1
EXHIBIT 10.42
FUTURELINK CORP.
SHARE PLEDGE AGREEMENT
THIS AGREEMENT made this 4th day of May, 2000,
BETWEEN:
FUTURELINK CORP., a Delaware corporation
(the "Pledgor")
OF THE FIRST PART
-and-
CANADIAN IMPERIAL BANK OF COMMERCE.
a Canadian chartered bank
(the "Lender")
OF THE SECOND PART
WHEREAS the Pledgor is indebted or may become indebted to the Lender
under a Loan Agreement dated May 4, 2000 among the Lender, the Pledgor and
FutureLink Distribution Corp. (as the same may be amended, supplemented or
replaced from time to time, the "Loan Agreement");
AND WHEREAS the Pledgor has agreed to pledge the Shares (as
hereinafter defined) as security for the Indebtedness (as hereinafter defined);
NOW, THEREFORE, THIS AGREEMENT WITNESSETH THAT, in consideration of
the premises and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged by the Pledgor, the Pledgor hereby
covenants and agrees with the Lender as follows:
1. Delivery and Transfer of Shares
The Pledgor represents, acknowledges and confirms (i) that it has
delivered to the Lender the certificates representing 2,158,829 Class A Common
shares (the "FLDC Shares") in the capital stock of FutureLink Distribution
Corp. ("FLDC"), and all of the issued and outstanding shares in capital stock
of FutureLink Pleasanton Corp., FutureLink Async Corp., FutureLink VSI Corp.,
FutureLink Madison Corp. and FutureLink Micro Visions Corp.
2
2
(collectively with FLDC, the "Corporations" and individually, a "Corporation"),
as described in Schedule "A" hereto (collectively with the FLDC Shares, the
"Shares"), together with an executed stock transfer power of attorney in blank
in respect of the Shares; (ii) that all conditions of transfer of the Shares to
the Lender or its nominee have been satisfied; and (iii) that the transfer of
the Shares or any part thereof will upon the direction of the Lender be entered
in the securities register of the appropriate Corporation and new certificates
therefor issued in the name of and delivered to the Lender or its nominee.
2. Pledge
(a) Subject to the provisions of Section 6 hereof, the Pledgor hereby
pledges, assigns and hypothecates and grants a security interest in, the Shares
and all distributions, dividends, benefits and income appertaining thereto or
derived therefrom, to and in favour of the Lender as general and continuing
collateral security to secure the obligations of the Pledgor in respect of the
Indebtedness.
(b) The Lender, by accepting this pledge, agrees that upon payment in full
of the Indebtedness it will redeliver to the Pledgor the certificates for the
Shares together with the executed stock transfer power of attorney in blank in
respect of the Shares.
3. Indebtedness Secured
In this Agreement, the term "Indebtedness" shall mean and include all
present and future indebtedness and liability of every kind, nature and
description (whether direct or indirect, joint or several, absolute or
contingent, matured or unmatured) of the Pledgor to the Lender, wherever and
however incurred and any unpaid balance thereof and whether arising or
contemplated by the Loan Agreement or otherwise.
4. Attachment and Value
The Pledgor and the Lender acknowledge and agree that the security
interest created by this Agreement is intended to attach to the Shares
immediately upon execution of this Agreement by the Pledgor. The Pledgor
acknowledges that value has been given by the Lender.
