Sphere 3D Corp.: Exhibit 10.6 - Filed by newsfilecorp.com






Execution Version 

This PLEDGE AGREEMENT (this “Agreement”), dated
as of November 13, 2018, is made by and among SPHERE 3D CORP., a corporation
organized under the laws of Ontario, Canada (“Pledgor”), and Overland
Storage, Inc., a California corporation (the “Holder”). 

RECITALS 

WHEREAS, Pledgor has issued a Secured Promissory Note, dated as
of the date hereof (as amended, amended and restated, supplemented or otherwise
modified from time to time in accordance with its provisions, the “Note”)
to Holder. 

WHEREAS, it is a condition precedent to the making of the Note
that Pledgor shall have executed and delivered this Agreement. 

NOW, THEREFORE, in consideration of the premises and in order
to induce the Holder to make the loan evidenced by the Note, Pledgor hereby
agrees as follows: 

1.      Definitions. Except as specifically defined
herein, (a) capitalized terms used herein that are defined in the Note shall
have their respective meanings ascribed to them in the Note, and (b) unless
otherwise defined in the Note, terms that are defined in the U.C.C. are used
herein as so defined. As used in this Agreement, the following terms shall have
the following meanings: 

“Collateral” means, collectively, (a) the Pledged
Securities and each addition, if any, thereto and each substitution, if any,
therefor, in whole or in part, (b) the certificates representing the Pledged
Securities, and (c) the dividends, cash, instruments and other property
distributed in respect of and other proceeds of any of the foregoing. 

“Event of Default” means an event or condition that
constitutes an Event of Default as defined in Section 5.1 hereof.


“Exchange Agreement” means that certain Share Exchange
and Buy Out Agreement dated on or about the date hereof by and among Pledgor,
FBC Holdings S.à r.l., MF Ventures, LLC, and Silicon Valley Technology Partners,
Inc. 

“Obligations” means, collectively, all Indebtedness and
other obligations now owing or hereafter incurred by the Pledgor to the Holder
pursuant to the Note and this Agreement. 

“Pledged Securities” means all of the shares of capital
stock or other equity interest of Silicon Valley Technology Partners, Inc., a
Delaware corporation (“SVTP”), whether now owned or hereafter acquired or
created, and all proceeds thereof. As of the date hereof, the existing Pledged
Securities are listed on the attached Exhibit A. 

“Senior Pledge Agreement” means that certain Security
and Pledge Agreement dated on or about the date hereof by and between Pledgor
and FBC Holdings S.à r.l. 

2.      Grant of Security Interest. In consideration of and
as security for the full and complete payment of all of the Obligations, Pledgor
hereby agrees that the Holder shall at all times have, and hereby grants to the
Holder, a security interest in all of the Collateral. For the better protection
of the Holder hereunder, Pledgor has executed a transfer power, in the form of
the attached Exhibit B, with respect to the Pledged Securities and,
concurrently herewith, is depositing the Pledged Securities and the aforesaid
transfer power with the Holder. Pledgor authorizes the Holder at any time after
the occurrence and during the continuance of an Event of Default, to transfer
the Pledged Securities into the name of the Holder or the Holder’s nominee.
Notwithstanding any provision or inference herein or elsewhere to the contrary,
the Holder shall have no right to vote the Pledged Securities at any time unless
and until an Event of Default shall have occurred and be continuing.

3.      Representations and Warranties. Pledgor hereby
represents and warrants to the Holder as follows: 




3.1.      Pledgor is the legal record and beneficial owner of, and
has good and marketable title to, the Pledged Securities, and the Pledged
Securities are not subject to any pledge, lien, mortgage, hypothecation,
security interest, charge, option, warrant or other encumbrance whatsoever, nor
to any agreement purporting to grant to any third party a security interest in
the property or assets of Pledgor that would include such Pledged Securities,
except (i) the security interest created by this Agreement or otherwise securing
only the Holder, (ii) the Exchange Agreement, and (iii) the Senior Pledge
Agreement. 

3.2.      All of the Pledged Securities have been duly authorized
and validly issued, and are fully paid and non-assessable. 

