1,048,998 Shares RUMBLEON, INC. COMMON STOCK UNDERWRITING AGREEMENT
Exhibit 1.1
1,048,998 Shares
COMMON STOCK
April
8, 2021
▇. ▇▇▇▇▇ Securities, Inc.
As
Representative of the several Underwriters
c/o ▇.
▇▇▇▇▇ Securities, Inc.
▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇
▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Ladies
and Gentlemen:
1.
Introductory.
RumbleOn, Inc., a Nevada corporation (the
“Company”),
proposes to sell, pursuant to the terms of this Agreement, to the
several underwriters named in Schedule A hereto (the
“Underwriters,”
or, each, an “Underwriter”),
an aggregate of 1,048,998 shares of the Company’s Class B
common stock, $0.001 par value per share (the “Common
Stock”). The aggregate of 1,048,998 shares so proposed
to be sold is hereinafter referred to as the “Firm Stock.”
The Company also proposes to sell to the Underwriters, upon the
terms and conditions set forth in Section 3 hereof, up to an additional
157,349 shares of Common Stock (the “Optional
Stock”). The Firm Stock and the Optional Stock are
hereinafter collectively referred to as the “Stock.” ▇.
▇▇▇▇▇ Securities, Inc. is acting as representative of the several
Underwriters and in such capacity is hereinafter referred to as the
“Representative.”
On
March 12, 2021, the Company entered into that certain Plan of
Merger and Equity Purchase Agreement (the “RideNow
Agreement”) as further described in the
Company’s current report on Form 8-K filed with the
Commission (as defined below) on March 15, 2021. The term
“Transaction”
used herein shall be as defined in such current report on Form
8-K.
(i) Representations
and Warranties of the Company.
The Company represents and warrants to the several Underwriters, as
of the date hereof and as of each Closing Date (as defined below),
and agrees with the several Underwriters, that:
(a)
Registration
Statement. A
registration statement of the Company on Form S-3 (File No.
333-234340) (including all amendments thereto, the
“Registration
Statement”) in respect of the Stock has been filed
with the Securities and Exchange Commission (the
“Commission”)
pursuant to Rule 415 under the Securities Act of 1933, as amended
(the “Securities
Act”). The Company meets the requirements for use of
Form S-3 under the Securities Act and the rules and regulations of
the Commission thereunder (the “Rules and
Regulations”). The Registration Statement and any
post-effective amendment thereto, each in the form heretofore
delivered to you, and, excluding exhibits thereto, to you for each
of the other Underwriters, have been declared effective by the
Commission in such form and conform, in all material respects, to
the requirements of the Securities Act and the Rules and
Regulations. The proposed offering of the Stock may be made
pursuant to General Instruction I.B.1 of Form S-3. Other than (i)
the Registration Statement, (ii) a registration statement, if any,
increasing the size of the offering filed pursuant to Rule 462(b)
under the Securities Act and the Rules and Regulations (a
“Rule
462(b) Registration Statement”), (iii) any Preliminary
Prospectus (as defined below), (iv) the Prospectus (as defined
below) contemplated by this Agreement to be filed pursuant to Rule
424(b) of the Rules and Regulations in accordance with Section 4(i)(a) hereof and (v)
any Issuer Free Writing Prospectus (as defined below), no other
document with respect to the offer or sale of the Stock has
heretofore been filed with the Commission. No stop order suspending
the effectiveness of the Registration Statement, any post-effective
amendment thereto or the Rule 462(b) Registration Statement, if
any, has been issued and no proceeding for that purpose or pursuant
to Section 8A of the Securities Act has been initiated or, to the
Company’s knowledge, threatened by the Commission (any
preliminary prospectus and preliminary prospectus supplement
included in the Registration Statement or filed with the Commission
pursuant to Rule 424 of the Rules and Regulations that omitted the Rule
430B Information and that was used prior to the filing of the
Prospectus is hereinafter called a “Preliminary
Prospectus”). The Registration Statement, including
all exhibits thereto and including the information contained in the
Prospectus filed with the Commission pursuant to Rule 424(b) of the
Rules and Regulations and deemed by virtue of Rules 430A, 430B and
430C under the Securities Act to be part of the Registration
Statement at the time it became effective, is hereinafter
collectively called the “Registration
Statement.” If the Company has filed a Rule 462(b)
Registration Statement, then any reference herein to the term
“Registration Statement” shall be deemed to include
such Rule 462 Registration Statement. The Base Prospectus (as
defined below) included in the Registration Statement at the time
of effectiveness thereof, as supplemented by the final prospectus
supplement relating to the offer and sale of the Stock, in the form
filed pursuant to and within the time limits described in
Rule 424(b) under the Rules and Regulations, is hereinafter
called the “Prospectus.”
Any
reference herein to the Registration Statement, Preliminary
Prospectus or the Prospectus shall be deemed to refer to and
include the documents incorporated by reference therein
pursuant to Item 12 of Form
S-3 under the Securities Act as of the effective date of the
Registration Statement or the date of such Preliminary Prospectus
or Prospectus, as the case may be. Any reference to any
amendment or supplement to any Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include any documents
filed after the date of such Preliminary Prospectus or the
Prospectus under the Securities Exchange Act of 1934, as amended
(the “Exchange
Act”), and incorporated by reference in such
Preliminary Prospectus or Prospectus, as the case may be. Any
reference to (i) the Registration Statement shall be deemed to
refer to and include the annual report of the last completed fiscal
year of the Company on Form 10-K filed under Section 13(a) or 15(d)
of the Exchange Act prior to the date hereof and (ii) the effective
date of such Registration Statement shall be deemed to refer to and
include the date such Registration Statement became effective and,
if later, the date such Form 10-K was so filed. Any reference to
any amendment to the Registration Statement shall be deemed to
refer to and include any annual report of the Company filed
pursuant to Section 13(a) or 15(d) of the Exchange Act after the
date of this Agreement that is incorporated by reference in the
Registration Statement.
(b)
General Disclosure Package. As
of the Applicable Time (as defined below) and as of the Closing
Date or the Option Closing Date (as defined below), as the case may
be, neither (i) the General Use Free Writing Prospectus(es) (as
defined below) issued at or prior to the Applicable Time, the Base
Prospectus and the information included on Schedule C hereto, all
considered together (collectively, the “General Disclosure
Package”), nor (ii) any individual Limited Use Free
Writing Prospectus (as defined below), nor (iii) the bona fide
electronic roadshow (as defined in Rule 433(h)(5) of the Rules and
Regulations), when considered together with the General Disclosure
Package, included or will include any untrue statement of a
material fact or omitted or will omit to state a material fact
necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading;
provided, however, that the Company makes
no representations or warranties as to information contained in or
omitted from the Base Prospectus or any Issuer Free Writing
Prospectus (as defined below), in reliance upon, and in conformity
with, written information furnished to the Company through the
Representative by or on behalf of any Underwriter specifically for
inclusion therein, which information the parties hereto agree is
limited to the Underwriters’ Information (as defined in
Section 18). As
used in this paragraph (b) and elsewhere in this
Agreement:
“Applicable
Time” means 6:45 P.M., New York time, on April 8, 2021
or such other time as agreed to by the Company and the
Representative.
“Base
Prospectus” means the base prospectus, as
amended and supplemented immediately prior to the Applicable Time,
including any document incorporated by reference therein and any
prospectus supplement deemed to be a part
thereof.
“Issuer Free Writing
Prospectus” means any “issuer free writing
prospectus,” as defined in Rule 433 of the Rules and
Regulations relating to the Stock in the form filed or required to
be filed with the Commission or, if not required to be filed, in
the form retained in the Company’s records pursuant to Rule
433(g) of the Rules and Regulations.
“General Use Free Writing
Prospectus” means any Issuer Free Writing Prospectus
that is identified on Schedule B to this
Agreement.
“Limited Use Free Writing
Prospectuses” means any Issuer Free Writing Prospectus
that is not a General Use Free Writing Prospectus.
2
(c)
No Stop Orders; No Material
Misstatements. No order preventing or suspending the use of
any Preliminary Prospectus, any Issuer Free Writing Prospectus or
the Prospectus relating to the proposed offering of the Stock has
been issued by the Commission, and no proceeding for that purpose
or pursuant to Section 8A of the Securities Act has been instituted
or, to the Company’s knowledge, threatened by the Commission,
and each Preliminary Prospectus, at the time of filing thereof,
conformed in all material respects to the requirements of the
Securities Act and the Rules and Regulations, and did not contain
an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which
they were made, not misleading; provided, however, that the Company makes
no representations or warranties as to information contained in or
omitted from any Preliminary Prospectus, in reliance upon, and in
conformity with, written information furnished to the Company
through the Representative by or on behalf of any Underwriter
specifically for inclusion therein, which information the parties
hereto agree is limited to the Underwriters’
Information.
Registration Statement and Prospectus
Contents. At the respective times, the Registration
Statement and any amendments thereto became or become effective as
to the Underwriters and at each Closing Date, the Registration
Statement and any amendments thereto conformed and will conform in
all material respects to the requirements of the Securities Act and
the Rules and Regulations and did not and will not contain any
untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the
statements therein not misleading; and the Prospectus and any
amendments or supplements thereto, at the time the Prospectus or
any amendment or supplement thereto was issued and at each Closing
Date, conformed and will conform in all material respects to the
requirements of the Securities Act and the Rules and Regulations
and did not and will not contain an untrue statement of a material
fact or omit to state a material fact necessary in order to make
the statements therein, in light of the circumstances under which
they were made, not misleading; provided, however, that the foregoing
representations and warranties in this paragraph (d) shall not
apply to information contained in or omitted from the Registration
Statement or the Prospectus, or any amendment or supplement
thereto, in reliance upon, and in conformity with, written
information furnished to the Company through the Representative by
or on behalf of any Underwriter specifically for inclusion therein,
which information the parties hereto agree is limited to the
Underwriters’ Information.
(e)
Issuer Free Writing Prospectus.
Each Issuer Free Writing Prospectus, as of its issue date and at
all subsequent times through the completion of the public offer and
sale of the Stock or until any earlier date that the Company
notified or notifies the Representative as described in
Section 4(i)(c),
did not, does not and will not include any information that
conflicted, conflicts or will conflict with the information
contained in the Registration Statement, Base Prospectus or the
Prospectus, including any document incorporated by reference
therein and any prospectus supplement deemed to be a part thereof
that has not been superseded or modified, or included or would
include an untrue statement of a material fact or omitted or would
omit to state a material fact required to be stated therein or
necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not
misleading, provided, however, that the foregoing
representations and warranties in this paragraph (e) shall not
apply to information contained in or omitted from the Registration
Statement or the Prospectus, or any amendment or supplement
thereto, in reliance upon, and in conformity with, written
information furnished to the Company through the Representative by
or on behalf of any Underwriter specifically for inclusion therein,
which information the parties hereto agree is limited to the
Underwriters’ Information.
3
(f)
Documents Incorporated by
Reference. The
documents incorporated by reference in the Prospectus, when they
were filed with the Commission, conformed in all material respects
to the requirements of the Securities Act or the Exchange Act, as
applicable, and the rules and regulations of the Commission
thereunder and none of such documents contained any untrue
statement of a material fact or omitted to state any material fact
required to be stated therein, or necessary to make the statements
therein, in the light of the circumstances under which they were
made, not misleading; and any further documents so filed and
incorporated by reference in the Prospectus, when such documents
are filed with Commission will conform in all material respects to
the requirements of the Securities Act or the Exchange Act, as
applicable, and the rules and regulations of the Commission
thereunder and will not contain any untrue statement of a material
fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein, in the light
of the circumstances under which they were made, not
misleading.
(g)
Distribution of Offering
Materials. The Company has not, directly or indirectly,
distributed and will not distribute any offering material in
connection with the offering and sale of the Stock other than any
Preliminary Prospectus, the Prospectus and other materials, if any,
permitted under the Securities Act and consistent with Section 4(i)(b) below. The
Company will file with the Commission all Issuer Free Writing
Prospectuses (other than a “road show” as described in
Rule 433(d)(8) of the Rules and Regulations) in the time and manner
required under Rules 163(b)(2) and 433(d) of the Rules and
Regulations.
(h)
Not an Ineligible Issuer. At
the time of filing the Registration Statement, any Rule 462(b)
Registration Statement and any post-effective amendments thereto,
and at the date hereof, the Company was not, and the Company
currently is not, an “ineligible issuer,” as defined in
Rule 405 of the Rules and Regulations.
(i)
Organization and Good Standing.
The Company and each of its subsidiaries (as defined in
Section
16) have been duly
organized and are validly existing as corporations or other legal
entities in good standing (or the foreign equivalent thereof) under
the laws of their respective jurisdictions of organization. The
Company and each of its subsidiaries are duly qualified to do
business and are in good standing as foreign corporations or other
legal entities in each jurisdiction in which their respective
ownership or lease of property or the conduct of their respective
businesses requires such qualification and have all power and
authority (corporate or other) necessary to own or hold their
respective properties and to conduct the businesses in which they
are engaged, except where the failure to so qualify, be in good
standing or have such power or authority would not (i) have,
singularly or in the aggregate, a material adverse effect on the
business, properties, management, financial position,
stockholders’ equity or results of operations of the Company
and its subsidiaries taken as a whole, or (ii) impair in any
material respect the ability of the Company to perform its
obligations under this Agreement or to consummate any transactions
contemplated by this Agreement, the General Disclosure Package or
the Prospectus (any such effect as described in clauses (i) or
(ii), a “Material Adverse
Effect”). The subsidiaries listed on Exhibit 21 to the
Company’s annual report on Form 10-K filed with the
Commission on March 31, 2021 are the only significant subsidiaries
(as defined in Rule 1-02 of Regulation S-X) of the
Company.
(j)
Underwriting Agreement. This
Agreement has been duly authorized, executed and delivered by the
Company.
