RUMBLEON, INC. 2017 Stock Incentive Plan
(Full title of the
plan)
Marshall
Chesrown
Chairman
and Chief Executive Officer
RumbleOn,
Inc.
901
W. Walnut Hill Lane
Irving, Texas
75038
(Name and address
of agent for service)
(214) 771-9952
(Telephone number,
including area code, of agent for service)
With a copy to:
Christina
C. Russo
Akerman
LLP
350
East Las Olas Boulevard
Suite
1600
Fort
Lauderdale, Florida 33301
Telephone:
(954) 463-2700
Indicate by check
mark whether the registrant is a large accelerated filer, an
accelerated filer, a non-accelerated filer, a smaller reporting
company or an emerging growth company. See the definitions of
“large accelerated filer,” “accelerated
filer,” “smaller reporting company,” and
“emerging growth company” in Rule 12b-2 of the
Exchange Act.
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Large accelerated
filer
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Accelerated
filer
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Non-accelerated
filer
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☒
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Smaller reporting
company
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☒
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Emerging growth
company
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If an emerging
growth company, indicate by check mark if the registrant has
elected not to use the extended transition period for complying
with any new or revised financial accounting standards provided to
Section 7(a)(2)(B) of the Securities Act. ☐
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3.
Incorporation of Documents by Reference.
The following
documents filed with the SEC by us pursuant to the Securities
Exchange Act of 1934, as amended (the “Exchange Act”),
are incorporated by reference in this Registration Statement, other
than information furnished pursuant to Item 2.02 or Item 7.01 of
Form 8-K:
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The Annual Report
on Form 10–K for the fiscal year ended December 31, 2019,
filed on
May 29, 2020, as amended on Form 10-K/A, filed on
June 2, 2020;
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Our Quarterly
Report on Form 10-Q for the quarter ended March 31, 2020, filed
with the SEC on
June 29, 2020;
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Our Quarterly
Report on Form 10-Q for the quarter ended June 30, 2020, filed with
the SEC on
August 14, 2020;
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The
Current Reports on Form 8–K filed on
January 9, 2020,
January 10, 2020,
January 14, 2020,
January 16, 2020,
January 17, 2020,
January 21, 2020,
March 4, 2020,
March 30, 2020,
April 15, 2020,
May 7, 2020,
May 14, 2020,
May 19, 2020,
July 20, 2020,
July 21, 2020,
July 27, 2020,
August 24, 2020, and
August 26, 2020;
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The description of
the Company’s common stock contained in the Company’s
Registration Statement on Form 8-A, filed with the SEC on
October 18, 2017.
In addition, all
documents filed by us pursuant to Sections 13(a), 13(c), 14 and
15(d) of the Exchange Act, other than information furnished
pursuant to Item 2.02 or Item 7.01 of Form 8-K, subsequent to the
date of this Registration Statement and prior to the filing of a
post-effective amendment to this Registration Statement which
indicates that all securities offered have been sold or which
deregisters all securities then remaining unsold, shall be deemed
to be incorporated by reference into this Registration Statement
and to be a part hereof from the date of filing of such documents.
Any statement in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or
superseded for the purposes of this Registration Statement to the
extent that a statement contained herein or in any other
subsequently filed document which also is or deemed to be
incorporated by reference herein modifies or supersedes such
statement. Any statement so modified or superseded shall not be
deemed, except as so modified or superseded, to constitute a part
of this Registration Statement.
We will provide to
you, upon request, a copy of each of our filings at no cost. Please
make your request by writing or telephoning us at the following
address or telephone number:
RumbleOn,
Inc.
901 W. Walnut Hill
Lane
Irving,
Texas 75038
(214)
771-9952
You should rely
only on the information incorporated by reference or provided in
this prospectus or any supplement. We have not authorized anyone
else to provide you with different information. You should not
assume that the information in this prospectus or any supplement is
accurate as of any date other than the date on the front of those
documents.
Item 4.
Description of Securities.
Not
applicable.
Item 5.
