FORM OF NOTE EXCHANGE & SUBSCRIPTION AGREEMENT
Exhibit 10.1
FORM
OF
NOTE
EXCHANGE & SUBSCRIPTION AGREEMENT
January
10, 2020
0000
Xxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxx,
Xxxxx 00000
Attention:
Chief Financial Officer
Re:
Exchange
and Subscription for RumbleOn, Inc. Convertible Senior Notes due
2025
Ladies
and Gentlemen:
RumbleOn,
Inc., a Nevada corporation, (the “Company”), is offering a new
series of 6.75% Convertible Senior Notes due 2025 (the
“New Notes”).
The New Notes will be convertible into cash, shares
(“Underlying
Shares”) of Class B common stock of the Company, par
value $0.001 per share (“Common Stock”), or a combination
thereof, at the Company’s election. The New Notes will be
issued pursuant to an Indenture, to be dated as of the Closing Date
(as defined below), between the Company and Wilmington Trust, N.A.,
as trustee (the “Trustee”), the form of which is
attached hereto as Exhibit
E (the “Indenture”).
The
undersigned (the “Investor”), for itself and, in
relation to the New Notes Offering (as defined below), on behalf of
the accounts (if any) listed on Exhibit A and Exhibit B hereto (the
“Accounts” and,
collectively with the Investor, the “Purchasers”), agrees
to:
(1)
tender the
Company’s 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 herein (the “Exchange”); and
(2)
subscribe for and
purchase from the Company New Notes for cash (the
“Subscription”
and, together with the Exchange, the “New Notes Offering”),
in each
case, pursuant and subject to the terms and conditions set forth in
this agreement (this “Agreement”).
The
Investor and each Account understands that the New Notes Offering
is being made without registration under the Securities Act of
1933, as amended (the “Securities Act”), or any
securities laws of any state of the United States or of any other
jurisdiction, and that the New Notes Offering is only being made to
investors who are both “accredited investors” (as
defined in Rule 501 of Regulation D under the Securities Act) and
“qualified institutional buyers” (as defined in Rule
144A under the Securities Act) in reliance upon one or more
exemptions from registration under the Securities Act.
The
holders of the New Notes will be entitled to the benefits of a
registration rights agreement, to be dated as of the Closing Date,
the form of which is attached hereto as Exhibit F (the
“Registration Rights
Agreement”), between the Company and the Investors,
pursuant to which the Company will agree to file one or more
registration statements with the U.S. Securities and Exchange
Commission (the “Commission”) providing for the
registration under the Securities Act of the resale of the New
Notes and the Underlying Shares. This Agreement, the Indenture, the
New Notes and the Registration Rights Agreement are referred to
herein collectively as the “Transaction
Documents.”
Concurrently
with the New Notes Offering, the Company is selling, in a
transaction registered under the Securities Act, shares of Common
Stock (the “Concurrent Common
Stock Offering”), and the Company is amending and
exchanging certain of its outstanding subordinated secured
promissory notes in an aggregate principal amount of $2.0 million
to extend the maturity of a portion of such notes (the
“Concurrent
Investor Note
Exchange”). The net proceeds of the Concurrent Common
Stock Offering, less commissions to the placement agent and
estimated expenses payable by the Company, are expected to be at
least $10 million. As contemplated by Section 7(b) of this Agreement, the
New Notes Offering is contingent upon completion of the Common
Stock Offering.
1.
The Exchange. Subject to the
terms and conditions of this Agreement, the Purchasers hereby
tender, assign and transfer to the Company all right, title and
interest in the aggregate principal amount (the “Exchanged Principal Amount”) of
Old Notes set forth in column 2 of Exhibit A hereto (such
principal amount of Old Notes, the “Exchanged Old Notes”) in exchange
for New Notes having an aggregate principal amount, for each
Purchaser, equal to the product of (x) the Exchange Ratio, as set
forth in Exhibit A
and (y) the Exchanged Principal Amount of Exchanged Old Notes for
such Purchaser, rounded to the nearest integral multiple of $1,000
in principal amount, if applicable, as set forth in column 4 of
Exhibit A hereto
(such aggregate principal amount of New Notes, as so rounded, if
applicable, the “Exchanged
New Notes”), and the Company agrees to issue such
Exchanged New Notes to the Purchasers in exchange for such
Exchanged Old Notes. For the avoidance of doubt, the Company will
make separate cash payment in respect of rounded amounts or
interest, if any, accrued and unpaid to the Closing Date (as
defined below) for the Exchanged Old Notes. Subject to the terms
and conditions of this Agreement, the Investor, on behalf of itself
and each Account, hereby (a) waives any and all other rights
with respect to such Exchanged Old Notes, and (b) releases and
discharges the Company from any and all claims the Investor and
each Account may now have, or may have in the future, arising out
of, or related to, such Exchanged Old Notes.
2.
The Subscription. Subject to
the terms and conditions of this Agreement, the Purchasers hereby
agree to purchase from the Company, and the Company hereby agrees
to issue and sell to the Investor and/or any such Account, New
Notes (the “Purchased New
Notes”) having an aggregate principal amount as set
forth in column 2 of Exhibit B hereto (the
“Purchased Principal
Amount”), for an aggregate purchase price in cash in
respect of such Purchased New Notes as set forth in column 3 of
Exhibit B (such
aggregate cash purchase price, the “Cash Purchase
Price”).
3.
The Closing. The closing of the
New Notes Offering (the “Closing”) shall take place at the
offices of Akerman LLP, 000 Xxxx Xxx Xxxx Xxxxxxxxx, Xxxx
Xxxxxxxxxx, Xxxxxxx 00000 at 10:00 a.m., New York City time, on
January 14, 2020 or, subject to the immediately succeeding
sentence, at such other time and place as the Company may designate
by notice to the Investor (the “Closing Date”).
4.
Closing Mechanics.
(a)
The Depository
Trust Company (“DTC”) will act as securities
depositary for the New Notes.
