EX-4.3 5 d255465dex43.htm EX-4.3 EXECUTION VERSION VOTING AGREEMENT
Exhibit 4.3
EXECUTION VERSION
This VOTING AGREEMENT, dated as of August 15, 2016 (this “Agreement”), is entered into by and among Acacia Research Corporation, a Delaware corporation (“Acacia”), Veritone, Inc., a Delaware corporation (the “Company”), and each of the persons listed on Exhibit A (each, a “Holder” and, collectively, the “Holders”).
WHEREAS, that certain Voting Agreement, dated July 15, 2014, as amended, by and between the Company and certain of its stockholders, is in effect as of the date of this Agreement and shall remain in full force and effect until the Effective Date;
WHEREAS, the Company intends to consummate a Public Offering;
ARTICLE I
“10% Warrant” means that certain common stock purchase warrant attached as Exhibit A to the Primary Warrant, to be issued by the Company to Acacia substantially in such form and on the terms and subject to the conditions set forth in the Primary Warrant, relying on Section 4(a)(2) of the Securities Act or Regulation D thereunder for exemption from the registration requirements of Section 5 of the Securities Act.
“Acacia” shall have the meaning set forth in the Preamble.
“Acacia Board Observers” shall have the meaning set forth in Section 4.1.
“Acacia Designees” shall have the meaning set forth in Section 2.1(b).
“Affiliate” means, when used with respect to any Person, another Person that directly or indirectly, through one or more intermediaries, Controls, is Controlled by, or is under common Control with such Person.
“Agreement” shall have the meaning set forth in the Preamble.
“Board” shall have the meaning set forth in the Recitals.
“Board Observers” shall have the meaning set forth in Section 4.1.
“Common Stock” means shares of common stock, par value $0.001 per share, of the Company.
“Company” shall have the meaning set forth in the Preamble.
“Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting securities or other interests, by contract or otherwise, and “Controlled” and “Controls” have the correlative meanings.
“Effective Date” means the date of consummation of the Company’s Public Offering.
“Fundamental Transaction” means the consummation of any transaction, or a series of related transactions, in which the Company, directly or indirectly, (a) consummates a stock sale to, or effects any merger, consolidation or other business combination (including a reorganization, recapitalization, spin-off or scheme of arrangement) with, another Person or group of Persons, whereby, in the case of any transaction(s) under this clause (a), such other Person or group of Persons acquires more than 50% of the total voting power of the then outstanding shares of capital stock of the Company, or (b) effects any sale, lease, license, assignment, transfer, conveyance or other disposition of all or substantially all of its assets. For purposes of this definition of “Fundamental Transaction”, “outstanding shares of capital stock of the Company” means, as of a given date, the sum of the number of shares of capital stock of the Company (excluding treasury shares, if any) outstanding.
“Holder Board Observers” shall have the meaning set forth in Section 4.1.
“Holder Designees” shall have the meaning set forth in Section 2.1(c).
“Holders” shall have the meaning set forth in the Preamble.
“Investment Agreement” shall have the meaning set forth in the Recitals.
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“Person” means a natural person, corporation, company, joint venture, individual business trust, trust association, partnership, limited partnership, limited liability company or other entity.
“Primary Warrant” means that certain primary common stock purchase warrant in respect of shares of Common Stock, dated as of August 15, 2016 and issued by the Company to Acacia, relying on Section 4(a)(2) of the Securities Act or Regulation D thereunder for exemption from the registration requirements of Section 5 of the Securities Act.
“Public Offering” means (a) an initial public offering of the Company’s Common Stock pursuant to a Registration Statement; (b) an offering of the Common Stock, relying on Regulation A under the Securities Act for exemption from the registration requirements of Section 5 thereof; (c) a distribution of equity securities of the Company or its successor in connection with a Registration Statement; or (d) the issuance of equity securities in exchange for the Company’s equity securities in connection with the Company’s merger or reverse merger with another corporation, company, partnership, limited partnership, limited liability company or any other entity, provided that, in the case of clauses (a)-(d), such offering, distribution or issuance results in the Common Stock or equity securities, as the case may be, being held by at least three hundred (300) round lot stockholders and the Common Stock or equity securities, as the case may be, shall be approved for listing or quotation on a national securities exchange or quotation service in the United States, and provided further that, in the case of clauses (a) and (b), such offering, distribution or issuance results in gross proceeds to the Company of at least Fifteen Million Dollars ($15,000,000).
