE iSCSI connectivity and an online capacity of upto 32 TB. RDX HDD media are available in the range between 500 GB and four TB, RDX SSD media up to 256 GB and RDX WORM media with 500 GB andone TB. All RDX® media capacities are forward and backward compatible.In 2017, we launched our rdxLOCK RansomBlock Feature to address certain cyber threats for organizations, including Ransomware. TheRansomBlock functionality sets all data on the RDX® WORM media into a read-only mode. Additionally, it allows write operations to RDX® media forgranted applications and processes similar to a personal fire wall.7HVE Converged and Hyper-converged InfrastructureIn 2017, we acquired HVE, a technology provider of next generation converged and hyper-converged infrastructure dedicated to creating Manageable,Scalable, Reproducible, and Predictable (“MSRP”) solutions based on virtualization technologies running on high-performance, next generation platforms.HVE solutions are engineered, purpose-built converged and hyper-converged virtual workspace and server solutions that support a distributed architecture,scalable with predictable performances, and come bundled with continuous active monitoring. HVE product can include support for our Desktop CloudOrchestrator™ (“DCO”) based on customer requirements.•The HVE-STACK high density server provides the computer and storage appliance for the data center and is ideal for high performance computing(“HPC”), cloud computing and virtual desktop infrastructure (“VDI”). The modular design and swappable components such as hard drives and powersupplies great improve efficiency.•The HVE-VELOCITY High Availability Dual Enclosure storage area network (“SAN”) provides data reliability and integrity for optimal datastorage, protection and recovery. It also provides a unified network attached storage (“NAS”) and SAN solution with thin provisioning, compressionand deduplication. The HVE-VELOCITY platform eliminates single points of failure. The 12GSAS SSD design allows for faster access to data. It isoptimized for mission-critical, enterprise-level storage applications.•The HVE 3DGFX is a VDI solution that offers that offers hardware and software technologies to provide an appliance that can handle from eight to128 high demand users in a single 2U appliance. The HVE 3DGFX was designed and engineered as a purpose-built solution based upon the MSRPengineering approach.G-Series Appliance and G-Series CloudThe G-Series appliance powered by Glassware containerization technology is designed to simplify Windows application migration and enables accessfrom any device including Macintosh, Windows, iOS, Chrome OS, and Android. The G-Series appliance is optimized for simplicity, flexibility andscalability. Through Glassware, a Microsoft Windows® based container technology, organizations looking to migrate applications to the cloud can quicklydeploy a solution for virtualizing 16-bit, 32-bit, or 64-bit applications with their native functionality intact. For the provisioning of a 16-bit application tothe G-Series appliance, users will often require advanced technical skills to set-up the application, or can contract professional services from the Company, orone of our certified system integrators. End users can access the containerized applications from cloud-connected devices (iOS, Android or Windows),through a lightweight downloadable app or simply from a browser. The G-Series appliance eliminates the complex tasks of designing, implementing, andmaintaining application hosting environments and provides improved application session density and scale when compared to traditional hypervisor-basedvirtualization solutions.G-Series Cloud is an offering available through Microsoft Azure and was developed to provide a virtual appliance that can be deployed from the AzureMarketplace to eliminate the task of designing, implementing, and maintaining localized application-hosting environments and their related hardware. G-Series Cloud is pre-configured, can be deployed in minutes and provides for a billing model based on usage.Glassware Open Virtual Appliance and Open Virtual FormatAn Open Virtual Appliance (“OVA”) and Open Virtual Format (“OVF”) compatible version of Glassware are the most recent productized offerings thatallow for the deployment of Glassware from within existing VMWare environments. Similar to the G-Series Cloud offering, OVA and OVF versions werespecifically developed to provide a virtual appliance from within a VMWare virtual machine and within VMWare environments. Although the format fordeployment is similar for an OVA and/or OVF, Glassware is not an open source, as these formats only refer to the deployment methodology. All Glasswareproducts come with a user interface to allow for administrators to quickly deploy applications and integrate with existing work flow and technologies.8SnapServer® Network Attached Storage SolutionsOur SnapServer® solutions are an ideal platform for primary or nearline storage, and deliver stability and integration with Windows®, UNIX/Linux, andMacintosh environments. For virtual servers and database applications, the SnapServer® family supports iSCSI block-level access with Microsoft VSS andVDS integration to simplify Windows management. For data protection, the SnapServer® family offers RAID protection, and snapshots for point-in-time datarecovery. The SnapServer XSR Series™ products support DynamicRAID® and traditional RAID levels 0, 1, 5, 6, and 10. The Snap family of products,SnapCLOUD®, and SnapServer®, have integrated data mobility tools to enable customers to build private clouds for sharing and synchronizing data foranytime, anywhere access.•The SnapServer® XSR40 is a 1U server that can be configured with up to four SATA III and SSD drives, and can scale to 400 TB of storagecapacity by adding up to three SnapExpansion XSR™ enclosures.•The SnapServer® XSR120 is a 2U server that can be configured with up to 12 SATA III, SAS and SSD drives, and can scale to 960 TB of storagecapacity by adding up to seven SnapExpansion XSR™ enclosures.Our GuardianOS® storage software is designed for the SnapServer® family of enterprise-grade NAS systems and delivers simplified data managementand consolidation throughout distributed information technology environments by combining cross-platform file sharing with block-level data access on asingle system. The flexibility and scalability of GuardianOS® reduces the total cost of ownership of storage infrastructures for small and medium businessesto large Fortune 500 enterprises. In addition to a unified storage architecture, GuardianOS® offers highly differentiated data integrity and storage scalabilitythrough features such as DynamicRAID®, centralized storage management, and a comprehensive suite of data protection tools.Our Snap Enterprise Data Replicator (“Snap EDR”) provides multi-directional WAN-optimized replication. Administrators can automatically replicatedata between SnapServer®, Windows, and Linux systems for data distribution, data consolidation, and disaster recovery.During 2017, we announced the availability of our SnapServer® Hybrid and All Flash Array solutions, which is designed to allow informationtechnology departments to modernize their data center, as well as provide the small and medium businesses (“SMBs”) access to the reliability, security, andperformance of flash. In addition, we launched our SnapServer® solutions pre-configured and optimized to work with IP video surveillance cameras andcreate a new standard for simplicity and integration between IP networked video surveillance systems and data storage.Tape Automation SystemsNEO® Tape-Based Backup and Long-Term Archive SolutionsOur NEO Series® Tape Libraries, Tape Autoloaders, stand-alone tape drives and linear tape file system (“LTFS”) solutions are designed for both SMBslooking for simple, cost-effective long-term data protection, as well as for complex enterprises faced with the demands of “big data” storage applications.Regardless of the size or type of environment, information technology managers continue to recognize the efficiency and value tape-based solutions providefor long-term data storage.•NEO® XL-Series tape libraries are designed for mid-range and enterprise businesses, providing automated backup and archive that combinesflexibility, density, high-performance and affordability to ensure that data is protected faster and more cost effectively. NEO® XL-Series tapelibraries provide data storage capacity that ranges from 90 TB to 16.8 petabytes (“PB”), enabling customers to expand their storage capability astheir storage requirements changes. NEO® XL-Series significantly reduces backup windows and improves efficiency with high-performance datatransfer rates that range from 504 GB per hour to over 114 TB per hour. The NEOxl 80 supports up to 80 cartridges and six tape drives permodule. Up to six 80-cartridge NEOxl Expansion Modules can be added to provide a total of 560 cartridges and 42 tape drives. In November2017, we announced the addition of the NEOxl 8000. NEOxl is a full-rack configuration delivering access to 560 cartridges slots. The NEOxl8000 will support as many as 42 tape drives and is available in fibre channel (“FC”) configurations offering features such as redundant data pathand redundant control path. NEOxl 8000 is designed to be our next-generation solution for enterprise customers requiring large amounts of datastorage with high data availability.9•NEO® S-Series libraries provide affordable tape backup and archive for small and medium businesses. NEO® S-Series libraries are available incompact rack-mount configurations with either SAS or FC connectivity. The NEOs StorageLoader is a 1U, eight-cartridge, single-drive autoloaderthat provides up to 240 TB of storage capacity. The NEOs T24 is a 2U tape library that supports up to 24 cartridge slots and two tape drives, anddelivers up to 720 TB of storage capacity. The NEOs T48 is a 4U tape library that supports up to 48 cartridge slots and four tape drives, with amaximum storage capacity of 1.4 PB.•NEO® 8000e is a 42U tape library that supports up to 500 cartridge slots (up to 7.5 PB) and 12 tape drives (up to 32.4 TB per hour) in a singlemodule. For truly enterprise-class storage requirements, the NEO® 8000e is scalable up to 1,000 cartridge slots (15 PB) and 24 tape drives (64 TBper hour).•NEO® Agility provides our customers the ability to manage, share and protect data utilizing LTFS technology on premise, in the cloud or ahybrid cloud environment. Providing archiving capability, and serving as a complement to our NEO® Series tape libraries, NEO® Agility allowsusers to capitalize on the reliability and portability of tape-based storage while benefiting from data access associated with disk-based storage.NEO® Agility consists of a 1U server platform with our LTFS archiving software. While NEO® Agility is optimized for, and compatible with,NEOs T48, NEOxl 80 and NEO® 8000e tape libraries, it is also compatible with tape libraries manufactured by other vendors. In May 2017, weannounced the addition of the NEO® Agility 24. NEO® Agility 24 was added to the portfolio as a solution designed for budget-conscious ITenvironments requiring smaller storage capacity and slightly lower performance, but still needing the ease of data access associated with theNEO® Agility LTFS technology.Tape Drives and MediaIn addition to our tape automation and LTFS solutions, we provide stand-alone LTO tape drives and LTO media products.•Stand-alone LTO tape drives provide low-cost, compact affordable backup and archive abilities. Available either as internal drives to beintegrated into server-based bundles or as eternal drives for desktop use, stand-alone tape drives deliver storage capacities ranging from 1.5 TB(LTO-5) to 15 TB (LTO-7). In November 2017, we added LTO-8 (12TB) stand-alone tape drives to our portfolio. NEO® tape libraries utilizing theLTO-8 technology can store anywhere from 96 TB to 16.8 PB of data.•LTO media (data cartridges and cleaning cartridges) allows our customers to purchase the media for their tape drives and libraries at the same timethey purchase their NEO Series® solution, providing the ability to have their NEO Series® solution fully operational upon installation. With fourgenerations of LTO tape media (LTO-4, LTO-5, LTO-6, and LTO-7) in our portfolio, native capacities range from 800 GB per cartridge to six TBper cartridge. In November 2017, we announced both standard LTO-8 media and LTO-8M media. LTO-8 data cartridges provide 12 TB of storagecapacity on each cartridge. The LTO-8 cartridges should be used in the LTO-8 tape drives to achieve the full 12 TB per cartridge capacity. TheLTO-8M provides up to nine TB per cartridge when used in an LTO-8 tape drive with a special media format and library firmware, both of whichare available with NEO Series® tape libraries.ServiceCustomer service and support are key elements of our strategy and critical components of our commitment in making enterprise-class support andservices available to companies of all sizes. Our technical support staff is trained to assist our customers with deployment and compatibility for anycombination of virtual desktop infrastructures, hardware platforms, operating systems and backup, data interchange and storage management software. Ourapplication engineers are trained to assist with more complex customer issues. We maintain global toll-free service and support phone lines. Additionally, wealso provide self-service and support through our website support portal and email.Our service offerings provide for on-site service and installation options, round-the-clock phone access to solution experts, and proof of concept andarchitectural design offerings. We are able to provide comprehensive technical assistance on a global scale.10ProductionA significant number of our components and finished products are manufactured or assembled, in whole or in part, by a limited number of third parties.For certain products, we control the design process internally and then outsource the manufacturing and assembly in order to achieve lower production costs.For certain RDX® product and SnapServer® products, we perform product assembly, integration and testing at our manufacturing facilities in Guangzhou,China.We purchase disk drives, tape drives, chassis, printed circuit boards, integrated circuits, and other major components from outside suppliers. Wecarefully select suppliers based on their ability to provide quality parts and components which meet technical specifications and volume requirements. Weactively monitor these suppliers but we are subject to substantial risks associated with the performance of our suppliers. For certain components, we qualifyonly a single source, which magnifies the risk of shortages and may decrease our ability to negotiate with that supplier. For a more detailed description ofrisks related to suppliers, see Item 1A. Risk Factors.Sales and Distribution•Distribution channel - We have distribution partners in North America and throughout Europe and Asia. We sell through a two-tier distributionmodel where distributors sell our products to system integrators, VARs or DMRs, who in turn sell to end users. We support these distributionpartners through our dedicated field sales force and field engineers. In 2017, no distribution partner accounted for more than 10% of net revenue.•Reseller channel - Our worldwide reseller channel includes systems integrators, VARs and DMRs. Our resellers may package our products as partof complete application and desktop virtualization solutions data processing systems or with other storage devices to deliver complete enterpriseinformation technology infrastructure solutions. Our resellers also recommend our products as replacement solutions when systems are upgraded,or bundle our products with storage management software specific to the end user’s system. We support the reseller channel through ourdedicated field sales representatives, field engineers and technical support organizations.•Cloud Marketplace - Since 2015, we have utilized the Microsoft Azure Cloud Marketplace as an additional channel for our cloud solutions tosell to end-users directly. With the pay-per-use model, supported through the Microsoft Azure Cloud, our customers now can accelerate theiradoption of cloud based application and data delivery.Patents and Proprietary RightsWe rely on a combination of patents, trademarks, trade secret and copyright laws, as well as contractual restrictions, to protect the proprietary aspectsof our products and services. Although every effort is made to protect Sphere 3D’s intellectual property, these legal protections may only afford limitedprotection.We may continue to file for patents regarding various aspects of our products, services and delivery method at a later date depending on the costs andtiming associated with such filings. We may make investments to further strengthen our copyright protection going forward, although no assurances can begiven that it will be successful in such patent and trademark protection endeavors. We seek to limit disclosure of our intellectual property by requiringemployees, consultants, and partners with access to our proprietary information to execute confidentiality agreements and non-competition agreements(when applicable) and by restricting access to our proprietary information. Due to rapid technological change, we believe that establishing and maintainingan industry and technology advantage in factors such as the expertise and technological and creative skills of our personnel, as well as new services andenhancements to our existing services, are more important to our company’s business and profitability than other available legal protections.11Despite our efforts to protect our proprietary rights, unauthorized parties may attempt to copy aspects of our services or to obtain and use informationthat we regard as proprietary. The laws of many countries do not protect proprietary rights to the same extent as the laws of the U.S. or Canada. Litigation maybe necessary in the future to enforce our intellectual property rights, to protect our trade secrets, to determine the validity and scope of the proprietary rightsof others or to defend against claims of infringement. Any such litigation could result in substantial costs and diversion of resources and could have amaterial adverse effect on our business, operating results and financial condition. There can be no assurance that our means of protecting our proprietaryrights will be adequate or that our competitors will not independently develop similar services or products. Any failure by us to adequately protect ourintellectual property could have a material adverse effect on our business, operating results and financial condition. See Item 1A. Risk Factors under thesection Risks Related to Intellectual Property.Competitive ConditionsWe believe that our products are unique and innovative and afford us various advantages in the market place; however, the market for informationtechnology is highly competitive. Competitors vary in size from small start-ups to large multi-national corporations which may have substantially greaterfinancial, research and development, and marketing resources. Competitive factors in these markets include performance, functionality, scalability,availability, interoperability, connectivity, time to market enhancements, and total cost of ownership. Barriers to entry vary from low, such as those intraditional disk-based backup products, to high, in tape automation and virtualization software. The markets for all of our products are characterized by pricecompetition and as such we may face price pressure for our products. For a more detailed description of competitive and other risks related to our business,see Item 1A. Risk Factors.EmployeesThe Company had 388 employees at December 31, 2017. The Company’s employees in Germany and China are covered by labor unions, and theCompany believes its relationships with the unions representing these employees are good.121A. Risk FactorsAn investment in our Company involves a high degree of risk. Each of the following risk factors in evaluating our business and prospects as well as aninvestment in our Company should be carefully considered. The risks and uncertainties described below are not the only ones we face. Additional risks anduncertainties not presently known to us or that we currently consider immaterial may also impair our business operations. If any of the following risks occur,our business and financial results could be harmed and the trading price of our common shares could decline.Risks Related to the Share Purchase AgreementOur agreement to sell Overland is subject to a number of conditions, some of which are outside of our control. If such conditions are not timely met,such sale may not occur, which would cause us to need immediate funding to pay our existing debt and other obligations and to continue our operations.On February 20, 2018, we, Overland, and Silicon Valley Technology Partners LLC, a Delaware limited liability company established and controlledby Eric Kelly, our Chief Executive Officer and Chairman of the Board of Directors (the “Purchaser”) entered into a share purchase agreement (the “PurchaseAgreement”), under which, subject to the terms and conditions of the Purchase Agreement, the Company will sell to Purchaser all of the issued andoutstanding shares of capital stock of Overland for $45.0 million, subject to a working capital adjustment (the “Share Purchase”). The consummation of theShare Purchase is subject to certain customary conditions. A number of the conditions are not within the control of us, Overland, or Purchaser, and it ispossible that such conditions may prevent, delay or otherwise materially adversely affect the completion of the Share Purchase. These conditions include,among others (i) the adoption of the Purchase Agreement by the affirmative vote of the holders of (a) at least 66 2/3% of the outstanding common shares ofthe Company cast in person or by proxy at the special meeting of shareholders and (b) a majority of the votes cast by certain “minority shareholders” inperson or by proxy at the special meeting of shareholders, (ii) the Purchaser’s securing of adequate financing to fund the purchase price, (iii) the transfer bythe Company of (a) the businesses of (x) Unified ConneXions, Inc. and (y) HVE ConneXions, LLC (including the provision of information technologyconsulting services and hardware solutions around cloud computing, data storage and server virtualization to corporate, government, and educationalinstitutions), and (b) the SNAP network attached storage business to a subsidiary of the Company other than Overland or a subsidiary of Overland, and (iv)other customary closing conditions, including (among others) (a) the accuracy of each party’s representation and warrants, (b) each party’s performance in allmaterial respects with its obligations under the Purchase Agreement, and (c) the absence of a material adverse effect on the Company (as defined in thePurchase Agreement).The Company cannot predict with certainty, whether and when any of the required closing conditions will be satisfied or if anotheruncertainty may arise. Currently, the Company’s special meeting of shareholders for the adoption of the Share Purchase is expected to be held in April 2018,which is after the maturity date of our credit facility and convertible note. If the Share Purchase does not receive, or timely receive, the shareholder approval,or if another event occurs that delays or prevents the Share Purchase, such delay or failure to complete the Share Purchase may cause uncertainty or othernegative consequences that may materially and adversely affect the Company’s business, financial condition and results of operations and, to the extent thatthe current price of the Company’s common stock reflects an assumption that the Share Purchase will be completed, the price per share for the Company’scommon stock.The purchase price to be received pursuant to the Purchase Agreement may be insufficient for the Company to pay off its outstanding obligations.The purchase price to be received pursuant to the Purchase Agreement may be insufficient to pay off all of the amounts owed by the Company underits Credit Agreement with Opus Bank, its outstanding obligations under the $24.5 million convertible note with FBC Holdings, the $2.0 million ofindebtedness in connection with that certain subordinated promissory note, issued by Overland to MF Ventures, LLC, and the other liabilities and transactionexpenses. It is possible that the net proceeds will not be sufficient to pay all of the above debts, liabilities and expenses or that there will be enough cash orworking capital in the Company to fund its continuing operations. Accordingly, the Company may need to raise additional capital through debt or equityfinancings before, at or around the time of the closing of the Share Purchase.13If we fail to complete the Share Purchase, we will be required to seek financing to pay off our existing secured debt, satisfy our other liabilities, pay ourtransaction expenses and continue our operations as a going concern. If we do not complete the Share Purchase, we will continue to face challenges and uncertainties in our ability to repay the outstanding obligations dueunder the Credit Agreement with Opus Bank and the outstanding obligations under the $24.5 million convertible note with FBC Holdings, which are bothscheduled to mature March 31, 2018. As discussed above, it is possible that the net proceeds will not be sufficient to pay all of the above debts, liabilities andexpenses or that there will be enough cash or working capital in the Company to fund its continuing operations. Accordingly, the Company may need toraise additional capital through debt or equity financings before, at or around the time of the closing of the Share Purchase, failing which the Company maynot be able to continue to operate as a going concern.Further, if the Share Purchase is not consummated, our directors, executive officers and other employees will have expended extensive time and effortand will have experienced significant distractions from their work during the period the transaction was pending and we will have incurred significant thirdparty transaction costs, in each case, without any commensurate benefit, which may have a material and adverse effect on our common share price and resultsof operations.The Share Purchase may not be completed or may be delayed if the conditions to the closing are not satisfied or waived.The Share Purchase may not be completed or may be delayed because the conditions to the closing set forth in the Purchase Agreement, includingapproval of the transaction by our shareholders and the absence of a material adverse effect before the closing, may not be satisfied or waived. If the SharePurchase is not completed, we may have difficulty recouping the costs incurred in connection with negotiating the Share Purchase, our relationships with ourcustomers, suppliers and employees may be damaged and our business may be harmed.Purchaser may not obtain the Financing.The Purchaser’s obligation to consummate and effect the transactions contemplated under the Purchase Agreement, including the Share Purchase, isconditioned, among others, on using its best efforts to arrange for the Financing. There is a risk that the Financing may not be available and the SharePurchase will not be completed.If we fail to complete the Share Purchase, our business may be harmed.As a result of our announcement of the Share Purchase, third parties may be unwilling to enter into material agreements with respect to Overland. Newor existing customers and business partners of Overland may prefer to enter into agreements with our competitors who have not expressed an intention to selltheir business because customers and business partners may perceive that such new relationships are likely to be more stable. If we fail to complete the SharePurchase, the failure to maintain existing business relationships or enter into new ones could adversely affect our business, results of operations and financialcondition. If we fail to complete the Share Purchase, we will also retain and continue to operate Overland. The resultant potential for loss or disaffection ofemployees or customers could have a material, negative impact on the value of the shares of Overland.Whether we complete the Share Purchase or not, we may not have sufficient working capital and may need to seek additional financing.Whether we complete the Share Purchase or not, we may not have sufficient working capital to continue to operate the Company and as a result, mayneed to obtain financing to fund the working capital of the Company. If we fail to obtain any such required financing, we may incur difficulties in continuingto operate our business.14Our business may be harmed if the Share Purchase disrupts the operations of our business and prevents us from realizing intended benefits.The Share Purchase may disrupt our business and prevent us from realizing intended benefits as a result of a number of obstacles, such as:•liquidity constraints;•loss of key employees;•failure to adjust or implement our business model;•additional expenditures required to facilitate the Share Purchase; and•the diversion of management’s attention from our day-to-day business.Failure to complete the Share Purchase may cause the market price for the Company’s common shares to decline.If our shareholders fail to approve the Share Purchase, or if the Share Purchase is not completed for any other reason, the market price of the Company’scommon shares of the Company may decline due to various potential consequences, including:•we may not be able to sell the shares of Overland to another party on terms as favorable to us as the terms of the Purchase Agreement;•the failure to complete the Share Purchase may create substantial doubt as to our ability to effectively implement our current businessstrategies; and•our costs related to the Share Purchase, such as legal and accounting fees, must be paid even if the Share Purchase is not completed.Following the completion of the Share Purchase, although we do not believe there is a reasonable likelihood of such an effect, we may fail to satisfy thecontinued listing standards of NASDAQ Capital Market and may have to delist our common shares.Even though we currently satisfy the continued listing standards for The NASDAQ Capital Market and although we do not believe there is areasonable likelihood of such an effect, following the completion of the Share Purchase, we may fail to satisfy the continued listing standards of TheNASDAQ Capital Market. In the event that we are unable to satisfy the continued listing standards of the NASDAQ Capital Market, our common shares maybe delisted from that market. Any delisting of our common shares from the NASDAQ Capital Market could adversely affect:•our ability to attract new investors;•decrease the liquidity of our outstanding common shares;•reduce our flexibility to raise additional capital;•reduce the price at which our common shares trade; and•increase the transaction costs inherent in trading such common shares with overall negative effects for our shareholders.In addition, delisting of our common shares could deter broker-dealers from making a market in or otherwise seeking or generating interest in ourcommon shares, and might deter certain institutions and persons from investing in our securities at all. For these reasons and others, delisting could adverselyaffect the price of our common shares and our business, financial condition and results of operations.15We will continue to incur the expenses of complying with public company reporting requirements following the closing.After the Share Purchase, we will continue to be required to comply with the applicable reporting requirements of the Exchange Act and applicableCanadian securities laws even though compliance with such reporting requirements is economically burdensome.If the Share Purchase is not completed, we may explore other potential transactions, but the alternatives may be less favorable to us and there can be noassurance that we will be able to complete an alternative transaction.If the Share Purchase is not completed, we may explore other potential transactions, including a sale of the shares of Overland to another party on suchterms as the Board may approve. The terms of an alternative transaction may be less favorable to us than the terms of the Share Purchase, and there can be noassurance that we will be able to reach agreement with or complete an alternative transaction with another party.By completing the Share Purchase, we will no longer be engaged in the data protection and archive business.Overland accounted for approximately 90% of our revenue from continuing operations for the fiscal year ended December 31, 2017. By selling all ofthe shares of Overland to Purchaser, we will be exiting the data protection and archive business. Upon completion of the Share Purchase, the Company willcontinue to sell its converged and hyper-converged infrastructure products and professional services under its HVE brand, as well as its proprietaryvirtualization and container software. The Company will focus its efforts on growing its business within the integrated systems marketplace and continue tooffer its products through a global network of distributors and resellers, as well as direct to customers within certain key accounts.Risks Related to our BusinessOur Opus Bank debt facilities mature on the earlier of the maturity date in the 8% Senior Secured Convertible Debenture (“Convertible Note”), datedDecember 1, 2014, issued to FBC Holdings, or March 31, 2018, and our Convertible Note with FBC Holdings matures on March 31, 2018. If we areunable to refinance or amend our debt and credit facilities before their maturity date, we may be forced to liquidate assets and/or curtail or ceaseoperations.We have obtained external funding for our business through a credit agreement with Opus Bank. Pursuant to the terms of Amendment Number Seven,the debt facilities mature on the earliest of (a) the maturity date in the Convertible Note, (b) March 31, 2018 or (c) such earlier date upon which theobligations may be accelerated in accordance with terms of the credit agreement. We will need to raise additional funds and/or amend or refinance our creditfacility in order to satisfy our obligations under our credit agreement with Opus Bank. In addition, upon the occurrence of certain events of default under ourcurrent credit facility, including failure to meet certain monthly revenue and EBITDA targets, our lender may elect to declare all amounts outstanding to beimmediately due and payable and terminate all commitments to extend further credit. A default under the agreement could result in default and cross-acceleration under other indebtedness. In February 2018, the Company entered into a Purchase Agreement. If the transactions contemplated by the PurchaseAgreement are consummated, the Company expects that the proceeds to be received by the Company would be sufficient to pay off its outstanding debt andcredit facilities. The Company anticipates to hold a special shareholder meeting in April 2018 to seek shareholder approval for the Share Purchase and,subject to the receipt of requisite shareholder approval, anticipates the transaction will close shortly thereafter. There can be no guarantee that we will be ableto raise additional funds or amend or refinance our debt and credit facilities on favorable terms or at all, nor can there be any guarantee that the Company’sshareholders will approve the Share Purchase.If any of these events occurs or the Company is unable to generate sufficient cash from operations or financing sources, the Company may be forced toliquidate assets where possible and/or curtail, suspend or cease planned programs or operations generally or possibly seek bankruptcy protection, whichwould have a material adverse effect on the Company’s business, results of operations, financial position and liquidity.16Our cash and other sources of liquidity will not be sufficient to fund our operations beyond March 31, 2018. If we raise additional funding through salesof equity or equity-based securities, your shares will be diluted. If we need additional funding for operations and we are unable to raise it, we may beforced to liquidate assets and/or curtail or cease operations.Management has projected that cash on hand will not be sufficient to allow the Company to continue operations beyond March 31, 2018 if theCompany is unable to amend, refinance, or pay off its debt and credit facilities. In February 2018, the Company entered into a Purchase Agreement. If thetransactions contemplated by the Purchase Agreement are consummated, the Company expects that the proceeds to be received by the Company would besufficient to pay off its outstanding debt and credit facilities. The Company anticipates to hold a special shareholder meeting in April 2018 to seekshareholder approval for the Share Purchase and, subject to the receipt of requisite shareholder approval, anticipates the transaction will close shortlythereafter. There can be no guarantee that we will be able to raise additional funds or amend or refinance our debt and credit facilities on favorable terms or atall, nor can there be any guarantee that the Company’s shareholders will approve the Share Purchase. Significant changes from the Company’s currentforecasts, including but not limited to: (i) failure to comply with the financial covenants in its credit facilities; (ii) shortfalls from projected sales levels;(iii) unexpected increases in product costs; (iv) increases in operating costs; (v) changes in the historical timing of collecting accounts receivable; and (vi)inability to maintain compliance with the requirements of the NASDAQ Capital Market and/or inability to maintain listing with the NASDAQ Capital Marketcould have a material adverse impact on the Company’s ability to access the level of funding necessary to continue its operations at current levels. If any ofthese events occurs or the Company is unable to generate sufficient cash from operations or financing sources, the Company may be forced to liquidate assetswhere possible and/or curtail, suspend or cease planned programs or operations generally or possibly seek bankruptcy protection, which would have amaterial adverse effect on the Company’s business, results of operations, financial position and liquidity.If we raise additional funds by selling additional shares of our capital stock, or securities convertible into shares of our capital stock, the ownershipinterest of our existing shareholders will be diluted. The amount of dilution could be increased by the issuance of warrants or securities with other dilutivecharacteristics, such as anti-dilution clauses or price resets.We urge you to review the additional information about our liquidity and capital resources in the “Management’s Discussion and Analysis ofFinancial Condition and Results of Operations” section of this report. If our business ceases to continue as a going concern due to lack of available capital orotherwise, it could have a material adverse effect on our business, results of operations, financial position, and liquidity.We may not be successful in raising additional capital necessary to meet expected increases in working capital needs. If we need additional funding foroperations and we are unable to raise it, we may not be able to continue our business operations.We expect our working capital needs to increase in the future as we continue to expand and enhance our operations. Our ability to raise additionalfunds through equity or debt financings or other sources will depend on the financial success of our current business and successful implementation of ourkey strategic initiatives, financial, economic and market conditions and other factors, some of which are beyond our control. No assurance can be given thatwe will be successful in raising the required capital at reasonable cost and at the required times, or at all. Further equity financings may have a dilutive effecton shareholders and any debt financing, if available, may require restrictions to be placed on our future financing and operating activities. If we requireadditional capital and are unsuccessful in raising that capital, we may not be able to continue our business operations and advance our growth initiatives,which could adversely impact our business, financial condition and results of operations.The terms of our March 2017 private placements may materially and adversely impact our ability to obtain additional financing in the future.We are subject to certain restrictions and obligations in connection with our private placement of warrants that was consummated in March 2017which may materially and adversely affect our ability to obtain additional financing in the future including participation rights whereby certain investors areentitled to purchase up to 50% in the aggregate of the securities sold in any subsequent issuance for 15 months following the closing of the privateplacement.17We have in the past failed to comply with financial covenants and other provisions in certain of our loan documents, which has resulted in defaultsunder certain of our loan documents, and we could be deemed to be in default under other indebtedness and agreements. These and similar defaults inthe future could adversely affect our financial condition and our ability to meet our payment obligations on our indebtedness.We have in the past defaulted under financial and other covenants under our Opus Bank credit agreement and under our previous loan documents,which have been waived by our lenders. In the past, these defaults generally have related to maintenance of required minimum asset coverage ratios. Uponthe occurrence of certain events of default under our current credit facility, including failure to meet certain trailing twelve-month revenue and EBITDAtargets, our lender may elect to declare all amounts outstanding to be immediately due and payable and terminate all commitments to extend further credit.While our ongoing defaults have been waived, our lender may not in the future waive such defaults. In addition, as a result of such defaults, we could bedeemed to be in default under other of our indebtedness and agreements.In the event of the acceleration of our indebtedness or if we are unable to otherwise maintain compliance with covenants set forth in thesearrangements, including our Opus Bank credit agreement and Convertible Note or if these arrangements are otherwise terminated for any reason, managementmay be forced to make further reductions in spending, extend payment terms with suppliers, liquidate assets where possible and/or curtail, suspend or ceaseplanned programs or operations generally or possibly seek bankruptcy protection, which would have a material adverse effect on our business, results ofoperations, financial position and liquidity.We have granted security interests over certain of our assets in connection with various debt arrangements.We have granted security interests over certain of our assets in connection with our credit facility and other indebtedness, and we may grant additionalsecurity interests to secure future borrowings. If we are unable to satisfy our obligations under these arrangements, we could be forced to sell certain assetsthat secure these loans, which could have a material adverse effect on our ability to operate our business. In the event we are unable to maintain compliancewith covenants set forth in these arrangements or if these arrangements are otherwise terminated for any reason, it could have a material adverse effect on ourability to access the level of funding necessary to continue operations at current levels. If any of these events occur, management may be forced to makereductions in spending, extend payment terms with suppliers, liquidate assets where possible, and/or suspend or curtail planned programs. Any of theseactions could materially harm our business, results of operations and future prospects.We face a selling cycle of variable length to secure new purchase agreements for our products and services, and design wins may not result in purchaseorders or new customer relationships.We face a selling cycle of variable lengths to secure new purchase agreements. Even if we succeed in developing a relationship with a potential newcustomer and/or obtaining design wins, we may not be successful in securing new sales for our products or services, or new customers. In addition, we cannotaccurately predict the timing of entering into purchase agreements with new customers due to the complex purchase decision processes of some largeinstitutional customers, such as healthcare providers or school districts, which often involve high-level management or board approvals. Consequently, wehave only a limited ability to predict the timing of specific new customer relationships.We have a limited operating history and a history of net losses. We may not achieve or maintain profitability.Sphere 3D has only recently moved from being a development stage company to commercial operations. As such, we have a limited operating historyand limited non-recurring revenues derived from operations. Significant expenditures have been focused on research and development to create theGlassware 2.0™ (“Glassware”) product offering. Sphere 3D’s near-term focus has been in actively developing reference accounts and building sales,marketing and support capabilities. Overland, which we acquired in December 2014, also has a history of net losses since fiscal 2006. We expect to continueto incur net losses and we may not achieve or maintain profitability. We may see continued losses during 2018 and as a result of these and other factors, wemay not be able to achieve, sustain or increase profitability in the near future.18Even after the Overland acquisition, Sphere 3D is subject to many risks common to early-stage enterprises, including under-capitalization, cashshortages, limitations with respect to personnel, financial, and other resources, technology, and market acceptance issues. There is no assurance that we willbe successful in achieving a return on shareholders’ investment and the likelihood of success must be considered considering our stage of operations.Our plans for growth will place significant demands upon our resources. If we are unsuccessful in achieving our plan for growth, our business could beharmed.We are actively pursuing a plan to market our products domestically and internationally, with our principal international market being Europe. Theplan will place significant demands upon managerial, financial, and human resources. Our ability to manage future growth will depend in large part uponseveral factors, including our ability to rapidly:•build or leverage, as applicable, a network of channel partners to create an expanding presence in the evolving marketplace for our products andservices;•build or leverage, as applicable, a sales team to keep end-users and channel partners informed regarding the technical features, issues and key sellingpoints of our products and services;•attract and retain qualified technical personnel in order to continue to develop reliable and flexible products and provide services that respond toevolving customer needs;•develop support capacity for end-users as sales increase, so that we can provide post-sales support without diverting resources from productdevelopment efforts; and•expand our internal management and financial controls significantly, so that we can maintain control over our operations and provide support toother functional areas as the number of personnel and size increases.Our inability to achieve any of these objectives could harm our business, financial condition and results of operations.Our market is competitive and dynamic. New competing products and services could be introduced at any time that could result in reduced profitmargins and loss of market share.The technology industry is very dynamic, with new technology and services being introduced by a range of players, from larger established companiesto start-ups, on a frequent basis. Our competitors may announce new products, services, or enhancements that better meet the needs of end-users or changingindustry standards. Further, new competitors or alliances among competitors could emerge. Increased competition may cause price reductions, reduced grossmargins and loss of market share, any of which could have a material adverse effect on our business, financial condition and results of operations.Furthermore, the worldwide storage market is intensely competitive. A number of manufacturers of tape-based and disk-based storage solutionscompete for a limited number of customers. Barriers to entry are relatively low in these markets, and some of our competitors in this market have substantiallygreater financial and other resources, larger research and development staffs, and more experience and capabilities in manufacturing, marketing anddistributing products. Ongoing pricing pressure could result in significant price erosion, reduced profit margins and loss of market share, any of which couldhave a material adverse effect on our business, results of operations, financial position and liquidity.19Our success depends on our ability to anticipate technological changes and develop new and enhanced products.The markets for our products are characterized by rapidly changing technology, evolving industry standards and increasingly sophisticated customerrequirements. The introduction of products embodying new technology and the emergence of new industry standards can negatively impact themarketability of our existing products and can exert price pressures on existing products. It is critical to our success that we are able to anticipate and reactquickly to changes in technology or in industry standards and to successfully develop, introduce, manufacture and achieve market acceptance of new,enhanced and competitive products on a timely basis and cost-effective basis. We invest substantial resources towards continued innovation; however, therecan be no assurance that we will successfully develop new products or enhance and improve our existing products, that new products and enhanced andimproved existing products will achieve market acceptance or that the introduction of new products or enhanced existing products by others will notnegatively impact us. Our inability to develop products that are competitive in technology and price and that meet end-user needs could have a materialadverse effect on our business, financial condition or results of operations.Development schedules for technology products are inherently uncertain. We may not meet our product development schedules, and developmentcosts could exceed budgeted amounts. Our business, results of operations, financial position and liquidity may be materially and adversely affected if theproducts or product enhancements that we develop are delayed or not delivered due to developmental problems, quality issues or component shortageproblems, or if our products or product enhancements do not achieve market acceptance or are unreliable. We or our competitors will continue to introduceproducts embodying new technologies, such as new sequential or random access mass storage devices. In addition, new industry standards may emerge. Suchevents could render our existing products obsolete or not marketable, which would have a material adverse effect on our business, results of operations,financial position and liquidity.Our business is dependent on the continued market acceptance and usage of disk and tape-based solutions. The impact of recent storage technologytrends on our business is uncertain.The industry in which we operate has experienced significant historical growth due to the continuing increase in the demand for storage by consumers,enterprises and government bodies around the world. While information technology spending has fluctuated periodically due to technology transitions andchanging economic and business environments, overall growth in demand for storage has continued. Recent technology trends, such as the emergence ofhosted storage, software as a service and mobile data access are driving significant changes in storage architectures and solution requirements. The impact ofthese trends on overall long-term growth patterns is uncertain. Nevertheless, if the general level of historic industry growth, or if the growth of the specificmarkets in which we compete, were to decline, our business and results of operations could suffer.As a result of the acquisition of Overland, we expect to continue to derive a portion of our revenue from products that use magnetic tape drives forbackup and recovery of digital data. Our tape-based storage solutions now compete directly with other storage technologies, such as hard disk drives, andmay face competition in the future from other emerging technologies. The prices of hard disk drives continue to decrease as their capacity and performanceincrease. We expect our tape-based products to face increased competition from these alternative technologies and come under increasing pricing pressure. Ifour strategy to compete in disk-based markets does not succeed, it could have a material adverse effect on our business, results of operations, financialposition and liquidity.Our management team continually reviews and evaluates our product portfolio, operating structure, and markets to assess the future viability of ourexisting products and market positions. We may determine that the infrastructure and expenses necessary to sustain an existing product offering are greaterthan the potential contribution margin that we would realize. As a result, we may determine that it is in our best interest to exit or divest one or more existingproduct offerings, which could result in costs incurred for exit or disposal activities and/or impairments of long-lived assets. Moreover, if we do not identifyother opportunities to replace discontinued products or operations, our revenues would decline, which could lead to further net losses and adversely impactthe market price of our common shares.20In addition, we could incur charges for excess and obsolete inventory. The value of our inventory may be adversely affected by factors that affect ourability to sell the products in our inventory. Such factors include changes in technology, introductions of new products by us or our competitors, the currentor future economic downturns, or other actions by our competitors. If we do not effectively forecast and manage our inventory, we may need to write offinventory as excess or obsolete, which adversely affects cost of sales and gross profit. Our business has previously experienced, and we may in the futureexperience, reductions in sales of older generation products as customers delay or defer purchases in anticipation of new products that we or our competitorsmay introduce. We have established reserves for slow moving or obsolete inventory. These reserves, however, may prove to be inadequate, which wouldresult in additional charges for excess or obsolete inventory.Our products may contain defects in components or design, and our warranty reserves may not adequately cover our warranty obligations for theseproducts.Although we employ a vigorous testing and quality assurance program, our products may contain defects or errors, particularly when first introducedor as new versions are released. We may not discover such defects or errors until after a solution has been released to a customer and used by the customer andend-users. Defects and errors in our products could materially and adversely affect our reputation, result in significant costs, delay planned release dates andimpair our ability to sell our products in the future. The costs incurred in correcting any solution defects or errors may be substantial and could adverselyaffect our operating margins. While we plan to continually test our products for defects and errors and work with end-users through our post-sales supportservices to identify and correct defects and errors, defects or errors in our products may be found in the future.We have also established reserves for the estimated liability associated with product warranties. However, we could experience unforeseencircumstances where these or future reserves may not adequately cover our warranty obligations. For example, the failure or inadequate performance ofproduct components that we purchase could increase our warranty obligations beyond these reserves.The failure to attract, hire, retain and motivate key personnel could have a significant adverse impact on our operations.Our success depends on the retention and maintenance of key personnel, including members of senior management and our technical, sales andmarketing teams. Achieving this objective may be difficult due to many factors, including competition for such highly skilled personnel; fluctuations inglobal economic and industry conditions; changes in our management or leadership; competitors’ hiring practices; and the effectiveness of our compensationprograms. The loss of any of these key persons could have a material adverse effect on our business, financial condition or results of operations. Additionally,prior to our acquisition of Overland, Overland experienced a prolonged period of operating losses and declines in its cash position, which affected Overland’semployee morale and retention and may continue to affect the morale and retention of our employees. Our success is also dependent on our continuingability to identify, hire, train, motivate and retain highly qualified management, technical, sales and marketing personnel. Any such new hire may require asignificant transition period prior to making a meaningful contribution. Competition for qualified employees is particularly intense in the technologyindustry, and we have in the past experienced difficulty recruiting qualified employees. Our failure to attract and to retain the necessary qualified personnelcould seriously harm our operating results and financial condition. Competition for such personnel can be intense, and no assurance can be provided that wewill be able to attract or retain highly qualified technical and managerial personnel in the future, which may have a material adverse effect on our futuregrowth and profitability. We do not have key man insurance.21Our financial results may fluctuate substantially for many reasons, and past results should not be relied on as indications of future performance.Our revenues and operating results may fluctuate from quarter to quarter and from year to year due to a combination of factors, including, but notlimited to:•varying size, timing and contractual terms of orders for our products, which may delay the recognition of revenue;•competitive conditions in the industry, including strategic initiatives by us or our competitors, new products or services, product or serviceannouncements and changes in pricing policy by us or our competitors;•market acceptance of our products and services;•our ability to maintain existing relationships and to create new relationships with channel partners;•the discretionary nature of purchase and budget cycles of our customers and end-users;•the length and variability of the sales cycles for our products;•general weakening of the economy resulting in a decrease in the overall demand for our products and services or otherwise affecting the capitalinvestment levels of businesses with respect to our products or services;•timing of product development and new product initiatives.•changes in customer mix;•increases in the cost of, or limitations on, the availability of materials;•fluctuations in average selling prices;•changes in product mix;•increases in costs and expenses associated with the introduction of new products; and•currency exchange fluctuations.Further, the markets that we serve are volatile and subject to market shifts that we may be unable to anticipate. A slowdown in the demand forworkstations, mid-range computer systems, networks and servers could have a significant adverse effect on the demand for our products in any given period.In the past, we have experienced delays in the receipt of purchase orders and, on occasion, anticipated purchase orders have been rescheduled or have notmaterialized due to changes in customer requirements. Our customers may cancel or delay purchase orders for a variety of reasons, including, but not limitedto, the rescheduling of new product introductions, changes in our customers’ inventory practices or forecasted demand, general economic conditionsaffecting our customers’ markets, changes in our pricing or the pricing of our competitors, new product announcements by us or others, quality or reliabilityproblems related to our products, or selection of competitive products as alternate sources of supply. In particular, our ability to forecast sales to distributors,VARs and DMRs is especially limited because these customers typically provide us with relatively short order lead times or are permitted to change orders onshort notice.Thus, there can be no assurance that we will be able to reach profitability on a quarterly or annual basis. We believe that our revenue and operatingresults will continue to fluctuate, and that period-to-period comparisons are not necessarily indications of future performance. Our revenue and operatingresults may fail to meet the expectations of public market analysts or investors, which could have a material adverse effect on the price of our common shares.In addition, portions of our expenses are fixed and difficult to reduce if our revenues do not meet our expectations. These fixed expenses magnify the adverseeffect of any revenue shortfall.Our plans for implementing our business strategy and achieving profitability are based upon the experience, judgment and assumptions of our keymanagement personnel, and available information concerning the communications and technology industries. If management’s assumptions prove to beincorrect, it could have a material adverse effect on our business, financial condition or results of operations.22We are subject to exchange rate risk in connection with our international operations.A substantial portion of our revenue is earned in U.S. dollars and Euros. Fluctuations in the exchange rate between the U.S. dollar and other currencies,may have a material adverse effect on our business, financial condition and operating results. Further, our sales in international markets are denominated inU.S. dollars as well as local currency. Our wholly-owned subsidiaries in Canada, Europe and Asia incur costs that are denominated in local currencies. Asexchange rates vary, these results when translated into U.S. dollars may vary from expectations and adversely impact overall expected results. A weaker U.S.dollar would result in an increase to revenue and expenses upon consolidation, and a stronger U.S. dollar would result in a decrease to revenue and expensesupon consolidation. There can be no assurances that we will prove successful in our effort to manage currency risk, which may adversely impact ouroperating results.We rely on indirect sales channels to market and sell our branded products. Therefore, the loss of, or deterioration in, our relationship with one ormore of our distributors or resellers could negatively affect our operating results.We have relationships with third party resellers, OEMs, system integrators and enterprise application providers that facilitate our ability to sell andimplement our products. These business relationships are important to extend the geographic reach and customer penetration of our sales force and ensurethat our products are compatible with customer network infrastructures and with third party products. Further, we sell all of our Overland branded productsthrough our network of distributors, VARs, and DMRs, who in turn sell our products to end users.We believe that our success depends, in part, on our ability to develop and maintain strategic relationships with resellers, independent softwarevendors, OEMs, system integrators, and enterprise application providers. Should any of these third parties go out of business, or choose not to work with us,we may be forced to increase the development of those capabilities internally, incurring significant expense and adversely affecting operating margins. Anyof these third parties may develop relationships with other companies, including those that develop and sell products that compete with ours. We could losesales opportunities if we fail to work effectively with these parties or they choose not to work with us. Most of our distributors and resellers also carrycompeting product lines that they may promote over our products. A distributor or reseller might not continue to purchase our products or market themeffectively, and each determines the type and amount of our products that it will purchase from us and the pricing of the products that it sells to end usercustomers. Further, the long-term success of any of our distributors or resellers is difficult to predict, and we have no purchase commitments or long-termorders from any of them to assure us of any baseline sales through these channels.Therefore, the loss of, or deterioration in, our relationship with one or more of our distributors or resellers could negatively affect our operating results.Our operating results could also be adversely affected by a number of factors, including, but not limited to:•a change in competitive strategy that adversely affects a distributor’s or reseller’s willingness or ability to stock and distribute our products;•the reduction, delay or cancellation of orders or the return of a significant amount of our products;•the loss of one or more of our distributors or resellers; and•any financial difficulties of our distributors or resellers that result in their inability to pay amounts owed to us.23If our suppliers fail to meet our manufacturing needs, it would delay our production and our product shipments to customers and this could negativelyaffect our operations.Some of our products have a large number of components and subassemblies produced by outside suppliers. We depend greatly on these suppliers foritems that are essential to the manufacture of our products, including tape drives and printed circuit boards. We work closely with our regional, national andinternational suppliers, which are carefully selected based on their ability to provide quality parts and components that meet both our technicalspecifications and volume requirements. For certain items, we qualify only a single source, which magnifies the risk of shortages and decreases our ability tonegotiate with that supplier on the basis of price. From time to time, we have in the past been unable to obtain as many drives as have needed due to driveshortages or quality issues from certain of our suppliers. If these suppliers fail to meet our manufacturing needs, it would delay our production and ourproduct shipments to customers and negatively affect our operations.Our international operations are important to our business and involve unique risks related to financial, political, and economic conditions.We expect sales to customers outside of the U.S. to continue to represent a significant portion of our total sales in the future and we may be subject toadditional risks associated with doing business in foreign countries. Our future results could be materially adversely affected by a variety of political,economic or other factors relating to our operations outside the U.S., any or all of which could have a material adverse effect on our operating results andfinancial condition. In addition to the language barriers, different presentations of financial information, different business practices, and other culturaldifferences and barriers, ongoing business risks may result from the international political situation, uncertain legal systems and applications of law,prejudice against foreigners, corrupt practices, uncertain economic policies and potential political and economic instability. In doing business in foreigncountries we may also be subject to such risks, including, but not limited to, the following:•cultural and language differences;•increased costs of doing business in countries with limited infrastructure;•possible difficulties in collecting accounts receivable;•corporate and personal liability for violations of local laws;•the imposition of governmental controls mandating compliance with various foreign and U.S. export laws;•currency exchange fluctuations;•weak economic conditions in foreign markets;•political or social unrest;•economic instability or weakness in a specific country or region;•environmental and trade protection measures and other legal and regulatory requirements;•health or similar issues, such as pandemic or epidemic or natural disasters;•trade restrictions, tariffs and taxes;•expropriation;•longer payment cycles typically associated with international sales; and•difficulties in staffing and managing international operations.24We also may face competition from local companies which have longer operating histories, greater name recognition, and broader customerrelationships and industry alliances in their local markets, and it may be difficult to operate profitably in some markets as a result of such competition.Furthermore, we may be unable to comply with changes in foreign laws, rules and regulations applicable to us in the future, which could have a materialadverse effect on our business, results of operations, financial position and liquidity.We are subject to laws, regulations and similar requirements, changes to which may adversely affect our business and operations.We are subject to laws, regulations and similar requirements that affect our business and operations, including, but not limited to, the areas ofcommerce, intellectual property, income and other taxes, labor, environmental, health and safety, and our compliance in these areas may be costly. While wehave implemented policies and procedures to comply with laws and regulations, there can be no assurance that our employees, contractors, suppliers oragents will not violate such laws and regulations or our policies. Any such violation or alleged violation could materially and adversely affect our business.Any changes or potential changes to laws, regulations or similar requirements, or our ability to respond to these changes, may significantly increase our coststo maintain compliance or result in our decision to limit our business or products, which could materially harm our business, results of operations and futureprospects.The Dodd-Frank Wall Street Reform and Consumer Protection Act includes provisions regarding certain minerals and metals, known as conflictminerals, mined from the Democratic Republic of Congo and adjoining countries. These provisions require companies to undertake due diligence proceduresand report on the use of conflict minerals in its products, including products manufactured by third parties. Compliance with these provisions will cause us toincur costs to certify that our supply chain is conflict free and we may face difficulties if our suppliers are unwilling or unable to verify the source of theirmaterials. Our ability to source these minerals and metals may also be adversely impacted. In addition, our customers may require that we provide them with acertification and our inability to do so may disqualify us as a supplier.Furthermore, future changes to U.S. tax laws could materially adversely affect Sphere 3D. Under current law, Sphere 3D is expected to be treated as aforeign corporation for U.S. federal income tax purposes. However, changes to the rules in Section 7874 of the Code or the Treasury regulations promulgatedthereunder or other guidance issued by the Treasury or the Internal Revenue Service (“IRS”) could adversely affect Sphere 3D’s status as a foreigncorporation for U.S. federal income tax purposes, and any such changes could have prospective or retroactive application. On May 20, 2014, Senator CarlLevin and Representative Sander M. Levin introduced the Stop Corporate Inversions Act of 2014 (the “Inversion Bill”) in the Senate and the House ofRepresentatives, respectively. Similar legislation was introduced by Senator Dick Durbin and Representative Sander M. Levin on January 20, 2015 and July26, 2017. In its current form, the Inversion Bill would treat Sphere 3D as a U.S. corporation if the management and control of the expanded affiliated groupwhich includes Sphere 3D occurs, directly or indirectly, primarily within the U.S. and the expanded affiliated group has significant U.S. business activities. Ifenacted, the Inversion Bill would apply to taxable years ending after May 8, 2014. Because certain members of Sphere 3D’s senior management team residein the U.S., and are expected to continue to reside in the U.S., Sphere 3D could be treated as a U.S. corporation if the Inversion Bill becomes law.We have made a number of acquisitions in the past and we may make acquisitions in the future. Our ability to identify complementary assets, productsor businesses for acquisition and successfully integrate them could affect our business, financial condition and operating results.In the future, we may continue to pursue acquisitions of assets, products or businesses that we believe are complementary to our existing businessand/or to enhance our market position or expand our product portfolio. There is a risk that we will not be able to identify suitable acquisition candidatesavailable for sale at reasonable prices, complete any acquisition, or successfully integrate any acquired product or business into our operations. We are likelyto face competition for acquisition candidates from other parties including those that have substantially greater available resources. Acquisitions mayinvolve a number of other risks, including:•diversion of management’s attention;•disruption to our ongoing business;25•failure to retain key acquired personnel;•difficulties in integrating acquired operations, technologies, products or personnel;•unanticipated expenses, events or circumstances;•assumption of disclosed and undisclosed liabilities; and•inappropriate valuation of the acquired in-process research and development, or the entire acquired business.If we do not successfully address these risks or any other problems encountered in connection with an acquisition, the acquisition could have amaterial adverse effect on our business, results of operations and financial condition. Problems with an acquired business could have a material adverse effecton our performance or our business as a whole. In addition, if we proceed with an acquisition, our available cash may be used to complete the transaction,diminishing our liquidity and capital resources, or shares may be issued which could cause significant dilution to existing shareholders.We are implementing cost reduction efforts. We may need to implement additional cost reduction efforts, which could materially harm our business.Since our acquisition of the Overland business, we have been implementing certain cost reduction efforts, which we intend to continue. There can beno assurance that these cost reduction efforts will be successful. As a result, we may need to implement further cost reduction efforts across our operations,such as further reductions in the cost of our workforce and/or suspending or curtailing planned programs, either of which could materially harm our business,results of operations and future prospects.Risks Related to Intellectual PropertyOur ability to compete depends in part on our ability to protect our intellectual property rights.Our success depends in part on our ability to protect our rights in our intellectual property. We rely on various intellectual property protections,including copyright, trade-mark and trade secret laws and contractual provisions, to preserve our intellectual property rights. We have filed a number ofpatent applications and have historically protected our intellectual property through trade secrets and copyrights. As our technology is evolving and rapidlychanging, current intellectual property rights may not adequately protect us.Intellectual property rights may not prevent competitors from developing products that are substantially equivalent or superior to our products.Competitors may independently develop similar products, duplicate our products or, if patents are issued to us, design around these patents. To the extentthat we have or obtain patents, such patents may not afford meaningful protection for our technology and products. Others may challenge our patents and, asa result, our patents could be narrowed, invalidated or declared unenforceable. The patents that are material to our business began expiring in November2015. In addition, our current or future patent applications may not result in the issuance of patents in the U.S. or foreign countries.Although we believe we have a proprietary platform for our technologies and products, we may in the future become subject to claims for infringementof intellectual property rights owned by others. Further, to protect our own intellectual property rights, we may in the future bring claims forinfringement against others.Our commercial success depends, in part, upon not infringing intellectual property rights owned by others. Although we believe that we have aproprietary platform for our technologies and products, we cannot determine with certainty whether any existing third party patents or the issuance of anythird party patents would require us to alter our technology, obtain licenses or cease certain activities. We may become subject to claims by third parties thatour technology infringes their intellectual property rights. While we provide our customers with a qualified indemnity against the infringement of third partyintellectual property rights, we may become subject to these claims either directly or through indemnities against these claims that we routinely provide toour end-users and channel partners.26Further, our customers may use our products in ways that may infringe the intellectual property rights or third parties and/or require a license from thirdparties. Although our customers are contractually obligated to use our products only in a manner that does not infringe third party intellectual propertyrights, we cannot guarantee that such third parties will not seek remedies against us for providing products that may enable our customers to infringe theintellectual property rights of others.In addition, we may receive in the future, claims from third parties asserting infringement, claims based on indemnities provided by us, and otherrelated claims. Litigation may be necessary to determine the scope, enforceability and validity of third party proprietary or other rights, or to establish ourproprietary or other rights. Furthermore, despite precautions, it may be possible for third parties to obtain and use our intellectual property without ourauthorization. Policing unauthorized use of intellectual property is difficult, and some foreign laws do not protect proprietary rights to the same extent as thelaws of Canada or the U.S. To protect our intellectual property, we may become involved in litigation. In addition, other companies may initiate similarproceedings against us. The patent position of information technology firms is highly uncertain, involves complex legal and factual questions, and continuesto 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 claimsallowed or the degree of protection afforded under information technology patents.Some of our competitors have, or are affiliated with companies having, substantially greater resources than us and these competitors may be able tosustain 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 suchclaims could:•divert the attention of our management, cause significant delays, materially disrupt the conduct of our business or materially adversely affect ourrevenue, financial condition and results of operations;•be time consuming to evaluate and defend;•result in costly litigation and substantial expenses;•cause product shipment delays or stoppages;•subject us to significant liabilities;•require us to enter into costly royalty or licensing agreements;•require us to modify or stop using the infringing technology; or•result in costs or other consequences that have a material adverse effect on our business, results of operations and financial condition.Risks Related to Our Public Company Status and Our Common SharesIf our common shares are delisted from the NASDAQ Capital Market, our business, financial condition, results of operations and share price could beadversely affected, and the liquidity of our common shares and our ability to obtain financing could be impaired.We have in the past and may in the future fail to comply with the minimum $1.00 per share closing bid price requirement for continued listing on theNASDAQ Capital Market. After receiving notice of non-compliance from NASDAQ in August 2016, we regained compliance with this requirement in July2017 by effecting a 1-for-25 reverse stock split on July 11, 2017.Maintaining the listing of our common shares on the NASDAQ Capital Market requires that we comply with the closing bid price requirement,amongst other certain listing requirements. If our common shares cease to be listed for trading on NASDAQ for any reason, it may harm our share price,increase the volatility of our share price, decrease the level of trading activity and make it more difficult for investors to buy or sell shares of our commonshares. Our failure to maintain a listing on NASDAQ may constitute an event of default under our outstanding indebtedness as well as any futureindebtedness, which would accelerate the maturity date of such debt or trigger other obligations. In addition, certain institutional investors that are notpermitted to own securities of non-listed companies may be required to sell their shares, which would adversely affect the trading price of our common shares.If we are not listed on NASDAQ, we will be limited in our ability to raise additional capital we may need.27Future sales of our securities under certain circumstances may trigger price-protection provisions in outstanding warrants, which would dilute yourinvestment and could result in a decline in the trading price of our common shares.In connection with our registered direct offering in December 2015, we issued a warrant exercisable to purchase up to 60,000 common shares thatcontains certain price protection provisions. If we, at any time while these warrants are outstanding, effect certain variable rate transactions and the issueprice, conversion price or exercise price per share applicable thereto is less than the exercise price then in effect for the warrants, then the exercise price of thewarrants will be reduced to equal such price. In addition, in connection with our private placement offering in March 2017, we issued warrants that containcertain price protection provisions. If at any time while the warrants are outstanding, we sell or grant options to purchase, reprice or otherwise issue anycommon shares or securities convertible into common shares at a price less than $7.50, then the exercise price for the warrants will be reduced to such price,provided that the exercise price will not be lower than $0.10, and the number of common shares issuable under the warrants will be increased such that, aftertaking into account the decrease in the exercise price, the aggregate exercise price under the warrants will remain the same. The Company’s reverse shareconsolidation, which became effective on July 11, 2017, did not adjust the minimum exercise price of the warrants. Additionally, in connection with ourprivate placement offering in August 2017, we issued warrants that also contain certain price protection