Amendment to Merger Agreement
Exhibit 2.2
This
AMENDMENT (this “Amendment”), dated
October 29, 2019, to that certain AGREEMENT AND PLAN OF MERGER (the
“Merger
Agreement”), dated October 26, 2018, by and among
RumbleOn, Inc., a Nevada corporation (“Parent”), RMBL Tennessee,
LLC, a Delaware limited liability company and a wholly-owned
subsidiary of Parent (“Merger Sub”), Wholesale
Holdings, Inc., a Tennessee corporation (“Wholesale Holdings”), the
shareholders of Wholesale Holdings set forth in Schedule 1 thereto (each, a
“Stockholder,” and
collectively, the “Stockholders”),
Wholesale, LLC, a Tennessee limited liability company (together
with Wholesale Predecessor as described in Section 9.12, the
“Company”), Xxxxxx
Xxxxxxxx, a Tennessee resident, as the representative of each
Stockholder as more fully described therein (the
“Representative”),
and, for the limited purpose of Section 5.8 thereof, Xxxxxxxx
Xxxxxxxx (“Chesrown”) and Xxxxxx X.
Xxxxxxx (“Xxxxxxx”). Capitalized
terms used herein and not otherwise defined, shall have the meaning
set forth in the Merger Agreement.
Whereas,
the parties desire to amend the Merger Agreement pursuant to
Section 9.4 thereof;
NOW,
THEREFORE, in consideration of the mutual covenants,
representations and warranties made herein and other good and
valuable consideration, the receipt and sufficiency of which hereby
are acknowledged, the Parties agree as follows:
1.
The definition of
Parent Consideration Shares in the Merger Agreement is hereby
amended and restated in its entirety as follows:
“Parent Consideration
Shares” means 1,125,926 shares of Parent's Series B
Non-Voting Convertible Preferred Stock; provided, however if the VWAP of the
Class B Common Stock for the five (5) trading days immediately
preceding the date of this Amendment is less than 8.60, Parent
shall deliver additional shares of Parent's Series B Non-Voting
Convertible Preferred Stock such that the total number of shares of
Parent's Series B Non-Voting Convertible Preferred Stock, valued
equally, on per share basis, to the VWAP of the Class B Common
Stock for the five (5) trading days immediately preceding the date
of this Amendment for the purposes of this calculation, equals no
less than $9,680,000.
2.
The parties agree
to the treat the Merger as qualifying as a reorganization within
the meaning of Section 368(a) of the Code and the Treasury
Regulations promulgated thereunder, and to treat the Merger
Agreement, as amended by this Amendment, as a “plan of
reorganization” within the meaning of Section 1.368-2(g) of
the Treasury Regulations and a “binding contract”
within the meaning of Section 1.368-2(e)(2)(ii) of the Treasury
Regulations as of the date of this Amendment unless there is a
“determination” within the meaning of Section 1313 of
the Code (or execution of a Form 870-AD or successor form) to
the contrary.
3.
Except as expressly
provided herein, the Parties agree that the Merger Agreement
remains unmodified, and the Merger Agreement as hereby amended is
in full force and effect.
4.
The provisions set
forth in 9.2 through 9.17 of the Merger Agreement shall apply to
this Amendment, mutatis
mutandis.
1
IN
WITNESS WHEREOF, this Amendment has been executed by or on behalf
of each of the Parties as of the day first written
above.
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PARENT:
By:
/s/ Xxxxxx X.
Xxxxxxx
Name: Xxxxxx
X. Xxxxxxx
Title:
Chief Financial Officer
MERGER SUB:
RMBL
TENNESSEE, LLC
By:
/s/ Xxxxxx X.
Xxxxxxx
Name:
Xxxxxx
X. Xxxxxxx
Title:
Manager
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REPRESENTATIVE:
/s/ Xxxxxx Xxxxxxxx
Xxxxxx
Xxxxxxxx
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