EX-4.5



 





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




2









 




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.



3









 





               (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




4









 




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 could reasonably be expected to
delay or impair the ability of the Company to consummate such Sale of the Company;



               (c) to refrain from exercising any dissenters’ rights or rights of appraisal under applicable
law at any time with respect to such Sale of the Company;



               (d) to execute and deliver all related documentation and take such other action in support of
the Sale of the Company as shall reasonably be requested by the Company;



               (e) if the Sale of the Company is structured as a sale of equity securities by the
stockholders of the Company, to sell the Investor Shares and Common Shares then owned by it on the
terms and conditions of such Sale of the Company; and



               (f) except for this Agreement, neither any of the parties hereto nor any Affiliates thereof
shall deposit any shares of capital stock beneficially owned by such person in a voting trust or
subject any such shares of capital stock to any arrangement or agreement with respect to the voting
of such shares of capital stock.



     “Shares” is defined as any shares of, or securities convertible into or exchangeable for any
shares of, any class of the capital stock of the Company.



          7. Legend on Share Certificates. Each certificate representing any Common Shares and
Investor Shares shall be endorsed by the Company with a legend reading substantially as follows:




5









 






“THE SHARES EVIDENCED HEREBY ARE SUBJECT TO A VOTING AGREEMENT
(A COPY OF WHICH MAY BE OBTAINED UPON WRITTEN REQUEST FROM THE
ISSUER), AND BY ACCEPTING ANY INTEREST IN SUCH SHARES THE PERSON
ACCEPTING SUCH INTEREST SHALL BE DEEMED TO AGREE TO AND SHALL BECOME
BOUND BY ALL THE PROVISIONS OF SAID VOTING AGREEMENT.”



          8. Covenants of the Company. The Company will not, by any voluntary action, avoid or
seek to avoid the observance or performance of any of the terms to be performed hereunder by the
Company, but will at all times in good faith assist in the carrying out of all of the provisions of
this Agreement and in the taking of all such actions as may be necessary, appropriate or reasonably
requested by the holders of a majority of the outstanding voting securities held by the Parties
hereto assuming conversion of all outstanding securities in order to protect the rights of the
Parties hereunder against impairment.




          9. No Liability for Election of Recommended Directors. None of the Company, the
Common Holders, the Lenders, the Investors, nor any officer, director, stockholder, partner,
employee or agent of such Party, makes any representation or warranty as to the fitness or
competence of the nominee of any Party hereunder to serve on the Company’s Board by virtue of such
Party’s execution of this Agreement or by the act of such Party in voting for such nominee pursuant
to this Agreement.




          10. Grant of Proxy. Each Party except Intel Capital with respect to Section 6 only
hereby grants to the Board a proxy coupled with an interest in all Investor Shares and Common
Shares owned by such Party which proxy is irrevocable until (i) this Agreement terminates pursuant
to its terms or (ii) this Section 10 is amended to remove such grant of proxy in accordance with
Section 17 hereof, to vote all such Investor Shares and Common Shares in the manner provided in
Sections 2, 3 and 6 hereof.




          11. Specific Enforcement. It is agreed and understood that monetary damages would not
adequately compensate an injured Party for the breach of this Agreement by any Party, that this
Agreement shall be specifically enforceable, and that any breach or threatened breach of this
Agreement shall be the proper subject of a temporary or permanent injunction or restraining order.
Further, each Party hereto waives any claim or defense that there is an adequate remedy at law for
such breach or threatened breach.




          12. Execution by the Company. The Company, by its execution in the space provided
below, agrees that it will cause the certificates issued after the date hereof evidencing the
shares of Common Stock and Preferred Stock to bear the legend required by Section 7 herein, and it
shall supply, free of charge, a copy of this Agreement to any holder of a certificate evidencing
shares of capital stock of the Company upon written request from such holder to the Company at its
principal office. The Parties hereto do hereby agree that the failure to cause the certificates
evidencing the shares of Common Stock and Preferred Stock to bear the legend required by Section 7
herein and/or failure of the Company to supply, free of charge, a copy of this Agreement as
provided under this Section 12 shall not affect the validity or enforcement of this Agreement.