5. Covenants of Pledgor
The Pledgor hereby covenants, warrants and represents to the Lender
that:
(a) it is the legal and beneficial owner with good title to the Shares
which are free and clear of any encumbrances, claims, liens, security
interests or third party claims of any kind whatsoever and that the
Shares have been duly and validly authorized and issued and are fully
paid for and that there are no outstanding calls thereon;
(b) the FLDC Shares together with an additional 1,162,446 Class A Common
Shares in the capital stock of FLDC legally and beneficially owned by
the Pledgor are the only issued shares in the capital stock of FLDC;
3
3
(c) the Shares (other than the FLDC Shares) are the only issued shares in
the capital stock of the Corporation (other than FLDC);
(d) no person has any agreement, option, right or privilege capable of
becoming an agreement, option or right for the acquisition,
subscription, allotment or issuance of any unissued shares in the
capital of or any securities of the Corporations;
(e) the Pledgor has the exclusive right and power to pledge, assign,
deliver and to otherwise deal with the Shares, and that all conditions
of transfer thereof have been complied with; and
(f) the Pledgor will ensure that no further shares in the capital stock of
the Corporation are issued as long as any Indebtedness remains
outstanding without the express written consent of the Lender.
6. Voting Rights and Dividends
Until the security hereby constituted shall have become enforceable,
the Pledgor retains beneficial ownership of the Shares and shall have the right
to:
(a) receive all distributions, dividends, benefits and income in respect
to the Shares;
(b) represent the Shares at any meeting of the shareholders of any of the
Corporations; and
(c) exercise any voting rights attached to the Shares;
PROVIDED THAT, upon the security hereby constituted becoming enforceable, all
such rights shall, without notice, immediately cease and be at an end and shall
vest in the Lender.
7. Default
The security hereby constituted shall become enforceable if any Event
of Default occurs, as defined in the Loan Agreement, or if any security
referred to in the Loan Agreement becomes enforceable.
8. Enforcement
At any time after the security hereby constituted becomes enforceable,
the Lender shall have the following rights, powers and remedies:
(a) to sell or dispose of the Shares, whether by public or private
sale or otherwise in such manner, at such place and on such terms as
may be commercially reasonable, including, without limitation, terms
that provide time for payment or credit; PROVIDED ALWAYS THAT:
4
4
(i) it shall not be incumbent on the Lender to sell or dispose of
the Shares, but that it shall be lawful for the Lender or its
nominee peaceably and quietly to take, hold, use, possess and
enjoy the Shares;
(ii) the Lender may convey, transfer and assign to a purchaser or
purchasers the legal and beneficial title to the Shares;
(iii) the Lender shall have the right to purchase the Shares at any
public or private sale thereof; and
(iv) the Pledgor shall be entitled to be credited only with the
actual proceeds of such sale or other disposition of the Shares
when received by the Lender and the actual proceeds of such
sale shall mean all amounts received by the Lender upon the
sale or other disposition of the Shares; PROVIDED THAT such
actual proceeds shall be distributed as provided for in Section
10 of this Agreement;
(b) without restricting the generality of subsection 8(a) hereof, the
right and power to receive all dividends and other distributions in
respect of the Shares and, the right and power to:
(i) represent the Shares at any meeting or meetings of
shareholders of any of the Corporations; and
(ii) exercise all voting rights attached to the Shares.
The Pledgor acknowledges that the sale of the Shares shall be free from any
right of redemption on the part of the Pledgor which is hereby waived and
released. The Pledgor further acknowledges and agrees that the Lender shall not
be liable or accountable to the Pledgor for any failure to collect, realize or
obtain payment of all or any part of any dividends or other distributions on the
Shares or to represent or to exercise any voting rights in respect of the
Shares.
9. Proceeds Held In Trust
After the security hereby constituted becomes enforceable, all monies
collected or received by the Pledgor in respect of the Shares shall be received
in trust for the Lender and shall be forthwith paid to the Lender.