provisions. Until December 31, 2017, if the Companysells or grants options to purchase, reprice or otherwise issue any common shares or securities convertible into common shares at a price less than $5.00,subject to certain exempted issuances, then the exercise price for these warrants will be adjusted to a price that is equal to 105% of such lower price. Thetriggering of these price protection provisions, together with the exercise of these warrants, could cause additional dilution to our shareholders.If we fail to maintain compliance with the terms of certain registration rights agreements, we may have to pay liquidated damages to our investors,which will increase our negative cash flows.Under the terms of our registration rights agreements entered into with certain investors in connection with private placements of our securities inMarch 2017 and August 2017, if we fail to comply with certain provisions set forth in these agreements, including covenants requiring that we maintain theeffectiveness of the registration statements registering these securities, then we will be required to pay liquidated damages to our investors. There can be noassurance that the registration statements will remain effective for the time periods necessary to avoid payment of liquidated damages. If we are required topay our investors liquidated damages, this could materially harm our business and future prospects.The market price of our common shares is volatile.The market price for common shares may be volatile and subject to wide fluctuations in response to numerous factors, many of which are beyond ourcontrol, including the following:•price and volume fluctuations in the overall stock market from time to time;•volatility in the market prices and trading volumes of technology stocks;•changes in operating performance and stock market valuations of other technology companies generally, or those in our industry in particular;•future capital raising activities;•sales of common shares by holders thereof or by us;•failure of securities analysts to maintain coverage of Sphere 3D, changes in financial estimates by securities analysts who follow Sphere 3D, or ourfailure to meet these estimates or the expectations of investors;•the financial projections we may provide to the public, any changes in those projections or our failure to meet those projections;•market acceptance of our products and technologies;•announcements by us or our competitors of new products or services;28•the public’s reaction to our press releases, other public announcements and filings with the SEC and the applicable Canadian securities regulatoryauthorities;•rumors and market speculation involving us or other companies in our industry;•actual or anticipated changes in our operating results or fluctuations in our operating results;•actual or anticipated developments in our business, our competitors’ businesses or the competitive landscape generally;•litigation involving us, our industry or both, or investigations by regulators into our operations or those of our competitors;•developments or disputes concerning our intellectual property or other proprietary rights;•announced or completed acquisitions of businesses or technologies by us or our competitors;•new laws or regulations or new interpretations of existing laws or regulations applicable to us and our business;•changes in accounting standards, policies, guidelines, interpretations or principles;•any significant change in our executive officers and other key personnel or Board of Directors;•general economic conditions and slow or negative growth of our markets;•release of transfer restrictions on certain outstanding common shares;•news reports relating to trends, concerns or competitive developments, regulatory changes and other related issues in our industry or target markets.Financial markets may experience price and volume fluctuations that affect the market prices of equity securities of companies and that are unrelatedto the operating performance, underlying asset values or prospects of such companies. Accordingly, the market price of the common shares may decline evenif our operating results, underlying asset values or prospects have not changed. As well, certain institutional investors may base their investment decisions onconsideration of our governance and social practices and performance against such institutions’ respective investment guidelines and criteria, and failure tomeet such criteria may result in a limited or no investment in our common shares by those institutions, which could adversely affect the trading price of ourcommon shares. There can be no assurance that fluctuations in price and volume will not occur due to these and other factors.In the past, plaintiffs have often initiated securities class action litigation against a company following periods of volatility in the market price of itssecurities. We may in the future be a target of similar litigation. Securities litigation could result in substantial costs and liabilities and could divertmanagement’s attention from day-to-day operations and consume resources, such as cash. In addition, the resolution of those matters may require us to issueadditional common shares, which could potentially result in dilution to our existing shareholders. Expenses incurred in connection with these matters (whichinclude fees of lawyers and other professional advisors and potential obligations to indemnify officers and directors who may be parties to such actions)could adversely affect our cash position. See Item 18 “Financial Statements”, Note 14 “Commitments and Contingencies”.We must comply with the financial reporting requirements of a public company, as well as other requirements associated with being listed on NASDAQ.Sphere 3D is subject to reporting and other obligations under applicable Canadian securities laws, SEC rules and the rules of the NASDAQ CapitalMarket. These reporting and other obligations, including National Instrument 52-102 - Continuous Disclosure Obligations and National Instrument 52-109 -Certification of Disclosure in Issuers’ Annual and Interim Filings, place significant demands on our management, administrative, operational and accountingresources. Moreover, any failure to maintain effective internal controls could cause us to fail to meet our reporting obligations or result in materialmisstatements in our consolidated financial statements. If we cannot provide reliable financial reports or prevent fraud, our reputation and operating resultscould be materially harmed, which could also cause investors to lose confidence in our reported financial information, which could result in a lower tradingprice of our common shares.29Management does not expect that our disclosure controls and procedures and internal controls over financial reporting will prevent all errors and allfraud. A control system, no matter how well designed and implemented, can provide only reasonable, not absolute, assurance that its objectives will be met.Further, the design of a control system must reflect the fact that there are resource constraints, and the benefits of controls must be considered relative to theircosts. Due to the inherent limitations in all control systems, no evaluation of controls can provide absolute assurance that all control issues within a companyare detected. The inherent limitations include the realities that judgments in decision-making can be faulty, and that breakdowns can occur because of simpleerrors or mistakes. Controls can also be circumvented by individual acts of some persons, by collusion of two or more people or by management override ofthe controls. Due to the inherent limitations in a cost-effective control system, misstatements due to error, or fraud may occur and not be detected.Sphere 3D is an “emerging growth company” as defined in the Jumpstart Our Business Startups (“JOBS”) Act, enacted on April 5, 2012, and Sphere 3Dwill continue to qualify as an “emerging growth company” until the earliest to occur of: (a) the last day of the fiscal year during which Sphere 3D has totalannual gross revenues of $1.0 billion or more; (b) the last day of the fiscal year of Sphere 3D following the fifth anniversary of the date of the first sale ofcommon equity securities of Sphere 3D pursuant to an effective registration statement under the Securities Act; (c) the date on which Sphere 3D has, duringthe previous three-year period, issued more than $1.0 billion in nonconvertible debt; or (d) the date on which Sphere 3D is deemed to be a ‘large acceleratedfiler’.For so long as Sphere 3D continues to qualify as an emerging growth company, it will be exempt from the requirement to include an auditor attestationreport relating to internal control over financial reporting pursuant to Section 404(b) of the Sarbanes-Oxley Act (“SOA”) in its annual reports filed under theExchange Act, even if it does not qualify as a “smaller reporting company”. In addition, section 103(a)(3) of the SOA has been amended by the JOBS Act toprovide that, among other things, auditors of an emerging growth company are exempt from any rules of the Public Company Accounting Oversight Boardrequiring mandatory audit firm rotation or a supplement to the auditor’s report in which the auditor would be required to provide additional informationabout the audit and the financial statements of the registrant (auditor discussion and analysis).Sphere 3D is and will remain through December 31, 2018, an “emerging growth company” within the meaning under the JOBS Act, and until Sphere3D ceases to be an emerging growth company Sphere 3D may take advantage of certain exemptions from various reporting requirements that are applicableto other public companies, including, but not limited to, not being required to comply with the auditor attestation requirements of Section 404 of the SOA.Investors may find our common shares less attractive because Sphere 3D relies on these exemptions. If some investors find our common shares less attractiveas a result, there may be a less active trading market for our common shares and our share price may be more volatile.We may be treated as a Passive Foreign Investment Company.There is also an ongoing risk that Sphere 3D may be treated as a Passive Foreign Investment Company, or PFIC, for U.S. federal income tax purposes. Anon-U.S. corporation generally will be considered to be a PFIC for any taxable year in which 75% or more of its gross income is passive income, or 50% ormore of the average value of its assets are considered “passive assets” (generally, assets that generate passive income). This determination is highly factual,and will depend upon, among other things, Sphere 3D’s market valuation and future financial performance. Sphere 3D believes that it was classified as a PFICduring the tax year ended December 31, 2013. However, based on current business plans and financial expectations, Sphere 3D expects that it will not be aPFIC for its current tax years ending December 31, 2017 and 2016, as well as current business plans and financial expectations, Sphere 3D expects that it willnot be a PFIC for its current tax year ending December 31, 2018 and for the foreseeable future. If Sphere 3D were to be classified as a PFIC for any futuretaxable year, holders of Sphere 3D common shares who are U.S. taxpayers would be subject to adverse U.S. federal income tax consequences.30Certain of our directors, officers and management could be in a position of conflict of interest.Certain of the directors, officers and members of management of Sphere 3D may also serve as directors and/or officers of other companies. We maycontract with such directors, officers, members of management and such other companies or with affiliated parties or other companies in which such directors,officers or members of management own or control. These persons may obtain compensation and other benefits in transactions relating to Sphere 3D.Consequently, there exists the possibility for such directors, officers and members of management to be in a position of conflict. Any decision made by any ofsuch directors, officers and members of management involving Sphere 3D are being made in accordance with their duties and obligations to deal fairly and ingood faith with a view to the best interests of Sphere 3D. Additionally, certain of the directors and officers of Sphere 3D may have interests in the SharePurchase that are different from the Company’s other shareholders.Future sales of common shares by directors, officers and other shareholders could adversely affect the prevailing market price for common shares.Subject to compliance with applicable securities laws, officers, directors and other shareholders and their respective affiliates may sell some or all oftheir common shares in the future. No prediction can be made as to the effect, if any, such future sales will have on the market price of the common sharesprevailing from time to time. However, the future sale of a substantial number of common shares by Sphere 3D’s officers, directors and other shareholders andtheir respective affiliates, or the perception that such sales could occur, could adversely affect prevailing market prices for the common shares.We may issue an unlimited number of common shares. Future sales of common shares will dilute your shares.Sphere 3D’s articles permit the issuance of an unlimited number of common shares, and shareholders will have no pre-emptive rights in connectionwith such further issuances. The directors of Sphere 3D have the discretion to determine the price and the terms of issue of further issuances of common sharesin accordance with applicable laws.Item 1B. Unresolved Staff CommentsNone.Item 2. Properties•We lease an 86,900 square foot facility in Guangzhou, China. This lease expires in July 2019. This facility houses manufacturing of the majority ofour RDX product and repair services.•We own a 25,600 square foot facility in Dortmund, Germany. This facility houses sales and marketing, operations, technical support, andadministrative functions.•We lease a 20,553 square foot facility in a light industrial complex in San Diego, California. The lease expires in March 2020. This facility housesrepair services, research and development, technical support, and administrative functions.•We lease a 19,413 square foot facility in Plano, Texas. The lease expires in July 2021. This facility houses operations, repair services, research anddevelopment and technical support.•We lease a 10,282 square foot facility in San Jose, California. The lease expires in October 2022. The San Jose facility houses research anddevelopment, technical support, sales and marketing, and administrative functions.We also lease additional smaller sales offices and research and development facilities throughout the U.S. and internationally.31Item 3. Legal ProceedingsThe Company is, from time to time, subject to claims and suits arising in the ordinary course of business. In the opinion of management, the ultimateresolution of such pending proceedings will not have a material effect on the Company’s results of operations, financial position or cash flows.Patent Litigation Funding AgreementIn December 2010, Overland entered into a litigation funding agreement (the “Funding Agreement”) with Special Situations Fund III QP, L.P., SpecialSituations Private Equity Fund, L.P., Special Situations Technology Fund, L.P., and Special Situations Technology Fund II, L.P. (collectively, the “SpecialSituations Funds”) pursuant to which the Special Situations Funds agreed to fund certain patent litigation brought by Overland. In May 2014, the SpecialSituations Funds filed a complaint against Overland in the Supreme Court for New York County, alleging breach of the Funding Agreement. The SpecialSituations Funds allege that Overland’s January 2014 acquisition of Tandberg Data entitled the Special Situation Funds to a $6.0 million payment under theFunding Agreement, and therefore Overland’s refusal to make the payment constitutes a breach of the Funding Agreement by Overland. In November 2014,the Special Situations Funds amended their complaint to allege that Overland breached the Funding Agreement’s implied covenant of good faith and fairdealing by settling the patent litigation with BDT in bad faith to avoid a payment obligation under the Funding Agreement. The Special Situations Fundsare seeking $6.0 million in contractual damages as well as costs and fees. On October 10, 2017, the Court entered an order granting Overland’s motion forsummary judgment and dismissing the Special Situations Funds’ complaint in its entirety with prejudice. The Special Situations Funds have filed a notice ofappeal.Patent InfringementIn May 2013, Safe Storage LLC (“Safe Storage”), a Delaware limited liability company, filed a complaint against Overland in the U.S. District Courtfor the District of Delaware alleging infringement of U.S. Patent No. 6,978,346 by our products. In February 2017, Overland and Safe Storage entered into asettlement agreement, pursuant to which the claim was dismissed.OtherIn January 2018, Mr. Vito Lupis filed a statement of claim in the Ontario Court of Justice alleging, among other things, breach of contracts, deceit andnegligence against Mr. Giovanni J. Morelli, a former officer of the Company, and vicarious liability against the Company, in connection with stock purchaseagreements and other related agreements that would have been entered into between Mr. Lupis and the Company in 2012. The Company believes theallegations are without merit and plans to vigorously defend itself against the allegations.In April 2015, we filed a proof of claim in connection with bankruptcy proceedings of V3 Systems, Inc. (“V3”) based on breaches by V3 of the AssetPurchase Agreement entered into between V3 and the Company dated February 11, 2014 (the “APA”). On October 6, 2015, UD Dissolution Liquidating Trust(“UD Trust”), the apparent successor to V3, filed a complaint against us and certain of our current and former directors in the U.S. Bankruptcy Court for theDistrict of Utah Central Division objecting to our proof of claim and asserting claims for affirmative relief against us and our directors. This complaintalleges, among other things, that Sphere breached the APA and engaged in certain other actions and/or omissions that caused V3 to be unable to timely sellthe Sphere common shares received by V3 pursuant to the APA. The plaintiff seeks, among other things, monetary damages for the loss of the potential earn-out consideration, the value of the common shares held back by us pursuant to the APA and costs and fees. We believe the lawsuit to be without merit andintend to vigorously defend against the action.On December 23, 2015, we filed a motion seeking to dismiss the majority of the claims asserted by the UD Trust. On January 13, 2016, we filed acounterclaim against the UD Trust in which we allege that V3 breached numerous provisions of the APA. On July 22, 2016, we filed a motion seeking totransfer venue of this action to the United States District Court for the District of Delaware. The Bankruptcy Court granted our motion to transfer venue onAugust 30, 2016, and the case was formally transferred to the Delaware Court on October 11, 2016. There is currently no hearing set on our motion to dismiss.32Item 4. Mine Safety DisclosuresNot applicable.PART IIItem 5. Market for Registrant's Common Equity, Related Stockholder Matters and Issuer Purchases of Equity SecuritiesOur common shares are listed on the NASDAQ Capital Market under the symbol “ANY”. The following table sets forth the high and low sales pricesper share of our common stock during each quarter of the two most recent fiscal years: 2017 2016 High Low High LowFirst Quarter $14.00 $5.03 $50.00 $25.50Second Quarter $7.25 $2.75 $34.50 $16.58Third Quarter $6.60 $2.13 $23.75 $10.05Fourth Quarter $3.95 $1.90 $23.00 $4.50On March 16, 2018, the closing sales price of our common stock on the NASDAQ Capital Market was $2.26 per share. As of March 16, 2018, we hadapproximately 31 shareholders of record and beneficial owners of our common shares.DividendsThe Company has not declared or paid any dividends on its common shares to date. The Company’s current intention is to retain any future earningsto support the development of the business of Sphere 3D and does not anticipate paying cash dividends in the foreseeable future. Payment of any futuredividends will be at the discretion of the Board of Directors of Sphere 3D after taking into account various factors, including but not limited to the financialcondition, operating results, cash needs, growth plans and the terms of any credit agreements that Sphere 3D may be a party to at the time. The PurchaseAgreement also imposes certain restrictions upon our ability to pay dividends during the period the Share Purchase is pending. Accordingly, investors mustrely on sales of their Sphere 3D common shares after price appreciation, which may never occur, as the only way to realize a return on their investment.Recent Sales of Unregistered SecuritiesOn March 24, 2017, the Company completed a private placement of warrants exercisable to purchase up to 867,272 common shares under Section 4(a)(2) of the Securities Act of 1933, as amended, and Rule 506 of Regulation D promulgated thereunder. Each warrant had an exercise price of $7.50 per warrantshare. The warrants were exercisable for five years from the date of the effective date of the offering. The exercise price and number of shares issuable uponexercise of the warrants were subject to adjustment in certain circumstances. In August 2017, the Company issued additional common shares, which triggereda price adjustment for the March 24, 2017 warrants from $7.50 to $5.00 and the Company issued, in the aggregate, additional warrants exercisable topurchase up to 433,638 common shares, of which MF Ventures, LLC, a related party, received 90,909 warrants exercisable to purchase common shares. OnMarch 16, 2018, the Company entered into warrant exchange agreements, in a privately negotiated exchange under Section 4(a)(2) of the Securities Act of1933, as amended, pursuant to which the Company issued 1,430,998 common shares in exchange for the surrender and cancellation of the Company’soutstanding March 24, 2017 warrants (the “Exchange”). Immediately after the Exchange, the previously issued warrants became null and void. MF Ventures,LLC, participated in the Exchange by acquiring 299,999 common shares in exchange for a warrant to purchase 272,727 common shares.Item 6. Selected Financial DataNot applicable.33Item 7. Management's Discussion and Analysis of Financial Condition and Results of OperationsThe following discussion and analysis should be read in conjunction with our consolidated financial statements and notes included in the AnnualReport on Form 10-K. In addition to historical information, the following discussion contains forward-looking statements that are subject to risks anduncertainties. Actual results may differ substantially from those referred to herein due to a number of factors, including but not limited to risks described inthe Part I, Item 1A, Risks Factors, and elsewhere in this Annual Report. References to “Notes” are Notes included in our Notes to Consolidated FinancialStatements.OverviewSphere 3D provides next-generation solutions for standalone storage and long-term data archive products, as well as technologies that converge thetraditional silos of compute, storage and network into one integrated “hyper-converged” or converged solution. We provide enterprise storage managementsolutions, the archiving of the data created by these solutions, and the ability to connect to public cloud services such as Microsoft Azure for additionaldelivery options and hybrid cloud capabilities. Our solutions are tightly integrated and include a patented portfolio for operating systems for storage,proprietary virtual desktop orchestration software, and proprietary application container software. Our software, combined with commodity x86 servers, or itspurpose built appliances, deliver solutions that provide application mobility, security, data integrity and simplified management. These solutions can bedeployed through a public, private or hybrid cloud and are delivered through our global reseller network and professional services organization. We have aportfolio of brands including Overland-Tandberg™, HVE ConneXions and UCX ConneXions, dedicated to helping customers achieve their IT goals.We have created our own platform, Glassware 2.0TM (“Glassware”) for the delivery of applications from a server-based computing architecture. This isaccomplished through a number of unique approaches to virtualization utilized by Glassware including the use of software “containers” and “microvisors.” Acontainer refers to software that takes an application and all the things required to run that application and encapsulates them with software. By doing so,users can run numerous applications from a single server and on a single copy of the operating system. A microvisor refers to the technology that allows non-Windows® based applications to run on the same servers as Windows software using a lightweight emulator. Glassware sales are not material.Recent Developments•On March 16, 2018, the Company entered into warrant exchange agreements, in a privately negotiated exchange under Section 4(a)(2) of theSecurities Act of 1933, as amended, pursuant to which the Company issued 1,430,998 common shares in exchange for the surrender and cancellationof the Company’s outstanding March 24, 2017 warrants (the “Exchange”). Immediately after the Exchange, the previously issued warrants becamenull and void. MF Ventures, LLC, participated in the Exchange by acquiring 299,999 common shares in exchange for a warrant to purchase 272,727common shares.•On February 20, 2018, the Company, Overland Storage, Inc., a California corporation and a wholly owned subsidiary of the Company (“Overland”),and Silicon Valley Technology Partners LLC, a Delaware limited liability company established and controlled by Eric Kelly, the Company’s ChiefExecutive Officer and Chairman of the Board of Directors (the “Purchaser”) entered into a share purchase agreement (the “Purchase Agreement”),pursuant to which, among other things, and subject to certain closing conditions, the Company will sell to Purchaser all of the issued andoutstanding shares of capital stock of Overland for $45.0 million (the “Purchase Price”), subject to a working capital adjustment (the “SharePurchase”). The net proceeds from the Share Purchase will be used to repay: (i) the Company’s outstanding obligations under its Credit Agreementwith Opus Bank; (ii) its outstanding obligations under the related party convertible note with FBC Holdings S.a.r.l. (“FBC Holdings”); and (iii) itsrelated party subordinated promissory note with MF Ventures, LLC. The Special Committee of the Board of Directors of the Company and the Boardof Directors of the Company (with Eric Kelly recusing himself) unanimously approved the entry into the Purchase Agreement by the Company.•On July 5, 2017, the Board of Directors of the Company authorized a share consolidation (also known as a reverse stock split) of the Company’sissued and outstanding common shares at a ratio of 1-for-25, which became effective on July 11, 2017. All share and per share amounts in theaccompanying consolidated financial statements and the notes thereto have been restated for all periods to reflect the share consolidation.34•On January 27, 2017, the Company acquired 80.1% of the outstanding equity securities and membership interests of UCX and HVE, respectively, for$1.1 million in cash and issued 88,235 common shares for an approximate value of $0.3 million, such that after such acquisition, the Companyowned 100% of the outstanding equity securities of each such entity. UCX and HVE provide information technology consulting services andhardware solutions around cloud computing, data storage and server virtualization to corporate, government, and educational institutions primarilyin the southern central United States. By adding UCX’s technologies, professional services and engineering talent, and HVE’s products, engineeringand virtualization expertise, the Company intends to expand its virtualization offerings as well as enhance its ability to accelerate the delivery ofhybrid cloud solutions to customers.Results of OperationsThe following table sets forth certain financial data as a percentage of net revenue: Year Ended December 31, 2017 2016Net revenue100.0 % 100.0 %Cost of revenue69.7 70.8Gross profit30.3 29.2Operating expenses: Sales and marketing22.9 29.1Research and development8.9 11.5General and administrative24.7 27.1Impairment of goodwill and acquired intangible assets3.1 45.0 59.6 112.7Loss from operations(29.3) (83.5)Interest expense(7.3) (6.7)Other income, net2.5 1.7Loss before income taxes(34.1) (88.5)(Benefit from) provision for income taxes(2.0) 1.1Net loss(32.1)% (89.6)% A summary of the sales mix by product follows (in thousands): Year Ended December 31, 2017 2016 ChangeDisk systems$52,486 $46,795 12.2 %Tape automation systems9,718 10,297 (5.6)%Tape drives and media10,615 10,973 (3.3)%Service8,704 8,328 4.5 %Total$81,523 $76,393 6.7 %35We divide our worldwide sales into three geographical regions: EMEA, consisting of Europe, the Middle East and Africa; Americas; and APAC,consisting of Asia Pacific countries.The following table summarizes net revenue by geographic area (in thousands): Year Ended December 31, 2017 2016 ChangeEMEA$37,365 $39,719 (5.9)%Americas28,213 23,043 22.4 %APAC15,945 13,631 17.0 %Total$81,523 $76,393 6.7 %Comparison of Years Ended December 31, 2017 and 2016Net RevenueWe had revenue of $81.5 million during 2017 compared to $76.4 million during 2016. The increase in net revenue is a result of an increase in productrevenue of $4.7 million primarily due to the addition of sales units for disk systems from the HVE product line acquired in January 2017, and an increase inservice revenue of $0.4 million primarily due to service revenue from our January 2017 acquisition. Original equipment manufacturer (“OEM”) net revenueaccounted for 16.6% and 18.5% of net revenue during the years ended 2017 and 2016, respectively.Product RevenueNet product revenue increased to $72.8 million during 2017 from $68.1 million during 2016, an increase of $4.7 million. Revenue from disk systemsincreased by $5.7 million primarily related to the addition of $6.0 million of product revenue from the HVE product line acquired in January 2017, offset bya $0.3 million net decrease in disk systems other than our RDX® and HVE product lines. In addition, there was a $0.9 million decrease in tape automation,and tape drives and media revenue related to lower tape media sales volume.Service RevenueNet service revenue increased to $8.7 million during 2017 from $8.3 million during 2016. The increase of approximately $0.4 million was primarilydue to an addition of $2.0 million of service revenue from our January 2017 acquisition, offset by a decrease in extended service contracts related to tapeautomation product sales.Gross ProfitGross profit and margin were as follows (in thousands, unless otherwise noted): 2017 2016 ChangeGross profit $24,684 $22,339 10.5%Gross margin 30.3% 29.2% 1.1 ptGross profit - product $19,677 $17,631 11.6%Gross margin - product 27.0% 25.9% 1.1 ptGross profit - service $5,007 $4,708 6.4%Gross margin - service 57.5% 56.5% 1.0 ptIn 2017, gross profit for product increased due to higher sales volume in our disk system revenues primarily related to higher sales volumes in ourRDX® product line as well as product revenue from the HVE products we acquired in our January 2017 acquisition. Gross profit for service increased due tothe service revenue relating to our January 2017 acquisition.36Operating ExpensesSales and Marketing ExpenseSales and marketing expenses were $18.7 million and $22.2 million for the years ended December 31, 2017 and 2016, respectively. The 2017 decreaseof $3.5 million was primarily due to a decrease of $1.9 million in employee and related expenses associated with a lower average headcount, a $0.7 milliondecrease in share-based compensation, and a $0.9 million decrease in strategic marketing and outside contractors’ fees.Research and Development ExpenseResearch and development expenses were $7.3 million and $8.8 million for the years ended December 31, 2017 and 2016, respectively. The 2017decrease of $1.5 million was primarily due to a decrease of $1.1 million in employee and related expenses and a $0.3 million increase in share-basedcompensation.General and Administrative ExpenseGeneral and administrative expenses were $20.1 million and $20.7 million for the years ended December 31, 2017 and 2016, respectively. The 2017decrease of $0.6 million was primarily due to a $0.7 million decrease in bad debt expense, a $0.5 million decrease in legal and advisory expenses primarilyrelated to transactional matters and litigation, a $0.3 million decrease in share-based compensation expense, a $0.2 million decrease in outside contractorfees. These decreases were offset by a $0.9 million increase in employee related expenses and a $0.3 million increase in amortization expense related tointangible assets.Impairment of Goodwill and Acquired Intangible AssetsImpairment of goodwill and acquired intangible assets were $2.5 million and $34.4 million for the years ended December 31, 2017 and 2016,respectively. As a result primarily of the Company’s change in revenue projection for its Snap product line, it was determined the carrying value of indefinite-lived intangible assets exceeded its estimated fair value. The Company compared the indicated fair value to the carrying value of its indefinite-lived assets,and as a result of the analysis, an impairment charge of $2.2 million was recorded to indefinite-lived trade names for the year ended December 31, 2017. Inaddition, the Company recorded an impairment of $0.3 million related to developed technology for the year ended December 31, 2017. In 2016, weconcluded that our declining market capitalization could be an indicator of impairment and, therefore, had a third party impairment analysis performed. As aresult of the analysis, we recorded an impairment of $33.2 million related to goodwill from our December 2014 acquisition of Overland and an impairment of$1.2 million related to indefinite-lived trade names.Non-Operating ExpensesInterest ExpenseInterest expense was $5.9 million and $5.1 million for the years ended December 31, 2017 and 2016, respectively. The increase was primarily relatedto an increase in amortization of debt costs of $0.8 million.Other Income, Net.Other income, net, in 2017 and 2016 was $2.0 million and $1.3 million, respectively. In 2017, other income, net, primarily related to a net gain on therevaluation of warrants of $2.2 million and realized foreign currency gains of $0.9 million, which was offset by a $1.1 million loss from the revaluation of ourinvestment in connection with our January 2017 acquisition. In 2016, other income, net, was primarily related to a gain on revaluation of warrants.Income TaxIncome tax benefit was $1.6 million for the year ended December 31, 2017, which primarily related to a reduction in the deferred tax liabilities and arelease of foreign valuation allowance; offset by foreign tax expense. Income tax expense was $0.8 million for the year ended December 31, 2016, whichprimarily related to deferred foreign tax expense; offset by a reduction in the deferred tax liabilities for the $1.2 million impairment on intangible assetsrecognized in 2016.37Foreign Currency RiskWe conduct business on a global basis and a significant portion of our sales in international markets are not denominated in U.S. dollars. Our wholly-owned foreign subsidiaries incur costs that are denominated in local currencies. As exchange rates vary, these results may vary from expectations whentranslated into U.S. dollars, which could adversely impact overall expected results. The effect of exchange rate fluctuations on our results of operationsresulted in a gain of $0.9 million in 2017 and a minimal loss in 2016.Liquidity and Capital ResourcesWe have recurring losses from operations and a net working capital deficiency. Our primary source of cash flow is generated from sales of our disk andtape automation systems. We have financed our operations through gross proceeds from private sales of equity securities and with borrowings under ourcredit facilities. At December 31, 2017, we had cash of $4.6 million compared to cash of $5.1 million at December 31, 2016. As of December 31, 2017, wehad a working capital deficit of $41.6 million, reflecting a decrease in current assets of $4.0 million and an increase in current liabilities of $25.1 millioncompared to December 31, 2016. The increase in current liabilities was primarily related to $24.4 million of debt reclassified from long-term to current. Cashmanagement and preservation continue to be a top priority. We expect to incur negative operating cash flows as we continue to maintain and increase oursales volume, and maintain operational efficiencies.On February 20, 2018, the Company, Overland, and Silicon Valley Technology Partners LLC, a Delaware limited liability company established andcontrolled by Eric Kelly, the Company’s Chief Executive Officer and Chairman of the Board of Directors (the “Purchaser”) entered into a share purchaseagreement (the “Purchase Agreement”), pursuant to which, among other things, and subject to certain closing conditions, the Company will sell to Purchaserall of the issued and outstanding shares of capital stock of Overland for $45.0 million (the “Purchase Price”), subject to working capital adjustments (the“Share Purchase”). The net proceeds from the Share Purchase will be used to repay: (i) the Company’s outstanding obligations under its Credit Agreementwith Opus Bank; (ii) its outstanding obligations under the related party convertible note with FBC Holdings S.a.r.l. (“FBC Holdings”); and (iii) its relatedparty subordinated promissory note with MF Ventures, LLC. The Special Committee of the Board of Directors of the Company and the Board of Directors ofthe Company (with Eric Kelly recusing) unanimously approved the entry into the Purchase Agreement by the Company. See Note 1 - Organization andBusiness for additional details.Management has projected that cash on hand will not be sufficient to allow the Company to continue operations beyond March 31, 2018 if theCompany is unable to amend, refinance, or pay off its debt and credit facilities. In February 2018, the Company entered into a Purchase Agreement. If thetransactions contemplated by the Purchase Agreement are consummated, the Company expects that the proceeds to be received by the Company would besufficient to pay off its outstanding debt and credit facilities. The Company anticipates to hold a special shareholder meeting in April 2018 to seekshareholder approval for the Share Purchase and, subject to the receipt of requisite shareholder approval, anticipates the transaction will close shortlythereafter. There can be no guarantee that we will be able to raise additional funds or amend or refinance our debt and credit facilities on favorable terms or atall, nor can there be any guarantee that the Company’s shareholders will approve the Share Purchase. Significant changes from the Company’s currentforecasts, including but not limited to: (i) failure to comply with the financial covenants in its credit facilities; (ii) shortfalls from projected sales levels;(iii) unexpected increases in product costs; (iv) increases in operating costs; (v) changes in the historical timing of collecting accounts receivable; and (vi)inability to maintain compliance with the requirements of the NASDAQ Capital Market and/or inability to maintain listing with the NASDAQ Capital Marketcould have a material adverse impact on the Company’s ability to access the level of funding necessary to continue its operations at current levels. If any ofthese events occurs or the Company is unable to generate sufficient cash from operations or financing sources, the Company may be forced to liquidate assetswhere possible and/or curtail, suspend or cease planned programs or operations generally or possibly seek bankruptcy protection, which would have amaterial adverse effect on the Company’s business, results of operations, financial position and liquidity.As a result of our recurring losses from operations and negative cash flows, the report from our independent registered public accounting firm regardingour consolidated financial statements for the year ended December 31, 2017 includes an explanatory paragraph expressing substantial doubt about ourability to continue as a going concern.38As of December 31, 2017, our outstanding debt balance was as follows (in thousands): Maturity Date Interest Rate AmountOutstandingConvertible note related party - net 3/31/2018 8.0% $24,400Term loan 3/31/2018 8.25% $10,000Revolving loan 3/31/2018 8.25% $8,195Term loan - related party 1/31/2018 20.0% $191Subordinated promissory note, related party - net 3/31/2018 12.5% $1,980All debt and credit facilities are denominated in U.S. dollars. Our debt and credit facilities contain standard borrowing conditions and can be recalledby the lenders if certain conditions are not met.In December 2017, the Company entered into a $2.0 million subordinated promissory note with MF Ventures, LLC, a related party. The promissorynote is subordinate to the Company’s Opus Bank Credit Agreement and FBC Holdings indebtedness and has a maturity date of the earliest of: (i)December 11, 2020; (ii) immediately after repayment in full of the Opus Bank Credit Agreement and the FBC Holdings indebtedness; or (iii) immediatelyafter the Company’s refinancing of both the Opus Bank Credit Agreement and the FBC Holdings indebtedness. The promissory note may be prepaid at anytime by the Company; including any accrued and unpaid interest and a $0.3 million prepayment penalty. The promissory note bears interest at a 12.5%simple annual interest rate, payable quarterly in arrears. Interest shall be paid in kind by increasing the principal amount of the note on each quarterly interestpayment date.The following table shows a summary of our cash flows (used in) provided by operating activities, investing activities and financing activities (inthousands): Year Ended December 31, 2017 2016Net cash used in operating activities $(8,965) $(17,473)Net cash used in investing activities $(1,174) $(237)Net cash provided by financing activities $9,534 $14,123The use of cash during 2017 was primarily a result of our net loss of $26.2 million offset by $15.5 million in non-cash items, which included share-based compensation, depreciation and amortization, an impairment to goodwill and acquired intangible assets, amortization of debt issuance costs, deferredtax provision, and fair value adjustment of warrants.During 2017, net cash used in investing activities were primarily related to our January 2017 acquisition. During 2016, capital expenditures totaled$0.2 million and were primarily associated with computer equipment to support product quality.During 2017, we received $9.8 million net, from the issuance of common shares and $2.0 million from a note payable with a related party, offset by$2.3 million in payments to holders of related party debt. During 2016, we received $8.3 million from net proceeds of debt issuance, of which $2.5 millionwas related to net payments to the holders of our related party debt; $2.1 million was from the issuance of common shares for equity financings; and $3.7million was from the exercise of warrants.Off-Balance Sheet InformationDuring the ordinary course of business, we may provide standby letters of credit to third parties as required for certain transactions initiated by us. Asof December 31, 2017, we had no standby letters of credit outstanding.39Contractual ObligationsThe following schedule summarizes our contractual obligations to make future payments at December 31, 2017 (in thousands):Contractual Obligations Total Less than1 year 1-3 years 3-5 years After 5yearsLong-term debt — related party, including interest(1) $27,256 $27,256 $— $— $—Credit facility and term note, including interest(1) 18,570 18,570 — — —Operating lease obligations (2) 5,120 1,697 2,288 1,135 —Purchase obligations(3) 2,124 2,124 — — —Total contractual obligations $53,070 $49,647 $2,288 $1,135 $—________________(1)Interest payments have been calculated using the amortization profile of the debt outstanding at December 31, 2017, taking into account the fixedrate paid at year end.(2)Represents contractual lease obligations under non-cancelable operating leases.(3)Represents purchase orders for inventory and non-inventory items entered into prior to December 31, 2017, with purchase dates extending beyondJanuary 1, 2018. Some of these purchase obligations may be canceled.Critical Accounting EstimatesThe discussion and analysis of our financial position and results of operations are based on our consolidated financial statements, which have beenprepared in accordance with U.S. generally accepted accounting principles, or U.S. GAAP. The preparation of our consolidated financial statements requiresus to make estimates and judgments that affect the reported amounts of assets, liabilities, revenues and expenses and related disclosure of contingent assetsand liabilities. We review our estimates on an ongoing basis. We base our estimates on historical experience and on various other assumptions that webelieve to be reasonable under the circumstances, the results of which form the basis for making judgments about the carrying values of assets and liabilities.Actual results may differ from these estimates under different assumptions or conditions. Our significant accounting policies are outlined in Note 2 to theConsolidated Financial Statements included in this Annual Report on Form 10-K. We believe the following accounting policies to be critical to thejudgments and estimates used in the preparation of our consolidated financial statementsRevenue RecognitionRevenue from sales of products is recognized when persuasive evidence of an arrangement exists, the price is fixed or determinable, collectability isreasonably assured and delivery has occurred. Under this policy, revenue on direct product sales, excluding sales to distributors, is recognized upon shipmentof products to customers. These customers are not entitled to any specific right of return or price protection, except for any defective product that may bereturned under our standard product warranty. Revenue from services, such as extended product warranties, are deferred and recognized over the period of theservice agreement.Depending on delivery terms, title and risk of loss transfer to the customer when the product leaves the Company’s dock, or when the product arrives atthe customer’s location. Product sales to distribution customers are subject to certain rights of return, stock rotation privileges and price protection. Becausewe are unable to estimate its exposure for returned product or price adjustments, revenue from shipments to these customers is not recognized until the relatedproducts are in turn shipped to the ultimate customer by the distributor. For products for which software is more than an incidental component, we recognizerevenue in accordance with current authoritative guidance for software revenue recognition.40In limited circumstances where a customer is unable to accept shipment and requests products be delivered to, and stored on, the Company’s premises,revenue is recognized when: (i) the customer has accepted risk of loss and acknowledged passage of title to the goods (ii) the customer has made a fixedcommitment to purchase the products, (iii) the customer has requested delayed delivery and storage of the products, (iv) there is an agreed schedule forshipment of products to the customer within a reasonable period of time, (v) the Company has no specific performance obligation such that the earningsprocess for the products, as a unit of accounting, is not complete, (vi) the goods are segregated from the inventory and not available to fill other orders, (vii)the product is complete, ready for shipment and accepted by the customer, and (viii) all other criteria above for revenue recognition have been met.The Company enters into revenue arrangements that may consist of multiple deliverables of its product and service offerings, such as for sales ofhardware devices and extended warranty services. The Company allocates revenue to deliverables in multiple element arrangements based on relative sellingprices. The Company determines its vendor-specific objective evidence (“VSOE”) based on its normal pricing and discounting practices for the specificproduct or service when sold separately. When the Company is not able to establish VSOE for all deliverables in an arrangement with multiple elements, theCompany determines the selling price of each element based on third party evidence of selling price, or based on the Company’s actual historical sellingprices of similar items, whichever management believes provides the most reliable estimate of expected selling prices.Inventory ValuationInventories are stated at the lower of cost and net realizable value using the first-in-first-out method. Net realizable value is the estimated selling pricein the ordinary course of business, less reasonably predictable costs of completion, disposal, and transportation. We assess the value of inventoriesperiodically based upon numerous factors including, among others, expected product or material demand, current market conditions, technologicalobsolescence, current cost, and net realizable value. If necessary, we write down its inventory for obsolete or unmarketable inventory by an amount equal tothe difference between the cost of the inventory and the net realizable value.Goodwill and Intangible AssetsGoodwill represents the excess of consideration paid over the value assigned to the net tangible and identifiable intangible assets acquired. Forintangible assets purchased in a business combination, the estimated fair values of the assets received are used to establish their recorded values. Forintangible assets acquired in a non-monetary exchange, the estimated fair values of the assets transferred (or the estimated fair values of the assets received, ifmore clearly evident) are used to establish their recorded values. Valuation techniques consistent with the market approach, income approach and/or costapproach are used to measure fair value.Purchased intangible assets are amortized on a straight-line basis over their economic lives of six to 25 years for channel partner relationships, three tonine years for developed technology, three to eight years for capitalized development costs, and two to 25 years for customer relationships as this methodmost closely reflects the pattern in which the economic benefits of the assets will be consumed.Impairment of Goodwill, Intangible Assets and Long-Lived AssetsGoodwill and intangible assets are tested for impairment on an annual basis at December 31, or more frequently if there are indicators of impairment.Triggering events for impairment reviews may be indicators such as adverse industry or economic trends, restructuring actions, lower projections ofprofitability, or a sustained decline in our market capitalization. Intangible assets are quantitatively assessed for impairment, if necessary, by comparing theirestimated fair values to their carrying values. If the carrying value exceeds the fair value, the difference is recorded as an impairment.Long-lived assets are reviewed for recoverability whenever events or changes in circumstances indicate the carrying value may not be recoverable. Ourconsideration includes, but is not limited to: (i) significant under-performance relative to historical or projected future operating results; (ii) significantchanges in the manner of use of the assets or the strategy for the Company’s overall business; (iii) significant decrease in the market value of the assets; and(iv) significant negative industry or economic trends. When the carrying value is not considered recoverable, an impairment loss for the amount by which thecarrying value of a long-lived asset exceeds its fair value is recognized, with an offsetting reduction in the carrying value of the related asset.41Recent Accounting PronouncementsSee Note 2 - Significant Accounting Policies for additional details.ITEM 7A. Quantitative and Qualitative Disclosures About Market RiskMarket risk represents the risk of loss that may impact our financial position, results of operations, or cash flows due to adverse changes in financialand commodity market prices and rates. We are exposed to market risk from changes in foreign currency exchange rates as measured against the U.S. dollar.These exposures are directly related to our normal operating and funding activities. Historically, we have not used derivative instruments or engaged inhedging activities.Foreign Currency Risk. We conduct business on a global basis and a significant portion of our sales in international markets are not denominated inU.S. dollars. Export sales represent a significant portion of our sales and are expected to continue to represent a significant portion of sales. Purchase contractsare typically in U.S. dollars. In addition, our wholly-owned foreign subsidiaries incur costs that are denominated in local currencies. As exchange rates vary,these results may vary from expectations when translated into U.S. dollars, which could adversely impact overall expected results. Such transactions resultedin a gain of $0.9 million in 2017 and a minimal loss in 2016.Credit Risk. Credit risk is the risk that the counterparty to a financial instrument fails to meet its contractual obligations, resulting in a financial loss tous. We sell to a diverse customer base over a global geographic area. We evaluate collectability of specific customer receivables based on a variety of factorsincluding currency risk, geopolitical risk, payment history, customer stability and other economic factors. Collectability of receivables is reviewed on anongoing basis by management and the allowance for doubtful receivables is adjusted as required. Account balances are charged against the allowance fordoubtful receivables when we determine that it is probable that the receivable will not be recovered. We believe that the geographic diversity of the customerbase, combined with our established credit approval practices and ongoing monitoring of customer balances, mitigates this counterparty risk.Liquidity Risk. Liquidity risk is the risk that we will not be able to meet our financial obligations as they come due. We continually monitor our actualand projected cash flows and believe that our internally generated cash flows will not provide us with sufficient funding to meet all working capital andfinancing needs for at least the next 12 months.Item 8. Financial Statements and Supplemental DataOur consolidated financial statements and supplementary data required by this item are set forth at the pages indicated in Item 15(a)(1) and 15(a)(2),respectively.Item 9. Changes in and Disagreements with Accountants on Accounting and Financial DisclosureNot applicable.Item 9A. Controls and ProceduresDisclosure Controls and ProceduresUnder the supervision and with the participation of our management, including our principal executive officer and principal financial officer, weconducted an evaluation of our disclosure controls and procedures, as such term is defined under Rules 13a-15(e) or 15d-15(e) under the Exchange Act.Based on this evaluation, our principal executive officer and our principal financial officer concluded that our disclosure controls and procedures wereeffective to give reasonable assurance that information required to be publicly disclosed is recorded, processed, summarized and reported on a timely basis asof the end of the period covered by this annual report.42Management’s Report on Internal Control Over Financial ReportingManagement is responsible for establishing and maintaining adequate internal control over our financial reporting. In order to evaluate theeffectiveness of internal control over financial reporting, as required by Section 404 of the Sarbanes-Oxley Act, management has conducted an assessment,including testing, using the criteria in Internal Control-Integrated Framework, issued by the Committee of Sponsoring Organizations of the TreadwayCommission (“COSO”). Our system of internal control over financial reporting is designed to provide reasonable assurance regarding the reliability offinancial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles.Based on our evaluation under the framework in Internal Control-Integrated Framework, our Chief Executive Officer and Chief Financial Officerconcluded that our internal control over financial reporting was effective as of December 31, 2017. Because of its inherent limitations, internal control overfinancial reporting may not prevent or detect misstatements. In addition, projections of any evaluation of effectiveness to future periods are subject to the riskthat controls may become inadequate because of changes in conditions and that the degree of compliance with the policies or procedures may deteriorate.This annual report does not include an attestation report of our independent registered public accounting firm regarding internal control over financialreporting. Management's report on internal control over financial reporting was not subject to attestation by our independent registered public accountingfirm pursuant to rules of the SEC that permit us to provide only management's report in this annual report.This report on internal control over financial reporting shall not be deemed to be filed for purposes of Section 18 of the Exchange Act, or otherwisesubject to the liabilities of that section, and is not incorporated by reference into any of our filings, whether made before or after the date hereof, regardless ofany general incorporation language in such filing.Changes in Internal Control over Financial ReportingThere were no changes in our internal control over financial reporting during the year ended December 31, 2017 that have materially affected, or arereasonably likely to materially affect, our internal control over financial reporting.Item 9B. Other InformationNone.PART IIIItem 10. Directors, Executive Officers and Corporate GovernanceThe following table sets forth the name, age, and position of our directors and executive officers as of March 16, 2018:Name Age Director Since Positions with our CompanyCheemin Bo-Linn(1) 64 April 17, 2017 Director, Chair of Audit CommitteeEric L. Kelly 59 July 15, 2013 Chief Executive Officer, Chairman and DirectorVivekanand Mahadevan(1) 64 December 1, 2014 Director, Chair of Nominating and Governance CommitteeDuncan McEwan(1) 64 May 10, 2017 Director, Chair of Compensation CommitteePeter Tassiopoulos 49 March 7, 2014 President, Vice Chairman and DirectorKurt L. Kalbfleisch 52 N/A Senior Vice President, Chief Financial Officer and SecretaryJenny C. Yeh 44 N/A Senior Vice President and General Counsel_______________(1)Member of Audit Committee, Compensation Committee and Nominating and Governance Committee.43Each of the above-listed directors served in such capacities for all of fiscal 2017 except for Dr. Bo-Linn who was appointed to the Board and eachcommittee on April 17, 2017 following the resignation of Glenn Bowman from the Board and Mr. McEwan who was appointed to the Board and eachcommittee on June 28, 2017 following the resignation of Peter Ashkin from the Board. There are no family relationships between any of our directors orexecutive officers, and there are no arrangements or understandings between any of the directors and any other person pursuant to which such director was oris selected as a director.Dr. Cheemin Bo-Linn is the Chief Executive Officer and President of Peritus Partners Inc., an international consulting group recognized for leadingcompanies to increasing business valuation or next level growth or merger and acquisition (“M&A”), and has held this position since January 2013. FromSeptember 2010 to November 2012, she was Chief Marketing Officer, Chief Revenue Officer and consultant at NetLine Corporation, a global online multi-channel digital media network, mobile applications and content marketing services company. From July 2006 to August 2010, she was President of PeritusPartners Inc./BL Group. From June1980 to June 2006, she held a number of senior executive business management roles including at IBM as Vice-Presidentof Electronics, and other roles with responsibilities ranging from strategy, marketing, sales, operations and investments across storage and software productsand consulting services. She presently serves as Board of Director of SNOMED, a global software language, and Evena Medical, Inc., loT smart imagingvisualization. She previously served as a member of the Board of Directors of Violin Memory, Inc., NetLine Corporation, Association of Corporate Growth-SV, American Electronics and several private companies. She holds a Doctorate of Education focused on “Computer-based Management Information Systemsand Organizational Change” from the University of Houston.Eric L. Kelly has served as Chairman of the Board since July 2013 and Chief Executive Officer of the Company since December 1, 2014. Mr. Kellyformerly served as Chief Executive Officer of Overland Storage, Inc. (“Overland”) since January 2009, President and Chief Executive Officer of Overlandsince January 2010 and has been a member of Overland’s board of directors since November 2007. He is a strategic, global technology executive with over35 years of experience in developing accelerated growth strategies, improving profitability of complex global businesses, organizational transformations,technology and business innovation, corporate financing, and mergers and acquisitions and intellectual property management and cybersecurity for Fortune500, 1000 and private companies. In addition, Mr. Kelly has over 15 years of board experience which includes public companies trading on the U.S. andCanada stock exchanges, private companies, universities and foundations. Prior to joining Overland, Mr. Kelly was President of Silicon Valley ManagementPartners Inc., a management consulting and merger and acquisition advisory firm which he co-founded in 2007. His earlier positions have included VicePresident and General Manager of Storage Systems Solutions at Adaptec Inc., President and CEO of Snap Appliance which was acquired by Adaptec,President of the Systems Division at Maxtor Corp., Enterprise Vice President at Dell Computer Corp., and various executive-level roles with DiamondMultimedia, Conner Peripherals and IBM. Mr. Kelly served on the U.S. Department of Commerce’s Manufacturing Council from February 2012 to January2017, where he offered advice and counsel to the U.S. Administration on strategies and policy recommendations on ways to promote and advance U.S.manufacturing globally, and from February 2012 to January 2017 he was appointed to President Obama’s Science, Technology and Advanced ManufacturingSteering Committee. He also serves on the board of the San Jose State University Tower Foundation, member of the Finance and Investment Committee and amember of the Global Leadership Council SJSU Lucas College and Graduate School of Business. Mr. Kelly earned an M.B.A. from San Francisco StateUniversity and a B.S. in Business Management from San Jose State University.Vivekanand Mahadevan has been the Chief Executive Officer of Dev Solutions, Inc., a consulting firm that helps technology startups build next-generation market leaders in data analytics, security, storage and cloud markets since March 2012. Mr. Mahadevan was the Chief Strategy Officer for NetApp,Inc., a supplier of enterprise storage and data management software and hardware products and services, from November 2010 until February 2012. Prior tothat time served as Vice President of Marketing for LSI Corporation, an electronics company that designs semiconductors and software that accelerate storageand networking, from January 2009 to September 2010. Prior to LSI Corporation, he was Chief Executive Officer for Deeya Energy, Inc., and has also heldsenior management positions with leading storage and systems management companies including BMC Software, Compaq, Ivita, and Maxxan Systems. Mr.Mahadevan previously served as a member of the Board of Directors of Violin Memory, Inc. Mr. Mahadevan holds an M.B.A. in Marketing and MS inEngineering from the University of Iowa as well a degree in Mechanical Engineering from the Indian Institute of Technology.44Duncan J. McEwan is president of Diligent Inc., a consulting company he founded in 1991 specializing in M&A and strategic advice for technology-based clients. Mr. McEwan was Executive Vice President and Chief Strategy Officer of Call-Net Enterprises Inc., a provider of long-distance telephoneservices until it merged into Rogers Communication Inc. (2004-2005); President and Chief Operating Officer of Sprint Canada Inc., an integrated, nationaltelecommunications provider (2001-2004); Chief Executive Officer of Northpoint Canada Communications, a provider of high-speed data and Internet (DSL)lines (2000-2001); Vice President of Business Development of Canadian Satellite Communications (“Cancom”) (1996-1998); and President and ChiefExecutive Officer of Cancom (1998-2000). Mr. McEwan has been Chairman of the Board of Geminare, Inc. since 2010, an emerging global leader in businesscontinuity and cloud-based software systems and has previously served on a number of other public and private company boards. Mr. McEwan is a graduateof the University of Toronto.Peter Tassiopoulos has served as President of the Company since December 1, 2014. Mr. Tassiopoulos served as the Chief Executive Officer of theCompany from March 2013 until December 1, 2014. Mr. Tassiopoulos has extensive experience in information technology business development and globalsales as well as a successful track record leading early-stage technology companies. He has been actively involved as a business consultant over the past 10years, including acting as Chief Operating Officer and then Chief Executive Officer of BioSign Technologies Inc. from September 2009 to April 2011 andChief Executive Officer of IgeaCare Systems Inc. from February 2003 to December 2008.Kurt L. Kalbfleisch has served as Senior Vice President and Chief Financial Officer of the Company since December 1, 2014. Mr. Kalbfleisch had 20years of service with Overland and served as Overland's Senior Vice President since June 2012, Chief Financial Officer since February 2008, and Secretarysince October 2009. Prior to that, he served as Overland's Vice President of Finance from July 2007 to June 2012. Mr. Kalbfleisch also serves on the board ofPaladin Group.Jenny C. Yeh has served as Vice President and General Counsel of the Company since October 5, 2015 and Senior Vice President and General Counselsince November 9, 2017. Prior to joining the Company, Ms. Yeh served as Executive Counsel, Transactions and Finance, at General Electric Company whereshe was a senior legal advisor to GE Corporate business development group, supporting global corporate strategy and transactions across all GE industrialbusinesses worldwide. From 2007 to 2011, Ms. Yeh was a corporate partner at Baker & McKenzie LLP, where she advised clients in general corporate andsecurities matters, with a specialization in complex cross-border transactions. Ms. Yeh holds a Juris Doctorate from Georgetown University Law Center, andBachelor of Arts degrees from the University of California at Berkeley.Section 16(a) Beneficial Ownership Reporting ComplianceWe were a foreign private issuer during 2017 and, as such, were not subject to the reporting requirements under Section 16(a) of the Exchange Act.Code of EthicsWe have adopted a code of ethics that applies to the members of our board of directors, executive officers and all employees. Such code is posted onthe Company’s website and is available at www.sphere3d.com. If we make any substantive amendments to the Code of Business Conduct and Ethics Policyor grant any waiver from a provision of the code applying to our principal executive officer or our principal financial or accounting officer, we will disclosethe nature of such amendment or waiver on our website or in a current report on Form 8-K.Audit CommitteeWe have a standing audit committee as defined in Section 3(a)(58)(A) of the Securities Exchange Act of 1934, as amended. The members of the AuditCommittee are Cheemin Bo-Linn, Duncan L. McEwan and Vivekanand Mahadevan.In addition to being independent under NASDAQ Marketplace Rule 5605(a)(2), all members of the Audit Committee must meet the additionalindependence standards for audit committee members set forth in Rule 10A-3(b)(1) of the Exchange Act and NASDAQ Marketplace Rule 5605(c)(2)(A). TheBoard of Directors has determined that Dr. Bo-Linn qualifies as an audit committee financial expert as defined in Item 407(d)(5) of Regulation S-K under theExchange Act.45Item 11. Executive CompensationSummary Compensation TableThe following table summarizes the compensation earned during the fiscal years ended December 31, 2017 and 2016 by our principal executiveofficer, our principal financial officer, and our other most highly compensated executive officers (referred to as our “named executive officers”).Name and Principal Position Year Salary($) Share- basedAwards($) Non-equityIncentive PlanCompensation(1)($) All OtherCompensation(2) ($) TotalCompensation($) Eric L. Kelly 2017 400,000 889,900(3)100,000 61,718 1,451,618Chief Executive Officer 2016 400,000 — 150,000 17,674 567,674Peter Tassiopoulos(4) 2017 237,548 157,000(5)59,387 4,643 458,578President 2016 214,480 — 91,752 3,417 309,649Kurt L. Kalbfleisch 2017 300,000 478,912(6)45,000 36,984 860,896Senior Vice President and Chief Financial Officer 2016 300,000 — 67,500 23,593 391,093Jenny C, Yeh 2017 300,000 439,552(7)15,000 15,995 770,547Senior Vice President and General Counsel 2016 300,000 173,100(8)22,500 6,308 501,908_______________(1)The amounts shown in the “Non-equity Incentive Plan Compensation” column represent bonuses awarded to the named executive officer for theapplicable year under our bonus program in effect for that year.(2)The amounts shown in the “All Other Compensation” column reflect amounts we paid on the named executive officers’ behalf for health insuranceand life insurance premiums and certain out-of-pocket medical expenses.(3)This amount is comprised of two awards: i) a restricted stock unit for 48,000 shares granted on July 10, 2017 and was valued at $3.93 per share onthe grant date (the closing market price for a share of our common stock on that date); and ii) a restricted stock unit for 287,500 shares granted onDecember 18, 2017 and was valued at $2.44 per share on the grant date (the closing market price for a share of our common stock on that date).Mr. Kelly irrevocably declined his restricted stock unit granted on July 10, 2017 subsequent to Board approval.(4)The dollar amounts reported for Mr. Tassiopoulos in the above table are presented after conversion from Canadian dollars to U.S. dollars. For 2017and 2016, the average U.S. dollar to Canadian dollar conversion rate in effect was 1.305 and 1.3275, respectively.(5)This award is a restricted stock unit which was granted on July 10, 2017 and was valued at $3.93 per share on the grant date (the closing marketprice for a share of our common stock on that date). Mr. Tassiopoulos irrevocably declined this award subsequent to Board approval.(6)This amount is comprised of two awards: i) a restricted stock unit for 32,000 shares granted on July 10, 2017 and was valued at $3.93 per share onthe grant date (the closing market price for a share of our common stock on that date); and ii) a restricted stock unit for 144,800 shares granted onDecember 18, 2017 and was valued at $2.44 per share on the grant date (the closing market price for a share of our common stock on that date).(7)This amount is comprised of two awards: i) a restricted stock unit for 32,000 shares granted on July 10, 2017 and was valued at $3.93 per share onthe grant date (the closing market price for a share of our common stock on that date); and ii) a restricted stock unit for 128,669 shares granted onDecember 18, 2017 and was valued at $2.44 per share on the grant date (the closing market price for a share of our common stock on that date).(8)This award is a restricted stock unit which was granted on August 9, 2016 and was valued at $21.75 per share on the grant date (the closing marketprice for a share of our common stock on that date).46Outstanding Equity Awards at 2017 Fiscal Year-EndThe following table provides information about the current holdings of stock and option awards by our named executive officers at December 31,2017.Name Option-based Awards Stock Awards Grant Date Number ofSecuritiesUnderlyingUnexercisedOptions (#)Number ofSecuritiesUnderlyingUnexercisedOptions (#) OptionExercisePrice(1)($)OptionExpirationDate Number of Unitsof Stock NotVested (#) Market Valueof Units ofStock NotVested(2)($) ExercisableUnexercisable Eric L. Kelly 7/9/2013 34,000 — 12.45 7/8/2023 — — 9/16/2013 1,000 — 51.34 9/15/2023 — — 8/26/2015 5,600 — 67.75 8/26/2021 — — 8/26/2015 — — — — 2,240(3) 5,510 12/18/2017 — — — — 287,500(4) 707,250Peter Tassiopoulos 3/4/2013 4,000 — 16.28 3/3/2018 — — 9/16/2013 4,000 — 51.34 9/15/2023 — —Kurt L. Kalbfleisch 8/26/2015 4,000 — 67.75 8/26/2021 — — 8/26/2015 — — — — 1,600(3) 3,936 7/10/2017 — — — — 32,000(5) 78,720 12/18/2017 — — — — 144,800(4) 356,208Jenny C. Yeh 11/10/2015 — — — — 2,666(6) 6,558 8/9/2016 — — — — 5,332(7) 13,117 7/10/2017 — — — — 32,000(5) 78,720 12/18/2017 — — — — 128,669(4) 316,526_______________(1)The exercise prices reported for the options expiring in 2023 for Mr. Kelly, and for each of the options expiring in 2018 and 2023 for Mr.Tassiopoulos, in the table above are presented after conversion from Canadian dollars to U.S. dollars based on an exchange rate of 1.305 Canadiandollars to one U.S. dollar, which is the average conversion rate in effect for 2017.(2)Computed by multiplying the number of unvested shares by $2.46, the closing market price of our common shares on December 29, 2017 (the lasttrading day of December).(3)This stock award vested on February 1, 2018.(4)This stock award is scheduled to vest in bi-annual installments beginning on June 18, 2018 and ending on December 18, 2020.(5)This stock award vested 60% on January 10, 2018 and the remaining shares vest monthly through July 10, 2018.(6)This stock award is scheduled to vest in bi-annual installments beginning on April 5, 2018 and ending on October 5, 2018.