Interests of Named Experts and Counsel.
Not
applicable.
Item 6.
Indemnification of Directors and Officers.
No director of
RumbleOn will have personal liability to us or any of our
stockholders for monetary damages for breach of fiduciary duty as a
director involving any act or omission of any such director since
provisions have been made in our Articles of Incorporation limiting
such liability. The foregoing provisions shall not eliminate or
limit the liability of a director for:
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any breach of the
director’s duty of loyalty to us or our
stockholders.
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acts or omissions
not in good faith or, which involve intentional misconduct or a
knowing violation of law.
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the payment of
dividends in violation of Section 78.300 of the Nevada Revised
Statutes. or
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for any transaction
from which the director derived an improper personal
benefit.
We are a
corporation organized under the laws of the State of Nevada.
Section 78.138 of the Nevada Revised Statutes (“NRS”) provides that, unless the
corporation’s articles of
incorporation provide otherwise, a director or officer will not be
individually liable unless it is proven that (i) the
director’s or
officer’s acts or
omissions constituted a breach of his or her fiduciary duties, and
(ii) such breach involved intentional misconduct, fraud, or a
knowing violation of the law.
Section 78.7502 of
the NRS permits a company to indemnify its directors and officers
against expenses, judgments, fines, and amounts paid in settlement
actually and reasonably incurred in connection with a threatened,
pending, or completed action, suit, or proceeding, if the officer
or director (i) is not liable pursuant to NRS 78.138, or (ii) acted
in good faith and in a manner the officer or director reasonably
believed to be in or not opposed to the best interests of the
corporation and, if a criminal action or proceeding, had no
reasonable cause to believe the conduct of the officer or director
was unlawful. Section 78.7502 of the NRS requires a corporation to
indemnify a director or officer that has been successful on the
merits or otherwise in defense of any action or suit. Section
78.7502 of the NRS precludes indemnification by the corporation if
the officer or director has been adjudged by a court of competent
jurisdiction, after exhaustion of all appeals, to be liable to the
corporation or for amounts paid in settlement to the corporation,
unless and only to the extent that the court determines that in
view of all the circumstances, the person is fairly and reasonably
entitled to indemnity for such expenses and requires a corporation
to indemnify its officers and directors if they have been
successful on the merits or otherwise in defense of any claim,
issue, or matter resulting from their service as a director or
officer.
Section 78.751 of
the NRS permits a Nevada company to indemnify its officers and
directors against expenses incurred by them in defending a civil or
criminal action, suit, or proceeding as they are incurred and in
advance of final disposition thereof, upon determination by the
stockholders, the disinterested board members, or by independent
legal counsel. If so provided in the corporation’s articles of incorporation, bylaws,
or other agreement, Section 78.751 of the NRS requires a
corporation to advance expenses as incurred upon receipt of an
undertaking by or on behalf of the officer or director to repay the
amount if it is ultimately determined by a court of competent
jurisdiction that such officer or director is not entitled to be
indemnified by the company. Section 78.751 of the NRS further
permits the company to grant its directors and officers additional
rights of indemnification under its articles of incorporation,
bylaws, or other agreement.
Section 78.752 of
the NRS provides that a Nevada company may purchase and maintain
insurance or make other financial arrangements on behalf of any
person who is or was a director, officer, employee, or agent of the
company, or is or was serving at the request of the company as a
director, officer, employee, or agent of another company,
partnership, joint venture, trust, or other enterprise, for any
liability asserted against him and liability and expenses incurred
by him in his capacity as a director, officer, employee, or agent,
or arising out of his status as such, whether or not the company
has the authority to indemnify him against such liability and
expenses.
Article VI of our
amended Bylaws provide for indemnification of our directors,
officers, and employees in most cases for any liability suffered by
them or arising out of their activities as directors, officers, and
employees if they were not engaged in willful misfeasance or
malfeasance in the performance of his or her duties. provided that
in the event of a settlement the indemnification will apply only
when the Board of Directors approves such settlement and
reimbursement as being for our best interests. Our Bylaws,
therefore, limit the liability of directors to the maximum extent
permitted by Nevada law (Section 78.751).