(b)
At or prior to the
times set forth in the Exchange/Subscription Procedures set forth
in Exhibit C hereto
(the “Exchange/Subscription
Procedures”), the Investor, on behalf of itself and/or
any other Account, shall:
(ii)
transfer the Cash
Purchase Price by wire in immediately available funds to the
account of the Company designated in the Exchange/Subscription
Procedures.
(c)
On the Closing
Date, subject to satisfaction of the conditions precedent specified
in Section 7 hereof, and the prior
receipt by the Trustee from each Purchaser of the Exchanged Old
Notes to be tendered by such Purchaser and the prior receipt by the
Company of the Cash Purchase Price from such
Purchaser:
(i)
the Company shall
execute and deliver the Indenture; and
(ii)
the Company shall
execute, cause the Trustee to authenticate and cause to be
delivered to the DTC account(s) specified by the Investor or the
relevant Account in Exhibit D hereto, the Exchanged
New Notes and the Purchased New Notes.
All
questions as to the form of all documents and the validity and
acceptance of the Old Notes and the New Notes will be determined in
good faith by the Company.
(a)
Organization. The Company and each of
the subsidiaries of the Company set forth in the SEC Reports
(defined below) (the “Subsidiaries”) is an entity duly
incorporated or otherwise organized, validly existing and in good
standing under the laws of the jurisdiction of its incorporation or
organization, with the requisite power and authority to own and use
its properties and assets and to carry on its business as described
in the SEC Reports. Neither the Company nor any Subsidiary is in
violation nor default of any of the provisions of its respective
certificate or articles of incorporation, bylaws or other
organizational or charter documents. Each of the Company and the
Subsidiaries is duly qualified to conduct business and is in good
standing as a foreign corporation or other entity in each
jurisdiction in which the nature of the business conducted or
property owned by it makes such qualification necessary, except
where the failure to be so qualified or in good standing, as the
case may be, could not have or reasonably be expected to result in
a material adverse effect on (i) the legality, validity or
enforceability of any Transaction Document, (ii) the results of
operations, assets, business, prospects or condition (financial or
otherwise) of the Company and the Subsidiaries, taken as a whole,
or (iii) on the Company’s ability to perform in any material
respect on a timely basis its obligations under any Transaction
Document (a “Material Adverse
Effect”).
(b)
Due Authorization. The Company has the
requisite corporate power and authority to enter into and to
consummate the transactions contemplated by each of the Transaction
Documents and otherwise to carry out its obligations hereunder and
thereunder. The execution and delivery of each of the Transaction
Documents by the Company and the consummation by it of the
transactions contemplated hereby and thereby have been duly
authorized by all necessary action on the part of the Company and
no further action is required by the Company, the board of
directors of the Company (the “Board of Directors”) or the
Company’s stockholders in connection herewith or therewith
other than in connection with the Required Approvals (as defined
below). This Agreement, the Indenture and each other Transaction
Document to which the Company is a party has been (or upon delivery
will have been) duly executed by the Company and, when delivered in
accordance with the terms hereof and thereof, will constitute the
valid and binding obligation of the Company enforceable against the
Company in accordance with its terms, except as such enforceability
may be limited by bankruptcy, fraudulent conveyance, insolvency,
reorganization, moratorium, and other laws relating to or affecting
creditors’ rights generally and by general equitable
principles (regardless of whether such enforceability is considered
in a proceeding in equity or at law) (collectively, the
“Enforceability
Exceptions”).
(c)
New Notes. The Company has all
requisite corporate power and authority to execute, issue, sell and
perform its obligations under the New Notes. The New Notes have
been duly authorized and, at the Closing Date, will have been duly
executed by the Company and, when authenticated, issued and
delivered in the manner provided for in the Indenture and delivered
in the Exchange and the Subscription as provided in this Agreement,
will constitute valid and binding obligations of the Company
entitled to the benefits of the Indenture, enforceable against the
Company in accordance with their terms, except as the enforcement
thereof may be limited by the Enforceability Exceptions, and will
be in the form contemplated by, and entitled to the benefits of,
the Indenture.
(d)
Underlying Shares. The maximum number
of Underlying Shares initially issuable upon conversion of the New
Notes (assuming settlement solely in shares of Common Stock and
taking into account the maximum make-whole adjustment under the
Indenture) have been duly and validly authorized and reserved for
by the Company and, when issued upon conversion of the New Notes in
accordance with the terms of the New Notes, will be validly issued,
fully paid and non-assessable, and the issuance of any Underlying
Shares will not be subject to any preemptive or similar
rights.
(e)
Exemption from Registration. Assuming
the accuracy of the representations and warranties of the Investor
and each other investor executing an Agreement, (1) each of
the issuance of the Exchanged New Notes in connection with the
Exchange and the issuance of the Purchased New Notes in connection
with the Subscription, as the case may be, pursuant to this
Agreement is exempt from the registration requirements of the
Securities Act; and (2) the Indenture is not required to be
qualified under the Trust Indenture Act of 1939, as
amended.
(f)
New Class. The New Notes, when issued,
will not be of the same class as securities listed on a national
securities exchange registered under Section 6 of the
Securities Exchange Act of 1934, as amended (the
“Exchange Act”),
or quoted in a U.S. automated inter-dealer quotation system, within
the meaning of Rule 144A(d)(3)(i) under the Securities
Act.
(g)
No Conflicts. The execution, delivery
and performance by the Company of each of the Transaction
Documents, and the consummation by it of the transactions
contemplated thereby, including the offer and sale of the New Notes
and the Underlying Shares do not and will not (i) conflict with or
violate any provision of the Company’s or any
Subsidiary’s certificate or articles of incorporation, bylaws
or other organizational or charter documents, (ii) conflict with,
or constitute a default (or an event that with notice or lapse of
time or both would become a default) under, result in the creation
of any lien upon any of the properties or assets of the Company or
any Subsidiary, or give to others any rights of termination,
amendment, acceleration or cancellation (with or without notice,
lapse of time or both) of, any agreement, credit facility, debt or
other instrument (evidencing a Company or Subsidiary debt or
otherwise) or other understanding to which the Company or any
Subsidiary is a party or by which any property or asset of the
Company or any Subsidiary is bound or affected, or (iii) subject to
the Required Approvals, conflict with or result in a violation of
any law, rule, regulation, order, judgment, injunction, decree or
other restriction of any court or governmental authority to which
the Company or a Subsidiary is subject (including federal and state
securities laws and regulations), or by which any property or asset
of the Company or a Subsidiary is bound or affected; except in the
case of each of clauses (ii) and (iii), such as could not have or
reasonably be expected to result in a Material Adverse
Effect.
