rmbl_ex4-1










Exhibit 4.1



 



Execution Copy






 


THIS
WARRANT AND ANY SHARES ACQUIRED UPON THE EXERCISE OF THIS WARRANT
HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE “ACT”), AND MAY NOT BE SOLD,
PLEDGED, HYPOTHECATED, DONATED OR OTHERWISE TRANSFERRED WITHOUT
COMPLIANCE WITH THE REGISTRATION OR QUALIFICATION PROVISIONS OF
APPLICABLE FEDERAL AND STATE SECURITIES LAWS OR APPLICABLE
EXEMPTIONS THEREFROM.

 



RUMBLEON, INC.

 



WARRANT TO PURCHASE CLASS B COMMON STOCK

 


Date of
Issuance
: March 12, 2021 (“Issuance Date”)

 


RumbleOn, Inc., a
Nevada corporation (the “Company”), certifies that, for
good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, Oaktree Capital Management, L.P.,
the registered holder hereof or its permitted assigns (the
“Holder”), is
entitled, subject to the terms and conditions set forth below, to
purchase from the Company, at the Exercise Price (as defined in
Section
1(c) below) then in
effect, upon surrender of this Warrant to Purchase Class B Common
Stock (including any Warrants to purchase Class B Common Stock
issued in exchange, transfer or replacement hereof, the
“Warrant”), at
any time or times on or after the Exercisability Date (as defined
below), but not after 11:59 p.m., New York Time, on the Expiration
Date (as defined below), the Warrant Shares (as defined below).
Except as otherwise defined herein, capitalized terms in this
Warrant shall have the meanings set forth in Section 18.

 


1. EXERCISE
OF WARRANT.

 


(a) 
Mechanics
of Exercise. Subject to the
terms and conditions hereof, this Warrant may be exercised by the
Holder on any day on or after the Exercisability Date, in whole or
in part, by (i) delivery of a written notice (including via email),
in the form attached hereto as Exhibit A (the “Exercise Notice”), of the
Holder’s election to exercise this Warrant to the Company,
and (ii) if the Holder is not electing a Cashless Exercise (as
defined below) pursuant to Section 1(d) of this Warrant, payment
to the Company of an amount equal to the applicable Exercise Price
multiplied by the number of Warrant Shares as to which this Warrant
is being exercised (the “Aggregate Exercise Price”) in cash
or wire transfer of immediately available funds (a
“Cash
Exercise”). The Holder shall not be required to
surrender this Warrant in order to effect an exercise hereunder,
provided, that in the event of an exercise of this Warrant for all
Warrant Shares then issuable hereunder, the Holder shall surrender
this Warrant to the Company by the third (3rd) Trading Day
following the Share Delivery Date (as defined below). On or before
the first (1st) Trading Day
following the date on which the Company has received the Exercise
Notice, the Company shall transmit by email an acknowledgement of
confirmation of receipt of the Exercise Notice to the Holder. No
ink original or medallion guarantee shall be required on any
Exercise Notice. The Company shall cause the Warrant Shares
purchased hereunder to be transmitted by the Transfer Agent to the
Holder by (x)(i) crediting the account of the Holder’s
or its designee’s balance account with The Depository Trust
Company through its Deposit or Withdrawal at Custodian system (or
any equivalent or replacement system) if the Company is then a
participant in such system and if the Warrant Shares may be so
delivered, and (ii) either (with respect to the Common Stock)
(A) there is an effective registration statement permitting the
issuance of the Warrant Shares to or

 




 








 






 


resale
of the Warrant Shares by the Holder or (B) the Warrant Shares are
eligible for resale by the Holder without volume or manner-of-sale
limitations pursuant to Rule 144 (assuming cashless exercise of the
Warrant), or (y) otherwise by physical delivery of a certificate or
copy of book-entry form representing such shares, registered in the
Company’s share register in the name of the Holder or its
designee, for the number of Warrant Shares to which the Holder is
entitled pursuant to such exercise to the address specified by the
Holder in the Exercise Notice, by the date that is the earlier of
(i) two (2) Trading Days after the delivery to the Company of the
Exercise Notice, and (ii) the number of Trading Days comprising the
Standard Settlement Period after the delivery to the Company of the
Exercise Notice (such date, the “Share Delivery Date”),
provided, that,
except in the case of a cashless exercise of the Warrant, the
Company shall have received the Aggregate Exercise Price payable by
the Holder for the Warrant Shares purchased hereunder on or prior
to the applicable Share Delivery Date. If this Warrant is submitted
in connection with any exercise pursuant to this Section 1(a) and the number of Warrant
Shares represented by this Warrant submitted for exercise is
greater than the number of Warrant Shares being acquired upon an
exercise, then the Company shall as soon as practicable and in no
event later than two (2) Trading Days after any exercise and at the
Company’s own expense, issue a new Warrant (in accordance
with Section
8(e)) representing
the right to purchase the number of Warrant Shares purchasable
immediately prior to such exercise under this Warrant, less the
number of Warrant Shares with respect to which this Warrant is
exercised. The Company shall pay any and all taxes that may be
payable with respect to the issuance and delivery of Warrant Shares
upon exercise of this Warrant. The Company agrees that the Transfer
Agent shall at all times be a participant in the FAST program (or
any equivalent or replacement program) so long as this Warrant
remains outstanding and exercisable. Upon delivery of the Exercise
Notice, so long as the Aggregate Exercise Price, in the case of a
Cash Exercise, is delivered to the Company on or before the first
(1st)
Trading Day following delivery of the Exercise Notice, the Holder
shall be deemed for all corporate purposes to have become the
holder of record of the Warrant Shares with respect to which this
Warrant has been exercised, irrespective of the date such Warrant
Shares are issued and deposited into the Holder’s account
with the Transfer Agent. If the Aggregate Exercise Price, in the
case of a Cash Exercise, is delivered to the Company any time after
the first (1st) Trading Day
following delivery of the Exercise Notice, the Holder shall be
deemed for all corporate purposes to have become the holder of
record of the Warrant Shares with respect to which this Warrant has
been exercised on the date of delivery of the Aggregate Exercise
Price.

 


(b) Failure to Deliver and Buy-In
Remedy. If the Company
fails for any reason (other than failure to receive any applicable
Aggregate Exercise Price) to deliver to the Holder the Warrant
Shares subject to an Exercise Notice by the Share Delivery Date,
the Company shall pay to the Holder, in cash, as liquidated damages
and not as a penalty, for each $1,000 of Warrant Shares subject to
such exercise (based on the Weighted Average Price of the Class B
Common Stock on the date of the applicable Exercise Notice), $10
per Trading Day (increasing to $20 per Trading Day on the fifth
(5th)
Trading Day after such liquidated damages begin to accrue) for each
Trading Day after such Share Delivery Date until such Warrant
Shares are delivered or Holder rescinds such exercise as provided
in the next sentence, provided, however, that Holder shall not
be entitled to any liquidated damages pursuant to this sentence if
Holder is entitled to a cash payment in connection with a Buy-In.
Any payments made pursuant to this Section 1(b) shall not constitute the
Holder’s exclusive remedy for such events; provided further, however, that any
payments made by the Company pursuant to this Section 1(b) shall reduce the amount
of any damages that the Holder may be entitled to as a remedy for
such events. If the Company fails to

 




 

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cause
the Transfer Agent to transmit to the Holder the Warrant Shares
pursuant to Section
1(a) by the Share
Delivery Date, then the Holder will have the right to rescind such
exercise. In addition to any other rights available to the Holder,
if the Company fails to cause the Transfer Agent to issue and
deposit into the Holder’s account with the Transfer Agent
such number of Warrant Shares to which the Holder is entitled upon
the Holder’s exercise pursuant to an exercise on or before
the Share Delivery Date, and if after such Share Delivery Date the
Holder is required by its broker to purchase (in an open market
transaction or otherwise) or the Holder’s brokerage firm
otherwise purchases, shares of Class B Common Stock to deliver in
satisfaction of a sale by the Holder of the Warrant Shares which
the Holder anticipated receiving upon such exercise (a
“Buy-In”), then
the Company shall (i) pay in cash to the Holder the amount, if any,
by which (x) the Holder’s total purchase price (including
brokerage commissions, if any) for the shares of Class B Common
Stock, so purchased in such Buy-In exceeds (y) the amount obtained
by multiplying (1) the number of shares of Class B Common Stock
purchased in such Buy-In by (2) the price at which the sell order
giving rise to such Buy-In was executed, and (ii) at the option of
the Holder, either reinstate the portion of the Warrant and
equivalent number of Warrant Shares for which such exercise was not
honored (in which case such exercise shall be deemed rescinded) or
deliver to Holder the number of shares of Class B Common Stock that
would have been issued had the Company timely complied with its
exercise and delivery obligations hereunder (in which case, if
Holder has not previously delivered to the Company the Aggregate
Exercise Price for such shares of Class B Common Stock, Holder
shall be required to deliver such Aggregate Exercise Price to the
Company prior the delivery of such shares of Class B Common
Stock).