(k)
The Stock. The Stock to be
issued and sold by the Company to the Underwriters hereunder has
been duly and validly authorized and, when issued and delivered
against payment therefor as provided herein, will be duly and
validly issued, fully paid and non-assessable and will conform in
all material respects to the descriptions thereof in the
Registration Statement, the General Disclosure Package and the
Prospectus; and, except as described or incorporated by reference
in the General Disclosure Package, the issuance of the Stock is not
subject to any preemptive or similar rights.
4
(l)
Capitalization. The Company has
an authorized capitalization as described or incorporated by
reference in the Registration Statement, the General Disclosure
Package or the Prospectus, and all of the issued shares of capital
stock of the Company, including the Stock, have been duly and
validly authorized and issued, are fully paid and non-assessable,
have been issued in material compliance with federal and state
securities laws, and conform in all material respects to the
description thereof contained or incorporated by reference in the
General Disclosure Package and the Prospectus. All of the
Company’s options, warrants and other rights to purchase or
exchange any securities for shares of the Company’s capital
stock have been duly authorized and validly issued and were issued
in material compliance with federal and state securities laws. None
of the outstanding shares of Common Stock were issued in violation
of any preemptive rights, rights of first refusal or other similar
rights to subscribe for or purchase securities of the Company. As
of the date set forth in the General Disclosure Package, there were
no authorized or outstanding shares of capital stock, options,
warrants, preemptive rights, rights of first refusal or other
rights to purchase, or equity or debt securities convertible into
or exchangeable or exercisable for, any capital stock of the
Company or any of its subsidiaries other than those described above
or accurately described or incorporated by reference in the General
Disclosure Package. Since the date set forth in the General
Disclosure Package, the Company has not issued any securities other
than Common Stock issued pursuant to the exercise of warrants or
upon the exercise of stock options or other awards outstanding
under the Company’s stock option plans, options or other
securities granted or issued pursuant to the Company’s
existing equity compensation plans or other plans, and the issuance
of Common Stock pursuant to employee stock purchase plans. The
description of the Company’s stock option, stock bonus and
other stock plans or arrangements, and the options or other rights
granted thereunder, as described or incorporated by reference in
the General Disclosure Package and the Prospectus, accurately and
fairly present the information required to be shown with respect to
such plans, arrangements, options and rights.
(m)
Capitalization of Subsidiaries.
All the outstanding shares of capital stock (if any) of each
subsidiary of the Company have been duly authorized and validly
issued, are fully paid and nonassessable and, except to the extent
set forth in the General Disclosure Package or the Prospectus, are
owned by the Company directly or indirectly through one or more
wholly-owned subsidiaries, free and clear of any claim, lien,
encumbrance, security interest, restriction upon voting or transfer
or any other claim of any third party.
(n)
No Conflicts. The execution,
delivery and performance of this Agreement by the Company, the
issue and sale of the Stock by the Company and the consummation of
the transactions contemplated hereby will not (with or without
notice or lapse of time or both) (i) conflict with or result in a
breach or violation of any of the terms or provisions of,
constitute a default or a Debt Repayment Triggering Event (as
defined below) under, or result in the creation or imposition of
any lien, encumbrance, security interest, claim or charge upon any
property or assets of the Company or any subsidiary pursuant to,
any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which the Company or any of its
subsidiaries is a party or by which the Company or any of its
subsidiaries is bound or to which any of the property or assets of
the Company or any of its subsidiaries is subject or to the RideNow
Agreement, (ii) result in any violation of the provisions of the
charter or by-laws (or analogous governing instruments, as
applicable) of the Company or any of its subsidiaries or (iii)
result in the violation of any law, statute, rule, regulation,
judgment, order or decree of any court or governmental or
regulatory agency or body, domestic or foreign, having jurisdiction
over the Company or any of its subsidiaries or any of their
properties or assets except, in the case of clauses (i) and (iii)
above, for any such conflict, breach, violation or default that
would not, individually or in the aggregate, have a Material
Adverse Effect. A “Debt Repayment Triggering
Event” means any event or condition that gives, or
with the giving of notice or lapse of time would give the holder of
any note, debenture or other evidence of indebtedness (or any
person acting on such holder’s behalf) the right to require
the repurchase, redemption or repayment of all or a portion of such
indebtedness by the Company of any of its
subsidiaries.
5
(o)
No Consents Required. To the
knowledge of the Company, except as may be required under the
Securities Act or applicable state securities laws, and such
consents, approvals, authorizations, orders and registrations or
qualifications as may be required by the Financial Industry
Regulatory Authority (“FINRA”) and
the Nasdaq Capital Market (the “Exchange”) in
connection with the purchase and distribution of the Stock by the
Underwriters, no consent, approval, authorization or order of, or
filing, qualification or registration (each an “Authorization”)
with, any court, governmental or regulatory agency or body, foreign
or domestic, which has not been made, obtained or taken and is not
in full force and effect, is required for the execution, delivery
and performance of this Agreement by the Company, the issuance and
sale of the Stock or the consummation of the transactions
contemplated hereby.
(p)
Independent Auditors. ▇▇▇▇▇
▇▇▇▇▇▇▇▇ LLP, whose report on the consolidated financial statements
of the Company is filed with the Commission as part of the
Company’s most recent Annual Report on Form 10-K and
included or incorporated by reference in the Registration
Statement, the General Disclosure Package and the Prospectus, is an
independent registered public accounting firm with respect to the
Company and its subsidiaries within the meaning of Article 2-01 of
Regulation S-X and the Public Company Accounting Oversight Board
(United States) (the “PCAOB”). ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, the accounting firm that audited certain
financial statements of RideNow Group and affiliates (collectively,
“RideNow”) that
are included in or incorporated by reference into the Registration
Statement, the General Disclosure Package and the Prospectus, are,
to the Company’s knowledge, independent certified public
accountants with respect to RideNow under Rule 101 of the
AICPA’s Code of Professional Conduct, its interpretations and
rulings.
(q)
Financial Statements. The
Company’s financial statements, together with the related
notes and schedules, included in or incorporated by reference into
the General Disclosure Package, the Prospectus and the Registration
Statement fairly present, in all material respects, the financial
position and the results of operations and changes in financial
position of the Company and its consolidated subsidiaries at the
respective dates or for the respective periods therein specified.
Such statements and related notes and schedules have been prepared
in accordance with the generally accepted accounting principles in
the United States (“GAAP”) applied
on a consistent basis throughout the periods involved except as may
be set forth in the related notes included in or incorporated by
reference into the Registration Statement, the General Disclosure
Package or the Prospectus. The financial statements, together with
the related notes and schedules, included in or incorporated by
reference into the General Disclosure Package and the Prospectus
comply in all material respects with Regulation S-X. No other
financial statements or supporting schedules or exhibits are
required by Regulation S-X to be described, or included in or
incorporated by reference into the Registration Statement, the
General Disclosure Package or the Prospectus. There is no pro forma
or as adjusted financial information which is required to be
included in or incorporated by reference into the Registration
Statement, the General Disclosure Package and the Prospectus in
accordance with Regulation S-X which has not been included or
incorporated as so required. The pro forma and pro forma as
adjusted financial information and the related notes included in or
incorporated by reference into the Registration Statement, the
General Disclosure Package and the Prospectus have been properly
compiled and prepared in accordance with the applicable
requirements of Rule 11-02 of Regulation S-X and present
fairly, in all material respects, the information shown therein,
and the assumptions used in the preparation thereof are reasonable
and the adjustments used therein are appropriate to give effect to
the transactions and circumstances referred to therein. The summary
and selected financial data included in or incorporated by
reference into the General Disclosure Package, the Prospectus and
the Registration Statement fairly present, in all material
respects, the information shown therein as at the respective dates
and for the respective periods specified and are derived from the
consolidated financial statements set forth in the Registration
Statement, the Pricing Prospectus and the Prospectus and other
financial information. All information contained in the
Registration Statement, the General Disclosure Package and the
Prospectus regarding “non-GAAP financial measures” (as
defined in Regulation G) complies with Regulation G and Item 10 of
Regulation S-K, to the extent applicable.
6
(r)
eXtensible Business Reporting
Language. The interactive data in eXtensible Business
Reporting Language included or incorporated by reference in the
Registration Statement fairly presents in all material respects the
information called for in all material respects and has been
prepared in accordance with the Commission’s rules and
guidelines applicable thereto.
(s)
No Material Adverse Change.
Except as otherwise stated therein, neither the Company nor any of
its subsidiaries has sustained, since the date of the latest
audited financial statements included or incorporated by reference
in the General Disclosure Package: (i) any material loss or
interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor
dispute or action, order or decree of any court or governmental or
regulatory authority, otherwise than as set forth or contemplated
in the General Disclosure Package; (ii) any change in the capital
stock of the Company (other than the sale of shares of Common Stock
as described in the Registration Statement, the General Disclosure
Package and the Prospectus, the issuance of shares of Common Stock
upon exercise of stock options and warrants described as
outstanding in, and the grant of options and awards under existing
equity incentive plans described in, the Registration Statement,
the General Disclosure Package and the Prospectus); (iii) any
increase in the long-term debt of the Company or any of its
subsidiaries, except as otherwise disclosed or incorporated by
reference in the Registration Statement, the General Disclosure
Package or the Prospectus; (iv) any dividend or distribution of any
kind declared, set aside for payment, paid or made by the Company
on any class of capital stock; or (v) any material adverse changes,
or any development involving a prospective material adverse change,
in or affecting the business, properties, assets, management,
financial position, prospects, stockholders’ equity or
results of operations of the Company and its subsidiaries taken as
a whole, otherwise than as set forth or contemplated in the General
Disclosure Package.
(t)
Legal Proceedings. There are no legal or
governmental proceedings pending or, to the Company’s
knowledge, threatened, to which the Company or any subsidiary is a
party or to which any of the properties of the Company or any
subsidiary is subject that are required to be described in the
Registration Statement or the Prospectus and are not so described,
other than proceedings that would not have a Material Adverse
Effect on the Company and its subsidiaries, taken as a whole, or on
the power or ability of the Company to perform its obligations
under this Agreement or the RideNow Agreement or to consummate the
transactions contemplated by the Prospectus.
(u)
No Violation or Default.
Neither the Company nor any of its subsidiaries is (i) in violation
of its charter or bylaws (or analogous governing instrument, as
applicable), (ii) in default in any respect, and no event has
occurred which, with notice or lapse of time or both, would
constitute such a default, in the due performance or observance of
any term, covenant or condition contained in any indenture,
mortgage, deed of trust, loan agreement, lease or other agreement
or instrument to which it is a party or by which it is bound or to
which any of its property or assets is subject or (iii) in
violation in any respect of any law, ordinance, governmental rule,
regulation or court order, decree or judgment to which it or its
property or assets may be subject, except, in the case of clauses
(ii) and (iii) above, for any such violation or default that would
not, singularly or in the aggregate, have a Material Adverse
Effect.
(v)
Licenses or Permits. The
Company and each of its subsidiaries possess or have obtained all
licenses, certificates, authorizations and permits issued by, and
have made all declarations and filings with, the appropriate local,
state, federal or foreign governmental or regulatory agencies or
bodies that are necessary for the ownership or lease of their
respective properties or the conduct of their respective businesses
as described in the General Disclosure Package and the Prospectus
(collectively, the “Governmental
Permits”), except where any failures to possess,
obtain or make the same would not, singularly or in the aggregate,
have a Material Adverse Effect. Neither the Company nor any
subsidiary has received notification of any revocation,
modification, suspension, termination or invalidation (or
proceedings related thereto) of any such Governmental Permit and
the Company has no reason to believe that any such Governmental
Permit will not be renewed in the ordinary course, except where any
failures to possess, obtain or make the same would not, singularly
or in the aggregate, have a Material Adverse Effect.
7
(w)
Investment Company Act. Neither
the Company nor any of its subsidiaries is or, after giving effect
to the offering of the Stock and the application of the proceeds
thereof as described in the General Disclosure Package and the
Prospectus, will be required to register as an “investment
company” or an entity “controlled” by an
“investment company” within the meaning of the
Investment Company Act of 1940, as amended, and the rules and
regulations of the Commission thereunder.
(x)
No Stabilization. Neither the
Company nor, to the Company’s knowledge, any of its officers,
directors or affiliates has taken or will take, directly or
indirectly, any action designed or intended to stabilize or
manipulate the price of any security of the Company, or which
caused or resulted in, or which might in the future reasonably be
expected to cause or result in, stabilization or manipulation of
the price of any security of the Company.
(y)
Intellectual Property. The
Company and its subsidiaries own or possess the valid right to use
all (i) valid and enforceable patents, patent applications,
trademarks, trademark registrations, service marks, service ▇▇▇▇
registrations, Internet domain name registrations, copyrights,
copyright registrations, licenses, trade secret rights
(“Intellectual Property
Rights”) and (ii) inventions, software, works of
authorships, trademarks, service marks, trade names, databases,
formulae, know how, Internet domain names and other intellectual
property (including trade secrets and other unpatented and/or
unpatentable proprietary confidential information, systems, or
procedures) (collectively, “Intellectual Property
Assets”) necessary to conduct their respective
businesses as currently conducted, and as proposed to be conducted
and described in the General Disclosure Package and the
Prospectus, except to
the extent that the failure to own or possess adequate rights to
use such Intellectual Property Rights or Intellectual Property
Assets would not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect. The Company and its
subsidiaries have not received any written notice of any claim that
any activities of their respective businesses infringe,
misappropriate, or otherwise violate, valid and enforceable
Intellectual Property Rights of any other person, and have not
received written notice of any challenge, which is to their
knowledge still pending, by any other person to the rights of the
Company and its subsidiaries with respect to any Intellectual
Property Rights or Intellectual Property Assets owned or used by
the Company or its subsidiaries, except for any such
claim, challenge or other proceeding that would not, individually
or in the aggregate, reasonably be expected to have a Material
Adverse Effect. To the Company’s knowledge, the
Company and its subsidiaries’ respective businesses as now
conducted do not give rise to any infringement of, any
misappropriation of, or other violation of, any valid and
enforceable Intellectual Property Rights of any other person. All
licenses for the use of the Intellectual Property Rights (each an
“Intellectual Property
License”) necessary to conduct business as currently
conducted by the Company and described in the General Disclosure
Package and the Prospectus are valid, binding upon, and enforceable
by or against the parties thereto in accordance with their
respective terms. The Company has complied in all material respects
with, and is not in breach nor has received any asserted or
threatened claim of breach of, any Intellectual Property License,
and the Company has no knowledge of any breach or anticipated
breach by any other person to any Intellectual Property License.