(h)
Conduct of Business. Since December 31,
2018, except as has been publicly disclosed in the SEC Reports and
except for the Concurrent Common Stock Offering, the Company has
conducted its business in the ordinary course materially consistent
with past practice. Since December 31, 2018, there has not been any
Material Adverse Effect with respect to the Company or any of its
Subsidiaries nor has there occurred any event that is reasonably
likely to result in a Material Adverse Effect with respect to the
Company or any of its Subsidiaries.
(i)
Filings, Consents and Approvals. The
Company is not required to obtain any consent, waiver,
authorization or order of, give any notice to, or make any filing
or registration with, any court or other federal, state, local or
other governmental authority or other person in connection with the
execution, delivery and performance by the Company of the
Transaction Documents, the consummation by the Company of the
transactions contemplated thereby, including the offer and sale of
the New Notes and the Underlying Shares, in each case other than:
(i) the filings required pursuant to Section 8 of this Agreement, (ii)
application(s) to The Nasdaq Stock Market LLC (“Nasdaq”) for the listing of the
Underlying Shares for trading thereon in the time and manner
required thereby, and (iii) such filings as are required to be made
under applicable state securities laws (collectively, the
“Required
Approvals”).
(j)
Capitalization. The capitalization of
the Company is as set forth in the SEC Reports, except to the
extent affected by the Concurrent Common Stock Offering and the
Concurrent Note Exchange. Except as contemplated by the Concurrent
Common Stock Offering, the Company has not issued any capital stock
since its most recently filed periodic report under the Exchange
Act, other than pursuant to the vesting and delivery of awards
under the Company’s employee equity plans outstanding as of
the date of the most recently filed periodic report under the
Exchange Act. No person has any right of first refusal, preemptive
right, right of participation, or any similar right to participate
in the transactions contemplated by the Transaction Documents. All
issued and outstanding securities of the Company issued prior to
the transactions contemplated by this Agreement have been duly
authorized and validly issued and are fully paid and
non-assessable; the holders thereof have no rights of rescission
with respect thereto, and are not subject to personal liability by
reason of being such holders; and none of such securities were
issued in violation of the preemptive rights of any holders of any
security of the Company or similar contractual rights granted by
the Company. The offers and sales of the outstanding shares of
Class A Common Stock and Common Stock were at all relevant times
either registered under the Securities Act and the applicable state
securities or “blue sky” laws or, based in part on the
representations and warranties of the purchasers of such shares of
Class A Common Stock and Common Stock, exempt from such
registration requirements.
(k)
SEC Reports. Since January 9, 2017, the
Company has filed all reports, schedules, forms, statements and
other documents required to be filed by the Company under the
Securities Act and the Exchange Act, including pursuant to Section
13(a) or 15(d) thereof (the foregoing materials, including the
exhibits thereto and documents incorporated by reference therein,
being collectively referred to herein as the “SEC Reports”), on a timely basis
or has received a valid extension of such time of filing and has
filed any such SEC Reports prior to the expiration of any such
extension. As of their respective dates, the SEC Reports complied
in all material respects with the requirements of the Securities
Act and the Exchange Act, as applicable, and none of the SEC
Reports, when filed, contained any untrue statement of a material
fact or omitted 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.
(l)
Financial Statements. The financial
statements, including the notes thereto and supporting schedules,
included in the SEC Reports, fairly present the financial position
and the results of operations of the Company at the dates and for
the periods to which they apply; and such financial statements have
been prepared in conformity with U.S. generally accepted accounting
principles (“GAAP”), consistently applied
throughout the periods involved (provided that unaudited interim
financial statements are subject to year-end audit adjustments that
are not expected to be material in the aggregate and do not contain
all footnotes required by GAAP). All disclosures contained in the
SEC Reports regarding “non-GAAP financial measures” (as
such term is defined by the rules and regulations of the
Commission), if any, comply with Regulation G of the Exchange Act
and Item 10 of Regulation S-K of the Securities Act, to the extent
applicable. The SEC Reports disclose all material off-balance sheet
transactions, arrangements, obligations (including contingent
obligations), and other relationships of the Company with
unconsolidated entities or other persons that may have a material
current or future effect on the Company’s financial
condition, changes in financial condition, results of operations,
liquidity, capital expenditures, capital resources, or significant
components of revenues or expenses. Except as disclosed in the SEC
Reports, (a) the Company has not incurred any material liabilities
or obligations, direct or contingent, or entered into any material
transactions other than in the ordinary course of business, (b) the
Company has not declared or paid any dividends or made any
distribution of any kind with respect to its capital stock, (c)
there has not been any change in the capital stock of the Company,
or, other than in the course of business, any grants under any
stock compensation plan, and (d) there has not been any material
adverse change in the Company’s long-term or short-term
debt.