 


(c) Exercise
Price. For purposes of
this Warrant, “Exercise
Price” initially means the Warrant Price, subject to
adjustment as provided herein. For the avoidance of doubt, all
references to the “Exercise Price” herein refers to the
then current Exercise Price.

 


(d) 
Cashless
Exercise. Notwithstanding
anything contained herein to the contrary, the Holder may, in its
sole discretion, exercise this Warrant in whole or in part and, in
lieu of making the cash payment otherwise contemplated to be made
to the Company upon such exercise in payment of the Aggregate
Exercise Price, elect instead to receive upon such exercise the
“Net Number” of shares of Class B Common Stock
determined according to the following formula (a
“Cashless
Exercise”):

 


Net
Number = (A x B) - (A x
C)


B

 


For
purposes of the foregoing formula:

 


A= the
total number of Warrant Shares with respect to which this Warrant
is then being exercised.

 


B= the
Weighted Average Price of the shares of Class B Common Stock (as
reported by Bloomberg) on the date immediately preceding the date
of the Exercise Notice.

 


C= the
Exercise Price then in effect for the applicable Warrant Shares at
the time of such exercise.

 




 

3








 






 


The
Company hereby covenants and agrees that the Warrant Shares issued
in a Cashless Exercise shall be deemed to have been acquired by the
Holder pursuant to Rule 3(a)(9) of the Securities Act.

 


(e) No
Fractional Shares or Scrip. No fractional
shares or scrip representing fractional shares shall be issued upon
the exercise of this Warrant. As to any fraction of a share that
the Holder would otherwise be entitled to purchase upon such
exercise, the Company shall pay a cash adjustment in respect of
such final fraction in an amount equal to such fraction multiplied
by the Exercise Price.

 


2. 
ADJUSTMENT OF EXERCISE
PRICE. The Exercise
Price for the Warrant Shares shall be subject to adjustment
(without duplication) upon the occurrence of any of the following
events at any time after the Exercisability Date:

 


(a) Stock Dividends, Combinations and
Splits. The issuance of
Common Stock as a dividend or distribution to all holders of Class
B Common Stock, or a subdivision, combination, split, reverse split
or reclassification of the outstanding shares of Class B Common
Stock into a greater or smaller number of shares, in which event
the Exercise Price shall be adjusted based on the following
formula:

 


where:

 



E1
= 

the Exercise Price
in effect immediately after (i) 9:00 a.m., New York City
time (the “Open of
Business”) on the first date on which the Class B
Common Stock can be traded without the right to receive an issuance
or distribution (the “Ex-Date”) in the case of a
dividend or distribution or (ii) the consummation of the
transaction in the case of a subdivision, combination, split,
reverse split or reclassification;





 



E0
= 

the Exercise Price
in effect immediately prior to (i) the Open of Business on the
Ex-Date in the case of a dividend or distribution or (ii) the
consummation of the transaction in the case of a subdivision,
combination, split, reverse split or reclassification;





 



N0
= 

the number of
shares of Class B Common Stock outstanding immediately prior to
(i) the Open of Business on the Record Date in the case of a
dividend or distribution or (ii) the consummation of the
transaction in the case of a subdivision, combination, split,
reverse split or reclassification; and





 



N1
= 

the number of
shares of Class B Common Stock equal to (i) in the case of a
dividend or distribution, the sum of the number of shares
outstanding immediately prior to the Open of Business on the Record
Date for such dividend or distribution plus the total number of
shares issued pursuant to such dividend or distribution or
(ii) in the case of a subdivision, combination, split, reverse
split or reclassification, the number of shares outstanding
immediately after such subdivision, combination, split, reverse
split or reclassification.





 




 

4








 






 


Such
adjustment shall become effective immediately after (i) the
Open of Business on the Ex-Date in the case of a dividend or
distribution or (ii) the consummation of the transaction in
the case of a subdivision, combination, split, reverse split or
reclassification. If any dividend or distribution or subdivision,
combination, split, reverse split or reclassification of the type
described in this Section 2 is declared or announced but
not so paid or made, the Exercise Price shall again be adjusted to
the Exercise Price that would then be in effect if such dividend or
distribution or subdivision, combination, split, reverse split or
reclassification had not been declared or announced, as the case
may be. If any event occurs of the type contemplated by the
provisions of this Section 2(a) but not expressly provided
for by such provisions (including, without limitation, the granting
of stock appreciation rights, phantom stock rights or other rights
with equity features to the holders of the Company’s equity
securities), then the Board of Directors will make an appropriate
adjustment in the Exercise Price and the number of Warrant Shares
so as to protect the rights of the Holder; provided, that no such
adjustment pursuant to this paragraph will increase the Exercise
Price or decrease the number of Warrant Shares as otherwise
determined pursuant to this Section 2.

 


(b) Below Exercise Price
Issuances. Other than any
dividend or distribution covered in Section 2(c), below, if there is an
issuance of Convertible Securities (other than the issuance of
Class B Common Stock upon the exercise of any Convertible
Securities outstanding, and at the Effective Price in effect (as
may be adjusted as provided for in the instrument governing such
Convertible Security), as of the date of the Merger Agreement) with
an Effective Price lower than the Exercise Price, the Exercise
Price will be adjusted to be the Effective Price of such
Convertible Securities being issued. Such adjustment shall become
effective immediately after the Open of Business on the second
Business Day preceding (i) the Ex-Date in the case of a dividend or
distribution or (ii) the date of the issuance in the case of an
issuance other than a dividend or distribution. In the event that
an issuance of such Convertible Securities is announced but such
Convertible Securities are not so issued, the Exercise Price shall
again be adjusted to be the Exercise Price that would then be in
effect if such issuance had not occurred.

 


(c) Other Dividends and
Distributions. The issuance as a
dividend or distribution to any holders of Class B Common Stock of
evidences of indebtedness, shares of capital stock or other
securities (other than Common Stock that is the subject of
Section
2(a) above, or
Purchase Rights that are the subject of Section 4(b) below), cash or other
property, in which event the Exercise Price will be adjusted based
on the following formula:

 


where:

 



E1
= 

the Exercise Price
in effect immediately after the Open of Business on the Ex-Date for
such dividend or distribution;





 



E0
= 

the Exercise Price
in effect immediately prior to the Open of Business on the Ex-Date
for such dividend or distribution;





 




 

5








 











P
= 

the Weighted
Average Price of a share of Class B Common Stock immediately prior
to the Open of Business on the second Business Day preceding the
Ex-Date for such dividend or distribution; and





 



FMV
= 

the Fair Market
Value of the portion of such dividend or distribution applicable to
one share of Class B Common Stock as of the Open of Business on the
Ex-Date for such dividend or distribution.





 


Such
decrease shall become effective immediately after the Open of
Business on the Ex-Date for such dividend or distribution. In the
event that such dividend or distribution is declared or announced
but not so paid or made, the Exercise Price shall again be adjusted
to be the Exercise Price which would then be in effect if such
distribution had not been declared or announced.

 


(d) Tender or Exchange
Offer. The payment in
respect of any tender offer or exchange offer by the Company for
outstanding Class B Common Stock on a pro rata basis, where the
cash and Weighted Average Price of any other consideration included
in the payment per share of the Class B Common Stock exceeds the
Weighted Average Price of a share of Class B Common Stock as of the
Open of Business on the second Business Day preceding the
expiration date of the tender or exchange offer (the
“Offer Expiration
Date”), in which event the Exercise Price will be
adjusted based on the following formula:

 


where:

 



E1
= 

the Exercise Price
in effect immediately after the Close of Business on the Offer
Expiration Date;





 



E0
= 

the Exercise Price
in effect immediately prior to the Close of Business on the Offer
Expiration Date;





 



N0
= 

the number of
shares of Class B Common Stock outstanding immediately prior to the
expiration of the tender or exchange offer (prior to giving effect
to the purchase or exchange of shares);





 



N1
= 

the number of
shares of Class B Common Stock outstanding immediately after the
expiration of the tender or exchange offer (after giving effect to
the purchase or exchange of shares);





 



A
= 

the aggregate cash
and Weighted Average Price of any other consideration payable for
shares of Class B Common Stock purchased in such tender offer or
exchange offer; and





 



P
= 

the Weighted
Average Price of a share of Class B Common Stock as of the Open of
Business on the second Business Day preceding the Offer Expiration
Date.