Except as described in the General Disclosure Package, no claim has
been made against the Company alleging the infringement by the
Company of any patent, trademark, service ▇▇▇▇, trade name,
copyright, trade secret, license in or other intellectual property
right or franchise right of any person. The Company has taken all
reasonable steps designed to protect, maintain and safeguard its
Intellectual Property Rights and Intellectual Property Assets,
including the execution of appropriate nondisclosure and
confidentiality agreements. Except as would not, individually or in
the aggregate, reasonably be expected to have a Material Adverse
Effect, the consummation of the transactions contemplated by this
Agreement will not result in the loss or impairment of or payment
of any additional amounts with respect to, nor require the consent
of any other person in respect of, the Company’s right to
own, use, or hold for use any of the Intellectual Property Rights
as owned, used or held for use in the conduct of the business as
currently conducted.
8
(z)
Privacy and Data Protection.
The Company and its subsidiaries have at all times complied in all
material respects with all applicable laws relating to privacy,
data protection and the collection and use of personal information
collected, used or held for use by the Company and its subsidiaries
in the conduct of the Company’s business. Except as would
not, individually or in the aggregate, reasonably be expected to
have a Material Adverse Effect, no claims have been asserted or, to
the knowledge of the Company, threatened against the Company and
its subsidiaries alleging a violation of any person’s privacy
or personal information or data rights, and the consummation of the
transactions contemplated hereby will not breach or otherwise cause
any violation of any law related to privacy, data protection, or
the collection and use of personal information collected, used, or
held for use by the Company and its subsidiaries in the conduct of
the Company’s business. The Company takes reasonable measures
to ensure that such information is protected against unauthorized
access, use, modification or misuse.
(aa)
Title to Real and Personal
Property. The Company and each of its subsidiaries have good
and marketable title in and (in the case of real property) to, or
have valid and marketable rights to lease or otherwise use, all
items of real or personal property which are material to the
business of the Company and its subsidiaries taken as a whole, in
each case free and clear of all liens, encumbrances, security
interests, claims and defects, except those that (i) do not,
singularly or in the aggregate, materially affect the value of such
property and do not materially interfere with the use made and
proposed to be made of such property by the Company or any of its
subsidiaries or (ii) would not reasonably be expected, singularly
or in the aggregate, to have a Material Adverse
Effect.
(bb)
No Labor Dispute. No labor
problem or dispute with the employees of the Company or any of its
subsidiaries exists or, to the Company’s knowledge, is
threatened or imminent, and the Company is not aware of any
existing or imminent labor disturbance by the employees of any of
its or its subsidiaries’ principal suppliers, contractors or
customers, that could have a Material Adverse Effect.
(cc)
Compliance with ERISA. To the
Company’s knowledge, no “prohibited transaction”
(as defined in Section 406 of the Employee Retirement Income
Security Act of 1974, as amended, including the regulations and
published interpretations thereunder (“ERISA”), or
Section 4975 of the Internal Revenue Code of 1986, as amended from
time to time (the “Code”)) or
“accumulated funding deficiency” (as defined in Section
302 of ERISA) or any of the events set forth in Section 4043(b) of
ERISA (other than events with respect to which the thirty (30)-day
notice requirement under Section 4043 of ERISA has been waived) has
occurred or could reasonably be expected to occur with respect to
any employee benefit plan of the Company or any of its subsidiaries
which could, singularly or in the aggregate, have a Material
Adverse Effect. Each employee benefit plan of the Company or any of
its subsidiaries is in material compliance in all material respects
with applicable law, including ERISA and the Code. The Company and
its subsidiaries have not incurred and could not reasonably be
expected to incur material liability under Title IV of ERISA with
respect to the termination of, or withdrawal from, any pension plan
(as defined in ERISA). Each pension plan for which the Company or
any of its subsidiaries would have any material liability that is
intended to be qualified under Section 401(a) of the Code is so
qualified, and nothing has occurred, whether by action or by
failure to act, which could, singularly or in the aggregate, cause
the loss of such qualification.
(dd)
Environmental Laws.
The Company
and each of its subsidiaries: (i) are in compliance with any
and all applicable federal, state, local and foreign laws, rules,
regulations, decisions and orders relating to the protection of
human health and safety, the environment or hazardous or toxic
substances or wastes, pollutants or contaminants (collectively,
“Environmental
Laws”);
(ii) have received and are in compliance with all permits,
licenses or other approvals required of them under applicable
Environmental Laws to conduct their respective businesses as
described in the Registration Statement and the Prospectus; and
(iii) have not received notice of any actual or potential
liability for the investigation or remediation of any disposal or
release of hazardous or toxic substances or wastes, pollutants or
contaminants, except those, in each of the cases described in
clauses (i), (ii) or (iii) above, for any such failure to
comply or failure to receive required permits, licenses, other
approvals or liability as would not, singularly or in the
aggregate, have a Material Adverse Effect.
9
(ee)
Taxes. The Company and its
subsidiaries each (i) have timely filed all necessary federal,
state, local and foreign tax returns, and all such returns were
true, complete and correct, (ii) have paid all federal, state,
local and foreign taxes, for which it is liable, including, without
limitation, all sales and use taxes and all taxes which the Company
or any of its subsidiaries is obligated to withhold from amounts
owing to employees, creditors and third parties, and (iii) do not
have any tax deficiency or claims outstanding or assessed or, to
its knowledge, proposed against any of them, except those, in each
of the cases described in clauses (i), (ii) and (iii) above, that
would not, singularly or in the aggregate, have a Material Adverse
Effect.
(ff)
Insurance. The Company and each
of its subsidiaries carry, or are covered by, insurance in such
amounts and covering such risks as is adequate for the conduct of
their respective businesses and the value of their respective
properties. Neither the Company nor any of its subsidiaries has any
reason to believe that it will not be able to renew its existing
insurance coverage as and when such coverage expires or to obtain
similar coverage from similar insurers as may be necessary to
continue its business at a cost that would not have a Material
Adverse Effect. Neither the Company nor any of its subsidiaries has
received written notice from any insurer, agent of such insurer or
the broker of the Company or any of its subsidiaries that any
material capital improvements or any other material expenditures
(other than premium payments) are required or necessary to be made
in order to continue such insurance.
(gg)
Accounting Controls. The
Company and each of its subsidiaries maintain a system of
“internal control over financial reporting” (as such
term is defined in Rule 13a-15(f) of the General Rules and
Regulations under the Exchange Act (the “Exchange Act
Rules”)) sufficient to comply with the requirements of
the Exchange Act and has been designed by their respective
principal executive and principal financial officers, or under
their supervision, to provide reasonable assurances that: (i)
transactions are executed in accordance with management’s
general or specific authorizations; (ii) transactions are recorded
as necessary to permit preparation of financial statements in
conformity with GAAP and to maintain accountability for assets;
(iii) access to assets is permitted only in accordance with
management’s general or specific authorization; (iv) the
recorded accountability for assets is compared with existing assets
at reasonable intervals and appropriate action is taken with
respect to any differences; and (v) interactive data in eXtensible
Business Reporting Language included or incorporated by reference
in the Registration Statement fairly presents in all material
respects the Commission’s rules and guidelines applicable
thereto. Except as disclosed in the Registration Statement, in the
General Disclosure Package and in the Prospectus, the
Company’s internal control over financial reporting is
effective and none of the Company, its board of directors and audit
committee is aware of any “significant deficiencies” or
“material weaknesses” (each as defined by the PCAOB) in
its internal control over financial reporting, or any fraud,
whether or not material, that involves management or other
employees of the Company and its subsidiaries who have a
significant role in the Company’s internal controls. Except
as described in the General Disclosure Package, since the end of
the Company’s most recent audited fiscal year, there has been
(A) no material weakness in the Company’s internal control
over financial reporting (whether or not remediated) and (B) no
change in the Company’s internal control over financial
reporting that has materially affected, or is reasonably likely to
materially affect, the Company’s internal control over
financial reporting.
(hh)
Disclosure Controls. The
Company and its subsidiaries maintain disclosure controls and
procedures (as such is defined in Rule 13a-15(e) of the Exchange
Act Rules) that are sufficient to comply with the requirements of
the Exchange Act; such disclosure controls and procedures have been
designed to ensure that information required to be disclosed by the
Company and its subsidiaries in reports that they file or submit
under the Exchange Act is recorded, processed, summarized and
reported within the time periods specified in the
Commission’s rules and forms, including controls and
procedures designed to ensure that such information is accumulated
and communicated to the Company’s management to allow timely
decisions regarding disclosures. The Company and its subsidiaries
have conducted evaluations of the effectiveness of their disclosure
controls as required by Rule 13a-15 of the Exchange
Act.
10
(ii)
No Undisclosed Relationships.
No relationship, direct or, to the knowledge of the Company,
indirect, exists between or among the Company or any of its
subsidiaries on the one hand, and the directors, officers,
stockholders (or analogous interest holders), customers or
suppliers of the Company or any of its affiliates on the other
hand, which is required to be described in the General Disclosure
Package and the Prospectus or a document incorporated by reference
therein and which is not so described.
(jj)
No Registration Rights.
Except as
otherwise disclosed in the General Disclosure Package and the
Prospectus, no person or entity has the right to require
registration of shares of Common Stock or other securities of the
Company or any of its subsidiaries because of the filing or
effectiveness of the Registration Statement or otherwise, except
for persons and entities who have expressly waived such right in
writing or who have been given timely and proper written notice and
have failed to exercise such right within the time or times
required under the terms and conditions of such right.
(kk)
Margin Rules. The application
of the proceeds received by the Company from the issuance, sale and
delivery of the Stock as described in the General Disclosure
Package and the Prospectus will not violate Regulation T, U or X of
the Board of Governors of the Federal Reserve system or any other
regulation of such Board of Governors.
(ll)
No Broker’s Fees. Neither
the Company nor any of its subsidiaries is a party to any contract,
agreement or understanding with any person (other than this
Agreement) that would give rise to a valid claim against the
Company or any of its subsidiaries or the Underwriters for a
brokerage commission, finder’s fee or like payment in
connection with the offering and sale of the Stock or any
transaction contemplated by this Agreement, the Registration
Statement, the General Disclosure Package or the
Prospectus.
(mm)
No
Restrictions on Subsidiaries. Except as described in the
General Disclosure Package and the Prospectus, no subsidiary of the
Company is currently prohibited, directly or indirectly, under any
agreement or other instrument to which it is a party or is subject,
from paying any dividends to the Company, from making any other
distribution on such subsidiary’s capital stock, from
repaying to the Company any loans or advances to such subsidiary
from the Company or from transferring any of such
subsidiary’s properties or assets to the Company or any other
subsidiary of the Company.
(nn)
Forward-Looking Statements. No
forward-looking statement (within the meaning of Section 27A of the
Securities Act and Section 21E of the Exchange Act) contained in
either the General Disclosure Package or the Prospectus has been
made or reaffirmed without a reasonable basis or has been disclosed
other than in good faith.
(oo)
Listing. The Company is subject
to and in compliance in all material respects with the reporting
requirements of Section 13 or Section 15(d) of the Exchange Act.
The Common Stock is registered pursuant to Section 12(b) of the
Exchange Act and is listed on the Exchange, and the Company has
taken no action designed to, or reasonably likely to have the
effect of, terminating the registration of the Common Stock under
the Exchange Act or delisting the Common Stock from the Exchange,
nor has the Company received any notification that the Commission
or FINRA is contemplating terminating such registration or
listing.
(pp)
▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act. The Company
is in material compliance with all applicable provisions of the
▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 and the rules and regulations of the
Commission thereunder.
(qq)
No Unlawful Payments. Neither
the Company nor any of its subsidiaries nor, to the Company’s
knowledge, any director, officer, employee, agent, affiliate or
other person acting on behalf of the Company or any subsidiary, has
(i) used any corporate funds for unlawful contributions, gifts,
entertainment or other unlawful expenses relating to political
activity, (ii) made any direct or indirect unlawful payment to
foreign or domestic government officials or employees, political
parties or campaigns, political party officials, or candidates for
political office from corporate funds, (iii) violated or is in
violation of any provision of the U.S. Foreign Corrupt Practices
Act of 1977, as amended, or any applicable anti-corruption laws,
rules, or regulation of any other jurisdiction in which the Company
or any subsidiary conducts business, or (iv) made any other
unlawful bribe, rebate, payoff, influence payment, kickback, or
other unlawful payment to any person.
11
(rr)
Statistical and Market Data.
Nothing has come to the attention of the Company that has caused
the Company to believe that any third-party statistical and market
related data included in the Registration Statement, the General
Disclosure Package and the Prospectus are based on or derived from
sources that are not reliable and accurate in all material
respects.
(ss)
Compliance with Money Laundering
Laws. The operations of the Company and its subsidiaries are
and have been conducted at all times in compliance with all
applicable financial recordkeeping and reporting requirements,
including those of the U.S. Bank Secrecy Act, as amended by Title
III of the Uniting and Strengthening America by Providing
Appropriate Tools Required to Intercept and Obstruct Terrorism Act
of 2001 (USA PATRIOT Act), and the applicable anti-money laundering
statutes of jurisdictions where the Company and its subsidiaries
conduct business, the rules and regulations thereunder and any
related or similar rules, regulations or guidelines, issued,
administered or enforced by any governmental agency (collectively,
the “Anti-Money Laundering
Laws”), and no action, suit or proceeding by or before
any court or governmental agency, authority or body or any
arbitrator involving the Company or any of its subsidiaries with
respect to the Anti-Money Laundering Laws is pending or, to the
knowledge of the Company, threatened.
