Sphere 3D Corporation.: Exhibit 10.3 - Filed by newsfilecorp.com






Execution Version 

SHARE EXCHANGE AND BUY OUT AGREEMENT 

This SHARE EXCHANGE
AGREEMENT (this “Agreement”) is made and entered into as of
November 13, 2018 by and among SPHERE 3D CORP., a corporation
incorporated under the laws of the province of Ontario (“Sphere”), FBC
HOLDINGS SARL, a société à responsabilité limitée incorporated under
the laws of Luxembourg with R.C.S. number B.142.133 (“FBC” or a
“Stockholder”), MF VENTURES, LLC, a limited liability
company incorporated under the laws of Delaware (“MF”), Silicon Valley
Technology Partners, Inc., a Delaware corporation (“SVTP”) and Overland
Storage, Inc.. a California corporation (“Overland”). 

RECITALS 

WHEREAS, Sphere holds
1,879,699 shares of Series A Preferred Stock, par value $0.0001 (the “SVTP
Series A Preferred Stock”) of SVTP and FBC holds 2,120,301 shares of SVTP
Series A Preferred Stock; 

 WHEREAS, the
Stockholder is the beneficial owner of 6,500,000 Preferred Shares, no par value,
of Sphere (the “Sphere Preferred Shares”);

WHEREAS, Sphere has agreed
to transfer to the Stockholder such number of shares of SVTP Series A Preferred
Stock as set out opposite the Stockholder’s name on Schedule A in
consideration for the Stockholder surrendering such number of Sphere Preferred
Shares as set out opposite the Stockholder’s name on Schedule A to Sphere
in accordance with the terms of this Agreement; 

WHEREAS, the terms and
conditions of the Sphere Preferred Shares provide for the exercise of the rights
contemplated by this Agreement in accordance with the terms thereof; and 

 WHEREAS, FBC has agreed to
grant SVTP and MF the right to buy-out 2,500,000 of the Sphere Preferred Shares
and 2,120,301 of the SVTP Series A Preferred Stock held by FBC in accordance
with the terms of this Agreement.

NOW, THEREFORE, in
consideration of the foregoing recitals and for other good and valuable
consideration, the receipt and adequacy of which the parties acknowledge, the
parties hereby agree as follows: 

1.      CERTAIN
DEFINITIONS. 

In this Agreement:


“Business
Day” means a day other than a Saturday, Sunday or any other statutory
holiday in the City of New York, New York. 

“Buy
Out Notice” means a written notice from SVTP or MF in accordance with
Section 4.3 to FBC stating its exercise of the Buy-Out Right.

“Buy
Out Period” means the period beginning on the date of this Agreement
and ending on the date which is one year after the date of this Agreement.

“Buy
Out Price” means, per Buy-Out Share, an amount equal to 105% of the
Original Issue Price for such share plus all unpaid dividends accrued through
the Buy-Out Closing Date.

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“Buy-Out Shares” means up to (a) 2,120,301 shares of SVTP Series
A Preferred Stock held by FBC on or about the date of this Agreement plus (b)
either (i) 2,500,000 Sphere Preferred Shares held by FBC or (ii) if FBC has
exercised its Exchange Right prior to the Buy-Out Closing Date, the SVTP Shares
that have been exchanged for such Sphere Preferred Shares by FBC pursuant to the
Exchange.

“Exchange
Period” means the period beginning on the date of this Agreement and ending
on the date which is two years after the date of this Agreement.

“Exercise
Notice” means a written notice from the Stockholder in accordance with
Section 2.3 to Sphere stating its exercise of the Exchange Right.

“Original
Issue Price” means (i) with respect to the SVTP Series A Preferred Stock,
$1.00 per share and (ii) with respect to the Sphere Preferred Shares, $1 per
share, in each case as adjusted for stock splits, combinations,
recapitalizations, and the like.

“Overland
Pledge” means that certain second-priority pledge over 1,879,699 shares of
Series A Preferred Stock of SVTP held by Sphere dated on or around the date of
this Agreement. 

“Party” means a party to this Agreement.

“Share
Transfer” means any transfer of SVTP Series A Preferred Stock pursuant to
the terms of this Agreement. 

“Sphere
Shares” means such number of Sphere Preferred Shares as set out opposite the
Stockholder’s name on Schedule A. 