 




 

6








 






 


An
adjustment, if any, to the Exercise Price pursuant to this
Section
2(d) shall become
effective immediately after the Close of Business on the Offer
Expiration Date. In the event that the Company or a Subsidiary of
the Company is obligated to purchase shares of Class B Common Stock
pursuant to any such tender offer or exchange offer, but the
Company or such Subsidiary is permanently prevented by applicable
law from effecting any such purchases, or all such purchases are
rescinded, then the Exercise Price shall again be adjusted to be
the Exercise Price which would then be in effect if such tender
offer or exchange offer had not been made. Except as set forth in
the preceding sentence, if the application of this Section 2(d) to any tender offer or
exchange offer would result in an increase in the Exercise Price,
no adjustment shall be made for such tender offer or exchange offer
under this Section
2(d).

 


(e) Multiple
Adjustments. If any single
action would require adjustment of the Exercise Price pursuant to
more than one subsection of this Section 2, only one adjustment shall be
made and such adjustment shall be the amount of adjustment that has
the highest, relative to the rights and interests of the registered
holders of the Warrants then outstanding, absolute value. For the
purpose of calculations pursuant to this Section 2, the number of shares of
Class B Common Stock outstanding shall be based solely on the
number of shares of Class B Common Stock outstanding on the
applicable date of determination, without giving effect to the
conversion of any Convertible Securities outstanding as of such
date.

 


(f) Adjustment
Timing. Solely with
respect to an exercise of this Warrant for Class B Common Stock,
notwithstanding anything to the contrary set forth in this
Section
2 or any other
provision of this Warrant, if an Exercise Price adjustment becomes
effective on any Ex-Date, and a Holder that has exercised this
Warrant on or after such Ex-Date and on or prior to the related
Record Date would be treated as the record holder of the Class B
Common Stock on or prior to such Record Date, then, the Exercise
Price adjustment relating to such Ex-Date will not be made for such
exercising Holder. Instead, such Holder will be treated as if it
were the record owner of shares of Class B Common Stock on an
un-adjusted basis and participate in the related dividend,
distribution or other event giving rise to such
adjustment.

 


3. ADJUSTMENTS
TO NUMBER OF WARRANTS. Concurrently with
any adjustment to the Exercise Price under Section 2 (other than Section 2(b)), the number of Warrant
Shares hereunder will be adjusted such that the number of Warrant
Shares in effect immediately following the effectiveness of such
adjustment will be equal to the number of Warrant Shares in effect
immediately prior to such adjustment, multiplied by a fraction,
(i) the numerator of which is the Exercise Price in effect
immediately prior to such adjustment, and (ii) the denominator
of which is the Exercise Price in effect immediately following such
adjustment.

 


4. PURCHASE
RIGHTS; FUNDAMENTAL TRANSACTIONS.

 


(a) Purchase
Rights. If at any time
after the Exercisability Date and prior to the Expiration Date the
Company grants, issues or sells any Options, Convertible Securities
or rights to purchase stock, warrants, securities or other property
pro rata to all of the record holders of any class of shares of
Class B Common Stock (the “Purchase Rights”), then the Holder
will be entitled to acquire, upon the terms applicable to such
Purchase Rights, the aggregate Purchase Rights which the Holder
could have acquired if the Holder had held the number of shares of
Class B Common Stock acquirable upon complete exercise of this
Warrant, assuming a Cash Exercise for Class B Common Stock (in both
cases, and without regard to any limitations on the exercise of
this Warrant) on the date on which a record is taken for the grant,
issuance or sale of such Purchase Rights, or, if no such record is
taken, the date as of which the record holders of shares of Class B
Common Stock are to be determined for the grant, issue or sale of
such Purchase Rights.

 

 




 

7








 






 


(b) Fundamental
Transactions. Upon the
occurrence of any Fundamental Transaction in which the Company is
neither the Successor Entity nor the Parent Entity of the Successor
Entity, the Successor Entity shall succeed to, and be substituted
for (so that from and after the date of such Fundamental
Transaction, the provisions of this Warrant referring to the
“Company” shall refer instead to the Successor Entity),
and may exercise every right and power of the Company and shall
assume all of the obligations of the Company under this Warrant
with the same effect as if such Successor Entity had been named as
the Company herein. Upon consummation of any Fundamental
Transaction pursuant to which holders of shares of Class B Common
Stock are entitled to receive shares of stock, securities, cash,
assets or any other property with respect to or in exchange for
shares of Class B Common Stock, the Successor Entity shall deliver
to the Holder confirmation that there shall be issued upon exercise
of this Warrant at any time after the consummation of such
Fundamental Transaction, in lieu of, or in addition to, the shares
of the Class B Common Stock (or other share of stock, securities,
cash, assets or other property purchasable upon the exercise of the
Warrant prior to such Fundamental Transaction), such shares of
stock, securities, cash, assets or any other property whatsoever
(including warrants or other purchase or subscription rights), if
any, that the Holder would have been entitled to receive upon the
happening of such Fundamental Transaction had this Warrant been
exercised immediately prior to such Fundamental Transaction, as
adjusted in accordance with the provisions of this Warrant. In
addition to and not in substitution for any other rights hereunder,
prior to the consummation of any Fundamental Transaction pursuant
to which holders of shares of Class B Common Stock are entitled to
receive shares of stock, securities, cash, assets or any other
property with respect to or in exchange for shares of Class B
Common Stock, the Company shall make appropriate provision to
ensure that the Holder will thereafter have the right to receive
upon exercise of this Warrant within thirty (30) days after the
consummation of the Fundamental Transaction but, in any event,
prior to the Expiration Date, in lieu of, or in addition to, the
Warrant Shares (or other securities, cash, assets or other
property) purchasable upon the exercise of the Warrant prior to
such Fundamental Transaction, such shares of stock, securities,
cash, assets or any other property whatsoever (including warrants
or other purchase or subscription rights) which the Holder would
have been entitled to receive upon the happening of such
Fundamental Transaction had the Warrant been exercised immediately
prior to such Fundamental Transaction.

 


5. RESERVATION
OF WARRANT SHARES. The Company
covenants that it will at all times reserve and keep available out
of the aggregate of its authorized but unissued and otherwise
unreserved shares of Class B Common Stock, solely for the purpose
of enabling it to issue Warrant Shares upon exercise of this
Warrant as herein provided, at least a number of shares of Class B
Common Stock equal to 100% of the number of shares of Class B
Common Stock which are then issuable and deliverable upon the Cash
Exercise of this entire Warrant for shares of Class B Common Stock,
assuming a Cash Exercise of the Warrant (the “Required Reserve Amount”), free
from preemptive or any other contingent purchase rights of Persons
other than the Holder (taking into account the adjustments and
restrictions in Section 2). The Company covenants that
all shares of Class B Common Stock so issuable and deliverable
shall, upon issuance and the payment of the applicable Exercise
Price in accordance with the terms hereof, be duly and validly
authorized, issued and fully paid and nonassessable. The Company
will take all such actions as may be reasonably necessary,
including but not limited to seeking stockholder approval, to
assure that such shares of Class B Common Stock may be issued as
provided herein without violation of any applicable law or
regulation, or of any requirements of any Eligible Market upon
which the Class B Common Stock may be listed.

 

 




 

8








 






 


6. INSUFFICIENT
AUTHORIZED SHARES. If at any time
while this Warrant remains outstanding the Company does not have
reserved for issuance upon exercise of this Warrant at least the
then Required Reserve Amount (an “Authorized Share Failure”), then
the Company shall immediately take all action necessary to increase
the Company’s authorized shares of Class B Common Stock to an
amount sufficient to allow the Company to reserve the Required
Reserve Amount for this Warrant then outstanding. Without limiting
the generality of the foregoing sentence, as soon as practicable
after the date of the occurrence of an Authorized Share Failure,
but in no event later than one hundred and twenty (120) days after
the occurrence of such Authorized Share Failure, the Company shall
hold a meeting of its stockholders for the approval of an increase
in the number of authorized shares of Class B Common Stock. In
connection with such meeting, the Company shall provide each
stockholder with a proxy statement and shall use its reasonable
best efforts to solicit its stockholders’ approval of such
increase in authorized shares of Class B Common Stock and to cause
the Board of Directors to recommend to the stockholders that they
approve such proposal.