3.3.      Pledgor has full power, authority and legal right to
pledge all of the Pledged Securities pursuant to the terms of this Agreement.


3.4.      No consent, license, permit, approval or authorization,
filing or declaration with any Governmental Authority, and no consent of any
other Person, is required to be obtained by Pledgor in connection with the
pledge of the Pledged Securities hereunder, that has not been obtained or made,
and is not in full force and effect. 

3.5.      The pledge, assignment and delivery of the Pledged
Securities hereunder creates a valid second priority lien on, and a second
priority perfected security interest in, the Pledged Securities and the proceeds
thereof. Other than pursuant to this Agreement and the Senior Pledge Agreement, Pledgor has not granted any other liens on, or security interests in, the
Pledged Securities. 

3.6.      The Pledged Securities constitute one hundred percent
(100%) of the outstanding capital stock or other equity interest of SVTP owned
by Pledgor.

3.7.      Pledgor fully anticipates that the Obligations will be
repaid without the necessity of selling the Pledged Securities. 

3.8.      Pledgor has received consideration that is the reasonably
equivalent value of the obligations and liabilities that Pledgor has incurred to
the Holder. Pledgor is not insolvent, as defined in any applicable state or
federal statute, nor will Pledgor be rendered insolvent by the execution and
delivery of this Agreement to the Holder or any other documents executed and
delivered to the Holder in connection herewith. Pledgor is not engaged or about
to engage in any business or transaction for which the assets retained by
Pledgor are or will be an unreasonably small amount of capital, taking into
consideration the obligations to the Holder incurred hereunder. Pledgor does not
intend to, nor does it believe that it will, incur debts beyond Pledgor’s
ability to pay such debts as they mature. 

3.9.      If the Pledged Securities are “restricted securities”
within the meaning of Rule 144, or any amendment thereof, promulgated under the
Securities Act of 1933, as amended (the “Securities Act”), as determined
by counsel for Pledgor, Pledgor further represents and warrants that Pledgor
does not have a short position in or any put or other option to dispose of any
securities of the same class as the Pledged Securities or any other securities
convertible into securities of such class.

4.      Additional Covenants of Pledgor. 

4.1.      Pledgor covenants and agrees to defend the right, title
and security interest of the Holder in and to the Pledged Securities and the
proceeds thereof, and to maintain and preserve the lien and security interest
provided for by this Agreement against the claim and demands of all Persons, so
long as this Agreement shall remain in effect. 

4.2.      Pledgor covenants and agrees not to sell, assign,
transfer, exchange or otherwise dispose of, or grant any option with respect to,
or create, incur or permit to exist any pledge, lien, mortgage, hypothecation,
security interest, charge, option or any other encumbrance with respect to any
of the Pledged Securities, or any interest therein, or any proceeds thereof,
except for (i) the lien and security interest provided for by this Agreement and any security agreement securing only the Holder, (ii) the
Exchange Agreement, and (iii) the Senior Pledge Agreement.


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4.3.      Pledgor covenants and agrees (a) to cooperate, in good
faith, with the Holder and to do or cause to be done all such other acts as may
be necessary to enforce the rights of the Holder under this Agreement, (b) not
to take any action, or to fail to take any action that would be adverse to the
interest of the Holder in the Collateral and hereunder, and (c) to make any sale
or sales of any portion or all of the Pledged Securities valid and binding and
in compliance with any and all applicable laws, regulations, orders, writs,
injunctions, decrees or awards of any and all courts, arbitrators or
governmental instrumentalities, domestic or foreign, having jurisdiction over
any such sale or sales at Pledgor’s expense. 

5.      Events of Default and Remedies. 

5.1.      The occurrence of an Event of Default, as defined in the
Note, shall constitute an Event of Default. 

5.2.      The Holder shall at all times have the rights and remedies
of a secured party under the U.C.C. and the Consolidated Laws of New York as in
effect from time to time, in addition to the rights and remedies of a secured
party provided elsewhere within this Agreement or the Note, or otherwise
provided in law or equity.