10. Application of Proceeds and Disposition of Securities
The proceeds from the sale of the Shares and any dividends or other
distributions received by the Lender may be applied or imputed to the
Indebtedness as the Lender may see fit, and the Lender shall at all times and
from time to time have the right to change any such imputation or appropriation
as the Lender may see fit; PROVIDED THAT all monies received by the Lender
pursuant to this Agreement shall be applied as follows:
5
5
(a) first, in payment of all reasonable costs and expenses, including
reasonable legal costs as between a solicitor and his own client on a
full indemnity basis, incurred by the Lender in the exercise of all or
any of the powers granted to it under this Agreement and interest
thereon from the date of incurring of such expenses at the rate
payable in respect of the advances under the Loan Agreement;
(b) second, in payment of the Indebtedness in such manner as the Lender,
in its sole discretion, may determine;
(c) third, in satisfaction of any indebtedness or liabilities secured by
any security interest on the Shares subordinate to the pledge and
assignment created by this Agreement if written demand therefor is
received by the Lender before the distribution of the proceeds is
completed; and
(d) fourth, any surplus shall be paid to the Pledgor.
11. Waiver by the Lender
Any breach by the Pledgor of any of the provisions contained in this
Agreement or any default by the Pledgor in the observance or performance of any
covenant or condition required to be observed or performed by the Pledgor
hereunder, may only be waived by the Lender in writing; PROVIDED THAT no such
waiver by the Lender shall extend to or be taken in any manner to effect any
subsequent breach or default or the rights resulting therefrom.
12. The Lender Appointed Attorney
Upon the security hereby constituted becoming enforceable, the
Pledgor hereby irrevocably appoints the Lender and any person further
designated by the Lender to be the attorney of the Pledgor for and on behalf
and in the name and stead of the Pledgor generally to exercise all or any of
the following powers:
(a) to execute and do any deeds, documents, transfers, demands,
assignments, assurances, consents and things which the Pledgor is
obliged to sign, execute or do hereunder;
(b) to commence, continue and defend any proceedings authorized to be
taken hereunder;
(c) to sign and seal all documents and to fill in all blanks in any
instruments, transfers, powers of attorney or other documents
necessary in order to vest in the Lender or any officer or officers or
a nominee or nominees of the Lender or any purchaser or purchasers of
the Shares, all rights attached thereto; and
(d) to transfer the Shares and rights relating thereto to the Lender or
any officer or officers or a nominee or nominees of the Lender or any
purchaser or purchasers, and to cause the Shares to be transferred on
the books of the Corporation to the Lender or any officer or officers
or a nominee or nominees of the Lender or any purchaser or purchasers,
and to entitle the Lender or any such nominee or
6
6
purchaser to represent the Shares and rights relating thereto at any
meeting of the Pledgor to vote thereon.
13. Further Assurances
The Pledgor shall do, execute, acknowledge and deliver or cause to be
done, executed, acknowledged and delivered such further acts, deeds, mortgages,
transfers, consents, powers of attorney, approvals and assurances as the Lender
shall reasonably require for the better assuring, pledging, assigning and
confirming unto the Lender the Shares or property intended to be pledged or
assigned hereunder, or which the Pledgor may hereafter become bound to pledge or
assign in favour of the Lender, for the purpose of accomplishing and effecting
the intention of this Agreement.
14. Rights Cumulative
All rights and remedies of the Lender set out in this Agreement shall
be cumulative, and no right or remedy contained herein is intended to be
exclusive, but each shall be in addition to any other right or remedy contained
herein or in any existing or further security document entered into between the
Pledgor and the Lender or presently or hereafter existing at law or in equity or
by statute.
15. Security Additional and Continuing
The Security hereby constituted is in addition to and not in
substitution for any of the security now or hereafter held by the Lender, and
the security shall not merge in any other security now or hereafter held by the
Lender. The security created hereby shall be a general continuing collateral
security for the Indebtedness until all of the Indebtedness owing to the Lender
from time to time is paid in full.
16. Applicable Law
The Agreement and all of the rights and obligations arising herefrom
shall be governed by and interpreted and applied in accordance with the laws of
the Province of Alberta. The Assignor does hereby irrevocably submit and attorn
to the non-exclusive jurisdiction of the courts of the Province of Alberta for
all matters arising out of or relating to this Agreement or any of the
transactions contemplated hereby.
