SECOND AMENDMENT TO PLAN OF MERGER AND EQUITY PURCHASE AGREEMENT
Exhibit 2.1
SECOND AMENDMENT TO PLAN OF MERGER AND EQUITY PURCHASE
AGREEMENT
This Second Amendment to Plan of
Merger and Equity Purchase Agreement (this “Amendment”), dated July
20, 2021, is entered into by and among RumbleOn, Inc., a Nevada
corporation (the “Purchaser”), RO Merger
Sub I, Inc., an Arizona corporation and wholly owned subsidiary of
Purchaser (“Merger
Sub I”), RO Merger Sub II, Inc., an Arizona
corporation and wholly owned subsidiary of Purchaser
(“Merger Sub
II”), RO Merger Sub III, Inc., an Arizona corporation
and wholly owned subsidiary of Purchaser (“Merger Sub III”), RO
Merger Sub IV, Inc., an Arizona corporation and wholly owned
subsidiary of Purchaser (“Merger Sub IV”), RO
Merger Sub V, Inc., a Delaware corporation and wholly owned
subsidiary of Purchaser (“Merger Sub V” and
together with Merger Sub I, Merger Sub II, and Merger Sub III, and
Merger Sub IV, the “Merger Subs”), C&W
Motors, Inc., an Arizona corporation, CMG Powersports, Inc., a
Delaware corporation (“CMG Powersports”), Metro
Motorcycle, Inc., an Arizona corporation, Tucson Motorcycles, Inc.,
an Arizona corporation, and Tucson Motorsports, Inc., an Arizona
corporation, Xxxxxxx Xxxxxxx, an individual (“Xxxxxxx”), Xxxx Xxxxx, an
individual (“Xxxxx” and together with
Xxxxxxx, the “Principal Owners”), and
each other Person who owns an Equity Interest (as defined below) in
any Transferred Entity (as defined below) and executes a Seller
Joinder (as defined below) (together with the Principal Owners, the
“Sellers” and each, a
“Seller”), and Xxxx Xxxxx,
as the representative of the Sellers (the “Sellers’
Representative”). Capitalized terms used but not
otherwise defined herein shall have the respective meanings
assigned thereto in the Purchase Agreement (as defined
below).
RECITALS
WHEREAS, Purchaser,
the Merger Subs, the Principal Owners, Sellers’
Representative, and the other parties signatory thereto entered
into that certain Plan of Merger and Equity Purchase Agreement,
dated as of March 12, 2021, and that certain Joinder and First
Amendment to Plan of Merger and Equity Purchase Agreement, dated as
of June 17, 2021 (collectively, as amended, the “Purchase Agreement”);
and
WHEREAS, the
Parties hereto wish to further amend the Purchase Agreement to (a)
modify the terms under which either the Purchaser or Sellers’
Representative may terminate the Purchase Agreement by extending
the Outside Closing Date provided in Section 12.1(b)(i) of the
Purchase Agreement and (b) update Schedule 8.10 thereto to reflect
additional restricted stock units to be issued at or prior to the
Closing.
NOW,
THEREFORE, in consideration of the premises, the mutual covenants
set forth herein, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the
Parties hereby agree as follows:
1. Amendment
of Schedule 8.10. Schedule 8.10 to the Purchase Agreement is
hereby deleted in its entirety and replaced with Schedule 8.10
attached hereto.
2. Amendment of
Section 12.1(b)(i). Section 12.1(b)(i) of the Purchase
Agreement is hereby deleted in its entirety and replaced with the
following:
“(i)
the Closing has not
occurred by September 12, 2021 (the “Outside Closing Date”);
provided, that the right to terminate under this Section 12.1(b)(i) shall not be
available to any Party whose breach of its obligations, covenants,
representations or warranties has been the primary cause of the
failure to consummate the transactions by the Outside Closing Date;
provided, further, that if the Closing has not occurred by the
Outside Closing Date solely as a result of a failure to obtain
approval of any Factory, Sellers’ Representative may, in his
sole discretion, extend the Outside Closing Date until thirty (30)
days following the final resolution of any and all proceedings with
a Factory;”
3. Purchase
Agreement Otherwise Unchanged. Except as expressly provided
herein, the Purchase Agreement shall remain unchanged and in full
force and effect. Each reference to “this Agreement” or
“the Purchase Agreement” and words of similar import in
the Purchase Agreement and in the agreements and other documents
contemplated by the Purchase Agreement shall be a reference to the
Purchase Agreement, as amended hereby, and as the same may be
further amended, restated, supplemented and otherwise modified and
in effect from time to time.