Our officers and
directors are accountable to us as fiduciaries, which means they
are required to exercise good faith and fairness in all dealings
affecting RumbleOn. In the event a stockholder believes the
officers or directors have violated their fiduciary duties, the
stockholder may, subject to applicable rules of civil procedure, be
able to bring a class action or derivative suit to enforce the
stockholder’s rights,
including rights under certain federal and state securities laws
and regulations to recover damages from and require an accounting
by management. Stockholders who have suffered losses in connection
with the purchase or sale of their interest in RumbleOn in
connection with such sale or purchase, including the misapplication
by any such officer or director of proceeds from a sale of
securities may be able to recover such losses from us.
At present, there
is no pending litigation or proceeding involving any of our
directors or officers in which indemnification or advancement is
sought. We are not aware of any threatened litigation that may
result in claims for advancement or indemnification.
We have been
advised that in the opinion of the SEC, insofar as indemnification
for liabilities arising under the Securities Act may be permitted
to our directors, officers and other persons pursuant to the
foregoing provisions, or otherwise, such indemnification is against
public policy as expressed in the Securities Act and is therefore
unenforceable. In the event a claim for indemnification against
such liabilities (other than payment of expenses incurred or paid
by a director or officer in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or other
person in connection with the securities being registered, we will,
unless in the opinion of our counsel the matter has been settled by
controlling precedent, submit to a court of appropriate
jurisdiction the question of whether such indemnification is
against public policy as expressed in the Securities Act and will
be governed by the final adjudication of such issue.
Item 7.
Exemption From Registration Claimed.
Not
applicable.
Exhibit No.
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Description
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Articles of
Incorporation filed on October 24, 2013 (Incorporated by reference
to Exhibit 3(i)(a) in the Company's Registration Statement on Form
S-1/A, filed on March 20, 2014).
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Certificate of
Amendment to Articles of Incorporation, filed on February 13, 2017
(Incorporated by reference to Exhibit 3.3 in the Company's Annual
Report on Form 10-K, filed on February 14, 2017).
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Certificate of
Amendment to Articles of Incorporation filed on June 25, 2018
(Incorporated by reference to Exhibit 3.1 in the
Company’s Current Report
on Form 8-K filed June 28, 2018).
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Certificate of
Change (Incorporated by reference to Exhibit 3.1 in the Company's
Current Report on Form 8-K, filed on May 19,
2020).
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ByLaws as Amended
(Incorporated by reference to Exhibit 3.2 in the Company's Annual
Report on Form 10-K, filed on February 14, 2017).
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Opinion of Akerman
LLP.
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RumbleOn, Inc. 2017
Stock Incentive Plan (Incorporated by reference to Exhibit 10.1 in
the Company’s Current
Report on Form 8-K filed on January 9, 2017).
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Amendment to the
RumbleOn, Inc. 2017 Stock Incentive Plan (Incorporated by reference
to Exhibit 10.1 in the Company’s Current Report on Form 8-K filed
on June 28, 2018).
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Amendment to the
RumbleOn, Inc. 2017 Stock Incentive Plan (Incorporated by reference
to Exhibit 10.1 in the Company’s Current Report on Form 8-K
filed on May 22, 2019).
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Amendment to the
RumbleOn, Inc. 2017 Stock Incentive Plan (Incorporated by reference
to Exhibit 10.1 in the Company's Current Report on Form 8-K filed
on August 26, 2020).
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Consent of Akerman
LLP (included in Exhibit 5.1).
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Consent of
Grant Thornton LLP.
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Consent of Scharf
Pera & Co., PLLC.
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Power of Attorney
(included on signature pages).
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The undersigned
registrant hereby undertakes:
(1)
To file, during any
period in which offers or sales are being made, a post-effective
amendment to this Registration Statement:
i.
To include any
prospectus required by section 10(a)(3) of the Securities Act of
1933;
ii.