5.3.      Upon the occurrence and during the continuance of an Event
of Default hereunder, the Holder, in its discretion, may sell, assign, transfer
and deliver any of the Collateral, at any time, or from time to time. No prior
notice need be given to Pledgor or to any other Person in the case of any sale
of Collateral that the Holder determines to be declining speedily in value or
that is customarily sold in any securities exchange, over-the-counter market or
other recognized market, but in any other case the Holder shall give Pledgor no
fewer than ten days prior notice of either the time and place of any public sale
of the Collateral or of the time after which any private sale or other intended
disposition thereof is to be made. Pledgor waives advertisement of any such sale
and (except to the extent specifically required by the preceding sentence)
waives notice of any kind in respect of any such sale. At any such public sale,
the Holder may purchase the Collateral, or any part thereof, free from any right
of redemption, all of which rights Pledgor hereby waives and releases. After
deducting all expenses, and after paying all claims, if any, secured by liens
having precedence over this Agreement, the Holder may apply the net proceeds of
each such sale to or toward the payment of the Obligations, whether or not then
due, in such order and by such division as the Holder in its sole discretion may
deem advisable. Any excess, to the extent permitted by law, shall be paid to
Pledgor, and the obligors on the Obligations shall remain liable for any
deficiency. In addition, the Holder shall at all times have the right to obtain
new appraisals of Pledgor or the Collateral, the cost of which shall be paid by
Pledgor. 

6.      Power of Attorney. Pledgor hereby authorizes and
empowers the Holder to make, constitute and appoint any officer or agent of the
Holder as the Holder may select, in its exclusive discretion, as Pledgor’s true
and lawful attorney-in-fact, with the power to endorse Pledgor’s name on all
applications, documents, papers and instruments necessary for the Holder to take
actions with respect to the Collateral after the occurrence and during the
continuance of an Event of Default, including, without limitation, actions
necessary for the Holder to assign, pledge, convey or otherwise transfer title
in or dispose of the Collateral to any Person or Persons. Pledgor hereby
ratifies all that such attorney shall lawfully do or cause to be done by virtue
hereof. This power of attorney shall be irrevocable for the life of this
Agreement. 

7.      Costs and Expenses. If Pledgor fails to comply with
any of its obligations hereunder, the Holder may do so in the name of Pledgor or
in the name of the Holder but at Pledgor’s expense, and Pledgor hereby agrees to
reimburse the Holder in full for all expenses, including reasonable attorneys’
fees, incurred by the Holder in enforcing its security interest in the
Collateral.

8.      Maximum Liability of Pledgor and Rights of
Contribution. It is the desire and intent of Pledgor and the Holder that
this Agreement shall be enforced to the fullest extent permissible under the
laws and public policies applied in each jurisdiction in which enforcement is
sought. If and to the extent that the obligations of Pledgor under this
Agreement would, in the absence of this sentence, be adjudicated to be invalid
or unenforceable because of any applicable state or federal law relating to
fraudulent conveyances or transfers, then anything in this Agreement or the Note
to the contrary notwithstanding, in no event shall the amount of the Obligations secured by this Agreement by Pledgor exceed the
maximum amount that (after giving effect to the incurring of the obligations
hereunder) would not render the rights to payment of the Holder hereunder void,
voidable or avoidable under any applicable fraudulent transfer law. Pledgor
hereby agrees that, in connection with the payments made hereunder, Pledgor
shall have a right of contribution from the other Borrower, in accordance with
applicable law. Such contribution rights shall be waived until such time as the
Obligations have been irrevocably paid in full, and Pledgor shall not exercise
any such contribution rights until the Obligations have been irrevocably paid in
full. 

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9.      Notice. All notices, requests, demands and other
communications provided for hereunder shall be in writing and mailed or
delivered to the addresses set out on the signature pages of the Note. All
notices, statements, requests, demands and other communications provided for
hereunder shall be deemed to be given or made when delivered (if received during
a Business Date, such Business Day, otherwise the following Business Day), or
two Business Days after being deposited in the mails with postage prepaid by
registered or certified mail, addressed as aforesaid, or sent by facsimile or
electronic communication, in each case with telephonic confirmation of receipt.
All notices hereunder shall not be effective until received. 