(tt)
Compliance with
OFAC.
(A)
Neither
the Company nor any of its subsidiaries, nor any director, officer
or employee thereof, nor, to the Company’s knowledge, any
agent, affiliate, representative or other person acting on behalf
of the Company or any of its subsidiaries, is an individual or
entity (“Person”) that
is, or is owned or controlled by a Person that is: (i) the subject
of any sanctions administered or enforced by the U.S. Department of
Treasury’s Office of Foreign Assets Control
(“OFAC”), the
United Nations Security Council, the European Union
(“EU”), Her
Majesty’s Treasury, or other relevant sanctions authority
(collectively, “Sanctions”),
nor (ii) located, organized or resident in a country or territory
that is the subject of Sanctions (including, without limitation,
Cuba, Iran, North Korea, Syria and the
Crimea).
(B)
The Company will
not, directly or indirectly, use the proceeds of the offering, or
lend, contribute or otherwise make available such proceeds to any
subsidiary, joint venture partner or other Person: (i) to fund or
facilitate any activities or business of or with any Person that,
at the time of such funding or facilitation, is the subject of
Sanctions, or in any country or territory that, at the time of such
funding or facilitation, is the subject of a U.S. government
embargo; or (ii) in any other manner that will result in a
violation of Sanctions by any Person (including any Person
participating in the offering, whether as underwriter, advisor,
investor or otherwise).
(C)
For the past five
(5) years, the Company and its subsidiaries have not knowingly
engaged in, are not now knowingly engaged in, and will not engage
in, any direct or indirect dealings or transactions with any Person
that at the time of the dealing or transaction is or was the
subject of Sanctions or any country or territory that, at the time
of the dealing or transaction is or was the subject of
Sanctions.
(uu)
No Associated Persons; FINRA
Matters. Neither the Company nor any of its affiliates
(within the meaning of FINRA Rule 5121(f)(1)) directly or
indirectly controls, is controlled by, or is under common control
with, or is an associated person (within the meaning of Article I,
Section 1(ee) of the By-laws of FINRA) of, any member firm of
FINRA.
(vv)
No Acquisitions or
Dispositions. Except as are described in the Registration
Statement, the General Disclosure Package and the Prospectus, the
Company has not entered into any agreements or arrangements which
would make an acquisition or investment probable under Rule 3-05(a)
of Regulation S-X.
12
Any certificate signed by or on behalf of the Company and delivered
to the Representative or to counsel for the Underwriters shall be
deemed to be a representation and warranty by the Company to each
Underwriter as to the matters covered thereby.
On the
basis of the representations, warranties and agreements herein
contained, but subject to the terms and conditions herein set
forth, the Company agrees to sell to the Underwriters, and the
Underwriters agree, severally and not jointly, to purchase from the
Company the respective numbers of shares of Firm Stock set forth
opposite the names of the Underwriters in Schedule A hereto.
The
purchase price per share to be paid by the Underwriters to the
Company for the Stock will be $35.34 per share (the
“Purchase
Price”).
The
Company will deliver the Firm Stock to the Representative for the
respective accounts of the several Underwriters, through the
facilities of The Depository Trust Company, issued in such names
and in such denominations as the Representative may direct by
notice in writing to the Company given at or prior to 12:00 Noon,
New York time, on the second (2nd) full business day
preceding the Closing Date against payment of the aggregate
Purchase Price therefor by wire transfer in federal (same day)
funds to an account at a bank specified by the Company payable to
the order of the Company. Time shall be of the essence, and
delivery at the time and place specified pursuant to this Agreement
is a further condition of the obligations of each Underwriter
hereunder. The time and date of the delivery and closing shall be
at 10:00 A.M., New York time, on April 13, 2021, in accordance with
Rule 15c6-1 of the Exchange Act. The time and date of such payment
and delivery are herein referred to as the “Firm Closing Date.”
The Firm Closing Date and the location of delivery of, and the form
of payment for, the Firm Stock may be varied by agreement between
the Company and the Representative.
The
Underwriters may purchase all or less than all of the Optional
Stock for use solely in covering any over-allotments made by the
Underwriters in the sale and distribution of the Firm Stock. The
price per share to be paid for the Optional Stock shall be the
Purchase Price. The Company agrees to sell to the Underwriters the
number of shares of Optional Stock specified in the written notice
delivered by the Representative to the Company described below and
the Underwriters agree, severally and not jointly, to purchase such
shares of Optional Stock. Such shares of Optional Stock shall be
purchased from the Company for the account of each Underwriter in
the same proportion as the number of shares of Firm Stock set forth
opposite such Underwriter’s name on Schedule A bears to the total
number of shares of Firm Stock (subject to adjustment by the
Representative to eliminate fractions). The option granted hereby
may be exercised as to all or any part of the Optional Stock at any
time, and from time to time; provided, however, that notice of such
exercise must be delivered not more than thirty (30) days
subsequent to the date of this Agreement. No Optional Stock shall
be sold and delivered unless the Firm Stock previously has been, or
simultaneously is, sold and delivered. The right to purchase the
Optional Stock or any portion thereof may be surrendered and
terminated at any time upon notice by the Representative to the
Company.
The
option granted hereby shall be exercised by written notice being
given to the Company by the Representative setting forth the number
of shares of the Optional Stock to be purchased by the Underwriters
and the date and time for delivery of and payment for the Optional
Stock. Each date and time for delivery of and payment for the
Optional Stock (which may be the Firm Closing Date, but not
earlier) is herein called the “Option Closing
Date” and shall in no event be earlier than two (2)
business days nor later than five (5) business days after written
notice is given. The Option Closing Date and the Firm Closing Date
are herein called the “Closing
Dates.”
The
Company will deliver the Optional Stock to the Representative for
the respective accounts of the several Underwriters through the
facilities of The Depository Trust Company, issued in such names
and in such denominations as the Representative may direct by
notice in writing to the Company given at or prior to 12:00 Noon,
New York time, on the second (2nd) full business day
preceding the Option Closing Date against payment of the aggregate
Purchase Price therefor by wire transfer in federal (same day)
funds to an account at a bank acceptable to the Representative
payable to the order of the Company. Time shall be of the essence,
and delivery at the time and place specified pursuant to this
Agreement is a further condition of the obligations of each
Underwriter hereunder. The Option Closing Date and the location of
delivery of, and the form of payment for, the Optional Stock may be
varied by agreement between the Company and the
Representative.
13
The
several Underwriters propose to offer the Stock for sale upon the
terms and conditions set forth in the Prospectus.
4.
Further Agreements of the Company.
(i) The
Company agrees with the several Underwriters:
(a)
Required Filings; Amendments or
Supplements; Notice to the Representative. During the period
beginning on the date hereof and ending on the later of the Option
Closing Date or such date, as in the opinion of counsel for the
Underwriters, the Prospectus is no longer required by law to be
delivered (assuming the absence of Rule 172 under the Securities
Act), in connection with sales by an Underwriter or a dealer
(the “Prospectus
Delivery Period”), prior to
amending or supplementing the Registration Statement (including any
Rule 462(b) Registration Statement), the General Disclosure Package
or the Prospectus, the Company shall furnish to the Underwriters
for review a copy of each such proposed amendment or supplement,
and the Company shall not file any such proposed amendment or
supplement to which the Underwriters or counsel to the Underwriters
reasonably object. Subject to this
Section 4(i)(a), immediately following
execution of this Agreement, the
Company will prepare the Prospectus containing the Rule 430B
Information and other selling terms of the Stock, the plan of
distribution thereof and such other information as may be required
by the Securities Act or the Rules and Regulations or as the
Underwriters and the Company may deem appropriate, and if requested
by the Underwriters, an issuer free writing prospectus containing
the selling terms of the Stock and such other information as the
Company and the Underwriters may deem appropriate, and will file or
transmit for filing with the Commission, in accordance with Rule
424(b) or Rule 433 of the Rules and Regulations, as the case may
be, copies of the Prospectus and each issuer free writing
prospectus.
(b)
Permitted Free Writing
Prospectus. The Company represents and agrees that, unless
it obtains the prior consent of the Representative, and each
Underwriter represents and agrees that, unless it obtains the prior
consent of the Company and the Representative, it has not made and
will not make (other than a filing pursuant to Section 4(i)(a) hereof)
any offer relating to the Stock that would constitute a “free
writing prospectus” as defined in Rule 405 of the Rules and
Regulations unless the prior written consent of the Representative
has been received (each, a “Permitted Free Writing
Prospectus”); provided that the prior written
consent of the Representative hereto shall be deemed to have been
given in respect of the Issuer Free Writing Prospectuses included
in Schedule B
hereto. The Company represents that it has treated and agrees that
it will treat each Permitted Free Writing Prospectus as an Issuer
Free Writing Prospectus, comply with the requirements of Rules 164
and 433 of the Rules and Regulations applicable to any Issuer Free
Writing Prospectus, including the requirements relating to timely
filing with the Commission, legending and record keeping and will
not take any action that would result in an Underwriter or the
Company being required to file with the Commission pursuant to Rule
433(d) of the Rules and Regulations a free writing prospectus
prepared by or on behalf of such Underwriter that such Underwriter
otherwise would not have been required to file
thereunder.
(c)
Ongoing
Compliance.
(A) During the Prospectus Delivery Period, the Company will
comply with all requirements imposed upon it by the Securities Act,
as now and hereafter amended, and by the Rules and Regulations, as
from time to time in force, and by the Exchange Act so far as
necessary to permit the continuance of sales of or dealings in the
Stock as contemplated by the provisions hereof, the General
Disclosure Package and the Prospectus. If during such period any
event occurs as a result of which the Prospectus (or if the
Prospectus is not yet available to prospective purchasers, the
General Disclosure Package) would include an untrue statement of a
material fact or omit to state a material fact necessary to make
the statements therein, in the light of the circumstances then
existing, not misleading, or if during such period it is necessary
or appropriate in the opinion of the Company or its counsel or the
Underwriters or counsel to the Underwriters to amend the
Registration Statement or supplement the Prospectus (or, if the
Prospectus is not yet available to prospective purchasers, the
General Disclosure Package) to comply with the Securities Act or to
file under the Exchange Act any document which would be deemed to
be incorporated by reference in the Prospectus (or if the
Prospectus is not yet available to prospective purchasers, the
General Disclosure Package) in order to comply with the Securities
Act or the Exchange Act, the Company promptly will (x) notify
you of such untrue statement or omission, (y) amend the
Registration Statement or supplement the Prospectus (or, if the
Prospectus is not yet available to prospective purchasers, the
General Disclosure Package) or file such document (at the expense
of the Company) so as to correct such statement or omission or
effect such compliance, and (z) notify you when any amendment
to the Registration Statement is filed or becomes effective or when
any supplement to the Prospectus (or, if the Prospectus is not yet
available to prospective purchasers, the General Disclosure
Package) is filed.
14
(B)
During the Prospectus Delivery Period, if at any time following
issuance of an Issuer Free Writing Prospectus there occurred or
occurs an event or development as a result of which such Issuer
Free Writing Prospectus conflicted or would conflict with the
information contained in the Registration Statement, the
Preliminary Prospectus or the Prospectus or included or would
include, when taken together with the General Disclosure Package,
an untrue statement of a material fact or omitted or would omit to
state a material fact necessary in order to make the statements
therein, in the light of the circumstances prevailing at that
subsequent time, not misleading, the Company (x) has promptly
notified or promptly will notify the Underwriters of such conflict,
untrue statement or omission, (y) has promptly amended or will
promptly amend or supplement, at its own expense, such issuer free
writing prospectus to eliminate or correct such conflict, untrue
statement or omission, and (z) has notified or promptly will
notify you when such amendment or supplement was or is filed with
the Commission where so required to be filed.
(d)
Delivery of Registration
Statement. To the extent not available on the
Commission’s Electronic Data Gathering, Analysis and
Retrieval system or any successor system (“▇▇▇▇▇”), upon
the request of the Representative, to furnish promptly to the
Representative and to counsel for the Underwriters a signed copy of
the Registration Statement as originally filed with the Commission,
and of each amendment thereto filed with the Commission, including
all consents and exhibits filed therewith.
(e)
Delivery of Copies. Upon
request of the Representative, to the extent not available on
▇▇▇▇▇, to deliver promptly to the Representative in New York City
such number of the following documents as the Representative shall
reasonably request: (i) conformed copies of the Registration
Statement as originally filed with the Commission (in each case
excluding exhibits), (ii) each Preliminary Prospectus, (iii) any
Issuer Free Writing Prospectus, (iv) the Prospectus (the delivery
of the documents referred to in clauses (i), (ii), (iii) and (iv)
of this paragraph (e) to be made not later than 10:00 A.M., New
York time, on the business day following the execution and delivery
of this Agreement), (v) conformed copies of any amendment to the
Registration Statement (excluding exhibits), (vi) any amendment or
supplement to the General Disclosure Package or the Prospectus (the
delivery of the documents referred to in clauses (v) and (vi) of
this paragraph (e) to be made not later than 10:00 A.M., New York
City time, on the business day following the date of such amendment
or supplement), and (vii) any document incorporated by reference in
the General Disclosure Package or the Prospectus (excluding
exhibits thereto) (the delivery of the documents referred to in
clause (vi) of this paragraph (e) to be made not later than 10:00
A.M., New York City time, on the business day following the date of
such document).
(f)
Earnings Statement. To make
generally available (which may be satisfied by filing with the
Commission’s ▇▇▇▇▇ system) to its stockholders as soon as
practicable, but in any event not later than fifteen (15) months
after the effective date of the Registration Statement (as defined
in Rule 158(c) of the Rules and Regulations), an earnings statement
of the Company and its subsidiaries (which need not be audited)
complying with Section 11(a) of the Securities Act (including, at
the option of the Company, Rule 158).
