EXHIBIT 4.5


 


AMENDMENT TO AMENDED AND RESTATED
STOCKHOLDERS’ AGREEMENT


 


This AMENDMENT TO
AMENDED AND RESTATED STOCKHOLDERS’ AGREEMENT (the “Amendment”), which amends the
Amended and Restated Stockholders’ Agreement, dated as of March 29, 2007,
by and among Nexsan Corporation, a Delaware corporation (the “Corporation”) the Series C
Investors (as defined therein), the Series A Investors (as defined
therein), the Evertrust Stockholder (as defined therein) and the Prior
Stockholders (as defined therein) (the “Stockholders’ Agreement”),
is entered into this 30th day of April, 2009 by and among the Corporation, the Series C
Investors, the Series A Investors, the Evertrust Stockholder and those
Prior Stockholders, listed on the signature pages hereto, on behalf of all
the parties to the Stockholders’ Agreement.


 


RECITALS


 


WHEREAS, Section 5.7 of the Stockholders’
Agreement provides that it may be amended pursuant to a writing signed by (i) the
Corporation, (ii) the holders of two-thirds of the then outstanding Series A
Preferred Shares (as defined therein) and Series C Preferred Shares (as
defined therein), voting together as a single class, and (iii) the holders
of at least a majority of the shares of Common Stock held by the Prior
Stockholders (the “Minimum Required Stockholders”);


 


WHEREAS, the Corporation has determined it to be
advisable and in the best interests of the Corporation to create an independent
seat on the Board of Directors, which requires an amendment to Section 2.1
of the Stockholders’ Agreement to increase the number of authorized directors
from eight to nine and to provide for the manner of designation and election of
the independent director; and


 


WHEREAS, the
Corporation and the Minimum Required Stockholders hereby desire to amend Section 2.1
of the Stockholders’ Agreement.


 


NOW,
THEREFORE, in
consideration of the foregoing recitals, mutual promises, and all other terms
and conditions contained herein, the parties hereto hereby agree as follows:


 


AGREEMENT


 


1. Amendment of Section 2.1(a) of
the Stockholders’ Agreement. The following clause shall
replace Section 2.1(a) of the Stockholders’ Agreement in its
entirety:


 


“(a)       The Corporation and the
Stockholders shall take such corporate actions as may be reasonably required to
ensure that (i) the number of directors constituting the Board is at all
times nine (9), and (ii) the presence of five (5) directors is
required to constitute a quorum of the Board.”


 

















 


2. Amendment of Section 2.1(b) of
the Stockholders’ Agreement. Section 2.1(b)(vii) shall
be moved to a new Section 2.1(b)(viii) and the following clause shall
replace Section 2.1 (b)(vii) of the Stockholders’ Agreement in its
entirety:


 


“(vii)       One member of the Board
shall be an individual designated by a majority vote of the Board (exclusive of
such director), and determined by the Board to be independent, and elected by
the holders of the Corporation’s outstanding Series A Preferred Shares, Series C
Preferred Shares and Common Stock, voting together as a single class on an
as-if converted basis.”


 


3. Stockholders’ Agreement. Except as
expressly amended hereby, the Stockholders’ Agreement shall continue in full
force and effect. In the event of any inconsistency or conflict between this
Amendment and the Stockholders’ Agreement, the terms, conditions and provisions
of this Amendment shall govern and control.


 


4. Entire Agreement. This Amendment
and the Stockholders’ Agreement embody the complete agreement and understanding
among the parties and supersede and preempt any prior understandings, agreements
or representations by or among the parties, written or oral, which may have
related to the subject matter hereof in any way.


 


5. Governing Law. This Amendment
shall be governed by and construed and enforced in accordance with the laws of
the State of New York without regard to any conflicts of laws principles that
would result in the application of the law of any other jurisdiction.  In
the event of any dispute arising out of or relating to this Amendment, then
such dispute shall be resolved solely and exclusively by confidential binding
arbitration with the New York branch of JAMS (“JAMS”)
to be governed by JAMS’ Commercial Rules of Arbitration (the “JAMS Rules”) and heard before one
arbitrator.  The parties shall attempt to select the arbitrator by agreement
of the Minimum Required Stockholders.  In the event they fail or are
unable to agree, the arbitrator shall be selected by the procedures prescribed
by the JAMS Rules.  Each party shall bear its own attorneys’ fees, expert
witness fees, and costs incurred in connection with any arbitration.


 


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


 


REMAINDER
OF THE PAGE INTENTIONALLY LEFT BLANK


 

















 


IN WITNESS
WHEREOF, the parties hereto have executed this Amendment on the date first
written above.


 


	
   

  	
  THE COMPANY

  
	
   

  	
  NEXSAN
  CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Philip Black

  
	
   

  	
   

  	
  Philip Black, Chief
  Executive Officer

  



 

















 


	
   

  	
  FONDS
  DE SOLIDARITÉ DES TRAVAILLEURS DU QUÉBEC (F.T.Q.)