10.      No Waiver or Course of Dealing. No course of dealing
between Pledgor and the Holder, nor any failure to exercise, nor any delay in
exercising, on the part of the Holder, any right, power or privilege hereunder
or under the Note shall operate as a waiver thereof; nor shall any single or
partial exercise of any right, power or privilege hereunder or thereunder
preclude any other or further exercise thereof or the exercise of any other
right, power or privilege. 

11.      Remedies Cumulative. Each right, power or privilege
specified or referred to in this Agreement is in addition to any other rights,
powers and privileges that the Holder may have or acquire by operation of law,
by other contract or otherwise. Each right, power or privilege may be exercised
by the Holder either independently or concurrently with other rights, powers and
privileges and as often and in such order as the Holder may deem expedient. All
of the rights and remedies of the Holder with respect to the Collateral, whether
established hereby or by the Note, or by any other agreements or by law shall be
cumulative and may be executed singularly or concurrently. 

12.      Severability. The provisions of this
Agreement are severable, and, if any clause or provision shall be held invalid
and unenforceable in whole or in part in any jurisdiction, then such invalidity
or unenforceability shall affect only such clause or provision, or part thereof,
in such jurisdiction, and shall not in any manner affect such clause or
provision in any other jurisdiction, or any other clause or provision of this
Agreement in any jurisdiction. 

13.       Modifications. This Agreement may be amended
or modified only by a writing signed by Pledgor and the Holder. No waiver or
consent granted by the Holder in respect of this Agreement shall be binding upon
the Holder unless specifically granted in writing, which writing shall be
strictly construed. 

14.      Assignment and Successors. This Agreement shall not
be assigned by Pledgor without the prior written consent of the Holder. This
Agreement shall be binding upon Pledgor and the successors and permitted assigns
of Pledgor, and shall inure to the benefit of and be enforceable and exercisable
by the Holder and its respective successors and assigns. Any attempted
assignment or transfer without the prior written consent of the Holder shall be
null and void. 

15.      Termination. At such time as the Obligations (other
than inchoate indemnity obligations) shall have been unconditionally paid in
full and the Note terminated and not replaced by any other credit facility with
the Holder, this Agreement shall automatically terminate. Upon written request
of Pledgor, the Holder shall promptly execute and deliver to Pledgor appropriate
releases with respect to the Collateral and return all of the Pledged Securities
to Pledgor and shall authorize Pledgor and its designees to file such
terminations as Pledgor may reasonably request. Pledgor will indemnify the
Holder in all respects for all costs incurred by the Holder in connection with
such termination. 

16.       Entire Agreement. This Agreement integrates all of
the terms and conditions with respect to the Collateral and supersedes all oral
representations and negotiations and prior writings, if any, with respect to the subject matter hereof. If any conflict or inconsistency exists
between this Agreement and the Note, the Note shall govern.

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17.       Headings; Execution. The headings and subheadings
used herein are for convenience of reference only and shall be ignored in
interpreting the provisions of this Agreement. This Agreement may be executed by
facsimile signature, which, when so executed and delivered, shall be deemed to
be an original. 

18.      Subordination. Notwithstanding anything to the
contrary herein, Holder subordinates to FBC HOLDINGS S.À R.L., a société à
responsabilité limitée incorporated under the laws of Luxembourg with R.C.S.
number B.142.133, its successors and assigns (“Bank”), any security
interest or lien that Holder may have in the Collateral. Notwithstanding the
respective dates of attachment or perfection of the security interests of Holder
and the security interests of Bank, all now existing and hereafter arising
security interests of Bank in the Collateral shall at all times be senior to the
security interests of Holder in the Collateral. Holder hereby acknowledges,
agrees and covenants that Holder shall not contest, challenge or dispute the
validity, attachment, perfection, priority or enforceability of Bank’s security
interest in the Collateral and (b) acknowledges and agrees that the provisions
of this Agreement will apply fully and unconditionally even in the event that
Bank’s security interest in the Collateral (or any portion thereof) shall be
unperfected. Notwithstanding anything herein to the contrary, prior to the
termination of the Exchange Agreement and the Senior Pledge Agreement, the
requirements of this Agreement to deliver Collateral and any certificates,
instruments or documents in relation thereto to Holder shall be deemed satisfied
by delivery of such Collateral and such certificates, instruments or documents
in relation thereto to Bank. 