(m)
Disclosure Controls. The Company
maintains disclosure controls and procedures as required by Rule
13a-15 or 15d-15 under the Exchange Act. Such disclosure controls
and procedures are effective to ensure that all information
required to be disclosed by the Company is recorded and reported on
a timely basis to the individuals responsible for the preparation
of the SEC Reports and other public disclosure documents. The
Company maintains systems of “internal control over financial
reporting” (as defined under Rules 13a-15 and 15d-15 under
the Exchange Act Regulations) that comply with the requirements of
the Exchange Act and have been designed by, or under the
supervision of, its principal executive and principal financial
officers, or persons performing similar functions. Such systems of
internal control over financial reporting are effective in
providing reasonable assurance regarding the reliability of
financial reporting and the preparation of financial statements for
external purposes in accordance with GAAP and include policies and
procedures that provide reasonable assurance 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 asset accountability; (iii)
access to assets is permitted only in accordance with
management’s general or specific authorization; and (iv) the
recorded accountability for assets is compared with the existing
assets at reasonable intervals and appropriate action is taken with
respect to any differences. No attorney representing the Company or
any of its Subsidiaries, whether or not employed by the Company or
any of its Subsidiaries, has reported evidence of a violation of
securities laws, breach of fiduciary duty or similar violation by
the Company or any of its officers, directors, employees or agents
pursuant to the rules adopted pursuant to Section 307 of the
Xxxxxxxx-Xxxxx Act.
(n)
Internal Controls. The Company has
disclosed, based on the most recent evaluation by its chief
executive officer and its chief financial officer prior to the date
hereof, to the Company’s auditors and the Audit Committee of
Board of Directors (i) any significant deficiencies in the design
or operation of its internal controls over financial reporting that
are reasonably likely to adversely affect the Company’s
ability to record, process, summarize and report financial
information and has identified for the Company’s auditors and
Audit Committee of the Board of Directors any material weaknesses
in internal control over financial reporting and (ii) any fraud,
whether or not material, that involves management or other
employees who have a significant role in the Company’s
internal control over financial reporting. No material complaints
from any source regarding accounting, internal accounting controls
or auditing matters, and no concerns from the Company’s
employees regarding questionable accounting or auditing matters,
have been received by the Company or, to the knowledge of the
Company, the Company’s independent registered public
accounting firm.
(o)
Nasdaq Compliance. The Company is in
compliance in all material respects with the applicable listing and
corporate governance rules and regulations of Nasdaq. From January
1, 2017 through the date hereof, the Company has not received any
comment letter from the Commission or the staff thereof or, except
as disclosed in the SEC Reports, any correspondence from the Nasdaq
or the staff thereof relating to the delisting or maintenance of
listing of Common Stock on Nasdaq, other than such disclosures or
documents that can be obtained on the Commission’s website at
xxx.xxx.xxx. No approval of the stockholders of the Company under
the rules and regulations of Nasdaq (including Rule 5635 of the
Nasdaq Marketplace Rules) is required to issue and deliver the New
Notes to the Purchasers or the Underlying Securities upon the
conversion of the New Notes.
(p)
Investment Company. The Company is not,
and is not an Affiliate of, and immediately after receipt of
payment for the New Notes, will not be or be an Affiliate of, an
“investment company” within the meaning of the
Investment Company Act of 1940, as amended. The Company shall
conduct its business in a manner so that it will not become an
“investment company” subject to registration under the
Investment Company Act of 1940, as amended.
(q)
Information Provided. The Company
confirms that, to its knowledge, with the exception of the proposed
sale of the New Notes under this Agreement and the Transaction
Documents relating hereto, neither the Company nor any other
persons acting on its behalf has provided any of the Investors or
their agents or counsel with any information that constitutes or
might constitute material, nonpublic information. The Company
further confirms that until public disclosure of the events
described above, the Investors will be restricted by the xxxxxxx
xxxxxxx prohibitions under the Exchange Act from trading or
“tipping” on the basis of such
information.
(r)
Intellectual Property. The Company owns
or possesses or has valid rights to use all patents, trademarks,
service marks, trade names, trademark registrations, service xxxx
registrations, copyrights, licenses, trade secrets and similar
rights (“Intellectual
Property Rights”), if any, necessary for the conduct
of the business of the Company as currently carried on and as
described in the SEC Reports. To the knowledge of the Company, no
action or use by the Company necessary for the conduct of its
business as currently carried on and as described in the SEC
Reports will involve or give rise to any infringement of, or
license or similar fees for, any Intellectual Property Rights of
others. Except as would not reasonably be expected to result,
individually or in the aggregate, in a Material Adverse Effect, the
Company has not received any notice alleging any such infringement,
fee or conflict with asserted Intellectual Property Rights of
others. Except as would not reasonably be expected to result,
individually or in the aggregate, in a Material Adverse Effect (A)
to the knowledge of the Company, there is no infringement,
misappropriation or violation by third parties of any of the
Intellectual Property Rights owned by the Company; (B) there is no
pending or, to the knowledge of the Company, threatened action,
suit, proceeding or claim by others challenging the rights of the
Company in or to any such Intellectual Property Rights, and the
Company is unaware of any facts which would form a reasonable basis
for any such claim, that would, individually or in the aggregate,
together with any other claims in this Section 5(r), reasonably be expected
to result in a Material Adverse Effect; (C) the Intellectual
Property Rights owned by the Company and, to the knowledge of the
Company, the Intellectual Property Rights licensed to the Company,
have not been adjudged by a court of competent jurisdiction invalid
or unenforceable, in whole or in part, and there is no pending or,
to the Company’s knowledge, threatened action, suit,
proceeding or claim by others challenging the validity or scope of
any such Intellectual Property Rights, and the Company is unaware
of any facts which would form a reasonable basis for any such claim
that would, individually or in the aggregate, together with any
other claims in this Section 5(r), reasonably be expected
to result in a Material Adverse Effect; (D) there is no pending or,
to the Company’s knowledge, threatened action, suit,
proceeding or claim by others that the Company infringes,
misappropriates or otherwise violates any Intellectual Property
Rights or other proprietary rights of others, the Company has not
received any written notice of such claim and the Company is
unaware of any other facts which would form a reasonable basis for
any such claim that would, individually or in the aggregate,
together with any other claims in this Section 5(r), reasonably be expected
to result in a Material Adverse Effect; and (E) to the
Company’s knowledge, no employee of the Company is in
violation in any material respect of any term of any employment
contract, patent disclosure agreement, invention assignment
agreement, non-competition agreement, non-solicitation agreement,
nondisclosure agreement or any restrictive covenant to or with a
former employer where the basis of such violation relates to such
employee’s employment with the Company, or actions undertaken
by the employee while employed with the Company and could
reasonably be expected to result, individually or in the aggregate,
in a Material Adverse Effect. To the Company’s knowledge, all
material trade secrets developed by and belonging to the Company
which have not been patented have been kept confidential. The
Company is not a party to or bound by any options, licenses or
agreements with respect to the Intellectual Property Rights of any
other person or entity that are required to be set forth in the SEC
Reports and are not described therein. None of the technology
employed by the Company has been obtained or is being used by the
Company in violation of any contractual obligation binding on the
Company or, to the knowledge of the Company, any of its officers,
directors or employees, or otherwise in violation of the rights of
any persons.
