EX-4.6 2 d287954dex46.htm FORM OF "TYPE 4" HOLDER VOTING AGREEMENT <![CDATA[Form of "Type 4" Holder Voting Agreement]]>

Exhibit 4.6


This Holder Voting Agreement (this “Agreement”) is made as of the [    ]th day of [    ], by and among Facebook, Inc., a Delaware corporation (the “Company”), [            ], a [                    ] (together with its successors, “Stockholder”), and Mark Zuckerberg (“Proxyholder”).


A. Stockholder is expected to purchase shares of Class B Common Stock of the Company from                     (the “Purchased Shares”) and is expected to become a party to (i) that certain Eighth Amended and Restated Voting Agreement by and among the Company, the Founders (as defined therein), Peter Thiel and the Investors (as defined therein), dated as of December 27, 2010 (the “Investor Voting Agreement”), a true, correct and complete current copy thereof is attached as Exhibit B hereto, and, if applicable, (ii) that certain Sixth Amended and Restated Right of First Refusal and Co-Sale Agreement by and among the Founders (as defined therein), the Company and the Investors (as defined therein), dated as of December 27, 2010, as amended from time to time (the “ROFR Agreement”), a true, correct and complete current copy thereof is attached as Exhibit C hereto. Any acquisition of Shares (defined below) shall occur pursuant to the Stock Transfer Agreements to be identified on Exhibit A hereto (each a “Stock Transfer Agreement” and, together, the “Stock Transfer Agreements”) which agreements shall be in form and substance satisfactory to the Company and subject to the execution thereof by                     , Stockholder and the Company. As any Purchased Shares are acquired pursuant to a Stock Transfer Agreement, such agreement as well as any voting agreements to which such Purchased Shares may be subject will be identified on Exhibit A hereto in the format as set forth therein, as updated by Stockholder and verified by the Company upon request.

B. Pursuant to an agreement by and among the Company,                     and Proxyholder, no Purchased Shares may be transferred to any stockholder, unless and until such stockholder enters into this Agreement.

C. This Agreement, among other things, requires Stockholder to vote all Purchased Shares (together with any securities of the Company issued with respect to, upon conversion of, or in exchange or substitution of such shares, the “Shares”) in the manner set forth herein. Any Shares held by Stockholder shall be identified on Exhibit A hereto, provided, however, that failure to so identify such Shares shall not relieve Stockholder from the obligations set forth in this Agreement.

D. In exchange for the mutual promises herein and for other good and valuable consideration, the sufficiency of which is hereby acknowledged and agreed, the parties hereto wish to enter into this Agreement.


The parties hereto agree as follows:

1. No Conflict with Investor Voting Agreement. In the event of a conflict between the terms and provisions of this Agreement and the terms and provisions of the Investor Voting Agreement, the terms and provisions of the Investor Voting Agreement will prevail, and Proxyholder or Stockholder, as the case may be, shall be obligated to vote the Shares in accordance with the Investor Voting Agreement.

2. Voting Arrangements. Stockholder hereby agrees that Proxyholder shall have the right to vote all the Shares, in his sole discretion, on all matters submitted to a vote of stockholders of the Company at a meeting of stockholders or through the solicitation of a written consent of stockholders (whether of any individual class of stock or of multiple classes of stock voting together) except for:

2.1 any issuance, or series of related issuances, of capital stock in a capital raising transaction by the Company that is submitted for stockholder approval in which the number of shares of capital stock so issued will exceed 20% of the total number of shares of capital stock of the Company outstanding immediately prior to such issuance; and

2.2 any matter, the outcome of the vote on which would disproportionately, materially and adversely affect Stockholder, as compared to other holders of the same class(es) of capital stock of Company, provided that, subject to Section 2.1, increases in the authorized number of shares of preferred stock generally, or the authorized number of any class of preferred stock of the Company or the issuance of securities of the Company senior to such class of preferred stock will not be viewed as having such an adverse effect.

With respect to the excepted matters described in Sections 2.1 and 2.2 above, Stockholder shall have the right to (i) instruct Proxyholder in writing as to the manner in which the Shares shall be voted or (ii) vote the Shares in person or by action by written consent, as applicable, in which case Stockholder shall notify Proxyholder in writing that Stockholder intends to so vote. In addition, Proxyholder shall not have any right to waive notice by the Company to Stockholder. Such instruction or notice shall be provided to Proxyholder at least five (5) days prior to the date of any meeting of stockholders at which such matter is to be voted upon or as promptly as reasonably practicable upon Stockholder becoming aware that such matter is to be acted upon by written consent. In the event that Stockholder does not so instruct Proxyholder or notify Proxyholder of its intention to so vote or act by written consent, Proxyholder shall abstain from voting the Shares in respect of such matters.