  
	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Jacques Bernier

  
	
   

  	
   

  	
  Senior Vice-President
  Information

  
	
   

  	
   

  	
  Technologies,
  Telecommunications and

  
	
   

  	
   

  	
  Industrial Innovations

  
	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  VANTAGEPOINT
  VENTURE PARTNERS IV (Q), L.P.

  
	
   

  	
  By: VantagePoint
  Venture Associates IV, L.L.C., its General Partner

  
	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Alan E. Salzman

  
	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Alan E. Salzman

  
	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
  Managing Member

  
	
   

  	
   

  	
   

  
	
   

  	
  VANTAGEPOINT
  VENTURE PARTNERS IV, L.P.

  
	
   

  	
  By: VantagePoint
  Venture Associates IV, L.L.C., its General Partner

  
	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Alan E. Salzman

  
	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Alan E. Salzman

  
	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
  Managing Member

  
	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  VANTAGEPOINT
  VENTURE PARTNERS IV PRINCIPALS FUND, L.P.

  
	
   

  	
  By: VantagePoint
  Venture Associates IV, L.L.C., its General Partner

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Alan E. Salzman

  
	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Alan E. Salzman

  
	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
  Managing Member

  



 

















 


	
   

  	
  RRE
  VENTURES III, LP

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Andrew Zalasin

  
	
   

  	
   

  	
  Name: Andrew Zalasin

  
	
   

  	
   

  	
  Title:  General Partner

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  RRE
  VENTURES FUND III, LP

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Andrew Zalasin

  
	
   

  	
   

  	
  Name: Andrew Zalasin

  
	
   

  	
   

  	
  Title:  General Partner

  
	
   

  	
   

  
	
   

  	
  RRE
  VENTURES III-A, LP

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Andrew Zalasin

  
	
   

  	
   

  	
  Name: Andrew Zalasin

  
	
   

  	
   

  	
  Title:  General Partner

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  FIRST
  GEN-E SERVICIOS DE CONSULTORIA SA

  
	
   

  	
  By:  Gen-e
  Management Ltd.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Domenico Grassi

  
	
   

  	
   

  	
  Name: Domenico Grassi

  
	
   

  	
   

  	
  Title:

  



 

















 


	
   

  	
  STOCKHOLDERS:

  
	
   

  	
   

  
	
   

  	
   

  	
  FOR
  INDIVIDUALS:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Martin Boddy

  
	
   

  	
   

  	
  Print Name

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  /s/
  Martin Boddy

  
	
   

  	
   

  	
  Signature

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  FOR
  CORPORATIONS:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name of Company

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name of Officer of
  Company

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Signature of Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  FOR
  PARTNERSHIPS:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Beechtree Capital LLC

  
	
   

  	
   

  	
  Name of Partnership

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  /s/
  George M. Weiss

  
	
   

  	
   

  	
  Signature of Authorized
  Partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  FOR
  TRUSTS:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name of Trust

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name of Authorized
  Trustee

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Signature of Authorized
  Trustee

  



 

















 


	
  PRIOR STOCKHOLDERS:

  
	
   

  
	
   

  	
  FOR
  INDIVIDUALS:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Giovanni Saladino

  
	
   

  	
   

  	
  Print Name

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  /s/ Giovanni Saladino

  
	
   

  	
   

  	
  Signature

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  FOR
  CORPORATIONS:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name of Company

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name of Officer of
  Company

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Signature of Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  FOR
  PARTNERSHIPS:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  CDLM Investments Ltd.

  
	
   

  	
   

  	
  Name of Partnership

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  /s/
  George M. Weiss

  
	
   

  	
   

  	
  Signature of Authorized
  Partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  FOR
  TRUSTS:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name of Trust

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name of Authorized
  Trustee

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Signature of Authorized
  Trustee

  



 

















 


	
  PRIOR STOCKHOLDERS:

  
	
   

  
	
   

  	
  FOR
  INDIVIDUALS:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Print Name

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Signature

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  FOR
  CORPORATIONS:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name of Company

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name of Officer of
  Company

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Signature of Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  FOR
  PARTNERSHIPS:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  CDLM — Weiss Associates

  
	
   

  	
   

  	
  Name of Partnership

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  /s/
  George M. Weiss

  
	
   

  	
   

  	
  Signature of Authorized
  Partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  FOR
  TRUSTS:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name of Trust

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name of Authorized
  Trustee

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Signature of Authorized
  Trustee

  



 

















 


	
  PRIOR STOCKHOLDERS:

  
	
   

  	
   

  	
   

  
	
   

  	
  FOR
  INDIVIDUALS:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Print Name

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Signature

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  FOR
  CORPORATIONS:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name of Company

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name of Officer of
  Company

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Signature of Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  FOR
  PARTNERSHIPS:

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  DLG Investment
  Partnership

  
	
   

  	
   

  	
  Name of Partnership

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  /s/
  George Weiss

  
	
   

  	
   

  	
  Signature of Authorized
  Partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  FOR
  TRUSTS:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name of Trust

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name of Authorized
  Trustee

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Signature of Authorized
  Trustee