6









 





          13. Captions. The captions, headings and arrangements used in this Agreement are for
convenience only and do not in any way limit or amplify the terms and provisions hereof.




          14. Notices. All notices and other communications given or made pursuant hereto shall
be in writing and shall be deemed effectively given: (i) upon personal delivery to the party to be
notified, (ii) when sent by confirmed electronic mail or facsimile if sent during normal business
hours of the recipient; if not, then on the next business day, (iii) five (5) days after having
been sent by registered or certified mail, return receipt requested, postage prepaid, or (iv) one
(1) business day after deposit with a nationally recognized overnight courier, specifying next day
delivery, with written verification of receipt. All communications shall be sent to the respective
parties at the addresses set forth on the signature pages attached hereto (or at such other
addresses as shall be specified by notice given in accordance with this Section 14).




          15. Term. This Agreement shall terminate and be of no further force or effect upon
(a) the consummation of a Qualified Public Offering (as such term is defined in the Certificate of
Incorporation, as amended), (b) the consummation of a Liquidation Event (as defined in the
Certificate of Incorporation), or (c) the written consent of the holders of a majority of the then
outstanding Common Shares, the majority in interest of the Lenders and the holders of two-thirds of
the then outstanding Investor Shares.




          16. Manner of Voting. The voting of shares pursuant to this Agreement may be effected
in person, by proxy, by written consent, or in any other manner permitted by applicable law.




          17. Amendments and Waivers. Any term hereof may be amended and the observance of any
term hereof may be waived (either generally or in a particular instance and either retroactively or
prospectively) with the written consent of (i) the Company and (ii) the holders of two thirds of
the then outstanding Preferred Stock (voting as a single class and on an as converted to Common
Stock basis); provided, however, that in the event such amendment or waiver would
adversely affect the rights and/or obligations of the Common Holders in a different manner than the
Investors and Lenders, such amendment or waiver shall also require the written consent of the
holders of at least a majority of the Common Stock then held by the Common Holders; provided
further, however, that in the event any amendment or waiver of Section 4, Section 15 or
Section 17 adversely affects the rights and/or obligations of BECILDC, Rand, Access or Mitsui, such
amendment or waiver shall also require the written consent of such stockholder so adversely
affected (as applicable). Notwithstanding the foregoing, (a) the provisions of Section 3(a),
Section 15 and Section 17 may be amended and the observance of any term thereof may be waived
(either generally or in a particular instance and either retroactively or prospectively) only with
the written consent of the holders of a majority of the Common Shares, (b) the provisions of
Section 2, Section 3(b)(i), Section 15 and Section 17 may be amended and the observance of any term
thereof may be waived (either generally or in a particular instance and either retroactively or
prospectively) only with the written consent of Crystal; (c) the provisions of Section 2, Section
3(b)(ii), Section 15 and Section 17 may be amended and the observance of any term thereof may be
waived (either generally or in a




7









 




particular instance and either retroactively or prospectively) only with the written consent
of Walden, (d) the provisions of Section 2, Section 3(c), Section 15 and Section 17 may be amended
and the observance of any term thereof may be waived (either generally or in a particular instance
and either retroactively or prospectively) only with the written consent of Advantage, (e) the
provisions of Section 2, Section 3(d), Section 15 and Section 17 may be amended and the observance
of any term thereof may be waived (either generally or in a particular instance and either
retroactively or prospectively) only with the written consent of North Atlantic and (f) the
provisions of Section 3(e), Section 15 and Section 17 may be amended and the observance of any term
thereof may be waived (either generally or in a particular instance and either retroactively or
prospectively) only with the written consent of the holders of a majority of the shares of
Preferred Stock and Common Stock held by the Investors and the Common Holders, respectively, voting
as a single class and on an as converted to Common Stock basis. Any amendment or waiver so
effected shall be binding upon the Parties hereto. Notwithstanding the foregoing, the provisions
of Section 6 may not be amended (either generally or in a particular instance and either
retroactively or prospectively) to affect any securities of the Company owned by Intel Capital
(including all securities over which Intel Capital otherwise exercises voting or dispositive
authority) without the written consent of Intel Capital; provided, however, that
such consent shall not be required following the transfer by Intel Capital of its Shares to a
transferee that is not a partner or Affiliate of Intel Capital.