 


7. WARRANT
HOLDER NOT DEEMED A STOCKHOLDER. Except as
otherwise specifically provided herein, the Holder, solely in such
Person’s capacity as a Holder, shall not be entitled to vote
or receive dividends or be deemed the holder of share capital of
the Company for any purpose, nor shall anything contained in this
Warrant be construed to confer upon the Holder, solely in such
Person’s capacity as a Holder, any of the rights of a
stockholder of the Company or any right to vote, give or withhold
consent to any corporate action (whether any reorganization, issue
of stock, reclassification of stock, consolidation, merger,
conveyance or otherwise), receive notice of meetings, receive
dividends or subscription rights, or otherwise, prior to the
issuance to the Holder which such Person is then entitled to
receive upon the due exercise of this Warrant. In addition, nothing
contained in this Warrant shall be construed as imposing any
liabilities on the Holder to purchase any securities (upon exercise
of this Warrant or otherwise) or as a stockholder of the Company,
whether such liabilities are asserted by the Company or by
creditors of the Company.

 


8. REGISTRATION
AND REISSUANCE OF WARRANTS.

 


(a) Registration
of Warrant. The Company shall
register this Warrant, upon the records to be maintained by the
Company for that purpose (the “Warrant Register”), in the name of
the record Holder hereof from time to time. The Company may deem
and treat the registered Holder of this Warrant as the absolute
owner hereof for the purpose of any exercise hereof or any
distribution to the Holder, and for all other purposes, absent
actual notice to the contrary. The Company shall also register any
transfer, exchange, reissuance or cancellation of any portion of
this Warrant in the Warrant Register. This Warrant shall
automatically be cancelled at 11:59:01 p.m., New York time, on the
Expiration Date and upon such cancellation, the Company shall
register the cancellation of this Warrant in the Warrant
Register.

 


(b) 
Transfer
of Warrant. This Warrant may
be offered for sale, sold, transferred or assigned without the
consent of the Company, except as may otherwise be required by
applicable securities laws. Subject to applicable securities laws,
if this Warrant is to be transferred, the Holder shall surrender
this Warrant to the Company, together with all applicable transfer
taxes and all additional documentation (including, without
limitation, an opinion of counsel reasonably satisfactory to the
Company) reasonably requested by the Company to confirm that any
such transfer of this Warrant complies with applicable securities
laws, whereupon the Company will promptly issue and deliver upon
the order of the Holder a new Warrant (in accordance with
Section
8(e)), registered
as the Holder may request, representing the right to purchase the
number of Warrant Shares being transferred by the Holder and, if
less than the total number of Warrant Shares then underlying this
Warrant is being transferred, a new Warrant (in accordance with
Section
8(e)) to the Holder
representing the right to purchase the number of Warrant Shares not
being transferred. The acceptance and execution of the new Warrant
by the transferee thereof shall be deemed the acceptance by such
transferee of all of the rights and obligations in respect of the
new Warrant that the Holder has in respect of this
Warrant.

 




 

9








 






 


(c) Lost,
Stolen or Mutilated Warrant. Upon receipt by
the Company of evidence reasonably satisfactory to the Company of
the loss, theft, destruction or mutilation of this Warrant, and, in
the case of loss, theft or destruction, if requested by the
Company, of any indemnification undertaking by the Holder to the
Company in customary form by the Holder to the Company (but without
the requirement to post a bond) and, in the case of mutilation,
upon surrender and cancellation of this Warrant, the Company shall
execute and deliver to the Holder a new Warrant (in accordance with
Section
8(e)) representing
the right to purchase the Warrant Shares then underlying this
Warrant.

 


(d) Exchangeable
for Multiple Warrants. This Warrant is
exchangeable, upon the surrender hereof by the Holder at the
principal office of the Company, together with all applicable
transfer taxes, for a new Warrant or Warrants (in accordance with
Section
8(e)) representing
in the aggregate the right to purchase the number of Warrant Shares
then underlying this Warrant, and each such new Warrant will
represent the right to purchase such portion of such Warrant Shares
as is designated by the Holder at the time of such surrender;
provided,
however, that the
Company shall not be required to issue new Warrants for fractional
Warrant Shares hereunder.

 


(e) 
Issuance
of New Warrants.

 


(i) No later than three
(3) days following the Merger Closing, the Company shall execute
and deliver to the Holder a new Warrant (in accordance with
Section
8(e)(iv)) representing the right to
purchase the Warrant Shares then underlying this Warrant as a
result of the Merger Closing and reflecting the actual Exercise
Price applicable to such Warrant Shares determined in accordance
with the terms of this Warrant. The Holder shall surrender this
Warrant to the Company by the third (3rd) day following the
delivery by the Company of a new Warrant in accordance with the
terms of this Section 8(e)(i); provided that in the event
of a dispute described in Section 8(e)(iii), the Holder shall
surrender this Warrant to the Company by the third (3rd) day
following the delivery by the Company of a new Warrant that
reflects the resolution of such dispute in accordance with the
terms of Section
8(e)(iii).

 


(ii) No later than three
(3) days following the date that the Exercise Price as defined in
the “Form Commitment Termination Warrant” attached
hereto as Exhibit B
hereto (the “Commitment
Termination Warrant”) is determined pursuant to the
terms of the Commitment Termination Warrant, the Company shall
execute and deliver to the Holder a new Warrant substantially in
the form of the Commitment Termination Warrant representing the
right to purchase the Warrant Shares (as defined in the Commitment
Termination Warrant) as a result of the Commitment Termination and
reflecting the Exercise Price (as defined in the Commitment
Termination Warrant) applicable to such Warrant Shares determined
in accordance with the terms of the Commitment Termination Warrant.
The Holder shall surrender this Warrant to the Company by the third
(3rd) day following the delivery by the Company of a new executed
Commitment Termination Warrant in accordance with the terms of this
Section
8(e)(ii); provided that in the
event of a dispute described in Section 8(e)(iii), the Holder shall
surrender this Warrant to the Company by the third (3rd) day
following the delivery by the Company of a new Warrant that
reflects the resolution of such dispute in accordance with the
terms of Section
8(e)(iii).

 




 

10








 






 


(iii) In the case of a
dispute as to the determination of the Exercise Price or the
arithmetic calculation of the Warrant Shares in connection with the
issuance of a new Warrant, pursuant to Section 8(e)(i), or a Commitment
Termination Warrant, pursuant to Section 8(e)(ii), the Company shall submit
the disputed determinations or arithmetic calculations via email
within two (2) days of receipt of a notice from the Holder giving
rise to such dispute (a) the disputed determination of the
applicable Exercise Price to an independent, reputable investment
bank selected by the Company and approved by the Holder or (b) the
disputed arithmetic calculation of the applicable Warrant Shares to
the Company’s independent, outside accountant. Any such
submitted dispute shall be determined in accordance with the terms
of Section 16.

 


(iv) Whenever the
Company or its Transfer Agent, as directed by the Company, is
required to issue a new Warrant pursuant to the terms of this
Warrant, such new Warrant shall (i) be of like tenor with this
Warrant, (ii) represent, as indicated on the face of such new
Warrant, the right to purchase the Warrant Shares then underlying
this Warrant (or in the case of a new Warrant being issued pursuant
to Section
8(b) or
Section
8(c), the Warrant
Shares designated by the Holder which, when added to the number of
shares of Class B Common Stock underlying the other new Warrants
issued in connection with such issuance, does not exceed the number
of Warrant Shares then underlying this Warrant), (iii) have an
issuance date, as indicated on the face of such new Warrant which
is the same as the Issuance Date and (iv) have the same terms and
conditions as this Warrant.

 


9. REGISTRATION
RIGHTS.

 


(a) Filing of Registration
Statement. As soon as
reasonably practicable, but in no event later than twenty (20) days
following the Merger Closing (such date of filing is referred to as
the “Filing
Date”), the Company shall file a registration
statement covering the resale of the Warrant Shares on a
registration statement (the “Registration Statement”) with the
SEC and effect the registration, qualifications or compliances
(including, without limitation, the execution of any required
undertaking to file post-effective amendments, appropriate
qualifications or exemptions under applicable blue sky or other
state securities laws and appropriate compliance with applicable
securities laws, requirements or regulations) as promptly as
possible after the filing thereof, but in any event prior to the
date that is sixty (60) days after the Filing Date.

 


(b) Expenses.
All registration expenses incurred in connection with any
registration, qualification, exemption or compliance pursuant to
this Section
9 shall be borne by
the Company.