(7)This stock award is scheduled to vest in bi-annual installments beginning on February 9, 2018 and ending on August 9, 2019.47Executive Officer CompensationOur executive compensation programs are determined by the Compensation Committee, within the scope of the authority delegated to it by our Boardof Directors and subject to applicable law. The goals of our program are to attract and retain highly qualified and experienced executives and to providecompensation opportunities that are linked to corporate and individual performance. Decisions by the Compensation Committee on our executivecompensation programs are subjective and the result of its business judgment, which is informed by the experiences of its members. The named executiveofficers do not have any role in determining their own compensation, although the Compensation Committee does consider the recommendations of theChief Executive Officer in setting compensation levels for the named executive officers other than himself. The primary components of our executivecompensation program are base salary, performance bonuses and long-term equity incentive awards. As described in more detail below, the Board approvedcertain changes to our executive compensation program in December 2017, including certain severance arrangements and those described under “Stay BonusAgreements” and “Sale Bonus Plan”.Base Salaries. Base salaries are primarily intended to attract and retain highly qualified executives by providing them with fixed, predictable levels ofcompensation. The named executive officers’ salary levels are specified in their employment agreements (other than for Mr. Tassiopoulos who is not a partyto an employment agreement with the Company) and are subject to periodic review and adjustment by the Compensation Committee.Performance Bonuses. In March 2017, the Compensation Committee approved a bonus plan for fiscal 2017. The bonus plan was divided into twobonus periods, with the first period consisting of the first two quarters of 2017 and the second period consisting of the last two quarters of fiscal 2017. Thebonus amounts were determined based on our revenue and operating expenses for each bonus period against performance targets established by theCompensation Committee for that period. The Compensation Committee also approved the following target bonuses for the named executive officersparticipating in the plan (in each case expressed as a percentage of the executive’s annual base salary: Mr. Kelly - 100%; Mr. Tassiopoulos - 100%; Mr.Kalbfleisch - 60%; and Ms. Yeh - 20%. The named executive officers’ bonuses for fiscal 2017 are reported in the table above.Long-Term Equity Incentive Awards. Long-term equity incentives are intended to align the named executive officers’ interests with those of ourshareholders as the ultimate value of these awards depends on the value of the Company’s shares. The Company has historically granted equity awards in theform of stock options with an exercise price that is equal to the per-share closing price of our common shares on the grant date. In recent years, restricted stockunits have also been granted as provided for under the Company’s 2015 Plan. The Compensation Committee believes that stock options are an effectivevehicle for aligning the interests of our executives with those of our shareholders as the executive will only realize value on their options if the share priceincreases during the period between the grant date and the date the stock option is exercised. The stock options and restricted stock units function as aretention incentive for the named executive officers as they typically vest over a multi-year period following the date of grant. Restricted stock units, whichare payable in our common shares, also link the interests of the award recipient with those of our shareholders as the potential value of the award is directlylinked to the value of our common shares. Restricted stock units were included as part of the equity award mix granted in fiscal 2017 because they serve as aheightened retention incentive (as the awards generally have some value regardless of our stock price performance) and to help manage the potential dilutiveimpact of our equity awards (as one restricted stock unit generally has a greater grant date fair value than one stock option, so fewer restricted stock unitsgenerally have to be granted than if an award of equivalent grant date fair value was granted in the form of stock options). The named executive officers’equity awards are subject to accelerated vesting in certain circumstances under their agreements with the Company described below.48Stay Bonus Agreements. In December 2017, the Board approved stay bonus agreements for each of our named executive officers and certain other keyemployees. Under these agreements, one-half of the executive’s stay bonus will be payable if the executive remains employed with us through a change incontrol of the Company, and the other one-half of the stay bonus will be payable if the executive remains employed with us for three months after the changein control. If the executive’s employment is terminated by the Company without cause or by the executive for good reason (as such terms are defined in theagreement), any portion of the stay bonus that has not previously been paid will be payable on the executive’s termination (regardless of whether a change incontrol has occurred). The aggregate stay bonus opportunity for each of the executive officers is as follows: Mr. Kelly - $800,000; Mr. Kalbfleisch -$268,000; Mr. Tassiopoulos - $330,000; and Ms. Yeh - $268,000. In each case, payment of the stay bonus is contingent upon the executive providing theCompany with a release of claims.Sale Bonus Plan. To provide an additional incentive for our named executive officers and certain other key employees to achieve a sale of theCompany, we adopted a sale bonus plan in 2017 that provides for participants to receive a specified percentage of the net consideration from one or morequalifying transactions. For purposes of the plan, a “qualifying transaction” is generally a sale of a majority of the Company’s stock or a sale of any of itsassets, and the “net consideration” is generally (1) the total proceeds to be paid to the Company or its stockholders in the qualifying transaction, less (2) theCompany’s net debt at the time of the transaction, less (3) amounts payable by the Company under the stay bonus agreements described above and theCompany’s other expenses incurred in the transaction. Upon a qualifying transaction, a bonus pool equal to 20% of the net consideration in the transaction isestablished, with each participant being entitled to receive his or her specified percentage of the bonus pool (subject to the terms and conditions of the plan).The specified percentage of the bonus pool that is currently allocated to each of the executive officers is as follows: Mr. Kelly - 30%; Mr. Kalbfleisch - 20%;Mr. Tassiopoulos - 20%; and Ms. Yeh - 15%. A participant must be employed with the Company at the time of the qualifying transaction (or have beenterminated by the Company without cause or resigned for good reason within the period of 120 days prior to the qualifying transaction) to be eligible for abonus with respect to the qualifying transaction. If a participant resigns (other than for good reason) or otherwise forfeits his or her interest under the bonusplan, the forfeited interest may be regranted by the Board as one or more new awards under the plan or, to the extent not re-granted before the time of aqualifying transaction, would be reallocated to the other participants on a pro-rata basis. Bonuses under the plan would generally be paid in connection withthe closing of the qualifying transaction, but may be subject to any deferred payment arrangement (such as an escrow or earn-out provision) that applies tothe consideration paid in the transaction to the Company or its stockholders.Employment, Severance and Change in Control AgreementsEric L. Kelly. In connection with our acquisition of Overland, we assumed the employment agreement then in effect between Overland and Mr. Kelly,who had been serving as Overland’s President and Chief Executive Officer and was appointed our Chairman and Chief Executive Officer, effective December1, 2014. The agreement provides for Mr. Kelly to earn a base salary of $400,000 and to be eligible to receive an annual bonus based upon the achievement offinancial and management objectives reasonably established by our Board of Directors or an authorized committee of our Board of Directors. His annualbonus target is 100% of the greater of $400,000 or his base salary as of the end of the applicable fiscal quarter or year in which the bonus is earned, and he hasthe opportunity to earn an annual bonus of up to 150% of the target bonus. To the extent that any travel, lodging or auto-expense reimbursements we make toMr. Kelly are taxable to him, we will provide him with a tax restoration payment so that he will be put in the same after-tax position as if such reimbursementshad not been subject to tax. Mr. Kelly’s employment agreement automatically renews each year for an additional one-year term. We may unilaterally modifyMr. Kelly’s cash compensation at any time, subject to Mr. Kelly’s right to terminate his employment for good reason as described below.Mr. Kelly’s employment agreement also provides that if we terminate his employment without cause or if he resigns from employment for good reason(other than in the circumstances contemplated by his retention agreement described below), we will be obligated to pay him an aggregate severance paymentequal to the sum of (i) 150% of the greater of his base salary then in effect or his original base salary, (ii) a portion of his target bonus prorated based on thenumber of days he was employed during the period on which the target bonus is based (such pro-rated target bonus to also be paid if his termination were dueto his death or disability), (iii) an amount equal to the estimated premiums he would be required to pay to continue health insurance coverage under ourinsurance plans for himself and his eligible dependents under COBRA for 18 months following the date of his termination, and (iv) the estimated amountnecessary for him to continue life, accident, medical and dental insurance benefits for himself and49his eligible dependents in amounts substantially similar to those which he received immediately prior to the date of his termination for a period of 18 monthsfollowing his termination (reduced by the amount of any payment for COBRA premiums as described in clause (iii) above). For these purposes, the terms“cause” and “good reason” are defined in the agreement, and a termination of employment by us without cause includes a termination by us at the end of theterm then in effect. The severance payment will be made in equal monthly installments over 18 months in accordance with our regular payroll practices. Inaddition, Mr. Kelly will be entitled to accelerated vesting for any unvested portion of his then outstanding stock options and any other equity-based awardsthat would otherwise have vested during the 12-month period following his termination. In the case of vested stock options, he will be permitted to exercisesuch options in whole or in part at any time within one year of the date of his termination, subject to earlier termination upon the expiration of the maximumterm of the applicable options under the applicable plan or upon a change in control. The severance benefits described above are contingent upon Mr. Kellyproviding us with a general release of all claims.In addition, in connection with our acquisition of Overland, we also assumed the retention agreement then in effect between Overland and Mr. Kelly.In December 2017, the Board approved an amended and restated version of this agreement with Mr. Kelly. The amended retention agreement provides that ifMr. Kelly’s employment continues through a change in control of the Company (or if his employment is terminated by the Company without cause or heresigns for good reason (as such terms are defined in the agreement) within sixty days prior to the change in control), he will be entitled to a lump sumpayment equal to 150% of the sum of his base salary at the time of the consummation of the change of control or his termination date (whichever is higher)and his annual target bonus. Mr. Kelly will also be entitled to accelerated vesting of his then-outstanding and unvested stock options and other equity-basedawards granted by the Company, and he will be permitted to exercise vested stock options for one year of the date of his termination, subject to earliertermination upon the expiration of the maximum term of the option or upon a change of control. In addition, if his employment is terminated by theCompany without cause or he resigns for good reason within the sixty-day period before a change in control or any time after the change in control, Mr. Kellywill be entitled to a lump sum payment of (i) an amount equal to the estimated premiums he would be required to pay to continue health insurance coverageunder our insurance plans for himself and his eligible dependents under COBRA for 18 months following the date of his termination, and (ii) the estimatedamount necessary for him to continue life, accident, medical and dental insurance benefits for himself and his eligible dependents in amounts substantiallysimilar to those which he received immediately prior to the date of his termination for a period of 18 months following his termination (reduced by theamount of any payment for COBRA premiums as described in clause (i) above). If any portion of any payment under Mr. Kelly’s retention agreement wouldconstitute an “excess parachute payment” within the meaning of Section 280G of the U.S. Internal Revenue Code, then that payment will be reduced to anamount that is one dollar less than the threshold for triggering the tax imposed by Section 4999 of the U.S. Internal Revenue Code if such reduction wouldresult in a greater benefit for Mr. Kelly on an after-tax basis. The benefits provided under Mr. Kelly’s retention agreement are contingent upon him providingus a general release of claims. In no event will Mr. Kelly be entitled to both the benefits provided under his retention agreement and the severance benefitsprovided under his employment agreement.Kurt L. Kalbfleisch. In connection with our acquisition of Overland, we assumed the employment agreement then in effect between Overland and Mr.Kalbfleisch, who had been serving as Overland’s Senior Vice President and Chief Financial Officer and was appointed our Senior Vice President and ChiefFinancial Officer, effective December 1, 2014. In December 2017, the Board approved an amended and restated version of this agreement with Mr.Kalbfleisch. The restated agreement provides for Mr. Kalbfleisch to earn a base salary of $300,000. Mr. Kalbfleisch’s employment agreement automaticallyrenews each year for an additional one-year term. We may unilaterally modify Mr. Kalbfleisch’s cash compensation at any time, subject to Mr. Kalbfleisch’sright to terminate his employment for good reason. If we terminate Mr. Kalbfleisch’s employment without cause or he resigns his employment for good reason(as such terms are defined in the agreement), in either case more than sixty days before a change in control of the Company, he will be entitled to anaggregate severance payment equal to the sum of (i) the greater of his annual base salary then in effect or his original base salary of $300,000, (ii) a portion ofany target bonus prorated based on the number of days he was employed during the period on which the target bonus is based (such pro-rated target bonus toalso be paid if his termination were due to his death or disability), (iii) an amount equal to the estimated premiums he would be required to pay to continuehealth insurance coverage under our insurance plans for himself and his eligible dependents under COBRA for 12 months following the date of histermination, and (iv) the estimated amount necessary for him to continue life, accident, medical and dental insurance benefits for himself and his eligibledependents in amounts substantially similar to those which he received immediately prior to the date of his termination for a period of 12 months followinghis termination (reduced by the amount of any payment50for COBRA premiums as described in clause (iii) above). The severance payment will be made in equal monthly installments over the 12 months followingtermination of employment. In addition, Mr. Kalbfleisch will be entitled to accelerated vesting of any unvested portion of his then outstanding stock optionsand other equity-based awards that would otherwise have vested during the 12-month period following his termination. In the case of vested stock options,he will be permitted to exercise such options in whole or in part at any time within one year of the date of his termination, subject to earlier termination uponthe expiration of the maximum term of the applicable options under the applicable plan or upon a change in control.Mr. Kalbfleisch’s restated employment agreement also provides that if his employment continues through a change in control of the Company (or ifhis employment is terminated by the Company without cause or he resigns for good reason (as such terms are defined in the agreement) within sixty daysprior to the change in control), he will be entitled to a lump sum payment equal to 150% of his base salary then in effect. Mr. Kalbfleisch will also be entitledto accelerated vesting of his then-outstanding and unvested stock options and other equity-based awards granted by the Company, and he will be permittedto exercise vested stock options for one year of the date of his termination, subject to earlier termination upon the expiration of the maximum term of theoption or upon a change of control. In addition, if his employment is terminated by the Company without cause or he resigns for good reason within thesixty-day period before a change in control or any time after the change in control, Mr. Kalbfleisch will be entitled to a lump sum payment of (i) an amountequal to the estimated premiums he would be required to pay to continue health insurance coverage under our insurance plans for himself and his eligibledependents under COBRA for 12 months following the date of his termination, and (ii) the estimated amount necessary for him to continue life, accident,medical and dental insurance benefits for himself and his eligible dependents in amounts substantially similar to those which he received immediately priorto the date of his termination for a period of 12 months following his termination (reduced by the amount of any payment for COBRA premiums as describedin clause (i) above). If any payment under Mr. Kalbfleisch’s employment agreement would constitute an “excess parachute payment” within the meaning ofSection 280G of the U.S. Internal Revenue Code, then that payment will be reduced to an amount that is one dollar less than the threshold for triggering thetax imposed by Section 4999 of the U.S. Internal Revenue Code if such reduction would result in a greater benefit for Mr. Kalbfleisch on an after-tax basis. Ineach case, the severance and change in control benefits provided under Mr. Kalbfleisch’s employment agreement are contingent upon him providing us witha general release of all claims.Peter Tassiopoulos. In December 2017, the Board approved certain compensation arrangements for Mr. Tassiopoulos. Pursuant to these arrangements,if Mr. Tassiopoulos’ employment continues through a change in control of the Company (or if his employment is terminated by the Company without causeor he resigns for good reason (as such terms are defined in the agreement) prior to the change in control), he will be entitled to receive a lump sum payment of$360,000, and his outstanding and unvested equity-based awards granted by the Company will fully accelerate. In addition, if at any time his employment isterminated by the Company without cause or he resigns for good reason, he will be entitled to receive an amount equal to the estimated premiums he wouldbe required to pay to continue health insurance coverage under our insurance plans for himself and his eligible dependents under COBRA for 12 monthsfollowing the date of his termination. The benefits described above are contingent upon Mr. Tassiopoulos providing us with a general release of all claimsand the entry into a settlement and release agreement by Mr. Tassiopoulos with respect to his prior bonus and severance arrangements with the Company.Jenny C. Yeh. In December 2017, the Board approved a retention agreement with Ms. Yeh that amended and restated her prior severance agreementwith the Company. Under her retention agreement, if Ms. Yeh’s employment continues through a change in control of the Company (or if her employment isterminated by the Company without cause or she resigns for good reason (as such terms are defined in the agreement) prior to the change in control), she willbe entitled to receive a lump sum payment in an amount equal to 12 months of her base salary, and her outstanding and unvested equity-based awardsgranted by the Company will fully accelerate. In addition, if at any time her employment is terminated by the Company without cause or she resigns for goodreason, she will be entitled to receive an amount equal to the estimated premiums she would be required to pay to continue health insurance coverage underour insurance plans for herself and her eligible dependents under COBRA for 12 months following the date of her termination. The benefits described aboveare contingent upon Ms. Yeh providing us with a general release of all claims.512015 Performance Incentive PlanEmployees, officers, directors and consultants that provide services to us or one of our subsidiaries may be selected to receive awards under the 2015Plan. Our Board of Directors has broad authority to administer the 2015 Plan, including the authority to select participants and determine the types of awardsthat they are to receive, determine the grants levels, vesting and other terms and conditions of awards, and construe and interpret the terms of the 2015 Planand any agreements relating to the plan.A total of 2,066,747 common shares are authorized for issuance with respect to awards granted under the 2015 Plan (not including shares subject toterminated awards under our Second Amended and Restated Stock Option Plan that become available for issuance under the 2015 Plan). Awards under the2015 Plan may be in the form of incentive or nonqualified stock options, stock appreciation rights, stock bonuses, restricted stock, stock units and otherforms of awards including cash awards. Awards under the plan generally will not be transferable other than by will or the laws of descent and distribution,except that the plan administrator may authorize certain transfers.The number and type of shares available under the 2015 Plan and any outstanding awards, as well as the exercise or purchase prices of awards, aresubject to customary adjustments in the event of stock splits, stock dividends and certain other corporate transactions. Generally, and subject to limitedexceptions set forth in the 2015 Plan, if we dissolve or undergo certain corporate transactions such as a merger, business combination or other reorganization,or a sale of all or substantially all of our assets, all awards then-outstanding under the 2015 Plan will become fully vested or paid, as applicable, and willterminate or be terminated in such circumstances, unless the Board of Directors provides for the assumption, substitution or other continuation of the award.The Board of Directors also has the discretion to establish other change in control provisions with respect to awards granted under the 2015 Plan.The Board of Directors may amend or terminate the 2015 Plan at any time, but no such action will affect any outstanding award in any mannermaterially adverse to a participant without the consent of the participant. Plan amendments will be submitted to stockholders for their approval as required byapplicable law or deemed advisable by the Board of Directors. If not earlier terminated by the Board of Directors, the 2015 Plan will terminate on May 14,2025. The 2015 Plan is not exclusive - the Board of Directors may grant stock and performance incentives or other compensation, in stock or cash, underother plans or authority.401(k) PlanOur On-Track 401(k) Savings Plan covers all of our U.S. employees, provided they meet the requirements of the plan. Our 401(k) plan is intended toqualify under Section 401 of the Internal Revenue Code so that employee contributions and income earned on such contributions are not taxable toemployees until withdrawn. Employees may elect to defer up to 60% of their eligible compensation (not to exceed the statutorily prescribed annual limit) inthe form of elective deferral contributions to our 401(k) plan. However, our named executive officers qualify as highly compensated employees and may onlyelect to defer up to 8.5% of their eligible compensation (not to exceed the statutorily prescribed annual limit) in the form of elective deferral contributions toour 401(k) plan. Our 401(k) plan also has a catch up contribution feature for employees aged 50 or older (including those who qualify as highly compensatedemployees) who can defer amounts over the statutory limit that applies to all other employees. Our 401(k) Plan permits but does not require matchingcontributions by us on behalf of participants.52Compensation of DirectorsThe following table provides compensation information for the members of our Board of Directors during 2017 who were not employed by us or any ofour subsidiaries (“non-employee directors”). Eric Kelly and Peter Tassiopoulos are each named executive officers who also served on the Board of Directorsduring 2017. The 2017 compensation information for each of these individuals is presented in the Summary Compensation Table above and they were notentitled to any additional compensation for their service on the Board during fiscal 2017.Name Fees Earned($) Stock Awards(1)($) All OtherCompensation($) Total($)Peter Ashkin(2) 19,670 — — 19,670Cheemin Bo-Linn(3) 83,044 77,200 — 160,244Glenn Bowman(4) 12,000 — — 12,000Vivekanand Mahadevan 97,742 — — 97,742Duncan McEwan(5) 73,456 40,631 — 114,087_______________(1)At the end of fiscal 2017, the number of shares subject to outstanding restricted stock units for the non-employee directors were as follows: Dr. Bo-Linn - 16,000: Mr. McEwan - 8,421; Mr. Mahadevan - none; Mr. Ashkin - none; and Mr. Bowman - none.(2)Mr. Ashkin resigned from our Board of Directors on June 27 2017.(3)Dr. Bo-Linn joined our Board on April 17, 2017, and was awarded a restricted stock unit for 16,000 shares on May 10, 2017. The RSU was valuedat $4.825 per share on the grant date (the closing market price on NASDAQ for one of our common shares on that date) and vests in full on theone-year anniversary of the grant date.(4)Mr. Bowman resigned from our Board of Directors on April 13, 2017.(5)Mr. McEwan joined our Board on May 10, 2017, and was awarded a restricted stock unit for 8,421 shares when he joined our Board. The RSU wasvalued at $4.825 per share on the grant date (the closing market price on NASDAQ for one of our common shares on that date) and vest in full onthe one-year anniversary of the grant date.The non-employee board members are paid $10,000 per quarter for their service on the Board except that the Chair of the Audit Committee and theLead Board member are paid $12,500 per quarter for their service on the Board. During 2017, the Board also granted restricted stock units to certain non-employee directors as described in the notes to the table above. The Board retains complete discretion to adopt or modify our programs for providing cashand/or equity-based compensation to our non-employee directors as it deems appropriate from time to time.In August 2017, the Board formed a special committee (the “Special Committee”) to evaluate strategic options for the Company and appointedMessrs., Mahadevan and McEwan, and Dr. Bo-Linn to the Special Committee. Each member is paid $10,000 per month for their service on the SpecialCommittee. Beginning in January 2018, the $10,000 per month is paid 50% in cash and 50% in common shares.53Item 12. Security Ownership of Certain Beneficial Owners and Management and Related Stockholder MattersEquity Compensation Plan InformationThe following table provides information about our equity compensation plans as of the last day of fiscal 2017, unless otherwise footnoted below. TheCompany maintains its 2012 Option Plan (“2012 Plan”), 2015 Performance Incentive Plan (“2015 Plan”), and 2015 Employee Stock Purchase Plan (“ESPP”),which have been approved by the Company’s shareholders. No new awards may be granted under the 2012 Plan.Plan Category (a)Number of Common Sharesto be IssuedUpon Exerciseof OutstandingOptions and Rights (b)Weighted-averageExercise Priceof OutstandingOptions and Rights(1) (c)Number of CommonShares RemainingAvailable for FutureIssuance UnderEquity CompensationPlans (ExcludingShares Reflectedin Column (a))Equity compensation plans approved by our shareholders(2) 1,133,276 $31.40 1,071,428Equity compensation plans not approved by our shareholders(3) 58,856 — —Total 1,192,132 1,071,428_________________(1)The weighted-average exercise prices do not reflect shares subject to outstanding awards of restricted stock units.(2)Of the aggregate number of Shares that are to be issued upon exercise of outstanding options and rights as reported in column (a), 1,046,576 weresubject to outstanding awards under the 2015 Plan and 86,700 were subject to outstanding awards under the 2012 Plan as of December 31, 2017.This table does not include the equity awards we assumed in connection with our acquisition of Overland in December 2014. As of December 31,2017, an additional 1,246 of our common shares were subject to outstanding stock options we assumed in the acquisition (at a weighted averageexercise price of $267.70 per share). Of the aggregate number of shares that remained available for future issuance reported in column (c), 771,428were available under the 2015 Plan and 300,000 were available under the ESPP. The 2015 Plan permits the granting of the following types ofincentive awards: stock options, stock appreciation rights, restricted shares, and stock units.(3)These figures represent stock units (the “Inducement Stock Units”) granted to certain employees as an inducement to their commencingemployment with us as provided under the Nasdaq listing rules. The Inducement Stock Units are generally subject to the same terms as stock unitsgranted under the 2015 Plan. The Inducement Stock Units vest over three years and are subject to earlier termination in the case of termination ofthe employee’s employment or a change in control of the Company.54SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENTThe following table sets forth certain information with respect to the beneficial ownership of our common shares as of March 16, 2018 by eachshareholder known to us to beneficially own more than 5% of our common shares, each director, and each executive officer named in the SummaryCompensation table above, and all directors and executive officers of Sphere 3D as a group:Beneficial Owner(1) Number of SharesBeneficiallyOwned(2) Percent(3)MF Ventures, LLC 2,294,569(4)24.5%201 Spear Street, 14th Floor San Francisco, CA 94105 Cyrus Capital Partners, L.P. 780,648(5)8.3%65 East 55 Street, 35th Floor New York, NY 10022 Eric Kelly 92,584(6)1.0%Kurt L. Kalbfleisch 31,612(7)*Peter Tassiopoulos 8,000(8)*Jenny Yeh 5,599(9)*Cheemin Bo-Linn 16,000(10)*Duncan McEwan 8,421(11)*Vivekanand Mahadevan 5,244(12)*Directors and executive officers as a group (7 persons) 167,460(13)1.8%_______________* Less than 1%(1)Except as otherwise indicated, the persons named in this table have sole voting and investment power with respect to all common shares shown asbeneficially owned by them. Unless otherwise noted, the address for each beneficial owner is: c/o Sphere 3D Corp., 125 South Market Street, SanJose, CA 95113.(2)Under the rules of the Securities and Exchange Commission, a person is deemed to be the beneficial owner of shares that can be acquired by suchperson within 60 days upon the exercise of options or warrants and vesting of stock awards.(3)Calculated on the basis of 9,051,408 shares of common stock outstanding as of March 16, 2018, provided that any additional shares of commonstock that a stockholder has the right to acquire within 60 days after March 16, 2018 are deemed to be outstanding for the purpose of calculatingthat stockholder’s percentage beneficial ownership(4)Information was obtained from MF Ventures, LLC and Company records. These shares include the right to acquire 300,000 shares upon exerciseof warrants. MF Ventures, LLC is a limited liability company formed to make one or more investments in business ventures or activities deemedappropriate by Victor B. MacFarlane, as Manager of MF Ventures, LLC. Mr. MacFarlane as Manager of MF Ventures, LLC and Thaderine D.MacFarlane as a controlling member of MF Ventures, LLC share voting power over the shares of common stock held by MF Ventures, LLC.55(5)Information was obtained from Cyrus Capital Partners, L.P. pursuant to Schedule 13D/A filed February 23, 2018. Certain funds and affiliatesmanaged by Cyrus, directly and indirectly own these shares (the “Cyrus Group”). These shares include 44,000 Shares issuable upon exercise ofwarrants and 326,667 Shares issuable upon conversion of a debenture. The Cyrus Group is comprised of Cyrus Capital Partners, L.P., a Delawarelimited partnership, (“Cyrus”), Crescent 1, L.P., a Delaware limited partnership (“Crescent”), CRS Master Fund, L.P., a Cayman Islands exemptedlimited partnership, (“CRS”), Cyrus Opportunities Master Fund II, Ltd., a Cayman Islands exempted limited company, (“Cyrus Opportunities)”,Cyrus Select Opportunities Master Fund, Ltd., a Cayman Islands exempted limited company, (“Cyrus Select”), Cyrus Capital Partners GP, L.L.C., aDelaware limited partnership, (“Cyrus GP”), Cyrus Capital Advisors, L.L.C., a Delaware limited liability company, (“Cyrus Advisors”), and Mr.Stephen C. Freidheim. Each of Crescent, CRS, Cyrus Opportunities and Cyrus Select, or collectively the Cyrus Funds, are private investment fundsengaged in the business of acquiring, holding and disposing of investments in various companies. Cyrus is the investment manager of each of theCyrus Funds. Cyrus GP is the general partner of Cyrus. Cyrus Advisors is the general partner of Crescent and CRS. Mr. Freidheim is the managingmember of Cyrus GP and Cyrus Advisors and is the Chief Investment Officer of Cyrus. Crescent, CRS, Cyrus Opportunities, Cyrus Select and Mr.Freidheim have entered into an investment management agreement with Cyrus giving Cyrus full voting and disposition power over the shares ofcommon stock held by the Cyrus Group.(6)These shares include the right to acquire shares upon exercise of 40,600 stock options.(7)These shares include the right to acquire shares upon exercise of 4,000 stock options and the payment of 4,266 restricted stock units.(8)These shares include the right to acquire shares upon exercise of 4,000 stock options.(9)These shares include the right to acquire shares upon the payment of 5,599 restricted stock units.(10)These shares include the right to acquire shares upon the payment of 16,000 restricted stock units.(11)These shares include the right to acquire shares upon the payment of 8,421 restricted stock units.(12)These shares include the right to acquire shares upon exercise of 111 stock options.(13)These shares include the right to acquire shares upon exercise of 48,711 stock options and the payment of 34,286 restricted stock unitsbeneficially owned by our directors and executive officers.Item 13. Certain Relationships and Related Transactions, and Directors IndependenceWarrant Exchange Agreement. On March 16, 2018, the Company entered into a warrant exchange agreement (the “Exchange Agreements”), in aprivately negotiated exchange under Section 4(a)(2) of the Securities Act of 1933, as amended, pursuant to which the Company issued 1,430,998 commonshares in exchange for the surrender and cancellation of the March 24, 2017 warrants (the “Exchange”). Immediately after the Exchange, the ExchangeAgreements became null and void. MF Ventures, LLC, participated in the Exchange by acquiring 299,999 common shares in exchange for a warrant topurchase 272,727 common shares.56Purchase Agreement. On February 20, 2018, the Company, Overland, and Silicon Valley Technology Partners LLC, a Delaware limited liabilitycompany established and controlled by Eric Kelly, the Company’s Chief Executive Officer and Chairman of the Board of Directors (the “Purchaser”) enteredinto a share purchase agreement (the “Purchase Agreement”), pursuant to which, among other things, and subject to certain closing conditions, the Companywill sell to Purchaser all of the issued and outstanding shares of capital stock of Overland for $45.0 million (the “Purchase Price”), subject to working capitaladjustments (the “Share Purchase”). The net proceeds from the Share Purchase will be used to repay: (i) the Company’s outstanding obligations under itsCredit Agreement with Opus Bank; (ii) its outstanding obligations under the related party convertible note with FBC Holdings S.a.r.l. (“FBC Holdings”); and(iii) its related party subordinated promissory note with MF Ventures, LLC. The Special Committee of the Board of Directors of the Company and the Boardof Directors of the Company (with Eric Kelly recusing) unanimously approved the entry into the Purchase Agreement by the Company. See Note 1 -Organization and Business for additional details.Private Placement. In August 2017, the Company entered into a securities purchase agreement with certain investors pursuant to which the Companyissued (i) 600,000 common shares, of which 395,000 common shares were issued to related parties, and (ii) warrants for the purchase of up to 600,000common shares, of which 395,000 warrants were issued to related parties, in a private placement in exchange for a cash payment of $3.0 million. Thepurchase price was $5.00 per common share and warrant to purchase one common share, and the exercise price of the warrants is $5.25 per warrant share. Thewarrants were subject to certain anti-dilution adjustments through December 2017.Related Party Warrant Exchange Agreement. In July 2017, the Company entered into amended and restated warrant agreements with certain holdersof warrants previously issued in March 2016 (the “Amended March 2016 Warrant”) and between December 2016 and March 2017 (the “Amended March2017 Warrants” and together with the Amended March 2016 Warrant, the “Amended and Restated Warrants”). Pursuant to the amended and restated warrantagreements, the Company issued an aggregate of 1,617,917 common shares, of which 1,315,385 common shares were issued to related parties, in exchangefor the cancellation of such warrants. Immediately after the exchange, the amended and restated warrant agreements became null and void.Registered Direct Offering and Concurrent Private Placement. On March 24, 2017, the Company entered into a securities purchase agreement withcertain investors party thereto, pursuant to which the Company issued to the investors, in the aggregate, 818,182 of the Company’s common shares for grossproceeds of $4.5 million. The security purchase agreement also provided for the concurrent private placement of warrants exercisable to purchase up to867,272 common shares. Each warrant had an exercise price of $7.50 per warrant share. MF Ventures, LLC, a related party, participated in the offering byacquiring 181,818 common shares and warrants to purchase 181,818 shares for gross proceeds of $1.0 million. In August 2017, the Company issuedadditional common shares, which triggered a price adjustment for the March 2017 warrants from $7.50 to $5.00 and the Company issued, in the aggregate,additional warrants exercisable to purchase up to 433,638 common shares, of which MF Ventures, LLC received 90,909 warrants exercisable to purchasecommon shares.Private Placement. Between December 2016 and March 16, 2017, the Company completed a private placement and issued a total of 725,599 “Units”at a purchase price of $7.50 per Unit. Each Unit consisted of one common share and one warrant from each of two series of warrants. The Company receivedgross proceeds of $5.4 million in connection with the sale of the Units. The first series of warrants was exercisable to purchase 725,599 common shares in theaggregate and has an exercise price of $10.00 per share, a one-year term, and was exercisable in whole or in part at any time prior to expiration. The secondseries of warrants was exercisable for 725,599 common shares in the aggregate and has an exercise price of $13.75 per share, a five-year term, and wasexercisable in whole or in part at any time prior to expiration. MF Ventures, LLC, participated in the private placements by acquiring 333,333 commonshares and warrants to purchase 666,666 shares. Lynn Factor and Sheldon Inwentash, a married couple who beneficially owned, directly or indirectly,securities of the Company carrying more than 5% of the voting rights attached to the outstanding voting securities of the Company (on a partially-dilutedbasis) during the 2017 fiscal year, participated in the private placements by acquiring 213,000 common shares and warrants to purchase 426,000 shares. Anadditional 28,000 common shares and warrants to purchase 56,000 shares were acquired by ThreeD Capital Inc. Mr. Inwentash is the Chief Executive Officerof ThreeD Capital Inc. As of December 31, 2017, Lynn Factor and Sheldon Inwentash no longer have a significant direct or indirect ownership of theCompany and are no longer are classified as a related party.57Related Party Convertible Notes. In December 2014, in connection with the acquisition of Overland, the existing debt of Overland and the remainingdebt of the Company were amended and restated into a $19.5 million convertible note held by FBC Holdings. In April 2016, the Company modified itsconvertible note with FBC Holdings, pursuant to which the holder made an additional advance and principal amount under the convertible note amount wasincreased to $24.5 million. The convertible note is scheduled to mature March 31, 2018 and bears interest at an 8.0% simple annual interest rate, payablesemi-annually. The obligations under the convertible note are secured by substantially all assets of the Company. At December 31, 2017 and 2016, theCompany had $24.4 million and $24.2 million, net of unamortized debt costs of $0.1 million and $0.3 million, respectively, outstanding on the convertiblenote. In 2017, we issued 586,298 common shares for the payment of interest expense on our convertible note. For the years ended December 31, 2017 and2016, interest expense, including amortization of debt costs, on the convertible note was $2.2 million and $2.1 million, respectively.Related Party Loans. In December 2017, the Company entered into a $2.0 million subordinated promissory note with MF Ventures, LLC, a relatedparty. The promissory note is subordinate to the Company’s Opus Bank Credit Agreement and FBC Holdings indebtedness and has a maturity date of theearliest of: (i) December 11, 2020; (ii) immediately after repayment in full of the Opus Bank Credit Agreement and the FBC Holdings indebtedness; or (iii)immediately after the Company’s refinancing of both the Opus Bank Credit Agreement and the FBC Holdings indebtedness. The promissory note may beprepaid at any time by the Company; including any accrued and unpaid interest and a $0.3 million prepayment penalty. The promissory note bears interest ata 12.5% simple annual interest rate, payable quarterly in arrears. Interest shall be paid in kind by increasing the principal amount of the note on eachquarterly interest payment date.In September 2016, the Company entered into a $2.5 million term loan agreement with FBC Holdings. The term loan has a maturity date of January 31,2018 and bears interest at a 20.0% simple annual interest rate, payable monthly in arrears. Monthly payments of principal on the term loan begin on January31, 2017, in 13 equal installments. At December 31, 2017 and 2016, the outstanding balance of the term loan was $0.2 million and $2.5 million, respectively.For the years ended December 31, 2017 and 2016, interest expense, including amortization of debt costs, on the term loan was $0.3 million and $0.1 million,respectively. In January 2018, the FBC Holdings term loan was paid in full per the term loan agreement.Indemnification of Our Executive Officers and DirectorsIn accordance with the by-laws of the Company, directors and officers are each indemnified by the Company against all liability and costs arising outof any action or suit against them from the execution of their duties, provided that they have carried out their duties honestly and in good faith with a view tothe best interests of the Company and have otherwise complied with the provisions of applicable corporate law.Director IndependenceThe Board has determined that the following current directors are independent within the meaning of NI 58-101 and NI 52-110 and NASDAQMarketplace Rule 5605(a)(2): Cheemin Bo-Linn, Vivekanand Mahadevan and Duncan McEwan. The Board has determined that Eric L. Kelly and PeterTassiopoulos are not independent because of their positions as officers of the Company (holding the position of Chief Executive Officer and President of theCompany, respectively). As a result, the Board is currently comprised of three independent directors and a majority of independent directors.58Item 14. Principal Accounting Fees and ServicesThe aggregate fees incurred by the Company’s current external auditor, Moss Adams, in each of the last two years for audit and other fees are as follows(in thousands): 2017 2016Audit fees(1) $525 $514Audit related fees(2) 59 10Tax fees(3) 1 9All other fees(4) — — $585 $533___________________(1)Audit fees consist of fees billed for professional services rendered in connection with the audit of our annual consolidated financial statements,which were provided in connection with statutory and regulatory filings or engagements.(2)Audit-related fees consist of fees billed for assurance and related services that are reasonably related to the performance of the audit or review ofour consolidated financial statements, and are not reported under audit fees.(3)Tax fees consist of fees billed for professional services rendered for IRS Section 302 net operating loss limitation study.(4)All other fees consist of fees for products and services other than the services reported above. There were no such services rendered to us.Pre-Approval Policies and ProceduresThe Audit Committee has the authority to pre-approve all non-audit services to be provided to the Company by its independent auditor. All servicesprovided by Moss Adams during the years 2017 and 2016 were pre-approved by the Audit Committee.59PART IVItem 15. Exhibits, Financial Statements Schedules(a) Documents filed as part of this report.(1) Financial Statements.Report of Independent Registered Public Accounting Firm F-1Consolidated Balance Sheets as of December 31, 2017 and 2016 F-2Consolidated Statements of Operations for the Years Ended December 31, 2017 and 2016 F-3Consolidated Statements of Comprehensive Loss for the Years Ended December 31, 2017 and 2016 F-4Consolidated Statements of Cash Flows for the Years Ended December 31, 2017 and 2016 F-5Consolidated Statements of Shareholders' Equity for the Years Ended December 31, 2017 and 2016 F-7Notes to Consolidated Financial Statements F-8(2) Financial Statement Schedules.Schedules not listed above have been omitted because they are not applicable or are not required or the information required to be set forth therein isincluded in the consolidated financial statements or notes thereto.(3) Exhibits.List of Exhibits required by Item 601 of Regulation S-K. See part (b) below.60(b) Exhibits.Exhibit FiledIncorporated by ReferenceNumberDescriptionHerewithFormFile No.Date Filed 2.1Asset Purchase Agreement dated August 10, 2015 between Imation Corp., OverlandStorage, Inc. and Sphere 3D Corp. 6-K001-365328/14/2015 2.2Share Purchase Agreement dated February 20, 2018 between Sphere 3D Corp.,Overland Storage, Inc., and Silicon Valley Technology Partners LLC 8-K001-365322/21/2018 3.1Certificate and Articles of Amalgamation 6-K001-365323/25/2015 3.2Certificate of Amendment to the Articles of Amalgamation of the Company 6-K001-365327/17/2017 3.3By-Law No. 1, as Amended 6-K001-365327/17/2017 3.4By-Law No. 2 6-K001-365325/12/2017 4.1Specimen certificate evidencing Common Shares F-3333-2107354/13/2016 4.2Form of Warrant 6-K001-365326/2/2015 4.3Form of Warrant 6-K001-3653210/7/2015 4.4Form of Canadian Warrant 6-K001-3653212/2/2015 4.5Form of Fund Warrant 6-K001-3653212/2/2015 4.6Warrant dated March 25, 2016, issued to MF Ventures, LLC 40-F001-365323/30/2016 4.7Form of Warrant 6-K001-365323/24/2017 4.8Replacement Warrant to Purchase common shares dated December 30, 2016 issuedby the Company to Opus Bank 6-K001-365323/24/2017 4.9First Additional Warrant to Purchase common shares dated March 12, 2017 issuedby the Company to Opus Bank 6-K001-365323/24/2017 4.10Second Additional Warrant to Purchase common shares dated March 12, 2017issued by the Company to Opus Bank 6-K001-365323/24/2017 4.11Form of One-Year Warrant Agreement 20-F001-365323/31/2017 4.12Form of Five-Year Warrant Agreement 20-F001-365323/31/2017 4.13Form of Amended One and Five -Year Warrant Agreement 6-K001-365327/20/2017 4.14Amended March 25, 2016 Warrant issued to MF Ventures, LCC 6-K001-365327/20/2017 4.15Form of Warrant Agreement 6-K001-365328/15/2017 10.1Voting Agreements each dated July 15, 2013 between Eric L. Kelly and variousshareholders of the Company 40-F000-552326/27/2014 10.2Board Nomination Rights Agreement dated July 15, 2013 between Eric L. Kelly andthe Company 40-F000-552326/27/2014 61Exhibit FiledIncorporated by ReferenceNumberDescriptionHerewithFormFile No.Date Filed10.38% Senior Secured Convertible Debenture dated December 1, 2014 between theCompany and FBC Holdings S.A.R.L. 6-K001-3653212/16/2014 10.4First Amendment to 8% Senior Secured Convertible Debenture dated November 30,2015 between the Company and FBC Holdings S.A.R.L. 6-K001-3653212/2/2015 10.5Second Amendment to 8% Senior Secured Convertible Debenture dated April 6,2016 between the Company and FBC Holdings S.A.R.L. 6-K001-365324/7/2016 10.6Revolving Credit Agreement dated December 30, 2014 between the Company,Overland Storage, Inc. and FBC Holdings S.A.R.L. 6-K001-365321/22/2015 10.7First Amendment to Revolving Credit Agreement dated July 10, 2015 between theCompany, Overland Storage, Inc. and FBC Holdings S.A.R.L. 6-K001-365327/31/2015 10.8Form of Purchase Agreement 6-K001-365326/2/2015 10.9Form of Registration Rights Agreement 6-K001-365326/2/2015 10.10Form of Subscription Agreement 6-K001-3653210/7/2015 10.11Form of Subscription Agreement 6-K001-3653212/2/2015 10.12Form of Securities Purchase Agreement 6-K001-3653212/2/2015 10.13Warrant Exchange Agreement, dated March 25, 2016, by and between the Companyand MF Ventures, LLC 40-F001-365323/30/2016 10.14Form of Securities Purchase Agreement 6-K001-365323/24/2017 10.15Form of Leak Out Agreement 6-K001-365323/24/2017 10.16Form of Registration Rights Agreement 6-K001-365323/24/2017 10.17Placement Agency Agreement dated March 24, 2017 between the Company andRoth Capital Partners, LLC 6-K001-365323/24/2017 10.18Form of Lock-Up Agreement 6-K001-365323/24/2017 10.19Form of Stock Purchase Agreement 20-F001-365323/31/2017 10.20Registration Rights Agreement 6-K001-365328/15/2017 10.21Form of Securities Purchase Agreement dated August 11, 2017 6-K001-365328/15/2017 10.22*Credit Agreement dated April 6, 2016 between Overland Storage, Inc., TandbergData Gmbh and Opus Bank 6-K001-365324/21/2016 10.23*Consent, Waiver, Reaffirmation and Amendment Number One to Credit Agreementdated December 30, 2016 between Overland Storage, Inc., Tandberg Data Gmbh andOpus Bank 6-K/A001-365326/19/2017 10.24Amendment Number Two to Credit Agreement, Amendment Number One toAmendment Number 1, Waiver and Reaffirmation dated March 12, 2017 betweenOverland Storage, Inc., Tandberg Data Gmbh and Opus Bank 6-K/A001-365326/19/201762Exhibit FiledIncorporated by ReferenceNumberDescriptionHerewithFormFile No.Date Filed 10.25Third Amendment to Credit Agreement dated March 22, 2017 between OverlandStorage, Inc., Tandberg Data Gmbh and Opus Bank 6-K/A001-365326/19/2017 10.26Amendment Number Four to Credit Agreement and Reaffirmation dated April 28,2017 between Overland Storage, Inc., Tandberg Data Gmbh and Opus Bank 6-K001-365326/19/2017 10.27Amendment Number Five to Credit Agreement and Reaffirmation dated June 10,2017 between Overland Storage, Inc., Tandberg Data Gmbh and Opus Bank 6-K001-365326/19/2017 10.28Amendment Number Six to Credit Agreement, Amendment Number Two toAmendment Number 1, Waiver and Reaffirmation dated June 30, 2017 betweenOverland Storage, Inc., Tandberg Data Gmbh and Opus Bank 6-K001-365327/28/2017 10.29Amendment Number Seven to Credit Agreement, Waiver and Reaffirmation datedSeptember 20, 2017 between Overland Storage, Inc., Tandberg Data Gmbh and OpusBank 6-K001-365329/21/2017 10.30Term Loan Agreement dated September 16, 2016 between the Company and FBCHoldings S.A.R.L. 6-K001-365323/24/2017 10.31Subordinated Promissory Note Purchase Agreement dated December 11, 2017between Overland Storage, Inc. and MF Ventures, LLC 6-K001-3653212/15/2017 10.32Subordinated Promissory Note dated December 11, 2017 between Overland Storage,Inc. and MF Ventures, LLC 6-K001-3653212/15/2017 10.33San Diego, California Headquarters Facility Lease dated October 12, 2000 betweenthe Company and LBA-VIF One, LLC 10-Q000-220712/14/2001 10.34First Amendment to Lease dated January 18, 2001 between Overland Storage, Inc.and LBA Overland, LLC, (as successor-in-interest to LBA-VIF One, LLC) 10-K000-220719/28/2001 10.35Second Amendment to Lease dated July 1, 2010 between Overland Storage, Inc.between the Company and LBA Overland, LLC (as successor-in-interest to LBA-VIFOne, LLC) 10-K000-220719/28/2001 10.36Third Amendment to Lease dated July 1, 2010 between the Company and Overtape(CA) QRS 15-14, Inc. (successor-in-interest to LBA Overland, LLC, the successor-in-interest to LBA-VIF One, LLC 10-K000-220719/24/2010 10.37Fourth Amendment to Lease dated October 15, 2013 between the Company andOvertape (CA) QRS 15-14, Inc. (successor-in-interest to LBA Overland, LLC, thesuccessor-in-interest to LBA-VIF One, LLC 10-Q000-220712/13/2014 10.38Fifth Amendment to Lease dated December 8, 2015 between the Company andOvertape (CA) QRS 15-14, Inc. (successor-in-interest to LBA Overland, LLC, thesuccessor-in-interest to LBA-VIF One, LLC 20-F001-365323/31/2017 63Exhibit FiledIncorporated by ReferenceNumberDescriptionHerewithFormFile No.Date Filed10.39San Jose, California Headquarters Office Lease dated February 9, 2010 betweenOverland Storage, Inc. and Park Center Plaza Investors, L.P. 20-F001-365323/31/2017 10.40First Amendment to San Jose, California Headquarters Office Lease dated March 22,2017 between Sphere 3D Corp. and Park Center Plaza Investors, L.P. 20-F001-365323/31/2017 10.41Lease Revenue Contract dated May 19, 2016 between Guangzhou TandbergElectronic Components Co., Ltd. And Guangzhu Shi Panyu Tongxing PaperProducts Co., Ltd. 20-F001-365323/31/2017 10.42Sphere 3D Second Amended and Restated Stock Option Plan F-4333-1975697/23/2014 10.43Sphere 3D Corp. 2015 Performance Incentive Plan, as amended S-8333-2146051/29/2018 10.44Form of Inducement Restricted Stock Unit Agreement S-8333-2092512/1/2016 10.45Form of Executive Inducement Restricted Stock Unit Agreement S-8333-2092512/1/2016 10.46Sphere 3D Corp. Employee Stock Purchase Plan, as amended S-8333-2052361/29/2018 10.47Employment Agreement between Overland Storage, Inc. and Eric Kelly datedAugust 3, 2011 8-K000-220718/4/2011 10.48+Amended and Restated Retention Agreement between Sphere 3D Corp. and EricKelly dated December 18, 2017X 10.49+Amended and Restated Employment Agreement between Sphere 3D Corp. and KurtKalbfleisch dated December 18, 2017X 10.50+Offer of Employment Letter between Sphere 3D Corp. and Jenny Yeh datedSeptember 24, 2015X 10.51+Retention Agreement between Sphere 3D Corp. and Jenny Yeh dated December 18,2017X 10.52+Form of Stay Bonus Letter Agreement dated December 18, 2017 between Sphere 3DCorp. and Eric Kelly, Kurt Kalbfleisch, Jenny Yeh and Peter TassiopoulosX 10.53+Sale Bonus Plan dated December 18, 2017 and Form of Award Agreement betweenSphere 3D Corp. and Eric Kelly, Kurt Kalbfleisch, Jenny Yeh and PeterTassiopoulosX 10.54+Form of Restricted Stock Unit Agreement dated December 18, 2017 between Sphere3D Corp. and Eric Kelly, Kurt Kalbfleisch and Jenny YehX 10.55+Form of RSU Amendment Letter between Sphere 3D Corp. and Cheemin Bo-Linnand Duncan McEwan dated December 18, 2017X 10.56+Retention Agreement between Sphere 3D Corp. and Peter Tassiopoulos datedDecember 18, 2017X 10.57+Form of Executive Stock Option AgreementX 64Exhibit FiledIncorporated by ReferenceNumberDescriptionHerewithFormFile No.Date Filed10.58Letter from Opus Bank to Overland Storage, Inc. dated November 30, 2017 reconsent re extension of milestone under Credit Agreement and Amendment toCredit AgreementX 10.59Plano, Texas Lease Agreement dated March 25, 2016 between Unified ConneXions,Inc. and Prologis TLF (Dallas), LLCX 14.1Code of Business Conduct and Ethics Policy 6-K001-365324/1/2015 21.1Subsidiaries of RegistrantX 23.1Consent of Independent Registered Public Accounting FirmX 31.1Certification of CEO pursuant to Section 302 of the Sarbanes-Oxley Act of 2002X 31.2Certification of CFO pursuant to Section 302 of the Sarbanes-Oxley Act of 2002X 32.1Certification of Chief Executive Officer pursuant to 18 U.S.C. Section 1350, asadopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002X 32.2Certification of Chief Financial Officer pursuant to 18 U.S.C. Section 1350, asadopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002X 101.INSXBRL Instance DocumentX 101.SCHXBRL Taxonomy Extension SchemaX 101.CALXBRL Taxonomy Extension Calculation LinkbaseX 101.DEFXBRL Taxonomy Extension Definition LinkbaseX 101.LABXBRL Taxonomy Extension Label LinkbaseX 101.PREXBRL Taxonomy Presentation LinkbaseX _______________* Portions of this exhibit have been omitted pursuant to a request for confidential treatment.+ Management contract or compensation plan or arrangement.Item 16. Form 10-K SummaryNone.65SIGNATURESPursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed onits behalf by the undersigned, thereunto duly authorized.Sphere 3D Corp. /s/ Eric L. KellyEric L. KellyChief Executive OfficerDate: March 21, 2018POWER OF ATTORNEYEach person whose signature appears below constitutes and appoints Eric L. Kelly and Kurt L. Kalbfleisch, jointly and severally, as his attorney-in-fact, each with the power of substitution, for him in any and all capacities, to sign any amendments to this annual report on Form 10-K and to file the same,with exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, hereby ratifying and confirming all thateach of said attorneys-in-fact, or his substitute or substitutes, may do or cause to be done by virtue hereof. Pursuant to the requirements of the Exchange Act,this report has been signed below by the following persons on behalf of the registrant and in the capacities and on the dates indicated. Signature Title Date /s/ ERIC L. KELLY Chairman of the Board and Chief Executive Officer (Principal ExecutiveOfficer) March 21, 2018Eric L. Kelly /s/ KURT L. KALBFLEISCH Chief Financial Officer(Principal Financial and Accounting Officer) March 21, 2018 Kurt L. Kalbfleisch /s/ CHEEMIN BO-LINN Director March 21, 2018Cheemin Bo-Linn /s/ VIVEKANAND MAHADEVAN Director March 21, 2018Vivekanand Mahadevan /s/ DUNCAN MCEWAN Director March 21, 2018Duncan McEwan /s/ PETER TASSIOPOULOS Director March 21, 2018Peter Tassiopoulos 66Report of Independent Registered Public Accounting FirmThe Shareholders and Board of Directors ofSphere 3D Corp.Opinion on the Financial StatementsWe have audited the accompanying consolidated balance sheets of Sphere 3D Corp. (the “Company”) as of December 31, 2017 and 2016, the relatedconsolidated statements of operations, comprehensive loss, cash flows, and shareholders’ equity for the years then ended, and the related notes (collectivelyreferred to as the “consolidated financial statements”). In our opinion, the consolidated financial statements present fairly, in all material respects, theconsolidated financial position of the Company as of December 31, 2017 and 2016, and the consolidated results of its operations and its cash flows for theyears then ended, in conformity with accounting principles generally accepted in the United States of America.Going Concern UncertaintyThe accompanying consolidated financial statements have been prepared assuming that the Company will continue as a going concern. As discussed in Note1 to the consolidated financial statements, the Company has suffered recurring losses from operations, has a net working capital deficiency, and may not beable to amend, refinance, or pay off its debt and credit facilities, which raise substantial doubt about its ability to continue as a going concern. Management’splans in regard to these matters are also described in Note 1. The consolidated financial statements do not include any adjustments that might result from theoutcome of this uncertainty.Basis for OpinionThese consolidated financial statements are the responsibility of the Company’s management. Our responsibility is to express an opinion on the Company’sconsolidated financial statements based on our audits. We are a public accounting firm registered with the Public Company Accounting Oversight Board(United States) (“PCAOB”) and are required to be independent with respect to the Company in accordance with the U.S. federal securities laws and theapplicable rules and regulations of the Securities and Exchange Commission and the PCAOB.We conducted our audits in accordance with the standards of the PCAOB. Those standards require that we plan and perform the audit to obtain reasonableassurance about whether the consolidated financial statements are free of material misstatement, whether due to error or fraud. The Company is not required tohave, nor were we engaged to perform, an audit of its internal control over financial reporting. As part of our audits we are required to obtain anunderstanding of internal control over financial reporting but not for the purpose of expressing an opinion on the effectiveness of the Company’s internalcontrol over financial reporting. Accordingly, we express no such opinion.Our audits included performing procedures to assess the risks of material misstatement of the consolidated financial statements, whether due to error or fraud,and performing procedures to respond to those risks. Such procedures included examining, on a test basis, evidence regarding the amounts and disclosures inthe consolidated financial statements. Our audits also included evaluating the accounting principles used and significant estimates made by management, aswell as evaluating the overall presentation of the consolidated financial statements. We believe that our audits provide a reasonable basis for our opinion./s/ Moss Adams LLPSan Diego, CaliforniaMarch 21, 2018We have served as the Company’s auditor since 2015.F-1Sphere 3D Corp.Consolidated Balance Sheets(in thousands of U.S. dollars) December 31, 2017 December 31, 2016Assets Current assets: Cash and cash equivalents$4,598 $5,056Accounts receivable, net of allowance for doubtful accounts of $1,675 and $1,648, respectively11,482 11,591Inventories8,366 10,002Investment— 1,500Other current assets1,829 2,121Total current assets26,275 30,270Property and equipment, net2,742 3,058Intangible assets, net41,473 47,728Goodwill11,590 11,068Other assets1,200 432Total assets$83,280 $92,556Liabilities and Shareholders’ Equity Current liabilities: Accounts payable$9,362 $10,561Accrued liabilities4,157 3,619Accrued payroll and employee compensation3,240 2,227Deferred revenue5,060 5,338Debt, related party26,613 2,294Debt18,195 17,300Other current liabilities1,283 1,515Total current liabilities67,910 42,854Deferred revenue, long-term1,276 1,051Long-term debt, related party— 24,401Deferred income taxes1,342 3,100Other non-current liabilities2,289 704Total liabilities72,817 72,110Commitments and contingencies (Note 14) Shareholders’ equity: Common shares, no par value; 7,116 and 2,663 shares issued and outstanding as of December 31, 2017 and2016, respectively173,871 157,254Accumulated other comprehensive loss(1,981) (1,565)Accumulated deficit(161,427) (135,243)Total shareholders’ equity10,463 20,446Total liabilities and shareholders’ equity$83,280 $92,556See accompanying notes to consolidated financial statements.F-2Sphere 3D Corp.Consolidated Statements of Operations(in thousands of U.S. dollars, except per share amounts) Year Ended December 31, 2017 2016Net revenue: Product revenue$72,819 $68,065Service revenue8,704 8,328 81,523 76,393Cost of product revenue53,142 50,434Cost of service revenue3,697 3,620Gross profit24,684 22,339Operating expenses: Sales and marketing18,682 22,243Research and development7,281 8,794General and administrative20,112 20,728Impairment of goodwill and acquired intangible assets2,524 34,398 48,599 86,163Loss from operations(23,915) (63,824)Other income (expense): Interest expense(3,391) (1,981)Interest expense, related party(2,520) (3,106)Other income, net2,010 1,276Loss before income taxes(27,816) (67,635)(Benefit from) provision for income taxes(1,632) 825Net loss$(26,184) $(68,460)Net loss per share: Basic and diluted$(5.26) $(34.42)Shares used in computing net loss per share: Basic and diluted4,978 1,989See accompanying notes to consolidated financial statements.F-3Sphere 3D Corp.Consolidated Statements of Comprehensive Loss(in thousands of U.S. dollars) Year Ended December 31, 2017 2016Net loss$(26,184) $(68,460)Other comprehensive loss: Foreign currency translation adjustment(416) (430)Total other comprehensive loss(416) (430)Comprehensive loss$(26,600) $(68,890)See accompanying notes to consolidated financial statements.F-4Sphere 3D Corp.Consolidated Statements of Cash Flows(in thousands of U.S. dollars) Year Ended December 31, 2017 2016Operating activities: Net loss$(26,184) $(68,460)Adjustments to reconcile net loss to cash used in operating activities: Impairment of goodwill and acquired intangible assets2,524 34,398Depreciation and amortization6,087 6,187Share-based compensation7,795 9,131Provision for losses on accounts receivable12 715Deferred tax (benefit) provision(2,114) 349Amortization of debt issuance costs2,241 1,453Loss on revaluation of investment1,145 —Fair value adjustment of warrants(2,249) (1,248)Payment in-kind interest expense, related party15 —Loss on extinguishment of debt— 502Changes in operating assets and liabilities (net of effects of acquisition): Accounts receivable1,377 (1,185)Inventories2,048 1,282Accounts payable and accrued liabilities1,398 1,066Accrued payroll and employee compensation785 (377)Deferred revenue(808) (1,344)Other assets and liabilities, net(3,037) 58Net cash used in operating activities(8,965) (17,473)Investing activities: Acquisition, net of cash acquired(1,051) —Purchase of fixed assets(123) (237)Net cash used in investing activities(1,174) (237)Financing activities: Proceeds from issuance of common shares and warrants10,862 5,831Payment for issuance costs(1,020) —Proceeds from debt, related party2,000 2,500Payments on debt, related party(2,308) (5,000)Proceeds from debt— 18,195Payments on debt— (7,391)Payment for restricted stock units tax liability on net settlement— (12)Net cash provided by financing activities9,534 14,123Effect of exchange rate changes on cash147 (18)Net decrease in cash and cash equivalents(458) (3,605)Cash and cash equivalents, beginning of period5,056 8,661Cash and cash equivalents, end of period$4,598 $5,056F-5Sphere 3D Corp.Consolidated Statements of Cash Flows (continued)(in thousands of U.S. dollars) Year Ended December 31, 2017 2016Supplemental disclosures of cash flow information: Cash paid for income taxes$215 $228Cash paid for interest$1,681 $946Supplemental disclosures of non-cash investing and financing activities: Issuance of common shares for related party liabilities$1,960 $1,859Issuance of common shares for acquisition$332 $—Issuance of common shares for settlement of liabilities$184 $531Issuance of warrants in relation to settlement of liabilities$181 $1,995Costs accrued for issuance of common shares$94 $—Issuance of common shares for cost-method investment$— $1,500Issuance of warrants in relation to related party credit facility$— $485See accompanying notes to consolidated financial statements.F-6Sphere 3D Corp.Consolidated Statements of Shareholders’ Equity(in thousands of U.S. dollars) Common Shares AccumulatedOtherComprehensiveLoss AccumulatedDeficit TotalShareholders'Equity Shares Amount Balance at January 1, 20161,808 $136,058 $(1,135) $(66,783) $68,140Issuance of common shares for cash and warrants, net419 5,707 — — 5,707Issuance of common shares for investment purchase158 1,500 — — 1,500Issuance of common shares for settlement of related party interest expense169 1,859 — — 1,859Issuance of warrants— 1,994 — — 1,994Issuance of warrants in relation to related party debt— 485 — — 485Issuance of common shares pursuant to the vesting ofrestricted stock units81 (11) — — (11)Issuance of restricted stock awards28 531 — — 531Share-based compensation— 9,131 — — 9,131Other comprehensive loss— — (430) — (430)Net loss— — — (68,460) (68,460)Balance at December 31, 20162,663 157,254 (1,565) (135,243) 20,446Issuance of common shares and warrants for cash, net1,867 9,993 — — 9,993Allocation of warrants to liability— (3,647) — — (3,647)Issuance of common shares for warrant exchange1,618 — — — —Issuance of common shares for acquisition88 332 — — 332Issuance of common shares for settlement of related party interest expense586 1,960 — — 1,960Issuance of common shares pursuant to the vesting of restricted stock units239 — — — —Issuance of restricted stock awards55 184 — — 184Share-based compensation 7,795 — — 7,795Other comprehensive loss— — (416) — (416)Net loss— — — (26,184) (26,184)Balance at December 31, 20177,116 $173,871 $(1,981) $(161,427) $10,463See accompanying notes to consolidated financial statements.F-7Sphere 3D Corp.Notes to Consolidated Financial Statements1.Organization and BusinessSphere 3D Corp. (the “Company”) was incorporated under the Business Corporations Act (Ontario) on May 2, 2007 as T.B. Mining Ventures Inc. OnMarch 24, 2015, the Company completed a short-form amalgamation with a wholly-owned subsidiary. In connection with the short-form amalgamation, theCompany changed its name to “Sphere 3D Corp.”The Company delivers data management, and desktop and application virtualization solutions through hybrid cloud, cloud and on premiseimplementations by its global reseller network. The Company achieves this through a combination of containerized applications, virtual desktops, virtualstorage and physical hyper-converged platforms. The Company’s products allow organizations to deploy a combination of public, private or hybrid cloudstrategies while backing them up with the latest storage solutions. The Company has a portfolio of brands including RDX®, Glassware 2.0™, SnapCLOUD®,SnapServer®, SnapSync™, NEO®, and V3®.Related Party Share Purchase Agreement On February 20, 2018, the Company, Overland Storage, Inc., a California corporation and a wholly owned subsidiary of the Company (“Overland”),and Silicon Valley Technology Partners LLC, a Delaware limited liability company established and controlled by Eric Kelly, the Company’s ChiefExecutive Officer and Chairman of the Board of Directors (the “Purchaser”) entered into a share purchase agreement (the “Purchase Agreement”), pursuant towhich, among other things, and subject to certain closing conditions, the Company will sell to Purchaser all of the issued and outstanding shares of capitalstock of Overland for $45.0 million (the “Purchase Price”), subject to a working capital adjustment (the “Share Purchase”). The net proceeds from the SharePurchase will be used to repay: (i) the Company’s outstanding obligations under its Credit Agreement with Opus Bank; (ii) its outstanding obligations underthe related party convertible note with FBC Holdings S.a.r.l. (“FBC Holdings”); and (iii) its related party subordinated promissory note with MF Ventures,LLC. The Special Committee of the Board of Directors of the Company and the Board of Directors of the Company (with Eric Kelly recusing himself)unanimously approved the entry into the Purchase Agreement by the Company. Under the terms of the Purchase Agreement, the Share Purchase is contingent upon, and Purchaser must use its best efforts to arrange for, debt and/orequity financing in an amount at least equal to the Purchase Price in order to consummate the Share Purchase (the “Financing”). In addition, the Companymust use commercially reasonable efforts to provide all cooperation reasonably requested by Purchaser regarding the Financing. Until the Financing iscommitted in accordance with a Contingency Termination Event (as defined below), the Company is free to solicit and negotiate other offers to purchase theCompany, Overland or any or all of their assets and has the right to terminate the Purchase Agreement for any or no reason without penalty (subject to theexpense reimbursement provisions described below).The closing of the Share Purchase and of the other transactions contemplated by the Purchase Agreement are subject to (i) the adoption of the PurchaseAgreement by the affirmative vote of the holders of (a) at least 66 2/3% of the outstanding common shares of the Company cast in person or by proxy at thespecial meeting of shareholders and (b) a majority of the votes cast by certain “minority shareholders” in person or by proxy at the special meeting ofshareholders (the “Shareholder Approval”) and (ii) the transfer by the Company of (a) the businesses of (x) Unified ConneXions, Inc. and (y) HVEConneXions, LLC (including the provision of information technology consulting services and hardware solutions around cloud computing, data storage andserver virtualization to corporate, government, and educational institutions), and (b) the SNAP network attached storage business to a subsidiary of theCompany other than Overland or a subsidiary of Overland. The closing of the Share Purchase and of the other transactions contemplated by the PurchaseAgreement are also subject to various other conditions, including the consummation of the Financing, the absence of any order, statute, rule, regulation,executive order, decree or injunction issued by any governmental entity prohibiting the Share Purchase, the absence of a pending claim, suit, action orproceeding material claims seeking to prohibit the Share Purchase, the accuracy of the representations and warranties contained in the Purchase Agreement,compliance with theF-8covenants and agreements contained in the Purchase Agreement in all material respects, and the absence of a material adverse effect on either the Company orOverland.The Company has made customary representations, warranties and covenants in the Purchase Agreement, including, among others, covenants (i) toconduct its business in the ordinary course during the period between the execution of the Purchaser Agreement and the closing of the Share Purchase, (ii) notto engage in specified types of transactions during this period unless agreed to in writing by Purchaser, (iii) to convene and hold a meeting of its shareholdersfor the purpose of obtaining the Shareholder Approval and (iv) subject to certain exceptions and only following the occurrence of the ContingencyTermination Event (as defined below), not to solicit and negotiate other offers to purchase the Company, Overland or any or all of their assets or to withdraw,modify or qualify in a manner adverse to Purchaser the recommendation of the Board that the Company’s shareholders vote in favor of approving the SharePurchase. The Company has also agreed to indemnification provisions in favor of Purchaser that are customary for transactions of this type.Prior to the (i) execution and delivery of financing commitments in forms reasonably acceptable to the Company, which provide, among other things,for commitments from financing sources sufficient to pay the Purchase Price in the Share Purchase, (ii) execution and delivery by Purchaser of an irrevocablewaiver in a form reasonably acceptable to the Company waiving Purchaser’s condition to the obligation to close the Share Purchase that the Financing hasbeen received and (iii) an executed certificate delivered by Purchaser to the Company regarding the accuracy of certain representations regarding theFinancing (the “Contingency Termination Event”), the Company has the right to terminate the Purchase Agreement for any reason or for no reason. ThePurchase Agreement also provides that, upon such termination of the Purchase Agreement by the Company, the Company has agreed to reimburse Purchaserup to approximately $350,000 for the reasonable and documented out-of-pocket expenses incurred by the Purchaser and the sources for the Financing inconnection with the negotiation, execution and performance of the Purchase Agreement and the transactions contemplated thereby, as well as the fees andexpenses of the Purchaser's outside counsel.In addition, the Purchase Agreement contains certain other termination rights, including, following the occurrence of the Contingency TerminationEvent, the right of the Company to terminate the Purchase Agreement under specified circumstances to accept an unsolicited superior proposal from a thirdparty. The Purchase Agreement provides that, following the occurrence of the Contingency Termination Event and upon termination of the PurchaseAgreement by the Company under specified circumstances (including termination by the Company to accept a superior proposal) or by Purchaser underspecified circumstances, a termination fee equal to the lesser of (i) $1.0 million and (ii) the amount of Purchaser’s reasonable fees and expenses in connectionwith the negotiation, execution and performance of the Purchase Agreement (including the amount that the Purchaser must pay or reimburse to the sources forthe Financing) will be payable by the Company to the Purchaser. Such termination fee is also payable following the occurrence of the ContingencyTermination Event under certain other specified circumstances set forth in the Purchase Agreement. The Purchase Agreement also provides that each party tothe Purchase Agreement may compel the other party or parties thereto to specifically perform its or their obligations under the Purchase Agreement. However,if the Purchase Agreement is terminated such that the Company termination fee becomes payable, the Purchaser will be precluded from any other remedyagainst the Company or Overland, including expense reimbursement and specific performance. Further, if the Purchase Agreement is terminated such that theexpense reimbursement becomes payable, the Purchaser will be precluded from any other remedy against the Company or Overland, including the Companytermination fee and specific performance. Subject to certain exceptions and limitations, either party may terminate the Purchase Agreement if the SharePurchase is not consummated by August 19, 2018.F-9Management has projected that cash on hand will not be sufficient to allow the Company to continue operations beyond March 31, 2018 if theCompany is unable to amend, refinance, or pay off its debt and credit facilities. In February 2018, the Company entered into a Purchase Agreement. If thetransactions contemplated by the Purchase Agreement are consummated, the Company expects that the proceeds to be received by the Company would besufficient to pay off its outstanding debt and credit facilities. The Company anticipates to hold a special shareholder meeting in April 2018 to seekshareholder approval for the Share Purchase and, subject to the receipt of requisite shareholder approval, anticipates the transaction will close shortlythereafter. There can be no guarantee that we will be able to raise additional funds or amend or refinance our debt and credit facilities on favorable terms or atall, nor can there be any guarantee that the Company’s shareholders will approve the Share Purchase. Significant changes from the Company’s currentforecasts, including but not limited to: (i) failure to comply with the financial covenants in its credit facilities; (ii) shortfalls from projected sales levels;(iii) unexpected increases in product costs; (iv) increases in operating costs; (v) changes in the historical timing of collecting accounts receivable; and (vi)inability to maintain compliance with the requirements of the NASDAQ Capital Market and/or inability to maintain listing with the NASDAQ Capital Marketcould have a material adverse impact on the Company’s ability to access the level of funding necessary to continue its operations at current levels. If any ofthese events occurs or the Company is unable to generate sufficient cash from operations or financing sources, the Company may be forced to liquidate assetswhere possible and/or curtail, suspend or cease planned programs or operations generally or possibly seek bankruptcy protection, which would have amaterial adverse effect on the Company’s business, results of operations, financial position and liquidity.The Company incurred losses from operations and negative cash flows from operating activities for the 12 months ended December 31, 2017, and suchlosses might continue for a period of time. Based upon the Company's current expectations and projections for the next year, the Company believes that itmay not have sufficient liquidity necessary to sustain operations beyond March 31, 2018 due to the maturity dates of the existing debt facilities. Thesefactors, among others, raise doubt that the Company will be able to continue as a going concern. The accompanying consolidated financial statements havebeen prepared on a going concern basis, which contemplates the realization of assets and the satisfaction of liabilities in the normal course of business.Reverse Stock SplitOn July 5, 2017, the Board of Directors of the Company authorized a share consolidation (also known as a reverse stock split) of the Company’s issuedand outstanding common shares at a ratio of 1-for-25, which became effective on July 11, 2017. All share and per share amounts in the accompanyingconsolidated financial statements and the notes thereto have been restated for all periods to reflect the share consolidation.2.Significant Accounting PoliciesPrinciples of ConsolidationThe consolidated financial statements of the Company have been prepared by management in accordance with accounting principles generallyaccepted in the United States of America (“GAAP”), applied on a basis consistent for all periods. These consolidated financial statements include theaccounts of the Company and its subsidiaries, all of which are wholly owned. All intercompany balances and transactions have been appropriately eliminatedin consolidation.Use of EstimatesThe preparation of the consolidated financial statements requires management to make estimates and assumptions that affect the reported amounts ofassets and liabilities and disclosures of contingent assets and liabilities at the date of the consolidated financial statements and reported amounts of revenuesand expenses during the reporting period. Significant areas requiring the use of management estimates relate to the determination of provisions forimpairment assessments of goodwill, other indefinite-lived intangible assets and long-lived assets; deferred revenue; allowance for doubtful receivables;inventory valuation; warranty provisions; deferred income taxes; and litigation claims. Actual results could differ from these estimates.F-10Foreign Currency TranslationThe financial statements of foreign subsidiaries, for which the functional currency is the local currency, are translated into U.S. dollars using theexchange rate at the consolidated balance sheet date for assets and liabilities and a weighted-average exchange rate during the year for revenue, expenses,gains and losses. Translation adjustments are recorded as other comprehensive income (loss) within shareholders’ equity. Gains or losses from foreigncurrency transactions are recognized in the consolidated statements of operations. Such transactions resulted in a gain of $0.9 million in 2017 and a minimalloss in 2016.Cash EquivalentsHighly liquid investments with insignificant interest rate risk and original maturities of three months or less, when purchased, are classified as cashequivalents. Cash equivalents are composed of money market funds. The carrying amounts approximate fair value due to the short maturities of theseinstruments.Accounts ReceivableAccounts receivable is recorded at the invoiced amount and is non-interest bearing. We estimate our allowance for doubtful accounts based on anassessment of the collectability of specific accounts and the overall condition of the accounts receivable portfolio. When evaluating the adequacy of theallowance for doubtful accounts, we analyze specific trade and other receivables, historical bad debts, customer credits, customer concentrations, customercredit-worthiness, current economic trends and changes in customers’ payment terms and/or patterns. We review the allowance for doubtful accounts on aquarterly basis and record adjustments as considered necessary. Customer accounts are written-off against the allowance for doubtful accounts when anaccount is considered uncollectable. At December 31, 2017 and 2016, allowance for doubtful accounts of $1.7 million and $1.6 million, respectively, wasrecorded.InventoriesInventories are stated at the lower of cost and net realizable value using the first-in-first-out method. Net realizable value is the estimated selling pricein the ordinary course of business, less reasonably predictable costs of completion, disposal, and transportation. We assess the value of inventoriesperiodically based upon numerous factors including, among others, expected product or material demand, current market conditions, technologicalobsolescence, current cost, and net realizable value. If necessary, we write down its inventory for obsolete or unmarketable inventory by an amount equal tothe difference between the cost of the inventory and the net realizable value.Property and EquipmentProperty and equipment are recorded at cost. Depreciation expense is computed using the straight-line method. Leasehold improvements aredepreciated over the shorter of the remaining estimated useful life of the asset or the term of the lease.Expenditures for normal maintenance and repair are charged to expense as incurred, and improvements are capitalized. Upon the sale or retirement ofproperty or equipment, the asset cost and related accumulated depreciation are removed from the respective accounts and any gain or loss is included in theresults of operations.Estimated useful lives are typically as follows:Building40 yearsMachinery and equipment3-5 yearsFurniture and fixtures5 yearsComputer equipment and software1-5 yearsF-11Goodwill and Intangible AssetsGoodwill represents the excess of consideration paid over the value assigned to the net tangible and identifiable intangible assets acquired. Forintangible assets purchased in a business combination, the estimated fair values of the assets received are used to establish their recorded values. Forintangible assets acquired in a non-monetary exchange, the estimated fair values of the assets transferred (or the estimated fair values of the assets received, ifmore clearly evident) are used to establish their recorded values. Valuation techniques consistent with the market approach, income approach and/or costapproach are used to measure fair value.Purchased intangible assets are amortized on a straight-line basis over their economic lives of six to 25 years for channel partner relationships, three tonine years for developed technology, three to eight years for capitalized development costs, and two to 25 years for customer relationships as this methodmost closely reflects the pattern in which the economic benefits of the assets will be consumed.Impairment of Goodwill, Intangible Assets and Long-Lived AssetsGoodwill and intangible assets are tested for impairment on an annual basis at December 31, or more frequently if there are indicators of impairment.Triggering events for impairment reviews may be indicators such as adverse industry or economic trends, restructuring actions, lower projections ofprofitability, or a sustained decline in our market capitalization. Intangible assets are quantitatively assessed for impairment, if necessary, by comparing theirestimated fair values to their carrying values. If the carrying value exceeds the fair value, the difference is recorded as an impairment.Long-lived assets are reviewed for recoverability whenever events or changes in circumstances indicate the carrying value may not be recoverable. Ourconsideration includes, but is not limited to: (i) significant under-performance relative to historical or projected future operating results; (ii) significantchanges in the manner of use of the assets or the strategy for the Company’s overall business; (iii) significant decrease in the market value of the assets; and(iv) significant negative industry or economic trends. When the carrying value is not considered recoverable, an impairment loss for the amount by which thecarrying value of a long-lived asset exceeds its fair value is recognized, with an offsetting reduction in the carrying value of the related asset.Revenue RecognitionRevenue from sales of products is recognized when persuasive evidence of an arrangement exists, the price is fixed or determinable, collectability isreasonably assured and delivery has occurred. Under this policy, revenue on direct product sales, excluding sales to distributors, is recognized upon shipmentof products to customers. These customers are not entitled to any specific right of return or price protection, except for any defective product that may bereturned under our standard product warranty. Revenue from services, such as extended product warranties, are deferred and recognized over the period of theservice agreement.Depending on delivery terms, title and risk of loss transfer to the customer when the product leaves the Company’s dock, or when the product arrives atthe customer’s location. Product sales to distribution customers are subject to certain rights of return, stock rotation privileges and price protection. Becausewe are unable to estimate its exposure for returned product or price adjustments, revenue from shipments to these customers is not recognized until the relatedproducts are in turn shipped to the ultimate customer by the distributor. For products for which software is more than an incidental component, we recognizerevenue in accordance with current authoritative guidance for software revenue recognition.In limited circumstances where a customer is unable to accept shipment and requests products be delivered to, and stored on, the Company’s premises,revenue is recognized when: (i) the customer has accepted risk of loss and acknowledged passage of title to the goods (ii) the customer has made a fixedcommitment to purchase the products, (iii) the customer has requested delayed delivery and storage of the products, (iv) there is an agreed schedule forshipment of products to the customer within a reasonable period of time, (v) the Company has no specific performance obligation such that the earningsprocess for the products, as a unit of accounting, is not complete, (vi) the goods are segregated from the inventory and not available to fill other orders, (vii)the product is complete, ready for shipment and accepted by the customer, and (viii) all other criteria above for revenue recognition have been met.F-12The Company enters into revenue arrangements that may consist of multiple deliverables of its product and service offerings, such as for sales ofhardware devices and extended warranty services. The Company allocates revenue to deliverables in multiple element arrangements based on relative sellingprices. The Company determines its vendor-specific objective evidence (“VSOE”) based on its normal pricing and discounting practices for the specificproduct or service when sold separately. When the Company is not able to establish VSOE for all deliverables in an arrangement with multiple elements, theCompany determines the selling price of each element based on third party evidence of selling price, or based on the Company’s actual historical sellingprices of similar items, whichever management believes provides the most reliable estimate of expected selling prices.Warranty and Extended