(s)
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, 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.
(t)
No Integration. Neither the Company nor
any of its affiliates has, directly or through any agent, sold,
offered for sale, solicited offers to buy or otherwise negotiated
in respect of, any security (as defined in the Securities Act),
that is or will be integrated with the Exchange or the Subscription
in a manner that would require registration of the Securities under
the Securities Act.
(u)
Litigation; Governmental Proceedings.
There is no action, suit, proceeding, inquiry, arbitration,
investigation, litigation or governmental proceeding pending or, to
the Company’s knowledge, threatened against, or involving the
Company which (i) has not been disclosed in the SEC Reports and, if
resolved adversely to the Company, is reasonably likely to result
in a Material Adverse Effect or (ii) adversely affects or
challenges the legality, validity or enforceability of any of the
Transaction Documents, the New Notes or the Underlying
Shares.
(a)
The Investor is a
corporation, limited partnership, limited liability company or
other entity, as the case may be, duly formed, validly existing and
in good standing under the laws of the jurisdiction of its
formation.
(b)
The Investor has
full power and authority to tender, assign and transfer the
Exchanged Old Notes in exchange for the Exchanged New Notes
pursuant to this Agreement and to enter into this Agreement and
perform all obligations required to be performed by the Investor
hereunder. If the Investor is executing this Agreement on behalf of
an Account, (i) the Investor has all requisite authority to enter
into this Agreement on behalf of, and, bind, each Account to the
terms of this Agreement, (ii) Exhibit A hereto is a true,
correct and complete list of (A) the name of each Purchaser and (B)
the principal amount of each Purchaser's Exchanged Old Notes and
(iii) Exhibit B
hereto is a true, correct and complete list of each Purchaser and
the aggregate principal amount of Purchased New Notes each such
Purchaser agrees to purchase hereunder.
(c)
Each Purchaser
participating in the Exchange is the current beneficial owner of
the Exchanged Old Notes. When the Exchanged Old Notes are
exchanged, the Company will acquire good, marketable and
unencumbered title thereto, free and clear of all liens,
restrictions, charges, encumbrances, adverse claims, rights or
proxies.
(d)
Participation in
the New Notes Offering will not contravene (1) any law, rule
or regulation binding on the Investor or any investment guideline
or restriction applicable to the Investor (or, if applicable, any
Account) and (2) the charter or bylaw (or equivalent
organizational documents) of the Investor (or, if applicable, any
Account).
(e)
The Investor (or
applicable Account) is a resident of the jurisdiction set forth in
Exhibit D and,
unless otherwise set out in Exhibit A and Exhibit B hereto is not
acquiring the Exchanged New Notes or the Purchased New Notes,
respectively, as a nominee or agent or otherwise for any other
person.
(f)
The Investor has
received a copy of the Transaction Documents. The Investor
acknowledges that: (1) no person has been authorized to give any
information or to make any representation concerning the New Notes
Offering or the Company or any of its subsidiaries, other than as
contained in this Agreement or the Transaction Documents or in the
information (i) contained in the Company’s periodic and
current reports filed by the Company with the Commission or (ii)
given by the Company’s duly authorized officers and employees
in connection with the Investor’s examination of the Company
and its subsidiaries and the terms of the New Notes Offering; and
(2) the Company and its subsidiaries do not take any responsibility
for, and cannot provide any assurance as to the reliability of, any
other information that may have been provided to the
Investor.
(g)
The Investor
understands and accepts that acquiring the New Notes in the New
Notes Offering involves risks, including those risks set forth in
the SEC Reports. The Investor has such knowledge, skill and
experience in business, financial and investment matters that the
Investor is capable of evaluating the merits and risks of the New
Notes Offering and an investment in the New Notes. With the
assistance of its own professional advisors (to the extent the
Investor has deemed appropriate), the Investor has made its own
legal, tax, accounting and financial evaluation of the merits and
risks of an investment in the New Notes and the consequences of the
New Notes Offering and this Agreement. The Investor has considered
the suitability of the New Notes as an investment in light of its
own circumstances and financial condition, and the Investor is able
to bear the risks associated with an investment in the New
Notes.
(h)
The Investor
confirms that it is not relying on any communication (written or
oral) of the Company or any of its agents or affiliates as
investment advice or as a recommendation to participate in the New
Notes Offering and receive the New Notes pursuant to the terms
hereof. It is understood that information provided in the
Transaction Documents, or by the Company or any of its agents or
affiliates, shall not be considered investment advice or a
recommendation with respect to the New Notes Offering, and that
neither the Company nor any of its agents or affiliates is acting
or has acted as an advisor to the Investor in deciding whether to
participate in the New Notes Offering.
(i)
The Investor
confirms that the Company has not (1) given any guarantee or
representation as to the potential success, return, effect or
benefit (either legal, regulatory, tax, financial, accounting or
otherwise) of an investment in the New Notes; or (2) made any
representation to the Investor regarding the legality of an
investment in the New Notes under applicable investment guidelines,
laws or regulations. In deciding to participate in the New Notes
Offering, the Investor is not relying on the advice or
recommendations of the Company, and the Investor has made its own
independent decision that the investment in the New Notes is
suitable and appropriate for the Investor.