“Public Trading Market” shall mean the Nasdaq Capital Market or any other U.S. national securities exchange.
“Registration Statement” shall mean an offering circular or registration statement on Form S-1, Form 1-A, Form S-4, or another applicable form of offering circular or registration statement approved by the Securities and Exchange Commission for the nature of the Public Offering undertaken by the Company.
“Securities Act” means the Securities Act of 1933, as amended.
“Voting Securities” means any securities of the Company entitled to vote in the election of directors of the Company.
ARTICLE II
Section 2.1 Board Size and Composition.
(a) As of the Effective Date, the Board shall have nine (9) authorized directors.
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(b) Subject to applicable law and to the terms and conditions set forth herein and in the Company’s certificate of incorporation and bylaws, as in effect immediately prior to the effectiveness of this Agreement, from the Effective Date until the twenty-four (24)-month anniversary of such date, Acacia will have the right to nominate three (3) directors (the “Acacia Designees”) to the Board.
(c) Subject to applicable law and to the terms and conditions set forth herein and in the Company’s certificate of incorporation and bylaws, as in effect immediately prior to the Effective Date, from the Effective Date until the twenty-four (24)-month anniversary of such date, the Holders, voting as a group, will have the right to nominate six (6) directors (the “Holder Designees”) to the Board.
Section 2.2 Agreement to Vote.
(a) From the Effective Date until the twenty-four (24)-month anniversary of such date, Acacia and each Holder, at any meeting of the stockholders of the Company held for the election of directors, shall vote all of its Voting Securities (now owned or hereafter acquired or controlled by it or him, whether by purchase, conversion of other securities, exercise of rights, warrants or options, stock dividends or otherwise), and shall take all other necessary or desirable actions within its or his control (whether in its or his capacity as a stockholder or otherwise, and including attendance at meetings in person or by proxy for purposes of obtaining a quorum and execution of written consents in lieu of meetings), to maintain the number of members of the Board as nine (9) directors, and to elect to the Board such Acacia Designees, if any, and such Holder Designees, if any, as Acacia and the Holders, voting as a group, respectively, are then entitled to nominate pursuant to Section 2.1.
(b) The Company shall include in its proxy statement relating to the election of directors to its Board at any annual or special meeting of the stockholders of the Company held for such purpose, and shall take all such other reasonably necessary and desirable actions within its control to support for election to the Board, each of the persons designated pursuant to Section 2.1.
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Section 2.5 Failure to Designate a Board Member. In the absence of any designation from the Person or group of Persons then entitled to designate a director as specified in Section 2.1, the nominating and governance committee of the Board, or such other committee of the Board as is fulfilling such function, shall nominate a candidate to serve.
ARTICLE III
Section 3.1 So long as the Board includes three (3) Acacia Designees, the Company shall not take, and no Holder shall vote their Voting Securities in favor of, any of the following transactions unless such transaction has been approved by a majority of the Board, which majority includes the affirmative vote of at least one (1) director who is an Acacia Designee:
(a) any merger, consolidation or other business combination involving the Company as a constituent entity, in which the transaction value exceeds Fifty Million Dollars ($50,000,000);
(b) any sale, transfer or other disposition, in a single transaction or a series of related transactions, of any capital stock or assets of the Company, in each case for more than Fifty Million Dollars ($50,000,000); or
(c) any acquisition, whether through a purchase of equity or assets, license out of the ordinary course of business, or merger, consolidation or other business combination with a subsidiary of the Company, in each case in a single transaction or a series of related transactions with a transaction value of more than Fifty Million Dollars ($50,000,000).
ARTICLE IV
Section 4.1 So long as Acacia has the right to designate Acacia Designees to the Board, Acacia shall have the right, subject to applicable law, to appoint three (3) designees to attend (in person or by teleconference or videoconference) and participate in, all meetings of the Board in a non-voting participant capacity (such Acacia designees, the “Acacia Board Observers”). So long as the Holders, voting as a group, have the right to designate Holder Designees to the Board, the Holders shall have the right, subject to applicable law, to appoint three (3) designees to attend (in person or by teleconference or videoconference) and participate in, all meetings of the Board in a non-voting participant capacity (such Holder designees, the “Holder Board Observers”, and together with the Acacia Board Observers, the “Board Observers”).