WarrantyWe record a provision for standard warranties provided with all products. If future actual costs to repair were to differ significantly from estimates, theimpact of these unforeseen costs or cost reductions would be recorded in subsequent periods.Separately priced extended on-site warranties and service contracts are offered for sale to customers on all product lines. We contract with third partyservice providers to provide service relating to on-site warranties and service contracts. Extended warranty and service contract revenue and amounts paid inadvance to outside service organizations are deferred and recognized as service revenue and cost of service, respectively, over the period of the serviceagreement.Shipping and HandlingAmounts billed to customers for shipping and handling are included in product revenue, and costs incurred related to shipping and handling areincluded in cost of product revenue.Advertising CostsAdvertising costs are expensed as incurred. Advertising expenses were $1.5 million and $2.5 million for the years ended December 31, 2017 and 2016,respectively.Research and Development CostsResearch and development expenses include payroll, employee benefits, share-based compensation expense, and other headcount-related expensesassociated with product development. Research and development expenses also include third party development and programming costs, localization costsincurred to translate software for international markets, and the amortization of purchased software code and services content. Such costs related to softwaredevelopment are included in research and development expense until the point that technological feasibility is reached, which for our software products, isgenerally shortly before the products are released to manufacturing. Once technological feasibility is reached, such costs are capitalized and amortized to costof revenue over the estimated lives of the products. During 2017 and 2016, no development costs were capitalized.Segment InformationWe report segment data based on the management approach. The management approach designates the internal reporting that is used by managementfor making operating and investment decisions and evaluating performance as the source of our reportable segments. We use one measurement ofprofitability and do not disaggregate our business for internal reporting. We operate in one segment providing data management, and desktop andapplication virtualization solutions for small and medium businesses and distributed enterprises. We disclose information about products and services,geographic areas, and major customers.F-13Income TaxesWe provide for income taxes utilizing the asset and liability approach of accounting for income taxes. Under this approach, deferred taxes representthe future tax consequences expected to occur when the reported amounts of assets and liabilities are recovered or paid. The provision for income taxesgenerally represents income taxes paid or payable for the current year plus the change in deferred taxes during the year. Deferred taxes result from differencesbetween the financial and tax basis of our assets and liabilities and are adjusted for changes in tax rates and tax laws when changes are enacted. Valuationallowances are recorded to reduce deferred tax assets when a judgment is made that it is considered more likely than not that a tax benefit will not be realized.A decision to record a valuation allowance results in an increase in income tax expense or a decrease in income tax benefit. If the valuation allowance isreleased in a future period, income tax expense will be reduced accordingly.The calculation of tax liabilities involves evaluating uncertainties in the application of complex global tax regulations. The impact of an uncertainincome tax position is recognized at the largest amount that is “more likely than not” to be sustained upon audit by the relevant taxing authority. Anuncertain income tax position will not be recognized if it has less than a 50% likelihood of being sustained. If the estimate of tax liabilities proves to be lessthan the ultimate assessment, a further charge to expense would result.Comprehensive LossComprehensive loss and its components encompasses all changes in equity other than those arising from transactions with shareholders, including netloss and foreign currency translation adjustments, and is disclosed in a separate consolidated statement of comprehensive loss.Concentration of Credit RisksFinancial instruments that potentially subject us to concentrations of credit risk consist primarily of trade accounts receivable, which are generally notcollateralized. To reduce credit risk, we perform ongoing credit evaluations of its customers and maintain allowances for potential credit losses for estimatedbad debt losses.At December 31, 2017 and 2016, there was one customer that made up 12.3% and 13.0%, respectively, of accounts receivable. There were nocustomers for the years ended December 31, 2017 and 2016 that made up 10% or more of net revenue.Share-based CompensationWe account for share-based awards, and similar equity instruments, granted to employees, non-employee directors, and consultants under the fair valuemethod. Share-based compensation award types include stock options and restricted stock. We use the Black-Scholes option pricing model to estimate thefair value of option awards on the measurement date, which generally is the date of grant. The expense is recognized over the requisite service period (usuallythe vesting period) for the estimated number of instruments for which service is expected to be rendered. The fair value of restricted stock units (“RSUs”) isestimated based on the market value of the Company’s common shares on the date of grant. The fair value of options granted to non-employees is estimatedat the measurement date using the Black-Scholes option pricing model and the unvested options remeasured at each reporting date, with changes in fair valuerecognized in expense in the consolidated statement of operations.Share-based compensation expense for options with graded vesting is recognized pursuant to an accelerated method. Share-based compensationexpense for RSUs is recognized over the vesting period using the straight-line method. Share-based compensation expense for an award with performanceconditions is recognized when the achievement of such performance conditions are determined to be probable. If the outcome of such performance conditionis not determined to be probable or is not met, no compensation expense is recognized and any previously recognized compensation expense is reversed.Forfeitures are recognized in share-based compensation expense as they occur.We have not recognized, and do not expect to recognize in the near future, any tax benefit related to share-based compensation cost as a result of thefull valuation allowance of our net deferred tax assets and its net operating loss carryforward.F-14Recently Issued Accounting PronouncementsFrom time to time, new accounting pronouncements are issued by the Financial Accounting Standards Board (“FASB”) that are adopted by theCompany as of the specified effective date. If not discussed, the Company believes that the impact of recently issued standards, which are not yet effective,will not have a material impact on the Company’s consolidated financial statements upon adoption.In July 2017, the FASB issued Accounting Standards Update (“ASU”) No. 2017-11, Earnings Per Share (Topic 260); Distinguishing Liabilities fromEquity (Topic 480); Derivatives and Hedging (Topic 815) (“ASU 2017-11”). The update changes the classification of certain equity-linked financialinstruments (or embedded features) with down round features. The update also clarifies existing disclosure requirements for equity-classified instruments. Theupdate is effective retrospectively for annual reporting periods beginning after December 15, 2018, including interim periods within that reporting period.Early adoption is permitted for all companies in any interim or annual period. We are currently evaluating the effect that ASU 2017-11 will have on ourconsolidated financial statements and related disclosures.In January 2017, the FASB issued ASU No. 2017-04, Intangibles - Goodwill and Other (Topic 350) - Simplifying the Test for Goodwill Impairment(“ASU 2017-04”). The update simplifies the subsequent measurement of goodwill by eliminating Step 2 from the goodwill impairment test. An entity shouldperform its annual, or interim, goodwill impairment test by comparing the fair value of a reporting unit with its carrying amount, and recognize an impairmentcharge for the amount by which the carrying amount exceeds the reporting unit's fair value, if applicable. The loss recognized should not exceed the totalamount of goodwill allocated to the reporting unit. The same impairment test also applies to any reporting unit with a zero or negative carrying amount. Anentity still has the option to perform the qualitative assessment for a reporting unit to determine if the quantitative impairment test is necessary. The update iseffective for annual reporting periods, including interim periods, beginning after December 15, 2019, on a prospective basis. Early adoption is permitted forinterim or annual goodwill impairment tests performed after January 1, 2017. We do not expect the adoption of ASU 2017-04 to have a material effect on ourconsolidated financial statements and related disclosures.In August 2016, the FASB issued ASU No. 2016-15, Statement of Cash Flows (Topic 230): Classification of Certain Cash Receipts and CashPayments (“ASU 2016-15”). The update addresses eight cash flow classification issues and how they should be reported in the statement of cash flows. Theupdate is effective for annual reporting periods beginning after December 15, 2017, including interim periods within that reporting period. Early adoption ispermitted for all companies in any interim or annual period. We are currently evaluating the effect that ASU 2016-15 will have on our consolidated financialstatements and related disclosures.In February 2016, the FASB issued ASU 2016-02, Leases (Topic 842) (“ASU 2016-02”). The update increases transparency and comparability amongorganizations by recognizing lease assets and lease liabilities on the balance sheet and requires disclosing key information about leasing arrangements. Theupdate is effective for reporting periods beginning after December 15, 2018, with early adoption permitted. An entity will be required to recognize andmeasure leases at the beginning of the earliest period presented using a modified retrospective approach. We are currently evaluating the effect that ASU2016-02 will have on our consolidated financial statements and related disclosures.F-15In May 2014, the FASB issued ASU 2014-09, Revenue from Contracts with Customers (“ASU 2014-09”). In May 2014, the FASB issued ASU 2014-09,Revenue from Contracts with Customers (Topic 606). In March, April, May and December 2016, the FASB issued additional guidance related to Topic 606.The new standard will supersede nearly all existing revenue recognition guidance. Under Topic 606, an entity is required to recognize revenue to depict thetransfer of promised goods or services to customers in an amount that reflects the consideration to which the entity expects to be entitled in exchange forthose goods or services. Topic 606 defines a five-step process in order to achieve this core principle, which may require the use of judgment and estimates,and also requires expanded qualitative and quantitative disclosures relating to the nature, amount, timing and uncertainty of revenue and cash flows arisingfrom contracts with customers, including significant judgments and estimates used. The new standard permits adoption either by using (i) a full retrospectiveapproach for all periods presented in the period of adoption or (ii) a modified retrospective approach where the new standard is applied in the financialstatements starting with the year of adoption. We plan to adopt the new standard effective January 1, 2018 using the modified retrospective approach. TheCompany expects the adoption of the new standard will result in the recognition of revenues generally upon shipment (sell-in basis) for sales of products tocertain customers which are currently being recognized on a sell-through basis. The Company estimates the adoption of the new standard under the modifiedretrospective method to result in a cumulative adjustment reducing our accumulated deficit by approximately $0.3 million. Additionally, as we continue toassess the new standard along with industry trends and additional interpretive guidance, we may adjust our adoption accordingly.Recently Adopted Accounting PronouncementsIn February 2016, the FASB issued ASU 2016-09, Compensation - Stock Compensation (Topic 718) (“ASU 2016-09”). ASU 2016-09 simplifies theaccounting for several aspects of the accounting for share-based payment transactions including the income tax consequences, classification of awards aseither equity or liabilities, and classification on the statement of cash flows. The update is effective for annual reporting periods beginning after December 15,2016, including interim periods within that reporting period. The Company adopted ASU 2016-09 effective January 1, 2017. The impact on our consolidatedfinancial statements and related disclosures was not material.In July 2015, the FASB issued ASU 2015-11, Inventory (Topic 330): Simplifying the Measurement of Inventory (“ASU 2015-11”). The update requiresthat for entities that measure inventory using the first-in, first-out method, inventory should be measured at the lower of cost and net realizable value. Topic330, Inventory, currently requires an entity to measure inventory at the lower of cost or market. Market could be replacement cost, net realizable value, or netrealizable value less an approximately normal profit margin. Net realizable value is the estimated selling prices in the ordinary course of business, lessreasonably predictable costs of completion, disposal, and transportation. The update is effective for fiscal years beginning after December 15, 2016, andinterim periods within those fiscal years. The amendments should be applied prospectively with earlier application permitted as of the beginning of aninterim or annual reporting period. The Company adopted ASU 2015-11 effective January 1, 2017. The impact on our consolidated financial statements andrelated disclosures was not material.3.Business CombinationUCX and HVE AcquisitionIn December 2016, the Company acquired 19.9% of the outstanding equity interests of Unified ConneXions, Inc. (“UCX”) and HVE ConneXions, LLC(“HVE”) for the purchase price of $1.5 million. The Company issued 157,894 shares of its common shares in satisfaction of payment. In January 2017, theCompany completed its acquisition of all of the remaining outstanding equity interests of UCX and HVE, for $1.1 million in cash and issued 88,235 commonshares with an approximate value of $0.3 million. In 2017, the Company recognized a $1.1 million loss, included in other expense, as a result of theremeasurement to fair value the equity interest held immediately before the business combination. The valuation was based on the Company’s privateplacement completed as of January 26, 2017.F-16UCX and HVE provide information technology consulting services and hardware solutions around cloud computing, data storage and servervirtualization to corporate, government, and educational institutions primarily in the southern central United States. By adding UCX’s technologies,professional services and engineering talent, and HVE’s products, engineering and virtualization expertise, the Company intends to expand its virtualizationofferings as well as enhance its ability to accelerate the delivery of hybrid cloud solutions to customers. We incurred acquisition related expenses of $34,000which consisted primarily of due diligence, legal and other one-time charges and are included in general and administrative expense in the consolidatedstatements of operations.A summary of the estimated fair values of the assets acquired and liabilities assumed as of the closing date were as follows (in thousands):Cash $49Accounts receivable 582Inventory 206Identifiable intangible assets 1,260Other assets 45Total identifiable assets acquired 2,142Accounts payable and accrued liabilities (359)Deferred revenue (518)Net identifiable assets acquired 1,265Goodwill 522Net assets acquired $1,787Goodwill is primarily comprised of a trained an assembled workforce. The fair value estimates for the assets acquired and liabilities assumed for theacquisition were based on estimates and analysis, including work performed by third party valuation specialists. The goodwill recognized upon acquisition isnot deductible for tax purposes.The results of operations related to this acquisition have been included in our consolidated statements of operations from the acquisition date. Proforma results of operations have not been presented because at this time it is impracticable to provide as the information is not available at the level of detailrequired.The identified intangible assets as of the date of acquisition consisted of the following (in thousands): Estimated Fair Value Weighted-AverageUseful Life (years)Channel partner relationships $730 6.0Customer relationships 380 3.2Developed technology 150 3.0Total identified intangible assets $1,260 F-174.Certain Balance Sheet ItemsThe following table summarizes inventories (in thousands): December 31, 2017 2016Raw materials$1,222 $1,697Work in process2,217 2,673Finished goods4,927 5,632 $8,366 $10,002The following table summarizes property and equipment (in thousands): December 31, 2017 2016Building$1,870 $1,646Computer equipment1,742 1,864Machinery and equipment1,302 1,062Leasehold improvements1,186 1,100Furniture and fixtures100 83 6,200 5,755Accumulated depreciation and amortization(3,458) (2,697) $2,742 $3,058Depreciation and amortization expense for property and equipment was $0.7 million and $1.1 million for the years ended December 31, 2017 and2016, respectively.F-185.Intangible Assets and GoodwillThe following table summarizes intangible assets, net (in thousands): December 31, 2017 2016Developed technology$23,414 $23,685Channel partner relationships(1)12,929 11,989Capitalized development costs(1)3,164 2,937Customer relationships(1)1,647 1,171 41,154 39,782Accumulated amortization: Developed technology(15,276) (11,234)Channel partner relationships(1)(1,201) (565)Capitalized development costs(1)(1,409) (958)Customer relationships(1)(495) (207)(18,381) (12,964)Total finite-lived assets, net22,773 26,818Indefinite-lived intangible assets - trade names18,700 20,910Total intangible assets, net$41,473 $47,728________________(1)Includes the impact of foreign currency exchange rate fluctuations.Amortization expense of intangible assets was $5.4 million and $5.1 million for the years ended December 31, 2017 and 2016, respectively. Estimatedamortization expense for intangible assets is approximately $3.7 million, $2.6 million, $2.5 million, $2.1 million and $1.9 million in fiscal 2018, 2019,2020, 2021 and 2022, respectively.GoodwillThe changes in the carrying amount of goodwill were as follows (in thousands):Balance as of January 1, 2016 44,132Goodwill acquired 164Impairment loss (33,228)Balance as of December 31, 2016 11,068Goodwill acquired 522Balance as of December 31, 2017 $11,590F-19ImpairmentsIn 2017, primarily as a result of the Company’s change in revenue projection for its Snap product line, it was determined the carrying value ofindefinite-lived intangible assets exceeded its estimated fair value. In measuring fair value, the Company used income and market approaches. The Companycompared the indicated fair value to the carrying value of its indefinite-lived assets, and as a result of the analysis, an impairment charge of $2.2 million wasrecorded to indefinite-lived trade names for the year ended December 31, 2017. In addition, the Company recorded an impairment of $0.3 million related todeveloped technology for the year ended December 31, 2017.In 2016, as a result of the Company’s declining market capitalization it was determined the carrying value exceeded its estimated fair value. Inmeasuring fair value, the Company used income and market approaches. The Company compared the indicated fair value to the carrying value of itsindefinite-lived assets, and as a result of the analysis, an impairment charge of $1.2 million was recorded to indefinite-lived trade names for the year endedDecember 31, 2016. In addition, the Company compared the implied fair value of the goodwill to the carrying value of the goodwill, and as a result of theanalysis, an impairment charge of $33.2 million was recorded for the year ended December 31, 2016.6.DebtRelated Party Convertible NoteIn December 2014, in connection with the acquisition of Overland, the existing debt of Overland and the remaining debt of the Company wereamended and restated into a $19.5 million convertible note held by FBC Holdings. In April 2016, the Company modified its convertible note with FBCHoldings, pursuant to which the holder made an additional advance and principal amount under the convertible note amount was increased to $24.5 million.The convertible note is scheduled to mature March 31, 2018 and bears interest at an 8.0% simple annual interest rate, payable semi-annually. The obligationsunder the convertible note are secured by substantially all assets of the Company. At December 31, 2017, the Company had $24.4 million, net ofunamortized debt costs of $0.1 million, outstanding on the convertible note.The Company has the option to pay accrued and outstanding interest either entirely in cash or common shares. If the Company choses to pay theinterest in common shares, the calculation is based upon the number of common shares that may be issued as payment of interest on the convertible note andwill be determined by dividing the amount of interest due by current market price as defined in the convertible note agreement. For the years endedDecember 31, 2017 and 2016, the Company issued 586,298 and 168,594 common shares, respectively, for the settlement of accrued interest expense.In November 2015, the convertible note’s conversion price was adjusted to $75.00 per share. In February 2016, in connection with the November 2015modification and certain specified terms, the Company issued to the holder of the convertible note a warrant to purchase 20,000 common shares of theCompany at a price of $40.50.At the option of the Company, the convertible note is convertible into common shares at the conversion price at any time that the weighted averagetrading price for the common shares exceeds 150% of the conversion price (i.e. exceeds $112.50 per share), for ten consecutive trading days on its principalstock exchange that the common shares trade.The convertible note contains customary covenants, including covenants that limit or restrict the Company’s ability to incur liens, incur indebtedness,or make certain restricted payments. Upon the occurrence of an event of default under the convertible note, the Holder may declare all amounts outstandingto be immediately due and payable. The convertible note specifies a number of events of default (some of which are subject to applicable grace or cureperiods), including, among other things, non-payment defaults, covenant defaults, cross-defaults to other materials indebtedness, bankruptcy and insolvencydefaults, and material judgment defaults. As of December 31, 2017, the Company was in compliance with all covenants of the convertible note.For the years ended December 31, 2017 and 2016, interest expense, including amortization of debt costs, on the convertible note was $2.2 million and$2.1 million, respectively.F-20Related Party DebtIn December 2017, the Company entered into a $2.0 million subordinated promissory note with MF Ventures, LLC, a related party. The promissorynote is subordinate to the Company’s Opus Bank Credit Agreement and FBC Holdings indebtedness and has a maturity date of the earliest of: (i)December 11, 2020; (ii) immediately after repayment in full of the Opus Bank Credit Agreement and the FBC Holdings indebtedness; or (iii) immediatelyafter the Company’s refinancing of both the Opus Bank Credit Agreement and the FBC Holdings indebtedness. The promissory note may be prepaid at anytime by the Company; including any accrued and unpaid interest and a $0.3 million prepayment penalty. The promissory note bears interest at a 12.5%simple annual interest rate, payable quarterly in arrears. Interest shall be paid in kind by increasing the principal amount of the note on each quarterly interestpayment date.In September 2016, the Company entered into a $2.5 million agreement with FBC Holdings. The term loan has a maturity date of January 31, 2018 andbears interest at a 20.0% simple annual interest rate, payable monthly in arrears. Monthly payments of principal on the term loan began on January 31, 2017,in 13 equal installments. The Company has the option to pre-pay the outstanding balance of the term loan, plus any accrued interest, at any time. Theobligations of the Company and certain of its subsidiaries (collectively, the “Loan Parties”) under the term loan agreement and related documents will besecured by substantially all assets of the Loan Parties. At December 31, 2017, the outstanding balance of the term loan was $0.2 million. For the years endedDecember 31, 2017 and 2016, interest expense, including amortization of debt costs, on the term loan was $0.3 million and $0.1 million, respectively. InJanuary 2018, the FBC Holdings term loan was paid in full per the term loan agreement.Credit AgreementIn April 2016, the Company entered into a Credit Agreement with Opus Bank for a term loan in the amount of $10.0 million and a credit facility in theamount of up to $10.0 million. A portion of the proceeds were used to pay off the Company’s then outstanding credit facilities with FBC Holdings andSilicon Valley Bank. The remainder of the proceeds were used for working capital and general business requirements. On December 30, 2016, the creditfacility was reduced to $8.2 million. The obligations under the term loan and credit facility are secured by substantially all assets of the Company other thanthe stock of its subsidiaries organized outside of the U.S. and Canada that are pledged to secure the Company’s obligations under the Company’s convertiblenote. At December 31, 2017 and 2016, the interest rate on the term loan and credit facility was 8.25% and 6.5%, respectively.In September 2017, the Company and Opus Bank entered into an Amendment Number Seven to Credit Agreement, Waiver and Reaffirmation(“Amendment Number Seven”). Under the terms of Amendment Number Seven; (a) the maturity date for the revolving and term loan credit facilities wereamended to the earliest of (i) the maturity of the convertible note held by FBC Holdings, (ii) March 31, 2018; or (iii) such earlier date upon which theobligations may be accelerated in accordance with terms of the Credit Agreement, and (b) in the event of a failure by the Company to comply with certaincovenants and milestones set forth in Amendment Number Seven, all amounts under the Opus Credit Agreement may be accelerated and become immediatelypayable.In March 2017, the Company and Opus Bank entered into an Amendment Number Two to Credit Agreement, Amendment Number One to AmendmentNumber 1, Waiver and Reaffirmation (the “Second Amendment”). As a condition of the Second Amendment, the Company issued to Opus Bank (i) a warrant,exercisable for 15,957 shares at an exercise price of $0.25 per common share as the debt was not repaid by April 17, 2017 and (ii) a warrant, exercisable for35,242 shares at an exercise price of $0.25 per common share as the debt was not repaid by May 31, 2017.In December 2016, as a condition of the extension of credit to the Company under the Credit Agreement, the Company issued to Opus Bank a warrantexercisable for 34,483 shares at an exercise price of $0.25 per common share. The December 2016 warrant replaced the warrant that was previously issued inApril 2016.F-21The term loan and credit facility contain customary covenants, including covenants that limit or restrict the Company’s ability to incur liens, incurindebtedness, or make certain restricted payments. Upon the occurrence of an event of default under the term loan, the holder may declare all amountsoutstanding to be immediately due and payable. The term loan and credit facility specify a number of events of default (some of which are subject toapplicable grace or cure periods), including, among other things, non-payment defaults, covenant defaults, cross-defaults to other materials indebtedness,bankruptcy and insolvency defaults, and material judgment defaults. As of December 31, 2017, the Company was in compliance with all covenants of theterm loan and credit facility.At December 31, 2017, the outstanding balances of the term loan and credit facility were $10.0 million and $8.2 million, respectively. For the yearsended December 31, 2017 and 2016, interest expense, including amortization of debt costs, on the Opus facilities was $3.4 million and $1.8 million.Terminated Related Party Credit FacilityIn December 2014, the Company entered into a revolving credit agreement with FBC Holdings for a revolving credit facility of $5.0 million. In July2015, the credit facility was amended to extend the scheduled maturity date to May 2016 with an automatic extension to November 2016, and the aggregateborrowing amount was increased to $10.0 million. In April 2016, the credit facility was terminated upon repayment of the outstanding balance.For the years ended December 31, 2017 and 2016, interest expense for the credit facility was none and $0.9 million, respectively, which included $0.7million of amortization of issuance costs in the year ended 2016.7.Fair Value MeasurementsThe authoritative guidance for fair value measurements establishes a three tier fair value hierarchy, which prioritizes the inputs used in measuring fairvalue. These tiers include: Level 1, defined as observable inputs such as quoted prices in active markets; Level 2, defined as inputs other than quoted pricesin active markets that are either directly or indirectly observable; and Level 3, defined as unobservable inputs in which little or no market data exists,therefore requiring an entity to develop its own assumptions.Assets and Liabilities that are Measured at Fair Value on a Recurring BasisOur financial instruments include cash equivalents, accounts receivable, prepaid expenses, accounts payable, accrued expenses, credit facility, debtand related party debt. Fair value estimates of these instruments are made at a specific point in time, based on relevant market information. These estimatesmay be subjective in nature and involve uncertainties and matters of significant judgment and therefore cannot be determined with precision. The carryingamount of cash equivalents, accounts receivable, prepaid expenses, accounts payable and accrued expenses are generally considered to be representative oftheir respective fair values because of the short-term nature of those instruments. The carrying amount of the credit facility borrowings approximate their fairvalue as the interest rate of the credit facility is substantially comparable to rates offered for similar debt instruments. The carrying value of debt and relatedparty debt approximates its fair value as the borrowing rates are substantially comparable to rates available for loans with similar terms.F-22The following table provides information by level for liabilities that are measured at fair value using significant unobservable inputs (Level 3) (inthousands):Warrant liability as of January 1, 2016 $1,447Change in fair value of warrants (1,248)Reclassification to equity 1Warrant liability as of December 31, 2016 200Additions to warrant liability 4,677Change in fair value of warrants (2,249)Reclassification to equity (959)Warrant liability as of December 31, 2017 $1,669The Company determined the estimated fair value of the warrant liability using a Black-Scholes model using similar assumptions as disclosed in Note9 - Equity Incentive Plan.Assets and Liabilities that are Measured at Fair Value on a Nonrecurring BasisThe Company's non-financial assets such as goodwill, intangible assets and property and equipment are recorded at fair value when an impairment isrecognized or at the time acquired in a business combination. As discussed in Note 5 - Intangible Assets and Goodwill, at December 31, 2017, the Companyrecorded impairment charges associated with acquired intangible assets, and reduced the carrying amount of such assets subject to the impairment to theirestimated fair value. At December 31, 2016, the Company recorded impairment charges associated with goodwill and acquired intangible assets, and reducedthe carrying amount of such assets subject to the impairment to their estimated fair value.F-238.Share CapitalReverse Stock SplitOn July 5, 2017, the Board of Directors of the Company authorized a share consolidation (also known as a reverse stock split) of the Company’sissued and outstanding common shares at a ratio of 1-for-25, which became effective on July 11, 2017. All share and per share amounts have beenrestated for all periods to reflect the share consolidation.The Company has unlimited authorized shares of common shares at no par value. At December 31, 2017, the Company had the followingoutstanding warrants to purchase common shares:Date issued Contractual life(years) Exercise price Number outstanding ExpirationFebruary 2015 3 $112.50 4,000 February 20, 2018March 2015 3 $180.25 4,000 March 6, 2018March 2015 3 $125.50 4,000 March 20, 2018May 2015 5 $100.00 33,600 May 31, 2020October 2015 5 $58.25 16,077 October 14, 2020December 2015 3 $38.50 20,000 December 21, 2018December 2015 5 $62.50 41,100 December 15, 2020December 2015 5 $27.00 60,000(1)December 4, 2020January 2016 3 $51.50 3,539 November 30, 2018February 2016 3 $40.50 20,000 February 26, 2019March 2016 5 $62.50 1,200 March 4, 2021November 2016 3 $50.00 1,000 November 8, 2019December 2016 6 $0.25 34,483 December 30, 2022March 2017 6 $0.25 15,957 April 18, 2023March 2017 6 $0.25 35,242 June 1, 2023March 2017 5 $5.00 1,300,910(2)March 24, 2022August 2017 5 $5.25 300,000 August 11, 2022August 2017 5 $5.25 95,000 August 16, 2022August 2017 5 $5.25 205,000 August 22, 2022 2,195,108(3) _______________(1)If the Company or any subsidiary thereof, at any time while this warrant is outstanding, enters into a Variable Rate Transaction (“VRT”) (as definedin the purchase agreement) and the issue price, conversion price or exercise price per share applicable thereto is less than the warrant exercise pricethen in effect, the exercise price shall be reduced to equal the VRT price.(2)These warrants were subject to certain anti-dilution adjustments. In August 2017, the Company issued additional common shares, which triggered aprice adjustment for these warrants from $7.50 to $5.00 and the issuance of an additional warrants to purchase 433,638 common shares. While thesewarrants are outstanding, if the Company enters into a Fundamental Transaction, defined as a merger, consolidation or similar transaction, theCompany or any successor entity will, at the option of each holder, exercisable at any time within 90 days after the consummation of theFundamental Transaction, purchase the warrant from the holder exercising such option by paying to the holder an amount of cash equal to theBlack-F-24Scholes Value of the remaining unexercised portion of such holder’s warrant on the date of the consummation of the Fundamental Transaction. OnMarch 16, 2018, the Company entered into warrant exchange agreements pursuant to which the Company issued 1,430,998 common shares inexchange for the surrender and cancellation of the Company’s outstanding March 24, 2017 warrants (the “Exchange”). Immediately after theExchange, the previously issued warrants became null and void. MF Ventures, LLC, participated in the Exchange by acquiring 299,999 commonshares in exchange for a warrant to purchase 272,727 common shares.(3)Includes 624,727 of warrants to purchase common shares, in the aggregate, outstanding to related parties at December 31, 2017.Related Party Share Capital TransactionsIn August 2017, the Company entered into a securities purchase agreement with certain investors pursuant to which the Company issued (i) 600,000common shares, of which 395,000 common shares were issued to related parties, and (ii) warrants for the purchase of up to 600,000 common shares, of which395,000 warrants were issued to related parties, in a private placement in exchange for a cash payment of $3.0 million. The purchase price was $5.00 percommon share and warrant to purchase one common share, and the exercise price of the warrants is $5.25 per warrant share. The warrants were subject tocertain anti-dilution adjustments through December 2017.In July 2017, the Company entered into amended and restated warrant agreements with certain holders of warrants previously issued in March 2016(the “Amended March 2016 Warrant”) and between December 2016 and March 2017 (the “Amended March 2017 Warrants” and together with the AmendedMarch 2016 Warrant, the “Amended and Restated Warrants”). Pursuant to the amended and restated warrant agreements, the Company issued an aggregate of1,617,917 common shares, of which 1,315,385 common shares were issued to related parties, in exchange for the cancellation of such warrants. Immediatelyafter the exchange, the amended and restated warrant agreements became null and void.In March 2017, the Company entered into a securities purchase agreement with certain investors party thereto, pursuant to which the Company issuedto the investors, in the aggregate, 818,182 of the Company’s common shares for gross proceeds of $4.5 million. The securities purchase agreement alsoprovided for the concurrent private placement of warrants exercisable to purchase up to 867,272 common shares. Each warrant had an exercise price of $7.50per warrant share. MF Ventures, LLC, a related party, participated in the offering by acquiring 181,818 common shares and warrants to purchase 181,818shares. In August 2017, the Company issued additional common shares, which triggered a price adjustment for the March 2017 warrants from $7.50 to $5.00and the Company issued, in the aggregate, additional warrants exercisable to purchase up to 433,638 common shares, of which MF Ventures, LLC received90,909 warrants exercisable to purchase common shares.Between December 30, 2016 and March 16, 2017, the Company completed a private placement and issued a total of 725,599 “Units” at a purchaseprice of $7.50 per Unit. Each Unit consisted of one common share and one warrant from each of two series of warrants. The Company received gross proceedsof $5.4 million in connection with the sale of the Units. The warrants were exercisable to purchase 1,451,198 common shares in the aggregate. MF Ventures,LLC participated in the private placements by acquiring 333,333 common shares and warrants to purchase 666,666 common shares. Lynn Factor andSheldon Inwentash, a married couple and related party to the Company, participated in the private placements by acquiring 213,000 common shares andwarrants to purchase 426,000 common shares. An additional 28,000 common shares and warrants to purchase 56,000 common shares were acquired byThreeD Capital Inc. Mr. Inwentash is the Chief Executive Officer of ThreeD Capital Inc. In July 2017, the warrants issued between December 30, 2016 andMarch 16, 2017 were null and void as a result of the Amended and Restated Warrants agreement. As of December 31, 2017, Lynn Factor and SheldonInwentash no longer have a significant direct or indirect ownership of the Company and are no longer are classified as a related party.F-25In March 2016, the Company entered into a warrant exchange agreement with MF Ventures, LLC (“MF Ventures”), a related party, pursuant to whichthe Company agreed to issue a warrant (the “New Warrant”) for the purchase of up to 287,969 common shares (the “Warrant Shares”) in exchange for thesurrender and cancellation of previously outstanding warrants for the purchase of up to, in aggregate, 121,250 common shares (the “Previously OutstandingWarrants”). The terms of the New Warrant are substantially similar to the Previously Outstanding Warrants except the exercise price has changed to $30.50per common share. On March 25, 2016, MF Ventures exercised 121,250 of the Warrant Shares for 121,250 common shares pursuant to which the Companyreceived $3.7 million in proceeds. The expiration date for the remaining balance of the New Warrant is March 25, 2021.9.Equity Incentive PlansIn 2017, the shareholders approved the amendment of our 2015 Performance Incentive Plan (“2015 Plan”) which increased the 2015 Plan by 1.7million shares. The 2015 Plan, as amended, authorizes the board of directors to grant stock and options awards of up to 2.1 million common shares todirectors, employees and consultants. As of December 31, 2017, the Company had approximately 770,000 share-based awards available for future grant.In 2017, the shareholders approved the amendment of our Employee Stock Purchase Plan (“ESPP”) which increased the ESPP by 220,000 shares. TheESPP authorizes the purchase of up to 300,000 common shares by employees under the plan. As of December 31, 2017 and 2016, there were no offeringperiods available to employees.Stock OptionsThe fair value of each option is estimated on the date of grant using the Black-Scholes option pricing model, which uses the weighted-averageassumptions noted in the following table: Year Ended December 31, 2017 2016Expected volatility120.0% 93.0%Risk-free interest rate2.1% 1.5%Dividend yield— —Expected term (in years)4.7 4.7The expected volatility was based on the Company’s historical share price. The risk-free interest rate is determined based upon a constant maturity U.S.Treasury security with a contractual life approximating the expected term of the option. The expected term of options granted is estimated based on a numberof factors, including but not limited to the vesting term of the award, historical employee exercise behavior, the expected volatility of the Company’scommon shares and an employee’s average length of service.F-26Options typically vest over a three-year period from the original grant date. The exercise price of each award is based on the market price of theCompany’s common shares at the date of grant. Option awards can be granted for a maximum term of up to ten years. Option activity is summarized below(shares and aggregate intrinsic value in thousands): Shares Weighted-AverageExercisePrice Weighted-AverageRemainingContractualTerm (years) AggregateIntrinsicValue Options outstanding at January 1, 2016 149 $60.75 Granted — $— Exercised — $— Forfeited (19) $113.00 Options outstanding at December 31, 2016 130 $54.25 Granted 87 $3.97 Exercised — $— Forfeited (29) $63.59 Options outstanding at December 31, 2017 188 $31.40 5.2 $—Vested and expected to vest at December 31, 2017 188 $31.40 5.2 $—Exercisable at December 31, 2017 140 $40.98 5.0 $—The following table summarizes information about the Company’s stock options (in thousands, except per share amounts): Year Ended December 31, 2017 2016Weighted-average grant date fair value per share$3.23 $—Intrinsic value of options exercised$— $—Cash received upon exercise of options$— $—Restricted Stock UnitsThe following table summarizes information about RSU activity (in thousands, except per share amounts): Number ofShares WeightedAverage GrantDate Fair ValueOutstanding — January 1, 2016225 $91.50Granted65 $20.50Vested and released(81) $83.00Forfeited(58) $84.75Outstanding — December 31, 2016151 $64.50Granted1,211 $3.96Vested and released(239) $33.30Forfeited(118) $13.89Outstanding — December 31, 20171,005 $4.89The estimated fair value of RSUs was based on the market value of the Company’s common shares on the date of grant. RSUs typically vest over athree-year period from the original date of grant. The total grant date fair value of RSUs vested duringF-27the years ended December 31, 2017 and 2016 was approximately $8.0 million and $6.8 million, respectively. The fair value of RSUs vested during the yearsended December 31, 2017 and 2016 was approximately $1.2 million and $1.7 million, respectively.Outside of 2015 Equity Incentive PlanIn 2017, the Board of Directors of the Company approved and granted 206,238 RSUs outside of the 2015 Plan to certain employees. The RSUs have anestimated fair value of $8.75 per unit and vest over one to three years.Restricted Stock AwardsDuring 2017 and 2016, the Company granted restricted stock awards (“RSA”) to certain consultants in lieu of cash payment for services performed.The estimated fair value of the RSAs was based on the market value of the Company’s common shares on the date of grant. The RSAs were fully vested on thedate of grant. The fair value of the RSAs vested during the years ended December 31, 2017 and 2016 was approximately $0.2 million and $0.5 million,respectively.The following table summarizes information about RSA activity (in thousands, except per share amounts): Number ofShares WeightedAverage GrantDate Fair ValueOutstanding — January 1, 2016— $—Granted28 $19.00Vested(28) $19.00Outstanding — December 31, 2016— $—Granted55 $3.32Vested(55) $3.32Outstanding — December 31, 2017— $—Share-Based Compensation ExpenseThe Company recorded the following compensation expense related to its share-based compensation awards (in thousands): Year Ended December 31, 2017 2016Cost of sales$370 $366Sales and marketing2,095 2,773Research and development1,431 1,779General and administrative3,899 4,213Total share-based compensation expense$7,795 $9,131As of December 31, 2017, there was a total of $3.0 million of unrecognized compensation expense related to unvested equity-based compensationawards. The expense associated with non-vested restricted stock units and options awards granted as of December 31, 2017 is expected to be recognized overa weighted-average period of 1.6 years.F-2810.Net Loss per ShareBasic net loss per share is computed by dividing net loss applicable to common shareholders by the weighted-average number of common sharesoutstanding during the period. For all periods presented, there is no difference in the number of shares used to calculate basic and diluted shares outstandingdue to the Company’s net loss position.Anti-dilutive common share equivalents excluded from the computation of diluted net loss per share were as follows (in thousands): December 31, 2017 2016Common share purchase warrants2,195 410Convertible notes327 327Convertible notes interest196 326Restricted stock not yet vested or released1,005 151Options outstanding188 13011.Income TaxesOn December 22, 2017, tax legislation referred to as the Tax Cuts and Jobs Act (the “Tax Act”) was enacted. The Tax Act reduced the U.S. corporateincome tax rate from 35% to 21%, effective January 1, 2018. The Company re-measured its deferred tax assets and liabilities as of December 31, 2017,applying the reduced corporate income tax rate and recorded a provisional decrease to the deferred tax assets and liabilities of $16.7 million, with acorresponding adjustment to the valuation allowance.Due to the complexity of the Tax Act, the Company has not finalized the accounting for the effects of the Tax Legislation, including the provisionalamounts recorded related to the transition tax, re-measurement of the deferred taxes and the change to the valuation allowance. The impact of the TaxLegislation may differ from the Company’s estimate, during the one-year measurement period due to, among other things, further refinement of theCompany's calculation, changes in interpretations and assumptions the Company has made, and guidance that may be issued and actions the Company maytake as a result of the Tax Legislation. The Tax Act taxes certain unrepatriated earnings and profits (“E&P”) of the Company’s foreign subsidiaries. In order to determine the Transition Tax,the Company must determine, along with other information, the amount of its accumulated post 1986 E&P for its foreign subsidiaries, as well as the non U.S.income tax paid by those subsidiaries on such E&P. The Company recorded a provisional amount of U.S. taxable income of $3.5 million, which did not resultin additional tax expense due to the Company’s net operating losses. The Company continues to evaluate information which may adjust the computedTransition Tax. Since the Company has significant net operating losses, any change to this provisional amount would not have an impact on the Company’sfinancial position or results of operations.The Company is subject to taxation in Canada and also in certain foreign tax jurisdictions. The Company's tax returns for calendar year 2012 andforward are subject to examination by the Canadian tax authorities. The Company's tax returns for fiscal year 2006 and forward are subject to examination bythe U.S. federal and state tax authorities.The Company recognizes the impact of an uncertain income tax position on its income tax return at the largest amount that is “more likely than not”to be sustained upon audit by the relevant taxing authority. An uncertain tax position will not be recognized if it has less than a 50% likelihood of beingsustained.F-29The following is a summary of the changes in the amount of unrecognized tax benefits (in thousands): December 31, 2017 2016Unrecognized tax benefits, beginning of period$406 $673Decrease related to prior periods— (267)Unrecognized tax benefits, end of period$406 $406At December 31, 2017, there was $0.4 million of unrecognized tax benefits presented as a reduction of the related deferred tax asset for which there isfull valuation allowance, and the entire amount of the unrecognized tax benefits at December 31, 2017 will affect the effective tax rate if recognized.However, the portion that would be recognized as an increase to deferred tax assets may result in a corresponding increase in the valuation allowance at thetime of recognition resulting in no net effect to the effective tax rate, depending upon the Company’s assessment of the likelihood of realization of the taxbenefits at the time they are recognized.The Company believes it is reasonably possible that, within the next 12 months, the amount of unrecognized tax benefits may remain unchanged. TheCompany recognizes interest and penalties related to unrecognized tax benefits in its provision for income taxes. The Company had no material accrual forinterest and penalties on its consolidated balance sheets at December 31, 2017 and 2016, and recognized no interest and/or penalties in the consolidatedstatements of operations for the years ended December 31, 2017 and 2016.The components of loss before income taxes were as follows (in thousands): Year Ended December 31, 2017 2016Domestic$(5,294) $(8,937)Foreign(22,522) (58,698)Total$(27,816) $(67,635)The (benefit from) provision for income taxes includes the following (in thousands): Year Ended December 31, 2017 2016Current: Federal$— $—State— —Foreign484 476Total current484 476Deferred: Federal— —Foreign(2,116) 349Total deferred(2,116) 349(Benefit from) provision for income taxes$(1,632) $825F-30A reconciliation of income taxes computed by applying the federal statutory income tax rate of 26.5% to loss before income taxes to the total incometax (benefit from) provision for reported in the accompanying consolidated statements of operations is as follows (in thousands): Year Ended December 31, 2017 2016Income tax at statutory rate$(7,371) $(17,923)Foreign rate differential(2,367) (1,652)Change in tax rate16,715 —Change in valuation allowance(12,080) (34,477)Share-based compensation expense2,296 2,130Goodwill impairment— 8,699Section 382 limitation— 41,044Other differences1,175 3,004(Benefit from) provision for income taxes$(1,632) $825Deferred income taxes reflect the net effects of temporary differences between the carrying amounts of assets and liabilities for financial reportingpurposes and the amounts used for income tax purposes. Significant components of the Company’s deferred tax assets and liabilities are shown below. Avaluation allowance has been recorded, as realization of such assets is uncertain. Deferred income taxes are comprised as follows (in thousands): December 31, 2017 2016Deferred tax assets: Net operating loss carryforward$39,713 $48,138Intangible assets1,989 2,791Tax credits2,329 2,133Inventory1,112 1,906Share-based compensation475 920Warranty and extended warranty289 550Other2,107 2,708Deferred tax assets, gross48,014 59,146Valuation allowance for deferred tax assets(46,959) (59,039)Deferred tax assets, net of valuation allowance1,055 107Deferred tax liabilities: Intangible assets(1,970) (3,063)Property and equipment(172) (144)Deferred tax liabilities(2,142) (3,207)Net deferred tax assets (liabilities)$(1,087) $(3,100)F-31The Company has assessed whether its valuation allowance analysis for deferred tax assets was affected by various aspects of the Tax Act (e.g., deemedrepatriation of deferred foreign income, future tax on global intangible low-taxed income (“GILTI”), and new categories of foreign tax credits). Since theCompany has recorded provisional amounts related to certain portions of the Tax Act, any corresponding determination of the need for or change in avaluation allowance is also provisional. The Company reduced its valuation allowance by $1.0 million as a result of the Tax Act and its effects on therealizability of its deferred tax assets.At December 31, 2017, the Company had Canadian net operating loss carryforwards of $28.9 million. These carryforwards will begin expiring in 2031,unless previously utilized. At December 31, 2017, the Company had U.S. federal and state net operating loss carryforwards of $120.4 million and $79.2million, respectively. The remaining federal net operating loss will begin expiring in 2023, unless previously utilized. State net operating loss carryforwardsgenerally begin expiring in 2018, unless previously utilized.The Company’s ability to use its U.S. federal and state net operating loss and research and development credit carryforwards may be substantiallylimited due to ownership change limitations that may have occurred or that could occur in the future, as required by Section 382 of the Internal RevenueCode of 1986, as amended, as well as similar state provisions. The Company has completed a study through December 31, 2014, to assess whether anownership change has occurred or whether there have been multiple ownership changes since the Company became a “loss corporation” under the definitionof Section 382. Due to the existence of the valuation allowance, it is not expected that any possible limitation will have an impact on the results ofoperations or financial position of the Company.At December 31, 2017, the Company had California research and development tax credit carryforwards totaling $2.9 million. The California researchcredit may be carried forward indefinitely. The Company has federal alternative minimum tax credit carryforwards totaling $0.2 million which will berefundable through 2021 due to tax reform.12.Related Party TransactionsProfessional services provided by affiliates of the Company were none and $1.0 million during the years ended December 31, 2017 and 2016,respectively. As of December 31, 2017 and 2016, accounts payable and accrued liabilities included none and $17,000, respectively, due to related parties.13.401K PlanThe Company maintains an employee savings and retirement plan (the “401(k) Plan”) covering all of the Company’s U.S. employees, provided theymeet the requirements of the plan. The 401(k) Plan permits but does not require matching contributions by the Company on behalf of participants. TheCompany has not made any matching contributions.F-3214.Commitments and ContingenciesLeasesThe Company leases various office space, production facilities, and vehicles under non-cancelable operating leases that expire in various yearsthrough 2022. Future minimum lease payments as of December 31, 2017 under these arrangements are as follows (in thousands): MinimumLeasePayments 2018 $1,6972019 1,4332020 8552021 6542022 481Thereafter—Total $5,120Rent expense under non-cancelable operating leases is recognized on a straight-line basis over the respective lease terms and was $1.8 million for eachof the years ended December 31, 2017 and 2016, respectively.Letters of creditDuring the ordinary course of business, the Company provides standby letters of credit to third parties as required for certain transactions initiated bythe Company. As of December 31, 2017 and 2016, the Company’s had none and $0.4 million, respectively, of outstanding standby letters of credit.Warranty and Extended WarrantyThe Company had $0.8 million and $0.5 million in deferred costs included in other current and non-current assets related to deferred service revenueat December 31, 2017 and 2016, respectively. Changes in the liability for product warranty and deferred revenue associated with extended warranties andservice contracts were as follows (in thousands): ProductWarranty DeferredRevenueLiability at January 1, 2016$1,029 $7,043Settlements made during the period(54) (7,040)Change in liability for warranties issued during the period634 5,429Change in liability for pre-existing warranties(558) —Liability at December 31, 20161,051 5,432Liabilities assumed from acquisition— 518Settlements made during the period(703) (6,097)Change in liability for warranties issued during the period678 5,819Change in liability for pre-existing warranties(30) —Liability at December 31, 2017$996 $5,672Current liability$791 $4,458Non-current liability205 1,214Liability at December 31, 2017$996 $5,672F-33LitigationThe Company is, from time to time, subject to claims and suits arising in the ordinary course of business. In the opinion of management, the ultimateresolution of such pending proceedings will not have a material effect on the Company’s results of operations, financial position or cash flows.Patent Litigation Funding AgreementIn December 2010, Overland entered into a litigation funding agreement (the “Funding Agreement”) with Special Situations Fund III QP, L.P., SpecialSituations Private Equity Fund, L.P., Special Situations Technology Fund, L.P., and Special Situations Technology Fund II, L.P. (collectively, the “SpecialSituations Funds”) pursuant to which the Special Situations Funds agreed to fund certain patent litigation brought by Overland. In May 2014, the SpecialSituations Funds filed a complaint against Overland in the Supreme Court for New York County, alleging breach of the Funding Agreement. The SpecialSituations Funds allege that Overland’s January 2014 acquisition of Tandberg Data entitled the Special Situation Funds to a $6.0 million payment under theFunding Agreement, and therefore Overland’s refusal to make the payment constitutes a breach of the Funding Agreement by Overland. In November 2014,the Special Situations Funds amended their complaint to allege that Overland breached the Funding Agreement’s implied covenant of good faith and fairdealing by settling the patent litigation with BDT in bad faith to avoid a payment obligation under the Funding Agreement. The Special Situations Fundsare seeking $6.0 million in contractual damages as well as costs and fees. On October 10, 2017, the Court entered an order granting Overland’s motion forsummary judgment and dismissing the Special Situations Funds’ complaint in its entirety with prejudice. The Special Situations Funds have filed a notice ofappeal.Patent InfringementIn May 2013, Safe Storage LLC (“Safe Storage”), a Delaware limited liability company, filed a complaint against Overland in the U.S. District Courtfor the District of Delaware alleging infringement of U.S. Patent No. 6,978,346 by our products. In February 2017, Overland and Safe Storage entered into asettlement agreement, pursuant to which the claim was dismissed.OtherIn January 2018, Mr. Vito Lupis filed a statement of claim in the Ontario Court of Justice alleging, among other things, breach of contracts, deceit andnegligence against Mr. Giovanni J. Morelli, a former officer of the Company, and vicarious liability against the Company, in connection with stock purchaseagreements and other related agreements that would have been entered into between Mr. Lupis and the Company in 2012. The Company believes theallegations are without merit and plans to vigorously defend itself against the allegations.In April 2015, we filed a proof of claim in connection with bankruptcy proceedings of V3 Systems, Inc. (“V3”) based on breaches by V3 of the AssetPurchase Agreement entered into between V3 and the Company dated February 11, 2014 (the “APA”). On October 6, 2015, UD Dissolution Liquidating Trust(“UD Trust”), the apparent successor to V3, filed a complaint against us and certain of our current and former directors in the U.S. Bankruptcy Court for theDistrict of Utah Central Division objecting to our proof of claim and asserting claims for affirmative relief against us and our directors. This complaintalleges, among other things, that Sphere breached the APA and engaged in certain other actions and/or omissions that caused V3 to be unable to timely sellthe Sphere common shares received by V3 pursuant to the APA. The plaintiff seeks, among other things, monetary damages for the loss of the potential earn-out consideration, the value of the common shares held back by us pursuant to the APA and costs and fees. We believe the lawsuit to be without merit andintend to vigorously defend against the action.On December 23, 2015, we filed a motion seeking to dismiss the majority of the claims asserted by the UD Trust. On January 13, 2016, we filed acounterclaim against the UD Trust in which we allege that V3 breached numerous provisions of the APA. On July 22, 2016, we filed a motion seeking totransfer venue of this action to the United States District Court for the District of Delaware. The Bankruptcy Court granted our motion to transfer venue onAugust 30, 2016, and the case was formally transferred to the Delaware Court on October 11, 2016. There is currently no hearing set on our motion to dismiss.F-3415.Segmented InformationThe Company reports segment information as a single reportable business segment based upon the manner in which related information is organized,reviewed, and managed. The Company operates in one segment providing data storage and desktop virtualization solutions for small and medium businessesand distributed enterprises. The Company conducts business globally, and its sales and support activities are managed on a geographic basis. Ourmanagement reviews financial information presented on a consolidated basis, accompanied by disaggregated information it receives from its internalmanagement system about revenues by geographic region, based on the location from which the customer relationship is managed, for purposes of allocatingresources and evaluating financial performance.Information about Products and ServicesThe following table summarizes net revenue (in thousands): Year Ended December 31, 2017 2016Disk systems $52,486 $46,795Tape automation systems 9,718 10,297Tape drives and media 10,615 10,973Service 8,704 8,328 $81,523 $76,393Information about Geographic AreasThe Company markets its products domestically and internationally, with its principal international market being Europe. Revenue is attributed to thelocation to which the product was shipped. The Company divides its worldwide sales into three geographical regions: EMEA, consisting of Europe, theMiddle East and Africa; Americas; and APAC, consisting of Asia Pacific countries.The following table summarizes net revenue by geographic area (in thousands): Year Ended December 31, 2017 2016EMEA$37,365 $39,719Americas28,213 23,043APAC15,945 13,631Total$81,523 $76,393During 2017 and 2016, there were two geographic areas with specific concentrations of net revenue greater than 10%. Revenues from customers in theU.S. comprised $27.1 million and $20.1 million of Americas net revenue during the years ended December 31, 2017 and 2016, respectively. Revenue fromcustomers in Germany accounted for $19.0 million and $19.6 million of EMEA’s net revenue during the years ended December 31, 2017 and 2016,respectively.F-35The following table presents property and equipment information for geographic areas based on the physical location of the assets (in thousands): Year Ended December 31, 2017 2016EMEA$1,871 $1,703Americas520 937APAC351 418Total$2,742 $3,05816.Subsequent EventsWarrant Exchange AgreementOn March 16, 2018, the Company entered into warrant exchange agreements, in a privately negotiated exchange under Section 4(a)(2) of theSecurities Act of 1933, as amended, pursuant to which the Company issued 1,430,998 common shares in exchange for the surrender and cancellation of theCompany’s outstanding March 24, 2017 warrants (the “Exchange”). Immediately after the Exchange, the previously issued warrants became null and void.MF Ventures, LLC, participated in the Exchange by acquiring 299,999 common shares in exchange for a warrant to purchase 272,727 common shares.Related Party Share Purchase Agreement On February 20, 2018, the Company, Overland, and Silicon Valley Technology Partners LLC, a Delaware limited liability company established andcontrolled by Eric Kelly, the Company’s Chief Executive Officer and Chairman of the Board of Directors (the “Purchaser”) entered into a share purchaseagreement (the “Purchase Agreement”), pursuant to which, among other things, and subject to certain closing conditions, the Company will sell to Purchaserall of the issued and outstanding shares of capital stock of Overland for $45.0 million (the “Purchase Price”), subject to a working capital adjustment (the“Share Purchase”). The net proceeds from the Share Purchase will be used to repay: (i) the Company’s outstanding obligations under its Credit Agreementwith Opus Bank; (ii) its outstanding obligations under the related party convertible note with FBC Holdings S.a.r.l. (“FBC Holdings”); and (iii) its relatedparty subordinated promissory note with MF Ventures, LLC. The Special Committee of the Board of Directors of the Company and the Board of Directors ofthe Company (with Eric Kelly recusing himself) unanimously approved the entry into the Purchase Agreement by the Company. See Note 1 - Organizationand Business for additional details.F-36Exhibit 10.48AMENDED AND RESTATED RETENTION AGREEMENTThis Amended and Restated Retention Agreement (this “Agreement”) is entered into as of December 18, 2017 between Sphere 3D Corp., acorporation incorporated under the laws of the Province of Ontario (the “Company”), and Eric Kelly (“Employee”). This Agreement amends and restates inits entirety the Retention Agreement between Employee and Overland Storage, Inc., a California corporation, dated June 24, 2009 (the “Prior Agreement”).AGREEMENTWHEREAS, Employee is the Chief Executive Officer of the Company;WHEREAS, the Company considers that providing Employee with certain benefits as provided herein in the event of a Change of Control willoperate as an incentive for Employee to remain employed by the Company in the event of a Change of Control; andWHEREAS, the Company and Employee are also parties to an Employment Agreement dated August 3, 2011 (the “Employment Agreement”).NOW THEREFORE, for the consideration stated above, and for other good and valuable consideration, the receipt and sufficiency of which ishereby acknowledged, the Company and Employee agree as follows:1.Definitions.1.1. “Base Salary” shall mean the Employee’s gross annual salary at the time of a Change of Control (or on the Termination Date, if higher andsuch Termination Date occurs before the Change of Control).1.2. “Cause” shall mean:(a) Employee’s gross neglect of his duties to the Company, where Employee has been given a reasonable opportunity of not less than 30days to cure his gross neglect after receiving written notice from the Company’s Board of Directors (the “Board”) (which reasonable opportunity must begranted during the thirty-day period preceding termination);(b) any material breach by Employee of Employee’s obligations under this Agreement or any employment agreement which Employeemay have with the Company ,which Employee fails to cure within 30 days after receiving written notice from the Board; or(c) Employee’s commission of any act of fraud, theft or embezzlement against the Company.1.3. “Change of Control” is defined to have occurred if, and only if, during Employee’s employment:(a) any individual, partnership, firm, corporation, association, trust, unincorporated organization or other entity or person, or anysyndicate or group deemed to be ‘a person under Section 14(d)(2) of the Exchange Act is or becomes the “Beneficial Owner” (as defined in Rule 13d-3 of theGeneral Rules and Regulations under the Exchange Act), directly or indirectly, of securities of the Company representing 30% or more of the combinedvoting power of the Company’s then outstanding securities entitled to vote in the election of directors of the Company;(b) there occurs a reorganization, merger, consolidation or other corporate transaction involving the Company (“Transaction”), in eachcase, with respect to which the stockholders of the Company immediately prior to such Transaction do not, immediately after the Transaction, own more thanfifty percent (50%) of the combined voting power of the Company or other corporation resulting from such Transaction; or(c) there occurs a sale or other disposition of assets of the Company that account for more than fifty percent (50%) of the Company’srevenue for the immediately preceding four (4) fiscal quarters.1.4. “Exchange Act” means the Securities Exchange Act of 1934, as amended.1.5. “Resignation for Good Reason” shall mean the voluntary resignation by Employee of his employment with the Company within six (6)months of the occurrence of any of the following Good Reasons:(a) any reduction in Employee’s Base Salary or Target Bonus by more than ten percent (10%); or(b) any material reduction in Employee’s duties, responsibilities and authority;(c) a relocation by the Company of Employee’s place of employment with the Company outside a fifty (50) mile radius of Employee’scurrent place of employment as of the date hereof; provided, however, that “Good Reason” shall not include relocation to a location within thirty (30) milesof Employee’s Danville, California residence; or(d) a material breach of this Agreement or the Employment Agreement by the Company.An event described in Section 1.5(a) through (d) will not constitute Good Reason unless Employee provides written notice to the Company withinsixty (60) days of the Good Reason event of his intention to resign for Good Reason and unless the Company does not cure or remedy the alleged GoodReason condition within thirty (30) days of the Company’s receipt of the written notice.1.6. “Target Bonus” shall mean the variable annual compensation represented by the percentage of Base Salary Employee is eligible to receive, ifany, prior to a Change of Control, in the event targeted goals are achieved for the year.1.7. “Termination Date” shall mean the date of termination of Employee’s employment relationship with the Company.2. Title and Duties. Employee will hold the position of Chief Executive Officer in accordance with the terms and conditions of the Employment Agreement.3. At-Will Employment. Employee reaffirms that Employee’s employment relationship with the Company is at-will, terminable at any time and for anyreason by either the Company or Employee, subject to the terms of the Employment Agreement. While certain paragraphs of this Agreement describe eventsthat could occur at a particular time in the future, nothing in this Agreement may be construed as a guarantee of employment of any length.4. Retention Payments.4.1. Subject in each case to Sections 4.2 and 4.3, if a Change of Control occurs and either (x) Employee remains employed with the Company as ofimmediately prior to the Change of Control or (y) during the period of sixty (60) days before the Change of Control, Employee’s employment with theCompany is terminated by the Company without Cause or by Employee’s Resignation for Good Reason, Employee shall be entitled to the followingbenefits:(a) Employee will be entitled to payment in cash of a lump-sum amount equal to 150% of Base Salary plus 150% of Target Bonus, lessapplicable state and federal taxes or other payroll deductions, such amount to be paid (subject to Section 9) on the first business day after the Releasebecomes effective or, if later, promptly after the Change in Control and in all events no later than sixty (60) days after the Change of Control (provided that ifsuch 60-day period spans two calendar years, such payment will be made in the second of such two years); and(b) Following Employee’s termination of employment either by the Company without Cause or pursuant to Employee’s Resignation forGood Reason (in any case occurring at any time on or after the date that is sixty (60) days before the Change of Control), (i) if Employee elects to continueinsurance coverage as afforded to Employee according to the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”), Companywill reimburse Employee the estimated amount of the premiums incurred by Employee during the period of eighteen (18) months following Employee’sTermination Date, and (ii) the Company will reimburse Employee for the estimated costs to continue life, accident, medical and dental insurance benefits forEmployee and his eligible dependents during such 18-month period in amounts substantially similar to those which Employee was entitled to receive underthe Employment Agreement immediately prior to Employee’s Termination Date (which amount shall be reduced by the amount of any reimbursements madeby the Company to Employee pursuant to clause (b)(i) above), the estimated costs of which shall be paid to Executive (subject to Section 9) in one lump sumpayment on the first business day after the Release becomes effective and in all events within sixty (60) days after the Termination Date (and any actual costsin excess of such estimate shall be paid to Executive no later than ten (10) days following his submission of written evidence of the amount of such excess),2 provided that if such 60-day period spans two calendar years, such payment will be made in the second of such two years. Nothing in this Agreement willextend Employee’s COBRA period beyond the period allowed under COBRA, nor is Company assuming any responsibility which Employee has for formallyelecting to continue coverage; and(c) Any portion of Employee’s then outstanding stock options and other equity-based awards granted by the Company that are not vestedshall immediately vest on the Change in Control and, in the case of stock options and similar awards, may be exercised in whole or in part within one yearfollowing the date of Employee’s termination of employment, subject to earlier termination upon the expiration of the maximum term of the applicableoptions or in connection with a corporate transaction involving the Company to the extent provided in the Plan and/or the award agreements that evidencesuch options. In the case of a termination of Employee’s employment described in clause (y) above of this Section 4.1, any such stock option or other equity-based award, to the extent such award had not vested and was cancelled or otherwise terminated upon or prior to the date of the related Change of Controlsolely as a result of such termination of employment, shall be reinstated and shall automatically become fully vested.4.2. The payments set forth in Sections 4.1(a) and 4.1(b) above are in exchange for, and contingent upon Employee’s execution and non-revocation of, a release of all claims as of the date of the Change of Control in substantially the form attached to this Agreement as Exhibit A (the “Release”).4.3. For avoidance of doubt, consistent with Section 5 of the Employment Agreement, if a Change of Control occurs and Employee is entitled tothe benefits provided in Section 4.1 above, Employee will not be entitled to any severance benefits under Section 4 of the Employment Agreement. To theextent Employee has received any severance benefits under Section 4 of the Employment Agreement with respect to a termination of Employee’semployment that occurs prior to a Change of Control, Employee’s benefits under this Agreement shall be reduced on a dollar-for-dollar basis by the amountof any such severance benefits paid to Employee under the Employment Agreement (provided that such offset shall not apply with respect to Employee’sStandard Entitlements (as defined in the Employment Agreement) paid in connection with such termination of Employee’s employment). In addition, onlythe first Change of Control that occurs after the date of this Agreement will be taken into account for purposes of this Agreement, and any Change of Controlthat may occur thereafter will be disregarded.5. Retirement and Profit-Sharing Plans. Notwithstanding anything in this Agreement to the contrary, Employee’s rights in any retirement, pension or profit-sharing plans offered by the Company shall be governed by the rules of such plans as well as by applicable law.6. Tax Consequences. The Company makes no representations regarding the tax consequence of any provision of this Agreement. Employee is advised toconsult with his own tax advisor with respect to the tax treatment of any payment contained in this Agreement.7. Tax Adjustment. Notwithstanding the foregoing or any other provision of this Agreement to the contrary, if it is determined that any portion of anypayment under this Agreement would constitute an “excess parachute payment” within the meaning of Section 280G of the U.S. Internal Revenue Code (the“Code”), the payments to be made to Employee under this Agreement shall be reduced (but not below zero) such that the value of the aggregate paymentsthat Employee is entitled to receive under this Agreement and any other agreement or plan or program of the Company shall be one dollar ($1) less than themaximum amount of payments which Employee may receive without becoming subject to the tax imposed by Section 4999 of the Code; provided that suchreduction to the payments to be made to Employee under this Agreement shall be made only if the total after-tax benefit to Employee is greater after givingeffect to such reduction than if no such reduction had been made. The determination that a payment is (or, if no reduction were made pursuant to this Section7, would be) an “excess parachute payment” shall be made in writing by a nationally recognized accounting firm or executive compensation consulting firmselected by the Company and acceptable to Employee (the “Accounting Firm”). The Accounting Firm’s determination shall include detailed computationsthereof, including any assumptions used in such computations. Any determination by the Accounting Firm will be binding on the Company and Employee.3 8. Agreement to Arbitrate. Employee and Company agree to arbitrate any claim or dispute (“Dispute”) arising out of or in any way related to thisAgreement, the employment relationship between Company and Employee or the termination of Employee’s employment, except as provided in Section 8.1below, to the fullest extent permitted by law. Except as provided above, this method of resolving Disputes shall be the sole and exclusive remedy of theparties. Accordingly, the parties understand that, except as provided herein, they are giving up their rights to have their disputes decided in a court of lawand, if applicable, by a jury, and instead agree that their disputes shall be decided by an arbitrator.8.1. Scope of the Agreement. A Dispute shall include all disputes or claims between Employee and Company arising out of, concerning or relatingto Employee’s employment by Company, including, without limitation: claims for breach of contract, tort, discrimination, harassment, wrongful termination,demotion, discipline, failure to accommodate, compensation or benefits claims, constitutional claims and claims for violation of any local, state or federallaw, or common law, to the fullest extent permitted by law. A Dispute shall not include any dispute or claim, whether brought by either Employee orCompany, for: (a) workers’ compensation or unemployment insurance benefits; or (b) the exclusions from arbitration specified in the California ArbitrationAct, California Code of Civil Procedure section 1281.8. For the purpose of this Agreement, references to “Employer” include Company and all related oraffiliated entities and their employees, supervisors, officers, directors, owners, stockholders, agents, pension or benefit plans, pension or benefit plan sponsors,fiduciaries, administrators, and the successors and assigns of any of them, and this Section 8 shall apply to them to the extent that Employee’s claims arise outof or relate to their actions on behalf of Company.8.2. Consideration. The parties agree that their mutual promise to arbitrate any and all disputes between them, except as provided in Section 8.1,rather than litigate them before the courts or other bodies, provides adequate consideration for this Section 8.8.3. Initiation of Arbitration. Either party may initiate an arbitration proceeding by providing the other party with written notice of any and allclaims forming the basis of such proceeding in sufficient detail to inform the other party of the substance of such claims. In no event shall the request forarbitration be made after the date when institution of legal or equitable proceedings based on such claims would be barred by the applicable statute oflimitations.8.4. Arbitration Procedure. The arbitration will be conducted by JAMS pursuant to its Rules for the Resolution of Employment Disputes in SanDiego, California by a single, neutral arbitrator. The parties are entitled to representation by an attorney or other representative of their choosing. Thearbitrator shall have the power to enter any award that could be entered by a judge of the Superior Court of the State of California, as applicable to the causeof action, and only such power. The arbitrator shall issue a written and signed statement of the basis of the arbitrator’s decision, including findings of fact andconclusions of law. The parties agree to abide by and perform any award rendered by the arbitrator. Judgment on the award may be entered in any courthaving jurisdiction thereof8.5. Costs of Arbitration. If Employee initiates arbitration against the Company, Employee must pay a filing fee equal to the current filing fee inthe appropriate court had Employee’s claim been brought there, and the Company shall bear the remaining filing fees and all other costs of the arbitrationforum, including arbitrator fees, case management fees, and forum hearing fees (the “Arbitration Fees”). If the Company initiates arbitration againstEmployee, the Company shall bear the entire cost of the arbitration forum, including arbitrator fees. (Such costs do not include costs of attorneys, discovery,expert witnesses, or other costs which Employee would have been required to bear had the matter been filed in a court.) The arbitrator may award attorneys’fees and costs to the prevailing party, except that Employee shall have no obligation to pay any of the Arbitration Fees even if the Company is deemed theprevailing party. If there is any dispute as to whether the Company or Employee is the prevailing party, the arbitrator will decide that issue. Anypostponement or cancellation fee imposed by the arbitration service will be paid by the party requesting the postponement or cancellation, unless thearbitrator determines that such fee would cause undue hardship on the party. At the conclusion of the arbitration, each party agrees to promptly pay anyarbitration award imposed against that party.8.6. Governing