19.      Governing Law; Submission to Jurisdiction. THIS
AGREEMENT AND ANY CLAIMS, CONTROVERSY, DISPUTE OR CAUSE OF ACTION (WHETHER IN
CONTRACT OR TORT OR OTHERWISE) BASED UPON, ARISING OUT OF OR RELATING TO THIS
AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREBY SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF DELAWARE. The Pledgor
hereby irrevocably and unconditionally (i) submits to the exclusive jurisdiction
and venue of the state and federal courts located in Delaware, and any appellate
court from any thereof in any action or proceeding arising out of or relating to
this Agreement and (ii) waive to the fullest extent permitted by applicable law
the defense of an inconvenient forum in connection therewith. Pledgor hereby
irrevocably appoints HVE Inc., a Delaware corporation (the “Process
Agent”), with an office at HVE Inc., 100 Executive Ct., Suite 2,
Waxahachie, TX 75165 as its agent to receive on behalf of the Pledgor and its
property service of copies of the summons and complaints and any other process
which may be served in any such action or proceeding. The Pledgor agrees that
the Holder may disclose to any assignee of or participant in, or any prospective
assignee of or participant in, any of its rights or obligations of all or part
of the Obligations any and all information in the Holder’s possession concerning
the Pledgor and this Agreement. All notices and other communications to the
Pledgor under this Agreement shall be in writing and shall be delivered by hand
or overnight courier service, mailed by certified or registered mail or sent by
facsimile or electronic mail to the Pledgor at the address specified herein or
at such other address(es) in the United States as may be specified by the
Pledgor in a written notice delivered to the Holder at such office as the Holder
may designate for such purpose from time to time in a written notice to the
Pledgor. 

20.      
WAIVER OF JURY TRIAL; FINAL AGREEMENT. EACH OF THE
PLEDGOR AND THE HOLDER HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY
LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR THE OBLIGATIONS (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER
THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR
ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH
OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE
FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE
BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE NOTE BY, AMONG OTHER THINGS,
THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION. THIS AGREEMENT REPRESENTS
THE FINAL AGREEMENT BETWEEN THE PARTIES HERETO AND MAY NOT BE CONTRADICTED BY
EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS BETWEEN THE
PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES HERETO. 

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IN WITNESS WHEREOF, the undersigned has caused this
Agreement to be executed by its duly authorized representatives as of the date
first written above. 

SPHERE 3D CORP. as Pledgor 

By: /s/ Peter
Tassiopoulos                                        
 
       Name: Peter Tassiopoulos 
        Title: President 

Acknowledged and agreed: 

OVERLAND STORAGE, INC. as Holder

By: /s/ Eric
Kelly                                                 
 
       Name: Eric Kelly
        Title: Chief Executive Officer 

[Signature Page to Pledge Agreement] 




EXHIBIT A 

PLEDGED SECURITIES 

	Entity 	Jurisdiction of Subsidiary 	Number of Shares  	Certificate 
	  	  	  	Number 
	  	  	  	  
	Silicon Valley Technology Partners, Inc. 	
    Delaware 
	1,879,669 shares of Series A Preferred Stock
      of SVTP 	
    PS A-1 



Exhibit A 




EXHIBIT B 

FORM OF STOCK TRANSFER POWER 

FOR VALUE RECEIVED, SPHERE 3D CORP., a corporation organized
under the laws of Ontario, Canada, hereby sells, assigns and transfers unto
______________________ (1,879,669) Shares of the Series A Preferred Stock of
SILICON VALLEY TECHNOLOGY PARTNERS, INC., a Delaware corporation, standing in
its name on the books of said corporation and represented by Certificate No. PS
A-1, herewith and does hereby irrevocably constitute and appoint
________________ attorney to transfer the said stock on the books of the within
named corporation with full power of substitution in the premises. 

	  	SPHERE 3D CORP. 
	  	  
	  	  
	Date: ______________	By: _______________________
	  	       Name:
    
	  	       Title:



Exhibit B