EX-10.23



 





Exhbit 10.23




CHANGE OF CONTROL




SEVERANCE AGREEMENT




     THIS AGREEMENT is entered into and effective as of the IPO Date, by and between Ron Frankel
(the “Executive”) and SYNACOR, INC., a Delaware corporation
(the “Company”). All terms will be as defined in this Agreement.



     1. Severance Benefits.



     (a) Cash Severance. In the event that the Company experiences a Change
of Control during the Executive’s employment with the Company and the Executive is subject to
an Involuntary Termination in connection with or within twelve (12) months following such
Change of Control, then the Company shall pay the Executive a total amount equal to (a) the
Executive’s annual base salary plus (b) the Executive’s annual target bonus amount. Such
annual
base salary shall be paid at the rate in effect at the time of the termination of employment
and in
accordance with the Company’s standard payroll procedures over a twelve-month period,
commencing on the Company’s first regular payroll date following the effective date of the
general release described in Subsection (d) below. Such annual target bonus amount shall be
paid, based on the annual target bonus amount for the year in which the termination occurs,
and
in accordance with the Company’s standard payroll procedures over a twelve-month period,
commencing on the Company’s first regular payroll date following the effective date of the
general release described in Subsection (d) below.



     (b) COBRA Premiums. The Executive will receive information about the
Executive’s right to continue his or her group health insurance coverage under the
Consolidated
Omnibus Budget Reconciliation Act (“COBRA”) after the effective date of the Involuntary
Termination. In order to continue the Executive’s coverage, the Executive must timely file
the
required election form. The Company will pay the monthly premium under COBRA for the
Executive and, if applicable, the Executive’s dependents for a twelve-month period following
the
effective date of the Involuntary Termination.



     (c) Vesting
Acceleration. In the event that the Company experiences a
Change of Control during the Executive’s service with the Company and the Executive is subject
to an Involuntary Termination in connection with or within twelve (12) months following such
Change of Control, then the Executive will become vested in an additional number of unvested
shares of the Company’s Common Stock, Company options or other Company equity that have
been granted to the Executive, as applicable, as if the Executive provided another twelve (12)
months of service with the Company following the effective date of the Involuntary
Termination.
In no event will the Executive become vested in more Company equity than was originally issued
or granted to the Executive.



     (d) General Release. Any other provision of this Agreement notwith
standing, Subsections (a), (b) and (c) above shall not apply unless the Executive (i)
has returned



 









 




all Company property in the Executive’s possession, (ii) has executed a general release of all
claims that the Executive may have against the Company or persons affiliated with the Company and
(iii) has resigned from the Company’s Board of Directors (the “Board”) or the board of directors of
any of the Company’s subsidiaries, to the extent applicable. The release must be in the form
prescribed by the Company, without alterations. The Company will deliver the form to the Executive
within 30 days after the Executive’s employment terminates. The Executive must execute the release
within the period set forth in the prescribed form.




     (e) Mandatory Deferral of Payments. If the Company determines that
the Executive is a “specified employee” under Section 409A(a)(2)(B)(i) of the Internal Revenue
Code of 1986, as amended (the “Code”), when the Executive’s employment terminates, then
(i)the payments under Subsections 1 (a) and l(b) above to the extent not exempt from
Section 409A of the Code, will commence on the earliest practicable date that occurs more than
six months after the termination of the Executive’s employment and (ii) the installments that
otherwise would have been paid during the first six months after the termination of the
Executive’s employment will be paid in a lump sum on the first day of the seventh month after
the termination of the Executive’s employment.



     (f) Non-competition. For the period of 12 months immediately following
the effective date of the Involuntary Termination, the Executive will not directly or
indirectly act
in Any Capacity (as defined herein) in or with respect to any commercial activity which
competes
or is reasonably likely to compete with any business that the Company conducts, or
demonstrably
anticipates conducting, at any time during the Executive’s employment with the Company (a
“Competing Business”) if the Competing Business is located within the State of New York, the
rest of the United States, or anywhere else in the world. “Any Capacity” includes, without
limitation, to (i)be an owner, founder, shareholder, partner, member, advisor, director,
consultant, contractor, agent, employee, affiliate or co-venturer, (ii) otherwise invest,
engage or
participate in, (iii) be compensated by or (iv) prepare to be or do any of the foregoing or
assist
any third party to do so; provided, Any Capacity will not include being a holder of
less than one
percent (1%) of the outstanding equity of a public company.