Law. All Disputes between the parties shall be governed, determined and resolved by the internal laws of the State of California,including the California Arbitration Act, California Code of Civil Procedure 1280 et seq.8.7. Discovery. The parties may obtain discovery in aid of the arbitration to the fullest extent permitted under law, including California Code ofCivil Procedure Section 1283.05. All discovery disputes shall be resolved by the arbitrator.4 9. IRC Section 409A. Notwithstanding anything to the contrary, if, at the time of his separation of service from the Company, Employee is a “specifiedemployee” as defined pursuant to Internal Revenue Code Section 409A, and if the amounts that Employee is entitled to receive pursuant to this Agreementare not otherwise exempt from Code Section 409A, then to the extent necessary to comply with Code Section 409A, no payments for such amounts may bemade under this Agreement before the date which is six (6) months after Employee’s separation of service from the Company or, if earlier, Employee’s date ofdeath. All such amounts, which would have otherwise been required to be paid during such six (6) months after Employee’s separation of service shall insteadbe paid to Employee in one lump sum payment on the first business day of the seventh month after Employee’s separation of service from the Company or, ifearlier, Employee’s date of death. All such remaining payments shall be made pursuant to their original terms and conditions. This Agreement is intended tocomply with the applicable requirements of Code Section 409A and shall be construed and interpreted in accordance therewith. The Company may at anytime amend this Agreement, or any payments to be made hereunder, as necessary to be in compliance with Code Section 409A and avoid the imposition onEmployee of any potential excise taxes relating to Code Section 409A. Any reimbursements pursuant to the foregoing provisions of this Agreement shall bepaid as soon as reasonably practicable and in all events not later than the end of Employee’s taxable year following the taxable year in which the relatedexpense was incurred. Employee’s rights to reimbursement hereunder are not subject to liquidation or exchange for another benefit and the amount ofexpenses eligible for reimbursement in one taxable year shall not affect the amount of expenses eligible for reimbursement in any other taxable year.10. General Provisions.10.1. Governing Law. This Agreement will be governed by and construed in accordance with the laws of California.10.2. Assignment. Employee may not assign, pledge or encumber his interest in this Agreement or any part thereof. The Company shall require apurchaser of all or substantially all the assets of the Company to assume all of the Company’s liabilities under this Agreement, and the Company wouldthereby be relieved of all such liabilities, provided that Employee accepts employment with such purchaser at the closing of the transaction.10.3. No Waiver of Breach. The failure to enforce any provision of this Agreement will not be construed as a waiver of any such provision, norprevent a party from enforcing the provision or any other provision of this Agreement. The rights granted the parties are cumulative, and the election of onewill not constitute a waiver of such party’s right to assert all other legal and equitable remedies available under the circumstances.10.4. Severability. The provisions of this Agreement are severable, and if any provision will be held to be invalid or otherwise unenforceable, inwhole or in part, the remainder of the provisions, or enforceable parts of this Agreement, will not be affected.10.5. Entire Agreement. This Agreement, together with the Employment Agreement, constitutes the entire agreement of the parties with respect tothe subject matter of this Agreement, and supersedes all prior and contemporaneous negotiations, agreements and understandings between the parties, oral orwritten (including, without limitation, the Prior Agreement).10.6. Modification; Waivers. No modification, termination or attempted waiver of this Agreement will be valid unless in writing, signed by theparty against whom such modification, termination or waiver is sought to be enforced.10.7. Amendment. This Agreement may be amended or supplemented only by a writing signed by both of the parties hereto.10.8. Duplicate Counterparts. This Agreement may be executed in any number of original, facsimile or .PDF counterparts; each of which shall bedeemed an original and all of which together shall constitute one and the same instrument.10.9. Interpretation. The headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning orinterpretation of this Agreement.10.10. Drafting Ambiguities. Each party to this Agreement and its counsel have reviewed and revised this Agreement. The rule of construction thatany ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of this Agreement or any of the amendments to thisAgreement.5 10.11. Recovery of Attorney’s Fees and Expenses. If any litigation shall occur between Employee and Employer which arises out of or as a result ofthis Agreement, or which seeks an interpretation of this Agreement, the prevailing party shall be entitled to recover reasonable attorneys’ fees and costs;provided, however, that, regardless of whether Employee prevails with respect to any dispute or litigation between the parties, Employee shall in no event berequired to pay any portion of the Arbitration Fees and the Employer shall pay up to Twenty-Five Thousand Dollars ($25,000) in legal fees and relatedexpenses incurred by Employee as a result of (i) his termination following a Change of Control (including all such fees and expenses, if any, incurred incontesting or disputing such termination) or (ii) Employee seeking to obtain or enforce any right or benefit provided by this Agreement following a Changeof Control.Company:SPHERE 3D CORP./s/ Duncan J. McEwan Duncan J. McEwan Chair of the Compensation CommitteeEmployee:/s/ Eric Kelly Eric Kelly Chief Executive Officer6 EXHIBIT AGENERAL RELEASEThis General Release (“Release”) is entered into effective as of _________________ (the “Effective Date”) between Sphere 3D Corp., a corporationincorporated under the laws of the Province of Ontario (the “Company”), and Eric Kelly, an individual residing at _________________ (“Employee”) withreference to the following facts:RECITALSA. The parties entered into an Amended and Restated Retention Agreement effective as of December 18, 2017 (the “Agreement”) pursuant towhich the parties agreed that, upon the occurrence of certain conditions, Employee would become eligible for certain benefits provided in the Agreement inexchange for Employee’s release of the Company from all claims which Employee may have against the Company as of the date of this Release. Allcapitalized terms that are not defined herein shall have the meaning set forth in the Agreement.B. The parties desire to dispose of, fully and completely, all claims, which Employee may have against the Company in, the manner set forth in thisRelease.AGREEMENT1. Consideration. The Company shall provide Employee those payments and benefits provided in Sections 4.1(a) and 4.1(b) of the Agreement.2. Release. Employee, for himself and his heirs, successors and assigns, fully releases and discharges the Company, its officers, directors,employees, shareholders, attorneys, accountants, other professionals, insurers and agents (collectively, “Agents”), and all entities related to each party,including, but not limited to, heirs, executors, administrators, personal representatives, assigns, parent, subsidiary and sister corporations, affiliates, partnersand co venturers (collectively, “Related Entities”), from all rights, claims, demands, actions, causes of action, liabilities and obligations of every kind, natureand description whatsoever, Employee now has, owns or holds or has at anytime had, owned or held or may have against the Company, Agents or RelatedEntities from any source whatsoever, whether or not arising from or related to the facts recited in this Release. Employee specifically releases and waives anyand all claims arising under any express or implied contract, rule, regulation or ordinance, including, without limitation, Title VII of the Civil Rights Act of1964, the Civil Rights Act of 1991, the Americans with Disabilities Act, the California Fair Employment and Housing Act, the California Labor Code and theAge Discrimination in Employment Act, as amended (“ADEA”). Employee acknowledges that the Company has paid Employee all wages, bonuses, accruedunused vacation pay, options, benefits and monies owed by the Company to Employee. This release does not waive any claims for (a) indemnification and/orpayment of related expenses under (i) any applicable law and/or (ii) the Company’s bylaws or articles of incorporation; (b) Employee’s ownership of anyCompany stock, vested stock units or stock options, and/or Employee’s rights as an existing shareholder of the Company; (c) any rights Employee has underany applicable stock option plan of the Company and/or any stock option, stock unit, stock purchase or other stockholder agreements with Company; (d) anyvested rights or claims Employee may have under any Company-sponsored benefit plans (including without limitation, any medical, dental, disability, lifeinsurance or retirement plans); (e) any rights Employee may have to obtain continued health insurance coverage or other benefits pursuant to theConsolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”), and/or any similar state law; (f) any claims Employee may have againstthe Company for reimbursement of business or other expenses incurred in connection with Employee’s employment with Company; (g) any other claimwhich as a matter of law cannot be waived, or (h) any obligation of the Company to Employee pursuant to the Agreement. Notwithstanding anything to thecontrary herein, nothing in this Release prohibits Employee from filing a charge with or participating in an investigation conducted by any state or federalgovernment agencies. However, Employee does waive, to the maximum extent permitted by law, the right to receive any monetary or other recovery, shouldany agency or any other person pursue any claims on Employee’s behalf arising out of any claim released pursuant to this Release. For clarity, and as requiredby law, such waiver does not prevent Employee from accepting a whistleblowerA-1award from the Securities and Exchange Commission pursuant to Section 21F of the Securities Exchange Act of 1934, as amended. Employee acknowledgesand agrees that he has received any and all leave and other benefits that he has been and is entitled to pursuant to the Family and Medical Leave Act of 1993.Employee represents and warrants to the Company that he has not heretofore assigned or transferred to any person not a party to this Release any releasedmatter or any part or portion thereof.3. Section 1542 Waiver. This Release is intended as a full and complete release and discharge of any and all claims that Employee may haveagainst the Company, Agents or Related Entities. In making this release, Employee intends to release each of the Company, Agents and Related Entities fromliability of any nature whatsoever for any claim of damages or injury or for equitable or declaratory relief of any kind, whether the claim, or any facts onwhich such claim might be based, is known or unknown to him. Employee expressly waives all rights under Section 1542 of the California Civil Code, whichEmployee understands provides as follows:A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HISOR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLYAFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.Employee acknowledges that he may discover facts different from or in addition to those that he now believes to be true with respect to this Release.Employee agrees that this Release shall remain effective notwithstanding the discovery of any different or additional facts.4. ADEA Waiver. Employee expressly acknowledges and agrees that by entering into this Release, he is waiving any and all rights or claims thathe may have arising under the Age Discrimination in Employment Act of 1967, as amended (the “ADEA”), and that this waiver and release is knowing andvoluntary. Employee and the Company agree that this waiver and release does not apply to any rights or claims that may arise under the ADEA after the dateEmployee signs this Release. Employee further expressly acknowledges and agrees that:(a) In return for this Release, he will receive consideration beyond that which he was already entitled to receive before executing this Release;(b) He is hereby advised in writing by this Release to consult with an attorney before signing this Release;(c) He was given a copy of this Release on [_________, 2017], and informed that he had [twenty-one (21)] days within which to consider thisRelease and that if he wished to execute this Release prior to the expiration of such [21]-day period he will have done so voluntarily and with fullknowledge that he is waiving his right to have [twenty-one (21)] days to consider this Release; and that such [twenty-one (21)] day period toconsider this Release would not and will not be re-started or extended based on any changes, whether material or immaterial, that are or were made tothis Release in such [twenty-one (21)] day period after he received it;(d) He was informed that he had seven (7) days following the date of execution of this Release in which to revoke this Release, and this Releasewill become null and void if Employee elects revocation during that time. Any revocation must be in writing and must be received by the Companyduring the seven-day revocation period. In the event that Employee exercises this revocation right, neither the Company nor Employee will haveany obligation under this Release. Any notice of revocation should be sent by Employee in writing to the Company (attention [_____________]),[Address], so that it is received within the seven-day period following execution of this Release by Employee.(e) Nothing in this Release prevents or precludes Employee from challenging or seeking a determination in good faith of the validity of this waiverunder the ADEA, nor does it impose any condition precedent, penalties or costs for doing so, unless specifically authorized by federal law.A-2 5. No Undue Influence. This Release is executed voluntarily and without any duress or undue influence. Employee acknowledges that he has readthis Release and executed it with his full and free consent. No provision of this Release shall be construed against any party by virtue of the fact that suchparty or its counsel drafted such provision or the entirety of this Release.6. Governing Law. This Release is made and entered into in the State of California and accordingly the rights and obligations of the partieshereunder shall in all respects be construed, interpreted, enforced and governed in accordance with the laws of the State of California as applied to contractsentered into by and between residents of California to be wholly performed within California.7. Severability. If any provision of this Release is held to be invalid, void or unenforceable, the balance of the provisions of this Release shall,nevertheless, remain in full force and effect and shall in no way be affected, impaired or invalidated.8. Counterparts. This Release may be executed simultaneously in one or more original, facsimile, or .PDF counterparts, each of which shall bedeemed an original, but all of which together shall constitute one and the same instrument. This Release may be executed by facsimile, with originals tofollow by overnight courier.9. Dispute Resolution Procedures. Any dispute or claim arising out of this Release shall be subject to final and binding arbitration in accordancewith the procedures, terms and conditions set forth Section 8 of the Agreement, which terms are incorporated herein by reference.10. Entire Agreement. This Release constitutes the entire agreement of the parties with respect to the subject matter of this Release, and supersedesall prior and contemporaneous negotiations, agreements and understandings between the parties, oral or written, including, without limitation, theAgreement, between the Company and Employee; provided, however, that this Release shall not terminate the Company’s obligations under Section 4, 7, 8,9 and 10.11 of the Agreement.11. Modification; Waivers. No modification, termination or attempted waiver of this Release will be valid unless in writing, signed by the partyagainst whom such modification, termination or waiver is sought to be enforced.12. Amendment. This Release may be amended or supplemented only by a writing signed by Employee and the Company.Dated: Printed Name: ______________________________________A-3 Exhibit 10.49AMENDED AND RESTATEDEMPLOYMENT AND SEVERANCE AGREEMENTTHIS AMENDED AND RESTATED EMPLOYMENT AND SEVERANCE AGREEMENT (this “Agreement”) is entered into between Sphere 3DCorp., a corporation incorporated under the laws of the Province of Ontario (“Employer” or the “Company”), and Kurt L. Kalbfleisch (“Executive”) as ofDecember 18, 2017 (the “Effective Date”). This Agreement amends and restates in its entirety the Employment and Severance Agreement between OverlandStorage, Inc., a California corporation, and Executive dated as of August 3, 2011 (the “Prior Agreement”) and is effective on the Effective Date.The parties agree as follows:1.Positions And Duties. Executive shall continue to be employed by the Company in the position of Senior Vice President and ChiefFinancial Officer (“CFO”), reporting to the Chief Executive Officer (“CEO”), and shall do and perform all services, acts or things necessary or advisable tosupport the business of the Company. Executive shall also perform such duties that are normally associated with the position of CFO consistent with thebylaws of the Company and such other duties as may be requested by the CEO. Termination of Executive as an officer of the Company for any reason shallalso constitute the resignation by Executive, effective upon such termination, of any and all offices or positions with the Company or any affiliate of theCompany. Upon request, Executive shall provide the Company with additional written evidence of any such resignation.1.1 Best Efforts/Full-Time. During the Employment Term (as defined in Section 1.2 herein), Executive will act in the best interests ofEmployer and devote his full business time and best efforts to the performance of his duties under this Agreement. Executive agrees to be available to rendersuch services at all reasonable times and places and in accordance with Employer’s directives. Executive shall be assigned to work in the Company’scorporate offices in San Diego, California, but may be required to travel in connection with his duties. Executive will abide by all policies, procedures, anddecisions made by Employer, as well as all federal, state and local laws, regulations or ordinances applicable to his employment. During his employment,Executive must not engage in any work, paid or unpaid, that creates an actual or potential conflict of interest with Employer’s business interests and if, in theopinion of the CEO or the Company’s Board of Directors (the “Board”), an actual or potential conflict exists, the CEO or Board may in its sole discretionrequire Executive to choose either to (i) discontinue the other work or (ii) resign without Good Reason from his employment with Employer. The foregoingrestriction shall not preclude Executive from engaging in civic, charitable or religious activities, or from serving on boards of directors of companies ororganizations so long such services do not pose a material conflict or materially interfere with his responsibilities to Employer. It is anticipated thatExecutive will generally devote no less than 40 hours per week to his duties for Employer unless he is on vacation or a leave of absence in accordance withthe terms of this Agreement or the Company’s policies as in effect from time to time.1.2 Term Of Employment. Unless terminated in accordance with Section 4, Executive’s employment shall automatically renew for anadditional one year term on each anniversary of the Effective Date (the period of employment hereunder shall be referred to herein as the “EmploymentTerm”). This Agreement shall continue during the Employment Term to govern the terms and conditions of Executive’s employment, unless modified by theparties hereto in writing.1.3 Termination. Executive reaffirms that Executive’s employment relationship with the Company is at will and is terminable at any timeand for any reason by either the Company or Executive, subject to the provisions hereof.12. Compensation.2.1 Base Salary. As of the Effective Date and as compensation for the proper and satisfactory performance of all duties under thisAgreement, Executive shall earn a gross annual base salary of $300,000 ($12,500 gross per bi-weekly payroll period), less applicable state and federal taxesand other authorized payroll deductions, payable in accordance with Employer’s normal payroll practices but in no event less frequently than once permonth (the “Base Salary”).2.2 Bonus. Executive will be eligible to receive potential quarterly or annual cash bonuses solely as determined (if any) from time to timeby the Board or duly authorized committee thereof (and in each case in the sole discretion of the Board or duly authorized committee thereof). Any suchbonuses will be based on the Company’s fiscal quarters or fiscal year, and will be paid to Executive within 74 days following the end of such fiscal quarter oryear. If Executive’s employment terminates before the end of a fiscal quarter or year under Section 4.2, Section 4.3 or Section 4.5, Executive shall be eligibleto receive a prorated amount of any target bonus that may be established and in effect (“Target Bonus”) for the fiscal quarter or year in which Executive’semployment with the Company terminates. If Executive’s employment terminates before the end of a fiscal quarter or year under Section 4.4, Executive shallbe eligible to receive a prorated amount of bonus actually earned in accordance with the terms and conditions of the Company’s bonus program for the fiscalquarter or year in which Executive’s employment with the Company terminates. If Executive’s employment terminates before the end of a fiscal quarter oryear under Section 4.1, Executive shall not be eligible to receive a bonus for that fiscal quarter or year. Executive’s bonus hereunder shall be calculated basedupon financial and management objectives reasonably established for Employer and Executive by the Board or a duly authorized committee thereof.2.3 Equity Incentives. Executive will be eligible to receive stock options or other equity incentives as determined from time to time bythe Board or duly authorized committee thereof, and in each case in its sole discretion and in accordance with terms and conditions determined by the Boardor duly authorized committee thereof.2.4 Unilateral Modification of Compensation. Subject to Executive’s right to resign for Good Reason under Section 4.3 of thisAgreement, Employer reserves the right to modify Executive’s cash compensation, at any time, at its sole and absolute discretion.3. Customary Fringe Benefits. Executive shall be eligible for customary and usual benefits generally available to executive level employees ofEmployer, subject to the terms and conditions set forth in the applicable benefit plan or policy, including reimbursement for all eligible out of pocketexpenses currently covered under the Company’s executive reimbursement policy. Employer reserves the right to change or eliminate any of the fringebenefits provided to executive level employees on a prospective basis at any time, at Employer’s sole and absolute discretion; provided, however, thatExecutive may, in his discretion, retain, or obtain, his personal life, accident, medical, dental, vision and/or other insurance plans and benefits, the costs ofwhich shall be reimbursed by the Company to Executive (not to exceed the total cost of comparable benefits offered by the Company to Executive and hisdependents through the Company’s plans). Executive understands that all benefits provided in this section may be reduced by, or subject to, all applicabletaxes. Executive shall be eligible for paid annual flexible time off and all paid Employer holidays, each in accordance with the Employer’s standard policiesas apply to other executive employees of the Company. Executive will be reimbursed for all reasonable, out-of-pocket business expenses incurred in theperformance of his duties on behalf of Employer subject to Executive’s compliance with the Company’s established expense reimbursement policy.Reimbursement for air travel shall be subject to the Employer’s generally applicable travel expense reimbursement policies.24. Termination.4.1 Termination For Cause By Employer. Employer may terminate Executive’s employment under this Agreement immediately at anytime for “Cause,” which shall include, but is not limited to: (a) acts or omissions constituting reckless or willful misconduct on the part of Executive withrespect to his obligations or otherwise relating to the business of Employer that causes material harm to the Company or its reputation; (b) Executive’smaterial breach of this Agreement, which breach Executive fails to cure within 30 days after receiving written notice from the Board that specifies the specificconduct giving rise to the alleged breach; (c) Executive’s conviction or entry of a plea of nolo contendere for fraud, theft or embezzlement, or any felony orcrime of moral turpitude; or (d) Executive’s willful neglect of duties, as reasonably determined by the Board, which Executive fails to cure within 30 daysafter receiving written notice from the Board that specifies the specific duties that Executive has failed to perform.4.1.1 Entitlements Upon Termination For Cause. In the event that Executive’s employment is terminated for Cause in accordance withSection 4.1, Executive shall be entitled to receive: (a) the Base Salary then in effect through the date of termination; (b) the amount of any unpaid bonus towhich Executive is then entitled pursuant to Section 2.2, if any; and (c) any expense reimbursements to which Executive is entitled by virtue of his prioremployment with Employer (collectively, (a), (b) and (c) above are referred to herein as the “Standard Entitlements”). The Standard Entitlements shall bepaid to such Executive within 30 days following termination or earlier if required by law. In the event of such termination for Cause, Executive shall not beentitled to receive (i) the Severance Payment or Accelerated Vesting and Extended Exercise Period Severance Benefit (as each are defined in Section 4.2below) or any portion thereof, or (ii) any further vesting of stock options, and all other obligations of Employer to Executive pursuant to this Agreement shallautomatically terminate and be completely extinguished.4.2 Termination Without Cause By Employer More Than Sixty Days Prior to Change of Control. Employer may terminateExecutive’s employment without Cause at any time and for any (or no) reason. If, at any time more than sixty (60) days prior to a Change of Control,Employer terminates Executive’s employment without Cause (including, for purposes of clarity, a termination by the Employer at the end of the term then ineffect under Section 1.2), Executive shall be entitled to receive the Standard Entitlements, which shall be paid to Executive within 30 days followingtermination or earlier if required by law. In addition to the above, so long as Executive timely complies with all of the conditions in Section 4.2.1 below,Executive will be entitled to an aggregate severance payment equal to the sum of (i) an amount equal to one hundred percent (100%) of the greater ofExecutive’s then Base Salary or original Base Salary, plus (ii) a portion of the Target Bonus prorated based on the number of days Executive was employedduring the period on which the Target Bonus is based, plus (iii) an amount equal to the premiums Executive would be required to pay to continue life,accident, medical, dental and vision insurance coverage under the Company’s insurance plans for Executive and his eligible dependents pursuant to theConsolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”) for a period of twelve (12) months following the date of termination,plus (iv) the amount necessary for Executive to continue life, accident, medical, dental and vision insurance benefits for Executive and his eligibledependents for insurance coverage that he personally maintained in amounts substantially similar to those which Executive was entitled to receive underSection 3 of this Agreement immediately prior to the date of termination for a period of twelve (12) months following the date of termination (withoutduplication of any reimbursements made by the Company to Executive for such coverage pursuant to clause (iii) above) (collectively, the “SeverancePayment”). Subject to Sections 5 and 10, the Severance Payment shall be paid to Executive (less applicable state and federal taxes or other payrolldeductions) in monthly installments in accordance with Employer’s regular payroll practices for the 12 months following the date of termination, providedthat such payments shall not commence before: (i) Employer receives an executed copy of the Release (defined in Section 4.2.1) from Executive; and (ii)Executive’s right to revoke the Release has lapsed under applicable law and the terms of the Release, and provided, further, that such payments shallcommence in the month following the month in which Executive’s Separation from Service occurs. As used herein, a “Separation from Service” occurswhen Executive dies, retires, or otherwise has a termination of employment with the Company that constitutes a “separation from service” within the meaningof Treasury Regulation Section 1.409A-1(h)(1), without regard to the optional alternative definitions available thereunder. Upon Executive’s termination ofemployment by the Company without Cause more than sixty (60) days prior to a Change of Control, subject to Section 5 and also subject to3Executive timely satisfying the conditions specified in Section 4.2.1, any unvested portion of Executive’s then outstanding stock options and other equity-based awards granted by the Company that would otherwise vest during the twelve (12) months following the date of such termination shall vest in full as ofthe date of such termination, and, in the case of such vested stock options (including those stock options whose vesting was accelerated pursuant to thepreceding clause), may be exercised in whole or in part at any time within one (1) year of the date of such termination without Cause, subject to earliertermination upon the expiration of the maximum term of the applicable options or in connection with a corporate transaction involving the Company to theextent provided in the Plan and/or the award agreements that evidence such options (collectively, the “Accelerated Vesting and Extended Exercise PeriodSeverance Benefit”). In the event of such termination without Cause, all of Employer’s other obligations pursuant to this Agreement except as provided inthis Section 4.2 shall terminate automatically and extinguish completely following the date of such termination without Cause.4.2.1 Conditions to Receive Severance Payment and the Accelerated Vesting and Extended Exercise Period Severance Benefit. TheSeverance Payment and the Accelerated Vesting and Extended Exercise Period Severance Benefit will be paid provided that all of the following conditionsare timely met: (i) Executive complies with all surviving provisions of this Agreement as specified in Section 12.8 below; and (ii) Executive executes within21 days following the termination of his employment (and does not revoke within any revocation period provided by applicable law) a full general release inthe form attached hereto as Exhibit A, releasing all claims, known or unknown, that Executive may have against Employer and Employer’s affiliates arisingout of or in any way related to Executive’s employment or termination of employment with Employer (the “Release”).4.3 Voluntary Resignation by Executive for Good Reason More Than Sixty Days Prior to Change of Control. If Executive notifiesEmployer in writing within 60 days following the initial existence of one of the circumstances constituting “Good Reason” (as defined in Section 4.3.1),Employer will be given 30 days from the receipt of such notice in which Employer may remedy or cure such condition. For purposes of the foregoing, ifExecutive does not timely provide notice to Employer, then Executive is deemed to have waived this right. If Employer fails to remedy or cure the conditionset forth in Executive’s notice within 30 days from the receipt of such notice, then provided Executive timely resigns his employment for Good Reason asprovided in Section 4.3.1, Executive shall be entitled to receive the Standard Entitlements, which shall be paid to Executive within 30 days followingtermination or earlier if required by law. In addition, if such resignation occurs more than sixty (60) days prior to a Change of Control and so long asExecutive timely complies with all of the conditions set forth in Sections 4.2.1 and 4.3.1, Executive will be entitled to receive the Severance Payment and theAccelerated Vesting and Extended Exercise Period Severance Benefit. Subject to Section 10, the Severance Payment shall be paid to Executive (lessapplicable state and federal taxes or other payroll deductions) in monthly installments in accordance with Employer’s regular payroll practices for the 12months immediately following the date of termination, provided that such payments shall not commence before: (i) Employer receives an executed copy ofthe Release from Executive; and (ii) Executive’s right to revoke the Release has lapsed under applicable law and the terms of the Release, and provided,further, that such payments shall commence in the month following the month in which Executive’s Separation from Service occurs. In the event of suchresignation for Good Reason, all of Employer’s other obligations pursuant to this Agreement except as provided in this Section 4.3 shall terminateautomatically and extinguish completely following the date of such resignation for Good Reason.4.3.1 Executive will be deemed to have resigned for “Good Reason” if Executive voluntarily terminates employment with the Companywithin one year after the initial occurrence of one or more of the following: (a) Employer reduces Executive’s Base Salary by more than ten percent (10%),unless the reduction is made as part of, and is generally consistent with, a general reduction of other senior executive salaries; (b) Executive’s authority, title,responsibilities and/or duties are materially reduced so that his duties are no longer consistent with the position of Senior Vice President and Chief FinancialOfficer; (c) a material breach of this Agreement by the Company; or (d) Employer relocates Executive’s principal place of work to a location more than fifty(50) miles from Employer’s current office location as of the Effective Date without his prior written approval.44.4 Voluntary Resignation By Executive without Good Reason. In the event Executive’s resignation is without Good Reason, Executiveshall be entitled to receive the Standard Entitlements (to be paid within 30 days following such resignation or earlier as required by law), but shall not beentitled to receive (i) the Severance Payment or the Accelerated Vesting and Extended Exercise Period Severance Benefit or any portion thereof, or (ii) anyfurther vesting of stock options; and all other obligations of Employer to Executive pursuant to this Agreement shall automatically terminate and becompletely extinguished.4.5 Termination Due to Executive’s Death or Disability. Executive’s employment shall terminate immediately upon Executive’s deathor Disability. Upon Executive’s death or Disability, the Company shall pay Executive (or his estate, as applicable) within 30 days after the date oftermination (or earlier to the extent required by law) the Standard Entitlements and shall allow Executive (or his estate, as applicable) to exercise any vestedbut unexercised portion of Executive’s outstanding stock options as of the date of termination of Executive’s employment within twelve (12) months afterthe termination of Executive’s employment with the Company, subject to earlier termination upon the expiration of the maximum term of the applicableoptions or in connection with a corporate transaction involving the Company to the extent provided in the Plan and/or the award agreements that evidencesuch options. For purposes of this Agreement, “Disability” shall mean Executive’s inability because of illness or incapacity, substantiated by appropriatemedical authority selected by the Company, to render the essential functions of Executive’s job as contemplated by this Agreement over a period of 180consecutive days after taking into account any reasonable accommodations that would not cause an undue burden on the Company.5. Effect of Change of Control.5.1 Benefits. If a “Change of Control” (as defined in Section 5.2) occurs and either (x) Executive remains employed with the Company asof immediately prior to the Change of Control or (y) during the period of sixty (60) days before the Change of Control, Executive’s employment with theCompany is terminated by the Company without Cause or by Executive for Good Reason, then, provided Executive provides a Release in connection withthe Change of Control (or, if earlier, Executive’s termination of employment) and otherwise complies with the conditions set forth in Section 4.2.1, Executiveshall be entitled to (a) a lump sum payment equal to one hundred fifty percent (150%) of the Executive’s annual Base Salary rate then in effect, such paymentto be made on the first business day after the Release becomes effective or, if later, promptly after the Change in Control and in all events no later than sixty(60) days after the Change of Control (provided that if such 60-day period spans two calendar years, such payment will be made in the second of such twoyears), and (b) if Executive’s employment is terminated by the Company without Cause or by Executive for Good Reason at any time on or after the date thatis sixty (60) days before the Change of Control, a lump sum payment of the amounts (without duplication) of the amounts described in clauses (iii) and (iv) ofSection 4.2, such payment to be made to Executive in a single lump sum on the first business day after the Release becomes effective (and in all events withinsixty (60) days after his Separation from Service occurs), provided that if such 60-day period spans two calendar years, the payment will be made in thesecond of such two years. In addition, any portion of Executive’s then-outstanding stock options and other equity-based awards granted by the Company thatare not vested shall immediately vest on the Change in Control and, in the case of stock options and similar awards, may be exercised in whole or in partwithin one year following the date of Executive’s termination of employment, subject to earlier termination upon the expiration of the maximum term of theapplicable options or in connection with a corporate transaction involving the Company to the extent provided in the Plan and/or the award agreements thatevidence such options. In the case of a termination of Executive’s employment described in clause (y) above of this Section 5.1, any such stock option orother equity-based award, to the extent such award had not vested and was cancelled or otherwise terminated upon or prior to the date of the related Changeof Control solely as a result of such termination of employment, shall be reinstated and shall automatically become fully vested.55.2 Change of Control Definition. A “Change of Control” is defined to have occurred if, and only if, during the Employment Term:(a)any individual, partnership, firm, corporation, association, trust, unincorporated organization or other entity or person, or anysyndicate or group deemed to be a person under Section 14(d)(2) of the Securities Exchange Act of 1934 (“Exchange Act”) is orbecomes the “Beneficial Owner” (as defined in Rule 13d-3 of the General Rules and Regulations under the Exchange Act),directly or indirectly, of securities of the Company representing 30% or more of the combined voting power of the Company’sthen outstanding securities entitled to vote in the election of directors of the Company;(b)there occurs a reorganization, merger, consolidation or other corporate transaction involving the Company (“Transaction”), ineach case, with respect to which the shareholders of the Company immediately prior to such Transaction do not, immediately afterthe Transaction, own more than fifty (50) percent of the combined voting power of the Company or other corporation resultingfrom such Transaction; or(c)there occurs a sale or other disposition of assets of the Company that account for more than fifty percent (50%) of the Company’srevenue for the immediately preceding four (4) fiscal quarters.5.3 No Duplication of Benefits. For avoidance of doubt, if a Change of Control occurs and Executive is entitled to the benefits providedin this Section 5 above, Executive will not be entitled to any severance payments or benefits (other than the Standard Entitlements) under Section 4 of thisAgreement. To the extent Executive has received any severance benefits under Section 4 of this Agreement with respect to a termination of Executive’semployment that occurs prior to a Change of Control, Executive’s benefits (if any) pursuant to this Section 5 shall be reduced on a dollar-for-dollar basis bythe amount of any such severance benefits paid to Executive pursuant to Section 4 (provided that such offset shall not apply with respect to Executive’sStandard Entitlements paid in connection with such termination of Executive’s employment). In addition, only the first Change of Control that occurs afterthe date of this Agreement will be taken into account for purposes of this Agreement, and any Change of Control that may occur thereafter will bedisregarded.6. Confidentiality/Intellectual Property Agreement And Insider Trading Policy. Executive agrees that he has read, signed, and will abide by theterms and conditions of Employer’s Confidentiality/Intellectual Property Agreement and Employer’s Insider Trading Policy.Executive recognizes that his employment with the Company will involve contact with information of substantial value to the Company whichgives the Company an advantage over its competitors who do not know or use it, including but not limited to, techniques, designs, drawings, processes,inventions, developments, equipment, prototypes, sales and customer information, and business and financial information relating to the business, products,practices and techniques of the Company (hereinafter referred to as “Confidential and Proprietary Information”). Executive will at all times regard andpreserve as confidential such Confidential and Proprietary Information obtained by Executive from whatever source and will not, either during hisemployment with the Company or thereafter, publish or disclose any part of such Confidential and Proprietary Information in any manner at any time, or usethe same except on behalf of the Company, without the prior written consent of the Company.7. Non-Competition. Except with the prior written consent of Employer, Executive will not, during the Employment Term, engage in competitionwith Employer, either directly or indirectly, in any manner or capacity, as adviser, principal, agent, partner, officer, director, employee, member of anyassociation or otherwise, in any phase of the business of developing, manufacturing and marketing of products which are in the same field of use or whichotherwise compete with the product or products actively under development by Employer. Except as permitted herein, Executive agrees not to acquire,assume or participate in, directly or indirectly, any position, investment or interest known by Executive to be adverse or6antagonistic to Employer, its business or prospects, financial or otherwise. Ownership by Executive, as a passive investment, of less than one percent (1%) ofthe outstanding shares of capital stock of any corporation with one or more classes of its capital stock listed on a national securities exchange or publiclytraded in the over-the-counter market shall not constitute a breach of this Section 7.8. Non-Solicitation. During the Employment Term and for a period of one year thereafter, irrespective of the manner of termination of employment,Executive agrees not to, directly or indirectly, separately, or in association with others: (a) interfere with, impair, disrupt, or damage Employer’s relationshipwith any of its customers by soliciting, encouraging, or causing others to solicit or encourage any of them, for the purpose of diverting or taking away thebusiness such customers have with Employer; or (b) interfere with, impair, disrupt, or damage Employer’s business by soliciting, encouraging, or causingothers to solicit or encourage, any of Employer’s employees to discontinue their employment with Employer.9. Agreement To Arbitrate. Executive and Employer agree to arbitrate any claim or dispute (“Dispute”) arising out of or in any way related to thisAgreement, the employment relationship between Employer and Executive or the termination of Executive’s employment, except as provided in Section 9.1,to the fullest extent permitted by law. Except as provided in Section 9.1, this method of resolving Disputes shall be the sole and exclusive remedy of theparties. Accordingly, the parties understand that, except as provided herein, they are giving up their rights to have their disputes decided in a court of lawand, if applicable, by a jury, and instead agree that their disputes shall be decided by an arbitrator.9.1 Scope of the Agreement. A Dispute shall include all disputes or claims between Executive and Employer arising out of, concerning orrelating to Executive’s employment by Employer, including, without limitation: claims for breach of contract, tort, discrimination, harassment, wrongfultermination, demotion, discipline, failure to accommodate, compensation or benefits claims, constitutional claims and claims for violation of any local, stateor federal law, or common law, to the fullest extent permitted by law. A Dispute shall not include any dispute or claim, whether brought by either Executiveor Employer, for: (a) workers’ compensation or unemployment insurance benefits; or (b) the exclusions from arbitration specified in the California ArbitrationAct, California Code of Civil Procedure section 1281.8. For the purpose of this Section 9, references to “Employer” include Employer and all related oraffiliated entities and their employees, supervisors, officers, directors, owners, shareholders, agents, pension or benefit plans, pension or benefit plan sponsors,fiduciaries, administrators, and the successors and assigns of any of them, and this Section 9 shall apply to them to the extent that Executive’s claims arise outof or relate to their actions on behalf of Employer.9.2 Consideration. The parties agree that their mutual promise to arbitrate any and all disputes between them, except as provided inSection 9.1, rather than litigate them before the courts or other bodies, provides adequate consideration for this Section 9.9.3 Initiation of Arbitration. Either party may initiate an arbitration proceeding by providing the other party with written notice of anyand all claims forming the basis of such proceeding in sufficient detail to inform the other party of the substance of such claims. In no event shall the requestfor arbitration be made after the date when institution of legal or equitable proceedings based on such claims would be barred by the applicable statute oflimitations.9.4 Arbitration Procedure. The arbitration will be conducted by JAMS pursuant to its Rules for the Resolution of Employment Disputesin San Diego, California by a single, neutral arbitrator. The parties are entitled to representation by an attorney or other representative of their choosing. Thearbitrator shall have the power to enter any award that could be entered by a judge of the Superior Court of the State of California, as applicable to the causeof action, and only such power. The arbitrator shall issue a written and signed statement of the basis of the arbitrator’s decision, including findings of fact andconclusions of law. The parties agree to abide by and perform any award rendered by the arbitrator. Judgment on the award may be entered in any courthaving jurisdiction thereof.79.5 Costs of Arbitration. If Executive initiates arbitration against the Employer, Executive must pay a filing fee equal to the current filingfee in the appropriate court had Executive’s claim been brought there, and the Employer shall bear the remaining costs of the filing fees and arbitrationforum, including arbitrator fees, case management fees, and forum hearing fees (the “Arbitration Fees”). If the Employer initiates arbitration againstExecutive, the Employer shall bear the entire cost of the Arbitration Fees. (Such costs do not include costs of attorneys, discovery, expert witnesses, or othercosts which Executive would have been required to bear had the matter been filed in a court.) The arbitrator may award attorneys’ fees and costs to theprevailing party, except that Executive shall have no obligation to pay any of the Arbitration Fees even if Employer is deemed the prevailing party. If there isany dispute as to whether the Employer or Executive is the prevailing party, the arbitrator will decide that issue. Any postponement or cancellation feeimposed by the arbitration service will be paid by the party requesting the postponement or cancellation, unless the arbitrator determines that such fee wouldcause undue hardship on the party. At the conclusion of the arbitration, each party agrees to promptly pay any arbitration award imposed against that party.9.6 Governing Law. All Disputes between the parties shall be governed, determined and resolved by the internal laws of the State ofCalifornia, including the California Arbitration Act, California Code of Civil Procedure 1280 et seq.9.7 Discovery. The parties may obtain discovery in aid of the arbitration to the fullest extent permitted under law, including CaliforniaCode of Civil Procedure Section 1283.05. All discovery disputes shall be resolved by the arbitrator.10. Code Section 409A. Notwithstanding anything to the contrary, if, at the time of his separation of service from Employer, Executive is a“specified employee” as defined pursuant to Section 409A of the U.S. Internal Revenue Code (the “Code”), and if the amounts that Executive is entitled toreceive pursuant to this Agreement are not otherwise exempt from Code Section 409A, then to the extent necessary to comply with Code Section 409A, nopayments for such non-exempt amounts may be made under this Agreement before the date which is six (6) months after Executive’s separation from servicefrom Employer or, if earlier, Executive’s date of death. All such amounts, which would have otherwise been required to be paid during such six (6) monthsafter Executive’s separation from service shall instead be paid (without interest) to Executive in one lump sum payment on the first business day of theseventh month after Executive’s separation from service from Employer or, if earlier, Executive’s date of death. All such remaining payments shall be madepursuant to their original terms and conditions. This Agreement is intended to comply with the applicable requirements of Code Section 409A and shall beconstrued and interpreted in accordance therewith. Employer may at any time amend this Agreement, or any payments to be made hereunder, as necessary tobe in compliance with Code Section 409A and avoid the imposition on Executive of any potential excise taxes relating to Code Section 409A. Anyreimbursements pursuant to the foregoing provisions of this Agreement shall be paid as soon as reasonably practicable and in all events not later than the endof Executive’s taxable year following the taxable year in which the related expense was incurred. Executive’s rights to reimbursement hereunder are notsubject to liquidation or exchange for another benefit and the amount of expenses eligible for reimbursement in one taxable year shall not affect the amountof expenses eligible for reimbursement in any other taxable year.811. Limitation on Payments. In the event that it is determined that any payment or distribution of any type to or for Executive’s benefit made bythe Company, by any of its affiliates, by any person who acquires ownership or effective control or ownership of a substantial portion of the Company’sassets (within the meaning of Section 280G of the Code and the regulations thereunder) or by any affiliate of such person, whether paid or payable ordistributed or distributable pursuant to the terms of an employment agreement or otherwise, would be subject to the excise tax imposed by Section 4999 ofthe Code or any interest or penalties with respect to such excise tax (such excise tax, together with any such interest or penalties, are collectively referred toas the “Excise Tax”), then such payments or distributions or benefits shall be payable either:(i) in full; or(ii) in a reduced amount with such reduced amount equal to the maximum amount payable that would result in no portion of such reducedpayments or distributions or benefits being subject to the Excise Tax.Executive shall receive the greater, on an after-tax basis, of (i) or (ii) above.Unless Executive and the Company agree otherwise in writing, any determination required under this section shall be made in writing by anindependent accountant (which may be the Company’s audit firm) selected by the Company (the “Accountant”) whose determination shall be conclusiveand binding. Executive and the Company shall furnish the Accountant such documentation and documents as the Accountant may reasonably request inorder to make a determination. The Company shall bear all costs that the Accountant may reasonably incur in connection with performing any calculationscontemplated by this section.12. General Provisions.12.1 Successors And Assigns. The rights and obligations of Employer under this Agreement shall inure to the benefit of and shall bebinding upon the successors and assigns of Employer. Executive shall not be entitled to assign any of Executive’s rights or obligations under this Agreement.12.2 Indemnification. The indemnification provisions for officers and directors under Employer’s Bylaws will (to the maximum extentpermitted by law) be extended to Executive. During the period of Executive’s employment by the Company and for a period of six years thereafter, theCompany shall keep in place a directors’ and officers’ liability insurance policy (or policies) providing comprehensive coverage to Executive to the extentthat the Company provides such coverage for any other present or former senior executive or director of the Company.12.3 Waiver. Except as provided in Section 2.4, this Agreement may not be modified or amended except by an instrument in writing,signed by Executive and by a duly authorized representative of Employer other than Executive. Either party’s failure to enforce any provision of thisAgreement shall not in any way be construed as an amendment or waiver of any such provision, or prevent that party thereafter from enforcing each and everyother provision of this Agreement.12.4 Severability. If any provision of this Agreement is held by an arbitrator or a court of law to be illegal, invalid or unenforceable, then:(a) that provision shall be deemed amended to achieve as nearly as possible the same economic effect as the original provision; and (b) the legality, validityand enforceability of the remaining provisions of this Agreement shall not be affected or impaired thereby.12.5 Interpretation; Construction. This Agreement has been drafted by Employer, but Executive has participated in the negotiation of itsterms. Furthermore, Executive acknowledges that he has had an opportunity to review and revise the Agreement and have it reviewed by legal counsel, ifdesired. Therefore, the normal rule of construction to the effect that any ambiguities are to be resolved against the drafting party shall not be employed in theinterpretation of this Agreement.12.6 Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State of California.912.7 Notices. All notices or demands of any kind required or permitted to be given by the Company or Executive under this Agreementshall be given in writing and shall be personally delivered (and receipted for) or mailed by certified mail, return receipt requested, postage prepaid, addressedas follows:IF TO THE COMPANY: IF TO EXECUTIVE: Sphere 3D Corp. Kurt Kalbfleisch 240 Matheson Blvd. East (At the address most recently Mississauga, Ontario, Canada L4Z 1X1 provided to the Company) Attn: Chief Executive OfficerAny such written notice shall be deemed received when personally delivered or three (3) days after its deposit in the United States mail as specifiedabove. Either party may change its address for notices by giving notice to the other party in the manner specified in this Section 11.7.12.8 Survival. The rights and obligations contained in Section 8 (“Non-Solicitation”) shall survive any termination or expiration of thisAgreement for a period of one (1) year, and Sections 4 (“Termination”), 6 (“Confidentiality/Intellectual Property Agreement and Insider TradingPolicy”), 9 (“Agreement to Arbitrate”), 10 (“Code Section 409A”) and 11 (“General Provisions”) shall survive any termination or expiration of thisAgreement.12.9 Entire Agreement. This Agreement constitutes the entire agreement between the parties relating to the subject matter herein andsupersedes all prior or simultaneous representations, discussions, negotiations, and agreements, whether written or oral (including, without limitation, thePrior Agreement).12.10 Counterparts. This Agreement may be executed in one or more original, facsimile or .PDF counterparts, each of which shall bedeemed an original, but all of which together shall constitute one and the same instrument.12.11 Recovery of Attorney’s Fees and Expenses. If any litigation shall occur between Executive and Employer which arises out of or asa result of this Agreement, or which seeks an interpretation of this Agreement, the prevailing party shall be entitled to recover reasonable attorneys’ fees andcosts.12.12 Tax Consequences. The Company makes no representations regarding the tax consequence of any provision of this Agreement.Executive is advised to consult with his own tax advisor with respect to the tax treatment of any payment contained in this Agreement. All payments made bythe Company under this Agreement to Executive or Executive’s estate or beneficiaries will be subject to tax withholding pursuant to any applicable laws orregulations.THE PARTIES TO THIS AGREEMENT HAVE READ THE FOREGOING AGREEMENT IN ITS ENTIRETY AND FULLY UNDERSTAND EACHAND EVERY PROVISION CONTAINED HEREIN, WHEREFORE, THE PARTIES HAVE FREELY AND VOLUNTARILY EXECUTED THIS AGREEMENTAS OF THE DATE FIRST ABOVE WRITTEN.Executive:Kurt L. Kalbfleisch Vice President and Chief Financial OfficerCompany:SPHERE 3D CORP./s/ Eric Kelly Eric Kelly Chief Executive Officer10EXHIBIT AGENERAL RELEASETHIS GENERAL RELEASE (“Release”) is entered into effective as of the date set forth below by and between Sphere 3D Corp., a corporationincorporated under the laws of the Province of Ontario (the “Company”) and Kurt L. Kalbfleisch, an individual (“Employee”), with reference to thefollowing facts:RECITALSA. The parties entered into an Amended and Restated Employment and Severance Agreement (the “Agreement”) effective as of December 18,2017, pursuant to which the parties agreed that upon the occurrence of certain conditions, Employee would become eligible for certain payments andbenefits as provided in Section 4 or Section 5 of the Agreement in exchange for Employee’s release of the Company from all claims which Employee mayhave against the Company as of the date of this Release. All capitalized terms that are not defined herein shall have the meaning set forth in the Agreement.B. The parties desire to dispose of, fully and completely, all claims which Employee may have against the Company in the manner set forth in thisRelease.RELEASES1. Consideration. The Employer shall provide Employee with certain payments and benefits in accordance with the applicable provisions ofSections 4 and 5 of the Agreement.2. Release by Employee. Employee, for himself and his heirs, successors and assigns, fully releases and discharges the Company, its officers,directors, employees, shareholders, attorneys, accountants, other professionals, insurers and agents (collectively, “Agents”), and all entities related to eachparty, including, but not limited to, heirs, executors, administrators, personal representatives, assigns, parent, subsidiary and sister corporations, affiliates,partners and co venturers (collectively, “Related Entities”), from all rights, claims, demands, actions, causes of action, liabilities and obligations of everykind, nature and description whatsoever, Employee now has, owns or holds or has at anytime had, owned or held or may have against the Company, Agentsor Related Entities from any source whatsoever, whether or not arising from or related to the facts recited in this Release. Employee specifically releases andwaives any and all claims arising under any express or implied contract, rule, regulation or ordinance, including, without limitation, Title VII of the CivilRights Act of 1964, the Civil Rights Act of 1991, the Americans with Disabilities Act, the California Fair Employment and Housing Act, the California LaborCode and the Age Discrimination in Employment Act, as amended (“ADEA”). Employee acknowledges that the Company has paid Employee all wages,bonuses, accrued unused vacation pay, options, benefits and monies owed by the Company to Employee. This release does not waive any claims for (a)indemnification and/or payment of related expenses under (i) any applicable law and/or (ii) the Company’s by laws or articles of incorporation; (b)Employee’s ownership of any Company vested stock, vested stock units or vested stock options, and/or Employee’s rights as an existing shareholder of theCompany; (c) any rights Employee has under any applicable stock option plan of the Company and/or any vested stock option, stock unit, stock purchase orother shareholder agreements with Company; (d) any vested rights or claims Employee may have under any Company-sponsored benefit plans (including,without limitation, any medical, dental, disability, life insurance or retirement plans); (e) any rights Employee may have to obtain continued health insurancecoverage or other benefits pursuant to the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”), and/or any similar state law;(f) any claims Employee may have against the Company for reimbursement of business or other expenses incurred in connection with Employee’semployment with Company; (g) any other claims which as a matter of law cannot be waived; or (h) any obligation of the Company to Employee pursuant toSections 4 or 5 of the Agreement. Notwithstanding anything to the contrary herein, nothing in this Release prohibits Employee from filing a charge with orparticipating in an investigation conducted by any state or federal government agencies. However, Employee does waive, to the maximum extent permittedby law, the right to receiveA-1any monetary or other recovery, should any agency or any other person pursue any claims on Employee’s behalf arising out of any claim released pursuant tothis Release. For clarity, and as required by law, such waiver does not prevent Employee from accepting a whistleblower award from the Securities andExchange Commission pursuant to Section 21F of the Securities Exchange Act of 1934, as amended. Employee acknowledges and agrees that he hasreceived any and all leave and other benefits that he has been and is entitled to pursuant to the Family and Medical Leave Act of 1993. Employee representsand warrants to the Company that he has not heretofore assigned or transferred to any person not a party to this Release any released matter or any part orportion thereof.3. Section 1542 Waiver. This Release is intended as a full and complete release and discharge of any and all claims that Employee may haveagainst the Company, Agents or Related Entities. In making this release, Employee intends to release each of the Company, Agents and Related Entities fromliability of any nature whatsoever for any claim of damages or injury or for equitable or declaratory relief of any kind, whether the claim, or any facts onwhich such claim might be based, is known or unknown to him. Employee expressly waives all rights under Section 1542 of the California Civil Code, whichEmployee understands provides as follows:A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HERFAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS ORHER SETTLEMENT WITH THE DEBTOR.Employee acknowledges that he may discover facts different from or in addition to those that he now believes to be true with respect to this Release.Employee agrees that this Release shall remain effective notwithstanding the discovery of any different or additional facts.4. ADEA Waiver. Employee expressly acknowledges and agrees that by entering into this Release, he is waiving any and all rights or claims thathe may have arising under the Age Discrimination in Employment Act of 1967, as amended (the “ADEA”), and that this waiver and release is knowing andvoluntary. Employee and the Company agree that this waiver and release does not apply to any rights or claims that may arise under the ADEA after the dateEmployee signs this Release. Employee further expressly acknowledges and agrees that:(a) In return for this Release, he will receive consideration beyond that which he was already entitled to receive before executing this Release;(b) He is hereby advised in writing by this Release to consult with an attorney before signing this Release;(c) He was given a copy of this Release on [_________, 2017], and informed that he had [twenty-one (21)] days within which to consider thisRelease and that if he wished to execute this Release prior to the expiration of such [21]-day period he will have done so voluntarily and with fullknowledge that he is waiving his right to have [twenty-one (21)] days to consider this Release; and that such [twenty-one (21)] day period toconsider this Release would not and will not be re-started or extended based on any changes, whether material or immaterial, that are or were made tothis Release in such [twenty-one (21)] day period after he received it;(d) He was informed that he had seven (7) days following the date of execution of this Release in which to revoke this Release, and this Releasewill become null and void if Employee elects revocation during that time. Any revocation must be in writing and must be received by the Companyduring the seven-day revocation period. In the event that Employee exercises this revocation right, neither the Company nor Employee will haveany obligation under this Release. Any notice of revocation should be sent by Employee in writing to the Company (attention [_____________]),[Address], so that it is received within the seven-day period following execution of this Release by Employee.A-2 (e) Nothing in this Release prevents or precludes Employee from challenging or seeking a determination in good faith of the validity of this waiverunder the ADEA, nor does it impose any condition precedent, penalties or costs for doing so, unless specifically authorized by federal law.5. No Undue Influence. This Release is executed voluntarily and without any duress or undue influence. Employee acknowledges that he has readthis Release and executed it with his full and free consent. No provision of this Release shall be construed against any party by virtue of the fact that suchparty or its counsel drafted such provision or the entirety of this Release.6. Governing Law. This Release is made and entered into in the State of California and accordingly the rights and obligations of the partieshereunder shall in all respects be construed, interpreted, enforced and governed in accordance with the laws of the State of California as applied to contractsentered into by and between residents of California to be wholly performed within California.7. Severability. If any provision of this Release is held to be invalid, void or unenforceable, the balance of the provisions of this Release shall,nevertheless, remain in full force and effect and shall in no way be affected, impaired or invalidated.8. Counterparts. This Release may be executed simultaneously in one or more original, facsimile, or .PDF counterparts, each of which shall bedeemed an original, but all of which together shall constitute one and the same instrument. This Release may be executed by facsimile, with originals tofollow by overnight courier.9. Dispute Resolution Procedures. Any dispute or claim arising out of this Release shall be subject to final and binding arbitration in accordancewith the procedures, terms and conditions set forth Section 9 of the Agreement, which terms are incorporated herein by reference.10. Entire Agreement. This Release constitutes the entire agreement of the parties with respect to the subject matter of this Release, and supersedesall prior and contemporaneous negotiations, agreements and understandings between the parties, oral or written; provided, however, that this Release shallnot terminate the Company’s obligations under Section 4, 5, 9, 12.2 and 12.11 of the Agreement.11. Modification; Waivers. No modification, termination or attempted waiver of this Release will be valid unless in writing, signed by the partyagainst whom such modification, termination or waiver is sought to be enforced.12. Amendment. This Release may be amended or supplemented only by a writing signed by Employee and the Company. Date: Kurt L. Kalbfleisch SPHERE 3D CORP. Date: By: Name: Eric Kelly Title: Chief Executive OfficerA-3 Exhibit 10.50September 24, 2015OFFER OF EMPLOYMENTJenny C. Yeh686 Lola LaneMountain View CA 94040Dear Jenny:Sphere3D, (the “Company”) would like to extend the following offer of employment:Position: Vice President & General CounselLocation: San Jose Office, 125 S. Market Street, San Jose, CA 95113 Reports to: Eric Kelly, Chairman & Chief Executive OfficerCompensation:Bi-Weekly: $11,538.46 (Annual $300,000) paid in accordance with our normal payroll practices and subject to normalwithholding.Bonus:You will be eligible to participate in the executive incentive plan. The incentive plan will be based on corporate and individualgoals to be established by the CEO with a target compensation of 20% of your annual base compensation. Total compensationpackage could equal $360,000. Stock Options:Subject to the approval of the Sphere 3D Board of Directors you will be granted restricted stock units of 200,000 shares of Sphere3D Common Stock. The restricted stock units will vest in six substantially equal semi-annual installments over the three yearsfollowing the first date of your employment.Additionally, the recommended RSU’s will contain language that will provide that after six months of your employment,if your employment with Sphere3D is terminated by you for Good Reason or by the Company without Cause (as defined below)during the two year period following a Change of Control (as defined below), then any unvested portion of the equity-basedawards granted by the Company to you shall vest in full as of the date of such termination. If the unvested portion of the equity isnot assumed by the acquirer in connection with a Change of Control or otherwise settled in cash or other property in connectionwith such Change of Control, then you’re unvested portion of the equity not so assumed or settled will accelerate and becomefully vested and exercisable immediately prior to the closing of such Change of Control.(a) a “Change of Control” will be defined to have occurred if, and only if, during the term of your employmentwith Overland:(i) any individual, partnership, firm, corporation, association, trust, unincorporated organization or otherentity or person, or any syndicate or group deemed to be a person under Section 14(d)(2) of the SecuritiesExchange Act of 1934 (“Exchange Act”) is or becomes the “Beneficial Owner” (as defined in Rule 13d-3 ofthe General Rules and Regulations under the Exchange Act), directly or indirectly, of securities of theCompany representing 30% or more of the combined voting power of the Company’s then outstandingsecurities entitled to vote in the election of directors of the Company (other than as a result of a purchase ofshares directly from the Company in a capital-raising transaction);(ii) there occurs a reorganization, merger, consolidation or other corporate transaction involving theCompany (“Transaction”), in each case, with respect to which the shareholders of the Company immediatelyprior to such Transaction do not, immediately after the Transaction, own more than fifty percent (50%) of thecombined voting power of the Company or other corporation resulting from such Transaction; or(iii) all or substantially all of the assets of the Company are sold, liquidated or distributed;For purposes of the foregoing, the term “Cause” shall mean: (a) acts or omissions constituting recklessor willful misconduct on your part with respect to your obligations or otherwise relating to the business of the Company thatcauses material harm to the Company or its reputation; (b) your material breach of any agreement between you and the Company,which breach you fail to cure within 30 days after receiving written notice from the Board that specifies the specific conductgiving rise to the alleged breach; (c) your conviction or entry of a plea of nolo contendere for fraud, theft or embezzlement, or anyfelony or crime of moral turpitude; or (d) your willful neglect of duties as reasonably determined by the Company, which you failto cure within 30 days after receiving written notice from the Company that specifies the specific duties that you have failed toperform.For purposes of this Agreement, “Good Reason” shall mean a voluntary termination by you of youremployment with the Company within 90 days after the initial occurrence of one or more of the following: (a) your authority,responsibilities and/or duties are materially reduced so that your duties are no longer consistent with your position as of the date ofgrant; or (b) the Company relocates your principal place of work to a location more than fifty (50) miles from the Company’scurrent office location as of the date of grant without your prior written approval; provided, however, that such a termination byyou shall not be a termination for Good Reason unless you notify the Company in writing within 60 days following the initialexistence of one of the circumstances constituting “Good Reason”, the Company is given 30 days from the receipt of such noticein which the Company may remedy or cure such condition, and the Company fails to remedy or cure the condition set forth in yournotice within 30 days of receipt of such notice. For purposes of the foregoing, if you do not timely provide notice to the Company,then you are deemed to have waived this right. At Sphere3D we strive to maintain a safe, drug-free work environment conducive to effective business operations. We require that our personnel andoperating practices be consistent with the highest standards of health and safety.Sphere3D pays 100% of your benefits and they will be effective on the 1st day of the month following your start date. Sphere3D is committed to makingavailable excellent benefit programs and family services that respond to the needs of our employees. We believe we offer a flexible and competitivepackage. You will meet with our Human Resources Department upon your arrival so that they can explain your new benefits and sign you up for coverage.The Immigration Reform and Control Act of 1986 require employers to provide verification of a new employee’s identity and employment eligibility on theirfirst day of employment. It isnecessary, therefore, that you complete the US Government and Employment Eligibility Verification Form (I-9) and provide documentation to verify youridentity and employment eligibility. In order to begin your employment with us, and as part of our normal process, please bring your I-9 documents with youon your first day of work.Your employment with Sphere3D will be “at-will”. This means that it is not for any specified period of time and can be terminated by you or by Sphere3D atany time, with or without advance notice, and for any or no particular reason or cause. It also means that your job duties, title, responsibilities, reporting level,compensation and benefits, as well as Sphere3D’s personnel policies and procedures may be changed with or without notices at any time in the solediscretion of Sphere3D, subject to benefits you may be entitled to under the Severance agreement referenced above. The “at-will” nature of your employmentwill remain unchanged during your tenure as an employee and may be changed only by an express written agreement that is signed by you and the ChiefExecutive Officer.In order to document your acceptance, please sign and return this document no later than close of business October 5, 2015via fax (408) 904-7241. Bysigning this document you hereby agree and acknowledge that you continue to be bound the terms and conditions of any agreement made by and betweenyou and your former employer(s) regarding the nondisclosure of confidential and proprietary information. Please feel free to contact Carol Dixon, VicePresident, Human Resources, at (408) 283-4760 with any additional questions. Very truly yours,/s/ Eric KellyEric Kelly Date: October 4, 2015Chairman & CEOBy signing, I understand, acknowledge and agree to the terms of this offer.Acceptance:/s/ Jenny Yeh 10/5/15Jenny C. Yeh DateMy expected start date is on or before: ______________________________ Exhibit 10.51[Company letterhead]December 18, 2017Jenny Yeh Sphere 3D Corp.125 S. Market St., Suite 1300San Jose, CA 95113Re: Retention AgreementDear Jenny:I am pleased to inform you that the Board of Directors of Sphere 3D Corp. (the “Company”) has approved a new retention arrangement for you,effective as of the date set forth above, to receive the benefits described below if either a Change in Control Event occurs or if your employment is terminatedby the Company without Cause or by you for Good Reason prior to a Change in Control Event. (Capitalized terms have the meanings given in Exhibit A tothis letter if not otherwise defined herein.). The retention benefits are subject to the terms and conditions set forth in this letter agreement (this “Agreement”).This Agreement supersedes and replaces in its entirety your severance letter agreement with the Company dated November 10, 2017 (the “PriorAgreement”).1. Change in Control Event. If a Change in Control Event occurs and you remain employed with the Company or any of its subsidiaries as ofimmediately prior to the Change in Control Event, you will be entitled to receive (a) an amount equal to twelve (12) times your monthly rate of base salary asin effect on the date of the Change in Control Event, such amount to be paid in a lump sum on the first business day after the Release becomes effective andin all events within sixty (60) days after the Change in Control Event occurs (provided that if such 60-day period spans two calendar years, such payment willbe made in the second of such two years) (the “Retention Bonus”); (b) your equity-based awards granted by the Company, to the extent then outstanding andunvested, will accelerate and fully vest (and, in the case of options and similar awards, be fully exercisable) upon (or immediately prior to) the Change inControl Event (the “Equity Acceleration”); and (c) upon a termination of your employment with the Company (or one of its successors or affiliates) on orafter the Change in Control Event either by the Company or such successor or affiliate without Cause or by you for Good Reason, you will be entitled to acash lump sum payment equal to the non-discounted present value of your expected premiums charged to continue health coverage for you (and, ifapplicable, your eligible dependents) pursuant to the Consolidated Omnibus Budget Reconciliation Act (“COBRA”) for twelve (12) months following yourtermination date (the “COBRA Benefit”), such amount to be determined by the Company in its reasonable discretion based on your coverage elections as ineffect immediately prior to your termination of employment and the estimated monthly premium for such COBRA coverage determined as of yourtermination date, such amount to be paid within sixty (60) days following your termination date (provided that if such 60-day period spans two calendaryears, such payment will be made in the second of such two years).2. Termination Without Cause or for Good Reason Prior to Change in Control Event. If, at any time prior to a Change in Control Event, youremployment with the Company or one of its subsidiaries is terminated by the Company or such subsidiary without Cause or by you for Good Reason, youwill be entitled to receive payment of the Retention Bonus and the COBRA Benefit as set forth above (calculated based on your monthly base salary rate andhealth coverage benefits, respectively, as in effect immediately prior to your termination), such amounts to be paid together within sixty (60) days followingyour termination date (provided that if such 60-day period spans two calendar years, such payment will be made in the second of such two years). In addition,you will be entitled to the Equity Acceleration provided above with respect to your equity-based awards granted by the Company that are outstanding andunvested as of such a termination of your employment.