EXHIBIT 4.5
THIRD AMENDED AND RESTATED VOTING AGREEMENT
THIS
THIRD AMENDED AND RESTATED VOTING AGREEMENT (the “
Agreement ”) is made and entered into as of
October 19, 2006, by and among Synacor, Inc., a Delaware
corporation (the “ Company ”), the holders of
the Company’s Series C Preferred Stock (sometimes
referred to herein as the “ Series C Preferred
Stock ”) listed on the Schedule of Series C
Investors attached as Schedule A hereto (the “
Series C Investors ”), the holders of the
Company’s Series B Preferred Stock (sometimes referred
to herein as the “ Series B Preferred Stock
”) listed on the Schedule of Series B Investors attached
as Schedule B hereto (the “ Series B
Investors ”), the holders of the Company’s
Series A-1 Preferred Stock (sometimes referred to herein as
the “ Series A-1 Preferred Stock ”) listed
on the Schedule of Series A-1 Investors attached as
Schedule C hereto (the “ Series A-1
Investors ”), the holders of the Company’s
Series A Preferred Stock (sometimes referred to herein as the
“ Series A Preferred Stock ” and, together with
the Series C Preferred Stock, Series B Preferred Stock
and Series A-1 Preferred Stock, the “ Preferred
Stock ”) listed on the Schedule of Series A
Investors attached as Schedule D hereto (the “
Series A Investors ” and, together with the
Series C Investors, Series B Investors and
Series A-1 Investors, the “ Investors ”),
the lenders of the Company (the “ Lenders ”)
listed on the Schedule of Lenders attached as
Schedule E hereto and the holders of Common Stock of
the Company (the “ Common Stock ”) or warrants
to purchase Common Stock of the Company (the “ Common
Holders ”) listed on the Schedule of Common Holders
attached as Schedule F hereto. The Company, the
Lenders, the Common Holders and the Investors are individually each
referred to herein as a “ Party ” and are
collectively referred to herein as the “ Parties
.” The Company’s Board of Directors is referred to
herein as the “ Board .”
WITNESSETH :
WHEREAS,
the Company and the Series C Investors have entered into that
certain Series C Preferred Stock Purchase Agreement of even
date herewith (the “ Purchase Agreement ”),
which provides for, among other things, the purchase by the
Series C Investors of shares of Series C Preferred
Stock;
WHEREAS,
the execution and delivery of this Agreement is a condition to the
closing of the transactions contemplated by the Purchase
Agreement;
WHEREAS,
the Company’s Fourth Amended and Restated Certificate of
Incorporation, as may be amended from time to time (the “
Certificate of Incorporation ”), provides that
(a) holders of shares of Common Stock, voting together as a
single class, shall elect one (1) member of the Board (the
“ Common Director ”), (b) holders of shares
of Series A Preferred Stock, voting together as a single
class, shall elect two (2) members of the Board (the “
Series A Directors ”), (c) the holders of
shares of Series B Preferred Stock, voting together as a
single class, shall elect one (1) member of the Board (the
“ Series B Director ”), (d) the
holders of shares of Series C Preferred Stock, voting together
as a single class, shall elect one (1) member of the Board (the
“ Series C Director ” and, together with
the Series A Directors and Series B Director, the “
Preferred Directors ”) and (e) the holders of
shares of Common Stock and the
holders
of shares of Preferred Stock, voting together as a single class on
an as-converted basis, shall be entitled to elect any remaining
members of the Board;
WHEREAS,
the Company, certain of the Investors, the Common Holders and the
Lenders are parties to that certain Second Amended and Restated
Voting Agreement dated as of October 1, 2004 (the “
Prior Agreement ”);
WHEREAS,
Section 17 of the Prior Agreement provides that generally the
Prior Agreement may be amended with the written consent of the
holders of two thirds of the then outstanding Preferred Stock (as
defined therein);
WHEREAS,
the parties to the Prior Agreement necessary to amend the Prior
Agreement have resolved to do so, and such parties hereby agree
that this Agreement shall amend and restate the Prior Agreement in
its entirety and to accept the rights created pursuant hereto in
lieu of the rights created under the Prior Agreement; and
WHEREAS,
to induce the Series C Investors to enter into the Purchase
Agreement and purchase shares of Series C Preferred Stock
thereunder, the Company and the other Parties hereto desire to
enter into this Agreement with such Series C Investors;
NOW,
THEREFORE, in consideration of the foregoing premises and certain
other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the Parties agree as
follows:
1.