          18. Stock Splits, Stock Dividends, etc. In the event of any issuance of shares of the
Company’s voting securities hereafter to any of the Parties hereto (including, without limitation,
in connection with any stock split, stock dividend, recapitalization, reorganization, or the like),
such shares shall become subject to this Agreement and shall be endorsed with the legend set forth
in Section 7.




          19. Severability. Whenever possible, each provision of this Agreement shall be
interpreted in such manner as to be effective and valid under applicable law, but if any provision
of this Agreement shall be held to be prohibited by or invalid under applicable law, such provision
shall be ineffective only to the extent of such prohibition or invalidity, without invalidating the
remainder of such provision or the remaining provisions of this Agreement.




          20. Binding Effect. In addition to any restriction or transfer that may be imposed by
any other agreement by which any Party hereto may be bound, this Agreement shall be binding upon
the Parties, their respective heirs, successors, transferees and assigns and to such additional
individuals or entities that may become stockholders of the Company and that desire to become
Parties hereto; provided that for any such transfer to be deemed effective, the transferee
shall have executed and delivered an Adoption Agreement substantially in the form attached hereto
as Exhibit A. Upon the execution and delivery of an Adoption Agreement by any transferee
reasonably acceptable to the Company, such transferee shall be deemed to be a Party hereto as if
such transferee’s signature appeared on the signature pages hereto. By their execution hereof or
any Adoption Agreement, each of the Parties hereto appoints the Company as its attorney-in-fact for
the purpose of executing any Adoption Agreement which may be required to be delivered hereunder.




8









 





          21. Additional Investors. Notwithstanding Section 17, no consent or amendment shall be
necessary to (i) add additional Investors as signatories to this Agreement, provided that
such Investors have purchased Series C Preferred Stock pursuant to the Purchase Agreement or (ii)
add additional Common Holders as signatories to this Agreement. Except for issuances of Common
Stock upon the exercise of options and warrants outstanding on the date hereof, the Company shall
not issue Common Stock to any Person unless such Person becomes a signatory to this Agreement or
unless Investors holding at least a majority of the Common Stock issued or issuable upon conversion
of the Preferred Stock otherwise consent in writing. The schedules to this Agreement shall be
updated to reflect such additional Investors and Common Holders.




          22. Governing Law. This Agreement shall be governed by and construed in accordance
with the laws of the State of Delaware, without regard to conflicts of law principles thereof.




          23. Entire Agreement. This Agreement is intended to be the sole agreement of the
Parties as it relates to this subject matter and does hereby supersede all other agreements of the
Parties relating to the subject matter hereof. The Prior Agreement is hereby amended and restated
its entirety and shall be of no further force or effect.




          24. Counterparts. This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute one and the same
instrument.




          25. Arbitration. Any controversy between the Parties hereto involving any claim
arising out of or relating to the termination of this Agreement, will be submitted to and be
settled by final and binding arbitration in New York, New York, in accordance with the then current
Commercial Arbitration Rules of the American Arbitration Association (the “AAA”), and
judgment upon the award rendered by the arbitrators may be entered in any court having jurisdiction
thereof; provided, however, that (i) this Section 25 shall not apply to Intel
Capital and its Affiliates and (ii) this Section 25 shall be binding upon any transferee of Shares
that is not a partner or Affiliate of Intel Capital. Such arbitration shall be conducted by three
(3) arbitrators chosen by the Company, the Investors, and the Common Holders, or failing such
agreement, an arbitrator experienced in the sale of similarly sized companies appointed by the AAA.
There shall be limited discovery prior to the arbitration hearing as follows: (a) exchange of
witness lists and copies of documentary evidence and documents relating to or arising out of the
issues to be arbitrated, (b) depositions of all party witnesses, and (c) such other depositions as
may be allowed by the arbitrators upon a showing of good cause. Depositions shall be conducted in
accordance with the New York Code of Civil Procedure, the arbitrator(s) shall be required to
provide in writing to the Parties the basis for the award or order of such arbitrator(s), and a
court reporter shall record all hearings, with such record constituting the official transcript of
such proceedings.




