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United States securities and exchange commission logo
June 23, 2023
Patricia Trompeter
Chief Executive Officer
Sphere 3D Corp.
895 Don Mills Road
Building 2, Suite 900
Toronto, Ontario
Canada M3C 1W3
Re: Sphere 3D Corp.
Form 10-K for the
Fiscal Year Ended December 31, 2022
Filed March 31,
2023
Form 10-Q for the
Quarterly Period Ended March 31, 2023
Filed May 11, 2023
File No. 001-36532
Dear Patricia Trompeter:
We have limited our review of your filing to the financial
statements and related
disclosures and have the following comments. In some of our comments, we
may ask you to
provide us with information so we may better understand your disclosure.
Please respond to these comments within ten business days by
providing the requested
information or advise us as soon as possible when you will respond. If
you do not believe our
comments apply to your facts and circumstances, please tell us why in
your response.
After reviewing your
response to these comments, we may have additional comments.
Form 10-K for the Fiscal Year Ended December 31, 2022
Item 9A. Controls and Procedures
Management's Report on Internal Control Over Financial Reporting, page
42
1. You do not identify the
version of the Committee of Sponsoring Organizations of the
Treadway Commission s
Internal Control - Integrated Framework that you used to
perform your assessment
as required by Item 308(a)(2) of Regulation S-K. Please revise
future filings to
identify the version of the COSO Integrated Framework you used in the
assessment (i.e.,
whether you used the 1992 Framework, or the Updated Framework
issued in 2013).
Patricia Trompeter
FirstName
Sphere 3D LastNamePatricia Trompeter
Corp.
Comapany
June NameSphere 3D Corp.
23, 2023
June 23,
Page 2 2023 Page 2
FirstName LastName
Exhibits 31.1 and 31.2, page 61
2. In your Form 10-K for the fiscal year ended December 31, 2022 and Form
10-Q for the
quarterly period ended March 31, 2023, you revised the wording in
paragraph 4(d) from
that set forth in Item 601(b)(31)(i) of Regulation S-K. In future
filings, please include the
certifications exactly as set forth in that item.
Note 1. Organization and Business
Liquidity and Going Concern, page F-11
3. You disclose that management has projected that cash on hand may not
be sufficient to
allow you to continue operations beyond the next 12 months. Please
tell us how your
disclosure considered ASC 205-40-50-13 which discusses whether there
is substantial
doubt about an entity's ability to continue as a going concern within
one year after the date
that the financial statements are issued.
Note 2. Significant Accounting Policies
Digital Assets, page F-13
4. Please tell us how your classification of digital assets as current
assets is consistent with
the definition of current assets in ASC 210-10-20. For each digital
asset type held
on December 31, 2022 and 2021, and at March 31, 2023, tell us the
average length of time
it has been held and how frequently it turns over, explaining how you
calculated this
turnover. Also, for each significant (as determined by the fair value)
digital asset holding,
please tell us the name of the digital asset and its cost, fair value,
and the number of units
held as of December 31, 2021 and 2022, and March 31, 2023. For any
digital asset
holdings that are not individually significant, tell us the aggregated
cost bases and fair
values of the digital asset holdings.
5. Regarding your impairment testing for digital assets, please tell us
the following
information and reference for us the authoritative literature you
relied upon to support
your accounting:
You disclose that you perform an impairment analysis at each
reporting period or
more frequently, when events or changes in circumstances occur
indicating that it is
more likely than not that the indefinite-lived asset is impaired.
Tell us what events or
changes in circumstances would cause you to perform an impairment
analysis during
the reporting period.
Tell us whether or not you evaluate multiple units (or fractional
units) of digital
assets that have different carrying amounts for impairment as a
group.
Tell us the market(s) you used to determine the quoted price used
to assess
impairment.
Tell us whether these market(s) are your principal market(s), and
if not, explain why
not, and how the markets are determined.
Patricia Trompeter
FirstName
Sphere 3D LastNamePatricia Trompeter
Corp.
Comapany
June NameSphere 3D Corp.
23, 2023
June 23,
Page 3 2023 Page 3
FirstName LastName
Revenue Recognition, page F-15
6. Please provide us your analysis supporting your revenue recognition
policy for your
mining pool participation activities. In your response, where
appropriate, reference for us
the authoritative literature you relied upon to support your
accounting:
Provide us a representative sample contract and cross reference
your analysis to the
specific provisions of that contract. Be sure to include terms
related to the promises
and related performance obligations, calculation of transaction
consideration, and
payment.