     2. Definitions.



     (a) Definition of “Cause.” For all purposes under this Agreement,
“Cause” means: (i) the Executive’s willful failure substantially to perform his or her duties and
responsibilities to the Company or deliberate violation of a Company policy; (ii) the Executive’s
commission of any act of fraud, embezzlement, dishonesty or any other willful misconduct that has
caused or is reasonably expected to result in material injury to the Company; (iii) unauthorized
use or disclosure by the Executive of any proprietary information or trade secrets of the Company
or any other party to whom the Executive owes an obligation of nondisclosure as a result of his or
her relationship with the Company; or (iv) the Executive’s willful breach of any of his or her
obligations under any written agreement or covenant with the Company. The determination as to
whether the Executive is being terminated for Cause shall be made in good faith by the Company and
shall be final and binding on the Executive. The foregoing definition does not in any way limit
the Company’s ability to terminate the Executive’s employment at any time, with or without Cause
or notice.



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     (b) Definition of “Change of Control.” For all purposes under this
Agreement, “Change of Control” shall mean:




(i) The consummation of any merger or consolidation of the
Company with or into another corporation other than a merger or
consolidation in which the holders of more than 50% of the shares of capital
stock of the Company outstanding immediately prior to such transaction
continue to hold (either by the voting securities remaining outstanding or
by their being converted into voting securities of the surviving entity)
more than 50% of the total voting power represented by the voting securities
of the Company, or such surviving entity, outstanding immediately after such
transaction;




(ii) The sale, transfer or other disposition of all or substantially all
of the Company’s assets;




(iii) A change in the composition of the Board, as a result of which
fewer than 50% of the incumbent directors are directors who either:




          (A) Had been directors of the Company on the date
24 months prior to the date of such change in the
composition of the Board (the “Original Directors”); or




          (B) Were appointed to the Board, or nominated for
election to the Board, with the affirmative votes of at
least a
majority of the aggregate of (A) the Original Directors
who
were in office at the time of their appointment
or
nomination and (B) the directors whose appointment or
nomination was previously approved in a manner
consistent
with this Paragraph (B); or




(iv) Any transaction as a result of which any person is the
“beneficial owner” (as defined in Rule 13d-3 under the Securities Exchange
Act of 1934, as amended), directly or indirectly, of securities of the
Company representing at least 50% of the total voting power represented by
the Company’s then outstanding voting securities. For purposes of this
Subsection (iv), the term “person” shall have the same meaning as when used
in sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as
amended, but shall exclude (i) a trustee or other fiduciary holding
securities under an employee benefit plan of the Company and (ii) a
corporation owned directly or indirectly by the stockholders of the Company
in substantially the same proportions as their ownership of the common stock
of the Company.



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     A transaction shall not constitute a Change of Control if its sole purpose is to change the
state of the Company’s incorporation or to create a holding company that will be owned in
substantially the same proportions by the persons who held the Company’s securities immediately
before such transaction.



     (c) Definition of “Involuntary Termination.” For all purposes under this
Agreement, “Involuntary Termination” means termination of the Executive’s service to the
Company under the following circumstances: (i) termination without Cause by the Company; or
(ii) voluntary termination by the Executive within 60 days following (A) a material reduction
in
the Executive’s job responsibilities, provided that neither a mere change in title alone nor
reassignment following a Change of Control to a position that is substantially similar to the
position held prior to the Change of Control shall constitute a material reduction in job
responsibilities; (B) relocation by the Company of the Executive’s work site to a facility or
location more than 50 miles from the Executive’s principal work site for the Company at the
time
of the Change of Control; or (C) a reduction in the Executive’s then-current base salary by at
least 10%, provided that an across-the-board reduction in the salary level of all other
employees
in positions similar to the Executive’s by the same percentage amount as part of a general
salary
level reduction shall not constitute such a salary reduction. Prior to a voluntary
termination as
defined in this Subsection, the Executive must provide the Company with written notice within
fifteen (15) days of the initial existence of (A), (B) or (C) above and the Company will have
30
days after its receipt of such written notice to cure (A), (B) or (C).



     (d) Definition of “IPO Date.” For all purposes under this Agreement,
“IPO Date” means the effective date of the registration statement filed by the Company with
the
Securities and Exchange Commission for its initial offering of its Common Stock to the public.