3. Illustrative Examples. Matters on which Proxyholder shall be entitled to vote, pursuant to Section 2 include, but are not limited to, the following, which are presented here solely by way of example:

3.1 election, replacement or removal of directors of the Company (each, a “Director”);



3.2 sale or other disposition of all or substantially all of the Company’s assets, provided, that any distribution to Company stockholders of the proceeds of such sale or disposition are made in accordance with the Company’s certificate of incorporation, as then in effect;

3.3 mergers of, or acquisitions by, the Company or its subsidiaries that are submitted for stockholder approval; and

3.4 adoption by the Company of a rights plan or similar takeover defensive arrangements, or amendments thereof, which plan provides that a triggering event will occur only upon the acquisition by a stockholder of 15% or more of the Company’s shares of voting capital stock.

4. Stockholder to Abstain from Voting. Stockholder agrees that, unless Proxyholder provides explicit written instruction to vote the Shares under this Agreement or Proxyholder provides explicit written notice that Stockholder shall be permitted by Proxyholder to vote in a manner other than as Proxyholder instructs, Stockholder shall abstain from voting any of the Shares (in person, by proxy or by action by written consent, as applicable) on all matters other than with respect to the matters set forth in Sections 2.1 and 2.2 above.

5. Irrevocable Proxy and Power of Attorney. To secure Stockholder’s obligations to vote the Shares in accordance with this Agreement and to comply with the other terms hereof, Stockholder hereby appoints Proxyholder, or Proxyholder’s named designee(s), as Stockholder’s true and lawful proxy and attorney, with the power to act alone and with full power of substitution, to vote or act by written consent with respect to all the Shares solely in accordance with the provisions set forth in this Agreement, and to execute all appropriate instruments solely in a manner consistent with the terms of this Agreement on behalf of Stockholder. The proxy and power granted by Stockholder pursuant to this Section 5 are coupled with an interest and are given to Proxyholder to secure the performance of Stockholder’s duties under this Agreement. The aforesaid proxy and power will (a) be irrevocable for the term hereof, and (b) survive the merger, consolidation, conversion or reorganization of Stockholder or any other entity holding the Shares.

6. Additional Representations, Covenants and Agreements.

6.1 Transfers by Stockholder.

(a) To the extent Stockholder has acquired shares that are subject to the ROFR Agreement, Stockholder hereby acknowledges that Proxyholder is an intended third-party beneficiary of the ROFR Agreement and the Stock Transfer Agreements.

(b) Pursuant to the Stock Transfer Agreements and, to the extent applicable, Section 6 of the ROFR Agreement, Stockholder may not transfer, assign, pledge or otherwise dispose of or encumber the Shares (collectively, a “Transfer”) without the prior written consent of the Company, unless otherwise permitted by the Stock Transfer Agreements and, if applicable, the ROFR Agreement.



(c) If Stockholder’s Transfer of Shares is permitted under the terms of the Stock Transfer Agreements and, if applicable, the ROFR Agreement, or is otherwise consented to by the Company pursuant to the Stock Transfer Agreements and, if applicable, the ROFR Agreement, such Transfer shall not take effect until the pledgee, transferee or donee of such Shares (the “Transferee”) executes and delivers to Proxyholder and the Company an agreement substantially in the form of this Agreement (the “Transferee Voting Agreement”), it being understood and agreed that the Company shall be entitled to issue stop transfer instructions in respect of such Shares to preclude any transfer of Shares in contravention of the foregoing. Notwithstanding the foregoing, six (6) months following the completion of the initial firm commitment underwritten public offering by the Company (the “Initial Public Offering”) under the Securities Act of 1933, as amended (the “Securities Act”), the Transferee shall not be required to enter into a Transferee Voting Agreement (and the Shares shall no longer be subject to the restrictions of this Agreement) if at the time of such Transfer the Stockholder is transferring (x) Class B Common Stock that, upon completion of such Transfer, shall automatically become Class A Common Stock, or (y) Class A Common Stock.

For clarification purposes, Shares Transferred six (6) months following the Initial Public Offering and in accordance with Section 6.1(c) above shall no longer be subject to this Agreement and the Transferee shall not be treated as a “Stockholder” for purposes of this Agreement. Except as set forth in the prior sentence, upon satisfaction of the provisions of this Section 6.1, such Transferee shall be treated as a “Stockholder” for purposes of this Agreement.