Tell us about the term of your contracts and the period of service
for which the
mining pool operators determine your compensation.
Tell us whether there are any penalties for contract termination
by either party and
whether you can withdraw computing power midterm and reinstitute
it later. In your
response tell us your consideration of the guidance in Questions
7 or 8, as applicable,
to the FASB Revenue Recognition Implementation Q&A s and the
impact on your
determination of both contract inception and contract duration.
Tell us about your process to identify your performance
obligations. Refer to ASC
606-10-25-14 to 25-22.
Tell us how and when you report your work performed to the pool
operator. In this
regard, explain whether you report each nonce completed or only
report when all
nonces assigned are completed or at some point in between.
Tell us your consideration for treating each nonce you are
assigned as a performance
obligation or whether the range of all nonces for an individual
block is a separate
performance obligation.
Tell us the nature of the consideration specified in the contract,
how the amount of
consideration is determined, and the payment terms. Highlight
terms that cause
variability for your cryptocurrency awards and transaction fees.
Tell us how you have insight into whether the amount of non-cash
consideration
received from the pool operator is the appropriate amount.
With respect to the timing of revenue recognition, you disclose
that you cannot
determine, during the course of solving for a block that a
reversal of revenue is not
probable and therefore revenue is recognized when the mining pool
operator
successfully places a block, and you receive confirmation of the
consideration you
will receive. Tell us how your accounting policy considered ASC
606-10-25-23 to
25-25 and ASC 606-10-32-11 to 32-12 and discuss at what point the
uncertainty
associated with the variable consideration is resolved and why.
Tell us whether you are able to estimate your hashrate or
transactional fees as you
perform your services.
You disclose that you satisfy your performance obligation at the
point in time that
you are awarded a unit of digital currency through your
participation in the applicable
network and network participants benefit from their verification
service. Tell us how
your accounting policy considered ASC 606, including ASC
606-10-25-23 to 25-30
and ASC 606-10-32-42 to 32-44 and discuss the relevant factors
considered in
Patricia Trompeter
FirstName
Sphere 3D LastNamePatricia Trompeter
Corp.
Comapany
June NameSphere 3D Corp.
23, 2023
June 23,
Page 4 2023 Page 4
FirstName LastName
determining when revenue should be recognized.
7. Please provide us your analysis supporting your measurement of the
non-cash
consideration (digital assets) you receive for your mining pool
participation activities. In
your response, where appropriate, reference for us the authoritative
literature you relied
upon to support your accounting:
You disclose that you measure the non-cash consideration at fair
value on the date
received which is not materially different than the fair value at
contract inception or
time you have earned the award from the mining pools. Explain to
us how your
accounting policy complies with ASC 606-10-32-21 and 606-10-32-23.
Tell us approximately how much time passes between the inception
of the contract,
the time you have earned the award from the mining pools, and the
date on which you
receive the award. Describe for us your process for determining
that the fair value of
the award is not materially different during these periods.
If you provide continuous performance, tell us what constitutes
contract inception
and contract duration and the reasons why. Cite the relevant ASC
606 guidance that
supports your determination.
Tell us the market(s) you use to determine the quoted price used
to value the non-
cash consideration and how you identify these market(s). Refer to
ASC Topic 820,
including ASC 820-10- 35-5A.
Tell us the market(s) in which you entered into transactions to
sell digital assets
during the periods presented in the financial statements and the
volume of sales in
each market.
You disclose that the transaction price is the fair value of the
digital asset mined,
being the fair value per the prevailing market rate for that
digital asset on the
transaction date. You also disclose that you measure the noncash
consideration at
fair value on the date received. Please tell us in more detail why
you refer to both a
transaction date and a date received, and at which point you
measure the fair value.
In future filings, disclose the types of digital currencies, the
time frame of when the
digital currency is deposited into your wallet and your principal
market.
Note 6. Investments, page F-20
8. You recognized impairment charges of $14.5 million for your
investments in Filecoiner
and Silicon Valley Technology Partners during fiscal 2022. Please tell
us how you
determined the fair value of the investments under ASC 820 and why the
investments
were impaired. In future filings, provide any disclosures required by
ASC 820-10-50-2
and ASC 321-10-50-3.