(g)
Blue Sky Compliance. To take
promptly from time to time such actions as the Representative may
reasonably request to qualify the Stock for offering and sale under
the securities or Blue Sky laws of such jurisdictions (domestic or
foreign) as the Representative may reasonably designate and to
continue such qualifications in effect, and to comply with such
laws, for so long as required to permit the offer and sale of Stock
in such jurisdictions; provided that the Company and
its subsidiaries shall not be obligated to (i) qualify as foreign
corporations in any jurisdiction in which they are not so
qualified, (ii) file a general consent to service of process in any
jurisdiction or (iii) subject itself to taxation in any such
jurisdiction if it is not otherwise so subject.
15
(h)
Reports. Upon request, during
the period of two (2) years from the date hereof, to deliver to
each of the Underwriters, (i) as soon as they are available, copies
of all reports or other communications (financial or other)
furnished to stockholders, and (ii) as soon as they are available,
copies of any reports and financial statements furnished or filed
with the Commission or any national securities exchange on which
the Common Stock is listed. However, so long as the Company is
subject to the reporting requirements of either Section 13 or
Section 15(d) of the Exchange Act and is timely filing reports with
the Commission on ▇▇▇▇▇, it is not required to furnish such reports
or statements to the Underwriters.
(i)
Lock-Up. During the period
commencing on and including the date hereof and ending on and
including the ninetieth (90th) day following the date of
this Agreement (the “Lock-Up
Period”), the Company will not, without the prior
written consent of the Representative, directly or indirectly
offer, sell (including, without limitation, any short sale),
assign, transfer, pledge, contract to sell, establish an open
“put equivalent position” within the meaning of Rule
16a-1(h) under the Exchange Act, or otherwise dispose of, or
announce the offering of, or submit or file any registration
statement under the Securities Act in respect of, any Common Stock,
options, rights or warrants to acquire Common Stock or securities
exchangeable or exercisable for or convertible into Common Stock
(other than is contemplated by this Agreement with respect to the
Stock) or publicly announce any intention to do any of the
foregoing; provided, however, that the Company may:
(i) issue Common Stock and options to purchase Common Stock, shares
of Common Stock underlying options granted and other securities,
each pursuant to any director or employee stock option plan, stock
ownership plan or dividend reinvestment plan of the Company in
effect on the date hereof and described in the General Disclosure
Package; (ii) issue Common Stock pursuant to the conversion of
securities or the exercise of warrants, which securities or
warrants are outstanding on the date hereof and described in the
General Disclosure Package; (iii) sell or issue, or enter into an
agreement to sell or issue, Common Stock or securities convertible
into or exercisable or exchangeable for Common Stock in connection
with (1) mergers, (2) acquisition of securities, businesses,
property or other assets, (3) joint ventures or (4) strategic
alliances; provided
that each recipient of Common Stock or securities convertible into
or exercisable for Common Stock pursuant to this clause (iii) shall
execute a “lock-up agreement” substantially in the form
of Exhibit I
hereto; (iv) sell or issue Common Stock or securities convertible
into or exercisable or exchangeable for Common Stock in connection
with the Transaction, including in connection with financing the
Transaction; or (v) except in connection with the Transaction,
adopt a new equity incentive plan, and file a registration
statement on Form S-8 under the Securities Act to register the
offer and sale of securities to be issued pursuant to such new
equity incentive plan, and issue securities pursuant to such new
equity incentive plan (including, without limitation, the issuance
of shares of Common Stock upon the exercise of options or other
securities issued pursuant to such new equity incentive plan),
provided that such
new equity incentive plan satisfies the transaction requirements of
General Instruction A.1 of Form S-8 under the Securities Act. The
Company will cause each person and entity listed in Schedule D to furnish to the
Representative, prior to the Closing Date, a “lock-up”
agreement, substantially in the form of Exhibit I hereto.
(j)
Delivery of SEC Correspondence.
During the Prospectus Delivery Period, to supply the Underwriters
with copies of all correspondence to and from, and all documents
issued to and by, the Commission in connection with the
registration of the Stock under the Securities Act or any of the
Registration Statement, any Preliminary Prospectus or the
Prospectus, or any amendment or supplement thereto or document
incorporated by reference therein.
16
(k)
Press Releases. Prior to the
Closing Date, not to issue any press release or other communication
directly or indirectly or hold any press conference with respect to
the Company, its condition, financial or otherwise, or earnings,
business affairs or business prospects (except for routine oral
marketing communications in the ordinary course of business and
consistent with the past practices of the Company and of which the
Representative is notified), without the prior consent of the
Representative (which consent shall not be unreasonably withheld),
unless in the judgment of the Company and its counsel, and after
notification to the Representative, such press release or
communication is required by law or applicable Exchange
rules.
(l)
Compliance with Regulation M.
Until the Underwriters shall have notified the Company of the
completion of the resale of the Stock, that the Company will not,
and will use its reasonable best efforts to cause its affiliated
purchasers (as defined in Regulation M under the Exchange Act) not
to, either alone or with one or more other persons, bid for or
purchase, for any account in which it or any of its affiliated
purchasers has a beneficial interest, any Stock, or attempt to
induce any person to purchase any Stock; and not to, and to use its
reasonable best efforts to cause its affiliated purchasers not to,
make bids or purchase for the purpose of creating actual, or
apparent, active trading in or of raising the price of the
Stock.
(m)
Registrar and Transfer Agent.
To maintain, at its expense, a registrar and transfer agent for the
Stock.
(n)
Use of Proceeds. To apply the
net proceeds from the sale of the Stock as set forth in the
Registration Statement, the General Disclosure Package and the
Prospectus under the heading “Use of Proceeds,” and
except as disclosed in the General Disclosure Package, the Company
does not intend to use any of the proceeds from the sale of the
Stock hereunder to repay any outstanding debt owed to any affiliate
of any Underwriter.
(o)
Exchange Listing. To use its
reasonable best efforts to list, subject to notice of issuance, the
Stock on the Exchange.
(p)
Performance of Covenants and
Satisfaction of Conditions. To use its reasonable best
efforts to do and perform all things required to be done or
performed under this Agreement by the Company prior to each Closing
Date and to satisfy all conditions precedent to the delivery of the
Firm Stock and the Optional Stock.
(a)
The Company agrees
to pay, or reimburse if paid by any Underwriter, whether or not the
transactions contemplated hereby are consummated or this Agreement
is terminated: (a) the costs incident to the authorization,
issuance, sale, preparation and delivery of the Stock and any taxes
payable in that connection; (b) the costs incident to the
preparation, printing and distribution of the Registration
Statement, the Base Prospectus, any Preliminary Prospectus, any
Issuer Free Writing Prospectus, the General Disclosure Package, the
Prospectus, any amendments, supplements and exhibits thereto or any
document incorporated by reference therein and the costs of
printing, reproducing and distributing, the “Agreement Among
Underwriters” between the Representative and the
Underwriters, the Master Selected Dealers’ Agreement, the
Underwriters’ Questionnaire, this Agreement and any closing
documents by mail, telex or other means of communications; (c) the
reasonable and documented fees and expenses (including related fees
and expenses of counsel for the Underwriters) incurred in
connection with securing any required review by FINRA of the terms
of the sale of the Stock and any filings made with FINRA; (d) any
applicable Exchange listing or other fees; (e) the reasonable fees
and expenses (including related fees and expenses of counsel to the
Underwriters) of qualifying the Stock under the securities laws of
the several jurisdictions as provided in Section 4(i)(g) and of
preparing, printing and distributing wrappers, Blue Sky Memoranda
and Legal Investment Surveys (provided that the amount
payable by the Company with respect to fees and disbursements of
counsel to the Underwriters pursuant to subsections (c) and (e)
shall not exceed $10,000 in the aggregate); (f) all fees and
expenses of the registrar and transfer agent of the Stock; (g) the
costs and expenses relating to investor presentations on any
“road show” undertaken in connection with the marketing
of the offering of the Stock, including, without limitation,
expenses associated with the preparation or dissemination of any
electronic road show, expenses associated with the production of
road show slides and graphics, fees and expenses of any consultants
engaged in connection with the road show presentations with the
prior approval of the Company; and (h) all other costs and expenses
incident to the offering of the Stock or the performance of the
obligations of the Company under this Agreement (including, without
limitation, the fees and expenses of the Company’s counsel
and the Company’s independent accountants); provided that, except to the
extent otherwise provided in this Section 5 and in Section 10, the Underwriters shall pay
their own costs and expenses, including the fees and expenses of
their counsel not contemplated herein, any transfer taxes on the
resale of any Stock by them and the expenses of advertising any
offering of the Stock made by the Underwriters.
17
(b)
In addition to the
expenses set forth in Section 5(a) above, the Company
agrees to reimburse the Representative for its reasonable
out-of-pocket expenses in connection with the performance of its
activities under this Agreement, including fees and expenses of the
Underwriters’ outside legal counsel not to exceed
$25,000.
Conditions of
Underwriters’ Obligations. The respective obligations
of the several Underwriters hereunder are subject to the accuracy,
when made and as of the Applicable Time and on such Closing Date,
of the representations and warranties of the Company contained
herein, to the accuracy of the statements of the Company made in
any certificates pursuant to the provisions hereof, to the
performance by the Company of its obligations hereunder, and to
each of the following additional terms and conditions:
(a)
Registration Compliance; No Stop
Orders. The Registration Statement shall remain effective,
and no stop order suspending the effectiveness of the Registration
Statement or any part thereof, preventing or suspending the use of
any Base Prospectus, any Preliminary Prospectus, the Prospectus or
any Permitted Free Writing Prospectus or any part thereof shall
have been issued and no proceedings for that purpose or pursuant to
Section 8A under the Securities Act shall have been initiated or,
to the Company’s knowledge, threatened by the Commission, and
all requests for additional information on the part of the
Commission (to be included or incorporated by reference in the
Registration Statement or the Prospectus or otherwise) shall have
been complied with to the reasonable satisfaction of the
Representative; the Rule 462(b) Registration Statement, if any,
each Issuer Free Writing Prospectus and the Prospectus shall have
been filed with, the Commission within the applicable time period
prescribed for such filing by, and in compliance with, the Rules
and Regulations and in accordance with Section 4(i)(a), and the Rule
462(b) Registration Statement, if any, shall have become effective
immediately upon its filing with the Commission; and FINRA shall
have raised no unresolved objection to the fairness and
reasonableness of the terms of this Agreement or the transactions
contemplated hereby.
(b)
No Material Misstatements. None
of the Underwriters shall have discovered and disclosed to the
Company on or prior to such Closing Date that the Registration
Statement or any amendment or supplement thereto contains an untrue
statement of a fact which, in the opinion of counsel for the
Underwriters, is material or omits to state any fact which, in the
opinion of such counsel, is material and is required to be stated
therein or is necessary to make the statements therein not
misleading, or that the General Disclosure Package, any Issuer Free
Writing Prospectus or the Prospectus or any amendment or supplement
thereto contains an untrue statement of fact which, in the opinion
of such counsel, is material or omits to state any fact which, in
the opinion of such counsel, is material and is necessary in order
to make the statements, in the light of the circumstances in which
they were made, not misleading.
(c)
Corporate Proceedings. All
corporate proceedings incident to the authorization, form and
validity of each of this Agreement, the Stock, the Registration
Statement, the General Disclosure Package, each Issuer Free Writing
Prospectus and the Prospectus and the transactions contemplated
hereby shall be reasonably satisfactory in all material respects to
counsel for the Underwriters, and the Company shall have furnished
to such counsel all documents and information that they may
reasonably request to enable them to pass upon such
matters.
(d)
Opinion and 10b-5 Statement of Counsel
for the Company.
Akerman LLP shall have furnished to the Representative such
counsel’s written opinion and 10b-5 Statement, as counsel to
the Company, addressed to the Underwriters and dated such Closing
Date, in form previously agreed to with the Representative. Also,
▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., Nevada counsel to the Company, shall
have furnished to the Representative such counsel’s written
opinion, as Nevada counsel to the Company, addressed to the
Underwriters and dated such Closing Date, in form previously agreed
to with the Representative.
18
(e)
Opinion and 10b-5 Statement of Counsel
for the Underwriters. The Representative shall have received
from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Scarborough LLP, counsel for the
Underwriters, such opinion or opinions and 10b-5 Statement, dated
such Closing Date, with respect to such matters as the Underwriters
may reasonably require, and the Company shall have furnished to
such counsel such documents as they may reasonably request for
enabling them to pass upon such matters.
(f)
Comfort Letter. At the time of
the execution of this Agreement, the Representative shall have
received from each of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, with respect to the
Company and its subsidiaries, and ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, with
respect to RideNow, a letter, addressed to the Underwriters,
executed and dated such date, in form and substance satisfactory to
the Representative (i) confirming that, in the case of ▇▇▇▇▇
▇▇▇▇▇▇▇▇ LLP, it is an independent registered accounting firm with
respect to the Company and its consolidated subsidiaries within the
meaning of the Securities Act and the Rules and Regulations and
PCAOB, and in the case of ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, it is an
independent certified public accounting firm with respect to
RideNow under Rule 101 of the AICPA’s Code of Professional
Conduct and its interpretations and rulings and (ii) stating the
conclusions and findings of the firm, of the type ordinarily
included in accountants’ “comfort letters” to
underwriters, with respect to the financial statements and certain
financial information contained or incorporated by reference in the
Registration Statement, the General Disclosure Package and the
Prospectus.
(g)
Bring Down Comfort. On the
effective date of any post-effective amendment to the Registration
Statement and on such Closing Date, the Representative shall have
received letters (the “bring-down
letters”) from ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP with respect to the
Company and its subsidiaries, and from ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP
with respect to RideNow, each addressed to the Underwriters and
dated such Closing Date confirming, as of the date of the
bring-down letter (or, with respect to matters involving changes or
developments since the respective dates as of which specified
financial information is given in the General Disclosure Package
and the Prospectus, as the case may be, as of a date not more than
three (3) business days prior to the date of the bring-down
letter), the conclusions and findings of the firm, of the type
ordinarily included in accountants’ “comfort
letters” to underwriters, with respect to the financial
information and other matters covered by its letter delivered to
the Representative concurrently with the execution of this
Agreement pursuant to paragraph (f) of this Section 6.