(Remainder of page intentionally left blank)




9









 





          IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first above
written.




	 	 	 	 	 	 	 
	 	 	COMPANY:	 	 
	 
	 	 	 	 	 	 
	 	 	SYNACOR, INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By
	 	/s/ Ron Frankel
 

Ron Frankel
	 	 
	 

	 	 	 	President	 	 






	 	 	 
	Address:

	 	40 La Riviere Drive, Suite 300
	 

	 	Buffalo, NY 14202






	 	 	 	 	 	 	 
	 	 	INVESTORS:	 	 
	 
	 	 	 	 	 	 
	 	 	INTEL CAPITAL CORPORATION	 	 
	 
	 	 	 	 	 	 
	 

	 	By
	 	/s/ James W. McCall
 

	 	 
	 	 	Name: James W. McCall	 	 
	 	 	Title: Assistant Treasurer	 	 






	 	 	 
	Address:

	 	c/o Intel Corporation
	 

	 	Attn: Intel Capital Portfolio Manager
	 

	 	2200 Mission College Blvd., M/S RN6-46
	 

	 	Santa Clara, CA 95052
	 

	 	Facsimile: (408) 765-6038
	 
	 	 
	 

	 	With a copy by e-mail to:
	 

	 	portfolio.manager@intel.com
	 
	 	 
	 

	 	SIGNATURE PAGE TO THE THIRD
AMENDED AND RESTATED VOTING AGREEMENT BY AND AMONG SYNACOR, INC. AND THE INVESTORS LISTED ON THE SIGNATURE PAGES HERETO.






Signature Page to Synacor, inc.

Third Amended and Restated Voting Agreement




 









 





	 	 	 	 	 	 	 
	 	 	INVESTORS:	 	 
	 
	 	 	 	 	 	 
	 	 	NORTH ATLANTIC VENTURE FUND III,

a Limited Partnership	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	North Atlantic Investors III, LLC,	 	 
	 

	 	 	 	its General Partner	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Mark J. Morrissette
 

	 	 
	 	 	Name: Mark J. Morrissette	 	 
	 	 	Title: General Partner	 	 






	 	 	 	 	 	 	 
	 

	 	Address:
	 	2 City Center
 

	 	 
	 

	 	 	 	Portland, ME 04101
 

	 	 






	 	 	 	 	 	 	 
	 	 	NORTH ATLANTIC SBIC IV, L.P.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	North Atlantic Investors SBIC IV, LLC,	 	 
	 

	 	 	 	its General Partner	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Mark J. Morrissette
 

	 	 
	 	 	Name: Mark J. Morrissette	 	 
	 	 	Title: General Partner	 	 






	 	 	 	 	 	 	 
	 

	 	Address:
	 	2 City Center
 

	 	 
	 

	 	 	 	Portland, ME 04101
 

	 	 






Signature Page to Synacor, inc.

Third Amended and Restated Voting Agreement




 









 





	 	 	 	 	 	 	 
	 	 	INVESTORS:	 	 
	 
	 	 	 	 	 	 
	 	 	MITSUI INCUBASE CORPORATION	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Yoshiaki Baba
 

	 	 
	 	 	Name: Yoshiaki Baba	 	 
	 	 	Title: President & CEO	 	 
	 
	 	 	 	 	 	 
	 

	 	Address:
	 	 20400 Stevens Creek Blvd. Suite 300
 

	 	 
	 

	 	 	 	Cupertino CA 95014
 

	 	 






Signature Page to Synacor, inc.