“SVTP
Shares” means the number of SVTP Series A Preferred Stock set out in the
column titled “Entitlement to SVTP Shares” opposite the Stockholder’s name on
Schedule A.

2.      AGREEMENT TO
EXCHANGE SHARES. 

2.1.     
Agreement to Exchange. Sphere hereby grants the Stockholder the
right (the “Exchange Right”) to require Sphere to transfer, convey and
assign all or any portion of Sphere’s right, title and interest in and to the
SVTP Shares to the Stockholder free and clear of any security interests,
pledges, liens, restrictions, claims or encumbrances of any kind (collectively,
“Claims”), in consideration for the Stockholder surrendering,
transferring, conveying and assigning to Sphere all, or a ratable portion, of
the Stockholder’s right, title and interest in and to the Sphere Shares held by
the Stockholder free and clear of Claims in accordance with the terms of this
Agreement (the “Exchange”). The Exchange may be exercised by the
Stockholder in respect of some or all of the Sphere Shares held by the
Stockholder. If the exchange is partial, the entitlement to SVTP Shares shall be
proportionate to the full entitlement to SVTP Shares set out in Schedule
A. 

2.2.     
Exchange Period. The Exchange may only be exercised by the
Stockholder within the Exchange Period. The Exchange shall automatically lapse
at 6pm EST on the last day of the Exchange Period. 

2.3.     
Closing Date. The Exchange shall be exercised by the Stockholder
delivering an Exercise Notice to Sphere. The Exercise Notice shall include a
date (the “Closing Date”) on which the closing for such Exchange shall
take place, which shall be no less than one (1) Business Day and no more than
ten (10) Business Days from the date of the applicable Exercise Notice.


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3.      CLOSING OF
EXCHANGE. 

3.1.     
Transfer of SVTP Shares. On the applicable Closing Date, Sphere
shall execute and deliver to the Stockholder such instruments of transfer or
other documents as are necessary and sufficient to sell, assign and transfer all
of its right, title and interest in and to the SVTP Shares subject to the
Exchange to the Stockholder, free and clear of all Claims. 

3.2.     
Transfer of Sphere Shares. On the applicable Closing Date, the
Stockholder shall execute and deliver to Sphere such instruments of surrender,
transfer or other documents as are necessary and sufficient to surrender, sell,
assign and transfer all of its right, title and interest in and to the Sphere
Shares subject to the Exchange to Sphere, free and clear of all Claims. 

3.3.     
Effect of Exchange. Effective immediately upon the consummation of an
Exchange: (a) any and all rights, preferences privileges or obligations of or to
the Stockholder (including any redemption rights) set forth in the terms of the
Articles of Amendment of Sphere with respect to all Sphere Shares subject to
such Exchange shall automatically terminate and be of no further force or
effect; (b) any and all rights, preferences privileges or obligations of or to
Sphere set forth in the Amended and Restated Certificate of Incorporation of
SVTP with respect to the SVTP Shares subject to such Exchange shall
automatically terminate and be of no further force or effect and (c) any liens
or security interests granted by Sphere in favour of Overland pursuant to the
Overland Pledge with respect to SVTP Shares subject to the Exchange shall
automatically terminate and be released. 

4.      BUY OUT RIGHT.


4.1.     
Agreement to Transfer. FBC hereby grants MF and SVTP the right (the
“Buy-Out Right”) to require FBC to sell all, or any portion, of
FBC’s right, title and interest in and to the Buy-Out Shares held by FBC at such
time to MF or SVTP, as applicable, at the Buy-Out Price (the “Buy-Out”).
If the Buy-Out Shares subject to a Buy-Out comprise of both SVTP Series A
Preferred Shares and Sphere Preferred Shares, the Buy-Out shall be pro rata
across both share classes. 

4.2.     
Buy-Out Period. The Buy-Out Right may be exercised only during
the Buy-Out Period. The Buy-Out Right shall automatically lapse at 6pm EST on
the last day of the Buy-Out Period. 

