FORM OF JOINDER AND AMENDMENT TO EXCHANGE AND SUBSCRIPTION AGREEMENT
Exhibit 10.2
FORM
OF
JOINDER AND AMENDMENT TO EXCHANGE
AND SUBSCRIPTION AGREEMENT
This
JOINDER AND AMENDMENT (the “Amendment”) to the
EXCHANGE AND SUBSCRIPTION AGREEMENT, dated as of January 10, 2020
(the “Agreement”), as
amended from time to time by and among RUMBLEON, INC. (the
“Company”) and
___________________________
, ___________________________
, and ___________________________
, (each, an “Investor”) is
entered into and shall be effective as of January 13, 2020 (the
“Effective Date”), among each
Investor, ___________________________
.. (the “New
Investor”) and the Company (referred individually as
“Party” and
collectively as “Parties”).
WITNESSETH:
WHEREAS, the
Company and the Investors entered into the Agreement pursuant to
which the Investors (i) will tender their existing 6.75%
Convertible Senior Notes due 2024 (CUSIP 781386 AA5 and ISIN:
US781386AA56) (the “Old Notes”) for an amount of New
Notes determined as set forth in the Agreement and (ii) subscribed
for and will purchase from the Company New Notes for cash;
and
WHEREAS, the
Company and the Investors now wish to revise and update the
Agreement as of the Effective Date to add the New Investor and
amend certain terms as set forth below;
NOW,
THEREFORE, in consideration of the mutual agreements herein
contained, the receipt and legal sufficiency of which is hereby
acknowledged, the Parties agree as follows:
1.
Definitions. Terms defined in
the Agreement shall, except to the extent that the context
otherwise requires, bear the same respective meanings in this
Amendment.
2.
Amendments. The Agreement shall
be amended as follows:
a.
Section 5(s) shall
be deleted in its entirety and replaced with the
following:
Registration Rights of Third Parties.
Except (i) pursuant to that certain registration rights
agreement, dated May 14, 2019, between the Company and JMP
Securities LLC (“JMP Securities LLC Registration Rights
Agreement”), and (ii) as has been publicly disclosed in
the SEC Reports, no holders of any securities of the Company or any
rights exercisable for or convertible or exchangeable into
securities of the Company have the right to require the Company to
(i) register the sale or resale of any such securities of the
Company under the Securities Act (other than pursuant to the
Registration Rights Agreement), (ii) include any such securities in
a registration statement to be filed by the Company (including any
registration statement required to be filed pursuant to the
Registration Rights Agreement, other than the holders of the New
Notes) or (iii) register the resale of any securities of the
Company held by such persons, or that such persons may acquire upon
the exercise or conversion of any other securities of the Company
or pursuant to the prospectus as part of the Concurrent Common
Stock Offering. Company hereby represents and warrants that any
rights under the JMP Securities LLC Registration Rights Agreement
are not in conflict or inconsistent with any registration rights
granted to holders of the New Notes.
b.
Section 6(u) shall
be deleted in its entirety and replaced with the
following:
The
operations of the Investor have been conducted in material
compliance with the rules and regulations administered or conducted
by the U.S. Department of Treasury Office of Foreign Assets Control
(“OFAC”)
applicable to the Investor. The Investor, or its delegates have
performed due diligence necessary to reasonably determine that its
(or, where applicable, the Accounts’) investors are not named
on the lists of denied parties or blocked persons administered by
OFAC, resident in or organized under the laws of a country that is
the subject of comprehensive economic sanctions and embargoes
administered or conducted by OFAC (“Sanctions”), or otherwise the
subject of Sanctions.
c.
Section 8 shall be
deleted in its entirety and replaced with the
following:
Covenant and Acknowledgment of the
Company. At or prior to 9:00 a.m., New York City time, on
the first business day after the date hereof, the Company shall
issue a press release or file with the Commission a Current Report
on Form 8-K announcing the New Notes Offering and disclosing all
material terms of the transaction contemplated by this Agreement as
well as any material non-public information, which press release
the Company acknowledges and agrees will disclose all confidential
information communicated by or on behalf of the Company to the
Investor in connection with the New Notes Offering and any
transaction contemplated by this Agreement. Notwithstanding the
foregoing, the Company shall not publicly disclose the name of the
Investor, any of its Accounts, or their respective affiliates and
investment advisors, or include the name of the Investor, any of
its Accounts, or their respective affiliates and investment
advisors in any press release or in any filing with the Commission
or any regulatory agency or trading market, without the prior
written consent of the Investor, except (i) as required by the
federal securities laws in connection with the transaction
contemplated hereby, and (ii) to the extent such disclosure is
required by law, at the request of the Staff of the Commission, any
representative of Nasdaq or any other regulatory agency, in which
case the Company shall, to the extent practicable, provide the
Investor with prior written notice of such disclosure.
d.
Exhibit A of the
Agreement shall be deleted in its entirety and replaced with
Exhibit A attached hereto.
e.
Exhibit B of the
Agreement shall be deleted in its entirety and replaced with
Exhibit B attached hereto.
f.
Except as expressly
provided herein, no other changes or modifications to the Agreement
are intended or implied, and in all other respects the Agreement is
hereby specifically ratified, restated and reaffirmed by the
Parties.
3.
Representations. Each party
represents to the other parties that all representations contained
in the Agreement are true and accurate as of the date of this
Amendment, and that such representations are deemed to be given or
repeated by each Party, as the case may be, on the date of this
Amendment.
4.
Integration/Effect of
Amendment. This Amendment and any instrument and agreements
delivered pursuant hereto constitute the entire agreement of the
Parties with respect to the subject matter hereof and thereof, and
supersede all prior oral and written communications with respect to
the subject matter hereof and thereof. To the extent that any
provision of the Agreement is inconsistent with the provisions of
this Amendment, the provisions of this Amendment shall
control.
6.
Counterparts. This Amendment
may be executed in any number of counterparts and any such
counterpart shall be deemed an original, but all such counterparts
shall constitute one and the same agreement.
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IN
WITNESS WHEREOF, the parties hereto have entered into this
Amendment as of the date set forth above.
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By:
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___________________________
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By:
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___________________________
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By:
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___________________________
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By:
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EXHIBIT A
The Exchange Ratio: 1.0
EXHIBIT B