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	 	 	INVESTORS:	 	 
	 
	 	 	 	 	 	 
	 	 	ADVANTAGE CAPITAL NEW YORK 

PARTNERS I, L.P.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	Advantage Capital New York GP-I,
LLC,	 	 
	 

	 	 	 	Its General Partner	 	 
	 
	 	 	 	 	 	 
	 

	 	By
	 	/s/ M. Scott Murphy
 

M. Scott Murphy
	 	 
	 

	 	 	 	Vice President	 	 






	 	 	 
	Address:

	 	5 Warren Street, Suite 204
	 

	 	Glens Falls, NY 12801






	 	 	 	 	 	 	 
	 	 	ADVANTAGE CAPITAL NEW YORK

PARTNERS II, L.P.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	Advantage Capital New York GP-II,
LLC, Its 	 	 
	 

	 	 	 	General Partner	 	 
	 
	 	 	 	 	 	 
	 

	 	By
	 	/s/ M. Scott Murphy
 

M. Scott Murphy
	 	 
	 

	 	 	 	Vice President	 	 






	 	 	 
	Address:

	 	5 Warren Street, Suite 204
	 

	 	Glens Falls, NY 12801






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	 	 	INVESTORS:	 	 
	 
	 	 	 	 	 	 
	 	 	ACCESS TECHNOLOGY CAPITAL, LLC	 	 
	 
	 	 	 	 	 	 
	 

	 	By
	 	/s/ Peter L. Thoren
 

	 	 
	 	 	Name: Peter Thoren	 	 
	 	 	Title: Executive Vice President	 	 






	 	 	 
	Address:

	 	730 Fifth Avenue, 20th Floor
	 

	 	New York, NY 10019






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	 	 	INVESTORS AND LENDERS:	 	 
	 
	 	 	 	 	 	 
	 	 	RAND CAPITAL SBIC, L.P.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	Rand Capital Management, LLC,	 	 
	 

	 	 	 	its General Partner	 	 
	 
	 	 	 	 	 	 
	 

	 	By
	 	/s/ Dan Penberthy
 

	 	 
	 	 	Name: Dan Penberthy	 	 
	 	 	Title: Manager	 	 






	 	 	 
	Address:

	 	2200 Rand Building
	 

	 	Buffalo, NY 14203






	 	 	 	 	 	 	 
	 	 	BUFFALO AND ERIE COUNTY INDUSTRIAL

LAND DEVELOPMENT CORPORATION	 	 
	 
	 	 	 	 	 	 
	 

	 	By
	 	/s/ Alfred D. Culliton
 

	 	 
	 	 	Name: Alfred D. Culliton	 	 
	 	 	Title: CFO/CLO	 	 






	 	 	 
	Address:

	 	275 Oak Street
	 

	 	Buffalo, NY 14203






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	 	 	INVESTORS AND COMMON HOLDERS:	 	 
	 
	 	 	 	 	 	 
	 	 	CRYSTAL INTERNET VENTURE FUND II

(BVI), L.P.	 	 
	 
	 	 	 	 	 	 
	 	 	CRYSTAL INTERNET VENTURE FUND II

(BVI), CRYSTAL VISION, L.P.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	Crystal Venture II, Ltd.	 	 
	 	 	Their: General Partner	 	 
	 
	 	 	 	 	 	 
	 

	 	By
	 	/s/ Joseph Tzeng
 

	 	 
	 	 	Name: Joseph Tzeng	 	 
	 	 	Title: President	 	 






	 	 	 
	Address:

	 	1120 Chester Avenue, Suite 418
	 

	 	Cleveland, OH 44114






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	 	INVESTORS AND COMMON HOLDERS:	 	 
	 
	 	 	 	 
	 

	 	/s/ Jeremy M. Jacobs, Jr.
 

Jeremy M. Jacobs, Jr.
	 	 
	 
	 	 	 	 
	Address:

	 	c/o Delaware North Co.	 	 
	 

	 	40 Fountain Plaza	 	 
	 

	 	Buffalo, NY 14202	 	 
	 

	 	Attn: Mike Gallagher	 	 
	 
	 	 	 	 
	 

	 	/s/ Jordan Levy
 

JoRon Management LLC
	 	 
	 
	 	 	 	 
	Address:

	 	50 Fountain Plaza	 	 
	 

	 	Suite 1320	 	 
	 

	 	Buffalo, NY 14202	 	 






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	 	 	INVESTORS AND COMMON HOLDERS:	 	 
	 
	 	 	 	 	 	 
	 	 	PACVEN WALDEN VENTURES IV 

ASSOCIATES FUND, L.P.	 	 
	 