(h)
Officer’s Certificate.
The Company shall have furnished to the Representative a
certificate, dated such Closing Date, of its Chief Executive
Officer or President and its Chief Financial Officer stating in
their respective capacities as officers of the Company on behalf of
the Company that (i) no stop order suspending the effectiveness of
the Registration Statement (including, for avoidance of doubt, any
Rule 462(b) Registration Statement), or any post-effective
amendment thereto, shall be in effect and no proceedings for such
purpose shall have been instituted or, to their knowledge,
threatened by the Commission, (ii) for the period from and
including the date of this Agreement through and including such
Closing Date, there has not occurred any Material Adverse Effect,
(iii) to their knowledge, as of such Closing Date, the
representations and warranties of the Company in this Agreement are
true and correct (except to the extent that such representations
and warranties speak as of another date, in which case such
representations and warranties shall be true and correct as of such
other date), and the Company has complied with all agreements and
satisfied all conditions on its part to be performed or satisfied
hereunder at or prior to such Closing Date, and (iv) there has not
been, subsequent to the date of the most recent audited financial
statements included or incorporated by reference in the General
Disclosure Package, any Material Adverse Effect, or any change or
development that, singularly or in the aggregate, would reasonably
be expected to have a Material Adverse Effect, except as set forth
in the General Disclosure Package and the Prospectus.
19
(i)
No Material Adverse Effect.
Since the date of the latest audited financial statements included
in the General Disclosure Package or incorporated by reference in
the General Disclosure Package as of the date hereof, (i) neither
the Company nor any of its subsidiaries shall have sustained any
loss or interference with its business from fire, explosion, flood
or other calamity, whether or not covered by insurance, or from any
labor dispute or court or governmental action, order or decree,
otherwise than as set forth in the General Disclosure Package, and
(ii) there shall not have been any change in the capital stock or
long-term debt of the Company or any of its subsidiaries, or any
change, or any development involving a prospective change, in or
affecting the business, properties, management, financial position,
stockholders’ equity or results of operations of the Company
and its subsidiaries, otherwise than as set forth in the General
Disclosure Package, the effect of which, in any such case described
in clause (i) or (ii) of this paragraph (j), is, in the reasonable
judgment of the Representative, so material and adverse as to make
it impracticable or inadvisable to proceed with the sale or
delivery of the Stock on the terms and in the manner contemplated
in the General Disclosure Package.
(j)
No Legal Impediment to
Issuance. No action shall have been taken and no law,
statute, rule, regulation or order shall have been enacted, adopted
or issued by any governmental or regulatory agency or body which
would prevent the issuance or sale of the Stock; and no injunction,
restraining order or order of any other nature by any federal or
state court of competent jurisdiction shall have been issued which
would prevent the issuance or sale of the Stock or materially and
adversely affect or potentially materially and adversely affect the
business or operations of the Company.
(k)
Market Conditions. Subsequent
to the execution and delivery of this Agreement there shall not
have occurred any of the following: (i) trading in any of the
Company’s securities shall have been suspended or materially
limited by the Commission or the Exchange, or trading in securities
generally on the New York Stock Exchange, Nasdaq Global Select
Market, Nasdaq Global Market, Nasdaq Capital Market or the NYSE
American or in the over-the-counter market, or trading in any
securities of the Company on any exchange or in the
over-the-counter market, shall have been suspended or materially
limited, or minimum or maximum prices or maximum range for prices
shall have been established on any such exchange or such market by
the Commission, by such exchange or market or by any other
regulatory body or governmental authority having jurisdiction, (ii)
a banking moratorium shall have been declared by Federal or state
authorities or a material disruption has occurred in commercial
banking or securities settlement or clearance services in the
United States, (iii) the United States shall have become engaged in
hostilities, or the subject of an act of terrorism, or there shall
have been an outbreak of or escalation in hostilities involving the
United States, or there shall have been a declaration of a national
emergency or war by the United States or (iv) there shall have
occurred such a material adverse change in general economic,
political or financial conditions (or the effect of international
conditions on the financial markets in the United States shall be
such) as to make it, in the reasonable judgment of the
Representative, impracticable or inadvisable to proceed with the
sale or delivery of the Stock on the terms and in the manner
contemplated in the General Disclosure Package and the
Prospectus.
(l)
Exchange Listing. The Company
shall have filed a Listing of Additional Shares with the Exchange,
and the shares of Stock to be delivered on the Closing Date or the
Option Closing Date (as applicable), will be approved for listing
on the Exchange, subject to official notice of
issuance.
(m)
Good Standing. The
Representative shall have received on and as of such Closing Date
satisfactory evidence of the good standing of the Company and its
subsidiaries in their respective jurisdictions of organization and
their good standing as foreign entities in such other jurisdictions
as the Representative may reasonably request, in each case in
writing or any standard form of telecommunication from the
appropriate governmental authorities of such
jurisdictions.
20
(n)
Lock Up Agreements. The
Representative shall have received the written agreements,
substantially in the form of Exhibit I hereto, of the
officers and directors of the Company listed in Schedule D to this
Agreement.
(o)
Secretary’s Certificate.
The Company shall have furnished to the Representative a
Secretary’s Certificate of the Company, in form and substance
reasonably satisfactory to counsel for the Underwriters and
customary for the type of offering contemplated by this
Agreement.
(p)
Chief Financial Officer
Certificate. The Company shall have furnished to the
Representative a certificate, dated such Closing Date, of its Chief
Financial Officer, in form and substance reasonably satisfactory to
the Representative.
(q)
RideNow Agreement. Since the
date of this Agreement there shall have been no material amendment
or waiver to the RideNow Agreement or material adverse change to
the ability of the parties thereto to consummate the
Transaction.
(r)
Additional Documents. On or
prior to such Closing Date, the Company shall have furnished to the
Representative such further certificates and documents as the
Representative may reasonably request.
All
opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance
with the provisions hereof only if they are in form and substance
reasonably satisfactory to counsel for the
Underwriters.
each
Underwriter, its affiliates, directors, officers, managers,
members, employees, representatives and agents and each person, if
any, who controls any Underwriter within the meaning of Section 15
of the Securities Act or Section 20 of the Exchange Act
(collectively the “Underwriter Indemnified
Parties,” and each an “Underwriter Indemnified
Party”) against any loss, claim, damage, expense or
liability whatsoever (or any action, investigation or proceeding in
respect thereof), joint or several, to which such Underwriter
Indemnified Party may become subject, under the Securities Act or
otherwise, insofar as such loss, claim, damage, expense, liability,
action, investigation or proceeding arises out of or is based upon
(A) any untrue statement or alleged untrue statement of a material
fact contained in any Preliminary Prospectus, any Issuer Free
Writing Prospectus, any “issuer information” filed or
required to be filed pursuant to Rule 433(d) of the Rules and
Regulations, the Registration Statement, the Prospectus, or in any
amendment or supplement thereto or document incorporated by
reference therein, or in any materials
or information provided to investors by, or with the approval of,
the Company in connection with the marketing of the offering of the
Stock, including any roadshow or investor presentations made to
investors by the Company (whether in person or electronically)
(“Marketing
Materials”) or (B)
the omission or alleged omission to state in any Preliminary
Prospectus, any Issuer Free Writing Prospectus, any “issuer
information” filed or required to be filed pursuant to Rule
433(d) of the Rules and Regulations, the Registration Statement or
the Prospectus, or in any amendment or supplement thereto or
document incorporated by reference therein, or in any Marketing
Materials, a material fact required to be stated therein or
necessary to make the statements therein, in the light of the
circumstances in which they were made, not misleading, and shall
reimburse each Underwriter Indemnified Party promptly upon demand
for any legal fees or other expenses reasonably incurred by that
Underwriter Indemnified Party in connection with investigating, or
preparing to defend, or defending against, or appearing as a third
party witness in respect of, or otherwise incurred in connection
with, any such loss, claim, damage, expense, liability, action,
investigation or proceeding, as such fees and expenses are
incurred; provided,
however, that the
Company shall not be liable in any such case to the extent that any
such loss, claim, damage, expense or liability arises out of or is
based upon an untrue statement or alleged untrue statement in, or
omission or alleged omission from any Preliminary Prospectus, the
Registration Statement or the Prospectus, or any such amendment or
supplement thereto, any Issuer Free Writing Prospectus or any
Marketing Materials made in reliance upon and in conformity with
written information furnished to the Company through the
Representative by or on behalf of any Underwriter specifically for
use therein, which information the parties hereto agree is limited
to the Underwriters’ Information.
21
The
indemnity agreement in this Section 7(a) is not exclusive and is in
addition to each other liability which the Company might have under
this Agreement or otherwise, and shall not limit any rights or
remedies which may otherwise be available under this Agreement, at
law or in equity to any Underwriter Indemnified Party.
Indemnification of Company by the
Underwriters. Each Underwriter, severally and not jointly,
shall indemnify and hold harmless the Company and its directors,
its officers who signed the Registration Statement and each person,
if any, who controls the Company within the meaning of Section 15
of the Securities Act or Section 20 of the Exchange Act
(collectively the “Company Indemnified
Parties” and each a “Company Indemnified
Party”) against any loss, claim, damage, expense or
liability whatsoever (or any action, investigation or proceeding in
respect thereof), joint or several, to which such Company
Indemnified Party may become subject, under the Securities Act or
otherwise, insofar as such loss, claim, damage, expense, liability,
action, investigation or proceeding arises out of or is based upon
(i) any untrue statement or alleged untrue statement of a material
fact contained in any Preliminary Prospectus, any Issuer Free
Writing Prospectus, any “issuer information” filed or
required to be filed pursuant to Rule 433(d) of the Rules and
Regulations, the Registration Statement or the Prospectus, or in
any amendment or supplement thereto or document incorporated by
reference therein, or (ii) the omission or alleged omission to
state in any Preliminary Prospectus, any Issuer Free Writing
Prospectus, any “issuer information” filed or required
to be filed pursuant to Rule 433(d) of the Rules and Regulations,
the Registration Statement or the Prospectus, or in any amendment
or supplement thereto or document incorporated by reference
therein, a material fact required to be stated therein or necessary
to make the statements therein, in the light of the circumstances
in which they were made, not misleading, but in each case only to
the extent that the untrue statement or alleged untrue statement or
omission or alleged omission was made in reliance upon and in
conformity with written information furnished to the Company
through the Representative by or on behalf of that Underwriter
specifically for use therein, which information the parties hereto
agree is limited to the Underwriters’ Information, and shall
reimburse the Company Indemnified Parties for any legal or other
expenses reasonably incurred by such party in connection with
investigating or preparing to defend or defending against or
appearing as third party witness in connection with any such loss,
claim, damage, liability, action, investigation or proceeding, as
such fees and expenses are incurred. This indemnity agreement is
not exclusive and will be in addition to any liability which the
Underwriters might otherwise have and shall not limit any rights or
remedies which may otherwise be available under this Agreement, at
law or in equity to the Company Indemnified Parties.
22
(c)
Promptly after
receipt by an indemnified party under this Section 7 of notice of the
commencement of any action, the indemnified party shall, if a claim
in respect thereof is to be made against an indemnifying party
under this Section
7, notify such
indemnifying party in writing of the commencement of that action;
provided,
however, that the failure to notify the
indemnifying party shall not relieve it from any liability which it
may have under this Section 7 except to the extent
it has been materially prejudiced by such failure; and,
provided,
further, that the failure to notify an
indemnifying party shall not relieve it from any liability which it
may have to an indemnified party otherwise than under this
Section 7. If any
such action shall be brought against an indemnified party, and it
shall notify the indemnifying party thereof, the indemnifying party
shall be entitled to participate therein and, to the extent that it
wishes, jointly with any other similarly notified indemnifying
party, to assume the defense of such action with counsel reasonably
satisfactory to the indemnified party (which counsel shall not,
except with the written consent of the indemnified party, be
counsel to the indemnifying party). After notice from the
indemnifying party to the indemnified party of its election to
assume the defense of such action, except as provided herein, the
indemnifying party shall not be liable to the indemnified party
under Section 7 for
any legal or other expenses subsequently incurred by the
indemnified party in connection with the defense of such action
other than reasonable costs of investigation; provided, however, that any indemnified party shall have
the right to employ separate counsel in any such action and to
participate in the defense of such action but the fees and expenses
of such counsel (other than reasonable costs of investigation)
shall be at the expense of such indemnified party unless (i) the
employment thereof has been specifically authorized in writing by
the Company in the case of a claim for indemnification under
Section
7(a) or the
Representative in the case of a claim for indemnification under
Section
7(b), (ii)
such indemnified party shall have been advised by its counsel that
there may be one or more legal defenses available to it which are
different from or additional to those available to the indemnifying
party, (iii) the indemnifying party has failed to assume the
defense of such action and employ counsel reasonably satisfactory
to the indemnified party within a reasonable period of time after
notice of the commencement of the action or the indemnifying party
does not diligently defend the action after assumption of the
defense, in which case, if such indemnified party notifies the
indemnifying party in writing that it elects to employ separate
counsel at the expense of the indemnifying party, the indemnifying
party shall not have the right to assume the defense of (or, in the
case of a failure to diligently defend the action after assumption
of the defense, to continue to defend) such action on behalf of
such indemnified party and the indemnifying party shall be
responsible for legal or other expenses subsequently incurred by
such indemnified party in connection with the defense of such
action; provided,
however, that the
indemnifying party shall not, in connection with any one such
action or separate but substantially similar or related actions in
the same jurisdiction arising out of the same general allegations
or circumstances, be liable for the reasonable fees and expenses of
more than one separate firm of attorneys at any time for all such
indemnified parties (in addition to any local counsel), which firm
shall be designated in writing by the Representative if the
indemnified parties under this Section 7 consist of any
Underwriter Indemnified Party or by the Company if the indemnified
parties under this Section 7 consist of any
Company Indemnified Parties. Subject to this Section 7(c), the amount payable by an
indemnifying party under Section 7 shall include, but
not be limited to, (x) reasonable legal fees and expenses of
counsel to the indemnified party and any other expenses in
investigating, or preparing to defend or defending against, or
appearing as a third party witness in respect of, or otherwise
incurred in connection with, any action, investigation, proceeding
or claim, and (y) all amounts paid in settlement of any of the
foregoing. No indemnifying party shall, without the prior written
consent of the indemnified parties (which consent shall not be
unreasonably withheld or delayed), settle or compromise or consent
to the entry of judgment with respect to any pending or threatened
action or any claim whatsoever, in respect of which indemnification
or contribution could be sought under this Section 7 (whether or not the
indemnified parties are actual or potential parties thereto),
unless such settlement, compromise or consent (i) includes an
unconditional release of each indemnified party in form and
substance reasonably satisfactory to such indemnified party from
all liability arising out of such action or claim and (ii) does not
include a statement as to or an admission of fault, culpability or
a failure to act by or on behalf of any indemnified party. Subject
to the provisions of the following sentence, no indemnifying party
shall be liable for settlement of any pending or threatened action
or any claim whatsoever that is effected without its written
consent (which consent shall not be unreasonably withheld or
delayed), but if settled with its written consent, if its consent
has been unreasonably withheld or delayed or if there be a judgment
for the plaintiff in any such matter, the indemnifying party agrees
to indemnify and hold harmless any indemnified party from and
against any loss or liability by reason of such settlement or
judgment. In addition, if at any time an indemnified party shall
have requested that an indemnifying party reimburse the indemnified
party for fees and expenses of counsel, such indemnifying party
agrees that it shall be liable for any settlement of the nature
contemplated by Section
7(a) or
7(b) effected
without its written consent if (i) such settlement is entered into
more than forty-five (45) days after receipt by such indemnifying
party of the request for reimbursement, (ii) such indemnifying
party shall have received notice of the terms of such settlement at
least thirty (30) days prior to such settlement being entered into
and (iii) such indemnifying party shall not have reimbursed
such indemnified party in accordance with such request prior to the
date of such settlement.