17. Severability
In the event that any provision or any part of any provision hereof is
deemed to be invalid by reason of the operation of any law or by reason of the
interpretation placed thereon by a Court, this Agreement shall be construed as
not containing such provision or such part of such provision, and the invalidity
of such provision or such part shall not affect the validity of any other
provision or the remainder of such provisions hereof, and all provisions hereof
which are otherwise lawful and valid shall remain in full force and effect.
7
7
18. Section Headings
The section headings in this Agreement are for convenience only and
shall be without any substantive meaning whatsoever.
19. Notice
(a) Each notice, request or other communication to the Lender required or
permitted hereunder shall be in writing, and shall be given by actual
delivery or by facsimile to the Lender at:
CANADIAN IMPERIAL BANK OF COMMERCE
Knowledge Based Business
▇▇▇▇ ▇▇▇▇▇, ▇▇▇ - ▇▇▇ ▇▇▇▇▇▇ ▇.▇.
▇▇▇▇▇▇▇, ▇▇ ▇▇▇ ▇▇▇
Attention: Director
Facsimile Number: (▇▇▇) ▇▇▇-▇▇▇▇
The Lender may by written notice to the Pledgor change its address or
facsimile number for purposes hereof.
(b) Each notice, request or other communications to the Pledgor required
or permitted hereunder shall be in writing, and shall be given by
actual delivery or by facsimile to the Pledgor at the following
address:
FUTURELINK CORP.
▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Chief Financial Officer
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
The Pledgor may by written notice to the Lender change its address or
facsimile number for purposes hereof.
20. Binding Effect
This Agreement and all its provisions shall enure to the benefit of
the Lender and the Pledgor and their respective successors and assigns, and
shall be binding upon the Lender and the Pledgor and their respective
successors and assigns.
8
8
21. Safekeeping
The Lender shall be bound to exercise in the keeping of the Shares the
same degree of care as it would exercise with respect to its own securities.
22. Interpretation
When the context so requires, the singular will be read as the plural and
vice versa.
IN WITNESS WHEREOF, the Pledgor and the Lender have executed and delivered
this Agreement by the hands of their proper signing officer duly authorized in
that behalf, as of the day and year first above written.
FUTURELINK CORP. CANADIAN IMPERIAL BANK OF
COMMERCE
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ By: /s/ ▇▇▇ ▇▇▇▇▇▇▇▇▇
-------------------- -----------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Name: ▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Chief Financial Officer Title: Director Commercial Bank
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
-----------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Secretary
9
Acknowledgement
May 4, 2000
Each of FutureLink Distribution Corp., FutureLink Pleasanton Corp.,
FutureLink Async Corp., FutureLink VSI Corp. and FutureLink Madison Corp.
acknowledges receipt of notice of the foregoing pledge and consents to it.
FUTURELINK DISTRIBUTION CORP.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ / /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
_____________________________________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ / ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Chief Financial Officer/Secretary
FUTURELINK PLEASANTON CORP.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ / /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
_____________________________________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ / ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Chief Financial Officer/Secretary
FUTURELINK ASYNC CORP.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ / /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
_____________________________________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ / ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Chief Financial Officer/Secretary
FUTURELINK VSI CORP.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ / /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
_____________________________________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ / ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Chief Financial Officer/Secretary
FUTURELINK MADISON CORP.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ / /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
_____________________________________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ / ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Chief Financial Officer/Secretary
FUTURELINK MICRO VISIONS CORP.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ / /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
_____________________________________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ / ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Chief Financial Officer/Secretary
10
SCHEDULE "A"
SHARES
CORPORATION SHARES CERTIFICATE NO(S).
----------- ------ ------------------
FutureLink Distribution Corp. 2,158,829 Class A A1
Common Shares
FutureLink Pleasanton Corp. 500 shares 2
FutureLink Asyne Corp. 500 shares 2
FutureLink VSI Corp. 100 shares 2
FutureLink Micro Vision Corp. 500 shares 2