	 	 	 	 	 	 
	 

	 	By
	 	/s/ Lip-Bu Tan
 

	 	 
	 	 	Name: Lip-Bu Tan	 	 
	 	 	Title: Director	 	 
	 
	 	 	 	 	 	 
	 	 	of Pacven Walden Management Co., Ltd.	 	 
	 	 	as General Partner of Pacven Walden Management II, L.P.	 	 
	 	 	as General Partner of Pacven Walden Ventures IV	 	 
	 	 	Associates Fund, L.P.	 	 
	 
	 	 	 	 	 	 
	 	 	PACVEN WALDEN VENTURES IV, L.P.	 	 
	 
	 	 	 	 	 	 
	 

	 	By
	 	/s/ Lip-Bu Tan
 

	 	 
	 	 	Name: Lip-Bu Tan	 	 
	 	 	Title: Director	 	 
	 
	 	 	 	 	 	 
	 	 	of Pacven Walden Management Co., Ltd.	 	 
	 	 	as General Partner of Pacven Walden Management II, L.P.	 	 
	 	 	as General Partner of Pacven Walden Ventures IV, L.P.	 	 
	 
	 	 	 	 	 	 
	 	 	WIIG-TDF PARTNERS LLC	 	 
	 
	 	 	 	 	 	 
	 

	 	By
	 	/s/ Lip-Bu Tan
 

	 	 
	 	 	Name: Lip-Bu Tan	 	 
	 	 	Title: Director	 	 
	 
	 	 	 	 	 	 
	 	 	of WIIG Management Co., Ltd.	 	 
	 	 	for and on behalf of the Fund Managers	 	 
	 
	 	 	 	 	 	 
	 	 	WALDEN EDB PARTNERS II, L.P.	 	 
	 
	 	 	 	 	 	 
	 

	 	By
	 	/s/ Lip-Bu Tan
 

	 	 
	 	 	Name: Lip-Bu Tan	 	 
	 	 	Title: Director	 	 






	 	 	 	 	 	 	 
	 

	 	Address:
	 	One California Street, Suite 2800
	 	 
	 

	 	 	 	San Francisco, CA 94111	 	 






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SCHEDULE A




LIST OF SERIES C INVESTORS




Access Technology Capital, LLC

Advantage Capital New York Partners I, L.P.

Advantage Capital New York Partners II, L.P.

Crystal Internet Venture Fund II (BVI), L.P.

Crystal Internet Venture Fund II (BVI), Crystal Vision, L.P.

Intel Capital Corporation

JoRon Management LLC

Jeremy M. Jacobs, Jr.

Mitsui Incubase Corporation

North Atlantic SBIC IV, L.P.

North Atlantic Venture Fund III

Rand Capital SBIC, L.P.

Pacven Walden Ventures IV Associates Fund, L.P.

Pacven Walden Ventures IV, L.P.

Walden EDB Partners II, L.P.

WIIG-TDF Partners LLC




 









 





SCHEDULE A




LIST OF SERIES B INVESTORS




Access Technology Capital, LLC

Advantage Capital New York Partners I, L.P.

Crystal Internet Venture Fund II (BVI), L.P.

Crystal Internet Venture Fund II (BVI), Crystal Vision, L.P.

Intel Capital Corporation

Jeremy M. Jacobs, Jr.

JoRon Management LLC

Rand Capital SBIC, L.P.

Pacven Walden Ventures IV Associates Fund, L.P.

Pacven Walden Ventures IV, L.P.

        .





 









 








SCHEDULE C




LIST OF SERIES A-1 INVESTORS




Advantage Capital New York Partners I, L.P.





 









 








SCHEDULE D




LIST OF SERIES A INVESTORS




Crystal Internet Venture Fund II (BVI), Ltd.

Crystal Internet Venture Fund II (BVI), Crystal Vision, L.P.

JoRon Management LLC

Jeremy M. Jacobs, Jr.