23
(d)
If the
indemnification provided for in this Section 7 is unavailable or
insufficient to hold harmless an indemnified party under
Section
7(a) or
7(b), then each indemnifying
party shall, in lieu of indemnifying such indemnified party,
contribute to the amount paid, payable or otherwise incurred by
such indemnified party as a result of such loss, claim, damage,
expense or liability (or any action, investigation or proceeding in
respect thereof), as incurred, (i) in such proportion as shall be
appropriate to reflect the relative benefits received by the
Company on the one hand and the Underwriters on the other from the
offering of the Stock, or (ii) if the allocation provided by clause
(i) of this Section
7(d) is not
permitted by applicable law, in such proportion as is appropriate
to reflect not only the relative benefits referred to in clause (i)
of this Section
7(d) but
also the relative fault of the Company, on the one hand and the
Underwriters on the other with respect to the statements,
omissions, acts or failures to act which resulted in such loss,
claim, damage, expense or liability (or any action, investigation
or proceeding in respect thereof) as well as any other relevant
equitable considerations. The relative benefits received by the
Company, on the one hand and the Underwriters on the other with
respect to such offering shall be deemed to be in the same
proportion as the total net proceeds from the offering of the Stock
purchased under this Agreement (before deducting expenses) received
by the Company, bear to the total underwriting discounts and
commissions received by the Underwriters with respect to the Stock
purchased under this Agreement, in each case as set forth in the
table on the cover page of the Prospectus. The relative fault of
the Company on the one hand and the Underwriters on the other shall
be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to
information supplied by the Company, on the one hand or the
Underwriters on the other, the intent of the parties and their
relative knowledge, access to information and opportunity to
correct or prevent such untrue statement, omission, act or failure
to act; provided
that the parties hereto agree that the written information
furnished to the Company through the Representative by or on behalf
of the Underwriters for use in the Preliminary Prospectus, the
Registration Statement or the Prospectus, or in any amendment or
supplement thereto or document incorporated by reference therein,
consists solely of the Underwriters’
Information.
(e)
The Company and the
Underwriters agree that it would not be just and equitable if
contributions pursuant to Section 7(d) above were to be
determined by pro rata allocation or by any other method of
allocation which does not take into account the equitable
considerations referred to Section 7(d) above. The amount
paid or payable by an indemnified party as a result of the loss,
claim, damage, expense, liability, action, investigation or
proceeding referred to in Section 7(d) above shall be
deemed to include, subject to the limitations set forth above, any
legal or other expenses reasonably incurred by such indemnified
party in connection with investigating, preparing to defend or
defending against or appearing as a third party witness in respect
of, or otherwise incurred in connection with, any such loss, claim,
damage, expense, liability, action, investigation or proceeding.
Notwithstanding the provisions of this Section 7, no Underwriter shall
be required to contribute any amount in excess of the amount by
which the total underwriting discounts and commissions received by
such Underwriter with respect to the offering of the Stock exceeds
the amount of any damages which the Underwriter has otherwise paid
or become liable to pay by reason of any untrue or alleged untrue
statement, omission or alleged omission, act or alleged act or
failure to act or alleged failure to act. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f)
of the Securities Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. The
Underwriters’ obligations to contribute as provided in this
Section 7 are
several in proportion to their respective underwriting obligations
and not joint.
8.
Termination.
This Agreement may be terminated by
the Representative by notice to the Company (a) at any time prior
to the Closing Date or the Option Closing Date (if different from
the Closing Date and then only as to the Optional Stock) if, prior
to the applicable date, any of the events described in
Section
6(i), 6(j)
or 6(k)
shall have occurred, or (b) as
provided in Section
10 of this
Agreement.
24
9.
Reserved.
Substitution of
Underwriters. If any Underwriter or Underwriters shall
default in its or their obligations to purchase shares of Stock
hereunder on any Closing Date and the aggregate number of shares
which such defaulting Underwriter or Underwriters agreed but failed
to purchase does not exceed ten percent (10%) of the total number
of shares to be purchased by all Underwriters on such Closing Date,
the other Underwriters shall be obligated severally, in proportion
to their respective commitments hereunder, to purchase the shares
which such defaulting Underwriter or Underwriters agreed but failed
to purchase on such Closing Date. If any Underwriter or
Underwriters shall so default and the aggregate number of shares
with respect to which such default or defaults occur is more than
ten percent (10%) of the total number of shares to be purchased by
all Underwriters on such Closing Date and arrangements satisfactory
to the Representative and the Company for the purchase of such
shares by other persons are not made within forty-eight (48) hours
after such default, this Agreement shall terminate.
If the
remaining Underwriters or substituted Underwriters are required
hereby or agree to take up all or part of the shares of Stock of a
defaulting Underwriter or Underwriters on such Closing Date as
provided in this Section 10, (i) the Company shall have
the right to postpone such Closing Date for a period of not more
than five (5) full business days in order that the Company may
effect whatever changes may thereby be made necessary in the
Registration Statement or the Prospectus, or in any other documents
or arrangements, and the Company agrees promptly to file any
amendments to the Registration Statement or supplements to the
Prospectus which may thereby be made necessary, and (ii) the
respective numbers of shares to be purchased by the remaining
Underwriters or substituted Underwriters shall be taken as the
basis of their underwriting obligation for all purposes of this
Agreement. Nothing herein contained shall relieve any defaulting
Underwriter of its liability to the Company or the other
Underwriters for damages occasioned by its default hereunder. Any
termination of this Agreement pursuant to this Section 10 shall be without
liability on the part of any non-defaulting Underwriter or the
Company, except that the representations, warranties, covenants,
indemnities, agreements and other statements set forth in
Section 2, the
obligations with respect to expenses to be paid or reimbursed
pursuant to Sections 5 and the provisions of
Section 7 and
Sections 11 through
22, inclusive,
shall not terminate and shall remain in full force and
effect.
11.
Absence of Fiduciary
Relationship. The Company acknowledges and agrees
that:
(a)
each
Underwriter’s responsibility to the Company is solely
contractual in nature, the Representative have been retained solely
to act as underwriters in connection with the sale of the Stock and
no fiduciary, advisory or agency relationship between the Company
and the Representative have been created in respect of any of the
transactions contemplated by this Agreement, irrespective of
whether the Representative has advised or is advising the Company
on other matters;
(b)
the
price of the Stock set forth in this Agreement was established by
the Company following discussions and arms-length negotiations with
the Representative, and the Company is capable of evaluating and
understanding, and understands and accepts, the terms, risks and
conditions of the transactions contemplated by this
Agreement;
(c)
it
has been advised that the Representative and its affiliates are
engaged in a broad range of transactions which may involve
interests that differ from those of the Company and that the
Representative has no obligation to disclose such interests and
transactions to the Company by virtue of any fiduciary, advisory or
agency relationship; and
(d)
it
waives, to the fullest extent permitted by law, any claims it may
have against the Representative for breach of fiduciary duty or
alleged breach of fiduciary duty and agrees that the Representative
shall have no liability (whether direct or indirect) to the Company
in respect of such a fiduciary duty claim or to any person
asserting a fiduciary duty claim on behalf of or in right of the
Company, including stockholders, employees or creditors of the
Company.
25
12.
Successors; Persons
Entitled to Benefit of Agreement. This Agreement shall inure
to the benefit of and be binding upon the several Underwriters, the
Company, and their respective successors and assigns. Nothing
expressed or mentioned in this Agreement is intended or shall be
construed to give any person, other than the persons mentioned in
the preceding sentence, any legal or equitable right, remedy or
claim under or in respect of this Agreement, or any provisions
herein contained, this Agreement and all conditions and provisions
hereof being intended to be and being for the sole and exclusive
benefit of such persons and for the benefit of no other person;
except that the representations, warranties, covenants, agreements
and indemnities of the Company, contained in this Agreement shall
also be for the benefit of the Underwriter Indemnified Parties, and
the indemnities of the several Underwriters shall be for the
benefit of the Company Indemnified Parties. It is understood that
each Underwriter’s responsibility to the Company is solely
contractual in nature and the Underwriters do not owe the Company,
or any other party, any fiduciary duty as a result of this
Agreement. No purchaser of any of the Stock from any Underwriter
shall be deemed to be a successor or assign by reason merely of
such purchase.
13.
Survival of
Indemnities, Representations, Warranties, etc. The respective indemnities,
covenants, agreements, representations, warranties and other
statements of the Company, and the several Underwriters, as set
forth in this Agreement or made by them respectively, pursuant to
this Agreement, shall remain in full force and effect, regardless
of any investigation made by or on behalf of any Underwriter, the
Company or any person controlling any of them and shall survive
delivery of and payment for the Stock. Notwithstanding any
termination of this Agreement, including without limitation any
termination pursuant to Section 8 or Section 10, the indemnities,
covenants, agreements, representations, warranties and other
statements forth in Sections 2, 5, and 7 and Sections 11 through
22, inclusive, of
this Agreement shall not terminate and shall remain in full force
and effect at all times.
14.
Recognition of the U.S. Special Resolution Regimes.
(a)
In the event that
any Underwriter that is a Covered Entity becomes subject to a
proceeding under a U.S. Special Resolution Regime, the transfer
from such Underwriter of this Agreement, and any interest and
obligation in or under this Agreement, will be effective to the
same extent as the transfer would be effective under the U.S.
Special Resolution Regime if this Agreement, and any such interest
and obligation, were governed by the laws of the United States or a
state of the United States.
(b)
In the event that
any Underwriter that is a Covered Entity or a BHC Act Affiliate of
such Underwriter becomes subject to a proceeding under a U.S.
Special Resolution Regime, Default Rights under this Agreement that
may be exercised against such Underwriter are permitted to be
exercised to no greater extent than such Default Rights could be
exercised under the U.S. Special Resolution Regime if this
Agreement were governed by the laws of the United States or a state
of the United States.
15.
Notices.
All statements, requests, notices and agreements hereunder shall be
in writing, and:
(a)
if to the
Underwriters, shall be delivered or sent by mail, telex, facsimile
transmission or email to ▇. ▇▇▇▇▇ Securities, Inc., Attention: Head
of Capital Markets with a copy to the General Counsel; with a copy
to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Scarborough LLP, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇.▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇; and
(b)
if to the Company
shall be delivered or sent by mail, telex, facsimile transmission
or email to RumbleOn, Inc., ▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇
▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, with a copy
to ▇▇▇▇▇▇▇.▇▇▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇
and ▇▇▇▇▇▇▇▇▇.▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇;
26
provided,
however,
that any notice to an Underwriter
pursuant to Section
7
shall be delivered or sent by mail, or
facsimile transmission to such Underwriter at its address set forth
in its acceptance telex to the Representative, which address will
be supplied to any other party hereto by the Representative upon
request. Any such statements, requests, notices or agreements shall
take effect at the time of receipt thereof.
Definition of
Certain Terms. For purposes of this Agreement, (a)
“affiliate” has
the meaning set forth in Rule 405 under the Securities Act, (b)
“business
day” means any day on which the New York Stock
Exchange, Inc. is open for trading, (c) “subsidiary”
has the meaning set forth in Rule 405 of the Rules and
Regulations, (d) “BHC Act
Affiliate” has the meaning assigned to the term
“affiliate” in, and shall be interpreted in accordance
with, 12 U.S.C. § 1841(k), (e) “Covered
Entity” means any of the following: (i) a
“covered entity” as that term is defined in, and
interpreted in accordance with, 12 C.F.R. § 252.82(b);
(ii) a “covered bank” as that term is defined in, and
interpreted in accordance with, 12 C.F.R. § 47.3(b); or
(iii) a “covered FSI” as that term is defined in, and
interpreted in accordance with, 12 C.F.R. § 382.2(b), (f)
“Default
Right” has the meaning assigned to that term in, and
shall be interpreted in accordance with, 12 C.F.R. §§
252.81, 47.2 or 382.1, as applicable, (g) “U.S. Special Resolution
Regime” means each of (i) the Federal Deposit
Insurance Act and the regulations promulgated thereunder and (ii)
Title II of the ▇▇▇▇-▇▇▇▇▇ ▇▇▇▇ Street Reform and Consumer
Protection Act and the regulations promulgated
thereunder.