4. Governing Law; Jury
Trial. This Amendment shall be governed by and interpreted
in accordance with the same laws and in the same manner as the
Purchase Agreement and Sections 11.1 and 13.7 of the Purchase
Agreement are incorporated herein by reference, mutatis mutandis.
5. Miscellaneous.
This Amendment shall be binding upon and inure to the benefit of
each party to the Purchase Agreement and its successors and
permitted assigns. The headings in this Amendment are for reference
only and shall not affect the meaning or interpretation of this
Amendment. This Amendment may be executed in counterparts, each of
which is deemed an original, but all of which constitute one and
the same instrument. Delivery of an executed counterpart of this
Amendment electronically, via email or .pdf, or by facsimile shall
be effective as delivery of an original executed counterpart of
this Amendment
* * * *
*
IN WITNESS WHEREOF, the Parties have
executed this Amendment as of the date and year first set forth
above.
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PURCHASER:
By:
/s/ Xxxxxxxx
Xxxxxxxx
Name:
Xxxxxxxx Xxxxxxxx
Title:
Chairman of the Board and Chief Executive Officer
SELLERS:
By:
/s/ Xxxx
Xxxxx
Name:
Xxxx Xxxxx
SELLERS’ REPRESENTATIVE, on behalf
of the Sellers
By:
/s/ Xxxx
Xxxxx
Name:
Xxxx Xxxxx
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MERGED
ENTITIES:
C&W MOTORS, INC.,
an
Arizona corporation
By:
/s/ Xxxxxxx
Xxxxxxx
Name:
Xxxxxxx Xxxxxxx
Title:
Authorized Officer
METRO MOTORCYCLE, INC.,
an
Arizona corporation
By:
/s/ Xxxxxxx
Xxxxxxx
Name:
Xxxxxxx Xxxxxxx
Title:
Authorized Officer
TUCSON MOTORCYCLES, INC.,
an
Arizona corporation
By:
/s/ Xxxxxxx
Xxxxxxx
Name:
Xxxxxxx Xxxxxxx
Title:
Authorized Officer
TUCSON MOTORSPORTS, INC.,
an
Arizona corporation
By:
/s/ Xxxxxxx
Xxxxxxx
Name:
Xxxxxxx Xxxxxxx
Title:
Authorized Officer
CMG POWERSPORTS, INC.,
a
Delaware corporation
By:
/s/ Xxxxxxx
Xxxxxxx
Name:
Xxxxxxx Xxxxxxx
Title:
Authorized Officer
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MERGER
SUBS:
RO MERGER SUB I, INC.,
an
Arizona corporation
By:
/s/ Xxxxxxxx
Xxxxxxxx
Name:
Xxxxxxxx Xxxxxxxx
Title:
President
RO MERGER SUB II, INC.,
an
Arizona corporation
By:
/s/ Xxxxxxxx
Xxxxxxxx
Name:
Xxxxxxxx Xxxxxxxx
Title:
President
RO MERGER SUB III, INC.,
an
Arizona corporation
By:
/s/ Xxxxxxxx
Xxxxxxxx
Name:
Xxxxxxxx Xxxxxxxx
Title:
President
RO MERGER SUB IV, INC.,
an
Arizona corporation
By:
/s/ Xxxxxxxx
Xxxxxxxx
Name:
Xxxxxxxx Xxxxxxxx
Title:
President
RO MERGER SUB V, INC.,
a
Delaware corporation
By:
/s/ Xxxxxxxx
Xxxxxxxx
Name:
Xxxxxxxx Xxxxxxxx
Title:
President
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