Agreement to Vote . Each Investor, as a holder of Preferred
Stock, hereby agrees on behalf of itself and any transferee or
assignee of any such shares of the Preferred Stock, to hold all of
the shares of Preferred Stock registered in its name and any other
voting securities of the Company subsequently acquired by such
Investor (and any securities of the Company issued with respect to,
upon conversion of, or in exchange or substitution for such
securities) (hereinafter collectively referred to as the “
Investor Shares ”) subject to, and to vote the
Investor Shares at a regular or special meeting of stockholders (or
by written consent) in accordance with, the provisions of this
Agreement. Each Common Holder, as a holder of Common Stock of the
Company, hereby agrees on behalf of itself and any transferee or
assignee of any such shares of Common Stock, to hold all of such
shares of Common Stock and any other securities of the Company
acquired by such Common Holder in the future (and any securities of
the Company issued with respect to, upon conversion of, or in
exchange or substitution for such securities) (the “
Common Shares ”) subject to, and to vote the Common
Shares at a regular or special meeting of stockholders (or by
written consent) in accordance with, the provisions of this
Agreement.
2.
Board Size . The holders of Investor Shares and Common
Shares shall vote at a regular or special meeting of stockholders
(or by written consent) such shares that they own (or as to which
they have voting power) to ensure that the size of the Board shall
be set and remain at seven (7) directors; provided ,
however , that such Board size may be subsequently
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increased or decreased upon the approval of a majority of the Board
and that such majority must include all of the Preferred
Directors.
3.
Election of Directors .
(a) In
any election of directors of the Company to elect the Common
Director, the Parties holding shares of Common Stock shall each
vote at any regular or special meeting of stockholders (or by
written consent) such number of shares of Common Stock then owned
by them (or as to which they then have voting power) as may be
necessary to elect one (1) director nominated by the holders
of a majority of the then outstanding shares of Common Stock, who
shall be the Company’s then current chief executive
officer.
(b) In
any election of directors of the Company to elect the Series A
Directors, the Parties holding shares of Series A Preferred
Stock shall each vote at any regular or special meeting of
stockholders (or by written consent) such number of shares of
Series A Preferred Stock then owned by them (or as to which
they then have voting power) as may be necessary to elect
(i) one (1) director nominated by Crystal Internet Venture
Fund II (BVI), L.P. and Crystal Internet Venture Fund II (BVI),
Crystal Vision, L.P. (collectively, “ Crystal
”), voting together, (the “ Crystal Nominee
”) and (ii) one (1) director nominated by Pacven
Walden Ventures IV, L.P. (“ Walden ”) (the
“ Walden Nominee ”) for so long as any shares of
Series A Preferred Stock remain outstanding. If the foregoing
condition has not been met, one or more replacement directors shall
be appointed by the majority consent of the remaining
directors.
(c) In
any election of directors of the Company to elect the Series B
Director, the Parties holding shares of Series B Preferred
Stock shall each vote at any regular or special meeting of
stockholders (or by written consent) such number of shares of
Series B Preferred Stock then owned by them (or as to which
they then have voting power) as may be necessary to elect one
(1) director nominated by Advantage Capital New York Partners
I, L.P. and Advantage Capital New York Partners II, L.P.
(collectively, “ Advantage ”) (the “
Advantage Nominee ”) for so long as any shares of
Series B Preferred Stock remain outstanding. If the foregoing
condition has not been met, one or more replacement directors shall
be appointed by the majority consent of the remaining
directors.
(d) In
any election of directors of the Company to elect the Series C
Director, the Parties holding shares of Series C Preferred
Stock shall each vote at any regular or special meeting of
stockholders (or by written consent) such number of Shares of
Series C Preferred Stock then owned by them (or as to which
they then have voting power) as may be necessary to elect one
(1) director nominated by North Atlantic Venture Fund III and
North Atlantic SBIC IV, L.P. (collectively, “ North
Atlantic ”), voting together, (the “ North
Atlantic Nominee ”) for so long as (x) any shares of
the Series C Preferred Stock remain outstanding and
(y) North Atlantic and its Affiliates are the record holder,
in aggregate, of at least 20% of the outstanding Series C
Preferred Stock. If the foregoing condition has not been met, one
or more replacement directors shall be appointed by the majority
consent of the remaining directors. For purposes of this Agreement,
the terms “ Affiliate ” and “
Affiliated ” shall have the meanings set forth in the
Purchase Agreement.