     3. Successors.



     (a) Company’s Successors. The Company shall require any successor
(whether direct or indirect and whether by purchase, lease, merger, consolidation, liquidation
or
otherwise) to all or substantially all of the Company’s business and/or assets, by an
agreement in
substance and form satisfactory to the Executive, to assume this Agreement and to agree
expressly to perform this Agreement in the same manner and to the same extent as the Company
would be required to perform it in the absence of a succession. For all purposes under this
Agreement, the term “Company” shall include any successor to the Company’s business and/or
assets or which becomes bound by this Agreement by operation of law.



     (b) Executive’s Successors. This Agreement and all rights of the
Executive hereunder shall inure to the benefit of, and be enforceable by, the Executive’s
personal
or legal representatives, executors, administrators, successors, heirs, distributees, devisees
and
legatees.



     4. Miscellaneous Provisions.



     (a) Other Severance Arrangements. In the event that the Executive is
eligible to receive severance benefits under this Agreement and another agreement between the



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Executive and the Company (each, an “Alternative Agreement”), the Executive will be entitled to
the severance benefits under this Agreement or the Alternative Agreement, whichever provides the
greatest benefits to the Executive with respect to each type of severance benefit, such as cash
payments, COBRA premiums and vesting acceleration. In no event shall the Executive be entitled to
severance benefits under both this Agreement and an Alternative Agreement with respect to the same
type of severance benefit. For example, if an event occurred that triggered the severance benefits
under this Agreement and full vesting acceleration under the Executive’s stock option agreement,
then the Executive would still receive the benefits described in
Sections 1(a) and 1(b) of this
Agreement and the full vesting acceleration under the Executive’s stock option agreement. For the
avoidance of doubt, if an event triggered the severance benefits under this Agreement and an
Alternative Agreement that provided for six months of base salary as a severance benefit, then the
Executive would be entitled to the cash payments under Sections 1(a)
and 1(b) of this Agreement
but not the six months of base salary under the Alternative Agreement because with respect
to cash payments, this Agreement provided greater benefits.




     (b) Notice. Notices and all other communications contemplated by this
Agreement shall be in writing and shall be deemed to have been duly given when personally
delivered or when mailed by U.S. registered or certified mail, return receipt requested and
postage prepaid or deposited with Federal Express Corporation, with shipping charges prepaid.
In the case of the Executive, mailed notices shall be addressed to him or her at the home
address
which he or she most recently communicated to the Company in writing. In the case of the
Company, mailed notices shall be addressed to its corporate headquarters, and all notices
shall be
directed to the attention of its Secretary.



     (c) Waiver. No provision of this Agreement shall be modified, waived or
discharged unless the modification, waiver or discharge is agreed to in writing and signed by
the
Executive and by an authorized officer of the Company (other than the Executive). No waiver by

either party of any breach of, or of compliance with, any condition or provision of this
Agreement by the other party shall be considered a waiver of any other condition or provision
or
of the same condition or provision at another time.



     (d) Withholding Taxes. All payments made under this Agreement shall
be subject to reduction to reflect taxes or other charges required to be withheld by law.



     (e) Severability. The invalidity or unenforceability of any provision or
provisions of this Agreement shall not affect the validity or enforceability of any other
provision
hereof, which shall remain in full force and effect.



     (f) No Retention Rights. Nothing in this Agreement shall confer upon the
Executive any right to continue in service for any period of specific duration or interfere
with or
otherwise restrict in any way the rights of the Company or any subsidiary of the Company or of
the Executive, which rights are hereby expressly reserved by each, to terminate his or her
service
at any time and for any reason, with or without Cause.



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     (g) Choice of Law. The validity, interpretation, construction and
performance of this Agreement shall be governed by the laws of the State of New York (other than
their choice-of-law provisions).



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     IN WITNESS WHEREOF, each of the parties has executed this Agreement, in the case of the
Company by its duly authorized officer, as of the day and year first above written.



	 	 	 	 	 
	 	 	/s/ Ronald Frankel
	 	 	 
	 
	 	 	 	 
	 	 	President & CEO
	 
	 	 	 	 
	 	 	SYNACOR, INC.
	 
	 	 	 	 
	 	 	/s/ Jordan Levy
	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	Title:	 	 
	 

	 	 	 	 






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