(j)
The Investor is a
sophisticated participant in the transactions contemplated hereby
and has such knowledge and experience in financial and business
matters as to be capable of evaluating the merits and risks of an
investment in the New Notes, is experienced in investing in capital
markets and is able to bear the economic risk of an investment in
the New Notes. The Investor is familiar with the business and
financial condition and operations of the Company and its
subsidiaries and has conducted its own investigation of the Company
and its subsidiaries and the New Notes and has consulted with its
own advisors concerning such matters and shall be responsible for
making its own independent investigation and appraisal of the
transactions contemplated hereby. The Investor has had access to
the Company filings with the Commission and such other information
concerning the Company and its subsidiaries and the New Notes as it
deems necessary to enable it to make an informed investment
decision concerning the New Notes Offering. The Investor has been
offered the opportunity to ask questions of the Company and its
representatives and has received answers thereto as the Investor
deems necessary to enable it to make an informed investment
decision concerning the New Notes Offering and the New
Notes.
(k)
The Investor
understands that no federal, state, local or foreign agency has
passed upon the merits or risks of an investment in the New Notes
or made any finding or determination concerning the fairness or
advisability of such investment.
(l)
The Investor is an
“accredited investor” as defined in Rule 501(a) under
the Securities Act and a “qualified institutional
buyer” as defined in Rule 144A under the Securities Act. The
Investor agrees to furnish any additional information reasonably
requested by the Company or any of its affiliates to assure
compliance with applicable U.S. federal and state securities laws
in connection with the New Notes Offering.
(m)
The Investor is not
directly, or indirectly through one or more intermediaries,
controlling or controlled by, or under direct or indirect common
control with, the Company and is not, and has not been for the
immediately preceding three months, an “affiliate”
(within the meaning of Rule 144 under the Securities Act) of the
Company.
(n)
The Investor is
acquiring the New Notes solely for the Investor’s own
beneficial account, or for an account with respect to which the
Investor exercises sole investment discretion, for investment
purposes, and not with a view to, or for resale in connection with,
any distribution of the New Notes that is impermissible under
applicable law. The Investor understands that the offer and sale of
the New Notes have not been registered under the Securities Act or
any state securities laws by reason of specific exemptions under
the provisions thereof that depend in part upon the investment
intent of the Investor and the accuracy of the other
representations made by the Investor in this
Agreement.
(o)
The Investor
understands that the Company is relying upon the representations
and agreements contained in this Agreement (and any supplemental
information) for the purpose of determining whether the
Investor’s participation in the New Notes Offering meets the
requirements for the exemptions referenced in Section 6(n) above.
(p)
The Investor
acknowledges that the New Notes have not been registered under the
Securities Act. As a result, until registered under the Securities
Act, the New Notes may not be offered or sold within the United
States or to, or for the account or benefit of, U.S. persons,
except pursuant to an exemption from, or in a transaction not
subject to, the registration requirements of the Securities Act as
described in the Indenture, and the Investor hereby agrees that it
will not sell the New Notes other than in compliance with such
transfer restrictions. Further, the Investor acknowledges that the
New Notes will initially be issued pursuant to a restricted CUSIP
number.
(q)
The Investor
acknowledges that the terms of the New Notes Offering have been
mutually negotiated between the Investor and the Company. The
Investor was given a meaningful opportunity to negotiate the terms
of the New Notes Offering.
(r)
The Investor will,
upon request, execute and deliver any additional documents,
information or certifications reasonably requested by the Company,
the Trustee to complete the New Notes Offering.
(s)
The Investor
understands that, unless the Investor notifies the Company in
writing to the contrary before the Closing, each of the
Investor’s representations and warranties contained in this
Agreement will be deemed to have been reaffirmed and confirmed as
of the Closing, taking into account all information received by the
Investor.
(t)
The Investor
acknowledges that it had a sufficient amount of time to consider
whether to participate in the New Notes Offering and that the
Company has not placed any pressure on the Investor to respond to
the opportunity to participate in the New Notes Offering. The
Investor acknowledges that it did not become aware of the New Notes
Offering through any form of general solicitation or advertising
within the meaning of Rule 502 under the Securities
Act.
(u)
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 has performed due
diligence necessary to reasonably determine that its (or, where
applicable, the Accounts’) beneficial owners 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.
(a)
The satisfaction at
or prior to the Closing of the condition precedent that the
representations and warranties of the Company on the one hand, and
of the Investor on the other contained in Sections 5 and 6, respectively, shall be
true and correct as of the Closing in all material respects with
the same effect as though such representations and warranties had
been made as of the Closing.
(c)
The maximum number
of Underlying Shares initially issuable upon conversion of the New
Notes (assuming settlement solely in shares of Common Stock and
taking into account the maximum make-whole adjustment under the
Indenture) have been approved for listing on Nasdaq.
(d)
Solely as to the
obligations of the Investor:
i.
The execution and
delivery of the Registration Rights Agreement by the Company and
the execution and delivery by the Company and the Trustee of the
Indenture.
ii.
The delivery to the
Investor of a certificate of the chief financial officer or chief
accounting officer of the Company and one additional senior
executive officer of the Company confirming that the
representations and warranties of the Company in this Agreement are
true and correct as of the Closing Date and that the Company has
complied with all agreements and satisfied all conditions on their
part to be performed or satisfied hereunder at or prior to the
Closing Date.
iii.
The delivery to the
Investor of an opinion from (x) Akerman LLP (or if Akerman LLP is
unable to issue such an opinion, of another nationally recognized
law firm proposed by the Company that is reasonably acceptable to
the Investor), and (y) Xxxxx & Xxxxxx L.L.P., Nevada counsel
for the Company, in each case, dated as of the Closing Date and in
form and substance reasonably satisfactory to the
Investor.
iv.
The payment of fees
of counsel of King & Spalding LLP as contemplated by that Fee
Letter, dated January 5, 2020, between the Company and King &
Spalding LLP.
v.