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(e) In
any election of any remaining members of the Board, the Investors
and the Common Holders shall each vote at any regular or special
meeting of stockholders (or by written consent) such number of
voting securities of the Company then owned by them (or as to which
they then have voting power) as may be necessary to elect directors
nominated by the Common Director and approved by a majority of the
Preferred Directors (the “ Industry Directors
”).
4.
Observer Rights . For so long as George Chamoun is an
employee of the Company, Mr. Chamoun shall be entitled to attend
each meeting of the Board in a nonvoting, observer capacity. For so
long as they hold shares of Common Stock or Preferred Stock, each
of Buffalo and Erie County Industrial Land Development Corporation
(“ BECILDC ”), Rand Capital SBIC, L.P. (“
Rand ”), Access Technology Capital, LLC (“
Access ”) and Mitsui Incubase Corporation (“
Mitsui ”) shall be entitled to designate one
(1) representative (the “ BECILDC Observer
”, the “ Rand Observer ”, the “
Access Observer ” and the “ Mitsui
Observer ”, respectively, and together with
Mr. Chamoun, the “ Observers ”) to attend
each meeting of the Board in a nonvoting, observer capacity. The
Company shall send to the Observers the notice of the time and
place of such meeting in the same manner and at the same time as it
shall send such notice to the Board. The Company shall also provide
the Observers with copies of all reports, minutes and consents at
the time and in the manner as they are provided to the Board and
the Observers shall have access to the same information as members
of the Board, provided that the Observers shall hold in
confidence and trust all information provided to, or obtained by,
him or her pursuant to this Section 4; and provided
further , that the Company reserves the right to withhold
any information and to exclude any or all of the Observers from any
meeting or portion thereof if (i) access to such information
or attendance at such meeting (A) could adversely affect the
attorney-client privilege between the Company and its counsel or
(B) would result in disclosure of trade secrets to any of the
Observers or (ii) any of the Observers is a direct competitor
to the Company.
5.
Removal . Any director of the Company may be removed from
the board in the manner allowed by law and the Certificate of
Incorporation, as amended, and the Company’s Bylaws, but with
respect to a director designated pursuant to subsections 3(a),
3(b), 3(c) or 3(d) above, only upon the vote or written consent of
the stockholders or directors, as applicable, entitled to nominate
such director.
6.
Majority Electing . In the event that (a)(i) an acquisition
of the Company by another entity by means of any transaction or
series of related transactions (including, without limitation, any
reorganization, merger or consolidation) that would result in the
transfer of fifty percent (50%) or more of the outstanding voting
power of the Company or in which the stockholders of the Company
immediately prior to such transaction would own, as a result of
such transaction, less than a majority of the voting securities, in
the same relative proportions, of the successor or surviving
corporation immediately thereafter; or (ii) a sale of all or
substantially all of the assets of this corporation (such events
described in subsections (i) and (ii) are referred to
herein as a “ Sale of the Company ”) is approved
by a majority of the Board and the holders of at least sixty
percent (60%) of the outstanding shares of Preferred Stock (voting
together as a single class on an as-converted basis) and
(b) the net proceeds of such Sale of the Company are
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to be
distributed to stockholders of the Company in accordance with the
Certificate of Incorporation, as amended, then each Investor,
Common Holder and Lender hereby agrees with respect to all options,
warrants or securities of the Company, which it owns or with
respect to which it otherwise exercises voting or dispositive
authority; provided , however , that (i) the
requirements of this Section 6 shall not apply to any
securities of the Company owned by Intel Capital Corporation
(“ Intel Capital ”) or its Affiliates (including
all securities over which Intel Capital otherwise exercises voting
or dispositive authority) and (ii) the requirements of this
Section 6 shall apply to any transferee of Shares (defined
below) that is not a partner or Affiliate of Intel Capital:
(a) in
the event such transaction is to be brought to a vote at a
stockholder meeting, after receiving proper notice of any meeting
of stockholders of the Company to vote on the approval of a Sale of
the Company, to be present, in person or by proxy, as a holder of
shares of voting securities, at all such meetings and be counted
for the purposes of determining the presence of a quorum at such
meetings;
(b) to
vote (in person, by proxy or by action by written consent, as
applicable) all shares of the capital stock of the Company as to
which it has beneficial ownership in favor of such Sale of the
Company and in opposition of any and all other proposals that
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