Exhibit 10.39
TENDER AND SUPPORT AGREEMENT
This Tender and Support Agreement (this “Agreement”), dated as of May 26, 2022, is entered into by and among Vivid Seats Inc., a Delaware corporation (the “Company”), and each of the persons listed on Schedule A hereto (collectively, the “Public Warrant Holders,” and each a “Public Warrant Holder”).
WHEREAS, as of the date hereof, each Public Warrant Holder is the beneficial owner of warrants to purchase the Company’s Class A Common Stock which, in connection with the Company’s business combination with Horizon Acquisition Corporation, the Company’s predecessor (“Horizon”), were exchanged for warrants to purchase Horizon common stock that were sold as part of the units in the initial public offering (the “IPO”) (whether they were purchased in the IPO or thereafter in the open market) of Horizon (the “Public Warrants”);
WHEREAS, as of the date hereof, the Public Warrants are listed on The Nasdaq Capital Market under the symbol “SEATW” and there are a total of 18,132,766 Public Warrants outstanding;
WHEREAS, on October 18, 2021, the Company completed its business combination with Horizon and, in connection therewith, Horizon merged with and into the Company, upon which the separate corporate existence of Horizon ceased and the Company became the surviving corporation;
WHEREAS, each Public Warrant entitles its holder to purchase one share of Class A common stock, par value $0.0001 per share (the “Class A Common Stock”), of the Company, for a purchase price of $11.50, subject to certain adjustments;
WHEREAS, the Company is initiating an exchange offer (the “Exchange Offer”) pursuant to a registration statement on Form S-4 to be filed with the Securities and Exchange Commission (as may be amended and supplemented, the “Registration Statement”), to offer all Public Warrant holders the opportunity to exchange their Public Warrants for shares of Class A Common Stock, based on an exchange ratio of 0.240 shares of Class A Common Stock per Public Warrant and subject to other terms and conditions to be set forth in the Registration Statement;
WHEREAS, concurrent with the Exchange Offer and as part of the Registration Statement, the Company is initiating a consent solicitation (the “Solicitation”) to solicit the consent of the holders of the Public Warrants to amend (the “Warrant Amendment”), effective upon the completion of the Exchange Offer, the terms of the Amended and Restated Warrant Agreement, dated October 14, 2021, by and between Horizon and Continental Stock Transfer & Trust Company, as warrant agent (the “Amended and Restated Warrant Agreement”), which governs all of the Public Warrants, to permit the Company to require that each Public Warrant that is outstanding upon the closing of the Exchange Offer be converted into 0.213 shares of Class A Common Stock, which is a ratio of 12.7% less than the exchange ratio applicable to the Exchange Offer, subject to the terms and conditions to be set forth in the Registration Statement; and
WHEREAS, as an inducement to the Company’s willingness to initiate the Exchange Offer and the Solicitation, each Public Warrant Holder has agreed to enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the respective representations, warranties, covenants and agreements set forth herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound, do hereby agree as follows:
Section 1.01 Agreement to Tender. Each Public Warrant Holder shall validly tender or cause to be tendered to the Company all Public Warrants beneficially owned by such Public Warrant Holder as of the date hereof, free and clear of any liens, options, rights or any other encumbrances, limitations or restrictions whatsoever (other than those restrictions imposed by applicable securities laws, this Agreement and the Amended and Restated Warrant Agreement), pursuant to and in accordance with the terms of the Exchange Offer as described in the Registration Statement no later than the scheduled or extended expiration time of the Exchange Offer at a ratio of 0.240 shares of Class A Common Stock per Public Warrant. For the avoidance of doubt, nothing in this Agreement shall restrict the Public Warrant Holder from acquiring additional Public Warrants subsequent to the date hereof and such additional Public Warrants shall not be subject to the terms of this Agreement.
