RUMBLEON, INC. 2017 Stock Incentive Plan
(Full
title of the plan)
Marshall Chesrown
Chairman and Chief Executive Officer
RumbleOn, Inc.
4521 Sharon Road
Suite 370
Charlotte, North Carolina 28211
(Name
and address of agent for service)
(704) 448-5240
(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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(Do not check if a smaller reporting
company)
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Smaller reporting company
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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
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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:
1)
Our Annual Report
on Form 10-K for the year ended December 31, 2017, filed with the
SEC on February 27, 2018, as amended on Form 10-K/A, filed with the
SEC on March 30, 2018;
2)
Our Quarterly
Report on Form 10-Q for the quarter ended March 31, 2018, filed
with the SEC on April 30, 2018;
3)
Our Quarterly
Report on Form 10-Q for the quarter ended June 30, 2018, filed with
the SEC on July 27, 2018;
4)
Our Current Reports
on Form 8-K as filed with the SEC on February 23, 2018, May 1,
2018, June 28, 2018, July 17, 2018, July 18, 2018, and
July 20, 2018; and
5)
The description of
our Common Stock included in our Registration Statement on Form
8-A, filed pursuant to Section 12 of the Exchange Act on October
18, 2017, under the caption Item 1. Description of
Registrant’s Securities to be Registered.
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.
4521
Sharon Road
Suite
370
Charlotte,
North Carolina 28211
(704)
448-5240
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.
Item 8. Exhibits.
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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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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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Consent
of Akerman LLP (included in Exhibit 5.1).
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Consent
of Scharf Pera & Co., PLLC.
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24.1
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Power
of Attorney (included on signature pages).
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Item 9. Undertakings.
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;
ii.
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.
SIGNATURES
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 Charlotte,
State of North Carolina, on this 30
th
day of July,
2018.
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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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Chief
Executive Officer and Chairman
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July
30, 2018
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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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July
30, 2018
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Steven
R. Berrard
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(Principal
Financial Officer and Principal Accounting Officer)
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/s/
Denmar
Dixon
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Director
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July
30, 2018
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Denmar
Dixon
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/s/
Richard A. Gray,
Jr.
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Director
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July
30, 2018
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Richard
A. Gray, Jr.
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/s/
Kartik
Kakarala
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Director
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July
30, 2018
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Kartik
Kakarala
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/s/
Kevin
Westfall
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Director
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July
30, 2018
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Kevin
Westfall
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