Section 4.2 So long as Acacia or the Holders have the right to appoint Board Observers in accordance with Section 4.1, but subject to Section 4.3, the Company shall provide each Board Observer with (a) written notice of all meetings of the Board, including notice of the
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time and place of any such meetings, (b) all written materials or other correspondence delivered to the members of the Board and (c) all proposed written consent actions provided to the Board, in each case, at the same time and in the same manner as such notice and information is delivered to the members of the Board.
Section 4.3 Notwithstanding anything to the contrary herein, the Board will be entitled to exclude any or all of the Board Observers from access to, or participation in, or review of, the communications, meetings and materials described in Section 4.2 if (a) permitting such access, participation or review could reasonably be expected to jeopardize the attorney-client privilege or contravene any applicable law, Nasdaq rule or requirement, or confidentiality obligation, (b) such communications, meetings or materials relate to an executive session of the Board or its independent members, or any matter to be discussed in such an executive session, or (c) such communications, meetings or materials relate to any matter with respect to which a director could reasonably conclude there is a potential or actual conflict of interest between the Company, on the one hand, and a specific Board Observer or the party(ies) hereto that appointed such Board Observer, on the other hand. The Board Observers will not be entitled to participate in communications with, or meetings of, any committee of the Board, or have access to materials delivered to members of any such committee.
ARTICLE V
“VOTING OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE IS SUBJECT TO THE TERMS AND CONDITIONS OF A CERTAIN VOTING AGREEMENT BY AND AMONG THE COMPANY, ACACIA AND CERTAIN OTHER HOLDERS OF STOCK OF THE COMPANY. COPIES OF SUCH AGREEMENT MAY BE OBTAINED UPON WRITTEN REQUEST TO THE SECRETARY OF THE COMPANY.”
If such Voting Securities are reflected in book entry, the Company shall be entitled to, or to cause its transfer agent to, make notations of such legend in its books and records.
ARTICLE VI
Section 6.1 Governing Law. This Agreement and all issues and questions concerning the construction, validity, enforcement and interpretation of this Agreement (and all exhibits hereto) shall be governed by, and construed in accordance with, the laws of the State of Delaware, without giving effect to any choice of law or conflict of law rules or provisions (whether of the State of Delaware or any other jurisdiction) that would cause the application of
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the laws of any jurisdiction other than the State of Delaware. In furtherance of the foregoing, the internal laws of the State of Delaware shall control the interpretation and construction of this Agreement (and all exhibits hereto), even though under that jurisdiction’s choice of law or conflict of law analysis, the substantive law of some other jurisdiction would ordinarily apply.
Section 6.3 Jurisdiction; Service of Process. Any claim, suit or action (“Action”) with respect to this Agreement and the rights and obligations arising hereunder, or for recognition and enforcement of any judgment in respect of this Agreement and the rights and obligations arising hereunder brought by the other party or parties or their successors or assigns, in each case, shall be brought and determined exclusively in the Delaware Court of Chancery and any state appellate court therefrom within the State of Delaware (or, if the Delaware Court of Chancery declines to accept jurisdiction over a particular matter, any state or federal court within the State of Delaware). Each of the parties hereby irrevocably waives, and agrees not to assert, by way of motion, as a defense, counterclaim or otherwise, in any Action with respect to this Agreement (i) any claim that is not personally subject to the jurisdiction of the above named courts for any reason other than the failure to serve in accordance with this Section 6.3, (ii) any claim that it or its property is exempt or immune from jurisdiction of any such court or from any legal process commenced in such courts (whether through service of notice, attachment prior to judgment, attachment in aid of execution of judgment, execution of judgment or otherwise) and (iii) to the fullest extent permitted by applicable law, any claim that (A) the Action in such court is brought in an inconvenient forum, (B) the venue of such Action is improper or (C) this Agreement, or the subject matter hereof, may not be enforced in or by such courts. Each of the parties further agrees that no party to this Agreement shall be required to obtain, furnish or post any bond or similar instrument in connection with or as a condition to obtaining any remedy referred to in this Section 6.3 and each party waives any objection to the imposition of such relief or any right it may have to require the obtaining, furnishing or posting of any such bond or similar instrument. The parties hereby agree that mailing of process or other papers in connection with any such action or proceeding in the manner provided in Section 6.4, or in such other manner as may be permitted by law, shall be valid and sufficient service thereof and hereby waive any objections to service accomplished in the manner herein provided.