4.3.     
Buy-Out Closing Date. The Buy-Out Right shall be exercised by
either SVTP or MF delivering a Buy-Out Right Notice to FBC. The Buy-Out Right
Notice shall include a date (the “Buy-Out Closing Date”) on which
the closing for the Buy-Out Right shall take place, which shall be no less than
one (1) Business Day and no more than ten (10) Business Days from the date of
the applicable Buy-Out Right Notice. If both SVTP and MF serve a Buy-Out Notice
at the same time for a total number of shares greater than the Buy-Out Shares,
then FBC shall have the right to determine which Buy-Out Notice to comply with,
and to what extent, with respect to the number of Buy-Out Shares. 

4.4.     
Buy-Out Closing. On the Buy-Out Closing Date, Newco or MF, as
applicable, shall pay the Buy-Out Price to FBC by wire transfer in immediately
available funds and FBC shall deliver to Newco or MF as applicable, any
certificate or certificates representing the Buy-Out Shares to be sold (if any),
accompanied by stock powers and any other document reasonably necessary to give
effect to the Buy-Out Right. 

4.5.     
Post-Buy-Out Exchange Right. If the Buy-Out Closing Date occurs
prior to FBC’s exercise of its Exchange Right, then the Buy Out Shares that
constitute Sphere Preferred Shares shall, automatically at the Buy-Out Closing
and without any further action of the parties hereunder, be exchanged for the
same number of SVTP Shares that would have been issued to FBC had the Exchange
occurred prior to the Buy-Out with respect to the number of
Sphere Preferred Shares subject to the Buy-Out. Accordingly, immediately upon
the Buy-Out Closing, such Sphere Preferred Shares will be automatically returned
to Sphere for cancellation, and the SVTP Shares issued in exchange therefor
shall be transferred to SVTP or MF, as applicable (and, if transferred to SVTP,
shall be immediately cancelled). 

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5.      REPRESENTATIONS
AND WARRANTIES.

5.1.     
Representations and Warranties of the Parties. Each Party
hereby represents and warrants to the other Parties as follows, on the date
hereof and as of the applicable Closing Date and Buy-Out Closing Date, on behalf
of itself:

 (a)      Organization, Good Standing and Qualification. Each party
  is duly incorporated or duly organized and is a validly existing entity in good
  standing under the laws of the jurisdiction of its incorporation or organization
  with the corporate power and authority to execute, deliver and perform the terms
  of this Agreement and to consummate the Exchange and/or the Buy-Out, as
  applicable.

(b)     
Binding Effect. This Agreement is the valid and binding
obligation of each Party, enforceable against such Party in accordance with its
terms. Each Party has the full legal right to execute, deliver and perform this
Agreement and the execution, delivery and performance of this Agreement by such
Party is not subject to the consent or approval of any other person or entity.


(c)     
Ownership of Exchange Shares. The Stockholder is the sole
record, legal and beneficial owner of title to the Sphere Shares, free and clear
of any Claims. Sphere is the sole record, legal and beneficial owner of title to
the SVTP Shares, free and clear of any Claims other than (i) the Claims arising
under this Agreement, (ii) the pledge of the SVTP shares in favor of FBC to
secure the obligations of Sphere under this Agreement and (iii) the Overland
Pledge. On the applicable Closing Date, the Stockholder will sell, transfer and
convey to Sphere good and marketable title to the Sphere Shares that are subject
to the applicable Exchange, and Sphere will sell, transfer and convey to the
Stockholder good and marketable title to the SVTP Shares that are subject to the
applicable Exchange, in each case free and clear of any Claims. On the Buy-Out
Closing Date, the Stockholder will sell, transfer and convey to MF or SVTP (as
applicable) good and marketable title to the Buy-Out Shares, and, if the Buy-Out
occurs prior to the Exchange, (i) Sphere will transfer and convey to SVTP or MF
(as applicable) good and marketable title to the SVTP Shares described in
Section 4.5 and (ii) SVTP or MF (as applicable) will transfer and convey to
Sphere good and marketable title to the Sphere Shares constituting a portion of
the Buy-Out Shares, in each case free and clear of any Claims. No Party is bound
by any options, calls, contracts, or commitments of any character relating to
the Sphere Shares or the SVTP Shares, as applicable, except as set forth in this
Agreement.

(d)     
Effect of Exchange. The execution, delivery, and performance of
this Agreement by each Party does not and will not violate any instrument,
agreement, judgment, decree, order, statute, rule, or governmental regulation
applicable to such Party or to which such Party it is a party or by which such
Party or any of its properties or other assets is bound or is subject.