6.2 Legends. The Company shall cause each certificate representing the Shares to bear the following legend, in addition to any legends that may be required by state or federal securities laws or the terms of the Company’s Bylaws or any voting or other agreements that apply to Stockholder:


6.3 Stock Splits, Dividends, Etc. In the event of any issuance of shares of the Company’s voting securities hereafter to Stockholder as a result of Stockholder’s ownership of Shares (including, without limitation, in connection with any stock split, stock dividend, recapitalization, reorganization, or the like), such shares shall automatically become subject to this Agreement and shall be endorsed with the legend set forth in Section 6.2.

6.4 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.

6.5 Securities Laws, Rules and Regulations. Stockholder, the Company and Proxyholder agree and understand that Stockholder, the Company and/or Proxyholder may become subject to the registration and/or reporting requirements, rules and regulations of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), the Securities Act and/or any state and federal securities laws (collectively with the Exchange Act and the Securities Act, the “Securities Laws”). Stockholder, the Company and Proxyholder agree to use their respective commercially reasonable efforts to comply with the Securities Laws and to reasonably assist each other in complying with the Securities Laws in a timely and prompt manner. Such compliance may include, for example and without limiting the foregoing, the filing and updating and maintaining of Form 13G and/or Form 13D under the Exchange Act.

6.6 Other Arrangements. During the term of this Agreement, Stockholder will not, without Proxyholder’s prior written consent, voluntarily convert any Shares of the Company’s Class B Common Stock into Shares of the Company’s Class A Common Stock; provided, however, that a conversion of Shares resulting from or in connection with a Transfer (as such term is defined in the Company’s Eleventh Amended and Restated Certificate of Incorporation, as amended from time to time) shall not constitute a “voluntary” conversion for the purposes of this Agreement and any such transfer is not restricted by this Section 6.6.

6.7 Proxyholder’s Liability. In voting the Shares in accordance with Section 2 hereof, Proxyholder shall not be liable for any error of judgment nor for any act done or omitted, nor for any mistake of fact or law nor for anything which Proxyholder may do or refrain from doing in good faith, nor shall Proxyholder have any accountability hereunder, except for Proxyholder’s own bad faith, gross negligence or willful misconduct. Furthermore, upon any judicial or other inquiry or investigation of or concerning Proxyholder’s acts pursuant to Proxyholder’s rights and powers as Proxyholder, such acts shall be deemed reasonable and in the best interests of Stockholder unless proved to the contrary by clear and convincing evidence.

7. Termination.

7.1 Termination Events. This Agreement shall automatically terminate:

(a) upon the liquidation, dissolution or winding up of the business operations of the Company;

(b) upon the execution by the Company of a general assignment for the benefit of creditors or the appointment of a receiver or trustee to take possession of the property and assets of the Company;

(c) in the sole discretion of Proxyholder, upon the express written consent of Proxyholder (which Proxyholder shall be under no obligation to provide); or



(d) upon the death or permanent and substantial incapacity of Proxyholder, as determined in good faith by the Company’s board of directors, unless Proxyholder is actively contesting such determination of incapacity.

7.2 Conversion of Shares upon Termination of Agreement. In the event that this Agreement is terminated pursuant to Section 7.1(d) (a “Conversion Event”), Stockholder hereby agrees that this Agreement shall constitute notice to the Company that contingent upon and effective as of such Conversion Event, all Shares held at the time of such Conversion Event by Stockholder shall automatically (without any further action on the part of Stockholder and/or any of Stockholder’s respective affiliates) convert into shares of the Company’s Class A Common Stock pursuant to Article IV(D), Section 5(a) the Company’s Eleventh Amended and Restated Certificate of Incorporation, as amended from time to time (the “Optional Conversion Provision”). In addition, upon such Conversion Event, Stockholder shall promptly deliver to the Company the stock certificates representing all Shares to be converted pursuant to the Optional Conversion Provision in accordance with this section.

7.3 Legends Following Termination of Agreement. At any time after termination of either of the Investor Voting Agreement or this Agreement, any holder of a stock certificate may surrender such certificate to the Company for appropriate modifications to the legend, and the Company shall, as promptly as reasonably practicable, reissue a new certificate with any legends that may be required by the Securities Laws or the terms of any voting or other agreements that remain applicable.

7.4 Survival. Sections 7.2 and 7.3 shall survive the termination of this Agreement.

8. Miscellaneous.

8.1 Successors and Assigns. The terms and conditions of this Agreement shall inure to the benefit of and be binding upon the respective successors and assigns of the Company, Stockholder and Proxyholder. Nothing in this Agreement, express or implied, is intended to confer upon any person other than the parties hereto or the respective successors and assigns of the Company, Stockholder and Proxyholder any rights, remedies, obligations, or liabilities under or by reason of this Agreement, except as expressly provided in this Agreement. Except for an assignment by the Company (i) by operation of law, or (ii) in connection with an acquisition, consolidation or merger of the Company or sale of all or substantially all of the Company’s assets (which shall be permitted only with the written consent and notice of the Company), this Agreement may not be assigned without the written consent of Proxyholder, the Company and Stockholder.