 


(c) Registration
Defaults. The Company
further agrees that, in the event that the Registration Statement
(i) has not been filed with the SEC by the date such filing is
required pursuant to Section 9(a), (ii) has not been
declared effective by the SEC by the date such filing is required
pursuant to Section
9(a) (or, in the
event the Company receives comments on such Registration Statement,
the date that is ninety (90) days after the Filing Date), or (iii)
after the Registration Statement is declared effective by the SEC,
is suspended by the Company or ceases to remain continuously
effective as to all Warrant Shares for which it is required to be
effective, other than, in each case, within the time period(s)
permitted by Section
9(f)(ii) (each such event referred to in clauses (i), (ii)
and (iii), (a “Registration
Default”)), for any thirty-day period (a
“Penalty
Period”) during which the Registration Default remains
uncured (which initial thirty-day period shall commence on the
fifth Business Day after the date of such Registration Default if
such Registration Default has not been cured by such date), the
Exercise Price then in effect shall be reduced by an amount equal
to one percent (1%) of such Exercise Price for each Penalty Period
during which the Registration Default remains uncured; provided, however, that if the Holder
fails to provide the Company with any information that is required
to be provided in the Registration Statement with respect to the
Holder as set forth herein, then the commencement of the Penalty
Period described above shall be extended until five Business Days
following the date of receipt by the Company of such required
information; provided further, that the amount
payable to the Holder hereunder for any partial Penalty Period
shall be prorated for the number of actual days during such Penalty
Period during which a Registration Default remains uncured. The
Company shall deliver said cash payment to the Holder by the fifth
Business Day after the end of such Penalty Period. If the Company
fails to pay said cash payment to the Holder in full by the fifth
Business Day after the end of such Penalty Period, the Company will
pay interest thereon at a rate of ten percent (10%) per annum (or
such lesser maximum amount that is permitted to be paid by
applicable law) to the Holder, accruing daily from the date such
liquidated damages are due until such amounts, plus all such
interest thereon, are paid in full.

 




 

11








 






 

 


(d) Registration
Period Covenants. In the case of
the registration, qualification, exemption or compliance effected
by the Company pursuant to this Warrant, the Company shall, upon
reasonable request, inform the Holder as to the status of such
registration, qualification, exemption and compliance. At its
expense, during the Registration Period, the Company
shall:

 


(i) except for such
times as the Company is permitted hereunder to suspend the use of
the prospectus forming part of the Registration Statement under
Section 9(f)(ii),
use its commercially reasonable efforts to keep such registration,
and any qualification, exemption or compliance under state
securities laws that the Company determines to obtain, continuously
effective with respect to the Holder, and to keep such Registration
Statement free of any material misstatements or omissions, until
the later of the following: (i) the second anniversary of the
applicable Exercisability Date and (ii) the date all Warrant Shares
may be sold under Rule 144 during any 90 day period without volume
or manner of sale limitations. The period of time during which the
Company is required hereunder to keep the Registration Statement
effective is referred to herein as the “Registration Period;”

 


(ii) advise the
Holders:

 


(A) within two Business
Days when the Registration Statement or any amendment thereto has
been filed with the SEC and when the Registration Statement or any
post-effective amendment thereto has become effective;

 


(B) within five
Business Days of any request by the SEC for amendments or
supplements to the Registration Statement or the prospectus
included therein or for additional information;

 


(C) within five
Business Days of the issuance by the SEC of any stop order
suspending the effectiveness of the Registration Statement or the
initiation of any proceedings for such purpose;

 


(D) within five
Business Days of the receipt by the Company of any notification
with respect to the suspension of the qualification of the Warrant
Shares included therein for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose;
and

 


(E) within five
Business Days of the occurrence of any event that requires the
making of any changes in the Registration Statement or the
prospectus so that, as of such date, the statements therein are not
misleading and do not omit to state a material fact required to be
stated therein or necessary to make the statements therein (in the
case of the prospectus, in the light of the circumstances under
which they were made) not misleading; provided that, the Company
shall not be required to provide, and shall not provide, the Holder
or its representatives with material, non-public information unless
the Holder agrees to receive such information and enters into a
written confidentiality agreement with the Company in a form
reasonably acceptable to the Company;

 


(F) use its
commercially reasonable efforts to obtain the withdrawal of any
order suspending the effectiveness of any Registration Statement as
soon as reasonably practicable;

 




 

12








 






 

(G) promptly deliver to
the Holder, without charge, as many copies of the prospectus
included in such Registration Statement and any amendment or
supplement thereto as the Holder may reasonably request in writing;
and the Company consents to the use, consistent with the provisions
hereof, of the prospectus or any amendment or supplement thereto by
the Holder of Warrant Shares in connection with the offering and
sale of the Warrant Shares covered by the prospectus or any
amendment or supplement thereto;

 

(H) if the Holder so
requests in writing, deliver to the Holder, without charge, (i) one
copy of the following documents, other than those documents
available via EDGAR: (A) its annual report to its stockholders, if
any (which annual report shall contain financial statements audited
in accordance with generally accepted accounting principles in the
United States of America by a firm of certified public accountants
of recognized standing), (B) if not included in substance in its
annual report to stockholders, its annual report on Form 10-K (or
similar form), (C) its definitive proxy statement with respect to
its annual meeting of stockholders, (D) each of its quarterly
reports to its stockholders, and, if not included in substance in
its quarterly reports to stockholders, its quarterly report on Form
10-Q (or similar form), and (E) a copy of the full Registration
Statement (the foregoing, in each case, excluding exhibits); and
(ii) if explicitly requested, all exhibits excluded by the
parenthetical to the immediately preceding clause (E);

 

(I) prior to any public
offering of Warrant Shares pursuant to any Registration Statement,
promptly take such actions as may be necessary to register or
qualify or obtain an exemption for offer and sale under the
securities or blue sky laws of such United States jurisdictions as
any such Holders reasonably request in writing, provided that the
Company shall not for any such purpose be required to qualify
generally to transact business as a foreign corporation in any
jurisdiction where it is not so qualified or to consent to general
service of process in any such jurisdiction, and do any and all
other acts or things reasonably necessary or advisable to enable
the offer and sale in such jurisdictions of the Warrant Shares
covered by such Registration Statement;

 

(J) upon the occurrence
of any event contemplated by Section 9(d)(ii)(E) above, except for
such times as the Company is permitted hereunder to suspend the use
of the prospectus forming part of the Registration Statement, the
Company shall use its commercially reasonable efforts to as soon as
reasonably practicable prepare a post-effective amendment to the
Registration Statement or a supplement to the related prospectus,
or file any other required document so that, as thereafter
delivered to purchasers of the Warrant Shares included therein, the
prospectus will not include any untrue statement of a material fact
or omit to state any material fact necessary to make the statements
therein, in the light of the circumstances under which they were
made, not misleading;

 

(K) otherwise use its
commercially reasonable efforts to comply in all material respects
with all applicable rules and regulations of the SEC that could
affect the sale of the Warrant Shares;

 

(L) use its
commercially reasonable efforts to cause all Warrant Shares to be
listed on each securities exchange or market, if any, on which
equity securities issued by the Company have been
listed;

 




 

13








 






 


(M) use its
commercially reasonable efforts to take all other steps necessary
to effect the registration of the Warrant Shares contemplated
hereby and to enable the Holders to sell Warrant Shares under Rule
144;

 


(N) provide to the
Holder and its representatives, if requested, the opportunity to
conduct a reasonable inquiry of the Company’s financial and
other records during normal business hours and make available on
reasonable prior notice and during normal business hours its
officers, directors and employees for questions regarding
information that the Holder may reasonably request in order to
fulfill any due diligence obligation on its part; and

 


(O) at the
Holder’s expense, permit a single counsel for the Holder to
review the Registration Statement and all amendments and
supplements thereto, at least two Business Days prior to the filing
thereof with the SEC;

 


(iii) upon request from
the Holder, take all customary actions, and to cause the Transfer
Agent to take all reasonable actions, necessary to remove any
legend on the Warrant Shares at the earliest possible time
permitted by applicable law; and

 


(iv) provide a legal
opinion of the Company's outside counsel, dated the effective date
of such Registration Statement, with respect to the Registration
Statement, each amendment and supplement thereto, the prospectus
included therein (including the preliminary prospectus) and such
other documents relating thereto in customary form and covering
such matters of the type customarily covered by legal opinions of
such nature.

 


(e) Indemnity.