- 1 - 3. Conditions on Benefits. Notwithstanding the foregoing provisions, your right to receive any of the payments and benefits described in Sections1 and 2 above is conditioned on both (i) your signing and delivering to the Company a release of claims in a form acceptable to the Company (the “Release”)within twenty-one (21) days (or such longer period of time as is required to make the Release maximally enforceable under applicable law) after the date onwhich the Company provides the Release to you (and you not revoking such Release within any revocation period provided by applicable law), and (ii) yourcontinued compliance with your obligations to the Company under the Confidentiality and Intellectual Property Agreement dated October 5, 2015 (the“Confidentiality Agreement”). The Company will provide the form of Release to you within seven (7) days after your termination date.4. Other Terminations; No Duplication of Benefits. For purposes of clarity, if your employment with the Company or any of its subsidiariesterminates prior to a Change in Control Event for any reason other than a termination by the Company or such subsidiary without Cause or by you for GoodReason, you will not be entitled to any payments or benefits under this Agreement. In no event will you be entitled to benefits under both Sections 1 and 2 ofthis Agreement. In addition, only the first Change of Control Event that occurs after the date of this Agreement will be taken into account for purposes of thisAgreement, and any Change of Control Event that may occur thereafter will be disregarded.5. Miscellaneous. Each of the payments provided in this Agreement is subject to all applicable tax withholding. The Company will require anysuccessor (whether direct or indirect, by purchase, merger, consolidation, reorganization or otherwise, including a Change in Control Event) to all orsubstantially all of the business or assets of the Company expressly to assume and agree to perform this Agreement in the same manner and to the same extentthe Company would be required to perform if no such succession had taken place. This Agreement will be binding upon and inure to the benefit of theCompany and any such successor to the Company and will inure to the benefit of and be enforceable by your successors. Nothing contained in thisAgreement constitutes an employment or service commitment by the Company (or any of its affiliates or successors) or affects your status as an employee atwill who is subject to termination without cause at any time (subject to the provisions hereof). This Agreement, together with the Confidentiality Agreement,contains all of the terms and conditions of the retention benefits provided herein and supersedes all prior understandings and agreements, written or oral,between you and the Company and any of its affiliates with respect thereto (including, without limitation, the Prior Agreement). This Agreement may beamended only by a written agreement between you and the Company that expressly refers to this Agreement. The validity, interpretation, construction andperformance of this Agreement shall be governed by the laws of the State of California without regard to the conflicts of laws principles thereof. It is intendedthat any amounts payable under this Agreement shall either be exempt from or comply with Section 409A of the U.S. Internal Revenue Code so as not tosubject you to payment of any additional tax, penalty or interest imposed under Section 409A, and the provisions of this Agreement will be construed andinterpreted in accordance with such intent.- 2 - If this Agreement accurately reflects our understanding regarding these matters, please indicate your acceptance by where indicated below andreturning it to me. A duplicate copy of this Agreement is included for your records.SPHERE 3D CORP.By: /s/ Eric L. Kelly Print Name: Eric L. KellyTitle: Chairman and CEOAcknowledged and Agreed: Jenny YehDate: - 3 - EXHIBIT AFor purposes of this Agreement, the following definitions will apply:•“Cause” has the meaning given to such term in any employment agreement between you and the Company or any of its subsidiaries as in effecton the date of termination of your employment or, if there is no such agreement (or such agreement does not include a definition of such term),shall mean: (a) acts or omissions constituting reckless or willful misconduct on your part with respect to your obligations or otherwise relatingto the business of the Company or any of its subsidiaries that causes material harm to the Company or such subsidiary or to the reputation of theCompany or such subsidiary; (b) your material breach of any agreement between you and the Company or one of its subsidiaries, which breachyou fail to cure within thirty (30) days after receiving written notice from the Company’s Board of Directors (the “Board”) that specifies thespecific conduct giving rise to the alleged breach; (c) your conviction or entry of a plea of nolo contendere for fraud, theft or embezzlement, orany felony or crime of moral turpitude; or (d) your willful neglect of duties as reasonably determined by the Board, which you fail to cure withinthirty (30) days after receiving written notice from the Board that specifies the specific duties that you have failed to perform.•“Change in Control Event” means the occurrence of any of the following:(a)The acquisition by any individual, entity or group (within the meaning of Section 13(d)(3) or 14(d)(2) of the Securities ExchangeAct of 1934, as amended (the “Exchange Act”)) (such individual, entity or group, a “Person”) of beneficial ownership (within themeaning of Rule 13d-3 promulgated under the Exchange Act) of more than fifty percent (50%) of either (1) the then-outstandingcommon shares of the Company (the “Outstanding Company Common Shares”) or (2) the combined voting power of the then-outstanding voting securities of the Company entitled to vote generally in the election of directors (the “Outstanding CompanyVoting Securities”); provided, however, that, for purposes of this clause (a), any acquisition by any entity pursuant to a transactionthat complies with all of clauses (b)(1), (2) and (3) below shall not constitute a Change in Control Event; (b)Consummation of a reorganization, merger, statutory share exchange or consolidation or similar corporate transaction involvingthe Company or any of its Subsidiaries, a sale or other disposition of assets of the Company that account for more than fifty percent(50%) of the Company’s revenue for the immediately preceding four (4) full fiscal quarters as reflected in the Company’s financialstatements, or the acquisition of assets or stock of another entity by the Company or any of its Subsidiaries (each, a “BusinessCombination”), in each case unless, following such Business Combination, (1) all or substantially all of the individuals andentities that were the beneficial owners of the Outstanding Company Common Shares and the Outstanding Company VotingSecurities immediately prior to such Business Combination beneficially own, directly or indirectly, more than fifty percent (50%)of the then-outstanding common shares and the combined voting power of the then-outstanding voting securities entitled to votegenerally in the election of directors, as the case may be, of the entity resulting from such Business Combination (including,without limitation, an entity that, as a result of such transaction, owns the Company or assets of the Company that account formore than fifty percent (50%) of the Company’s revenue for the immediately preceding four (4) fiscal quarters as reflected in theCompany’s financial statements, either directly or through one or more subsidiaries (a “Parent”)) in substantially the sameproportions as their ownership immediately prior to such Business Combination of the Outstanding Company Common Shares andthe Outstanding Company Voting Securities, as the case may be, (2) no Person (excluding any entity resulting from such BusinessCombination or a Parent or any employee benefit plan (or related trust) of the Company or such entity resulting from suchBusiness Combination or Parent) beneficially owns, directly or indirectly, more than fifty percent (50%) of, respectively, the- 4 - then-outstanding shares of common stock of the entity resulting from such Business Combination or the combined voting powerof the then-outstanding voting securities of such entity, except to the extent that the ownership in excess of fifty percent (50%)existed prior to the Business Combination, and (3) at least a majority of the members of the board of directors or trustees of theentity resulting from such Business Combination or a Parent were members of the Board at the time of the execution of the initialagreement or of the action of the Board providing for such Business Combination; or(c)Approval by the shareholders of the Company of a complete liquidation or dissolution of the Company other than in the contextof a transaction that does not constitute a Change in Control Event under clause (b) above.•“Good Reason” has the meaning given to such term in any employment agreement between you and the Company or any of its subsidiaries asin effect on the date of termination of your employment or, if there is no such agreement (or such agreement does not include a definition ofsuch term), shall mean the occurrence (without your consent) of any one or more of the following conditions: (a) a reduction in your rate of basesalary or your target annual bonus opportunity by more than ten percent (10%) from the level in effect immediately prior to the Change inControl Event; (b) a material reduction in your authorities, duties or responsibilities from the level in effect immediately prior to the Change inControl Event; (c) a change in the geographic location of your principal office with the Company (or any subsidiary or affiliate thereof orsuccessor thereto) by more than fifty (50) miles from the location as of the Change in Control Event; or (d) any action or inaction by theCompany (or any subsidiary or affiliate thereof or successor thereto) that constitutes a material breach of the provisions of this Agreement;provided, however, that any such condition or conditions, as applicable, shall not constitute Good Reason unless (x) you provide written noticeto the Company of the condition claimed to constitute Good Reason within thirty (30) days of the initial existence of such condition(s), (y) theCompany fails to remedy such condition(s) within thirty (30) days of receiving such written notice thereof, and (z) your employment with theCompany terminates within ninety (90) days following the initial existence of the condition claimed to constitute Good Reason.- 5 - Exhibit 10.52[Company letterhead]__________, 2017_______________ _______________ _______________Re: Stay Bonus OpportunityDear __________:I am pleased to inform you that the board of directors of Sphere 3D Corp. (the “Company”) has approved an opportunity for you to receive a cashbonus in connection with a sale of the Company on the terms set forth in this letter (the “Stay Bonus”). This Stay Bonus opportunity is in addition to anyseverance or other bonus opportunity you may be entitled to receive under your existing employment or retention agreements with the Company, or awardagreements under any change in control plan or similar plan, in effect on the date hereof or entered into concurrently herewith, as the same may be amendedfrom time to time (collectively, the “Other Payments”). Capitalized terms have the meanings given in Exhibit A to this letter if not otherwise defined herein.If a Change in Control Event occurs and provided that you satisfy the requirement to provide a Release to the Company in accordance with thefollowing paragraph, you will be eligible to receive a Stay Bonus in the amount of [$_______], subject to the terms and conditions set forth in this letteragreement. Provided that you remain employed with the Company or any of its subsidiaries as of immediately prior to the Change in Control Event (the“Closing”), you will be entitled to receive a cash payment equal to fifty percent (50%) of the Stay Bonus amount. In addition, provided that you remainemployed with the Company or any of its subsidiaries through the date that is three (3) months after the date of the Closing (the “Retention Date”), you willbe entitled to receive a cash payment equal to the remaining fifty percent (50%) of the Stay Bonus amount. Notwithstanding the foregoing, in the event thatyour employment with the Company is terminated either by the Company without Cause or by you for Good Reason at any time after the date hereof andprior to the time the full amount of the Stay Bonus has been paid to you (whether or not a Change in Control Event has occurred as of the date of suchtermination) and provided that you satisfy the requirement to provide a Release to the Company in accordance with the following paragraph, you will beentitled to receive payment of any portion of the Stay Bonus amount that has not previously been paid to you. If you become entitled to receive any paymentof the Stay Bonus hereunder, such payment will be made as soon as practicable after (and in all events within sixty (60) days after) the date of the Closing orthe Retention Date, as applicable (or, if payment of the Stay Bonus is triggered by your termination of employment, the date of such termination), providedthat if the period for you to consider and not revoke the Release spans two calendar years, such payment will be made in the second of such two years.Your right to receive any payment of the Stay Bonus pursuant to the preceding paragraph is conditioned on both (i) you signing and delivering aRelease to the Company within twenty-one (21) days (or such longer period of time as is required to make the release maximally enforceable underapplicable law) after the date on which the Company provides the Release to you (and you not revoking such Release within any revocation period providedby applicable law), and (ii) your continued compliance with your obligations to the Company under the Confidentiality and Intellectual Property Agreementdated [______________]. The Company will provide the form of release to you within seven (7) days after your termination date. Any Stay Bonus payable hereunder shall be subject to all applicable withholdings and other authorized deductions. The Company will require anysuccessor (whether direct or indirect, by purchase, merger, consolidation, reorganization or otherwise, including a Change in Control Event) to all orsubstantially all of the business or assets of the Company expressly to assume and agree to perform this Agreement in the same manner and to the same extentthe Company would be required to perform if no such succession had taken place. This Agreement will be binding upon and inure to the benefit of theCompany and any such successor to the Company and will inure to the benefit of and be enforceable by your successors. Nothing contained in this letterconstitutes an employment or service commitment by the Company (or any of its affiliates or successors) or affects your status as an employee at will who issubject to termination without cause at any time (subject to the provisions hereof). This letter contains all of the terms and conditions of your Stay Bonusopportunity and supersedes all prior understandings and agreements, written or oral, between you and the Company with respect to a bonus opportunity inconnection with a Change in Control Event or similar event (provided that, as noted above, this Stay Bonus opportunity is in addition to any OtherPayments). This letter may be amended only by a written agreement, signed by an authorized officer of the Company, that expressly refers to this letter. Thevalidity, interpretation, construction and performance of this letter shall be governed by the laws of the State of California without regard to the conflicts oflaws principles thereof.If this letter accurately reflects our understanding regarding these matters, please indicate your acceptance by signing this letter below and returningit to me. A duplicate copy of this letter is included for your records.Sphere 3D Corp.By: Print Name: Title: Acknowledged and Agreed: [Name]Date: EXHIBIT AFor purposes of this Agreement, the following definitions will apply:•“Cause” has the meaning given to such term in any employment agreement between you and the Company or any of its subsidiaries as in effecton the date of termination of your employment or, if there is no such agreement (or such agreement does not include a definition of such term),shall mean: (a) acts or omissions constituting reckless or willful misconduct on your part with respect to your obligations or otherwise relatingto the business of the Company or any of its subsidiaries that causes material harm to the Company or such subsidiary or to the reputation of theCompany or such subsidiary; (b) your material breach of any agreement between you and the Company or one of its subsidiaries, which breachyou fail to cure within thirty (30) days after receiving written notice from the Company’s Board of Directors (the “Board”) that specifies thespecific conduct giving rise to the alleged breach; (c) your conviction or entry of a plea of nolo contendere for fraud, theft or embezzlement, orany felony or crime of moral turpitude; or (d) your willful neglect of duties as reasonably determined by the Board, which you fail to cure withinthirty (30) days after receiving written notice from the Board that specifies the specific duties that you have failed to perform.•“Change in Control Event” means the occurrence of any of the following:(a)The acquisition by any individual, entity or group (within the meaning of Section 13(d)(3) or 14(d)(2) of the Securities ExchangeAct of 1934, as amended (the “Exchange Act”)) (such individual, entity or group, a “Person”) of beneficial ownership (within themeaning of Rule 13d-3 promulgated under the Exchange Act) of more than fifty percent (50%) of either (1) the then-outstandingcommon shares of the Company (the “Outstanding Company Common Shares”) or (2) the combined voting power of the then-outstanding voting securities of the Company entitled to vote generally in the election of directors (the “Outstanding CompanyVoting Securities”); provided, however, that, for purposes of this clause (a), any acquisition by any entity pursuant to a transactionthat complies with all of clauses (b)(1), (2) and (3) below shall not constitute a Change in Control Event; (b)Consummation of a reorganization, merger, statutory share exchange or consolidation or similar corporate transaction involvingthe Company or any of its Subsidiaries, a sale or other disposition of assets of the Company that account for more than fifty percent(50%) of the Company’s revenue for the immediately preceding four (4) full fiscal quarters as reflected in the Company’s financialstatements, or the acquisition of assets or stock of another entity by the Company or any of its Subsidiaries (each, a “BusinessCombination”), in each case unless, following such Business Combination, (1) all or substantially all of the individuals andentities that were the beneficial owners of the Outstanding Company Common Shares and the Outstanding Company VotingSecurities immediately prior to such Business Combination beneficially own, directly or indirectly, more than fifty percent (50%)of the then-outstanding common shares and the combined voting power of the then-outstanding voting securities entitled to votegenerally in the election of directors, as the case may be, of the entity resulting from such Business Combination (including,without limitation, an entity that, as a result of such transaction, owns the Company or assets of the Company that account formore than fifty percent (50%) of the Company’s revenue for the immediately preceding four (4) fiscal quarters as reflected in theCompany’s financial statements, either directly or through one or more subsidiaries (a “Parent”)) in substantially the sameproportions as their ownership immediately prior to such Business Combination of the Outstanding Company Common Shares andthe Outstanding Company Voting Securities, as the case may be, (2) no Person (excluding any entity resulting from such BusinessCombination or a Parent or any employee benefit plan (or related trust) of the Company or such entity resulting from suchBusiness Combination or Parent) beneficially owns, directly or indirectly, more than fifty percent (50%) of, respectively, the then-outstanding shares of common stock of the entity resulting from such Business Combination or the combined voting powerof the then-outstanding voting securities of such entity, except to the extent that the ownership in excess of fifty percent (50%)existed prior to the Business Combination, and (3) at least a majority of the members of the board of directors or trustees of theentity resulting from such Business Combination or a Parent were members of the Board at the time of the execution of the initialagreement or of the action of the Board providing for such Business Combination; or(c)Approval by the shareholders of the Company of a complete liquidation or dissolution of the Company other than in the contextof a transaction that does not constitute a Change in Control Event under clause (b) above.•“Good Reason” has the meaning given to such term in any employment agreement between you and the Company or any of its subsidiaries asin effect on the date of termination of your employment or, if there is no such agreement (or such agreement does not include a definition ofsuch term), shall mean the occurrence (without your consent) of any one or more of the following conditions: (a) a reduction in your rate of basesalary or your target annual bonus opportunity by more than ten percent (10%) from the level in effect on the date hereof; (b) a materialreduction in your authorities, duties or responsibilities from the level in effect on the date hereof; (c) a change in the geographic location ofyour principal office with the Company (or any subsidiary or affiliate thereof or successor thereto) by more than fifty (50) miles from thelocation as of the date hereof; or (d) any action or inaction by the Company (or any subsidiary or affiliate thereof or successor thereto) thatconstitutes a material breach of the provisions of any written agreement between you and the Company or one of its subsidiaries; provided,however, that any such condition or conditions, as applicable, shall not constitute Good Reason unless (x) you provide written notice to theCompany of the condition claimed to constitute Good Reason within thirty (30) days of the initial existence of such condition(s), (y) theCompany fails to remedy such condition(s) within thirty (30) days of receiving such written notice thereof, and (z) your employment with theCompany terminates within ninety (90) days following the initial existence of the condition claimed to constitute Good Reason.•“Release” means the form of release agreement attached to any employment agreement between you and the Company or any of its subsidiariesas in effect on the date of termination of your employment or, if there is no such agreement (or such agreement does not include a form of releaseagreement), shall mean a release of claims in a form acceptable to the Company. Exhibit 10.53SPHERE 3D CORP.SALE BONUS PLAN1.The Plan.1.1 Purposes. The purposes of this Plan are (a) to motivate the Participants to embrace the objectives of the Company, particularly the goals ofCompany growth and the creation of value for the Company’s shareholders through one or more Qualifying Transactions as specified herein and (b) topromote the success of the Company by rewarding the Participants for their dedicated service and to provide incentives for Participants to remain in theemploy of the Company or a Subsidiary through one or more Qualifying Transactions. Capitalized terms used herein are defined in Section 4. It is intendedthat, as to any Participant that becomes entitled to a Bonus under this Plan, that such Bonus shall constitute part of the Participant’s reasonable compensationfor services rendered to the Company and its Subsidiaries prior to the applicable Qualifying Transaction.1.2 Eligibility. The Plan Administrator, in its sole discretion, shall determine which Eligible Service Providers may participate in this Plan.1.3 Administration and Authorization; Power and Procedure.1.3.1Plan Administrator. This Plan will be administered by and all Awards will be authorized by the Plan Administrator. Action of the PlanAdministrator with respect to its authority under this Plan shall be taken pursuant to a majority vote or by unanimous written consent of itsmembers. In making any determination or in taking or not taking any action under this Plan, the Plan Administrator may obtain and mayrely upon the advice of experts, including employees of and professional advisors to the Company or any of its Subsidiaries. The PlanAdministrator may delegate ministerial, non-discretionary functions to individuals who are officers, directors or employees of the Companyor any of its Subsidiaries.1.3.2Plan Awards; Interpretation; Powers of the Plan Administrator. The Plan Administrator shall have the power to make all otherdeterminations and take such other actions as contemplated by this Plan or as may be necessary or advisable for the administration of thisPlan and the effectuation of its purposes. Such actions shall include the ability to grant Awards to Participants, and reasonably determinethe form, amount and payment date of such Awards in accordance with the terms of this Plan.1.3.3No Liability. No director, officer or agent of the Company or any Subsidiary will be liable for any action, omission or decision under thisPlan taken, made or omitted in good faith.2.Bonus Awards.2.1 Award Grants. The Plan Administrator may grant one or more Bonus Units (or any fraction thereof) under this Plan to any Eligible ServiceProvider. Subject to the express provisions of this Plan, the Plan Administrator will determine the number of Bonus Units subject to each Award. Each Awardwill be evidenced by an Award Agreement signed by a duly authorized officer of the Company and, to the extent required by the Plan Administrator, by theParticipant. The Plan Administrator is not obligated to re-grant any Bonus Units that may terminate with no Bonus payable with respect thereto.1 2.2 No Right to Equity. The Bonus Units shall be used solely as a device for the measurement and determination of the amounts to be paid asBonuses under this Plan. The Bonus Units shall not be treated as property or as a trust fund of any kind. All amounts at any time attributable to any Awardshall be and shall remain the sole property of the Company, and each Participant’s rights in respect of any Award and this Plan are limited to the right toreceive payment as herein provided. With respect to any Award or other rights in respect of this Plan, no Participant shall be entitled to any voting, ownershipor other stockholder rights with respect to the Company or shall be owed any fiduciary duty by the Plan Administrator or the Company.2.3 Bonus Unit Limits. Up to 1,000 Bonus Units may be granted under this Plan. Unless the Plan Administrator otherwise expressly provides in aParticipant’s Award Agreement (or by an amendment thereto), no Participant shall have protection against any dilution that may result from the issuance ofadditional Bonus Units under this Plan up to the maximum 1,000 Bonus Unit limit.2.4 Entitlement to Bonus. In the event of a Qualifying Transaction, then, subject to the other terms and conditions of this Plan, a Participant shallbe entitled to a Bonus hereunder if either:(a)the Participant is employed by or providing services to the Company or a Subsidiary immediately prior to the Qualifying Transaction; or(b)the Participant’s employment or services was terminated by the Company or a Subsidiary without Cause or by the Participant for GoodReason, in either case during the period of one hundred twenty (120) days preceding the date of the Qualifying Transaction.It is understood that (i) there may occur multiple Qualifying Transactions, (ii) each Qualifying Transaction may include multiple payments over time, and(iii) a new Bonus Pool shall be funded under this Plan with respect to each Qualifying Transaction; provided, however, that, in the event of a Change ofControl Event that is not an Asset Sale, Bonuses under this Plan shall be payable only with respect to such Change in Control Event and, accordingly, nosubsequent Change in Control Event (or other Qualifying Transaction) after the first Change in Control Event to occur that is not an Asset Sale shall beconsidered for purposes of this Plan.2.5 Amount of Payment. If a particular Participant is entitled to a Bonus pursuant to Section 2.4, the amount of that Participant’s Bonus, subject totax withholding pursuant to Section 3.4, will equal:(a)the Bonus Pool for the applicable Qualifying Transaction, multiplied by(b)a fraction the numerator of which is the number of Bonus Units held by that Participant at the time of the Qualifying Transaction and thedenominator of which is the total number of Bonus Units that are outstanding at the time of the Qualifying Transaction.By way of example only, if a Participant holds 100 Bonus Units upon the closing of a Qualifying Transaction and there are 1,000 Bonus Unitsoutstanding at that time, the Participant would be entitled to one-tenth (10%) of the Bonus Pool for that Qualifying Transaction. By contrast, if a Participantholds 100 Bonus Units upon the closing of a Qualifying Transaction and there are 800 Bonus Units outstanding at that time, the Participant would beentitled to one-eighth (12.5%) of the Bonus Pool for that Qualifying Transaction.2 2.6 Termination of Employment or Service. Subject to the limited exception set forth in Section 2.4, a Participant must be employed by orproviding services to the Company or a Subsidiary immediately prior to a particular Qualifying Transaction in order to be eligible to receive a Bonus withrespect to that Qualifying Transaction. If a Participant’s employment or services to the Company and its Subsidiaries terminate under any othercircumstances, the Participant’s Award shall, unless otherwise expressly provided by the Plan Administrator in the Participant’s Award Agreement (or by anamendment thereto), automatically terminate as of the date of such termination of services, and the Participant shall have no right as to any Bonus withrespect to any Qualifying Transaction that may occur after the date of such termination of services. In the event an Award terminates prior to a Bonusbecoming payable with respect thereto, the Plan Administrator may (but shall not be required to) make a new Award of all or any portion of the Bonus Unitssubject to such terminated Award (in which case the new Award would apply only with respect to Qualifying Transactions that occur on or after the date ofgrant of the new Award).2.7 Payment Timing and Form. To the extent a Bonus amount is payable in respect of an Award, that amount shall be paid upon or as soon asreasonably practical after the date of the applicable Qualifying Transaction and in all events not later than five (5) business days after such date; provided,however, that in the event that proceeds from the Qualifying Transaction are subject to escrow, earn-out or other deferred payment arrangements that aresubject to a substantial risk of forfeiture (within the meaning of Section 409A of the Code), the Company may, to the extent that such a deferral does notresult in the imposition of any tax, penalty or interest pursuant to Section 409A of the Code, pay Bonus obligations on substantially the same schedule andsubject to the same conditions as proceeds are paid in connection with the Qualifying Transaction; provided, further, that the percentage of any Participant’sBonus payment that is deferred pursuant to this provision shall not exceed the percentage of the consideration payable to stockholders or the Company, asapplicable, in the Qualifying Transaction that is subject to escrow, earn-out or other deferred payment arrangements.Any Bonus payable hereunder shall be paid in cash or check at the times indicated above; provided, however, that if the consideration offered in theQualifying Transaction is not solely cash and subject to the written consent of the Participant affected thereby, the Plan Administrator may provide for theBonus (or a portion thereof) to be paid in the form of the consideration (whether cash, shares, or other securities or property or combination thereof) receivedin the Qualifying Transaction by the Company or the stockholders of the Company, as applicable, in such transaction (or the consideration received by amajority of the stockholders participating in such transaction if the stockholders were offered a choice of consideration).2.8 Adjustments. The Plan Administrator shall, to such extent (if any) and at such time as it reasonably deems appropriate and equitable in thecircumstances to preserve the intended level of benefits based on the structure and organization of the Company as of the Effective Date, adjust Bonus Unitsand Net Consideration, and Bonuses or Bonus opportunities represented by this Plan, upon or in contemplation of any sale of additional equity interests bythe Company, any merger, combination, acquisition, consolidation, sale of a portion of the business or other reorganization of the Company; any split-up,spin-off or dividend distribution in respect of the Company’s securities in the form of property; or any similar, unusual or extraordinary corporate transaction;provided, however, that (i) any adjustment under this Section 2.8 shall be subject to the written consent of the Company’s Chief Executive Officer, (ii) in thecase of such an adjustment that adversely affects an Executive Officer’s rights hereunder, such adjustment shall be further subject to the written consent of theExecutive Officer; and (iii) for purposes of clarity, no such adjustment shall be made in connection with or following any Qualifying Transaction to theextent that such adjustment with respect to the Qualifying Transaction or subsequent event would dilute the benefits intended to be conveyed by this Plan.3.Other Provisions.3.1 Status. Status as an Eligible Service Provider will not be construed as a commitment that any Award will be granted under this Plan.3 3.2 No Employment/Service Contract. Nothing contained in this Plan (or in any other document under this Plan or related to any Award) shallconfer upon any Eligible Service Provider or Participant any right to continue in the employ or other service of the Company or any Subsidiary, constituteany contract or agreement of employment or other service or affect an employee’s status as an employee at will, nor shall interfere in any way with the right ofthe Company or any Subsidiary to change such person’s compensation or other benefits, or to terminate his or her employment or other service, with orwithout cause at any time. Nothing in this Section 3.2, however, is intended to adversely affect any express independent right of such person under a separateemployment or service contract.3.3 Plan Not Funded. Awards payable under this Plan will be payable from the general assets of the Company, and no special or separate reserve,fund or deposit will be made to assure payment of such Awards. No Participant, beneficiary or other person will have any right, title or interest in any fund orin any specific asset of the Company by reason of any Award hereunder. Neither the provisions of this Plan (or of any related documents), nor the creation oradoption of this Plan, nor any action taken pursuant to the provisions of this Plan will create, or be construed to create, a trust of any kind or a fiduciaryrelationship between the Company or any of its Subsidiaries and any Participant, beneficiary or other person. To the extent that a Participant, beneficiary orother person acquires a right to receive payment pursuant to any Award hereunder, such right will be equal to but not greater than the right of any unsecuredgeneral creditor of the Company.3.4 Tax Withholding. Upon any payment of any Award, the Company shall have the right to deduct from any amount payable to the Participant(or Personal Representative or any other person entitled to receive such payment, as the case may be) the amount of any taxes that the Company or anySubsidiary may be required to withhold with respect to such Award payment. Except for any such tax withholding obligation, the Participant (or such otherperson) shall be solely responsible for any and all tax liability incurred in connection with the Award.3.5 Death Benefits. In the event a Participant’s employment or service terminates due to the Participant’s death, the termination of service rules setforth in Section 2.6 shall apply. Any Bonus (or remaining Bonus, as applicable) that the Participant may be entitled to as of the date of the Participant’s deathshall be paid to the Participant’s estate when such amount would have otherwise been paid to the Participant (had he or she continued to live) in accordancewith the other terms of this Plan.3.6 Incapacity. In the event any amount is payable under this Plan to a person for whom a Personal Representative has been legally appointed, thepayment shall be distributed to the duly appointed Personal Representative, without any duty on the part of the Plan Administrator to supervise or inquireinto the application of any funds so paid.3.7 Plan and Award Amendments and Termination. The Plan Administrator may, at any time, terminate or, from time to time, amend, modify orsuspend this Plan or an Award Agreement, in whole or in part, but only with the written consent of the Company’s Chief Executive Officer and, to the extentthat such amendment, modification, suspension or termination of this Plan or an Award Agreement may adversely affect an Executive Officer’s rightshereunder or thereunder, the written consent of such Executive Officer. No Awards may be granted during any suspension of this Plan or after termination ofthis Plan. All authority of the Plan Administrator with respect to Awards hereunder will continue during any suspension of this Plan and in respect of Awardsoutstanding upon or following the termination of this Plan. The Plan Administrator may not, however, without the written consent of the Participant affectedthereby, amend, terminate or suspend this Plan or an Award Agreement in any manner materially adverse to the Participant’s rights, benefits or bonusopportunities hereunder or thereunder. Adjustments in accordance with Section 2.8 shall not, however, require the consent of the affected Participant exceptas expressly provided in such section. Notwithstanding the foregoing provisions, if this Plan is not earlier terminated by the Plan Administrator, this Planshall automatically terminate on the fifth (5th) anniversary of the Effective Date, and no Bonuses shall be payable hereunder upon such termination; providedthat any termination of the Plan pursuant to this sentence shall not affect any Participant’s right as to a Bonus with respect to a Qualifying Transaction thatoccurred prior to such termination.4 3.8 Successors. In the event of a merger, consolidation or transfer or sale of all or substantially all of the assets of the Company with or to any otherindividual(s) or entity, this Plan shall be binding upon and inure to the benefit of such successor and such successor shall discharge and perform all thepromises, covenants, duties and obligations of the Company hereunder.3.9 Choice of Law. This Plan, the Awards, all documents evidencing Awards and all other related documents will be governed by, and construed inaccordance with, the laws of the state of California, without regard to the choice of law provisions thereof.3.10 Severability. If it is determined that any provision of this Plan or an Award Agreement is invalid and unenforceable, the remaining provisionsof this Plan and/or the Award Agreement, as applicable, will continue in effect provided that the essential economic terms of this Plan and the Award can stillbe enforced.3.11 Construction of Plan. This Plan is a negotiated bonus arrangement between the Company and each Participant. The Company and eachParticipant agree and stipulate that the rule of construction that ambiguities are to be resolved against the drafting party shall not be employed in theinterpretation of this Plan to favor the Company and/or any Participant against the other. Such agreement and stipulation by a Participant is a conditionprecedent to the Participant’s eligibility for a bonus under this Plan.3.12 Captions; Construction of Terms. Captions and headings are given to the sections and subsections of this Plan solely as a convenience tofacilitate reference. Such headings will not be deemed in any way material or relevant to the construction or interpretation of this Plan or any provisionthereof. Whenever the context may require, any pronouns used in this Plan shall include the corresponding masculine, feminine or neuter forms, and thesingular forms of nouns and pronouns shall include the plural, and vice versa.3.13 Section 409A. This Plan and each Award Agreement hereunder shall be construed and interpreted to comply with Section 409A of the Codeso as to avoid the imposition of any tax, penalties or interest under Section 409A of the Code.3.14 Section 280G.3.14.1Limitation on Benefits. Notwithstanding anything contained in this Agreement to the contrary, to the extent that the payments andbenefits provided under this Plan and benefits provided to, or for the benefit of, the Participant under any other Company plan or agreement(such payments or benefits are collectively referred to as the “Benefits”) would be subject to the excise tax (the “Excise Tax”) imposedunder Section 4999 of the Code, the Benefits shall be reduced (but not below zero) if and to the extent that a reduction in the Benefitswould result in the Participant retaining a larger amount, on an after-tax basis (taking into account federal, state and local income taxes andthe Excise Tax), than if the Participant received all of the Benefits (such reduced amount is referred to hereinafter as the “Limited BenefitAmount”). Unless the Participant shall have given prior written notice specifying a different order to the Company to effectuate the LimitedBenefit Amount, any such notice consistent with the requirements of Section 409A of the Code to avoid the imputation of any tax, penaltyor interest thereunder, the Company shall reduce or eliminate the Benefits by first reducing or eliminating those payments or benefits whichare not payable in cash and then by reducing or eliminating cash payments, in each case in reverse order beginning with payments orbenefits which are to be paid the farthest in time from the Determination (as hereinafter defined). Any notice given by the Participantpursuant to the preceding sentence shall take precedence over the provisions of any other plan, arrangement or agreement governing theParticipant’s rights and entitlements to any benefits or compensation..5 3.14.2Determination. A determination as to whether the Benefits shall be reduced to the Limited Benefit Amount pursuant to this Agreement andthe amount of such Limited Benefit Amount shall be made by the Company’s independent public accountants or another certified publicaccounting firm or executive compensation consulting firm of national reputation designated by the Company (the “Firm”) at theCompany’s expense. The Firm shall provide its determination (the “Determination”), together with detailed supporting calculations anddocumentation to the Company and the Participant within ten (10) business days of the date of termination of the Participant’semployment, if applicable, or such other time as reasonably requested by the Company or the Participant (provided the Participantreasonably believes that any of the Benefits may be subject to the Excise Tax), and if the Firm determines that no Excise Tax is payable bythe Participant with respect to any Benefits, it shall furnish the Participant with an opinion reasonably acceptable to the Participant that noExcise Tax will be imposed with respect to any such Benefits. Unless the Participant provides written notice to the Company within ten(10) business days of the delivery of the Determination to the Participant that he disputes such Determination, the Determination shall bebinding, final and conclusive upon the Company and the Participant.3.15 Effective Date. This Plan is effective as of the Effective Date.4. Definitions. Capitalized terms used in this Plan are used as defined below if not otherwise defined herein:“Aggregate Consideration” means, with respect to a particular Qualifying Transaction and without duplication, the sum of the total proceeds and otherconsideration paid or received and to be paid or received by the Company or by the stockholders of the Company (which shall include amounts paid or to bepaid into escrow or subject to earn-out or other deferred payment arrangements), including, without limitation: (a) cash; (b) notes, securities and otherproperty valued at the fair market value thereof as measured as of the date of the Qualifying Transaction; (c) any extraordinary dividends or distributions ofcash or property paid in connection with the Qualifying Transaction; and (d) any contingent consideration relating to future earnings, operations or otherfuture matters that is payable to any person or entity after and in connection with the Qualifying Transaction. For avoidance of doubt, AggregateConsideration shall not include: (x) any amounts payable in cash or other consideration under consulting, employment or other arrangements between anyacquirer and any employee, former employee, director or consultant of the Company or any of its Subsidiaries for services rendered or to be rendered after theQualifying Transaction or (y) any amount that would otherwise be Aggregate Consideration but has previously been taken into account under this Plan withrespect to a prior Qualifying Transaction. If all or any portion of the Aggregate Consideration is paid in the form of assets other than cash, the value of suchnon-cash consideration shall be the fair market value thereof as measured as of the date of the Qualifying Transaction, provided, that if such considerationincludes securities with an existing public trading market, the value thereof shall be the average of the closing price for such securities on each of the ten (10)trading days immediately preceding the last trading day prior to the Qualifying Transaction or as otherwise provided in the definitive documentation for suchQualifying Transaction.“Asset Sale” means any Qualifying Transaction that is a sale of assets (including, any portion, all or substantially all of the assets of the Company).“Award” means an award of Bonus Units authorized by and granted under this Plan.“Award Agreement” means any writing, approved by the Plan Administrator, setting forth the terms of an Award that has been duly authorized andapproved. Each Award Agreement shall be in the form attached hereto as Appendix A or such other form as the Plan Administrator may from time to timeprescribe.“Board” means the Board of Directors of the Company.“Bonus” means a bonus right or amount, as the context may require under and in accordance with this Plan.6 “Bonus Pool” means, as applied to a particular Qualifying Transaction, an amount equal to twenty percent (20%) of the Net Consideration for suchQualifying Transaction.“Bonus Unit” means a device used solely for determining bonuses to be paid out under this Plan.“Cause” has the meaning given to such term in the applicable Award Agreement.“Change in Control Event” means the occurrence of any of the following:(a)The acquisition by any individual, entity or group (within the meaning of Section 13(d)(3) or 14(d)(2) of the Exchange Act (a “Person”)) ofbeneficial ownership (within the meaning of Rule 13d-3 promulgated under the Exchange Act) of more than fifty percent (50%) of either (1)the then-outstanding common shares of the Company (the “Outstanding Company Common Shares”) or (2) the combined voting power ofthe then-outstanding voting securities of the Company entitled to vote generally in the election of directors (the “Outstanding CompanyVoting Securities”); provided, however, that, for purposes of this clause (a), any acquisition by any entity pursuant to a transaction thatcomplies with all of clauses (b)(1), (2) and (3) below shall not constitute a Change in Control Event;(b)Consummation of a reorganization, merger, statutory share exchange or consolidation or similar corporate transaction involving theCompany or any of its Subsidiaries, a sale or other disposition of assets of the Company that account for more than fifty percent (50%) ofthe Company’s revenue for the immediately preceding four (4) full fiscal quarters as reflected in the Company’s financial statements, or theacquisition of assets or stock of another entity by the Company or any of its Subsidiaries (each, a “Business Combination”), in each caseunless, following such Business Combination, (1) all or substantially all of the individuals and entities that were the beneficial owners ofthe Outstanding Company Common Shares and the Outstanding Company Voting Securities immediately prior to such BusinessCombination beneficially own, directly or indirectly, more than fifty percent (50%) of the then-outstanding common shares and thecombined voting power of the then-outstanding voting securities entitled to vote generally in the election of directors, as the case may be,of the entity resulting from such Business Combination (including, without limitation, an entity that, as a result of such transaction, ownsthe Company or assets of the Company that account for more than fifty percent (50%) of the Company’s revenue for the immediatelypreceding four (4) fiscal quarters as reflected in the Company’s financial statements, either directly or through one or more subsidiaries (a“Parent”)) in substantially the same proportions as their ownership immediately prior to such Business Combination of the OutstandingCompany Common Shares and the Outstanding Company Voting Securities, as the case may be, (2) no Person (excluding any entityresulting from such Business Combination or a Parent or any employee benefit plan (or related trust) of the Company or such entityresulting from such Business Combination or Parent) beneficially owns, directly or indirectly, more than fifty percent (50%) of,respectively, the then-outstanding shares of common stock of the entity resulting from such Business Combination or the combined votingpower of the then-outstanding voting securities of such entity, except to the extent that the ownership in excess of fifty percent (50%)existed prior to the Business Combination, and (3) at least a majority of the members of the board of directors or trustees of the entityresulting from such Business Combination or a Parent were members of the Board at the time of the execution of the initial agreement or ofthe action of the Board providing for such Business Combination; or(c)Approval by the shareholders of the Company of a complete liquidation or dissolution of the Company other than in the context of atransaction that does not constitute a Change in Control Event under clause (b) above.“Code” means the Internal Revenue Code of 1986, as amended.“Company” means Sphere 3D Corp., a corporation incorporated under the laws of the Province of Ontario, and its successors.7 “Effective Date” shall mean December 18, 2017, the date of Board approval of this Plan.“Eligible Service Provider” means any employee or consultant of the Company or a Subsidiary.“Exchange Act” means the Securities Exchange Act of 1934, as amended.“Executive Officer” means the Company’s Chief Executive Officer and the Company’s other executive officers who report directly to the Chief ExecutiveOfficer.“Good Reason” has the meaning give to such term in the applicable Award Agreement.“Net Consideration” means, with respect to a particular Qualifying Transaction, an amount equal to (a) the Aggregate Consideration for such QualifyingTransaction, minus (b) the Net Debt for such Qualifying Transaction, minus (c) the Stay Bonuses for such Qualifying Transaction, minus (d) the TransactionExpenses for such Qualifying Transaction.“Net Debt” means, with respect to a particular Qualifying Transaction, (a) the aggregate amount of the Company’s outstanding debt at the time of theQualifying Transaction (excluding any such debt that is assumed by the acquirer or any of its Subsidiaries in connection with the Qualifying Transaction),minus (b) the sum of the Company’s aggregate cash on hand, short-term investments and accounts receivable at the time of the Qualifying Transaction, minus(c) the aggregate amount that has previously been taken into account as “Net Debt” in determining the Net Consideration for each Qualifying Transaction (ifany) that occurred prior to such Qualifying Transaction.“Participant” means an Eligible Service Provider who has been granted an Award under this Plan, which Award has not terminated pursuant to Section 2.6 ofthe Plan (and, when the context so requires, any beneficiary of a deceased Participant or Personal Representative of an incapacitated Participant).“Person” means any individual, partnership, limited partnership, corporation, limited liability company, association, joint stock company, trust, jointventure, unincorporated organization or governmental entity or department, agency or political subdivision thereof.“Personal Representative” means the person or persons who, upon the disability or incompetence of a Participant, has acquired on behalf of the Participant,by legal proceeding or otherwise, the power to exercise the rights or receive benefits under this Plan by virtue of having become the legal representative ofthe Participant.“Plan” means this Sphere 3D Corp. Sale Bonus Plan, as it may hereafter be amended from time to time.“Plan Administrator” shall mean the Compensation Committee of the Board, provided that the Board may provide at any time that the Plan Administratorshall be the Board or another committee of the Board.“Qualifying Transaction” means either (a) a Change in Control Event or (b) a sale of any assets of the Company or any of its Subsidiaries, in each case if andto the extent such transaction is consummated prior to the termination of this Plan.“Stay Bonuses” means, as applied to a particular Qualifying Transaction, the aggregate amount of the bonuses payable by the Company in connection withor prior to the applicable Qualifying Transaction pursuant to the “Stay Bonus Opportunity” letter agreements entered into by the Company and certainParticipants in this Plan on or about the Effective Date; provided, however, that to the extent any such bonus has previously been taken into account indetermining the Net Consideration for any Qualifying Transaction that occurred prior to such Qualifying Transaction, such bonus amount shall not beincluded as a Stay Bonus in determining the Net Consideration for such Qualifying Transaction. For purposes of clarity, any severance, bonus or otheramounts payable by the Company pursuant to any employment, retention or similar agreement (other than the Stay Bonus Opportunity letter agreements)shall not be considered a Stay Bonus for purposes of this Plan.8 “Subsidiary” means any corporation or other entity a majority of whose outstanding voting stock or voting power is beneficially owned directly or indirectlyby the Company.“Transaction Expenses” means, as applied to a particular Qualifying Transaction, the aggregate amount of the expenses incurred by the Company forinvestment banking, financial advisory or legal services, in each case, in connection with the applicable Qualifying Transaction (and shall not include anyfees for any such services that were not incurred in connection with a Qualifying Transaction); provided, however, that to the extent any such expense haspreviously been taken into account in determining the Net Consideration for any Qualifying Transaction that occurred prior to such Qualifying Transaction,such expense shall not be included as a Transaction Expense in determining the Net Consideration for such Qualifying Transaction.9 APPENDIX A FORM OF AWARD AGREEMENTSPHERE 3D CORP.SALE BONUS PLANAWARD AGREEMENTTHIS AWARD AGREEMENT (this “Agreement”) is entered into as of __________ by and between Sphere 3D Corp., a corporation incorporatedunder the laws of the Province of Ontario (the “Company”), and ______________ (the “Participant”).The Company hereby grants to the Participant an award (this “Award”) under the Sphere 3D Corp. Sale Bonus Plan (the “Plan”). This Award issubject to all of the terms and conditions set forth in this Agreement and in the Plan. The Participant does hereby accept the Award on such terms andconditions. Capitalized terms not defined herein are defined in the Plan.The number of Bonus Units covered by this Award is [_____].1.Continuance of Services Required. The Bonus opportunity represented by this Award is subject to the termination of service rules set forth inSection 2.6 of the Plan. Employment for only a portion of any period, even if a substantial portion of such period, will not entitle the Participant toany proportionate payment or other rights with respect to the Award.2.Amount, Timing and Manner of Payment. The amount, timing and manner of payment of the Participant’s Bonus (if any) with respect to thisAward shall be calculated in accordance with the Plan, including, without limitation, Sections 2.4, 2.5, 2.6, 2.7, 2.8, 3.4 and 3.14.3.Definition of Cause. For purposes of this Award, “Cause” has the meaning given to such term in any employment agreement between the Participantand the Company or any of its Subsidiaries as in effect on the date of grant of this Award or, if there is no such agreement (or such agreement doesnot include a definition of such term), shall mean: (a) acts or omissions constituting reckless or willful misconduct on the Participant’s part withrespect to the Participant’s obligations or otherwise relating to the business of the Company or any of its Subsidiaries that causes material harm tothe Company or such Subsidiary or to the reputation of the Company or such Subsidiary; (b) the Participant’s material breach of any agreementbetween the Participant and the Company or one of its Subsidiaries, which breach the Participant fails to cure within thirty (30) days after receivingwritten notice from the Board that specifies the specific conduct giving rise to the alleged breach; (c) the Participant’s conviction or entry of a pleaof nolo contendere for fraud, theft or embezzlement, or any felony or crime of moral turpitude; or (d) the Participant’s willful neglect of duties asreasonably determined by the Board, which the Participant fails to cure within thirty (30) days after receiving written notice from the Board thatspecifies the specific duties that the Participant has failed to perform.4.Definition of Good Reason. For purposes of this Award, “Good Reason” has the meaning given to such term in any employment agreement betweenthe Participant and the Company or any of its subsidiaries as in effect on the date of grant of this Award or, if there is no such agreement (or suchagreement does not include a definition of such term), shall mean the occurrence (without the Participant’s consent) of any one or more of thefollowing conditions: (a) a reduction in the Participant’s rate of base salary or the Participant’s target annual bonus opportunity by more than tenpercent (10%) from the level in effect on the Effective Date; (b) a material reduction in the Participant’s authorities, duties or responsibilities fromthe level in effect on the Effective Date; (c) a change in the geographic location of the Participant’s principal office with the Company (or anysubsidiary or affiliate thereof or successor thereto) by more than fifty (50) miles from the location as of the Effective Date; or (d) any action orinaction by the Company (or anysubsidiary or affiliate thereof or successor thereto) that constitutes a material breach of the provisions of any written agreement between theParticipant and the Company or one of its Subsidiaries; provided, however, that any such condition or conditions, as applicable, shall not constituteGood Reason unless (x) the Participant provides written notice to the Company of the condition claimed to constitute Good Reason within thirty(30) days of the initial existence of such condition(s), (y) the Company fails to remedy such condition(s) within thirty (30) days of receiving suchwritten notice thereof, and (z) the Participant’s employment with the Company terminates within ninety (90) days following the initial existence ofthe condition claimed to constitute Good Reason.5.No Right to Equity; Plan Not Funded. With respect to the Plan, this Agreement and the Bonus Units granted hereunder, the Participant (a) has novoting or other ownership rights with respect to the Company and (b) is owed no fiduciary duty by the Company or the Plan Administrator. Inaccordance with Section 3.3 of the Plan, Awards payable under this Agreement will be payable from the general assets of the Company, and nospecial or separate reserve, fund or deposit will be made to assure payments of this Award. No Participant, beneficiary or other person will have anyright, title or interest in any fund or in any specific asset of the Company by reason of this Agreement. To the extent that a Participant, beneficiary orother person acquires a right to receive payment pursuant to this Agreement, such right will be the same as and no greater than the right of anyunsecured general creditor of the Company.6.No Employment/Service Commitment. Nothing contained in this Agreement or the Plan constitutes an employment or service commitment by theCompany or any Subsidiary, affects the Participant’s status as an employee at will who is subject to termination without cause, confers upon theParticipant any right to remain employed by or in service to the Company or any Subsidiary, interferes in any way with the right of the Company orany Subsidiary at any time to terminate such employment or service, or affects the right of the Company or any Subsidiary to increase or decrease theParticipant’s other compensation. If the Participant is employed by a Subsidiary (and not by the Company) and that entity ceases for any reason tobe a Subsidiary, then the Participant shall thereupon be deemed to have terminated employment with the Company and its Subsidiaries for purposesof the Plan (unless, in connection with such event, the Participant otherwise becomes employed by the Company or another Subsidiary thatcontinues as such following the event).7.The Plan. The grant of this Award and any payment in respect hereof are subject to, and the Company and the Participant agree to be bound by, theprovisions of the Plan. The provisions of the Plan are incorporated herein by this reference. In the event of a conflict or inconsistency between theterms and conditions of this Agreement and the Plan, the terms and conditions of the Plan shall govern. The Participant acknowledges receiving acopy of the Plan and reading its provisions, and agrees to be bound by the terms thereof and of this Agreement. Provisions of the Plan that grantdiscretionary authority to the Plan Administrator shall not create any rights in the Participant, unless such rights are expressly set forth herein or areotherwise in the sole discretion of the Plan Administrator so conferred by appropriate action of the Plan Administrator under the Plan after the datehereof.8.Non-Transferability; Successors. This Award and any other rights of the Participant under this Agreement and/or the Plan are nontransferable,except in accordance with the death benefit and incapacity provisions set forth in Sections 3.5 and 3.6 of the Plan, respectively. In the event of amerger, consolidation or transfer or sale of all or substantially all of the assets of the Company with or to any other individual(s) or entity, thisAgreement shall be binding upon and inure to the benefit of such successor and such successor shall discharge and perform all the promises,covenants, duties and obligations of the Company hereunder.9.Entire Agreement. This Agreement and the Plan together constitute the entire agreement and supersede all prior understandings and agreements,written or oral, of the parties hereto with respect to the subject matter hereof.ii 10.Governing Law.10.1 California Law. The interpretation, performance and enforcement of this Agreement shall be governed by the laws of the State of California,without regard to conflict of law principles thereunder.10.2 Construction. The Participant acknowledges and agrees that this Agreement and the Plan will be construed in accordance with Section 3.11 ofthe Plan.10.3 Severability. If it is determined that any provision of this Agreement or the Plan is invalid and unenforceable, the remaining provisions of thisAgreement and/or the Plan, as applicable, will continue in effect provided that the essential economic terms of this Agreement and the Plan canstill be enforced.[Remainder of page intentionally left blank]iii IN WITNESS WHEREOF, the parties have executed this Agreement as of the date and year written above.PARTICIPANT SPHERE 3D CORP. By: SignaturePrint Name: Print Name Title: iv Exhibit 10.54SPHERE 3D CORP. 2015 PERFORMANCE INCENTIVE PLANRESTRICTED STOCK UNIT AWARD AGREEMENTTHIS RESTRICTED STOCK UNIT AWARD AGREEMENT (this “Agreement”) dated as of December 18, 2017 by and between Sphere 3D Corp.,a corporation incorporated under the laws of the Province of Ontario (the “Corporation”), and [NAME] (the “Grantee”) evidences the award (the “Award”)granted by the Corporation to the Grantee as to the number of the Corporation’s stock units (“Stock Units”) first set forth below.Number of Stock Units: 1 [NUMBER] Award Date: December 18, 2017Vesting Commencement Date: December 18, 2017Vesting1 Subject to Section 6 below, the Stock Units subject to the Award will vest in six (6) equalinstallments, with the first installment vesting six (6) months after the Vesting Commencement Dateand an additional installment vesting at the end of each six-month period thereafter:The Award is granted under the Sphere 3D Corp. 2015 Performance Incentive Plan (including the Canadian Residents Addendum thereto, ifapplicable), as amended from time to time (the “Plan”), and subject to the Terms and Conditions of Restricted Stock Units (the “Terms”) attached to thisAgreement (incorporated herein by this reference) and to the Plan. The Award has been granted to the Grantee in addition to, and not in lieu of, any otherform of compensation otherwise payable or to be paid to the Grantee. Capitalized terms are defined in the Plan if not defined herein. The parties agree to theterms of the Award set forth herein. The Grantee acknowledges receipt of a copy of the Terms, the Plan and the Prospectus for the Plan.As used herein, the term “stock unit” means a non-voting unit of measurement which is deemed for bookkeeping purposes to be equivalent to oneoutstanding Common Share of the Corporation (subject to adjustment as provided in Section 7.1 of the Plan) solely for purposes of the Plan and thisAgreement. The Stock Units shall be used solely as a device for the determination of the payment to eventually be made to the Grantee if such Stock Unitsvest pursuant to the terms hereof. The Stock Units shall not be treated as property or as a trust fund of any kind.“GRANTEE”_____________________________________Signature Print NameSPHERE 3D CORP.a corporation incorporated under the laws of the Province of OntarioBy:__________________________________Print Name:Title:Subject to adjustment under Section 7.1 of the Plan.SPHERE 3D CORP. 2015 PERFORMANCE INCENTIVE PLANTERMS AND CONDITIONS OF RESTRICTED STOCK UNITS1.Vesting. Subject to Section 6 below, the Award shall vest and become nonforfeitable as set forth on the cover page of this Agreement.2. Continuance of Employment/Service. The vesting schedule requires continued employment or service through each applicable vesting date asa condition to the vesting of the applicable installment of the Award and the rights and benefits under this Agreement. Employment or service for only aportion of the vesting period, even if a substantial portion, will not entitle the Grantee to any proportionate vesting or avoid or mitigate a termination ofrights and benefits upon or following a termination of employment or services as provided in Section 6 below or under the Plan.Nothing contained in this Agreement or the Plan constitutes an employment or service commitment by the Corporation, affects the Grantee’s statusas an employee at will who is subject to termination without cause, confers upon the Grantee any right to remain employed by or in service to theCorporation or any Subsidiary, interferes in any way with the right of the Corporation or any Subsidiary at any time to terminate such employment orservices, or affects the right of the Corporation or any Subsidiary to increase or decrease the Grantee’s other compensation or benefits. Nothing in thisAgreement, however, is intended to adversely affect any independent contractual right of the Grantee without his or her consent thereto.3. No Dividend and Voting Rights. The Grantee shall have no rights as a shareholder of the Corporation, no dividend rights and no voting rights,with respect to the Stock Units and any Common Shares underlying or issuable in respect of such Stock Units until such Common Shares are actually issuedto and held of record by the Grantee. No adjustments will be made for dividends or other rights of a holder for which the record date is prior to the date ofissuance of such shares.4. Restrictions on Transfer. Except as provided in Section 5.7 of the Plan, neither the Award, nor any interest therein or amount or shares payablein respect thereof may be sold, assigned, transferred, pledged or otherwise disposed of, alienated or encumbered, either voluntarily or involuntarily. Thetransfer restrictions in the preceding sentence shall not apply to (a) transfers to the Corporation, or (b) transfers by will or the laws of descent and distribution.5. Timing and Manner of Payment of Stock Units. Each Stock Unit that becomes vested pursuant to the terms hereof (the date of such vesting, the“Vesting Date” of such Stock Unit) will be paid on or as soon as practicable after the Vesting Date (and in all events within two and one-half monthsfollowing the Vesting Date). In payment of the Stock Units, the Corporation shall deliver to the Grantee a number of Common Shares (either by deliveringone or more certificates for such shares or by entering such shares in book entry form, as determined by the Corporation in its discretion, and such shares to beissued from treasury if and to the extent required by the Canadian Residents Addendum to the Plan) equal to the number of Stock Units subject to this Awardthat vest on the applicable Vesting Date, unless such Stock Units terminate prior to the given Vesting Date pursuant to Section 6. The Corporation’sobligation to deliver Common Shares or otherwise make payment with respect to vested Stock Units is subject to the condition precedent that the Grantee orother person entitled under the Plan to receive any shares with respect to the vested Stock Units deliver to the Corporation any representations or otherdocuments or assurances required pursuant to Section 8.1 of the Plan. The Grantee shall have no further rights with respect to any Stock Units that are paid orthat terminate pursuant to Section 6.16. Effect of Termination of Employment or Service; Change in Control Event.(a) General. Except as provided in Section 6(b) below, the Grantee’s Stock Units shall terminate to the extent such units have not becomevested prior to the Grantee’s Termination Date (as defined below). If any unvested Stock Units are terminated hereunder, such Stock Units shall automaticallyterminate and be cancelled as of the Termination Date without payment of any consideration by the Corporation and without any other action by the Grantee,or the Grantee’s beneficiary or personal representative, as the case may be. For these purposes, “Termination Date” means the Grantee’s last day of actual andactive employment or service with the Corporation or any of its Subsidiaries. For greater certainty, no period of notice of termination, if any, or payment inlieu of notice that is given or ought to have been given pursuant to the Grantee’s applicable employment agreement, contract for service or at law that followsor is in respect of a period after the last date of actual and active employment will be considered as extending Grantee’s period of employment or services forpurposes of determining the Grantee’s entitlement under the Award.(b) Acceleration Upon Certain Events.(1) Notwithstanding Section 6(a), if either (i) a Change in Control Event occurs and the Grantee’s employment or service with theCorporation or one of its Subsidiaries continues through the date of the Change in Control Event or (ii) prior to a Change in Control Event,the Grantee’s employment or service with the Corporation or one of its Subsidiaries terminates due to (x) the Grantee’s Disability or death,(y) a termination by the Corporation or such Subsidiary without Cause or (z) a termination by the Grantee for Good Reason, the Stock Units,to the extent then outstanding and unvested, shall vest in full upon the date of the Change in Control Event or the Grantee’s TerminationDate, as applicable.(2) Notwithstanding any other provision herein or in the Plan, as a condition precedent to any acceleration of vesting pursuant toSection 6(b)(1), the Grantee shall provide the Corporation with a valid, executed general release agreement in the form attached to anyemployment, severance, retention or similar agreement the Grantee may have with the Corporation or any of its Subsidiaries in effect on theAward Date (or, if there is no such agreement or no such form of release attached thereto, in a form acceptable to the Corporation), and suchrelease shall have not been revoked pursuant to any revocation rights afforded by applicable law. The Corporation shall provide the finalform of release agreement to the Grantee not later than seven (7) days following the date of the event that triggers such accelerated vestingof the Stock Units, and the Grantee shall be required to execute and return such release to the Corporation within twenty-one (21) days (orforty-five (45) days if such longer period of time is required to make the release maximally enforceable under applicable law) after theCorporation provides the form of release to the Grantee. If the period for the Grantee to provide such release spans two calendar years, thenthe payment of the Stock Units as provided in Section 5 shall in all events be made in the second of such two years.(c) Defined Terms. For purposes of this Agreement, the terms Cause, Good Reason, Disability and Change in Control Event have themeanings given to such terms on Exhibit A hereto.7. Adjustments Upon Specified Events. Upon the occurrence of certain events relating to the Corporation’s stock contemplated by Section 7.1 ofthe Plan (including, without limitation, an extraordinary cash dividend on such stock), the Administrator shall make adjustments in accordance with suchsection in the number of Stock Units then outstanding and the number and kind of securities that may be issued in respect of the Award.28. Tax Withholding. The Corporation shall reasonably determine the amount of any federal, state, local or other income, employment, or othertaxes which the Corporation or any of its Subsidiaries may reasonably be obligated to withhold with respect to the grant, vesting or other event with respectto the Stock Units. If such withholding event occurs in connection with the distribution of Common Shares in respect of the Stock Units and subject tocompliance with all applicable laws, the Grantee hereby agrees that the appropriate number of whole shares, valued at their then fair market value (with the“fair market value” of such shares determined in accordance with the applicable provisions of the Plan), to satisfy any withholding obligations of theCorporation or its Subsidiaries with respect to such distribution at the minimum applicable withholding rates (such number of shares, the “MinimumWithholding Shares”) shall automatically be sold by or on behalf of the Grantee on the open market and the proceeds of such sale shall be promptly remittedto the Corporation to satisfy such tax withholding obligations. In the event the Grantee has (prior to the applicable Vesting Date) entered into an irrevocablearrangement (on terms reasonably acceptable to the Corporation) with a third-party broker to use the proceeds of a sale of Common Shares on the market toprovide for tax withholding in connection with any payment of the Stock Units and has provided the terms of such arrangement to the Corporation (a“Broker Arrangement”), the Grantee and the Corporation agree that, at the time of such payment of the Stock Units, the Corporation will deliver to theGrantee’s designated broker a number of whole Common Shares equal to the Minimum Withholding Shares. If there is no such Broker Arrangement in placeon the applicable Vesting Date, such sale of the Minimum Withholding Shares shall be conducted through a broker designated by the Corporation. TheGrantee shall execute such documents as may reasonably be requested by the Corporation or the broker, as applicable, in order to implement suchtransactions and shall otherwise comply with the administrative rules and procedures established by the Corporation with respect to such transactions. If,however, any withholding event occurs with respect to the Stock Units other than in connection with the distribution of shares of Common Stock in respectof the Stock Units, or if the Corporation’s withholding obligations cannot be satisfied by such market sale or such withholding and reacquisition of shares asdescribed above because such a sale, withholding or reacquisition, as the case may be, would cause the Corporation to violate applicable law, theCorporation shall be entitled to require a cash payment by or on behalf of the Grantee and/or to deduct from other compensation payable to the Grantee theamount of any such withholding obligations.9. Limitation on Benefits; Section 280G. Notwithstanding any other provision herein or in the Plan, the benefits under this Award are subject tothe provisions of Exhibit B hereto.10. Notices. Any notice to be given under the terms of this Agreement shall be in writing and addressed to the Corporation at its principal office tothe attention of the Secretary, and to the Grantee at the Grantee’s last address reflected on the Corporation’s records, or at such other address as either partymay hereafter designate in writing to the other. Any such notice shall be given only when received, but if the Grantee is no longer an employee of or inservice to the Corporation, shall be deemed to have been duly given by the Corporation when enclosed in a properly sealed envelope addressed as aforesaid,registered or certified, and deposited (postage and registry or certification fee prepaid) in a post office or branch post office regularly maintained by theUnited States Government.11. Plan. The Award and all rights of the Grantee under this Agreement are subject to the terms and conditions of the provisions of the Plan(including, for greater certainty and to the extent applicable, the Canadian Residents Addendum to the Plan), incorporated herein by this reference. In theevent of any conflict between the provisions of the Plan and this Option Agreement, the provisions of the Plan shall control. The Grantee agrees to be boundby the terms of the Plan and this Agreement. The Grantee acknowledges having read and understanding the Plan, the Prospectus for the Plan, and thisAgreement. Unless otherwise expressly provided in other sections of this Agreement, provisions of the Plan that confer discretionary authority on the Boardor the Administrator do not (and shall not be deemed to) create any rights in the Grantee unless such rights are expressly set forth herein or are otherwise inthe sole discretion of the Board or the Administrator so conferred by appropriate action of the Board or the Administrator under the Plan after the date hereof.312. Entire Agreement; Amendment. This Agreement and the Plan together constitute the entire agreement and supersede all prior understandingsand agreements, written or oral, of the parties hereto with respect to the subject matter hereof. The Plan and this Agreement may be amended pursuant toSection 8.6 of the Plan. Such amendment must be in writing and signed by the Corporation. The Corporation may, however, unilaterally waive any provisionhereof in writing to the extent such waiver does not adversely affect the interests of the Grantee hereunder, but no such waiver shall operate as or be construedto be a subsequent waiver of the same provision or a waiver of any other provision hereof. Notwithstanding the foregoing, the Corporation may, without theconsent of the Grantee, amend the tax-withholding procedures set forth in Section 8 above to provide that the Corporation’s tax withholding obligations inconnection with a distribution of Common Shares in respect of the Stock Units shall be satisfied by the Corporation reducing the number of Common Sharessubject to such distribution by the number of the Minimum Withholding Shares (as opposed to a market sale of such shares); provided, however, that if theCorporation adopts such an amendment of the procedures set forth in Section 8, such procedures shall not be further amended within the one-year periodthereafter.13. Limitation on Grantee’s Rights. Participation in the Plan confers no rights or interests other than as herein provided. This Agreement createsonly a contractual obligation on the part of the Corporation as to amounts payable and shall not be construed as creating a trust. Neither the Plan nor anyunderlying program, in and of itself, has any assets. The Grantee shall have only the rights of a general unsecured creditor of the Corporation with respect toamounts credited and benefits payable, if any, with respect to the Stock Units, and rights no greater than the right to receive the Common Shares as a generalunsecured creditor with respect to Stock Units, as and when payable hereunder.14. Counterparts. This Agreement may be executed simultaneously in any number of counterparts, each of which shall be deemed an original butall of which together shall constitute one and the same instrument.15. Section Headings. The section headings of this Agreement are for convenience of reference only and shall not be deemed to alter or affect anyprovision hereof.16. Governing Law. This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of Californiawithout regard to conflict of law principles thereunder.17. Construction. It is intended that the terms of the Award will not result in the imposition of any tax liability pursuant to Section 409A of theCode. The Award is intended as a “short-term deferral” under Section 409A of the Code, and this Agreement shall be construed and interpreted consistentwith that intent.18. Language. The parties hereto have agreed that this Agreement and the Plan be drafted in English. Les parties aux présentes ont convenu que leprésent document et les règles du régime soient rédigés en anglais.19. No Advice Regarding Grant. The Grantee is hereby advised to consult with his or her own tax, legal and/or investment advisors with respectto any advice the Grantee may determine is needed or appropriate with respect to the Stock Units (including, without limitation, to determine the foreign,state, local, estate and/or gift tax consequences with respect to the Award). Neither the Corporation nor any of its officers, directors, affiliates or advisorsmakes any representation (except for the terms and conditions expressly set forth in this Award Agreement) or recommendation with respect to the Award.Except for the withholding rights set forth in Section 8 above, the Grantee is solely responsible for any and all tax and other liability that may arise withrespect to the Award or any sale of shares issued or delivered with respect to the Award.20. Insider Trading Rules. The Grantee hereby acknowledges being subject to all applicable laws, rules and regulations, as well as Corporationpolicies, regarding insider trading.4EXHIBIT ADEFINED TERMSFor purposes of this Agreement, the following definitions shall apply:•“Cause” has the meaning given to such term in any employment agreement between the Grantee and the Corporation or any of its Subsidiariesas in effect on the Award Date or, if there is no such agreement (or such agreement does not include a definition of such term), shall mean:(a) acts or omissions constituting reckless or willful misconduct on the Grantee’s part with respect to the Grantee’s obligations or otherwiserelating to the business of the Corporation or any of its Subsidiaries that causes material harm to the Corporation or such Subsidiary or to thereputation of the Corporation or such Subsidiary; (b) the Grantee’s material breach of any agreement between the Grantee and the Corporationor one of its Subsidiaries, which breach the Grantee fails to cure within thirty (30) days after receiving written notice from the Board thatspecifies the specific conduct giving rise to the alleged breach; (c) the Grantee’s conviction or entry of a plea of nolo contendere for fraud, theftor embezzlement, or any felony or crime of moral turpitude; or (d) the Grantee’s willful neglect of duties as reasonably determined by the Board,which the Grantee fails to cure within thirty (30) days after receiving written notice from the Board that specifies the specific duties that theGrantee has failed to perform.