From the date
hereof to the Closing Date, trading in the Common Stock shall not
have been suspended by the Commission or Nasdaq, and, at any time
prior to the Closing Date, trading in securities generally as
reported by Bloomberg L.P. shall not have been suspended or
limited, or minimum prices shall not have been established on
securities whose trades are reported by such service, or on Nasdaq,
nor shall a banking moratorium have been declared either by the
United States or New York State authorities nor shall there have
occurred any material outbreak or escalation of hostilities or
other national or international calamity of such magnitude in its
effect on, or any material adverse change in, any financial market
which, in each case, in the reasonable judgment of the Investor,
makes it impracticable or inadvisable to proceed with the
Closing
8.
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 announcing the New Notes Offering, 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
to the extent such confidential information constitutes material
non-public information. 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.
9.
Integration. The Company shall
not sell, offer for sale or solicit offers to buy or otherwise
negotiate in respect of any security (as defined in Section 2 of
the Securities Act) that would be integrated with the offer or sale
of the New Notes or the Underlying Shares in a manner that would
require the registration under the Securities Act of the sale of
the Shares or that would be integrated with the offer or sale of
the Shares for purposes of the rules and regulations of any trading
market on which the Common Stock is listed such that it would
require shareholder approval prior to the closing of such other
transaction unless shareholder approval is obtained before the
closing of such subsequent transaction.
10.
Covenant of the Investor. No
later than one (1) business day after the date hereof, the Investor
agrees to deliver settlement instructions for each Purchaser to the
Company substantially in the form of Exhibit D hereto.
11.
Waiver, Amendment. Neither this
Agreement nor any provisions hereof shall be modified, changed,
discharged or terminated except by an instrument in writing, signed
by the party against whom any waiver, change, discharge or
termination is sought.
12.
Assignability. Neither this
Agreement nor any right, remedy, obligation or liability arising
hereunder or by reason hereof shall be assignable by the Company or
the Investor without the prior written consent of the other
party.
13.
Taxation. The Investor
acknowledges that, if the Investor (or any Account) is a United
States person for U.S. federal income tax purposes, either
(1) the Company must be provided with a correct taxpayer
identification number (“TIN”), generally a person’s
social security or federal employer identification number, and
certain other information on Internal Revenue Service
(“IRS”) Form
W-9, which is provided as an attachment hereto, and a
certification, under penalty of perjury, that such TIN is correct,
that the Investor (or such Account) is not subject to backup
withholding and that the Investor is a United States person, or
(2) another basis for exemption from backup withholding must
be established. The Investor further acknowledges that, if the
Investor (or any Account) is not a United States person for U.S.
federal income tax purposes, (1) the Company must be provided
the appropriate IRS Form W-8 signed under penalties of perjury,
attesting to that non-U.S. Investor’s foreign status, and
(2) the Investor (or such Account) may be subject to U.S.
federal withholding or U.S. federal backup withholding tax on
certain payments made to the Investor (or such Account) unless the
Investor (or such Account) properly establishes an exemption from,
or a reduced rate of, withholding or backup
withholding.
14.
Waiver of Jury Trial. EACH OF
THE COMPANY AND THE INVESTOR (FOR ITSELF AND, IF APPLICABLE, ON
BEHALF OF EACH ACCOUNT) IRREVOCABLY WAIVES ANY AND ALL RIGHT TO
TRIAL BY JURY WITH RESPECT TO ANY LEGAL PROCEEDING ARISING OUT OF
THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT.
16.
Submission to Jurisdiction.
Each of the Company and the Investor (for itself and, if
applicable, on behalf of each Account) (a) agrees that any
legal suit, action or proceeding arising out of or relating to this
Agreement or the transactions contemplated hereby shall be
instituted exclusively in the courts of the State of New York
located in the City and County of New York or in the United States
District Court for the Southern District of New York;
(b) waives any objection that it may now or hereafter have to
the venue of any such suit, action or proceeding; and
(c) irrevocably consents to the jurisdiction of the aforesaid
courts in any such suit, action or proceeding. Each of the Company
and the Investor (for itself and, if applicable, on behalf of each
Account) agrees that a final judgment in any such action or
proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner
provided by law.
17.
Venue. Each of the Company and
the Investor (for itself and, if applicable, on behalf of each
Account) irrevocably and unconditionally waives, to the fullest
extent it may legally and effectively do so, any objection which it
may now or hereafter have to the laying of venue of any suit,
action or proceeding arising out of or relating to this Agreement
in any court referred to in Section 16. Each of the Company and
the Investor (for itself and, if applicable, on behalf of each
Account) irrevocably waives, to the fullest extent permitted by
law, the defense of an inconvenient forum to the maintenance of
such action or proceeding in any such court.
18.
Service of Process. Each of the
Company and the Investor (for itself and, if applicable, on behalf
of each Account) irrevocably consents to service of process in the
manner provided for notices in Section 21. Nothing in this
Agreement will affect the right of any party to this Agreement to
serve process in any other manner permitted by law.
19.
Section and Other Headings. The
section and other headings contained in this Agreement are for
reference purposes only and shall not affect the meaning or
interpretation of this Agreement.
20.
Counterparts.
This Agreement may be executed by one or more of the parties hereto
in any number of separate counterparts (including by facsimile or
other electronic means, including telecopy, email or otherwise),
and all of said counterparts taken together shall be deemed to
constitute one and the same instrument. Delivery of an executed
signature page of this Agreement by facsimile or other transmission
(e.g., “pdf” or “tif” format)
shall be effective as delivery of a manually executed counterpart
hereof.
21.
Notices. All notices and other
communications to the Company provided for herein shall be in
writing and shall be deemed to have been duly given if delivered
personally or sent by registered or certified mail, return receipt
requested, postage prepaid to the following addresses, or, in the
case of the Investor or any Account, the address provided in
Exhibit D (or such
other address as either party shall have specified by notice in
writing to the other):
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If to
the Company:
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000 X.