 


(i) To the extent
permitted by law, the Company shall indemnify the Holder and each
person controlling the Holder within the meaning of Section 15 of
the Act, with respect to which any registration that has been
effected pursuant to this Section 9, against all claims, losses,
damages and liabilities (or action in respect thereof), including
any of the foregoing incurred in settlement of any litigation,
commenced or threatened (subject to Section 9(e)(iii) below),
arising out of or based on any untrue statement (or alleged untrue
statement) of a material fact contained in the Registration
Statement, prospectus, any amendment or supplement thereof, or
other document incident to any such registration, qualification or
compliance or based on any omission (or alleged omission) to state
therein a material fact required to be stated therein or necessary
to make the statements therein not misleading, in light of the
circumstances in which they were made, or any violation by the
Company of any rule or regulation promulgated by the Act applicable
to the Company and relating to any action or inaction required of
the Company in connection with any such registration, qualification
or compliance, and will reimburse the Holder and each person
controlling the Holder, for reasonable legal and other
out-of-pocket expenses reasonably incurred in connection with
investigating or defending any such claim, loss, damage, liability
or action as incurred; provided that the Company will
not be liable in any such case to the extent that any untrue
statement or omission or allegation thereof is made in reliance
upon and in conformity with written information furnished to the
Company by or on behalf of the Holder for use in preparation of
such Registration Statement, prospectus, amendment or supplement;
provided
further that the
Company will not be liable in any such case where the claim, loss,
damage or liability arises out of or is related to the failure of
the Holder to comply with the covenants and agreements contained in
this Warrant respecting sales of Warrant Shares, and except that
the foregoing indemnity agreement is subject to the condition that,
insofar as it relates to any such untrue statement or alleged
untrue statement or omission or alleged omission made in the
preliminary prospectus but eliminated or remedied in the amended
prospectus on file with the SEC at the time the Registration
Statement becomes effective or in the amended prospectus filed with
the SEC pursuant to Rule 424(b) or in the prospectus subject to
completion under Rule 434 of the Act, which together meet the
requirements of Section 10(a) of the Act (the “Final Prospectus”), such indemnity
shall not inure to the benefit of the Holder or any such
controlling person, if a copy of the Final Prospectus furnished by
the Company to the Holder for delivery was not furnished to the
person or entity asserting the loss, liability, claim or damage at
or prior to the time such furnishing is required by the Act and the
Final Prospectus would have cured the defect giving rise to such
loss, liability, claim or damage.

 




 

14








 






 

(ii) The Holder will
severally, and not jointly, indemnify the Company, each of its
directors and officers, and each person who controls the Company
within the meaning of Section 15 of the Act, against all claims,
losses, damages and liabilities (or actions in respect thereof),
including any of the foregoing incurred in settlement of any
litigation, commenced or threatened (subject to Section 9(e)(iii) below),
arising out of or based on any untrue statement (or alleged untrue
statement) of a material fact contained in the Registration
Statement, prospectus, or any amendment or supplement thereof,
incident to any such registration, or based on any omission (or
alleged omission) to state therein a material fact required to be
stated therein or necessary to make the statements therein not
misleading, in light of the circumstances in which they were made,
and will reimburse the Company, such directors and officers, and
each person controlling the Company for reasonable legal and any
other expenses reasonably incurred in connection with investigating
or defending any such claim, loss, damage, liability or action as
incurred, in each case to the extent, but only to the extent, that
such untrue statement or omission or allegation thereof is made in
reliance upon and in conformity with written information furnished
to the Company by or on behalf of the Holder about the Holder for
use in preparation of the Registration Statement, prospectus,
amendment or supplement; provided that the indemnity
shall not apply to the extent that such claim, loss, damage or
liability results from the fact that a current copy of the
prospectus was not made available to the person or entity asserting
the loss, liability, claim or damage at or prior to the time such
furnishing is required by the Act and the Final Prospectus would
have cured the defect giving rise to such loss, claim, damage or
liability. Notwithstanding the foregoing, the Holder’s
aggregate liability pursuant to this subsection (ii) shall be
limited to the net amount received by the Holder from the sale of
the Warrant Shares giving rise to such claims, losses, damages and
liabilities (and actions in respect thereof).

 

(iii) Each party entitled
to indemnification under this Section 9(e) (the
“Indemnified
Party”) shall give notice to the party required to
provide indemnification (the “Indemnifying Party”) promptly
after such Indemnified Party has actual knowledge of any claim as
to which indemnity may be sought, and shall permit the Indemnifying
Party (at its expense) to assume the defense of any such claim or
any litigation resulting therefrom; provided that counsel for the
Indemnifying Party, who shall conduct the defense of such claim or
litigation, shall be approved by the Indemnified Party (whose
approval shall not unreasonably be withheld or delayed), and the
Indemnified Party may participate in such defense at such
Indemnified Party’s expense; provided further that the failure of any
Indemnified Party to give notice as provided herein shall not
relieve the Indemnifying Party of its obligations under this
Warrant, unless such failure is materially prejudicial to the
Indemnifying Party in defending such claim or litigation. An
Indemnifying Party shall not be liable for any settlement of an
action or claim effected without its written consent (which consent
will not be unreasonably withheld or delayed). No Indemnifying
Party, in its defense of any such claim or litigation, shall,
except with the consent (such consent not to be unreasonably
withheld or delayed) of the Indemnified Party consent to entry of
any judgment or enter into any settlement that does not include as
an unconditional term thereof the giving by the claimant or
plaintiff to such Indemnified Party of a release from all liability
in respect to such claim or litigation.

 




 

15








 






 


(iv) If the
indemnification provided for in this Section 9(e) is held by a court
of competent jurisdiction to be unavailable to an Indemnified Party
or is insufficient to hold such Indemnified Party harmless with
respect to any loss, liability, claim, damage or expense referred
to therein, then the Indemnifying Party shall contribute to the
amount paid or payable by such Indemnified Party as a result of
such loss, liability, claim, damage or expense in such proportion
as is appropriate to reflect the relative fault of the Indemnifying
Party on the one hand and of the Indemnified Party on the other in
connection with the statements or omissions that resulted in such
loss, liability, claim, damage or expense as well as any other
relevant equitable considerations. The relative fault of the
Indemnifying Party and of the Indemnified Party shall be determined
by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission to state a
material fact relates to information supplied by the Indemnifying
Party or by the Indemnified Party and the parties’ relative
intent, knowledge, access to information and opportunity to correct
or prevent such statement or omission. Notwithstanding the
foregoing, the Holder’s aggregate liability pursuant to this
subsection (iv) shall be limited to the net amount received by the
Holder from the sale of Warrant Shares giving rise to such loss,
liability, claim, damage or expense (or actions in respect thereof)
less all other amounts paid as damages in respect
thereto.

 


(f) Additional
Covenants and Agreements of the Holder.

 


(i) The Holder agrees
that, upon receipt of any notice from the Company of the happening
of any event requiring the preparation of a supplement or amendment
to a prospectus relating to Warrant Shares so that, as thereafter
delivered to the Holder, such prospectus shall not contain an
untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the
statements therein not misleading, the Holder will forthwith
discontinue disposition of Warrant Shares pursuant to the
Registration Statement and prospectus contemplated by Section 9(a) until its receipt of
copies of the supplemented or amended prospectus from the Company
and, if so directed by the Company, the Holder shall deliver to the
Company all copies, other than permanent file copies then in the
Holder’s possession, of the prospectus covering such Warrant
Shares current at the time of receipt of such notice.

 


(ii) The Holder shall
suspend, upon written request of the Company, any disposition of
Warrant Shares pursuant to the Registration Statement and
prospectus contemplated by Section 9(a) during no more than 90
calendar days (which need not be consecutive days) during any
12-month period to the extent that the Board of Directors of the
Company determines in good faith that the sale of Warrant Shares
under the Registration Statement would be reasonably likely to
cause a violation of the Act or Exchange Act; provided, that, in
the event the Company requests such suspension, then the Expiration
Date shall be extended by a number of Trading Days equal to the
number of Trading Days that occur during such
suspension.

 


(iii) As a condition to
the inclusion of its Warrant Shares, the Holder shall furnish to
the Company such information regarding the Holder and the
distribution proposed by the Holder as the Company may reasonably
request in writing, including completing a Registration Statement
questionnaire in the form provided by the Company, or as shall be
required in connection with any registration referred to in this
Section
9.

 




 

16








 






 


(iv) The Holder hereby
covenants with the Company (A) not to make any sale of the Warrant
Shares without effectively causing the prospectus delivery
requirements under the Act to be satisfied, and (B) if such Warrant
Shares are to be sold by any method or in any transaction other
than on a national securities exchange, Nasdaq or in the
over-the-counter market, in privately negotiated transactions, or
in a combination of such methods, to notify the Company at least
five Business Days prior to the date on which the Holder first
offers to sell any such Warrant Shares.

 


(v) The Holder
acknowledges and agrees that the Warrant Shares sold pursuant to
the Registration Statement are not transferable on the books of the
Company unless the stock certificate submitted to the transfer
agent evidencing such Warrant Shares is accompanied by a
certificate reasonably satisfactory to the Company to the effect
that (A) the Warrant Shares have been sold in accordance with such
Registration Statement and (B) the requirement of delivering a
current prospectus has been satisfied.

 


(vi) The Holder agrees
not to take any action with respect to any distribution deemed to
be made pursuant to such Registration Statement that would
constitute a violation of Regulation M under the Exchange Act or
any other applicable rule, regulation or law.