•“Good Reason” has the meaning given to such term in any employment agreement between the Grantee and the Corporation or any of itsSubsidiaries as in effect on the Award Date or, if there is no such agreement (or such agreement does not include a definition of such term), shallmean the occurrence (without the Grantee’s consent) of any one or more of the following conditions: (a) a reduction in the Grantee’s rate of basesalary or the Grantee’s target annual bonus opportunity by more than ten percent (10%) from the level in effect on the Award Date; (b) a materialreduction in the Grantee’s authorities, duties or responsibilities from the level in effect on the Award Date; (c) a change in the geographiclocation of the Grantee’s principal office with the Corporation (or any subsidiary or affiliate thereof or successor thereto) by more than fifty (50)miles from the location as of the Award Date; or (d) any action or inaction by the Corporation (or any subsidiary or affiliate thereof or successorthereto) that constitutes a material breach of the provisions of any written agreement between the Grantee and the Corporation or one of itsSubsidiaries; provided, however, that any such condition or conditions, as applicable, shall not constitute Good Reason unless (x) the Granteeprovides written notice to the Corporation of the condition claimed to constitute Good Reason within thirty (30) days of the initial existence ofsuch condition(s), (y) the Corporation fails to remedy such condition(s) within thirty (30) days of receiving such written notice thereof, and (z)the Grantee’s employment with the Corporation terminates within ninety (90) days following the initial existence of the condition claimed toconstitute Good Reason.•“Disability” has the meaning given to such term (or a similar term) in any employment agreement between the Grantee and the Corporation orany of its Subsidiaries as in effect on the Award Date or, if there is no such agreement (or such agreement does not include a definition of suchterm), shall mean the Grantee (as determined solely by the Administrator on the basis of such medical evidence as the Administrator deemswarranted under the circumstances) is unable to engage in any substantial gainful activity by reason of any medically determinable physical ormental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not lessthan twelve (12) months.•“Change in Control Event” means any of the following:(i)The acquisition by any individual, entity or group (within the meaning of Section 13(d)(3) or 14(d)(2) of the Exchange Act (a“Person”)) of beneficial ownership (within the meaning of Rule 13d-3 promulgated under the Exchange Act) of more than fifty percent(50%) of either (1) the then-outstanding common shares of the Corporation (the “Outstanding Company Common Shares”) or (2) thecombined voting5power of the then-outstanding voting securities of the Corporation entitled to vote generally in the election of directors (the“Outstanding Company Voting Securities”); provided, however, that, for purposes of this clause (i), any acquisition by any entitypursuant to a transaction that complies with all of clauses (ii)(1), (2) and (3) below shall not constitute a Change in Control Event;(ii)Consummation of a reorganization, merger, statutory share exchange or consolidation or similar corporate transaction involving theCorporation or any of its Subsidiaries, a sale or other disposition of assets of the Corporation that account for more than fifty percent(50%) of the Corporation’s revenue for the immediately preceding four (4) full fiscal quarters as reflected in the Corporation’s financialstatements, or the acquisition of assets or stock of another entity by the Corporation or any of its Subsidiaries (each, a “BusinessCombination”), in each case unless, following such Business Combination, (1) all or substantially all of the individuals and entitiesthat were the beneficial owners of the Outstanding Company Common Shares and the Outstanding Company Voting Securitiesimmediately prior to such Business Combination beneficially own, directly or indirectly, more than fifty percent (50%) of the then-outstanding common shares and the combined voting power of the then-outstanding voting securities entitled to vote generally in theelection of directors, as the case may be, of the entity resulting from such Business Combination (including, without limitation, anentity that, as a result of such transaction, owns the Corporation or assets of the Corporation that account for more than fifty percent(50%) of the Corporation’s revenue for the immediately preceding four (4) fiscal quarters as reflected in the Corporation’s financialstatements, either directly or through one or more subsidiaries (a “Parent”)) in substantially the same proportions as their ownershipimmediately prior to such Business Combination of the Outstanding Company Common Shares and the Outstanding Company VotingSecurities, as the case may be, (2) no Person (excluding any entity resulting from such Business Combination or a Parent or anyemployee benefit plan (or related trust) of the Corporation or such entity resulting from such Business Combination or Parent)beneficially owns, directly or indirectly, more than fifty percent (50%) of, respectively, the then-outstanding shares of common stock ofthe entity resulting from such Business Combination or the combined voting power of the then-outstanding voting securities of suchentity, except to the extent that the ownership in excess of fifty percent (50%) existed prior to the Business Combination, and (3) atleast a majority of the members of the board of directors or trustees of the entity resulting from such Business Combination or a Parentwere members of the Incumbent Board at the time of the execution of the initial agreement or of the action of the Board providing forsuch Business Combination; or(iii)Approval by the shareholders of the Corporation of a complete liquidation or dissolution of the Corporation other than in the contextof a transaction that does not constitute a Change in Control Event under clause (ii) above. 6EXHIBIT BSECTION 280G1. Limitation on Benefits. Notwithstanding anything contained in this Agreement or the Plan to the contrary, to the extent that the payments andbenefits provided under the Award and benefits provided to, or for the benefit of, the Grantee under any other Corporation plan or agreement (such paymentsor benefits are collectively referred to as the “Benefits”) would be subject to the excise tax (the “Excise Tax”) imposed under Section 4999 of the Code, theBenefits shall be reduced (but not below zero) if and to the extent that a reduction in the Benefits would result in the Grantee retaining a larger amount, on anafter-tax basis (taking into account federal, state and local income taxes and the Excise Tax), than if the Grantee received all of the Benefits (such reducedamount is referred to hereinafter as the “Limited Benefit Amount”). Unless the Grantee shall have given prior written notice specifying a different order to theCorporation to effectuate the Limited Benefit Amount, any such notice consistent with the requirements of Section 409A of the Code to avoid the imputationof any tax, penalty or interest thereunder, the Corporation shall reduce or eliminate the Benefits by first reducing or eliminating those payments or benefitswhich are not payable in cash and then by reducing or eliminating cash payments, in each case in reverse order beginning with payments or benefits whichare to be paid the farthest in time from the Determination (as hereinafter defined). Any notice given by the Grantee pursuant to the preceding sentence shalltake precedence over the provisions of any other plan, arrangement or agreement governing the Grantee’s rights and entitlements to any benefits orcompensation..2. Determination. A determination as to whether the Benefits shall be reduced to the Limited Benefit Amount pursuant to this Agreement and theamount of such Limited Benefit Amount shall be made by the Corporation’s independent public accountants or another certified public accounting firm orexecutive compensation consulting firm of national reputation designated by the Corporation (the “Firm”) at the Corporation’s expense. The Firm shallprovide its determination (the “Determination”), together with detailed supporting calculations and documentation to the Corporation and the Granteewithin ten (10) business days of the date of termination of the Grantee’s employment, if applicable, or such other time as reasonably requested by theCorporation or the Grantee (provided the Grantee reasonably believes that any of the Benefits may be subject to the Excise Tax), and if the Firm determinesthat no Excise Tax is payable by the Grantee with respect to any Benefits, it shall furnish the Grantee with an opinion reasonably acceptable to the Granteethat no Excise Tax will be imposed with respect to any such Benefits. Unless the Grantee provides written notice to the Corporation within ten (10) businessdays of the delivery of the Determination to the Grantee that he disputes such Determination, the Determination shall be binding, final and conclusive uponthe Corporation and the Grantee.7Exhibit 10.55[Company Letterhead]December 18, 2017[NAME]Re: Change in Control AgreementDear [NAME]:I write concerning the outstanding award of restricted stock units with respect to [______] common shares of Sphere 3D Corp. (the “Company”),which was granted to you by the Company on or about May 10, 2017. Such award (the “Award”) was granted pursuant to the Company’s 2015 PerformanceIncentive Plan (the “Plan”) and a restricted stock unit agreement entered into by you and the Company to evidence the Award (the “Award Agreement”).The purpose of this letter is to set forth our agreement to amend the Award Agreement to provide that if a Change in Control Event (as such term isdefined in Exhibit A to this letter) occurs and you are a member of the Company’s Board of Directors immediately prior to such Change in Control Event, theAward, to the extent then outstanding and unvested, shall become fully vested as of (or, as appropriate to give effect to the acceleration, immediately prior to)the Change in Control Event.Except as expressly set forth above, this letter agreement does not modify any other terms of the Award or the Award Agreement. In the event of aconflict or inconsistency between the provisions of this letter agreement and the provisions of the Award Agreement, the provisions of this letter agreementwill control.If this letter accurately sets forth our agreement with respect to the foregoing matters, please sign the enclosed copy of this letter and return it to me. Sincerely,__________________________Eric KellyChief Executive OfficerAcknowledged and Agreed:By: [NAME]EXHIBIT ADEFINITION OF CHANGE IN CONTROL EVENTAs used in this letter agreement, “Change in Control Event” means the occurrence of any of the following:(a)The acquisition by any individual, entity or group (within the meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934, asamended (the “Exchange Act”)) (such individual, entity or group, a “Person”) of beneficial ownership (within the meaning of Rule 13d-3promulgated under the Exchange Act) of more than fifty percent (50%) of either (1) the then-outstanding common shares of the Company (the“Outstanding Company Common Shares”) or (2) the combined voting power of the then-outstanding voting securities of the Company entitled tovote generally in the election of directors (the “Outstanding Company Voting Securities”); provided, however, that, for purposes of this clause (a),any acquisition by any entity pursuant to a transaction that complies with all of clauses (b)(1), (2) and (3) below shall not constitute a Change inControl Event; (b)Consummation of a reorganization, merger, statutory share exchange or consolidation or similar corporate transaction involving the Company orany of its Subsidiaries, a sale or other disposition of assets of the Company that account for more than fifty percent (50%) of the Company’s revenuefor the immediately preceding four (4) full fiscal quarters as reflected in the Company’s financial statements, or the acquisition of assets or stock ofanother entity by the Company or any of its Subsidiaries (each, a “Business Combination”), in each case unless, following such BusinessCombination, (1) all or substantially all of the individuals and entities that were the beneficial owners of the Outstanding Company Common Sharesand the Outstanding Company Voting Securities immediately prior to such Business Combination beneficially own, directly or indirectly, morethan fifty percent (50%) of the then-outstanding common shares and the combined voting power of the then-outstanding voting securities entitled tovote generally in the election of directors, as the case may be, of the entity resulting from such Business Combination (including, without limitation,an entity that, as a result of such transaction, owns the Company or assets of the Company that account for more than fifty percent (50%) of theCompany’s revenue for the immediately preceding four (4) fiscal quarters as reflected in the Company’s financial statements, either directly orthrough one or more subsidiaries (a “Parent”)) in substantially the same proportions as their ownership immediately prior to such BusinessCombination of the Outstanding Company Common Shares and the Outstanding Company Voting Securities, as the case may be, (2) no Person(excluding any entity resulting from such Business Combination or a Parent or any employee benefit plan (or related trust) of the Company or suchentity resulting from such Business Combination or Parent) beneficially owns, directly or indirectly, more than fifty percent (50%) of, respectively,the then-outstanding shares of common stock of the entity resulting from such Business Combination or the combined voting power of the then-outstanding voting securities of such entity, except to the extent that the ownership in excess of fifty percent (50%) existed prior to the BusinessCombination, and (3) at least a majority of the members of the board of directors or trustees of the entity resulting from such Business Combinationor a Parent were members of the Board at the time of the execution of the initial agreement or of the action of the Board providing for such BusinessCombination; or(c)Approval by the shareholders of the Company of a complete liquidation or dissolution of the Company other than in the context of a transactionthat does not constitute a Change in Control Event under clause (b) above.2 Exhibit 10.56[Company letterhead]December 18, 2017Peter Tassiopoulos Sphere 3D Corp.125 S. Market St., Suite 1300San Jose, CA 95113Re: Retention AgreementDear Peter:I am pleased to inform you that the Board of Directors of Sphere 3D Corp. (the “Company”) has approved a new retention arrangement for you,effective as of the date set forth above, to receive the benefits described below if either a Change in Control Event occurs or if your employment is terminatedby the Company without Cause or by you for Good Reason prior to a Change in Control Event. (Capitalized terms have the meanings given in Exhibit A tothis letter if not otherwise defined herein.). The retention benefits are subject to the terms and conditions set forth in this letter agreement (this “Agreement”).This Agreement supersedes and replaces in its entirety your severance letter agreement with the Company dated November 10, 2017 (the “PriorAgreement”).1. Change in Control Event. If a Change in Control Event occurs and you remain employed with the Company or any of its subsidiaries as ofimmediately prior to the Change in Control Event, you will be entitled to receive (a) an amount equal to Three Hundred Sixty Thousand U.S. Dollars(US$360,000), such amount to be paid in a lump sum on the first business day after the Release becomes effective and in all events within sixty (60) daysafter the Change in Control Event occurs (provided that if such 60-day period spans two calendar years, such payment will be made in the second of such twoyears) (the “Retention Bonus”); (b) your equity-based awards granted by the Company, to the extent then outstanding and unvested, will accelerate and fullyvest (and, in the case of options and similar awards, be fully exercisable) upon (or immediately prior to) the Change in Control Event (the “EquityAcceleration”); and (c) upon a termination of your employment with the Company (or one of its successors or affiliates) on or after the Change in ControlEvent either by the Company or such successor or affiliate without Cause or by you for Good Reason, you will be entitled to a cash lump sum payment equalto the non-discounted present value of your expected premiums charged to continue health coverage for you (and, if applicable, your eligible dependents)pursuant to the Consolidated Omnibus Budget Reconciliation Act (“COBRA”) for twelve (12) months following your termination date (the “COBRABenefit”), such amount to be determined by the Company in its reasonable discretion based on your coverage elections as in effect immediately prior to yourtermination of employment and the estimated monthly premium for such COBRA coverage determined as of your termination date, such amount to be paidwithin sixty (60) days following your termination date (provided that if such 60-day period spans two calendar years, such payment will be made in thesecond of such two years).2. Termination Without Cause or for Good Reason Prior to Change in Control Event. If, at any time prior to a Change in Control Event, youremployment with the Company or one of its subsidiaries is terminated by the Company or such subsidiary without Cause or by you for Good Reason, youwill be entitled to receive payment of the Retention Bonus and the COBRA Benefit as set forth above (calculated based on your health coverage benefits asin effect immediately prior to your termination), such amounts to be paid together within sixty (60) days following your termination date (provided that ifsuch 60-day period spans two calendar years, such payment will be made in the second of such two years). In addition, you will be entitled to the EquityAcceleration provided above with respect to your equity-based awards granted by the Company that are outstanding and unvested as of such a termination ofyour employment.- 1 - 3. Conditions on Benefits. Notwithstanding the foregoing provisions, your right to receive any of the payments and benefits described in Sections1 and 2 above is conditioned on both (i) your signing and delivering to the Company a release of claims in a form acceptable to the Company (the “Release”)within twenty-one (21) days (or such longer period of time as is required to make the Release maximally enforceable under applicable law) after the date onwhich the Company provides the Release to you (and you not revoking such Release within any revocation period provided by applicable law), and (ii) yourcontinued compliance with your obligations to the Company under Article 5.00 of the Consulting Agreement between the Company and PT & AssociatesConsulting Inc. dated March 1, 2013 (the “Confidentiality Agreement”). The Company will provide the form of Release to you within seven (7) days afteryour termination date.4. Other Terminations; No Duplication of Benefits. For purposes of clarity, if your employment with the Company or any of its subsidiariesterminates prior to a Change in Control Event for any reason other than a termination by the Company or such subsidiary without Cause or by you for GoodReason, you will not be entitled to any payments or benefits under this Agreement. In no event will you be entitled to benefits under both Sections 1 and 2 ofthis Agreement. In addition, only the first Change of Control Event that occurs after the date of this Agreement will be taken into account for purposes of thisAgreement, and any Change of Control Event that may occur thereafter will be disregarded.5. Miscellaneous. Each of the payments provided in this Agreement is subject to all applicable tax withholding. The Company will require anysuccessor (whether direct or indirect, by purchase, merger, consolidation, reorganization or otherwise, including a Change in Control Event) to all orsubstantially all of the business or assets of the Company expressly to assume and agree to perform this Agreement in the same manner and to the same extentthe Company would be required to perform if no such succession had taken place. This Agreement will be binding upon and inure to the benefit of theCompany and any such successor to the Company and will inure to the benefit of and be enforceable by your successors. Nothing contained in thisAgreement constitutes an employment or service commitment by the Company (or any of its affiliates or successors) or affects your status as an employee atwill who is subject to termination without cause at any time (subject to the provisions hereof). This Agreement, together with the Confidentiality Agreement,contains all of the terms and conditions of the retention benefits provided herein and supersedes all prior understandings and agreements, written or oral,between you and the Company and any of its affiliates with respect thereto (including, without limitation, the Prior Agreement). This Agreement may beamended only by a written agreement between you and the Company that expressly refers to this Agreement. The validity, interpretation, construction andperformance of this Agreement shall be governed by the laws of the State of California without regard to the conflicts of laws principles thereof. It is intendedthat any amounts payable under this Agreement shall either be exempt from or comply with Section 409A of the U.S. Internal Revenue Code so as not tosubject you to payment of any additional tax, penalty or interest imposed under Section 409A, and the provisions of this Agreement will be construed andinterpreted in accordance with such intent.- 2 - If this Agreement accurately reflects our understanding regarding these matters, please indicate your acceptance by where indicated below andreturning it to me. A duplicate copy of this Agreement is included for your records.SPHERE 3D CORP.By: Print Name: Eric L. KellyTitle: Chairman and CEOAcknowledged and Agreed: Peter TassiopoulosDate: - 3 - EXHIBIT AFor purposes of this Agreement, the following definitions will apply:•“Cause” has the meaning given to such term in any employment agreement between you and the Company or any of its subsidiaries as in effecton the date of termination of your employment or, if there is no such agreement (or such agreement does not include a definition of such term),shall mean: (a) acts or omissions constituting reckless or willful misconduct on your part with respect to your obligations or otherwise relatingto the business of the Company or any of its subsidiaries that causes material harm to the Company or such subsidiary or to the reputation of theCompany or such subsidiary; (b) your material breach of any agreement between you and the Company or one of its subsidiaries, which breachyou fail to cure within thirty (30) days after receiving written notice from the Company’s Board of Directors (the “Board”) that specifies thespecific conduct giving rise to the alleged breach; (c) your conviction or entry of a plea of nolo contendere for fraud, theft or embezzlement, orany felony or crime of moral turpitude; or (d) your willful neglect of duties as reasonably determined by the Board, which you fail to cure withinthirty (30) days after receiving written notice from the Board that specifies the specific duties that you have failed to perform.•“Change in Control Event” means the occurrence of any of the following:(a)The acquisition by any individual, entity or group (within the meaning of Section 13(d)(3) or 14(d)(2) of the Securities ExchangeAct of 1934, as amended (the “Exchange Act”)) (such individual, entity or group, a “Person”) of beneficial ownership (within themeaning of Rule 13d-3 promulgated under the Exchange Act) of more than fifty percent (50%) of either (1) the then-outstandingcommon shares of the Company (the “Outstanding Company Common Shares”) or (2) the combined voting power of the then-outstanding voting securities of the Company entitled to vote generally in the election of directors (the “Outstanding CompanyVoting Securities”); provided, however, that, for purposes of this clause (a), any acquisition by any entity pursuant to a transactionthat complies with all of clauses (b)(1), (2) and (3) below shall not constitute a Change in Control Event; (b)Consummation of a reorganization, merger, statutory share exchange or consolidation or similar corporate transaction involvingthe Company or any of its Subsidiaries, a sale or other disposition of assets of the Company that account for more than fifty percent(50%) of the Company’s revenue for the immediately preceding four (4) full fiscal quarters as reflected in the Company’s financialstatements, or the acquisition of assets or stock of another entity by the Company or any of its Subsidiaries (each, a “BusinessCombination”), in each case unless, following such Business Combination, (1) all or substantially all of the individuals andentities that were the beneficial owners of the Outstanding Company Common Shares and the Outstanding Company VotingSecurities immediately prior to such Business Combination beneficially own, directly or indirectly, more than fifty percent (50%)of the then-outstanding common shares and the combined voting power of the then-outstanding voting securities entitled to votegenerally in the election of directors, as the case may be, of the entity resulting from such Business Combination (including,without limitation, an entity that, as a result of such transaction, owns the Company or assets of the Company that account formore than fifty percent (50%) of the Company’s revenue for the immediately preceding four (4) fiscal quarters as reflected in theCompany’s financial statements, either directly or through one or more subsidiaries (a “Parent”)) in substantially the sameproportions as their ownership immediately prior to such Business Combination of the Outstanding Company Common Shares andthe Outstanding Company Voting Securities, as the case may be, (2) no Person (excluding any entity resulting from such BusinessCombination or a Parent or any employee benefit plan (or related trust) of the Company or such entity resulting from suchBusiness Combination or Parent) beneficially owns, directly or indirectly, more than fifty percent (50%) of, respectively, the- 4 - then-outstanding shares of common stock of the entity resulting from such Business Combination or the combined voting powerof the then-outstanding voting securities of such entity, except to the extent that the ownership in excess of fifty percent (50%)existed prior to the Business Combination, and (3) at least a majority of the members of the board of directors or trustees of theentity resulting from such Business Combination or a Parent were members of the Board at the time of the execution of the initialagreement or of the action of the Board providing for such Business Combination; or(c)Approval by the shareholders of the Company of a complete liquidation or dissolution of the Company other than in the contextof a transaction that does not constitute a Change in Control Event under clause (b) above.•“Good Reason” has the meaning given to such term in any employment agreement between you and the Company or any of its subsidiaries asin effect on the date of termination of your employment or, if there is no such agreement (or such agreement does not include a definition ofsuch term), shall mean the occurrence (without your consent) of any one or more of the following conditions: (a) a reduction in your rate of basesalary or your target annual bonus opportunity by more than ten percent (10%) from the level in effect immediately prior to the Change inControl Event; (b) a material reduction in your authorities, duties or responsibilities from the level in effect immediately prior to the Change inControl Event; (c) a change in the geographic location of your principal office with the Company (or any subsidiary or affiliate thereof orsuccessor thereto) by more than fifty (50) miles from the location as of the Change in Control Event; or (d) any action or inaction by theCompany (or any subsidiary or affiliate thereof or successor thereto) that constitutes a material breach of the provisions of this Agreement;provided, however, that any such condition or conditions, as applicable, shall not constitute Good Reason unless (x) you provide written noticeto the Company of the condition claimed to constitute Good Reason within thirty (30) days of the initial existence of such condition(s), (y) theCompany fails to remedy such condition(s) within thirty (30) days of receiving such written notice thereof, and (z) your employment with theCompany terminates within ninety (90) days following the initial existence of the condition claimed to constitute Good Reason.- 5 - Exhibit 10.57SPHERE 3D CORP. 2015 PERFORMANCE INCENTIVE PLANNONQUALIFIED STOCK OPTION AGREEMENTTHIS NONQUALIFIED STOCK OPTION AGREEMENT (this “Option Agreement”) dated [DATE] by and between Sphere 3D Corp., acorporation incorporated under the laws of the Province of Ontario (the “Corporation”), and [NAME] (the “Grantee”) evidences the nonqualified stockoption (the “Option”) granted by the Corporation to the Grantee as to the number of the Corporation’s Common Shares first set forth below.Number of Common Shares: [SHARES] Award Date: [DATE]Exercise Price per Share:1 $[PRICE] Expiration Date:1, [DATE]Vesting Commencement Date: [DATE]Vesting1,2 The Option shall become vested with respect to [___]% of the shares subject to the Option on the Vesting Commencement Date and with respectto the remainder in a series of [________] substantially equal installments on each monthly anniversary of the Vesting Commencement Date (each such date,a “Vesting Date”) until fully vested.The Option is granted under the Sphere 3D Corp. 2015 Performance Incentive Plan (including the Canadian Residents thereto, if applicable), asamended from time to time (the “Plan”) and subject to the Terms and Conditions of Nonqualified Stock Option (the “Terms”) attached to this OptionAgreement (incorporated herein by this reference) and to the Plan. The Option has been granted to the Grantee in addition to, and not in lieu of, any otherform of compensation otherwise payable or to be paid to the Grantee. Capitalized terms are defined in the Plan if not defined herein. The parties agree to theterms of the Option set forth herein. The Grantee acknowledges receipt of a copy of the Terms, the Plan and the Prospectus for the Plan.“GRANTEE”_____________________________________Name: SPHERE 3D CORP.a corporation incorporated under the laws of the Province of OntarioBy:_________________________________________________ Name: Title: Quality ReviewInitials _______SPHERE 3D CORP. 2015 PERFORMANCE INCENTIVE PLANTERMS AND CONDITIONS OF NONQUALIFIED STOCK OPTION1.Vesting; Limits on Exercise; Incentive Stock Option Status.The Option shall vest and become exercisable in percentage installments of the aggregate number of shares subject to the Option as set forth on thecover page of this Option Agreement. The Option may be exercised only to the extent the Option is vested and exercisable.•Cumulative Exercisability. To the extent that the Option is vested and exercisable, the Grantee has the right to exercise the Option (to the extentnot previously exercised), and such right shall continue, until the expiration or earlier termination of the Option.•No Fractional Shares. Fractional share interests shall be disregarded, but may be cumulated.•Minimum Exercise. No fewer than 100 Common Shares (subject to adjustment under Section 7.1 of the Plan) may be purchased at any one time,unless the number purchased is the total number at the time exercisable under the Option.•Nonqualified Stock Option. The Option is a nonqualified stock option and is not, and shall not be, an incentive stock option within themeaning of Section 422 of the Code.2.Continuance of Employment/Service Required; No Employment/Service Commitment.Except as expressly provided in Section 4 below, the vesting schedule applicable to the Option requires continued employment or service througheach applicable vesting date as a condition to the vesting of the applicable installment of the Option and the rights and benefits under this OptionAgreement. Employment or service for only a portion of the vesting period, even if a substantial portion, will not entitle the Grantee to any proportionatevesting or avoid or mitigate a termination of rights and benefits upon or following a termination of employment or services as provided in Section 4 below orunder the Plan.Nothing contained in this Option Agreement or the Plan constitutes a continued employment or service commitment by the Corporation or any of itsSubsidiaries, affects the Grantee’s status, if he or she is an employee, as an employee at will who is subject to termination without cause, confers upon theGrantee any right to remain employed by or in service to the Corporation or any Subsidiary, interferes in any way with the right of the Corporation or anySubsidiary at any time to terminate such employment or service, or affects the right of the Corporation or any Subsidiary to increase or decrease the Grantee’sother compensation. Nothing in this Option Agreement, however, is intended to adversely affect any independent contractual right of the Grantee withouthis/her consent thereto.3.Method of Exercise of Option.The Option shall be exercisable by the delivery to the Secretary of the Corporation (or such other person as the Administrator may require pursuantto such administrative exercise procedures as the Administrator may implement from time to time) of:•a written notice stating the number of Common Shares to be purchased pursuant to the Option or by the completion of such other administrativeexercise procedures as the Administrator may require from time to time;•payment in full for the Exercise Price of the shares to be purchased in cash, check or by electronic funds transfer to the Corporation;•any written statements or agreements required pursuant to Section 8.1 of the Plan; and•satisfaction of the tax withholding provisions of Section 6 of this Option Agreement.The Administrator also may, but is not required to, authorize a non-cash payment alternative by one or more of the following methods (subject ineach case to compliance with all applicable laws, rules, regulations and listing requirements and further subject to such rules as the Administrator may adoptas to any such payment method):•notice and third party payment in such manner as may be authorized by the Administrator;•in Common Shares already owned by the Grantee, valued at their fair market value (as determined under the Plan) on the exercise date;•a reduction in the number of Common Shares otherwise deliverable to the Grantee (valued at their fair market value on the exercise date, asdetermined under the Plan) pursuant to the exercise of the Option; or•a “cashless exercise” with a third party who provides simultaneous financing for the purposes of (or who otherwise facilitates) the exercise of theOption.4.Early Termination of Option; Possible Acceleration of Option; Employment Agreement.4.1 Expiration Date. Subject to earlier termination as provided below in this Section 4, the Option will terminate on the “Expiration Date” setforth in the cover page of this Option Agreement (the “Expiration Date”).4.2 Possible Termination of Option upon Certain Corporate Events. The Option is subject to termination in connection with certain corporateevents as provided in Section 7.2 of the Plan.4.3 Termination of Option upon a Termination of Grantee’s Employment or Services. Subject to earlier termination on the Expiration Date ofthe Option or pursuant to Section 4.2 above, if the Grantee ceases to be employed by or ceases to provide services to the Corporation or a Subsidiary, thefollowing rules shall apply:•other than as expressly provided below in this Section 4.3, (a) the Grantee will have until the date that is 3 months after his or her TerminationDate (as defined below) to exercise the Option (or portion thereof) to the extent that it was vested on the Termination Date (after giving effect toany accelerated vesting that may apply pursuant to Section 4.4), (b) the Option, to the extent not vested on the Termination Date, shallterminate on the Termination Date, and (c) the Option, to the extent exercisable for the 3-month period following the Termination Date and notexercised during such period, shall terminate at the close of business on the last day of the 3-month period; and•if the termination of the Grantee’s employment or services is the result of the Grantee’s death or Disability (as defined below), (a) the Grantee (orhis beneficiary or personal representative, as the case may be) will have until the date that is 12 months after the Grantee’s Termination Date toexercise the Option (or portion thereof) to the extent that it was vested on the Termination Date (after giving effect to any accelerated vestingthat may apply pursuant to Section 4.4), (b) the Option, to the extent not vested on the Termination Date, shall terminate on the TerminationDate, and (c) the Option, to the extent exercisable for the 12-month period following the Termination Date and not exercised during suchperiod, shall terminate at the close of business on the last day of the 12-month period.In all events the Option is subject to earlier termination on the Expiration Date of the Option or as contemplated by Section 4.2. The Administratorshall be the sole judge of whether the Grantee continues to render employment or services for purposes of this Option Agreement.For purposes hereof, “Termination Date” means the Grantee’s last day of actual and active employment or service with the Corporation or any of itsSubsidiaries. For greater certainty, no period of notice of termination, if any, or payment in lieu of notice that is given or ought to have been given pursuantto the Grantee’s applicable employment agreement, contract for service or at law that follows or is in respect of a period after the last date of actual and activeemployment will be considered as extending Grantee’s period of employment or services for purposes of determining the Grantee’s entitlement under theOption.4.4 Acceleration Upon Certain Terminations.(a)If either (i) the Grantee’s employment or service with the Corporation or one of its Subsidiaries terminates due to the Grantee’s Disability ordeath, or (ii) a Change in Control Event occurs and, at any time within sixty (60) days before or two (2) years after the Change in ControlEvent, the Grantee’s employment or service with the Corporation or one of its Subsidiaries is terminated by the Corporation or suchSubsidiary without Cause or by the Grantee for Good Reason, the Option, to the extent then outstanding and unvested, shall vest and beexercisable in full upon the date of such termination of employment or service (or, if later, upon the Change in Control Event).(b)If the Grantee’s employment or service with the Corporation or one of its Subsidiaries is terminated by the Corporation or such Subsidiarywithout Cause or by the Executive for Good Reason, and such termination occurs at any time on or before December 1, 2016, the Option, tothe extent then outstanding and unvested, shall vest and be exercisable in full upon the Grantee’s Termination Date.(c)If the Grantee’s employment or service with the Corporation or one of its Subsidiaries is terminated by the Corporation or such Subsidiarywithout Cause or by the Grantee for Good Reason, and such termination occurs at any time after December 1, 2016 (other than a terminationthat occurs in connection with a Change of Control as contemplated by Section 4.4(b) above), the Option will vest on the Termination Datewith respect to (i) the number of shares subject to any portion of the Option that is scheduled to vest on any Vesting Date that occurs withinthe period of twelve (12) months following the Termination Date; and (ii) if any Vesting Date is scheduled to occur more than twelve (12)months following the Termination Date, a number of shares subject to the Option determined by multiplying (x) the number of sharessubject to the portion of the Option that would have otherwise vested on the first Vesting Date of the Option that follows the firstanniversary of the Grantee’s Termination Date, by (y) a fraction, the numerator of which will be the number of whole months that haveelapsed between the Vesting Date that immediately precedes the first anniversary of the Grantee’s Termination Date and the firstanniversary of the Grantee’s Termination Date, and the denominator of which will be the total number of months between the Vesting Datethat immediately precedes the first anniversary of the Grantee’s Termination Date and the next scheduled Vesting Date thatfollows the first anniversary of the Grantee’s Termination Date. Any portion of the Option that is not vested after giving effect to thepreceding sentence shall terminate on the Termination Date.(c)Notwithstanding any other provision herein or in the Plan, as a condition precedent to any acceleration of vesting pursuant to this Section4.4, the Grantee shall provide the Corporation with a valid, executed general release agreement in the form attached to any employment,severance, retention or similar agreement the Grantee may have with the Corporation or any of its Subsidiaries in effect on the Award Date(or, if there is no such agreement or no such form of release attached thereto, in a form acceptable to the Corporation), and such release shallhave not been revoked pursuant to any revocation rights afforded by applicable law. The Corporation shall provide the final form of releaseagreement to the Grantee not later than seven (7) days following the Termination Date, and the Grantee shall be required to execute andreturn such release to the Corporation within twenty-one (21) days (or forty-five (45) days if such longer period of time is required to makethe release maximally enforceable under applicable law) after the Corporation provides the form of release to the Grantee.4.5 Employment Agreement. The Option is also subject to any rights to accelerated vesting the Grantee may have under any employment,severance, retention or similar agreement with the Corporation or any of its Subsidiaries in effect on the Award Date (the “Employment Agreement”),provided that to the extent the Employment Agreement and this Option Agreement provide different rights to accelerated vesting of the Option in connectionwith a termination of the Grantee’s employment or service, the Grantee shall be entitled to the acceleration provided under either the Employment Agreementor this Option Agreement, whichever agreement provides the greater benefit to the Grantee in the circumstances.4.6 Defined Terms. For purposes of this Option Agreement, the terms Cause, Good Reason, Disability and Change of Control have the meaningsgiven to such terms in the Employment Agreement; provided, however, that for purposes of the Option, the definition of “Change of Control” shall refer to achange in control of the Corporation that occurs after the Award Date (as determined under the applicable clauses of such definition) and not to a change incontrol of Overland Storage, Inc.5.Non-Transferability.The Option and any other rights of the Grantee under this Option Agreement or the Plan are nontransferable and exercisable only by the Grantee,except as set forth in Section 5.7 of the Plan.6.Tax Withholding.Upon any exercise or payment of the Option, or upon any other tax withholding event with respect to the Option, arrangements satisfactory to theCorporation shall be made to provide for any taxes the Corporation or any of its Subsidiaries may be required to withhold with respect to such event orpayment as provided in Section 8.5 of the Plan. With the Corporation’s consent and subject to the Corporation’s compliance with all applicable laws, thesearrangements may include (a) withholding Common Shares that otherwise would be issued to the Grantee pursuant to the Option, (b) surrendering CommonShares that the Grantee previously acquired or (c) an irrevocable arrangement (on terms reasonably acceptable to the Corporation) with a third-party broker touse the proceeds of a sale of Common Shares on the market to provide for such tax withholding. In the case of clauses (a) and (b) above, the fair market valueof these shares (as determined under the Plan as of the date when taxes otherwise would have been withheld in cash), will be applied to the withholding taxes.7.No Shareholder Rights.The Grantee shall have no rights as a shareholder of the Corporation, no dividend rights and no voting rights, with respect to the Option and anyCommon Shares underlying or issuable in respect of the Option until such time as the Option is exercised and such Common Shares are actually issued to andheld of record by the Grantee. No adjustments will be made for dividends or other rights of a holder for which the record date is prior to the date of issuance ofsuch shares.8.Notices.Any notice to be given under the terms of this Option Agreement shall be in writing and addressed to the Corporation at its principal office to theattention of the Secretary, and to the Grantee at the address last reflected on the Corporation’s payroll records, or at such other address as either party mayhereafter designate in writing to the other. Any such notice shall be delivered in person or shall be enclosed in a properly sealed envelope addressed asaforesaid, registered or certified, and deposited (postage and registry or certification fee prepaid) in a post office or branch post office regularly maintained bythe United States Government. Any such notice shall be given only when received, but if the Grantee is no longer employed by the Corporation or aSubsidiary, shall be deemed to have been duly given five business days after the date mailed in accordance with the foregoing provisions of this Section 7.9.Plan.The Option and all rights of the Grantee under this Option Agreement are subject to the terms and conditions of the Plan (including, for greatercertainty and to the extent applicable, the Canadian Residents Addendum to the Plan), incorporated herein by this reference. In the event of any conflictbetween the provisions of the Plan and this Option Agreement, the provisions of the Plan shall control. The Grantee agrees to be bound by the terms of thePlan and this Option Agreement. The Grantee acknowledges having read and understanding the Plan, the Prospectus for the Plan, and this Option Agreement.Unless otherwise expressly provided in other sections of this Option Agreement, provisions of the Plan that confer discretionary authority on the Board or theAdministrator do not and shall not be deemed to create any rights in the Grantee unless such rights are expressly set forth herein or are otherwise in the solediscretion of the Board or the Administrator so conferred by appropriate action of the Board or the Administrator under the Plan after the date hereof.10.Entire Agreement.This Option Agreement and the Plan, together with the Employment Agreement to the extent referred to herein, constitute the entire agreement andsupersede all prior understandings and agreements, written or oral, of the parties hereto with respect to the subject matter hereof. The Plan and this OptionAgreement may be amended pursuant to Section 8.6 of the Plan. Such amendment must be in writing and signed by the Corporation. The Corporation may,however, unilaterally waive any provision hereof in writing to the extent such waiver does not adversely affect the interests of the Grantee hereunder, but nosuch waiver shall operate as or be construed to be a subsequent waiver of the same provision or a waiver of any other provision hereof.11.Governing Law.This Option Agreement shall be governed by and construed and enforced in accordance with the laws of the State of California without regard toconflict of law principles thereunder.12.Effect of this Agreement.Subject to the Corporation’s right to terminate the Option pursuant to Section 7.2 of the Plan, this Option Agreement shall be assumed by, bebinding upon and inure to the benefit of any successor or successors to the Corporation.13.Counterparts.This Option Agreement may be executed simultaneously in any number of counterparts, each of which shall be deemed an original but all of whichtogether shall constitute one and the same instrument.14.Section Headings.The section headings of this Option Agreement are for convenience of reference only and shall not be deemed to alter or affect any provision hereof.15.Language.The parties hereto have agreed that this Option Agreement and the Plan be drafted in English. Les parties aux présentes ont convenu que le présentdocument et les règles du régime soient rédigés en anglais.16.No Advice Regarding Grant.The Grantee is hereby advised to consult with his or her own tax, legal and/or investment advisors with respect to any advice the Grantee maydetermine is needed or appropriate with respect to the Option (including, without limitation, to determine the foreign, state, local, estate and/or gift taxconsequences with respect to the Option and any shares that may be acquired upon exercise of the Option). Neither the Corporation nor any of its officers,directors, affiliates or advisors makes any representation (except for the terms and conditions expressly set forth in this Option Agreement) orrecommendation with respect to the Option. Except for the withholding rights contemplated by Sections 3 and 6 above and Section 8.5 of the Plan, theGrantee is solely responsible for any and all tax and other liability that may arise with respect to the Option and any shares that may be acquired uponexercise of the Option (including any sale of such shares).17.Insider Trading Rules.The Grantee hereby acknowledges being subject to all applicable laws, rules and regulations, as well as Corporation policies, regarding insidertrading. EXHIBIT ADEFINED TERMSFor purposes of this Option Agreement, the following definitions shall apply:•“Cause” has the meaning given to such term in any employment agreement between the Grantee and the Corporation or any of its Subsidiariesas in effect on the Award Date or, if there is no such agreement (or such agreement does not include a definition of such term), shall mean:(a) acts or omissions constituting reckless or willful misconduct on the Grantee’s part with respect to the Grantee’s obligations or otherwiserelating to the business of the Corporation or any of its Subsidiaries that causes material harm to the Corporation or such Subsidiary or to thereputation of the Corporation or such Subsidiary; (b) the Grantee’s material breach of any agreement between the Grantee and the Corporationor one of its Subsidiaries, which breach the Grantee fails to cure within thirty (30) days after receiving written notice from the Board thatspecifies the specific conduct giving rise to the alleged breach; (c) the Grantee’s conviction or entry of a plea of nolo contendere for fraud, theftor embezzlement, or any felony or crime of moral turpitude; or (d) the Grantee’s willful neglect of duties as reasonably determined by the Board,which the Grantee fails to cure within thirty (30) days after receiving written notice from the Board that specifies the specific duties that theGrantee has failed to perform.•“Good Reason” has the meaning given to such term in any employment agreement between the Grantee and the Corporation or any of itsSubsidiaries as in effect on the Award Date or, if there is no such agreement (or such agreement does not include a definition of such term), shallmean a voluntary termination by the Grantee of the Grantee’s employment with the Corporation or one of its Subsidiaries within one (1) yearafter the initial occurrence of one or more of the following (without the Grantee’s written consent): (a) the Corporation or such Subsidiaryreduces the Grantee’s base compensation (including commissions) by more than ten percent (10%), (b) the Grantee’s authority, responsibilitiesand/or duties are materially reduced so that the Grantee’s duties are no longer consistent with the Grantee’s position as of the Award Date andthe Grantee no longer reports directly to the Board of Directors of the Corporation; (c) a material breach by the Corporation or one of itsSubsidiaries of any agreement between the Grantee and the Corporation or such Subsidiary; or (d) the Corporation or one of its Subsidiariesrelocates the Grantee’s principal place of work to a location more than fifty (50) miles from the Grantee’s principal place of work as of the AwardDate; provided, however, that such a termination by the Grantee shall not be a termination for Good Reason unless the Grantee notifies theCorporation in writing within sixty (60) days following the initial existence of the circumstance constituting Good Reason, the Corporation isgiven thirty (30) days from the receipt of such notice in which the Corporation may remedy or cure such condition, and the Corporation fails toremedy or cure the condition set forth in the Grantee’s notice within thirty (30) days of receipt of such notice. For purposes of the foregoing, ifthe Grantee does not timely provide notice to the Corporation as to a particular circumstance constituting Good Reason, then the Grantee shallbe deemed to have waived the right to terminate for Good Reason with respect to such circumstance.•“Disability” has the meaning given to such term (or a similar term) in any employment agreement between the Grantee and the Corporation orany of its Subsidiaries as in effect on the Award Date or, if there is no such agreement (or such agreement does not include a definition of suchterm), shall mean the Grantee (as determined solely by the Administrator on the basis of such medical evidence as the Administrator deemswarranted under the circumstances) is unable to engage in any substantial gainful activity by reason of any medically determinable physical ormental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not lessthan twelve (12) months.•“Change in Control Event” means any of the following:(i)The acquisition by any individual, entity or group (within the meaning of Section 13(d)(3) or 14(d)(2) of the Exchange Act (a“Person”)) of beneficial ownership (within the meaning of Rule 13d-3 promulgated under the Exchange Act) of more than fifty percent(50%) of either (1) the then-outstanding common shares of the Corporation (the “Outstanding Company Common Shares”) or (2) thecombined voting power of the then-outstanding voting securities of the Corporation entitled to vote generally in the election ofdirectors (the “Outstanding Company Voting Securities”); provided, however, that, for purposes of this clause (i), the followingacquisitions shall not constitute a Change in Control Event; (A) any acquisition directly from the Corporation, (B) any acquisition bythe Corporation, (C) any acquisition by any employee benefit plan (or related trust) sponsored or maintained by the Corporation or anyaffiliate of the Corporation or a successor, or (D) any acquisition by any entity pursuant to a transaction that complies with clauses (iii)(1), (2) and (3) below;(ii)Individuals who, as of the Award Date, constitute the Board (the “Incumbent Board”) cease for any reason to constitute at least amajority of the Board; provided, however, that any individual becoming a director subsequent to the Award Date whose election, ornomination for election by the Corporation’s shareholders, was approved by a vote of at least two-thirds of the directors thencomprising the Incumbent Board (including for these purposes, the new members whose election or nomination was so approved,without counting the member and his predecessor twice) shall be considered as though such individual were a member of theIncumbent Board, but excluding, for this purpose, any such individual whose initial assumption of office occurs as a result of an actualor threatened election contest with respect to the election or removal of directors or other actual or threatened solicitation of proxies orconsents by or on behalf of a Person other than the Board;(iii)Consummation of a reorganization, merger, statutory share exchange or consolidation or similar corporate transaction involving theCorporation or any of its Subsidiaries, a sale or other disposition of all or substantially all of the assets of the Corporation, or theacquisition of assets or stock of another entity by the Corporation or any of its Subsidiaries (each, a “Business Combination”), in eachcase unless, following such Business Combination, (1) all or substantially all of the individuals and entities that were the beneficialowners of the Outstanding Company Common Shares and the Outstanding Company Voting Securities immediately prior to suchBusiness Combination beneficially own, directly or indirectly, more than fifty percent (50%) of the then-outstanding common sharesand the combined voting power of the then-outstanding voting securities entitled to vote generally in the election of directors, as thecase may be, of the entity resulting from such Business Combination (including, without limitation, an entity that, as a result of suchtransaction, owns the Corporation or all or substantially all of the Corporation's assets directly or through one or more subsidiaries (a“Parent”)) in substantially the same proportions as their ownership immediately prior to such Business Combination of theOutstanding Company Common Shares and the Outstanding Company Voting Securities, as the case may be, (2) no Person (excludingany entity resulting from such Business Combination or a Parent or any employee benefit plan (or related trust) of the Corporation orsuch entity resulting from such Business Combination or Parent) beneficially owns, directly or indirectly, more than fifty percent (50%)of, respectively, the then-outstanding shares of common stock of the entity resulting from such Business Combination or the combinedvoting power of the then-outstanding voting securities of such entity, except to the extent that the ownership in excess of fifty percent(50%) existed prior to the Business Combination, and (3) at least a majority of the members of the board of directors or trustees of theentity resulting from such Business Combination or a Parent were members of the Incumbent Board at the time of the execution of theinitial agreement or of the action of the Board providing for such Business Combination; or(iv)Approval by the shareholders of the Corporation of a complete liquidation or dissolution of the Corporation other than in the contextof a transaction that does not constitute a Change in Control Event under clause (iii) above.Exhibit 10.58Exhibit 10.59[Net Lease]LEASE AGREEMENTTHIS LEASE AGREEMENT is made this 25 day of March, 2016, between PROLOGIS TLF (DALLAS), LLC, a Delaware limited liability company,solely with respect to PROLOGIS TARGETED U.S. LOGISTICS FUND, L.P., a Delaware limited partnership (“Landlord”), and the Tenant named below.Tenant:Unified ConneXions, Inc. Tenant’s Representative,Chris CunninghamAddress, and Telephone:5151 Samuell Boulevard, Suite 130Dallas, Texas 75228 (214) 444-7313 e-mail: chris@ucx.coPremises:That portion of the Building, containing approximately 19,413 rentable square feet, asdetermined by Landlord, as shown on Exhibit A. Project:Plano Distribution Center 4 Building:Plano Distribution Center 4 2901 Summit Avenue, Suite 100 Plano, TX 75074 Tenant’s Proportionate Share of Project:28.89 % Tenant’s Proportionate Share ofBuilding:28.89 % Lease Term:Beginning on the Commencement Date and ending on the last day of the 63rd full monthfollowing the Commencement Date. Commencement Date:May 1, 2016 Initial Monthly Base Rent:See Addendum 1 Initial Estimated Monthly OperatingExpense Payments: (estimates only and subject to adjustmentto actual costs and expenses according tothe provisions of this Lease)1. Utilities: $0.002. Common Area Charges: $1,132.433. Taxes: $2,297.214. Insurance: $97.075. Others: $404.44 Initial Estimated Monthly OperatingExpense Payments:$3,931.15 Initial Monthly Base Rent, and EstimatedOperating Expense$3,931.15 Security Deposit:$38,000.00 (subject to reduction as set forth in Paragraph 5 below) Brokers:Landlord: Dave Peterson, NAI Robert LynnTenant: Kurt North, North Pointe Commercial Realty Addenda:1. Base Rent Adjustments 2. HVAC Maintenance Contract 3. Move Out Conditions 4.Construction Addendum 5. HVAC Deductible Exhibits:A. Site PlanB. Project Rules and RegulationsC. Commencement Date CertificateD. Initial Improvements- 1 -1.Granting Clause. In consideration of the obligation of Tenant to pay rent as herein provided and in consideration of the other terms,covenants, and conditions hereof, Landlord leases to Tenant, and Tenant takes from Landlord, the Premises, to have and to hold for the Lease Term, subject tothe terms, covenants and conditions of this Lease.2.Acceptance of Premises. Tenant shall accept the Premises in its condition as of the Commencement Date, subject to all applicable laws,ordinances, regulations, covenants and restrictions, and subject to Landlord’s obligations with respect to the Premises as expressly set forth in Addendum 4and Paragraph 3 below. Landlord has made no representation or warranty as to the suitability of the Premises for the conduct of Tenant’s business, and Tenantwaives any implied warranty that the Premises are suitable for Tenant’s intended purposes. In no event shall Landlord have any obligation for any defects inthe Premises or any limitation on its use. The taking of possession of the Premises shall be conclusive evidence that Tenant accepts the Premises and that thePremises were in good condition at the time possession was taken except for items that are Landlord’s responsibility under Paragraph 10 and any punchlistitems agreed to in writing by Landlord and Tenant. No later than 10 days after written demand is made therefor by Landlord of Tenant, Tenant shall executeand deliver to Landlord a Commencement Date Certificate in the form of Exhibit C attached to and hereby made a part of this Lease.Subject to the vacation of the Premises by the existing tenant, if any, Landlord shall allow Tenant access to the Premises upon vacation ofthe Premises by the existing tenant, if any, for purposes of preparing the Premises for the commencement of Tenant’s normal business operations, subject toapplicable ordinances and building codes governing Tenant’s right to occupy or perform in the Premises (“Early Occupancy”). During such Early Occupancyperiod prior to the Commencement Date, Tenant shall be bound by its obligations under the Lease, including the obligation to provide evidence ofinsurance, but shall not be obligated to pay the Monthly Base Rent or Operating Expenses payable by Tenant to Landlord as set forth in the Lease. Tenantshall be responsible for utilities during the Early Occupancy.3.Use. The Premises shall be used only for the purpose of receiving, storing, shipping and selling (but specifically excluding retail selling)products, materials and merchandise made and/or distributed by Tenant and for such other lawful purposes as may be incidental thereto; provided, however,with Landlord’s prior written consent, Tenant may also use the Premises for light manufacturing. Tenant shall not conduct or give notice of any auction,liquidation, or going out of business sale on the Premises. Tenant will use the Premises in a careful, safe and proper manner and will not commit waste,overload the floor or structure of the Premises or subject the Premises to use that would damage the Premises. Tenant shall not permit any objectionable orunpleasant odors, smoke, dust, gas, noise, or vibrations to emanate from the Premises, or take any other action that would constitute a nuisance or woulddisturb, unreasonably interfere with, or endanger Landlord or any tenants of the Project. Outside storage, including without limitation, storage of trucks andother vehicles, is prohibited without Landlord’s prior written consent; provided, however, Tenant shall have the right to park operable vehicles and trailersovernight at the truck loading docks and designated truck and trailer parking areas for the Premises and operable automobiles in the designated automobileparking areas, and further provided there is no interference with the access of other tenants to the Building and Project parking lots and truck courts. Tenant,at its sole expense, shall use and occupy the Premises in compliance with all laws, including, without limitation, the Americans With Disabilities Act, orders,judgments, ordinances, regulations, codes, directives, permits, licenses, covenants and restrictions now or hereafter applicable to the Premises (collectively,“Legal Requirements”). The Premises shall not be used as a place of public accommodation under the Americans With Disabilities Act or similar state statutesor local ordinances or any regulations promulgated thereunder, all as may be amended from time to time. Landlord represents and warrants that, as of theCommencement Date, no written notice has been received by Landlord of non-compliance with any Legal Requirements in connection with the Premises. Inthe event that Landlord receives notice that the Premises is not in compliance with applicable Legal Requirements existing as of the Commencement Dateand such non-compliance is not related to Tenant’s specific use of the Premises or Tenant-Made Alterations to the Premises performed by Tenant, Landlordshall make such modifications as may be required by order or directive of applicable governmental authority in order to bring the Premises into compliancewith applicable Legal Requirements as of the Commencement Date without cost or expense to Tenant and without including such cost or expense as anOperating Expense. Furthermore, in the event Landlord receives notice that the Premises is not in compliance with applicable Legal Requirements whichcome into effect after the Commencement Date and such non-compliance is not related to Tenant’s specific use of the Premises or Tenant-Made Alterations tothe Premises performed by Tenant, Landlord shall make such modifications as may be required by order or directive of applicable governmental authority inorder to bring the Premises into compliance with applicable Legal Requirements which shall be chargeable to Tenant as an Operating Expense. Tenant shall,at its expense, make any alterations or modifications, within or without the Premises, that are required by Legal Requirements related to Tenant’s use oroccupation of the Premises. Tenant will not use or permit the Premises to be used for any purpose or in any manner that would void Tenant’s or Landlord’sinsurance, increase the insurance risk, or cause the disallowance of any sprinkler credits. If any increase in the cost of any insurance on the Premises or theProject is caused by Tenant’s use or occupation of the Premises, or because Tenant vacates the Premises (except upon expiration or other termination of theLease and Tenant’s surrender of the Premises in accordance with the terms of this Lease), then Tenant shall pay the amount of such increase to Landlord. Anyoccupation of the Premises by Tenant prior to the Commencement Date shall be subject to all obligations of Tenant under this Lease.4.Base Rent. Tenant shall pay Base Rent in the amount set forth on Page 1 of this Lease. The Security Deposit, and the first monthly installmentof estimated Operating Expenses (as hereafter defined) shall be due and payable by check on the date hereof, and Tenant promises to pay to Landlord inadvance, without demand, deduction or set-off, monthly installments of Base Rent on or before the first day of each calendar month succeeding theCommencement Date. Payments of Base Rent for any fractional calendar month shall be prorated. All payments (other than the first monthly installment ofBase Rent, Operating Expenses and the Security Deposit) required to be made by Tenant to Landlord hereunder (or to such other party as Landlord may fromtime to time specify in writing) shall be made by Electronic Fund Transfer (“EFT”) of immediately available federal funds before 11:00 a.m., Eastern Time atsuch place, within the continental United States, as Landlord may from time to time designate- 2 -to Tenant in writing. The obligation of Tenant to pay Base Rent and other sums to Landlord and the obligations of Landlord under this Lease areindependent obligations. Tenant shall have no right at any time to abate, reduce, or set-off any rent due hereunder except as may be expressly provided inthis Lease. If Tenant is delinquent in any monthly installment of Base Rent or of Operating Expenses beyond 5 days after the due date thereof, and afternotice as provided below, Tenant shall pay to Landlord on demand a late charge equal to 7 percent of such delinquent sum. Tenant shall not be obligated topay the late charge until Landlord has given Tenant 5 days written notice of the delinquent payment (which may be given at any time during thedelinquency); provided, however, that such notice shall not be required more than once in any 12-month period. The provision for such late charge shall bein addition to all of Landlord’s other rights and remedies hereunder or at law and shall not be construed as a penalty or as limiting Landlord’s remedies in anymanner.5.Security Deposit. The Security Deposit shall be held by Landlord as security for the performance of Tenant’s obligations under thisLease. The Security Deposit is not an advance rental deposit or a measure of Landlord’s damages in case of Tenant’s default. Upon each occurrence of anEvent of Default (hereinafter defined), Landlord may use all or part of the Security Deposit to pay delinquent payments due under this Lease, and the cost ofany damage, injury, expense or liability caused by such Event of Default, without prejudice to any other remedy provided herein or provided by law. Tenantshall pay Landlord on demand the amount that will restore the Security Deposit to its original amount. Landlord’s obligation respecting the Security Depositis that of a debtor, not a trustee; no interest shall accrue thereon. The Security Deposit shall be the property of Landlord, but shall be paid to Tenant whenTenant’s obligations under this Lease have been completely fulfilled. Landlord shall not be required to keep all or any part of the Security Deposit separatefrom its general accounts. Landlord shall be released from any obligation with respect to the Security Deposit upon transfer of this Lease and the Premises to aperson or entity assuming Landlord’s obligations under this Paragraph 5.Provided no Event of Default has occurred, exists, or would exist but for the passage of time, effective on the first day of the 27th fullcalendar month following the commencement date, the Security Deposit shall be reduced by $12,666.00, so that as of such date, the Security Deposit shallreflect a total amount of $25,334.00. The reduction amount shall be refunded to Tenant within 45 days after the applicable reduction date.6.Operating Expense Payments. During each month of the Lease Term, on the same date that Base Rent is due, Tenant shall pay Landlordan amount equal to 1/12 of the annual cost, as estimated by Landlord from time to time, of Tenant’s Proportionate Share (hereinafter defined) of OperatingExpenses for the Project. Payments thereof for any fractional calendar month shall be prorated. The term “Operating Expenses” means all costs and expensesincurred by Landlord with respect to the ownership, maintenance, and operation of the Project including, but not limited to costs of: Taxes (hereinafterdefined) and fees payable to tax consultants and attorneys for consultation and contesting taxes; insurance; utilities; maintenance, repair and replacement ofall portions of the Project, including without limitation, paving and parking areas, roads, non-structural components of the roofs (including the roofmembrane), alleys, and driveways, mowing, landscaping, snow removal, exterior painting, utility lines, heating, ventilation and air conditioning systems,lighting, electrical systems and other mechanical and building systems; amounts paid to contractors and subcontractors for work or services performed inconnection with any of the foregoing; charges or assessments of any association to which the Project is subject; property management fees payable to aproperty manager, including any affiliate of Landlord, or if there is no property manager, an administration fee of 15 percent of Operating Expenses payableto Landlord; security services, if any; trash collection, sweeping and removal; and additions or alterations made by Landlord to the Project or the Building inorder to comply with Legal Requirements (other than those expressly required herein to be made by Tenant) or that are appropriate to the continuedoperation of the Project or the Building as a bulk warehouse facility in the market area, provided that the cost of additions or alterations that are required tobe capitalized for federal income tax purposes shall be amortized on a straight line basis over a period equal to the lesser of the useful life thereof for federalincome tax purposes or 10 years. Operating Expenses do not include costs, expenses, depreciation or amortization for capital repairs and capital replacementsrequired to be made by Landlord under Paragraph 10 of this Lease, debt service under mortgages or ground rent under ground leases, costs of restoration tothe extent of net insurance proceeds received by Landlord with respect thereto, leasing commissions, or the costs of renovating space for tenants.If Tenant’s total payments of Operating Expenses for any year are less than Tenant’s Proportionate Share of actual Operating Expenses forsuch year, then Tenant shall pay the difference to Landlord within 30 days after demand, and if more, then Landlord shall retain such excess and credit itagainst Tenant’s next payments except that during the last calendar year of the Lease Term or any extension terms thereof, Landlord shall refund any suchexcess within 60 days following the termination of the Lease Term or any extension terms thereof, provided that Tenant is not in default of its obligationsunder this Lease. For purposes of calculating Tenant’s Proportionate Share of Operating Expenses, a year shall mean a calendar year except the first year,which shall begin on the Commencement Date, and the last year, which shall end on the expiration of this Lease. With respect to Operating Expenses whichLandlord allocates to the entire Project, Tenant’s “Proportionate Share” shall be the percentage set forth on the first page of this Lease as Tenant’sProportionate Share of the Project as reasonably adjusted by Landlord in the future for changes in the physical size of the Premises or the Project; and, withrespect to Operating Expenses which Landlord allocates only to the Building, Tenant’s “Proportionate Share” shall be the percentage set forth on the firstpage of this Lease as Tenant’s Proportionate Share of the Building as reasonably adjusted by Landlord in the future for changes in the physical size of thePremises or the Building. Landlord may equitably increase Tenant’s Proportionate Share for any item of expense or cost reimbursable by Tenant that relatesto a repair, replacement, or service that benefits only the Premises or only a portion of the Project or Building that includes the Premises or that varies withoccupancy or use. The estimated Operating Expenses for the Premises set forth on the first page of this Lease are only estimates, and Landlord makes noguaranty or warranty that such estimates will be accurate.7.Utilities. Tenant shall pay for all water, gas, electricity, heat, light, power, telephone, sewer, sprinkler services, refuse and trash collection, andother utilities and services used on the Premises, all maintenance charges for utilities, and any storm sewer charges or other similar charges for utilitiesimposed by any governmental entity or utility provider, together with any taxes,- 3 -penalties, surcharges or the like pertaining to Tenant’s use of the Premises. Landlord may cause at Tenant’s expense any utilities to be separately metered orcharged directly to Tenant by the provider in the event Landlord reasonably determines that Tenant’s use of such jointly metered utility materially exceedsthe use of such jointly metered utility by other tenants in the Building. Tenant shall pay its share of all charges for jointly metered utilities based uponconsumption, as reasonably determined by Landlord. No interruption or failure of utilities shall result in the termination of this Lease or the abatement ofrent. Notwithstanding anything contained herein to the contrary, in the event that such interruption or cessation of utilities results from Landlord’s negligentor willful act or omission continues beyond five (5) consecutive business days from the date of such interruption or cessation, then, provided Tenant hasdelivered Landlord with prompt notice of such interruption, the Base Rent and other monthly regular recurring charges of additional rent under this Leasewill abate, commencing on the sixth (6th) consecutive business day the Premises remain untenantable, and continuing until the date on which the utilities arerestored and the Premises are again tenantable. No abatement of rentals as hereinabove described will apply in the event such interruption of utilities is theresult of Tenant’s alterations to the Premises, or any negligent act or omission of Tenant, its agents, employees or contractors, or any cause other than thenegligent or willful act or omission of Landlord or its employees, agents or contractors. Tenant agrees to limit use of water and sewer for normal restroom use.8.Taxes. Landlord shall pay all taxes, assessments and governmental charges (collectively referred to as “Taxes”) that accrue against theProject during the Lease Term, including the Texas Margins Tax, which shall be included as part of the Operating Expenses charged to Tenant. Landlord maycontest by appropriate legal proceedings the amount, validity, or application of any Taxes or liens thereof. All capital levies or other taxes assessed orimposed on Landlord upon the rents payable to Landlord under this Lease and any franchise tax, any excise, use, margin, transaction, sales or privilege tax,assessment, levy or charge measured by or based, in whole or in part, upon such rents from the Premises and/or the Project or any portion thereof shall be paidby Tenant to Landlord monthly in estimated installments or upon demand, at the option of Landlord, as additional rent; provided, however, in no event shallTenant be liable for any net income taxes imposed on Landlord unless such net income taxes are in substitution for any Taxes payable hereunder. If any suchtax or excise is levied or assessed directly against Tenant or results from any Tenant-Made Alterations (defined below), then Tenant shall be responsible forand shall pay the same at such times and in such manner as the taxing authority shall require. Tenant shall be liable for all taxes levied or assessed againstany personal property or fixtures placed in the Premises, whether levied or assessed against Landlord or Tenant.9.Insurance. Landlord shall maintain all risk or special form property insurance covering the full replacement cost of the Building andcommercial general liability insurance on the Project in forms and amounts customary for properties substantially similar to the Project, subject to customarydeductibles. Landlord may, but is not obligated to, maintain such other insurance and additional coverages as it may deem necessary, including but notlimited to, rent loss insurance. All such insurance shall be included as part of the Operating Expenses charged to Tenant. The Project or Building may beincluded in a blanket policy (in which case the cost of such insurance allocable to the Project or Building will be determined by Landlord based upon thetotal insurance cost calculations). Tenant shall also reimburse Landlord for any increased premiums or additional insurance which Landlord reasonablydeems necessary as a result of Tenant’s use of the Premises.Tenant, at its expense, shall maintain during the Lease Term the following insurance, at Tenant’s sole cost and expense: (1) commercialgeneral liability insurance applicable to the Premises and its appurtenances providing, on an occurrence basis, a minimum combined single limit of$2,000,000; and in the event property of Tenant’s invitees or customers are kept in, or about the, Premises, Tenant shall maintain warehouser’s legal liabilityor bailee customers insurance for the full value of the property of such invitees or customers as determined by the warehouse contract between Tenant and itscustomer; (2) all risk or special form property insurance covering the full replacement cost of all property and improvements installed or placed in thePremises by Tenant; (3) workers’ compensation insurance as required by the state in which the Premises is located and in amounts as may be required byapplicable statute and shall include a waiver of subrogation in favor of Landlord; (4) employers liability insurance of at least $1,000,000; (5) businessautomobile liability insurance having a combined single limit of not less than $2,000,000 per occurrence insuring Tenant against liability arising out of theownership maintenance or use of any owned, hired or nonowned automobiles; and (6) business interruption insurance with a limit of liability representingloss of at least approximately 6 months of income. Any company writing any of Tenant’s insurance shall have an A.M. Best rating of not less than A-VIII andprovide primary coverage to Landlord (any policy issued to Landlord providing duplicate or similar coverage shall be deemed excess over Tenant’s policies).All commercial general liability and, if applicable, warehouser’s legal liability or bailee customers insurance policies shall name Tenant as a named insuredand Landlord, its property manager, and other designees of Landlord as the interest of such designees shall appear, as additional insureds. The limits andtypes of insurance maintained by Tenant shall not limit Tenant’s liability under this Lease. Tenant shall provide Landlord with certificates of such insuranceas required under this Lease prior to the earlier to occur of the Commencement Date or the date Tenant is provided with possession of the Premises, andthereafter upon renewals at least 15 days prior to the expiration of the insurance coverage. Acceptance by Landlord of delivery of any certificates of insurancedoes not constitute approval or agreement by Landlord that the insurance requirements of this section have been met, and failure of Landlord to identify adeficiency from evidence provided will not be construed as a waiver of Tenant’s obligation to maintain such insurance. In the event any of the insurancepolicies required to be carried by Tenant under this Lease shall be cancelled prior to the expiration date of such policy, or if Tenant receives notice of anycancellation of such insurance policies from the insurer prior to the expiration date of such policy, Tenant shall: (a) immediately deliver notice to Landlordthat such insurance has been, or is to be, cancelled, (b) shall promptly replace such insurance policy in order to assure no lapse of coverage shall occur, and(c) shall deliver to Landlord a certificate of insurance for such policy. The insurance required to be maintained by Tenant hereunder are only Landlord’sminimum insurance requirements and Tenant agrees and understands that such insurance requirements may not be sufficient to fully meet Tenant’s insuranceneedsThe all risk or special form property insurance obtained by Landlord and Tenant shall include a waiver of subrogation by the insurers andall rights based upon an assignment from its insured, against Landlord or Tenant, their officers, directors , employees, managers, agents, invitees andcontractors, in connection with any loss or damage thereby insured against.