8.2 Amendments and Waivers. Any term hereof may be amended or waived only with the written consent of Stockholder and Proxyholder, except where such amendment or waiver shall materially negatively alter the rights or obligations of the Company hereunder, in which case any such amendment or waiver shall also require the written consent of the Company. Any amendment or waiver effected in accordance with this Section 8.2 shall be binding upon the Company, Proxyholder and Stockholder, and each of the respective successors and assigns to the Company or Proxyholder.



8.3 Notices. Notwithstanding anything to the contrary contained herein, any notice required or permitted by this Agreement shall be in writing and shall be deemed sufficient and received on the earlier of (a) the date of delivery, when delivered personally, by overnight mail, courier or sent by electronic mail (e-mail) or fax, or (b) forty-eight (48) hours after being deposited in the U.S. mail, as certified or registered mail, with postage prepaid, and addressed to the party to be notified at such party’s address, e-mail address or fax number as set forth on the signature page hereto, or as subsequently modified by written notice. Any electronic mail (e-mail) communication shall be deemed to be “in writing” for purposes of this Agreement.

8.4 Severability. If one or more provisions of this Agreement are held to be unenforceable under applicable law, the parties hereto agree to renegotiate such provision in good faith. In the event that the parties hereto cannot reach a mutually agreeable and enforceable replacement for such provision, then (a) such provision shall be excluded from this Agreement, (b) the balance of the Agreement shall be interpreted as if such provision were so excluded, and (c) the balance of the Agreement shall be enforceable in accordance with its terms.

8.5 Governing Law; Jurisdiction; Venue.

(a) This Agreement and all acts and transactions pursuant hereto and the rights and obligations of the parties hereto shall be governed, construed and interpreted in accordance with the laws of the State of Delaware, without giving effect to conflict of law principles. In addition, each of the parties hereto (i) consents to submit itself to the exclusive jurisdiction of the Court of Chancery or other courts of the State of Delaware in the event any dispute arises out of this Agreement or any of the transactions contemplated by this Agreement, (ii) agrees that it will not attempt to deny or defeat such jurisdiction by motion or other request for leave from such court, (iii) agrees that it will not bring any action relating to this Agreement or any of the transactions contemplated by this Agreement in any court other than the Court of Chancery or other courts of the State of Delaware, and (iv) waives, and agrees not to assert, by way of motion, as a defense, or otherwise, in any such suit, action or proceeding, any claim that it is not subject to the jurisdiction of the above-named courts, that its property is exempt or immune from attachment or execution, that the suit, action or proceeding is brought in an inconvenient forum, that the venue of the suit, action or proceeding is improper or that this Agreement or the subject matter hereof may not be enforced in or by such court.

(b) Each party hereto, other than Stockholder, hereby consents to service of process being made through the notice procedures set forth in Section 8.3 and agrees that, to the fullest extent permitted by law, service of any process, summons, notice or document by U.S. registered mail to the parties’ respective addresses set forth on the signature page hereto shall be effective service of process for any suit or proceeding in connection with this Agreement or the transactions contemplated hereby.

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



8.7 Titles and Subtitles. The titles and subtitles used in this Agreement are used for convenience only and are not to be considered in construing or interpreting this Agreement.

8.8 Confidentiality. Prior to the filing of a registration statement with respect to the Initial Public Offering by the Company under the Securities Act, the parties hereto shall keep this Agreement and the terms hereof confidential and not disclose the foregoing to any third party, except as required by applicable law, to fulfill the terms of this Agreement or as the parties hereto may otherwise agree; provided that the Stockholder may cause this Agreement to be disclosed to a prospective Transferee of the Purchased Shares who agrees in writing to comply with the restrictions set forth in this paragraph for the benefit of each of the Company and the Proxyholder.

[Signature page follows]



IN WITNESS WHEREOF, the parties have executed this Holder Voting Agreement as of the date first set forth above.


Facebook, Inc.


By:   Theodore W. Ullyot
  Vice President and General Counsel

1601 S. California Avenue

Palo Alto, CA 94304



Mark Zuckerberg

1601 S. California Avenue

Palo Alto, CA 94304

[Signature Page to Holder Voting Agreement]


[                                         ]





[Signature Page to Holder Voting Agreement]

Exhibit A to Holder Voting Agreement


Stock Transfer






Original Voting


Other Voting


Previous Stock Transfer



Investor Voting Agreement


ROFR Agreement