 


(vii) At the end of the
Registration Period, the Holders shall discontinue sales of shares
pursuant to such Registration Statement upon receipt of notice from
the Company of its intention to remove from registration the shares
covered by such Registration Statement which remain unsold, and
such Holders shall notify the Company of the number of shares
registered which remain unsold immediately upon receipt of such
notice from the Company.

 


(g) Additional
Covenants and Agreements of the Company. With a view to
making available to the Holder the benefits of certain rules and
regulations of the SEC that at any time permit the sale of the
Warrant Shares to the public without registration, so long as the
Holder still own Warrant Shares, the Company shall use its
commercially reasonable efforts to:

 


(i) make and keep
public information available, as those terms are understood and
defined in Rule 144, at all times;

 


(ii) file with the SEC
in a timely manner all reports and other documents required of the
Company under the Exchange Act; and

 


(iii) so long as the
Holder owns any Warrant Shares, make available or furnish to the
Holder, upon any reasonable request, a written statement by the
Company as to its compliance with Rule 144 and of the Exchange Act,
a copy of the most recent annual or quarterly report of the
Company, and such other reports and documents of the Company as the
Holder may reasonably request in availing itself of any rule or
regulation of the SEC allowing the Holder to sell any such
securities without registration.

 


(h) Assignment
of Registration Rights. The rights to
cause the Company to register Warrant Shares granted to the Holder
by the Company under Section 9(a) may be assigned by the
Holder in connection with a transfer by the Holder to a transferee
of the Warrants and all Warrant Shares, provided, however, that (i)
such transfer complies with all applicable securities laws and with
the terms and provisions of the Warrant; (ii) the Holder gives
prior written notice to the Company; and (iii) such transferee
agrees in writing to comply with the terms and provisions of the
Warrant, and has provided the Company with a completed Registration
Statement questionnaire in such form as is reasonably requested by
the Company.

 


 




 

17








 






 


10. CERTAIN
TAX MATTERS.

 


(a) No
Deductions or Withholdings. The grant of this
Warrant shall be made free and clear of, and without any deduction
or withholding for or on account of, any current or future taxes,
levies, imposts, duties, charges or other deductions or
withholdings levied by any national, state, provincial or local
taxing authority, or will be grossed up by Company for such
amounts.

 


(b) Cooperation.
In addition, and in connection with the ownership by Holder of this
Warrant and any Class B Common Stock issuable upon the exercise of
this Warrant, Company shall (and shall cause its subsidiaries to)
reasonably cooperate with the Holder, and use commercially
reasonable efforts to provide the Holder with all reasonably
requested information, records, and documents related to Company
and its subsidiaries that are necessary for, the completion of tax
and information returns of the Holder and its Affiliates (or their
direct or indirect equity owners) and their compliance with any
applicable tax laws, including with respect to withholding tax
obligations. Without limiting the generality of the foregoing, (x)
in the event that Company makes or has made any actual or deemed
distribution to its stockholders, Company shall make commercially
reasonable efforts to provide to the Holder such information
regarding the current and accumulated “earnings and
profits” of Company (including any projections with respect
to current earnings and profits) as the Holder may reasonably
request in order to determine what portion (if any) of any such
distribution is a dividend for U.S. federal income tax purposes and
(y) Company shall (1) provide to the Holder, upon written request
and within thirty (30) days following such request, either (A) a
certification that Company is not a United States real property
holding company, in accordance with Treasury Regulations Sections
1.897-2(g)(1)(ii) and 1.897-2(h)(1) or (B) written notice of its
legal inability to provide such a certification, and (2) in
connection with the provision of any certification pursuant to the
preceding clause (1)(A), comply with the notice provisions set
forth in Treasury Regulations Section 1.897-2(h)(2).

 


(c) Cashless
Exercise. If the Holder
elects to exercise this Warrant using the Cashless Exercise method
of payment, the Company, upon request of the Holder, shall use
commercially reasonable efforts to structure the exercise of this
Warrant in such a manner (as requested by the Holder) as to
maximize the after-tax returns to the Holder and its Affiliates (or
their direct or indirect equity owners), including, at the
Holder’s request, by treating the exercise as a
recapitalization within the meaning of Code Section
368(a)(1)(E).

 


11. NOTICES.
Whenever notice is required to be given under this Warrant, unless
otherwise provided herein, such notice shall be given in writing,
(a) if delivered from within the domestic United States, by
first-class registered or certified airmail, or nationally
recognized overnight express courier, postage prepaid, or by email
or (b) if delivered from outside the United States, by
International Federal Express or by email and (c) will be deemed
given (i) if delivered by first-class registered or certified
domestic mail, three (3) Business Days after so mailed, (ii) if
delivered by nationally recognized overnight carrier, one (1)
Business Day after so mailed, (iii) if delivered by International
Federal Express, two (2) Business Days after so mailed, and (iv) if
delivered by email, upon receipt, and will be delivered and
addressed as follows:

 




 

18








 






 

 

(a) If
to the Company, to

 


RumbleOn,
Inc.


901 W.
Walnut Hill Lane


Irving,
Texas 75038


Attention: Marshall
Chesrown and Peter Levy


Email:
Marshall Chesrown (marshall@rumbleon.com) and Peter Levy
(peter@rumbleon.com)

 


with a
copy to (which shall not constitute notice):

 


Akerman
LLP


The
Main Las Olas


201
East Las Olas Boulevard


Suite
1800


Fort
Lauderdale, FL 33301


Attention: Michael
Francis, Christina Russo


Email:
Michael Francis (michael.francis@akerman.com) Christina Russo
(christina.russo@akerman.com)


 

(b) If
to the Holder, to

 


Oaktree
Capital Management, L.P.


333
South Grand Avenue, 28th Floor


Los
Angeles, California 90071


Tel:
954.463.2700


Attention:
Christine Pope; Mary Gallegly


Email:
Christine Pope (cpope@oaktreecapital.com);
Mary Gallegly (mgallegly@oaktreecapital.com)


 


with a
copy to (which shall not constitute notice):

 


Akin
Gump Strauss Hauer & Feld LLP


One
Bryant Park


New
York, NY 10036


Attention: Elazar
Guttman


Email:
Elazar Guttman (eguttman@akingump.com)


 


The
Company shall give written notice to the Holder (i) reasonably
promptly following any adjustment of the Exercise Price, setting
forth in reasonable detail, and certifying, the calculation of such
adjustment and (ii) at least ten (10) days prior to the date on
which the Company closes its books or takes a record (A) with
respect to any dividend or distribution upon the shares of Class B
Common Stock, (B) with respect to any grants, issuances or sales of
any Options, Convertible Securities or rights to purchase stock,
warrants, securities or other property pro rata to the record
holders of any class of shares of Class B Common Stock or (C) for
determining rights to vote with respect to any Fundamental
Transaction, dissolution or liquidation; provided, that in each case,
such information shall be made known to the public prior to or in
conjunction with such notice being provided to the Holder; and
provided,
further, that the
failure to deliver such notice or any defect therein or in the
delivery thereof shall not affect the validity of the corporation
action required to be specified in such notice. Upon receipt or
delivery by the Company of any notice in accordance with the terms
of this Warrant, unless the Company has in good faith determined
that the matters relating to such notice do not constitute
material, nonpublic information relating to the Company or its
subsidiaries, the Company shall contemporaneously with any such
receipt or delivery publicly disclose such material, nonpublic
information on a Current Report on Form 8-K or otherwise in
accordance with applicable laws. In the event that the Company
believes that a notice contains material, nonpublic information
relating to the Company or its subsidiaries, the Company so shall
indicate to such Holder contemporaneously with delivery of such
notice, and in the absence of any such indication, the Holder shall
be allowed to presume that all matters relating to such notice do
not constitute material, nonpublic information relating to the
Company or its subsidiaries.

 




 

19








 






 


12. NONCIRCUMVENTION.
The Company hereby covenants and agrees that the Company will not,
by amendment of its Articles or Bylaws, each as currently in
effect, or through any reorganization, transfer of assets,
consolidation, merger, scheme of arrangement, dissolution, issue or
sale of securities or any other voluntary action, avoid or seek to
avoid the observance or performance of any of the terms of this
Warrant, and will at all times in good faith carry out all the
provisions of this Warrant and take all action as may be required
to protect the rights of the Holder. Without limiting the
generality of the foregoing, the Company (i) shall not increase the
par value of any shares of Class B Common Stock receivable upon the
exercise of this Warrant above the Exercise Price then in effect,
and (ii) shall use all reasonable efforts to take all such actions
as may be necessary or appropriate in order that the Company may
validly and legally issue fully paid and nonassessable shares of
Class B Common Stock upon the exercise of this
Warrant.