5.2.     
Representations and Warranties of the Stockholder. The Stockholder
represents and warrants to SVTP and Sphere as follows:

(a)     
Stockholder hereby confirms, that the SVTP Preferred Stock to be
acquired by the Stockholder pursuant to the Exchange will be acquired for
investment for the Stockholder’s own account, not as a nominee or agent, and,
except as contemplated by this Agreement, not with a view to the resale or distribution of any part
thereof, and the Stockholder has no present intention of selling, granting any
participation in, or otherwise distributing the same. By executing this
Agreement, the Stockholder further represents that the Stockholder does not
presently have any contract, undertaking, agreement or arrangement with any
person to sell, transfer or grant participations to such person or to any third
person, with respect to any of the Sphere Shares and the SVTP Preferred Stock.
The Stockholder has not been formed for the specific purpose of acquiring the
SVTP Preferred Stock pursuant to the Exchange. 

4 




(b)      The
  Stockholder has had an opportunity to discuss Sphere’s and SVTP’s business,
  management, financial affairs and the terms and conditions of the Exchange with
  the applicable members of management and has had an opportunity to review the
applicable company’s facilities.

(c)      The
Stockholder hereby represents that it has satisfied itself as to the full
observance of the laws of its jurisdiction in connection with any invitation to
exercise the Exchange or any use of this Agreement, including (i) the legal
requirements within its jurisdiction for the Exchange, (ii) any foreign exchange
restrictions applicable to such Exchange, (iii) any governmental or other
consents that may need to be obtained, and (iv) the income tax and other tax
consequences, if any, that may be relevant to the purchase, holding, redemption,
sale, or transfer of the SVTP Shares. The Stockholder’s rights under the
Exchange and beneficial ownership of the SVTP Shares will not violate any
applicable securities or other laws of the Stockholder’s jurisdiction. 

5.3.      Applicable
Securities Law. Subject to the accuracy of representations and warranties
made by the Stockholder herein, and in reliance upon such representations and
warranties, Sphere represents to the Stockholder on the date of this Agreement
and on each Closing Date that exercising the Exchange will not contravene any
applicable state, federal or provincial securities laws in the United States or
Canada.

5.4.      No
Transfer Restrictions. SVTP represents to Sphere and the Stockholder that
there are no transfer restrictions applicable to the SVTP Shares which would
prevent Sphere from complying with its obligations under this Agreement that
have not been waived by SVTP.

5.5.      Information.
Each of Sphere, MF, SVTP and the Stockholder represents and warrants, as of the
date hereof and as of the applicable Closing Date and/or Buy-Out Closing Date,
that such Party (a) has adequate information concerning the business and
financial condition of SVTP and Sphere to make an informed decision regarding
the entry into this Agreement, the Exchange and the Buy-Out, (b) has
independently and without reliance upon any other Party, made its own analysis
and decision to enter into this Agreement, (c) the other Party currently may
have, and later may come into possession of, information with respect to Sphere
or SVTP that is not known to such Party and that may be material to a decision
to enter into this Agreement, to effect the Exchange or the Buy-Out
(“Excluded Information”), and that (d) no other Party shall have any
liability to such Party, and such Party to the fullest extent of the law waives
and releases any claims, whether known or unknown, that it might have against
any other Party (or its affiliates or agents), whether under applicable
securities laws or otherwise, with respect to the nondisclosure of the Excluded
Information in connection with the entry into this Agreement, the Exchange and
the Buy-Out. 

6.      Conditions
to Closing. The respective obligations of the Parties to consummate the
transactions contemplated by this Agreement, to effect the Exchange and/or the
Buy-Out, as applicable, are subject to the satisfaction at or prior to the
applicable Closing Date and/or Buy-Out Closing Date to the following
conditions:

5 




6.1.     
Representation and Warranties. The representations and warranties of the
applicable Parties set forth in this Agreement are true and correct in all
material respects, other than for such failures to be true and correct, that
individually and in the aggregate, would not reasonably be expected to have a
material adverse effect on such Party’s ability to perform its obligations under
this Agreement. 