Note 9. Preferred Shares, page F-24
9. Please respond to the following with respect to the Hertford
agreements:
Tell us the significant terms of the agreements.
Tell us how you accounted for the agreements, citing the
accounting literature used
and how you applied it to the facts and circumstances of your
transaction.
Patricia Trompeter
FirstName
Sphere 3D LastNamePatricia Trompeter
Corp.
Comapany
June NameSphere 3D Corp.
23, 2023
June 23,
Page 5 2023 Page 5
FirstName LastName
Tell us the redemption features of the Series H preferred
shares. In future filings,
include any disclosures required by ASC 505-10-50-3.
Note 15. Segment Information, page F-36
10. Please tell us about your consideration for providing the disclosures
required by ASC 280-
10-50-22 and 50-26, including reporting a measure of profit or loss
and total assets for
each reportable segment.
Form 10-Q for the Quarterly Period Ended March 31, 2023
Financial Statements
Consolidated Statements of Cash Flows, page 7
11. Please tell us how management considered the guidance in ASC
230-10-45-12(c) in
determining the classification of the proceeds from the sale of
digital assets within cash
flows from operating activities. Tell us the shortest and longest time
you have held each
type of your digital assets before sale and provide an estimate of how
frequently you
convert the digital assets to USD for each period presented.
Note 12. Commitments and Contingencies
Service Agreements, page 21
12. You disclose that on April 7, 2023, you filed litigation against
Gryphon citing several
breaches to the MSA, including but not limited to, several fiduciary
and operational
breaches. In your press release included with your Form 8-K filed
April 7, 2023, you
disclosed that you believe Gryphon has put the company's assets at
significant risk and
Gryphon willfully violated their contractual duties. Please respond to
the following:
Tell us the significant terms of the MSA with Gryphon and explain
how you are
accounting for the agreement, citing the accounting literature
used and how you
applied it to your facts and circumstances.
o Tell us the amount of management fees for the years ended
December 31, 2021
and 2022, and the three months ended March 31, 2023.
o Tell us the amount of the reimbursed costs for the years
ended December 31,
2021 and 2022, and the three months ended March 31, 2023.
o Tell us the nature of the reimbursed costs and how you
account for them.
Give us a brief summary of the nature of the breaches.
Tell us what assets are at significant risk, why the assets are at
risk, and the balance
of those assets on your balance sheet as of March 31, 2023.
Tell us how you are accounting for the matter and why, citing the
accounting
literature you applied.
13. Please tell us about your cryptocurrency custody policies and
procedures and respond to
the following:
Tell us the type of cryptocurrency and balance held by each of
your third-party
custodians as of March 31, 2023.
Patricia Trompeter
Sphere 3D Corp.
June 23, 2023
Page 6
Tell us what portion of your cryptocurrencies are held in hot
wallets and cold wallets.
Tell us the material terms of your arrangements with each
third-party custodian,
including, for example, in what manner the relevant custodian is
required to store
your cryptocurrency, whether it is contractually required to hold
your cryptocurrency
in cold storage, what security precautions the custodian is required
to undertake, what
inspection rights you have, and what type of insurance, if any, the
custodian is
required to have to protect you from loss.
14. With respect to your agreement with Core Scientific, Inc., you disclose
that as of
December 31, 2022, you had paid $35.1 million towards the Hosting
Sub-Lease and that
you recorded a $15.7 million provision for losses on the pre-paid portion
of the deposit
due to Core Scientific s Chapter 11 bankruptcy filing in December 2022.
Please respond
to the following:
Tell us the significant terms of your agreement and how you are
accounting for the
agreement, including the initial $35.1 million payment. Cite the
accounting literature
used and how you applied it to your facts and circumstances.
Tell us the nature and amounts of any assets or liabilities related
to your agreements
with Core Scientific included in your balance sheet as of December
31, 2022 and
March 31, 2023.
In closing, we remind you that the company and its management are
responsible for the
accuracy and adequacy of their disclosures, notwithstanding any review,
comments, action or
absence of action by the staff.
You may contact Kate Tillan at 202-551-3604 or Rolf Sundwall at
202-551-3105 with
any questions.
Sincerely,
FirstName LastNamePatricia Trompeter
Division of
Corporation Finance
Comapany NameSphere 3D Corp.
Office of Crypto
Assets
June 23, 2023 Page 6
cc: M. Ali Panjwani
FirstName LastName