Joseph J. Castiglia

Robert G. Weber

Fors Family Limited Partnership

Paul J. Harder

Stephen A. Nappo

Steven R. Kieffer

David M. Carroll

John Lally

Kevin Cornacchio

Charles Kelkenberg

David T. Hore

Robert Santa Maria

Herbert J. Heimerl, Jr.

Guy Berberich

Thomas F. Hanlon III

Paul Wiepert

Scott M. McCarthy

Samuel LaNasa

Chek Ventures LLC

Chek Ventures II LLC

Chek Ventures III LLC

Intel Capital Corporation

Pacven Walden Ventures IV Associates Fund, L.P.

Pacven Walden Ventures IV, L.P.

WIIG-TDF Partners LLC

Walden EDB Partners II, L.P.

Access Technology Capital, LLC

Mike Nappo

Don Wehrung

Sean Hus Var

Richard Lally

Kenneth Lally

Rand Capital SBIC, L.P.

Buffalo and Erie County Industrial Land Development Corporation




 









 





SCHEDULE E




LIST OF LENDERS




Rand Capital SBIC, L.P.

Buffalo and Erie County Industrial Land Development Corporation




 









 





SCHEDULE F




LIST OF COMMON HOLDERS

(updated April 19, 2007)




@Visory LLC

Charles A. Anken & Sandra S. Olivieri

Gabriel Adiv

Darren Ascone

Frederick G. Attea

Dennis Ball

Eric Blachno

Ed Bujanowski

Malcolm Burnett

Ronald B. Cadby

Angelo J. Cammilleri

Rebecca Cammilleri

Michael Campanella

Barak Carmon

Blake Carver

George Chamoun

Chek Ventures LLC

Chek Ventures II LLC

Henry Cole

Kari Cole

Mike Collins

Crystal Internet Venture Fund II (BVI), Crystal Vision, L.P.

Crystal Internet Venture Fund II (BVI), Ltd.

Larry Decker

Deeridge Investment Partnership

Anthony Diina

Tracy Fernandez

First Albany Corporation

Douglas Fish

Garage.com Investments I, L.P.

Garage Securities, Inc.

Michael Garofalo

Keith Gizzi

Drew Graham

Leota Knapp Hair

George Harris

Jesper Henriksen

Sean Hus Var

ICE Family Partnership

Janet Ingalsbe

Innovasia Venture Partners I Limited (BVI)




 









 





Jeremy M. Jacobs, Sr.

Jeremy M. Jacobs, Jr.

Craig W. Johnson

JoRon Management LLC

Rick Keisic

Rachel K. King

Kyle Kokanovich

Kandice Kraus

Ted Leiser

Brian Lipke

Brad Loftin

Mary K. Mahley

Randolph Marks

Kenneth McCreadie

John F. McMahon

Mary G. McMahon

Daniel J. Neaverth, Jr.

David Michael Neaverth

Darren Anthony Neaverth

Dean James Neaverth

Rory B. O’Connor

Pacven Walden Ventures IV Associates Fund, L.P.

Pacven Walden Ventures IV, L.P.

Sunita S. Pandit

Virginia R. Piotrowski

Ron Poole

Michael Prince

Brad Pritchard

ProSeed Capital Holdings CVA

Santi Rao

Redwood Management III LP

Redwood Ventures III LP

Danielle Restaino

Aimee Richardson

Howard Schomer

Cindy Schwartz

Phil Seibel

Francine Seifert

Gur Shomron

The Sidne J. Long Trust u/a/d 4-26-84

SMB Investment Partnership

Mike Snusz

Sarah Sorensen

Joseph Spychalski

Tom Stanton




 









 





David Stempkowski

The Sternheim Trust

Dave Tucker

Patti Strauss

VLG Investments 1998

Walden EDB Partners II LP

Linda Wancyzk

Robert Weiner

Alison Wentker

WIIG-TDF Partners LLC

Raymond Young

Gregory Zaepfel




Common Stock Warrant Holders



Rand Capital SBIC, L.P.

Buffalo and Erie County Industrial Land Development Corporation