6.2.      Performance
of Agreements. The applicable Parties shall have performed and complied in
all material respects with each agreement and obligation required by this
Agreement to be performed or complied with by such Parties on or prior to the
applicable Closing Date and/or Buy-Out Closing Date.

6.3.      No
Order. No temporary restraining order, preliminary or permanent injunction
or other judgment issued by any court of competent jurisdiction shall be in
effect enjoining or otherwise prohibiting the consummation of the Exchange
and/or the Buy-Out.

7.      GENERAL
PROVISIONS. 

7.1     .
SVTP Acknowledgement of Share Transfers. SVTP hereby waives any and all
rights to prior notice with respect to, and hereby consents to and approves, the
Share Transfers for any and all purposes. 

7.2.      Notice.
Notice, requests, demands, and other communications relating to this Agreement
and the transactions contemplated herein shall be in writing and shall be deemed
to have been duly given if and when: (a) delivered personally, on the date of
such delivery; (b) delivered by electronic transmission, on the date of such
delivery; or (c) mailed by registered or certified mail, postage prepaid, return
receipt requested, on the third day after the posting thereof, to the address
set forth in the signature pages to this Agreement (as such address may be
updated by written notices to the other Parties to this Agreement) .

7.3.     
Successors and Assigns. Except as otherwise provided in this Agreement,
this Agreement, and the rights and obligations of the Parties hereunder, will be
binding upon and inure to the benefit of their respective successors, assigns,
heirs, executors, administrators and legal representatives; provided that such
party consents in writing to be bound by the terms, conditions and obligations
under this Agreement. 

7.4.      Assignment.
Neither Sphere, SVTP or MF may assign its rights or obligations under this
Agreement without the prior written consent of each of the other parties hereto.
Neither the Sphere Shares nor the SVTP Shares may be sold, transferred,
conveyed, assigned or otherwise disposed of by FBC (an “FBC Transfer”)
unless both (i) such FBC Transfer is effected with respect to a number of Sphere
Shares and SVTP Shares that is proportionate to the total number of Sphere
Shares and SVTP Shares held by FBC at such time and (ii) the transferee or
assignee of such Sphere Shares and SVTP Shares agrees in writing, in form and
substance reasonably acceptable to each of the parties hereto, to be bound by
the terms of this Agreement with respect to all of the Sphere Shares and SVTP
Shares subject to the FBC Transfer, as if such transferee or assignee were FBC
hereunder (and, for the avoidance of doubt, FBC shall remain a party to this
Agreement with respect to any Sphere Shares and SVTP Shares that are not a part
of the FBC Transfer).

7.5.      Governing
Law. This Agreement will be governed by and construed in accordance with the
laws of the State of Delaware, without reference to without reference to
principles of conflict of laws or choice of laws. 

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7.6.      Counterparts.
This Agreement may be executed in any number of counterparts, each of which when
so executed and delivered will be deemed an original, and all of which together
shall constitute one and the same agreement. Delivery of copies of original
signed counterparts by facsimile or electronic transmission (including e-mail)
shall be deemed as valid as physical delivery of original signed
counterparts. 

7.7.     
Titles and Headings. The titles, captions and headings of this Agreement
are included for ease of reference only and will be disregarded in interpreting
or construing this Agreement. Unless otherwise specifically stated, all
references herein to “Sections”, “schedules” and “exhibits” will mean
“sections”, “schedules” and “exhibits” to this Agreement. 

7.8.      Amendments
and Waivers. Any term of this Agreement may be amended and the observance of
any term of this Agreement may be waived (either generally or in a particular
instance and either retroactively or prospectively) only with the written
consent of all parties. 

7.9.     
Severability. If any provision of this Agreement is determined by any
court or arbitrator of competent jurisdiction to be invalid, illegal or
unenforceable in any respect, such provision will be enforced to the maximum
extent possible given the intent of the parties hereto. If such clause or
provision cannot be so enforced, such provision shall be stricken from this
Agreement and the remainder of this Agreement shall be enforced as if such
invalid, illegal or unenforceable clause or provision had (to the extent not
enforceable) never been contained in this Agreement. 

7.10.      Entire
Agreement. This Agreement and the documents referred to herein, together
with all the Schedules and Exhibits hereto, constitute the entire agreement and
understanding of the parties with respect to the subject matter of this
Agreement, and supersede any and all prior understandings and agreements,
whether oral or written, between or among the parties hereto with respect to the
specific subject matter hereof. 