- 4 -Neither party nor its officers, directors, employees, managers, agents, invitees or contractors shall be liable to the other for loss or damage caused by any riskcoverable by all risk or special form property insurance, and each party waives any claims against the other party, and its officers, directors, employees,managers, agents, invitees and contractors for such loss or damage. The failure of a party to insure its property shall not void this waiver. Tenant and itsagents, employees and contractors shall not be liable for, and Landlord hereby waives all claims against such parties for losses resulting from an interruptionof Landlord’s business, or any person claiming through Landlord, resulting from any accident or occurrence in or upon the Premises or the Project from anycause whatsoever, including without limitation, damage caused in whole or in part, directly or indirectly, by the negligence of Tenant or its agents,employees or contractors. Landlord and its agents, employees and contractors shall not be liable for, and Tenant hereby waives all claims against such partiesfor losses resulting from an interruption of Tenant’s business, or any person claiming through Tenant, resulting from any accident or occurrence in or uponthe Premises or the Project from any cause whatsoever, including without limitation, damage caused in whole or in part, directly or indirectly, by thenegligence of Landlord or its agents, employees or contractors.10.Landlord’s Repairs. Landlord shall repair, at its expense and without pass through as an Operating Expense, the structural soundness ofthe roof (which does not include the roof membrane), the structural soundness of the foundation, and the structural soundness of the exterior walls of theBuilding in good repair, reasonable wear and tear and uninsured losses and damages caused by Tenant, its agents and contractors excluded. The term “walls”as used in this Paragraph 10 shall not include windows, glass or plate glass, doors or overhead doors, special store fronts, dock bumpers, dock plates orlevelers, or office entries. Tenant shall promptly give Landlord written notice of any repair required by Landlord pursuant to this Paragraph 10, after whichLandlord shall have a reasonable opportunity to repair.11.Tenant’s Repairs. Landlord, at Tenant’s expense as provided in Paragraph 6, shall maintain in good repair and condition the parkingareas and other common areas of the Building, including, but not limited to driveways, alleys, landscape and grounds surrounding the Premises. Subject toLandlord’s obligation in Paragraph 10 and subject to Paragraphs 9 and 15, Tenant, at its expense, shall repair, replace and maintain in good condition allportions of the Premises and all areas, improvements and systems exclusively serving the Premises including, without limitation, dock and loading areas,truck doors, plumbing, water and sewer lines up to points of common connection, fire sprinklers and fire protection systems, entries, doors, ceilings, windows,interior walls, and the interior side of demising walls, and heating, ventilation and air conditioning systems. Such repair and replacements include capitalexpenditures and repairs whose benefit may extend beyond the Term. Heating, ventilation and air conditioning systems and other mechanical and buildingsystems exclusively serving the Premises shall be maintained at Tenant’s expense pursuant to maintenance service contracts entered into by Tenant or, atLandlord’s election, by Landlord, in which case the costs of such contracts entered into by Landlord shall be included as an Operating Expense. The scope ofservices and contractors under such maintenance contracts shall be reasonably approved by Landlord. At Landlord’s request, Tenant shall enter into a jointmaintenance agreement with any railroad that services the Premises. If Tenant fails to perform any repair or replacement for which it is responsible, Landlordmay perform such work and be reimbursed by Tenant within 10 days after demand therefor. Subject to Paragraphs 9 and 15, Tenant shall bear the full cost ofany repair or replacement to any part of the Building or Project that results from damage caused by Tenant, its agents, contractors, or invitees and any repairthat benefits only the Premises.Landlord represents and warrants to its knowledge, that as of the Commencement Date the Building’s HVAC rooftop units are in goodworking order and Landlord warrants such systems for a period of ninety (90) days from the Commencement Date of the Lease Agreement; however, that suchwarranty shall not be effective for any maintenance, repair or replacements necessitated due to the misuse of, or damages caused by, Tenant, its employees,contractors, agents, subtenants, or invitees.12.Tenant-Made Alterations and Trade Fixtures. Any alterations, additions, or improvements made by or on behalf of Tenant to thePremises (“Tenant-Made Alterations”) shall be subject to Landlord’s prior written consent. Tenant shall cause, at its expense, all Tenant-Made Alterations tocomply with insurance requirements and with Legal Requirements and shall construct at its expense any alteration or modification required by LegalRequirements as a result of any Tenant-Made Alterations. All Tenant-Made Alterations shall be constructed in a good and workmanlike manner bycontractors reasonably acceptable to Landlord and only good grades of materials shall be used. All plans and specifications for any Tenant-Made Alterationsshall be submitted to Landlord for its approval. Landlord may monitor construction of the Tenant-Made Alterations. Tenant shall reimburse Landlord for itscosts in reviewing plans and specifications and in monitoring construction. Landlord’s right to review plans and specifications and to monitor constructionshall be solely for its own benefit, and Landlord shall have no duty to see that such plans and specifications or construction comply with applicable laws,codes, rules and regulations. Tenant shall provide Landlord with the identities and mailing addresses of all persons performing work or supplying materials,prior to beginning such construction, and Landlord may post on and about the Premises notices of non-responsibility pursuant to applicable law. Tenantshall furnish security or make other arrangements satisfactory to Landlord to assure payment for the completion of all work free and clear of liens and shallprovide certificates of insurance for worker’s compensation and other coverage in amounts and from an insurance company satisfactory to Landlordprotecting Landlord against liability for personal injury or property damage during construction. Upon completion of any Tenant-Made Alterations, Tenantshall deliver to Landlord sworn statements setting forth the names of all contractors and subcontractors who did work on the Tenant-Made Alterations andfinal lien waivers from all such contractors and subcontractors. Upon surrender of the Premises, all Tenant-Made Alterations and any leasehold improvementsconstructed by Landlord or Tenant shall remain on the Premises as Landlord’s property, except to the extent Landlord requires removal at Tenant’s expenseof any such items or Landlord and Tenant have otherwise agreed in writing in connection with Landlord’s consent to any Tenant-Made Alterations. Tenantshall repair any damage caused by the removal of such Tenant-Made Alterations upon surrender of the Premises.Tenant, at its own cost and expense and without Landlord’s prior approval, may erect such shelves, racking, bins, machinery and tradefixtures (collectively “Trade Fixtures”) in the ordinary course of its business provided that such items- 5 -do not alter the basic character of the Premises, do not overload or damage the Premises, and may be removed without injury to the Premises, and theconstruction, erection, and installation thereof complies with all Legal Requirements and with Landlord’s requirements set forth above. Tenant shall removeits Trade Fixtures and shall repair any damage caused by such removal upon surrender of the Premises.13.Signs. Tenant shall not make any changes to the exterior of the Premises, install any exterior lights, decorations, balloons, flags,pennants, banners, or painting, or erect or install any signs, windows or door lettering, placards, decorations, or advertising media of any type which can beviewed from the exterior of the Premises, without Landlord’s prior written consent, which consent may be withheld in Landlord’s sole discretion. Uponsurrender or vacation of the Premises, Tenant shall have removed all signs and repair, paint, and/or replace the building facia surface to which its signs areattached. Tenant shall obtain all applicable governmental permits and approvals for sign and exterior treatments. All signs, decorations, advertising media,blinds, draperies and other window treatment or bars or other security installations visible from outside the Premises shall be subject to Landlord’s approvaland conform in all respects to Landlord’s requirements.14.Parking. Tenant shall be entitled to park in common with other tenants of the Project in those areas designated for nonreserved parking.Landlord may allocate parking spaces among Tenant and other tenants in the Project if Landlord reasonably determines that such parking facilities arebecoming crowded. Landlord shall not be responsible for enforcing Tenant’s parking rights against any third parties.15.Restoration. If at any time during the Lease Term the Premises are damaged by a fire or other casualty, Landlord shall notify Tenantwithin 60 days after such damage as to the amount of time Landlord reasonably estimates it will take to restore the Premises. If the restoration time isestimated to exceed 6 months, either Landlord or Tenant may elect to terminate this Lease upon notice to the other party given no later than 30 days afterLandlord’s notice. If neither party elects to terminate this Lease or if Landlord estimates that restoration will take 6 months or less, then, subject to receipt ofsufficient insurance proceeds, Landlord shall promptly restore the Premises excluding the improvements installed by Tenant or by Landlord and paid byTenant, subject to delays arising from the collection of insurance proceeds or from Force Majeure events. Tenant at Tenant’s expense shall promptly perform,subject to delays arising from the collection of insurance proceeds, or from Force Majeure events (as defined in Paragraph 33), all repairs or restoration notrequired to be done by Landlord and shall promptly re-enter the Premises and commence doing business in accordance with this Lease. Notwithstanding theforegoing, either party may terminate this Lease if the Premises are damaged during the last year of the Lease Term and Landlord reasonably estimates that itwill take more than one month to repair such damage. Base Rent and Operating Expenses shall be abated for the period of repair and restoration commencingon the date of such casualty event in the proportion which the area of the Premises, if any, which is not usable by Tenant bears to the total area of thePremises. Such abatement shall be the sole remedy of Tenant, and except as provided herein, Tenant waives any right to terminate the Lease by reason ofdamage or casualty loss.Notwithstanding anything contained in the Lease to the contrary, to the extent the damage to the Project is attributable to Tenant, Tenantshall pay to Landlord with respect to any damage to the Project an amount of the commercially reasonable deductible under Landlord’s insurance policy, notto exceed $10,000.00, within 30 days after presentment of Landlord’s invoice.16.Condemnation. If any part of the Premises or the Project should be taken for any public or quasi‑public use under governmental law,ordinance, or regulation, or by right of eminent domain, or by private purchase in lieu thereof (a “Taking” or “Taken”), and the Taking would materiallyinterfere with or impair Landlord’s ownership or operation of the Project, then upon written notice by Landlord this Lease shall terminate and Base Rent shallbe apportioned as of said date. If part of the Premises shall be Taken, and this Lease is not terminated as provided above, the Base Rent payable hereunderduring the unexpired Lease Term shall be reduced to such extent as may be fair and reasonable under the circumstances. In the event of any such Taking,Landlord shall be entitled to receive the entire price or award from any such Taking without any payment to Tenant, and Tenant hereby assigns to LandlordTenant’s interest, if any, in such award. Tenant shall have the right, to the extent that same shall not diminish Landlord’s award, to make a separate claimagainst the condemning authority (but not Landlord) for such compensation as may be separately awarded or recoverable by Tenant for moving expenses anddamage to Tenant’s Trade Fixtures, if a separate award for such items is made to Tenant.17.Assignment and Subletting. Without Landlord’s prior written consent, which shall not be unreasonably withheld conditioned or delayed,Tenant shall not assign this Lease or sublease the Premises or any part thereof or mortgage, pledge, or hypothecate its leasehold interest or grant anyconcession or license within the Premises and any attempt to do any of the foregoing shall be void and of no effect. It shall be reasonable for the Landlord towithhold, delay or condition its consent, where required, to any assignment or sublease in any of the following instances: (i) the assignee or sublessee doesnot have a net worth calculated according to generally accepted accounting principles at least equal to the greater of the net worth of Tenant immediatelyprior to such assignment or sublease or the net worth of the Tenant at the time it executed the Lease; (ii) occupancy of the Premises by the assignee orsublessee would, in Landlord’s opinion, violate any agreement binding upon Landlord or the Project with regard to the identity of tenants, usage in theProject, or similar matters; (iii) the identity or business reputation of the assignee or sublessee will, in the good faith judgment of Landlord, tend to damagethe goodwill or reputation of the Project; (iv) the assignment or sublease is to another tenant in the Project and is at rates which are below those charged byLandlord for comparable space in the Project; or (v) in the case of a sublease, the subtenant has not acknowledged that the Lease controls over anyinconsistent provision in the sublease. The foregoing criteria shall not exclude any other reasonable basis for Landlord to refuse its consent to suchassignment or sublease. Any approved assignment or sublease shall be expressly subject to the terms and conditions of this Lease. Tenant shall provide toLandlord all information concerning the assignee or sublessee as Landlord may reasonably request. Landlord may revoke its consent immediately andwithout notice if, as of the effective date of the assignment or sublease, there has occurred and is continuing any default under the Lease. For purposes of thisparagraph, a transfer of the ownership interests controlling- 6 -Tenant shall be deemed an assignment of this Lease unless such ownership interests are publicly traded. Notwithstanding the above, Tenant may assign orsublet the Premises, or any part thereof, to any entity controlling Tenant, controlled by Tenant or under common control with Tenant (a “Tenant Affiliate”),without the prior written consent of Landlord. Tenant shall reimburse Landlord for all of Landlord’s reasonable expenses in connection with any assignmentor sublease not to exceed $2,000.00, provided that Tenant does not request any changes to this Lease or Landlord’s standard form of consent in connectionwith the proposed assignment or sublease. This Lease shall be binding upon Tenant and its successors and permitted assigns. Upon Landlord’s receipt ofTenant’s written notice of a desire to assign or sublet the Premises, or any part thereof (other than to a Tenant Affiliate), Landlord may, by giving writtennotice to Tenant within 30 days after receipt of Tenant’s notice, terminate this Lease with respect to the space described in Tenant’s notice, as of the datespecified in Tenant’s notice for the commencement of the proposed assignment or sublease.Notwithstanding any assignment or subletting, Tenant and any guarantor or surety of Tenant’s obligations under this Lease shall at alltimes remain fully responsible and liable for the payment of the rent and for compliance with all of Tenant’s other obligations under this Lease (regardless ofwhether Landlord’s approval has been obtained for any such assignments or sublettings). In the event that the rent due and payable by a sublessee or assignee(or a combination of the rental payable under such sublease or assignment plus any bonus or other consideration therefor or incident thereto) exceeds therental payable under this Lease, then Tenant shall be bound and obligated to pay Landlord as additional rent hereunder all such excess rental and otherexcess consideration within 10 days following receipt thereof by Tenant; provided in the event of a sublease which is less than 100% of the Premises suchexcess rental and other consideration shall be applied on a square foot basis.If this Lease be assigned or if the Premises be subleased (whether in whole or in part) or in the event of the mortgage, pledge, orhypothecation of Tenant’s leasehold interest or grant of any concession or license within the Premises or if the Premises be occupied in whole or in part byanyone other than Tenant, then upon a default by Tenant hereunder Landlord may collect rent from the assignee, sublessee, mortgagee, pledgee, party towhom the leasehold interest was hypothecated, concessionee or licensee or other occupant and, except to the extent set forth in the preceding paragraph,apply the amount collected to the next rent payable hereunder; and all such rentals collected by Tenant shall be held in trust for Landlord and immediatelyforwarded to Landlord. No such transaction or collection of rent or application thereof by Landlord, however, shall be deemed a waiver of these provisions ora release of Tenant from the further performance by Tenant of its covenants, duties, or obligations hereunder.18.Indemnification. Except for the negligence or intentional misconduct of Landlord, its agents, employees or contractors, and to theextent permitted by law, Tenant agrees to indemnify, defend and hold harmless Landlord, and Landlord’s agents, employees and contractors, from andagainst any and all losses, liabilities, damages, costs and expenses (including attorneys’ fees) resulting from claims by third parties for injuries to any personand damage to or theft or misappropriation or loss of property occurring in or about the Project and arising from the use and occupancy of the Premises orfrom any activity, work, or thing done, permitted or suffered by Tenant in or about the Premises or due to any other act or omission of Tenant, its subtenants,assignees, invitees, employees, contractors and agents. The furnishing of insurance required hereunder shall not be deemed to limit Tenant’s obligationsunder this Paragraph 18.19.Inspection and Access. Landlord and its agents, representatives, and contractors may enter the Premises at any reasonable time to inspect thePremises and to make such repairs as may be required or permitted pursuant to this Lease and for any other business purpose. Landlord shall not enter thePremises for the purposes stated in this Paragraph 19 without providing at least 24 hours telephonic notice to Tenant, unless an emergency circumstanceexists. Landlord and Landlord’s representatives may enter the Premises during business hours for the purpose of showing the Premises to prospectivepurchasers and, during the last year of the Lease Term, to prospective tenants. Landlord may erect a suitable sign on the Premises stating the Premises areavailable to let or that the Project is available for sale. Landlord may grant easements, make public dedications, designate and modify common areas andcreate restrictions on or about the Premises, provided that no such easement, dedication, designation, modification or restriction materially interferes withTenant’s use or occupancy of the Premises. At Landlord’s request, Tenant shall execute such instruments as may be necessary for such easements, dedicationsor restrictions.20.Quiet Enjoyment. If Tenant shall perform all of the covenants and agreements herein required to be performed by Tenant, Tenant shall,subject to the terms of this Lease, at all times during the Lease Term, have peaceful and quiet enjoyment of the Premises against any person claiming by,through or under Landlord.21.Surrender. Upon termination of the Lease Term or earlier termination of Tenant’s right of possession, Tenant shall surrender thePremises to Landlord in the same condition as received ordinary wear and tear, casualty loss and condemnation covered by Paragraphs 15 and 16 exceptedand otherwise in accordance with the Move Out Conditions Addendum attached hereto. Without limiting the foregoing, Tenant shall remove any odor whichmay exist in the Premises resulting from Tenant’s occupancy of the Premises upon the termination of the Lease Term or earlier termination of Tenant’s rightof possession. Any Trade Fixtures, Tenant-Made Alterations and property not so removed by Tenant as permitted or required herein shall be deemedabandoned and may be stored, removed, and disposed of by Landlord at Tenant’s expense, and Tenant waives all claims against Landlord for any damagesresulting from Landlord’s retention and disposition of such property. All obligations of Tenant hereunder not fully performed as of the termination of theLease Term shall survive the termination of the Lease Term, including without limitation, indemnity obligations, payment obligations with respect toOperating Expenses and obligations concerning the condition and repair of the Premises.22.Holding Over. If Tenant retains possession of the Premises after the termination of the Lease Term, unless otherwise agreed in writing,such possession shall be subject to immediate termination by Landlord at any time, and all of the other terms and provisions of this Lease (excluding anyexpansion or renewal option or other similar right or option) shall be applicable during such holdover period, except that Tenant shall pay Landlord fromtime to time, upon demand, as Base Rent for- 7 -the holdover period, an amount equal to 150% of the Base Rent in effect on the termination date, computed on a monthly basis for each month or part thereofduring such holding over. All other payments shall continue under the terms of this Lease. In addition, Tenant shall be liable for all damages incurred byLandlord as a result of such holding over. No holding over by Tenant, whether with or without consent of Landlord, shall operate to extend this Lease exceptas otherwise expressly provided, and this Paragraph 22 shall not be construed as consent for Tenant to retain possession of the Premises. For purposes of thisParagraph 22, “possession of the Premises” shall continue until, among other things, Tenant has delivered all keys to the Premises to Landlord, Landlord hascomplete and total dominion and control over the Premises, and Tenant has completely fulfilled all obligations required of it upon termination of the Leaseas set forth in this Lease, including, without limitation, those concerning the condition and repair of the Premises.23.Events of Default. Each of the following events shall be an event of default (“Event of Default”) by Tenant under this Lease:(i)Tenant shall fail to pay any installment of Base Rent or any other payment required herein when due, and such failure shallcontinue for a period of 5 days after written notice from Landlord to Tenant that such payment was due; provided, however, that Landlord shall notbe obligated to provide written notice of such failure more than 1 time in any consecutive 12-month period, and the failure of Tenant to pay anysecond or subsequent installment of Base Rent or any other payment required herein when due in any consecutive 12-month period shall constitutean Event of Default by Tenant under this Lease without the requirement of notice or opportunity to cure; provided, however, that any such noticeshall be in lieu of, and not in addition to, any notice required under applicable law.(ii)Tenant or any guarantor or surety of Tenant’s obligations hereunder shall (A) make a general assignment for the benefit ofcreditors; (B) commence any case, proceeding or other action seeking to have an order for relief entered on its behalf as a debtor or to adjudicate it asbankrupt or insolvent, or seeking reorganization, arrangement, adjustment, liquidation, dissolution or composition of it or its debts or seekingappointment of a receiver, trustee, custodian or other similar official for it or for all or of any substantial part of its property (collectively a“proceeding for relief”); (C) become the subject of any proceeding for relief which is not dismissed within 60 days of its filing or entry; or (D) die orsuffer a legal disability (if Tenant, guarantor, or surety is an individual) or be dissolved or otherwise fail to maintain its legal existence (if Tenant,guarantor or surety is a corporation, partnership or other entity).(iii)Any insurance required to be maintained by Tenant pursuant to this Lease shall be cancelled or terminated or shall expire orshall be reduced or materially changed, except, if the same is replaced in each case, as permitted in this Lease and no lapse in coverage occurredduring such replacement process.(iv)Tenant shall not occupy or shall vacate the Premises whether or not Tenant is in monetary or other default under this Lease.Tenant’s vacating of the Premises shall not constitute an Event of Default if, prior to vacating the Premises, Tenant has made arrangementsreasonably acceptable to Landlord to (a) ensure that Tenant’s insurance for the Premises will not be voided or cancelled with respect to the Premisesas a result of such vacancy, (b) ensure that the Premises are secured and not subject to vandalism, and (c) ensure that the Premises will be properlymaintained after such vacation, including, but not limited to, keeping the heating, ventilation and cooling systems maintenance contracts requiredby this Lease in full force and effect and maintaining the utility services. Tenant shall inspect the Premises at least once each month and reportmonthly in writing to Landlord on the condition of the Premises.(v)Tenant shall attempt or there shall occur any assignment, subleasing or other transfer of Tenant’s interest in or with respect tothis Lease except as otherwise permitted in this Lease.(vi)Tenant shall fail to discharge any lien placed upon the Premises in violation of this Lease within 20 days after any such lien orencumbrance is filed against the Premises.(vii)Tenant shall fail to comply with any provision of this Lease other than those specifically referred to in this Paragraph 23, andexcept as otherwise expressly provided herein, such default shall continue for more than 30 days after Landlord shall have given Tenant writtennotice of such default (said notice being in lieu of, and not in addition to, any notice required as a prerequisite to a forcible entry and detainer orsimilar action for possession of the Premises).24.Landlord’s Remedies. Upon each occurrence of an Event of Default and so long as such Event of Default shall be continuing, Landlordmay at any time thereafter at its election: terminate this Lease or Tenant’s right of possession, (but Tenant shall remain liable as hereinafter provided) and/orpursue any other remedies at law or in equity. Upon the termination of this Lease or termination of Tenant’s right of possession, it shall be lawful forLandlord, without formal demand or notice of any kind, to re-enter the Premises by summary dispossession proceedings or any other action or proceedingauthorized by law and to remove Tenant and all persons and property therefrom. If Landlord re-enters the Premises, Landlord shall have the right to keep inplace and use, or remove and store, all of the furniture, fixtures and equipment at the Premises.If Landlord terminates this Lease, Landlord may recover from Tenant the sum of: all Base Rent and all other amounts accrued hereunder tothe date of such termination; the value of the Base Rent for any periods of abated Monthly Base Rent based on the Monthly Base Rent amount thatimmediately follows such period of abatement; the cost of reletting the whole or any part of the Premises, including without limitation brokerage fees and/orleasing commissions incurred by Landlord, and costs of removing and storing Tenant’s or any other occupant’s property, repairing, altering, remodeling, orotherwise putting the Premises into condition acceptable to a new tenant or tenants, and all reasonable expenses incurred by Landlord in pursuing itsremedies, including reasonable attorneys’ fees and court costs; and the excess of the then present value of the Base Rent and other- 8 -amounts payable by Tenant under this Lease as would otherwise have been required to be paid by Tenant to Landlord during the period following thetermination of this Lease measured from the date of such termination to the expiration date stated in this Lease, over the present value of any net amountswhich Tenant establishes Landlord can reasonably expect to recover by reletting the Premises for such period, taking into consideration the availability ofacceptable tenants and other market conditions affecting leasing. Such present values shall be calculated at a discount rate equal to the 90-day U.S. Treasurybill rate at the date of such termination.If Landlord terminates Tenant’s right of possession (but not this Lease), Landlord may, but shall be under no obligation to, relet thePremises for the account of Tenant for such rent and upon such terms as shall be satisfactory to Landlord without thereby releasing Tenant from any liabilityhereunder and without demand or notice of any kind to Tenant. For the purpose of such reletting Landlord is authorized to make any repairs, changes,alterations, or additions in or to the Premises as Landlord deems reasonably necessary or desirable. If the Premises are not relet, then Tenant shall pay toLandlord as damages a sum equal to the amount of the rental reserved in this Lease for such period or periods, plus the cost of recovering possession of thePremises (including attorneys’ fees and costs of suit), the unpaid Base Rent and other amounts accrued hereunder at the time of repossession, and the costsincurred in any attempt by Landlord to relet the Premises. If the Premises are relet and a sufficient sum shall not be realized from such reletting [after firstdeducting therefrom, for retention by Landlord, the unpaid Base Rent and other amounts accrued hereunder at the time of reletting, the cost of recoveringpossession (including attorneys’ fees and costs of suit), all of the costs and expense of repairs, changes, alterations, and additions, the expense of suchreletting (including without limitation brokerage fees and leasing commissions) and the cost of collection of the rent accruing therefrom] to satisfy the rentprovided for in this Lease to be paid, then Tenant shall immediately satisfy and pay any such deficiency. Any such payments due Landlord shall be madeupon demand therefor from time to time and Tenant agrees that Landlord may file suit to recover any sums falling due from time to time. Notwithstandingany such reletting without termination, Landlord may at any time thereafter elect in writing to terminate this Lease for such previous breach.Exercise by Landlord of any one or more remedies hereunder granted or otherwise available shall not be deemed to be an acceptance ofsurrender of the Premises and/or a termination of this Lease by Landlord, whether by agreement or by operation of law, it being understood that suchsurrender and/or termination can be effected only by the written agreement of Landlord and Tenant. Any law, usage, or custom to the contrarynotwithstanding, Landlord shall have the right at all times to enforce the provisions of this Lease in strict accordance with the terms hereof; and the failure ofLandlord at any time to enforce its rights under this Lease strictly in accordance with same shall not be construed as having created a custom in any way ormanner contrary to the specific terms, provisions, and covenants of this Lease or as having modified the same. Tenant and Landlord further agree thatforbearance or waiver by Landlord to enforce its rights pursuant to this Lease or at law or in equity, shall not be a waiver of Landlord’s right to enforce one ormore of its rights in connection with any subsequent default. A receipt by Landlord of rent or other payment with knowledge of the breach of any covenanthereof shall not be deemed a waiver of such breach, and no waiver by Landlord of any provision of this Lease shall be deemed to have been made unlessexpressed in writing and signed by Landlord. To the greatest extent permitted by law, Tenant waives the service of notice of Landlord’s intention to re-enteras provided for in any statute, or to institute legal proceedings to that end, and also waives all right of redemption in case Tenant shall be dispossessed by ajudgment or by warrant of any court or judge. The terms “enter,” “re-enter,” “entry” or “re-entry,” as used in this Lease, are not restricted to their technicallegal meanings. Any reletting of the Premises shall be on such terms and conditions as Landlord in its sole discretion may determine (including withoutlimitation a term different than the remaining Lease Term, rental concessions, alterations and repair of the Premises, lease of less than the entire Premises toany tenant and leasing any or all other portions of the Project before reletting the Premises). Landlord shall not be liable, nor shall Tenant’s obligationshereunder be diminished because of, Landlord’s failure to relet the Premises or collect rent due in respect of such reletting.25.Tenant’s Remedies/Limitation of Liability. Landlord shall not be in default hereunder unless Landlord fails to perform any of itsobligations hereunder within 30 days after written notice from Tenant specifying such failure (unless such performance will, due to the nature of theobligation, require a period of time in excess of 30 days, then after such period of time as is reasonably necessary). All obligations of Landlord hereundershall be construed as covenants, not conditions; and, except as may be otherwise expressly provided in this Lease, Tenant may not terminate this Lease forbreach of Landlord’s obligations hereunder. All obligations of Landlord under this Lease will be binding upon Landlord only during the period of itsownership of the Premises and not thereafter. The term “Landlord” in this Lease shall mean only the owner, for the time being of the Premises, and in theevent of the transfer by such owner of its interest in the Premises, such owner shall thereupon be released and discharged from all obligations of Landlordthereafter accruing, but such obligations shall be binding during the Lease Term upon each new owner for the duration of such owner’s ownership. Anyliability of Landlord under this Lease shall be limited solely to its interest in the Project, and in no event shall any personal liability be asserted againstLandlord in connection with this Lease nor shall any recourse be had to any other property or assets of Landlord.26.Landlord’s Lien/Security Interest. Landlord hereby waives any right of distraint or statutory lien for rent against Tenant’s property on thePremises that would permit Landlord to possess or sell Tenant’s property before obtaining a judgment. Landlord does not waive any right to obtain andenforce any judgment lien or any pre-judgment rights and remedies other than those described above.27.Subordination. This Lease and Tenant’s interest and rights hereunder are and shall be subject and subordinate at all times to the lien ofany first mortgage, now existing or hereafter created on or against the Project or the Premises, and all amendments, restatements, renewals, modifications,consolidations, refinancing, assignments and extensions thereof, without the necessity of any further instrument or act on the part of Tenant. Tenant agrees, atthe election of the holder of any such mortgage, to attorn to any such holder. Tenant agrees upon demand to execute, acknowledge and deliver suchinstruments, confirming such subordination and such instruments of attornment as shall be requested by any such holder. Notwithstanding the foregoing, anysuch holder may at any time subordinate its mortgage to this Lease, without Tenant’s consent, by notice in writing to Tenant, and- 9 -thereupon this Lease shall be deemed prior to such mortgage without regard to their respective dates of execution, delivery or recording and in that eventsuch holder shall have the same rights with respect to this Lease as though this Lease had been executed prior to the execution, delivery and recording ofsuch mortgage and had been assigned to such holder. The term “mortgage” whenever used in this Lease shall be deemed to include deeds of trust, securityassignments and any other encumbrances, and any reference to the “holder” of a mortgage shall be deemed to include the beneficiary under a deed of trust.28.Mechanic’s Liens. Tenant has no express or implied authority to create or place any lien or encumbrance of any kind upon, or in anymanner to bind the interest of Landlord or Tenant in, the Premises or to charge the rentals payable hereunder for any claim in favor of any person dealing withTenant, including those who may furnish materials or perform labor for any construction or repairs. Tenant covenants and agrees that it will pay or cause to bepaid all sums legally due and payable by it on account of any labor performed or materials furnished in connection with any work performed on the Premisesand that it will save and hold Landlord harmless from all loss, cost or expense based on or arising out of asserted claims or liens against the leasehold estate oragainst the interest of Landlord in the Premises or under this Lease. Tenant shall give Landlord immediate written notice of the placing of any lien orencumbrance against the Premises and cause such lien or encumbrance to be discharged within 20 days of the filing or recording thereof; provided, however,Tenant may contest such liens or encumbrances as long as such contest prevents foreclosure of the lien or encumbrance and Tenant causes such lien orencumbrance to be bonded or insured over in a manner satisfactory to Landlord within such 20 day period.29.Estoppel Certificates. Tenant agrees, from time to time, within 10 days after request of Landlord, to execute and deliver to Landlord, orLandlord’s designee, any estoppel certificate requested by Landlord, stating that this Lease is in full force and effect, the date to which rent has been paid,that Landlord is not in default hereunder (or specifying in detail the nature of Landlord’s default), the termination date of this Lease and such other matterspertaining to this Lease as may be requested by Landlord. Tenant’s obligation to furnish each estoppel certificate in a timely fashion is a material inducementfor Landlord’s execution of this Lease. No cure or grace period provided in this Lease shall apply to Tenant’s obligations to timely deliver an estoppelcertificate.30.Environmental Requirements. Except for Hazardous Material contained in products used by Tenant in de minimis quantities forordinary cleaning and office purposes, and except for propane used in Tenant’s forklifts in the normal course of its business, and except for HazardousMaterials contained in products stored and/or distributed during Tenant’s normal course of business in their original, sealed, and unopened containers,Tenant shall not permit or cause any party to bring any Hazardous Material upon the Premises or transport, store, use, generate, manufacture or release anyHazardous Material in or about the Premises without Landlord’s prior written consent. Tenant, at its sole cost and expense, shall operate its business in thePremises in strict compliance with all Environmental Requirements and shall remediate in a manner satisfactory to Landlord any Hazardous Materialsreleased on or from the Project by Tenant, its agents, employees, contractors, subtenants or invitees. Tenant shall complete and certify to disclosurestatements as requested by Landlord from time to time relating to Tenant’s transportation, storage, use, generation, manufacture or release of HazardousMaterials on the Premises. The term “Environmental Requirements” means all applicable present and future statutes, regulations, ordinances, rules, codes,judgments, orders or other similar enactments of any governmental authority or agency regulating or relating to health, safety, or environmental conditionson, under, or about the Premises or the environment, including without limitation, the following: the Comprehensive Environmental Response,Compensation and Liability Act; the Resource Conservation and Recovery Act; and all state and local counterparts thereto, and any regulations or policiespromulgated or issued thereunder. The term “Hazardous Materials” means and includes any substance, material, waste, pollutant, or contaminant listed ordefined as hazardous or toxic, under any Environmental Requirements, asbestos and petroleum, including crude oil or any fraction thereof, natural gasliquids, liquefied natural gas, or synthetic gas usable for fuel (or mixtures of natural gas and such synthetic gas). As defined in Environmental Requirements,Tenant is and shall be deemed to be the “operator” of Tenant’s “facility” and the “owner” of all Hazardous Materials brought on the Premises by Tenant, itsagents, employees, contractors or invitees, and the wastes, by-products, or residues generated, resulting, or produced therefrom. No cure or grace periodprovided in this Lease shall apply to Tenant’s obligations to comply with the terms and conditions of this Paragraph 30.Notwithstanding anything to the contrary in this Paragraph 30, Tenant shall have no liability of any kind to Landlord as to HazardousMaterials on the Premises caused or permitted by (i) Landlord, its agents, employees, contractors or invitees; or (ii) any other tenants in the Project or theiragents, employees, contractors, subtenants, assignees or invitees.Tenant shall indemnify, defend, and hold Landlord harmless from and against any and all losses (including, without limitation, diminutionin value of the Premises or the Project and loss of rental income from the Project), claims, demands, actions, suits, damages (including, without limitation,punitive damages), expenses (including, without limitation, remediation, removal, repair, corrective action, or cleanup expenses), and costs (including,without limitation, actual attorneys’ fees, consultant fees or expert fees and including, without limitation, removal or management of any asbestos broughtinto the property or disturbed in breach of the requirements of this Paragraph 30, regardless of whether such removal or management is required by law) whichare brought or recoverable against, or suffered or incurred by Landlord as a result of any release of Hazardous Materials for which Tenant is obligated toremediate as provided above or any other breach of the requirements under this Paragraph 30 by Tenant, its agents, employees, contractors, subtenants,assignees or invitees, regardless of whether Tenant had knowledge of such noncompliance. The obligations of Tenant under this Paragraph 30 shall surviveany termination of this Lease.Landlord shall have access to, and a right to perform inspections and tests of, the Premises to determine Tenant’s compliance withEnvironmental Requirements, its obligations under this Paragraph 30, or the environmental condition of the Premises. Access shall be granted to Landlordupon Landlord’s prior notice to Tenant and at such times so as to minimize, so far as may be reasonable under the circumstances, any disturbance to Tenant’soperations. Such inspections and tests shall be conducted at Landlord’s expense, unless such inspections or tests reveal that Tenant has not complied withany Environmental Requirement,- 10 -in which case Tenant shall reimburse Landlord for the reasonable cost of such inspection and tests. Landlord’s receipt of or satisfaction with anyenvironmental assessment in no way waives any rights that Landlord holds against Tenant.31.Rules and Regulations. Tenant shall, at all times during the Lease Term and any extension thereof, comply with all reasonable rules andregulations at any time or from time to time established by Landlord covering use of the Premises and the Project. The current Project rules and regulationsare attached hereto as Exhibit B. In the event of any conflict between said rules and regulations and other provisions of this Lease, the other terms andprovisions of this Lease shall control. Landlord shall not have any liability or obligation for the breach of any rules or regulations by other tenants in theProject.32.Security Service. Tenant acknowledges and agrees that, while Landlord may patrol the Project, Landlord is not providing any securityservices with respect to the Premises and that Landlord shall not be liable to Tenant for, and Tenant waives any claim against Landlord with respect to, anyloss by theft or any other damage suffered or incurred by Tenant in connection with any unauthorized entry into the Premises or any other breach of securitywith respect to the Premises.33.Force Majeure. Landlord shall not be held responsible for delays in the performance of its obligations hereunder when caused bystrikes, lockouts, labor disputes, acts of God, inability to obtain labor or materials or reasonable substitutes therefor, governmental restrictions, governmentalregulations, governmental controls, delay in issuance of permits, enemy or hostile governmental action, civil commotion, fire or other casualty, and othercauses beyond the reasonable control of Landlord (“Force Majeure”).34.Entire Agreement. This Lease constitutes the complete agreement of Landlord and Tenant with respect to the subject matter hereof. Norepresentations, inducements, promises or agreements, oral or written, have been made by Landlord or Tenant, or anyone acting on behalf of Landlord orTenant, which are not contained herein, and any prior agreements, promises, negotiations, or representations are superseded by this Lease. This Lease may notbe amended except by an instrument in writing signed by both parties hereto.35.Severability. If any clause or provision of this Lease is illegal, invalid or unenforceable under present or future laws, then and in thatevent, it is the intention of the parties hereto that the remainder of this Lease shall not be affected thereby. It is also the intention of the parties to this Leasethat in lieu of each clause or provision of this Lease that is illegal, invalid or unenforceable, there be added, as a part of this Lease, a clause or provision assimilar in terms to such illegal, invalid or unenforceable clause or provision as may be possible and be legal, valid and enforceable.36.Brokers. Tenant represents and warrants that it has dealt with no broker, agent or other person in connection with this transaction andthat no broker, agent or other person brought about this transaction, other than the broker, if any, set forth on the first page of this Lease, and Tenant agrees toindemnify and hold Landlord harmless from and against any claims by any other broker, agent or other person claiming a commission or other form ofcompensation by virtue of having dealt with Tenant with regard to this leasing transaction.37.Miscellaneous. (a) Any payments or charges due from Tenant to Landlord hereunder shall be considered rent for all purposes of thisLease.(b)If and when included within the term “Tenant,” as used in this instrument, there is more than one person, firm or corporation, each shallbe jointly and severally liable for the obligations of Tenant.(c)All notices required or permitted to be given under this Lease shall be in writing and shall be sent by registered or certified mail, returnreceipt requested, or by a reputable national overnight courier service, postage prepaid, or by hand delivery addressed to Landlord at 2501 N. Harwood Street,Suite 2450, Dallas, TX 75201 with a copy sent to Landlord at 4545 Airport Way, Denver, Colorado 80239, Attention: General Counsel, and to Tenant at5151 Samuell Boulevard, Suite 130, Dallas, Texas 75228, Attention: Chris Cunningham. Either party may by notice given aforesaid change its address for allsubsequent notices or add an additional party to be copied on all subsequent notices. Except where otherwise expressly provided to the contrary, notice shallbe deemed given upon delivery.(d)Except as otherwise expressly provided in this Lease or as otherwise required by law, Landlord retains the absolute right to withhold anyconsent or approval.(e)In the event of (i) a default by Tenant of its obligations under the Lease, or (ii) a need by Landlord to effectuate a financing transaction or saleof the Building, or (iii) an assignment or subletting of the Lease by Tenant, then at Landlord’s request from time to time Tenant shall furnish Landlord withtrue and complete copies of its most recent annual and quarterly financial statements prepared by Tenant or Tenant’s accountants and any other financialinformation or summaries that Tenant typically provides to its lenders or shareholders. Upon written request from Tenant, Landlord and Tenant shall enterinto a confidentiality agreement in a form mutually acceptable to Landlord and Tenant with respect to financial information provided by Tenant that is notgenerally available to the public.(f)Neither this Lease nor a memorandum of lease shall be filed by or on behalf of Tenant in any public record. Landlord may prepare andfile, and upon request by Landlord Tenant will execute, a memorandum of lease.(g)The normal rule of construction to the effect that any ambiguities are to be resolved against the drafting party shall not be employed inthe interpretation of this Lease or any exhibits or amendments hereto.- 11 -(h)The submission by Landlord to Tenant of this Lease shall have no binding force or effect, shall not constitute an option for the leasing ofthe Premises, nor confer any right or impose any obligations upon either party until execution of this Lease by both parties.(i)Words of any gender used in this Lease shall be held and construed to include any other gender, and words in the singular number shallbe held to include the plural, unless the context otherwise requires. The captions inserted in this Lease are for convenience only and in no way define, limit orotherwise describe the scope or intent of this Lease, or any provision hereof, or in any way affect the interpretation of this Lease.(j)Any amount not paid by Tenant within 5 days after its due date in accordance with the terms of this Lease shall bear interest from suchdue date until paid in full at the lesser of the highest rate permitted by applicable law or 15 percent per year. It is expressly the intent of Landlord and Tenantat all times to comply with applicable law governing the maximum rate or amount of any interest payable on or in connection with this Lease. If applicablelaw is ever judicially interpreted so as to render usurious any interest called for under this Lease, or contracted for, charged, taken, reserved, or received withrespect to this Lease, then it is Landlord’s and Tenant’s express intent that all excess amounts theretofore collected by Landlord be credited on the applicableobligation (or, if the obligation has been or would thereby be paid in full, refunded to Tenant), and the provisions of this Lease immediately shall be deemedreformed and the amounts thereafter collectible hereunder reduced, without the necessity of the execution of any new document, so as to comply with theapplicable law, but so as to permit the recovery of the fullest amount otherwise called for hereunder.(k)Construction and interpretation of this Lease shall be governed by the laws of the state in which the Project is located, excluding anyprinciples of conflicts of laws.(l)Time is of the essence as to the performance of Tenant’s and Landlord’s obligations under this Lease.(m)All exhibits and addenda attached hereto are hereby incorporated into this Lease and made a part hereof. In the event of any conflictbetween such exhibits or addenda and the terms of this Lease, such exhibits or addenda shall control.(n) In the event either party hereto initiates litigation to enforce the terms and provisions of this Lease, the non-prevailing party in such actionshall reimburse the prevailing party for its reasonable attorney’s fees, filing fees, and court costs.(o) Tenant agrees and understands that Landlord shall have the right (provided that the exercise of Landlord’s rights does not adversely affectTenant’s use and occupancy of the Premises or subject Tenant to additional costs), without Tenant’s consent, to place a solar electric generating system onthe roof of the Building or enter into a lease for the roof of the Building whereby such roof tenant shall have the right to install a solar electric generatingsystem on the roof of the Building. Upon receipt of written request from Landlord, Tenant, at Tenant’s sole cost and expense, shall deliver to Landlord dataregarding the electricity consumed in the operation of the Premises (the “Energy Data”) for purposes of regulatory compliance, manual and automatedbenchmarking, energy management, building environmental performance labeling and other related purposes, including but not limited, to theEnvironmental Protection Agency’s Energy Star rating system and other energy benchmarking systems. Landlord shall use commercially reasonable efforts toutilize automated data transmittal services offered by utility companies to access the Energy Data. Landlord shall not publicly disclose Energy Data withoutTenant’s prior written consent. Landlord may, however, disclose Energy Data that has been modified, combined or aggregated in a manner such that theresulting data is not exclusively attributable to Tenant.(p) This Lease may be executed in any number of counterparts, each of which shall be deemed to be an original, and all of such counterparts shallconstitute one Lease. Execution copies of this Lease may be delivered by facsimile or email, and the parties hereto agree to accept and be bound by facsimilesignatures or scanned signatures transmitted via email hereto, which signatures shall be considered as original signatures with the transmitted Lease havingthe same binding effect as an original signature on an original Lease. At the request of either party, any facsimile document or scanned document transmittedvia email is to be re-executed in original form by the party who executed the original facsimile document or scanned document. Neither party may raise theuse of a facsimile machine or scanned document or the fact that any signature was transmitted through the use of a facsimile machine or email as a defense tothe enforcement of this Lease.38.Limitation of Liability of Trustees, Shareholders, and Officers of Landlord. Any obligation or liability whatsoever of Landlord whichmay arise at any time under this Lease or any obligation or liability which may be incurred by it pursuant to any other instrument, transaction, or undertakingcontemplated hereby shall not be personally binding upon, nor shall resort for the enforcement thereof be had to the property of, its trustees, directors,shareholders, officers, employees or agents, regardless of whether such obligation or liability is in the nature of contract, tort, or otherwise.39.WAIVER OF JURY TRIAL. TENANT AND LANDLORD WAIVE ANY RIGHT TO TRIAL BY JURY OR TO HAVE A JURYPARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT, OR OTHERWISE, BETWEEN LANDLORD ANDTENANT ARISING OUT OF THIS LEASE OR ANY OTHER INSTRUMENT, DOCUMENT, OR AGREEMENT EXECUTED OR DELIVERED INCONNECTION HEREWITH OR THE TRANSACTIONS RELATED HERETO.- 12 -IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease as of the day and year first above written.TENANT: LANDLORD: Unified ConneXions, Inc.a Texas corporation PROLOGIS TARGETED U.S. LOGISTICS FUND, L.P. a Delaware limited partnership By: Prologis L.P. a Delaware limited partnership its general partnerBy: Prologis, Inc. A Maryland corporation its general partnerBy: /s/ Jacob Milligan Name: Jacob Milligan Title: Vice President – Leasing Officer By: /s/ Chris Cunningham Name: Chris Cunningham Title: VP & CFO - 13 -ADDENDUM 1BASE RENT ADJUSTMENTSATTACHED TO AND A PART OF THE LEASE AGREEMENTDATED MARCH 25, 2016 BETWEENPROLOGIS TARGETED U.S. LOGISTICS FUND, L.P., a Delaware limited partnership andUnified ConneXions, Inc.Base Rent shall equal the following amounts for the respective periods set forth below:PeriodMonthly Base RentMay 1, 2016throughMay 31, 2016$0.00**June 1, 2016throughJuly 31, 2016$0.00*August 1, 2016throughJuly 31, 2017$8,735.85August 1, 2017throughJuly 31, 2018$8,910.57August 1, 2018throughJuly 31, 2019$9,088.78August 1, 2019throughJuly 31, 2020$9,270.55August 1, 2020throughJuly 31, 2021$9,455.96*Beginning June 1, 2016, Tenant shall be responsible for Operating Expenses through the remainder of the Lease Term.** From May 1, 2016 through May 31, 2016, Tenant not responsible for Base Rent or Operating Expenses.- 14 -ADDENDUM 2HVAC MAINTENANCE CONTRACTATTACHED TO AND A PART OF THE LEASE AGREEMENTDATED MARCH 25, 2016 BETWEENPROLOGIS TARGETED U.S. LOGISTICS FUND, L.P., a Delaware limited partnership andUnified ConneXions, Inc.Paragraph 11, captioned “TENANT REPAIRS,” is revised to include the following:Tenant agrees to enter into and maintain through the term of the Lease, a regularly scheduled preventative maintenance/service contract forservicing all hot water, heating and air conditioning systems and equipment within the Premises. Landlord requires a qualified HVAC contractor perform thiswork. A certificate must be provided to the Landlord upon occupancy of the leased Premises.The service contract must become effective within thirty (30) days of occupancy, and service visits shall be performed on a quarterly basis.Landlord suggests that Tenant send the following list to a qualified HVAC contractor to be assured that these items are included in the maintenance contract:1. Adjust belt tension;2. Lubricate all moving parts, as necessary;3. Inspect and adjust all temperature and safety controls;4. Check refrigeration system for leaks and operation;5. Check refrigeration system for moisture;6. Inspect compressor oil level and crank case heaters;7. Check head pressure, suction pressure and oil pressure;8. Inspect air filters and replace when necessary;9. Check space conditions;10.Check condensate drains and drain pans and clean, if necessary;11.Inspect and adjust all valves;12.Check and adjust dampers;13.Run machine through complete cycle.- 15 -ADDENDUM 3MOVE-OUT CONDITIONSATTACHED TO AND A PART OF THE LEASE AGREEMENTDATED MARCH 25, 2016 BETWEENPROLOGIS TARGETED U.S. LOGISTICS FUND, L.P., a Delaware limited partnership andUnified ConneXions, Inc.With respect to Paragraph 21 of the Lease, Tenant shall surrender the Premises in the same condition as received, ordinary wear and tear, casualty loss, andcondemnation covered by Paragraphs 15 and 16 excepted.Before surrendering the Premises, Tenant shall remove all of its personal property and trade fixtures and such alterations or additions to the Premises made byTenant as may be specified for removal thereof. If Tenant fails to remove its personal property and fixtures upon the expiration or earlier termination of thisLease, the same shall be deemed abandoned and shall become the property of the Landlord. The following list is designed to assist Tenant in the move-outprocedures but is not intended to be all inclusive:1.Lights: Office, warehouse, emergency and exit lights will be fully operational with all bulbs and ballasts functioning.2.Dock Levelers, Service Doorsand Roll Up Doors: All truck doors, service doors, roll up doors and dock levelers shall beserviced and placed in good operating order. This would include the necessary replacement of anydented truck door panels and adjustment of door tension to insure property operation. All door panelswhich are replaced need to be painted to match the building standard.3.Dock Seals/Dock Bumpers: Free of tears and broken backboards repaired. All dock bumpers must be left in place and well secured.4.Structural Columns All structural steel columns in the warehouse and office shall be inspected for damage. Repairs of this nature should be pre-approved by Landlord prior to implementation.5.Warehouse Floor: Free of stains and swept with no racking bolts and other protrusions left in floor. Cracks should be repaired with an epoxy orpolymer to match concrete color. All floor striping in the Premises shall be removed with no residualstaining or other indication that such striping existed.6.Tenant-InstalledEquipment and Wiring: Removed and space turned to original condition when originallyleased. (Remove air lines, junction boxes, conduit, etc.)7.Walls: Sheetrock (drywall) damage should be patched and fire-taped so that there are no holes in either office or warehouse.8.Carpet and Tile The carpet and vinyl tiles should be in a clean condition and should not have any holes or chips in them. Landlord will acceptnormal wear on these items provided they appear to be in a maintained condition.9.Roof: Any Tenant-installed equipment must be removed and roof penetrations properly repaired by licensed roofing contractor. Active leaks mustbe fixed and latest Landlord maintenance and repairs recommendation must have been followed. Tenantmust check with Landlord’s property manager to determine if specific roofing contractor is required toperform work.10.Signs: All exterior signs must be removed and holes patched and paint touched-up as necessary. All window signs should likewise be removed.11.Heating and AirConditioning System: Heating/air conditioning systems should be placed in good workingorder, including the necessary replacement of any parts to return the unit to a well maintainedcondition. This includes warehouse heaters and exhaust fans. Upon move out, Landlord will have anexit inspection performed by a certified mechanical contractor to determine the condition.12.Electrical & Plumbing: All electrical and plumbing equipment to be returned in good condition and repair and conforming to code.- 16 -14.Overall Cleanliness: Clean windows, sanitize bathroom(s), vacuum carpet, and remove any and all debris from office and warehouse. Remove allpallets and debris from exterior of Premises. All trade fixtures, dumpsters, racking, trash, vendingmachines and other personal property to be removed.15.Upon Completion: Contact Landlord’s property manager to coordinate turning in of keys, utility changeover and obtaining of final Landlordinspection of Premises which, in turn, will facilitate refund of Security Deposit.- 17 -ADDENDUM 4CONSTRUCTIONATTACHED TO AND A PART OF THE LEASE AGREEMENTDATED MARCH 25, 2016 BETWEENPROLOGIS TARGETED U.S. LOGISTICS FUND, L.P., a Delaware limited partnership andUnified ConneXions, Inc.(a) Landlord agrees to furnish or perform at Landlord’s sole cost and expense those items of construction and those improvements (the“Initial Improvements”) specified below:•Drive-in ramp at the location as shown on Exhibit D as “R”•Replace carpet with VCT in the area shown on Exhibit D as “Open Office, 51’ x 30’”(b) If Tenant shall desire any changes, Tenant shall so advise Landlord in writing and Landlord shall determine whether such changes canbe made in a reasonable and feasible manner. Any and all costs of reviewing any requested changes, and any and all costs of making any changes to theInitial Improvements which Tenant may request and which Landlord may agree to shall be at Tenant’s sole cost and expense and shall be paid to Landlordupon demand and before execution of the change order.(c) Landlord shall proceed with and complete the construction of the Initial Improvements. As soon as such improvements have beenSubstantially Completed, Landlord shall notify Tenant in writing of the date that the Initial Improvements were Substantially Completed. The InitialImprovements shall be deemed substantially completed (“Substantially Completed”) when, in the opinion of the construction manager (whether an employeeor agent of Landlord or a third party construction manager) (“Construction Manager”), the Initial Improvements are substantially completed except for punchlist items which do not prevent in any material way the use of the Initial Improvements for the purposes for which they were intended. In the event Tenant, itsemployees, agents, or contractors cause construction of such improvements to be delayed, the date of Substantial Completion shall be deemed to be the datethat, in the opinion of the Construction Manager, Substantial Completion would have occurred if such delays had not taken place. Without limiting theforegoing, Tenant shall be solely responsible for delays caused by Tenant’s request for any changes in the plans, Tenant’s request for long lead items orTenant’s interference with the construction of the Initial Improvements, and such delays shall not cause a deferral of the Commencement Date beyond what itotherwise would have been. After the date the Initial Improvements are Substantially Complete Tenant shall, upon demand, execute and deliver to Landlord aletter of acceptance of delivery of the Initial Improvements. In the event of any dispute as to the Initial Improvements the certificate of the ConstructionManager shall be conclusive absent manifest error.(d) The failure of Tenant to take possession of or to occupy the Premises shall not serve to relieve Tenant of obligations arising on theCommencement Date or delay the payment of rent by Tenant. Subject to applicable ordinances and building codes governing Tenant’s right to occupy orperform in the Premises, Tenant shall be allowed to install its tenant improvements, machinery, equipment, fixtures, or other property on the Premises duringthe final stages of completion of construction provided that Tenant does not thereby interfere with the completion of construction or cause any labor disputeas a result of such installations, and provided further that Tenant does hereby agree to indemnify, defend, and hold Landlord harmless from any loss ordamage to such property, and all liability, loss, or damage arising from any injury to the Project or the property of Landlord, its contractors, subcontractors, ormaterialmen, and any death or personal injury to any person or persons arising out of such installations, unless any such loss, damage, liability, death, orpersonal injury was caused by Landlord’s negligence. Any such occupancy or performance in the Premises shall be in accordance with the provisionsgoverning Tenant‑Made Alterations and Trade Fixtures in the Lease, and shall be subject to Tenant providing to Landlord satisfactory evidence of insurancefor personal injury and property damage related to such installations and satisfactory payment arrangements with respect to installations permitted hereunder.Delay in putting Tenant in possession of the Premises shall not serve to extend the term of this Lease or to make Landlord liable for any damages arisingtherefrom.- 18 -ADDENDUM 5HVAC DEDUCTIBLEATTACHED TO AND A PART OF THE LEASE AGREEMENTDATED MARCH 25, 2016 BETWEENPROLOGIS TARGETED U.S. LOGISTICS FUND, L.P., a Delaware limited partnership andUnified ConneXions, Inc.Provided no Event of Default has occurred, exists, or would exist but for the passage of time, Landlord further agrees that if after the firstninety (90) days of the Lease Term, with respect to rooftop HVAC units identified as RTU #3 (CARRIER 48TJD009611 4696G30228) and RTU #23 (TRANEYCD150C4L0BA N34101607D), Tenant shall be responsible for the repair and replacement of such heating, ventilation or air conditioning equipment (or acomponent thereof) throughout the initial Lease Term for the first $1,000.00 per unit per occurrence (in addition to the costs incurred by Tenant for thequarterly maintenance service contract required herein), and for all costs in excess thereof, Landlord and Tenant shall split such excess costs on a 50/50 basis;provided that (a) Tenant has met the obligations to maintain the Office HVAC units in accordance with the Lease, and (b) such failure or repair is not theresult of Tenant’s negligence or misuse. This provision shall only be applicable during the initial Lease Term, and Landlord’s obligations under thisprovision are contingent upon Tenant providing reasonably acceptable proof that Tenant has maintained an HVAC service contract in compliance with theHVAC Maintenance Contract of the Lease for the duration of the initial Lease Term.- 19 -EXHIBIT ASITE PLANATTACHED TO AND A PART OF THE LEASE AGREEMENTDATED MARCH 25, 2016 BETWEENPROLOGIS TARGETED U.S. LOGISTICS FUND, L.P., a Delaware limited partnership andUnified ConneXions, Inc.- 20 -EXHIBIT BPROJECT RULES AND REGULATIONSATTACHED TO AND A PART OF THE LEASE AGREEMENTDATED MARCH 25, 2016 BETWEENPROLOGIS TARGETED U.S. LOGISTICS FUND, L.P., a Delaware limited partnership andUnified ConneXions, Inc.Rules and Regulations1.The sidewalk, entries, and driveways of the Project shall not be obstructed by Tenant, or its agents, or used by them for any purpose other thaningress and egress to and from the Premises.2.Tenant shall not place any objects, including antennas, outdoor furniture, etc., in the parking areas, landscaped areas or other areas outside of itsPremises, or on the roof of the Project.3.Except for seeing-eye dogs, no animals shall be allowed in the offices, halls, or corridors in the Project.4.Tenant shall not disturb the occupants of the Project or adjoining buildings by the use of any radio or musical instrument or by the making of loudor improper noises.5.If Tenant desires telegraphic, telephonic or other electric connections in the Premises, Landlord or its agent will direct the electrician as to where andhow the wires may be introduced; and, without such direction, no boring or cutting of wires will be permitted. Any such installation or connectionshall be made at Tenant’s expense.6.Tenant shall not install or operate any steam or gas engine or boiler, or other mechanical apparatus in the Premises, except as specifically approvedin the Lease. The use of oil, gas or inflammable liquids for heating, lighting or any other purpose is expressly prohibited. Explosives or other articlesdeemed extra hazardous shall not be brought into the Project.7.Parking any type of recreational vehicles is specifically prohibited on or about the Project. Further, parking any type of trucks, trailers or othervehicles in the Building is specifically prohibited. In the event that a vehicle is disabled, it shall be removed within 48 hours. There shall be no “ForSale” or other advertising signs on or about any parked vehicle. All vehicles shall be parked in the designated parking areas in conformity with allsigns and other markings. All parking will be open parking, and no reserved parking, numbering or lettering of individual spaces will be permittedexcept as specified by Landlord or in the Lease.8.Tenant shall maintain the Premises free from rodents, insects and other pests.9.Landlord reserves the right to exclude or expel from the Project any person who, in the judgment of Landlord, is intoxicated or under the influenceof liquor or drugs or who shall in any manner do any act in violation of the Rules and Regulations of the Project.10.Tenant shall not cause any unnecessary labor by reason of Tenant’s carelessness or indifference in the preservation of good order and cleanliness.Landlord shall not be responsible to Tenant for any loss of property on the Premises, however occurring, or for any damage done to the effects ofTenant by the janitors or any other employee or person.11.Tenant shall give Landlord prompt notice of any defects in the water, lawn sprinkler, sewage, gas pipes, electrical lights and fixtures, heatingapparatus, or any other service equipment affecting the Premises.12.Tenant shall not permit storage outside the Premises, or dumping of waste or refuse or permit any harmful materials to be placed in any drainagesystem or sanitary system in or about the Premises.13.All moveable trash receptacles provided by the trash disposal firm for the Premises must be kept in the trash enclosure areas, if any, provided for thatpurpose.14.No auction, public or private, will be permitted on the Premises or the Project.15.No awnings shall be placed over the windows in the Premises except with the prior written consent of Landlord.16.The Premises shall not be used for lodging, sleeping or cooking or for any immoral or illegal purposes or for any purpose other than that specified inthe Lease. No gaming devices shall be operated in the Premises.17.Tenant shall ascertain from Landlord the maximum amount of electrical current which can safely be used in the Premises, taking into account thecapacity of the electrical wiring in the Project and the Premises and the needs of other tenants,- 21 -and shall not use more than such safe capacity. Landlord’s consent to the installation of electric equipment shall not relieve Tenant from theobligation not to use more electricity than such safe capacity.18.Tenant assumes full responsibility for protecting the Premises from theft, robbery and pilferage.19.Tenant shall not install or operate on the Premises any machinery or mechanical devices of a nature not directly related to Tenant’s ordinary use ofthe Premises and shall keep all such machinery free of vibration, noise and air waves which may be transmitted beyond the Premises.20.Tenant shall not permit smoking in the office areas of the Premises.21.No racking or storage shall occur within 12-inches of demising walls, office and warehouse separation walls, exterior walls, and columns.- 22 -EXHIBIT CFORM OF COMMENCEMENT DATE CERTIFICATEATTACHED TO AND A PART OF THE LEASE AGREEMENTDATED MARCH 25, 2016 BETWEENPROLOGIS TARGETED U.S. LOGISTICS FUND, L.P., a Delaware limited partnership andUnified ConneXions, Inc.COMMENCEMENT DATE CERTIFICATE____________, 201__TBDUnified ConneXions, Inc.,RE: Lease dated ____ between Unified ConneXions, Inc. and PROLOGIS TARGETED U.S. LOGISTICS FUND, LP, a Delaware limited partnership for 2901Summit Avenue, Plano, TX 75074Dear ____________:Welcome to your new facility. We would like to confirm the terms of the above referenced lease agreement:Lease Commencement Date: Lease Expiration Date: Rental Commencement Date: We are pleased to welcome you as a customer of Prologis and look forward to working with you. Please indicate your agreement with the above changes toyour lease by signing and returning the enclosed copy of this letter to me. If I can be of service, please do not hesitate to contact me. Sincerely,Accepted by:Unified ConneXions, Inc.By: /s/ Chris Cunningham Printed: Chris Cunningham Title: VP & CFO Date: - 23 -EXHIBIT DINITIAL IMPROVEMENTSATTACHED TO AND A PART OF THE LEASE AGREEMENTDATED MARCH 25, 2016 BETWEENPROLOGIS TARGETED U.S. LOGISTICS FUND, L.P., a Delaware limited partnership andUnified ConneXions, Inc.- 24 -Exhibit 21.1Subsidiaries of the Company Name of subsidiary Jurisdiction of Incorporationor OrganizationSphere 3D Inc. Ontario, CanadaV3 Systems Holdings, Inc. Delaware, United StatesOverland Storage, Inc. California, United StatesOverland Storage (Europe), Ltd. United KingdomOverland Storage S.a.r.L. FranceOverland Storage GmbH GermanyOverland Technologies Luxembourg S.a.r.L. LuxembourgTandberg Data Holdings S.a.r.L. LuxembourgTandberg Data SAS FranceTandberg Data (Asia) Pte., Ltd. SingaporeTandberg Data (Japan), Inc. JapanTandberg Data (Hong Kong), Ltd. Hong KongTandberg Data GmbH GermanyTandberg Data Norge AS NorwayGuangzhou Tandberg Electronic Components Co. Ltd. ChinaExhibit 23.1CONSENT OF INDEPENDENT REGISTEREDPUBLIC ACCOUNTING FIRMWe consent to the incorporation by reference in the Registration Statements on Form F-3 (No. 333-206357, No. 333-206358, No. 333-206359, No. 333-207384, No. 333-210735, No. 333-219383) and Form S-8 (No. 333-203149, No. 333-203151, No. 333-205236, No. 333-209251, No. 333-214605, No. 333-216209, No. 333-220152, No. 333-222771) of Sphere 3D Corp. (the “Company”) of our report dated March 21, 2018, relating to the consolidated financialstatements of the Company (which report expresses an unqualified opinion and includes an explanatory paragraph regarding the Company’s going concernuncertainty), appearing in the Company’s Annual Report on Form 10-K for the year ended December 31, 2017, filed with the Securities and ExchangeCommission./s/ Moss Adams LLP Moss Adams LLP San Diego, California, U.S.AMarch 21, 2018Exhibit 31.1CERTIFICATIONI, Eric L. Kelly, certify that: 1.I have reviewed this annual report on Form 10-K of Sphere 3D Corp.; 2.Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary tomake the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the periodcovered by this report; 3.Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all materialrespects the financial condition, results of operations and cash flows of the issuer as of, and for, the periods presented in this report; 4.The company’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (asdefined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules13a-15(f) and 15d-15(f)) for the company and have: (a)Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under oursupervision, to ensure that material information relating to the issuer, including its consolidated subsidiaries, is made known tous by others within those entities, particularly during the period in which this report is being prepared; (b)Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designedunder our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation offinancial statements for external purposes in accordance with generally accepted accounting principles; (c)Evaluated the effectiveness of the issuer’s disclosure controls and procedures and presented in this report our conclusionsabout the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based onsuch evaluation; and (d)Disclosed in this report any change in the issuer’s internal control over financial reporting that occurred during the periodcovered by the annual report that has materially affected, or is reasonably likely to materially affect, the issuer’s internalcontrol over financial reporting; and 5.The company’s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financialreporting, to the issuer’s auditors and the audit committee of the issuer’s board of directors (or persons performing the equivalentfunctions): (a)All significant deficiencies and material weaknesses in the design or operation of internal control over financial reportingwhich are reasonably likely to adversely affect the issuer’s ability to record, process, summarize and report financialinformation; and (b)Any fraud, whether or not material, that involves management or other employees who have a significant role in the issuer’sinternal control over financial reporting.Date: March 21, 2018/s/ Eric L. KellyEric L. KellyChief Executive OfficerExhibit 31.2CERTIFICATIONI, Kurt L. Kalbfleisch, certify that: 1.I have reviewed this annual report on Form 10-K of Sphere 3D Corp.; 2.Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary tomake the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the periodcovered by this report; 3.Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all materialrespects the financial condition, results of operations and cash flows of the issuer as of, and for, the periods presented in this report; 4.The company’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (asdefined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules13a-15(f) and 15d-15(f)) for the company and have: (a)Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under oursupervision, to ensure that material information relating to the issuer, including its consolidated subsidiaries, is made known tous by others within those entities, particularly during the period in which this report is being prepared; (b)Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designedunder our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation offinancial statements for external purposes in accordance with generally accepted accounting principles; (c)Evaluated the effectiveness of the issuer’s disclosure controls and procedures and presented in this report our conclusionsabout the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based onsuch evaluation; and (d)Disclosed in this report any change in the issuer’s internal control over financial reporting that occurred during the periodcovered by the annual report that has materially affected, or is reasonably likely to materially affect, the issuer’s internalcontrol over financial reporting; and 5.The company’s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financialreporting, to the issuer’s auditors and the audit committee of the issuer’s board of directors (or persons performing the equivalentfunctions): (a)All significant deficiencies and material weaknesses in the design or operation of internal control over financial reportingwhich are reasonably likely to adversely affect the issuer’s ability to record, process, summarize and report financialinformation; and (b)Any fraud, whether or not material, that involves management or other employees who have a significant role in the issuer’sinternal control over financial reporting.Date: March 21, 2018/s/ Kurt L. KalbfleischKurt L. KalbfleischSenior Vice-President andChief Financial OfficerExhibit 32.1CERTIFICATION PURSUANT TO18 U.S.C. SECTION. 1350, AS ADOPTED PURSUANT TOSECTION 906 OF THE SARBANES-OXLEY ACT OF 2002In connection with the filing of the Annual Report on Form 10-K for the fiscal year ended December 31, 2017 (the “Report”) by Sphere 3D Corp. (the“Company”), the undersigned, as the Chief Executive Officer of the Company, hereby certifies pursuant to 18 U.S.C. § 1350, as adopted pursuant to § 906 ofthe Sarbanes-Oxley Act of 2002, that, to my knowledge:• the Report fully complies with the requirements of Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934; and• the information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of theCompany.Date: March 21, 2018/s/ Eric L. KellyEric L. KellyChief Executive OfficerExhibit 32.2CERTIFICATION PURSUANT TO18 U.S.C. SECTION. 1350, AS ADOPTED PURSUANT TOSECTION 906 OF THE SARBANES-OXLEY ACT OF 2002In connection with the filing of the Annual Report on Form 10-K for the fiscal year ended December 31, 2017 (the “Report”) by Sphere 3D Corp. (the“Company”), the undersigned, as the Chief Financial Officer of the Company, hereby certifies pursuant to 18 U.S.C. § 1350, as adopted pursuant to § 906 ofthe Sarbanes-Oxley Act of 2002, that, to my knowledge:• the Report fully complies with the requirements of Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934; and• the information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of theCompany.Date: March 21, 2018/s/ Kurt L. KalbfleischKurt L. KalbfleischSenior Vice-President andChief Financial Officer

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