17.
Governing Law,
Jurisdiction, Waiver of Jury Trial. This Agreement shall be
governed by and construed in accordance with the laws of the State
of New York, including without limitation Section 5-1401 of the New
York General Obligations Law. The Company irrevocably (a)
submits to the exclusive jurisdiction of the Federal and state
courts in the Borough of Manhattan in The City of New York for the
purpose of any suit, action or other proceeding arising out of this
Agreement or the transactions contemplated by this Agreement, the
Registration Statement and any Preliminary Prospectus or the
Prospectus, (b) agrees that all claims in respect of any such suit,
action or proceeding may be heard and determined by any such court,
(c) waives to the fullest extent permitted by applicable law, any
immunity from the jurisdiction of any such court or from any legal
process, (d) agrees not to commence any such suit, action or
proceeding other than in such courts, and (e) waives, to the
fullest extent permitted by applicable law, any claim that any such
suit, action or proceeding is brought in an inconvenient forum.
Each of the parties to this
Agreement hereby waives any right to trial by jury in any suit or
proceeding arising out of or relating to this
Agreement.
18.
Underwriters’
Information. The
parties hereto acknowledge and agree that, for all purposes of this
Agreement, the “Underwriters’
Information” consists solely of the following
information in the Prospectus: (i) the last paragraph on the front
cover page concerning the terms of the offering by the
Underwriters; and (ii) the statements concerning the Underwriters
contained in the eighth, tenth, eleventh, twelfth, and
thirteenth paragraphs
under the heading “Underwriting.”
19.
Authority of the
Representative. In connection with this Agreement, the
Representative will act for and on behalf of the several
Underwriters, and any action taken under this Agreement by the
Representative, will be binding on all the
Underwriters.
20.
Partial
Unenforceability. The invalidity or
unenforceability of any section, paragraph, clause or provision of
this Agreement shall not affect the validity or enforceability of
any other section, paragraph, clause or provision hereof. If any
section, paragraph, clause or provision of this Agreement is for
any reason determined to be invalid or unenforceable, there shall
be deemed to be made such minor changes (and only such minor
changes) as are necessary to make it valid and
enforceable.
27
21.
General. This
Agreement constitutes the entire agreement of the parties to this
Agreement and supersedes all prior written or oral and all
contemporaneous oral agreements, understandings and negotiations
with respect to the subject matter hereof. In this Agreement, the
masculine, feminine and neuter genders and the singular and the
plural include one another. The section headings in this Agreement
are for the convenience of the parties only and will not affect the
construction or interpretation of this Agreement. This Agreement
may be amended or modified, and the observance of any term of this
Agreement may be waived, only by a writing signed by the Company
and the Representative.
22.
Counterparts.
This Agreement may be signed in any number of counterparts, each of
which shall be an original, including by facsimile or other
electronic transmission, with the same effect as if the signatures
thereto and hereto were upon the same instrument.
[Signature Page
follows.]
28
If the
foregoing is in accordance with your understanding please indicate
your acceptance of this Agreement by signing in the space provided
for that purpose below.
|
|
Very
truly yours,
By: /s/ ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Chief Financial
Officer
|
|
Accepted
as of the date first above written:
▇. ▇▇▇▇▇ Securities, Inc.
Acting
on its own behalf
and as
Representative of the several
Underwriters listed
on Schedule A to this
Agreement.
By:
/s/ ▇▇▇▇▇
▇▇▇▇▇
Name:
▇▇▇▇▇ ▇▇▇▇▇
Title:
Head of Capital Markets
|
|
SCHEDULE A
|
Name
|
Number of Shares of
Firm Stock to be Purchased
|
Number of Shares of
Optional Stock to be Purchased
|
|
▇. ▇▇▇▇▇
Securities, Inc.
|
1,048,998
|
157,349
|
|
Total
|
1,048,998
|
157,349
|
SCHEDULE B
General
Use Free Writing Prospectuses
None.
SCHEDULE C
Pricing Information
Firm
Stock to be Sold: 1,048,998 shares
Optional
Stock: 157,349 shares
Offering
Price to Public: $38.00 per share
Underwriting
Discounts and Commissions: 7.0%
Estimated
Net Proceeds to the Company (after underwriting discounts and
commissions, but before transaction expenses):
$37,071,589.32
Trade
Date: April 9, 2021
Closing
Date: April 13, 2021
SCHEDULE D
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇.
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Exhibit I
Form of Lock-Up Agreement
April
___, 2021
▇. ▇▇▇▇▇ Securities, Inc.
As
Representative of the several Underwriters
▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇
▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Re:
RumbleOn, Inc. — Restriction on Stock Sales
Dear
Sirs and Madams:
This
letter agreement (this “Agreement”) is
being delivered to you in connection with the proposed Underwriting
Agreement (the “Underwriting
Agreement”) by and between RumbleOn, Inc., a Nevada
corporation (the “Company”) and
▇. ▇▇▇▇▇ Securities, Inc., as representative (the
“Representative”)
of a group of underwriters (collectively, the “Underwriters”),
to be named therein, and the other parties thereto (if any),
relating to the proposed public offering (the “Offering”) of
shares of the Class B common stock, par value $0.001 per share (the
“Common
Stock”), of the Company.
In
order to induce the Underwriters to enter into the Underwriting
Agreement, and in light of the benefits that the Offering will
confer upon the undersigned in his, her or its capacity as a
securityholder and/or an officer, director or employee of the
Company, and for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the undersigned
agrees with each Underwriter that, during the period beginning on
the date hereof through and including the date that is the 90th day
after the date of the Underwriting Agreement (the
“Lock-Up
Period”), the undersigned will not, and will not cause
or direct any of its affiliates to, without the prior written
consent of the Representative, directly or indirectly, (i) offer,
sell, assign, transfer, pledge, contract to sell, lend or otherwise
dispose of, or announce the intention to otherwise dispose of, (A)
any shares of Common Stock (including, without limitation, Common
Stock which may be deemed to be beneficially owned by the
undersigned in accordance with the rules and regulations
promulgated under the Securities Act of 1933, as amended (the
“Securities
Act”), as the same may be amended or supplemented from
time to time (such shares, the “Beneficially Owned
Shares”)), or (B) securities convertible into or
exercisable or exchangeable for Common Stock, (ii) enter into, or
announce the intention to enter into, any swap, hedge or similar
agreement or arrangement (including, without limitation, the
purchase or sale of, or entry into, any put or call option, or
combination thereof, forward, swap or any other derivative
transaction or instrument, however described or defined) that
transfers, is designed to transfer or reasonably could be expected
to transfer (whether by the undersigned or someone other than the
undersigned) in whole or in part, directly or indirectly, the
economic risk of ownership of the Beneficially Owned Shares or
securities convertible into or exercisable or exchangeable for
Common Stock, whether now owned or hereafter acquired by the
undersigned or with respect to which the undersigned has or
hereafter acquires the power of disposition (the
“Prohibited
Activity”), or (iii) engage in, or announce the
intention to engage in, any short selling of the Common Stock or
securities convertible into or exercisable or exchangeable for
Common Stock. The undersigned represents and warrants that the
undersigned is not, and has not caused or directed any of its
affiliates to be or become, currently a party to any agreement or
arrangement that is designed to or which reasonably could be
expected to lead to or result in any Prohibited Activity during the
Lock-Up Period.
The
restrictions set forth in the immediately preceding paragraph shall
not apply to:
(1) if
the undersigned is a natural person, any transfers made by the
undersigned (a) as a bona fide gift to any member of the
immediate family (as defined below) of the undersigned or to a
trust the beneficiaries of which are exclusively the undersigned or
members of the undersigned’s immediate family, (b) by
will or intestate succession upon the death of the undersigned or
(c) as a bona fide gift to a charity or educational
institution;
(2) if
the undersigned is a corporation, partnership, limited liability
company or other business entity, any transfers to any stockholder,
partner or member of, or owner of a similar equity interest in, the
undersigned, as the case may be, if, in any such case, such
transfer is not for value;
(3) if
the undersigned is a corporation, partnership, limited liability
company or other business entity, any transfer made by the
undersigned (a) in connection with the sale or other bona fide
transfer in a single transaction of all or substantially all of the
undersigned’s capital stock, partnership interests,
membership interests or other similar equity interests, as the case
may be, or all or substantially all of the undersigned’s
assets, in any such case not undertaken for the purpose of avoiding
the restrictions imposed by this Agreement or (b) to another
corporation, partnership, limited liability company or other
business entity so long as the transferee is an affiliate (as
defined below) of the undersigned and such transfer is not for
value;
(4) transactions
relating to Common Stock or other securities convertible into or
exercisable or exchangeable for Common Stock acquired in open
market transactions after completion of the Offering;
(5) the
conversion or exchange of securities convertible into or
exercisable or exchangeable for Common Stock outstanding as of the
date of this agreement, it being understood that any Common Stock
issued upon such exchanges or conversions will be subject to the
restrictions of this agreement;
(6) the
grant, exercise or settlement of any stock options and equity
awards pursuant to the Company’s equity incentive plans, and
the related issuances of Common Stock with respect to such stock
options and equity awards;
(7) sales
of Common Stock made pursuant to and in accordance with a trading
plan pursuant to Rule 10b5-1 under the Securities Exchange Act of
1934, as amended (the “Exchange
Act”), existing on the date hereof; and
(8) any
transfers made by the undersigned to the Company to satisfy tax
withholding obligations pursuant to the Company’s equity
incentive plans or arrangements disclosed in the Prospectus (as
defined in the Underwriting Agreement);
provided, however, that in the case of
any transfer described in clause (1), (2) or (3) above,
it shall be a condition to the transfer that (A) the
transferee executes and delivers to the Representative, acting on
behalf of the Underwriters, not later than one business day prior
to such transfer, a written agreement, in substantially the form of
this Agreement (it being understood that any references to
“immediate family” in the agreement executed by such
transferee shall expressly refer only to the immediate family of
the undersigned and not to the immediate family of the transferee)
and otherwise satisfactory in form and substance to the
Representative, and (B) in the case of any transfer or transaction
described above, no public announcement or filing is voluntarily
made regarding such transfer during the Lock-Up Period and if the
undersigned is required to file a report under Section 16(a)
of the Exchange Act, reporting a reduction in beneficial ownership
of shares of Common Stock or Beneficially Owned Shares or any
securities convertible into or exercisable or exchangeable for
Common Stock or Beneficially Owned Shares during the Lock-Up
Period, the undersigned shall include a statement in such report to
the effect that, (A) in the case of any transfer pursuant to
clause (1) above, such transfer is being made as a gift or by
will or intestate succession, (B) in the case of any transfer
pursuant to clause (2) above, such transfer is being made to a
stockholder, partner or member of, or owner of a similar equity
interest in, the undersigned and is not a transfer for value, (C)
in the case of any transfer pursuant to clause (3) above, such
transfer is being made either (a) in connection with the sale or
other bona fide transfer in a single transaction of all or
substantially all of the undersigned’s capital stock,
partnership interests, membership interests or other similar equity
interests, as the case may be, or all or substantially all of the
undersigned’s assets or (b) to another corporation,
partnership, limited liability company or other business entity
that is an affiliate of the undersigned and such transfer is not
for value, and (D) in the case of any transfer pursuant to clause
(8) above, such transfer is being made to satisfy tax withholding
obligations. For purposes of this paragraph, “immediate
family” shall mean a spouse, child, grandchild or other
lineal descendant (including by adoption), father, mother, brother
or sister of the undersigned; and “affiliate” shall
have the meaning set forth in Rule 405 under the Securities
Act.
2
In
order to enable this covenant to be enforced, the undersigned
hereby consents to the placing of legends or stop transfer
instructions with the Company’s transfer agent with respect
to any Common Stock or securities convertible into or exercisable
or exchangeable for Common Stock.
The
undersigned further agrees that it will not, during the Lock-Up
Period, make any demand or request for or exercise any right with
respect to the registration under the Securities Act, of any shares
of Common Stock or other Beneficially Owned Shares or any
securities convertible into or exercisable or exchangeable for
Common Stock or other Beneficially Owned Shares.
The
undersigned hereby represents and warrants that the undersigned has
full power and authority to enter into this Agreement and that this
Agreement has been duly authorized (if the undersigned is not a
natural person), executed and delivered by the undersigned and is a
valid and binding agreement of the undersigned. This Agreement and
all authority herein conferred are irrevocable and shall survive
the death or incapacity of the undersigned (if a natural person)
and shall be binding upon the heirs, personal representatives,
successors and assigns of the undersigned.
This
Agreement shall be governed by and construed in accordance with the
internal laws of the State of New York applicable to agreements
made and to be performed in such state.
If (i)
the Company notifies the Representative in writing that it does not
intend to proceed with the Offering or (ii) the Underwriting
Agreement (other than the provisions thereof which survive
termination) shall terminate or be terminated for any reason prior
to payment for and delivery of any Common Stock to be sold
thereunder, then this Agreement shall immediately be terminated and
the undersigned shall automatically be released from all of his,
her or its obligations under this Agreement. The undersigned
acknowledges and agrees that whether or not any public offering of
Common Stock actually occurs depends on a number of factors,
including market conditions.
[Signature
page follows]
3
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Very
truly yours,
_________________________________________________
(Name
of Stockholder - Please Print)
_________________________________________________
(Signature)
_________________________________________________
(Name
of Signatory if Stockholder is an entity - Please
Print)
_________________________________________________
(Title
of Signatory if Stockholder is an entity - Please
Print)
Address:
__________________________________________
__________________________________________
__________________________________________
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Signature Page to Lock-Up Agreement