Xxxxxx Xxxx Xxxx
Xxxxxx,
Xxxxx 00000
Attention:
Chief Financial Officer
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In each
case, with a copy to (which shall not constitute
notice):
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Akerman
LLP
000 X.
Xxx Xxxx Xxxxxxxxx
Xxxx
Xxxxxxxxxx, XX 00000
Attn:
Xxxxxxx Xxxxxxx; Xxxxxxxxx Xxxxx
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22.
Binding Effect. The provisions
of this Agreement shall be binding upon and accrue to the benefit
of the parties hereto and their respective heirs, legal
representatives, successors and permitted assigns.
23.
Notification of Changes. The
Investor (for itself and, if applicable, on behalf of each Account)
hereby covenants and agrees to notify the Company upon the
occurrence of any event prior to the Closing that would cause any
representation, warranty, or covenant of the Investor (and/or such
Account) contained in this Agreement to be false or incorrect in
any material respect.
24.
Severability. If any term or
provision (in whole or in part) of this Agreement is invalid,
illegal or unenforceable in any jurisdiction, such invalidity,
illegality or unenforceability shall not affect any other term or
provision of this Agreement or invalidate or render unenforceable
such term or provision in any other jurisdiction.
[Signature
Pages Follow]
IN WITNESS WHEREOF, the Investor (for itself and, if
applicable, on behalf of each Account) has executed this Agreement
as of the date first written above.
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Legal
Name of Executing Investor:
___________________________
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By:
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[Signature Page to
Agreement]
IN WITNESS WHEREOF, the Investor (for itself and, if
applicable, on behalf of each Account) has executed this Agreement
as of the date first written above.
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By:
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By:
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[Signature
Page to Agreement]
ACCEPTED AND AGREED:
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[Signature Page to
Agreement]
EXHIBIT A
The Exchange Ratio: 1.0
EXHIBIT B
EXHIBIT C
NOTICE OF EXCHANGE/SUBSCRIPTION PROCEDURES
Attached
are Exchange/Subscription Procedures for the settlement of the
RumbleOn, Inc. (the “Company”) exchange and
subscription of its Convertible Senior Notes due 2025 (the
“New Notes”)
pursuant to the Agreement, dated as of January 10, 2020, between
you and the Company which is expected to occur on or about January
14, 2020. To ensure timely settlement, please follow the
instructions for exchanging your existing RumbleOn, Inc.’s
6.75% Convertible Senior Notes due 2024 (the “Old Notes”) and subscribing for
New Notes as set forth on the following page.
These instructions supersede any prior instructions you received.
Your failure to comply with the attached instructions may delay
your receipt of the New Notes.
If you
have any questions, please contact Xxxxxx Xxxxxxx at
(000) 000-0000.
Thank
you.
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Delivery of Old Notes
You must direct the
eligible DTC participant through which you hold a beneficial
interest in the Old Notes to post on January 14, 2020, no later than 9:00 a.m.,
New York City time, one-sided withdrawal instructions
through DTC via DWAC for transfer to Wilmington Trust, National
Association, the aggregate principal amount1 of Exchanged Old
Notes (CUSIP 781386 AA5 / ISIN: US781386AA56) set forth in column 2
of Exhibit A
(“Aggregate Principal Amount of Exchanged Old Notes”)
of the Agreement.
It
is important that this instruction be submitted and the DWAC posted
on January 14, 2020, no later than 9:00 a.m., New York City
time.
To receive New Notes
You must direct
your eligible DTC participant through which you wish to hold a
beneficial interest in the New Notes to post and accept on January
14, 2020, no later than 9:00 a.m., New York City time, a one-sided
deposit instruction through DTC via DWAC from Wilmington Trust,
National Association for the aggregate principal amount2 of Exchanged New
Notes (CUSIP/ISIN #781386 AB3 / US781386AB30) set forth in column 4
of Exhibit A
(“Aggregate Principal Amount of Exchanged New Notes”)
of the Agreement.
It
is important that this instruction be submitted and the DWAC posted
on January 14, 2020, no later than 9:00 a.m., New York City
time.
AND
1.
No later than 11:00 a.m., New York City time, on January 14
2020, you must pay the Cash Purchase Price set forth in
column 3 of Exhibit
B3
(“Cash Purchase Price”) of the Agreement by wire
transfer in immediately available funds to the following account of
the Company:
Beneficiary
Financial Center Name and Address:
______________________
______________________
______________________
Account
Holder/Beneficiary: __________
Beneficiary Account
Name: ___________
Beneficiary Account
Number: _________
ABA/Routing Number:
______________
You must complete
ALL steps described above in
order to complete the exchange of Old Notes for New
Notes.
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1 Note that the
DWAC instruction should specify the principal amount, not the
number, of Exchanged Old Notes.
2 Note that the
DWAC instruction should specify the principal amount, not the
number, of New Notes.
3 The Cash
Purchase Price is the amount of cash that you must wire to the
Company in connection with your purchase of New Notes.
EXHIBIT D
Purchaser Settlement Details
These settlement instructions are to be delivered to the Company
for each Purchaser no later than one (1) business day after the
date of the Agreement.
Name of
Purchaser:
Purchaser
Address:
Telephone:
Email
Address:
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SETTLEMENT
On
January 14, 2020, after the Company receives your Old Notes and
your Cash Purchase Price and your delivery instructions as set
forth above, and subject to the satisfaction of the conditions to
closing as set forth in your Agreement, the Company will deliver
your New Notes in accordance with the delivery instructions set
forth above.
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Country of
Residence:
Taxpayer
Identification Number:
Exchanged Old Notes
DTC Participant
Number:
DTC Participant
Name:
DTC Participant
Phone Number:
DTC Participant
Contact Email:
FFC Account #:
Account # at
Bank/Broker:
Exchanged New Notes (if different from Exchanged Old
Notes)
DTC Participant
Number:
DTC Participant
Name:
DTC Participant
Phone Number:
DTC Participant
Contact Email:
FFC Account #:
Account # at Bank/Broker:
EXHIBIT E
Indenture
See
Exhibit 4.1 to the Form 8-K.
EXHIBIT F
Registration Rights Agreement
See Exhibit 4.3 to the Form 8-K.