To reflect in the
prospectus any facts or events arising after the effective date of
the Registration Statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
Registration Statement. Notwithstanding the foregoing, any increase
or decrease in volume of securities offered (if the total dollar
value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) if, in
the aggregate, the changes in volume and price represent no more
than a 20 percent change in the maximum aggregate offering price
set forth in the “Calculation of Registration
Fee” table in the
effective Registration Statement;
iii.
To include any
material information with respect to the plan of distribution not
previously disclosed in the Registration Statement or any material
change to such information in the Registration
Statement;
provided, however, that
paragraphs (1)(i) and (1)(ii) of this section do not apply if the
information required to be included in a post-effective amendment
by those paragraphs is contained in reports filed with or furnished
to the Commission by the registrant pursuant to Section 13 or 15(d)
of the Exchange Act that are incorporated by reference in the
Registration Statement.
(2)
That, for the
purpose of determining any liability under the Securities Act, each
such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to
be the initial bona fide offering thereof.
(3)
To remove from
registration by means of a post-effective amendment any of the
securities being registered which remain unsold at the termination
of the offering.
(4)
The undersigned
registrant hereby undertakes that, for purposes of determining any
liability under the Securities Act, each filing of the
registrant’s annual
report pursuant to Section 13(a) or 15(d) of the Exchange Act (and,
where applicable, each filing of an employee benefit
plan’s annual report
pursuant to Section 15(d) of the Exchange Act) that is incorporated
by reference in the Registration Statement shall be deemed to be a
new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(5)
Insofar as
indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of
the registrant pursuant to the foregoing provisions, or otherwise,
the registrant has been advised that in the opinion of the
Commission such indemnification is against public policy as
expressed in the Securities Act and is, therefore, unenforceable.
In the event that a claim for indemnification against such
liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of
the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the
registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification
by it is against public policy as expressed in the Securities Act
and will be governed by the final adjudication of such
issue.
Pursuant to the
requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused
this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Irving,
State of Texas, on this 18th day of September 2020.
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RUMBLEON, INC.
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By:
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/s/ Marshall
Chesrown
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Name:
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Marshall
Chesrown
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Title:
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Chief Executive
Officer and Chairman
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KNOW ALL MEN BY
THESE PRESENTS, that each person whose signature appears below
constitutes and appoints each of Marshall Chesrown and Steven R.
Berrard his true and lawful attorney-in-fact and agent, for him and
in his name, place and stead, in any and all capacities, to sign
any and all amendments, including post-effective amendments, to
this Registration Statement, and to file the same, with all
exhibits thereto, and other documents in connection therewith, with
the Securities and Exchange Commission granting unto said
attorney-in-fact and agent, full power and authority to do and
perform each and every act and thing requisite and necessary to be
done, as fully to all intents and purposes as he might or could do
in person, hereby ratifying and confirming all that said
attorney-in-fact and agent or his substitute or substitutes, may
lawfully do or cause to be done by virtue hereof.
Pursuant to the
requirements of the Securities Act of 1933, this Registration
Statement has been signed by the following persons in the
capacities and on the dates indicated.
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Signature
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Title
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Date
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/s/
Marshall Chesrown
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Chief Executive
Officer and Chairman
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September 18,
2020
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Marshall
Chesrown
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(Principal
Executive Officer)
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/s/ Steven R.
Berrard
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Chief Financial
Officer and Director
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September 18,
2020
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Steven R.
Berrard
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(Principal
Financial Officer and Principal Accounting Officer)
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/s/ Adam
Alexander
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Director
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September 18,
2020
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Adam
Alexander
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/s/
Denmar
Dixon
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Director
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September 18,
2020
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Denmar
Dixon
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/s/ Richard A.
Gray, Jr.
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Director
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September 18,
2020
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Richard A. Gray,
Jr.
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/s/ Michael
Marchlik
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Director
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September 18,
2020
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Michael
Marchlik
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/s/Kevin
Westfall
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Director
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September 18,
2020
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Kevin
Westfall
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