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EXHIBIT 10.9
AGREEMENT
THIS AGREEMENT is made and entered into as of the 21st day of May,
1999, by and between Advantix, Inc., a Delaware corporation (the "Company") and
Xxxxx X. Xxxxx ("Xxxxx").
WHEREAS, the Company, TicketsLive Corporation, a New York corporation
("TicketsLive"), Advantix Acquisition II Corp., a Delaware corporation ("Merger
Sub"), and certain of the shareholders of TicketsLive, including Xxxxx, have
entered into an Agreement and Plan of Merger and Reorganization dated as of
March 18, 1999 (the "Merger Agreement"), pursuant to which Merger Sub will be
merged with and into TicketsLive and TicketsLive, as the surviving corporation,
will become a wholly owned subsidiary of the Company (the "Merger");
WHEREAS, in connection with the Merger, Xxxxx has been granted certain
"Piggyback" registration rights in connection with an initial public offering of
common stock of the Company (a "Company IPO"), pursuant to Section 4(b) of that
certain Third Amended and Restated Investor Rights Agreement dated as of March
__, 1999 by and among the Company and the stockholders named therein (the
"Investor Rights Agreement"); and
WHEREAS, the Company desires to grant to Xxxxx certain additional rights
in connection with the shares of Company common stock she is receiving in the
Merger.
NOW, THEREFORE, in consideration of the foregoing recitals and of the
agreements contained herein, the parties agree as follows:
1. Definitions. Capitalized terms used but not otherwise defined
herein shall have the respective meanings set forth in the Investor Rights
Agreement.
2. Underwriters' Cutback Put. In connection with a Company IPO, in
the event that (i) Xxxxx shall not have exercised either the Second Put or the
Third Put (as described in Section 3 and Section 4, respectively, below) and (i)
the Company Underwriter limits the number of securities to be included in the
registration and underwriting pursuant to Section 4(d) of the Investor Rights
Agreement such that all or a portion of the Requested Shares may not be
registered, Xxxxx shall have the right to obligate the Company to purchase up to
the difference (the "Unregistered Requested Shares") between (i) the number of
Requested Shares and (ii) the number of Requested Shares included in the Initial
Public Offering pursuant to Section 4(d) of the Investor Rights Agreement, at a
per share purchase price equal to the Company IPO price per share, less
underwriters' discounts and commissions. Xxxxx may exercise this right by giving
written notice of the election of this right to the Company in accordance with
Section 10.3 of the Merger Agreement not later than two (2) business days prior
to the date of filing of the Registration Statement in connection with a Company
IPO. The Company shall deliver payment for any Unregistered Requested Shares
with respect to which the Company shall have received notice pursuant to this
Section 2 within ten (10) Business Days following the closing of a Company IPO.
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3. Second Xxxxx Put. In the event the Company does not consummate a
Company IPO on or before August 31, 1999, Xxxxx shall have the right (the
"Second Put") to obligate the Company to repurchase from Xxxxx up to 1,400,000
shares (the "Second Put Shares") of Company Common Stock at a purchase price of
$4.16 per share. Xxxxx may exercise this right by giving written notice of the
election of this right to the Company in accordance with Section 10.3 of the
Merger Agreement at any time between August 1, 1999 and October 1, 1999. The
Company shall deliver payment for any Second Put Shares with respect to which
the Company shall have received notice pursuant to this Section 2 not later than
thirty (30) days following the date upon which the Company shall have received
such notice.
4. Third Xxxxx Put. In the event the Company does not consummate a
Company IPO on or before the second anniversary of the closing of the Merger
(the "Second Anniversary"), Xxxxx shall have the right (the "Third Put") to
obligate the Company to repurchase from Xxxxx up to 938,000 shares (the "Third
Put Shares") of Company Common Stock at a purchase price of $4.43 per share.
Xxxxx may exercise this right by giving written notice of the election of this
right to the Company in accordance with Section 10.3 of the Merger Agreement at
any time between thirty (30) days prior to the Second Anniversary and sixty (60)
days following the Second Anniversary. The Company shall deliver payment for any
Third Put Shares with respect to which the Company shall have received notice
pursuant to this Section 4 not later than thirty (30) days following the date
upon which the Company shall have received such notice.
5. General Provisions. Neither this Agreement nor any term or
provision hereof may be amended or modified in any manner without the express
prior written consent of the parties hereto. This Agreement and the rights and
obligations hereunder shall be governed by and construed in accordance with the
laws of the State of California. This Agreement may be executed simultaneously
in two counterparts, each of which shall be deemed an original but both of which
together shall constitute one and the same instrument. This Agreement supersedes
all prior agreements and understandings with respect to the subject matter
hereof, whether written or oral.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
ADVANTIX, Inc.,
a Delaware corporation
By: /s/ XXXX X. XXXXXXXXX
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Name: Xxxx X. Xxxxxxxxx
Title: Ch
/s/ XXXXX X. XXXXX
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Xxxxx X. Xxxxx
[SIGNATURE PAGE TO XXXXX AGREEMENT]
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