7.11.      Third
Parties. Nothing in this Agreement, express or implied, is intended to
confer upon any person, other than the parties hereto and their successors and
assigns, any rights or remedies under or by reason of this Agreement. 

7.12.      Specific
Performance. The parties agree that irreparable damage would occur in the
event that any of the provisions of this Agreement were not performed in
accordance with their specific terms. It is accordingly agreed that the parties
shall be entitled to seek specific performance of the terms hereof, this being
in addition to any other remedies to which they are entitled at law or equity.


***** 

[Signatures on following pages] 

7 




IN WITNESS
WHEREOF, the parties hereto have executed this Share Exchange Agreement
as of the date first written above. 

	 	SPHERE 3D CORP. 
	 	 
	 	  	  
	 	By: 	/s/ Peter Tassiopoulos 
	 	Name: 	Peter Tassiopoulos 
	 	Title: 	President 
	 	  	  
	 	Address: 
	 	 
	 	Email: 	  
	 	 	 
	 	Attn: Peter Tassiopoulos
  


[SIGNATURE PAGE TO SHARE EXCHANGE AND
BUY-OUT AGREEMENT] 





	 	STOCKHOLDER: 
	 	  
	 	FBC HOLDINGS SARL 
	 	  
	 	  
	 	By: /s/ Trustmoore Luxembourg S.A.

	 	Name: Trustmoore Luxembourg S.A. 
	 	Title: Manager A 
	 	  
	 	By: /s/ Cyrus Capital Partners, LP

	 	Name: Cyrus Capital Partners, LP 
	 	Title: Manager B 
	 	  
	 	  
	 	c/o Cyrus Capital Partners, LP 
	 	65 East 55th Street 
	 	New York 
	 	NY 10022 
	 	United States 
	 	Email: dbordessa@cyruscapital.com and 
	 	ops@cyruscapital.com 
	 	  
		With a copy (which shall not constitute notice)
      
To 
	 	  
	 	Morgan, Lewis & Bockius UK LLP 
	 	Condor House, 5-10 St. Paul's Churchyard 
	 	London EC4M 8AL 
	 	United Kingdom 
	 	Attention: Georgia Quenby/Victoria Thompson
  
	 	  
	 	Email: Georgia.quenby@morganlewis.com and

	 	Victoria.thompson@morganlewis.com



[SIGNATURE PAGE TO SHARE EXCHANGE AND
BUY-OUT AGREEMENT] 





	 	MF VENTURES LLC 
	 	  
	 	By: /s/ Victor MacFarlane 
	 	Name: Victor MacFarlane 
	 	Title: Manager 
	 	 
	 	Address: 
	 	 
	 	Email: 
	 	 
	 	Attn: Victor MacFarlane 


[SIGNATURE PAGE TO SHARE EXCHANGE AND
BUY-OUT AGREEMENT] 





	 	SVTP: 
	 	 
		SILICON VALLEY TECHNOLOGY PARTNERS,
      INC 
	 	  
	 	By: /s/ Eric Kelly 
	 	Name: Eric Kelly 
	 	Title: Chief Executive Officer 
	 	  
	 	Address: 
	 	 
	 	Email: 
	 	 
	 	Attn: Eric Kelly 


[SIGNATURE PAGE TO SHARE EXCHANGE AND
BUY-OUT AGREEMENT] 





	 	OVERLAND: 
	 	  
	 	By: /s/ Eric Kelly 
	 	Name: Eric Kelly 
	 	Title: Chief Executive Officer 
	 	  
	 	Address: 
	 	 
	 	Email: 
	 	 
	 	Attn: Eric Kelly 


[SIGNATURE PAGE TO SHARE EXCHANGE AND
BUY-OUT AGREEMENT] 




SCHEDULE A 

LIST OF STOCKHOLDERS AND ENTITLEMENTS


	STOCKHOLDER 	SPHERE SHARES 	ENTITLEMENT TO
    
SVTP SHARES 
	FBC Holdings S.a r.l. 	2,500,000 shares of
      
Preferred Shares of 
Sphere 	1,879,699 shares of Series

A Preferred Stock of 
SVTP