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Day after being sent to the recipient by reputable overnight courier service (charges prepaid); provided, that confirmation of delivery is received, (iii) upon machine-generated acknowledgment of receipt after transmittal by facsimile or (iv) five (5) calendar days after being mailed to the recipient by certified or registered mail (return receipt requested and postage prepaid). Such notices, demands and other communications shall be sent to the parties at the following addresses (or at such address for a party as will be specified by like notice):
(a) if to Acacia, to:
Acacia Research Corporation
000 Xxxxxxx Xxxxxx Xxxxx, 00xx Xxxxx
Xxxxxxx Xxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx, General Counsel
Facsimile: 000-000-0000
with a copy (which will not constitute notice) to:
Xxxxxxxxx Traurig, LLP
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx X. Block
Facsimile: 000-000-0000
with a copy (which will not constitute notice) to:
Xxxxxxxxx Xxxxx Xxxxxxx & Xxxxx, P.C.
000 Xxxxxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx Xxxxx, XX 00000
Attention: Xxxx X. Xxxxxx
Facsimile: 000-000-0000
(b) if to the Company to:
Veritone, Inc.
0000 Xxx Xxxx
Xxxxxxx Xxxxx, XX 00000
Attention: Xxxx X. Xxxxxxxxx, Chief Financial Officer
Facsimile: 000-000-0000
with a copy (which will not constitute notice) to:
Xxxxxx, Xxxxxx & Xxxxx LLP
000 X. Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx
Attention: Xxxx Xxx Xxxx, Esq.
Xxxxxxxxx X. Xx, Esq.
Facsimile: (000) 000-0000
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with a copy (which will not constitute notice) to:
Xxxxxx, Xxxxx & Bockius LLP
000 Xxxxx Xxxxxxxxx, Xxxxx 0000
Xxxxx Xxxx, XX 00000
Attention: Xxxxx X. Xxxxxxxx, Esq.
Facsimile: (000) 000-0000
with a copy (which will not constitute notice) to:
Xxxxxxxxx Traurig, LLP
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx X. Block
Facsimile: 000-000-0000
with a copy (which will not constitute notice) to:
Xxxxxxxxx Xxxxx Xxxxxxx & Xxxxx, P.C.
000 Xxxxxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx Xxxxx, XX 00000
Attention: Xxxx X. Xxxxxx
Facsimile: 000-000-0000
(c) if to the Holders, to each Holder at the address specified in Exhibit A.
Any party to this Agreement may notify any other party hereto of any changes to the address or any of the other details specified in this paragraph; provided that such notification shall only be effective on the date specified in such notice or five (5) Business Days after the notice is given, whichever is later. Rejection or other refusal to accept or the inability to deliver because of changed address of which no notice was given shall be deemed to be receipt of the notice as of the date of such rejection, refusal or inability to deliver.
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modified or supplemented, including (in the case of agreements or instruments) by waiver or consent and (in the case of statutes) by succession of comparable successor statutes, and including all attachments thereto and instruments incorporated therein. References to a person are also to its permitted successors and assigns. Unless the context otherwise requires, “or,” “neither,” “nor,” “any,” “either,” and “or” shall not be exclusive. Wherever and whenever in this Agreement there is a consent right of a party, such party shall be entitled to consider solely its own interests (and not the interests of any other person) or, at its sole election, any such other interests and factors as such party desires. The parties have participated jointly in the negotiation and drafting of this Agreement, and in the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the parties, and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any provisions of this Agreement.
[Signature page follows]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above written.
| VERITONE INC. | ||
| By: | /s/ Xxxx X. Xxxxxxxxx | |
| Name: Xxxx X. Xxxxxxxxx | ||
| Title: Chief Financial Officer |
| ACACIA RESEARCH CORPORATION | ||
| By: | /s/ Xxxxxxx X. Xxxxx | |
| Name: Xxxxxxx X. Xxxxx | ||
| Title: CFO |
VOTING AGREEMENT SIGNATURE PAGE
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above written.
| STEEL HOLDINGS, LLC | ||
| By: | /s/ Xxxx Xxxxxxxxx | |
| Xxxx Xxxxxxxxx, Manager | ||
| NEWPORT COAST INVESTMENTS, LLC | ||
| By: | Xxxx Xxxxxxxxx, Trustee of the RSS Living Trust dated April 6, 2012 | |
| Its: | Member | |
| By: | /s/ Xxxx Xxxxxxxxx | |
| Xxxx Xxxxxxxxx, Trustee | ||
| XXXXXXXXX PARTNERS INVESTMENT FUND, LP | ||
| By: | Xxxxxxxxx Partners Investment GP, LLC its General Partner | |
| By: | /s/ Xxxxxxxxx Xxxxxxxxx |
| Name: | Xxxxxxxxx Xxxxxxxxx |
| Title: | Partner |
| 125 MEDIA HOLDINGS, L.L.C. | ||
| By: | /s/ Xxxx Xxxxxx | |
| Xxxx Xxxxxx, Authorized Signatory |
VOTING AGREEMENT SIGNATURE PAGE
| 730 MEDIA HOLDINGS, L.L.C. | ||
| By: | /s/ Xxxx Xxxxxx | |
| Xxxx Xxxxxx, Authorized Signatory | ||
| RADIO DIAL, LLC | ||
| By: | /s/ Xxxxxxx Xxxxxx | |
| Xxxxxxx Xxxxxx, Manager | ||
| MIRAMAR VENTURE PARTNERS II, LP | ||
| By: | Miramar Venture Associates II, LLC | |
| Its: | General Partner | |
| By: | /s/ Xxxxx Xxxxxxx | |
| Xxxxx Xxxxxxx, Managing Member | ||
| MIRAMAR DIGITAL VENTURES, L.P. | ||
| By: | Miramar Digital Associates, LLC | |
| Its: | General Partner | |
| By: | /s/ Xxxxx Xxxxxxx | |
| Xxxxx Xxxxxxx, Managing Member | ||
| BV16, LLC | ||
| By: | NCI Investments, LLC | |
| Its: | Manager | |
| By: | /s/ Xxxx Xxxxxxxxx | |
| Xxxx Xxxxxxxxx, Manager |
EXHIBIT A
HOLDERS
| Name | Address and Facsimile Number | Class of Capital Stock / Nature of Derivative Security, if applicable | Number of Shares Owned Beneficially and of Record | |||
|
Newport Coast Investments, LLC | 000 00xx Xxxxxx, Xxxxxxx Xxxxx XX 00000 | Common Stock | 1,602,958 | |||
|
BV16, LLC | 000 00xx Xxxxxx, Xxxxxxx Xxxxx XX 00000 | Common Stock | 1,603,059 | |||
|
125 Media Holdings, LLC | Common Stock | 177,367 | ||||
|
Steel Holdings, LLC | 000 00xx Xxxxxx, Xxxxxxx Xxxxx XX 00000 | Common Stock | 142,500 | |||
|
Newport Coast Investments, LLC | 000 00xx Xxxxxx, Xxxxxxx Xxxxx XX 00000 | Series A Preferred | 3,205,917 | |||
|
Steel Holdings, LLC | 000 00xx Xxxxxx, Xxxxxxx Xxxxx XX 00000 | Series A Preferred | 285,000 | |||
|
Xxxxxxxxx Partners Investment Fund, LP | 00 Xxxxx Xx. Xxxxx 0X, Xxx Xxxxxx, XX 00000 | Series B Preferred | 1,030,927 | |||
|
125 Media Holdings, LLC | 00 X 00xx Xxxxxx 00xx Xx., Xxx Xxxx, XX 00000 | Series B Preferred | 1,030,927 | |||
|
Radio Dial, LLC | 00xx Xxxxx, Xx Xxxx Xxxxx Xx Maryah Island | Series B Preferred | 515,463 | |||
|
730 Media Holdings, LLC | 00 X 00xx Xxxxxx 00xx Xx., Xxx Xxxx, XX 00000 | Series B Preferred | 206,185 | |||
|
Miramar Venture Partners II, LP | 0000 X. Xxxxx Xxx, 0xx Xx., Xxxxxx xxx Xxx, XX 00000 | Series B Preferred | 103,093 | |||
|
Miramar Digital Ventures, LP | 0000 X. Xxxxx Xxx, 0xx Xx., Xxxxxx xxx Xxx, XX 00000 | Series B Preferred | 103,093 |