 


13. AMENDMENT
AND WAIVER. Except as
otherwise provided herein, the provisions of this Warrant may not
be modified, amended or waived except pursuant to an instrument in
writing signed by the Company and the Holder. The Company may not
take any action herein prohibited, or omit to perform any act
herein required to be performed by it without the written consent
of the Holder and the Holder may not take any action herein
prohibited, or omit to perform any act herein required to be
performed by it without the written consent of the
Company.

 


14. GOVERNING LAW; WAIVER OF JURY
TRIAL. This Warrant
shall be governed by and construed and enforced in accordance with,
and all questions concerning the construction, validity,
interpretation and performance of this Warrant shall be governed
by, the internal laws of the State of New York, without giving
effect to any choice of law or conflict of law provision or rule
(whether of the State of New York or any other jurisdictions) that
would cause the application of the laws of any jurisdictions other
than the State of New York. THE
COMPANY AND THE HOLDER EACH HEREBY IRREVOCABLY WAIVES ANY RIGHT IT
MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY CLAIM BASED UPON OR
ARISING OUT OF THIS WARRANT OR ANY TRANSACTION CONTEMPLATED
HEREBY.

 


15. CONSTRUCTION;
HEADINGS. This Warrant
shall be deemed to be jointly drafted by the Company and the Holder
and shall not be construed against any person as the drafter
hereof. The headings of this Warrant are for convenience of
reference and shall not form part of, or affect the interpretation
of, this Warrant.

 


16. DISPUTE
RESOLUTION. In the case of a
dispute as to the determination of the Exercise Price or the
arithmetic calculation of the Warrant Shares, the Company shall
submit the disputed determinations or arithmetic calculations via
email within two (2) Trading Days of receipt of the Exercise Notice
giving rise to such dispute, as the case may be, to the Holder. If
the Holder and the Company are unable to agree upon such
determination or calculation of the Exercise Price or the Warrant
Shares within five (5) Trading Days after such disputed
determination or arithmetic calculation is submitted to the Holder,
then the Company shall, within two (2) Trading Days, submit via
email (a) the disputed determination of the Exercise Price to an
independent, reputable investment bank selected by the Company and
approved by the Holder or (b) the disputed arithmetic calculation
of the Warrant Shares to the Company’s independent, outside
accountant. The Company shall cause the investment bank or the
accountant, as the case may be, to perform the determinations or
calculations and notify the Company and the Holder of the results
no later than ten (10) Trading Days after the date that such
investment bank or accountant, as the case may be, receives the
disputed determinations or calculations. Such investment
bank’s or accountant’s determination or calculation, as
the case may be, shall be binding upon all parties absent
demonstrable error. The expenses of the investment bank and
accountant will be borne by the Company unless the investment bank
or accountant determines that the determination of the Exercise
Price or the arithmetic calculation of the Warrant Shares by the
Company was correct, in which case the expenses of the investment
bank and accountant will be borne by the Holder.







 

20








 






 


17. REMEDIES,
OTHER OBLIGATIONS, BREACHES AND INJUNCTIVE
RELIEF.
The remedies provided in this Warrant shall be cumulative and in
addition to all other remedies available under this Warrant, at law
or in equity (including a decree of specific performance and/or
other injunctive relief). The Company acknowledges that a breach by
it of its obligations hereunder may cause irreparable harm to the
Holder and that the remedy at law for any such breach may be
inadequate. The Company therefore agrees that, in the event of any
such breach or threatened breach, the Holder shall be entitled, in
addition to all other available remedies, to seek an injunction
restraining any breach, specific performance and any other relief
that may be available from a court of competent jurisdiction, and
in any case no bond or other security shall be required in
connection therewith.

 


18. CERTAIN
DEFINITIONS. For purposes of
this Warrant, the following terms shall have the following
meanings:

 


(a) “Affiliate” means, with respect to
any Person, any other Person that directly or indirectly controls,
is controlled by, or is under common control with, such Person, it
being understood for purposes of this definition that
“control” of a Person means the power directly or
indirectly either to vote 10% or more of the stock having ordinary
voting power for the election of directors of such Person or direct
or cause the direction of the management and policies of such
Person whether by contract or otherwise.

 


(b) “Articles” means the
Company’s Articles of Incorporation, as may be amended from
time to time.

 


(c) “Bloomberg” means Bloomberg
Financial Markets.

 


(d) “Board of Directors” means the
Board of Directors of the Company.

 


(e) “Business Day” means a day, other
than a Saturday or Sunday, on which banks in New York are open for
the general transaction of business.

 


(f) “Bylaws” means the Bylaws of the
Company, as amended and may be further amended from time to
time.

 


(g) “Class A Common Stock” means the
Company’s shares of Class A Common Stock, $0.001 par value
per share.

 


(h) “Class B Common Stock” means (i)
the Company’s shares of Class B Common Stock, $0.001 par
value per share, and (ii) any share capital into which such Class B
Common Stock shall have been changed or any share capital resulting
from a reclassification of such Class B Common Stock.

 


(i) “Close of Business” means 4:00pm
New York City time.

 

(j) “Code” means the U.S. Internal
Revenue Code of 1986, as amended (including any successor
statute).

 




 

21








 






 


(k) “Commitment Termination” means the
termination of the Debt Commitment Letter and the commitments
thereunder in accordance with the terms of the Debt Commitment
Letter (except for a termination as a result of a breach by the
Commitment Party (as such term is defined in the Debt Commitment
Letter) to uphold its obligations pursuant to the Debt Commitment
Letter).

 


(l) “Common Stock” means the common
stock of the Company, as defined in the Articles, and including the
Class A Common Stock and the Class B Common Stock.

 


(m) “Convertible Securities” means any
stock or securities directly or indirectly convertible into or
exercisable or exchangeable for shares of Class B Common Stock
except for such stock or securities issued as awards under the
Company’s equity incentive plan.

 


(n) “Debt Commitment Letter” means the
Commitment Letter, dated March 12, 2021, delivered by Oaktree Capital Management, L.P.
to the Company pursuant to which the Holder agreed to provide
certain financing to the Company in connection with the transaction
contemplated pursuant to the Merger Agreement.

 


(o) “Effective Price” means the amount
paid or payable to acquire shares of Class B Common Stock (or in
the case of Convertible Securities, the amount paid or payable to
acquire the Convertible Security, if any, plus the exercise price
for the underlying Class B Common Stock).

 


(p) “Eligible Market” means the
Principal Market, The New York Stock Exchange, Inc., the NYSE
American LLC, The Nasdaq Stock Market, or the OTC Bulletin
Board.

 


(q) “Exchange Act” means the Securities
Exchange Act of 1934, as amended.

 


(r) “Exercisability Date” means the
Closing Date, as such term is defined in the Merger
Agreement.

 


(s) “Expiration Date” means the
eighteen (18) month anniversary of the Exercisability Date;
provided, that in the event that after such date, the SEC issues
any stop order suspending the effectiveness of the Registration
Statement, the Registration Statement is suspended by the Company
or ceases to remain continuously effective as to all Warrant Shares
for which it is required to be effective, then the Expiration Date
shall be extended by a number of Trading Days equal to the number
of Trading Days that occur during the period that such stop order
by the SEC has not been terminated or the Registration Statement is
suspended by the Company or ceases to remain
effective.

 


(t) “Fair Market Value” means, as of
the applicable date of determination, the fair market value of a
dividend or distribution as determined reasonably and in good faith
by the Board of Directors and the Holder; provided, that if the Board of
Directors and the Holder cannot mutually agree on a determination
of Fair Market Value within 30 days of the Ex-Date, the Fair Market
Value shall be determined by an independent appraiser selected by
the Board of Directors and reasonably satisfactory to the Holder
(the “Appraiser”). The determination of
Fair Market Value by the Appraiser shall be final and binding upon
the parties hereto, absent fraud or manifest error, and the Company
shall pay the fees and expenses of the Appraiser.

 




 

22








 






 


(u) “Fully-Diluted Basis” means, at any
given time and without duplication, (x) the aggregate number
of Common Stock and Preferred Stock (as such terms are defined in
the Articles) and any other shares of the Company outstanding at
such time plus (y) the aggregate number of Common Stock and
Preferred Stock and any other shares of the Company issuable
(subject to readjustment upon the actual issuance thereof) upon the
exercise, conversion or exchange of any Convertible Security
outstanding at such time and plus (z) the maximum amount of Common
Stock and Preferred Stock reserved or contemplated to be issued
pursuant to any equity incentive plan of the Company or its
Subsidiaries.

 


(v) “Fundamental Transaction” means at
any time after the Exercisability Date and prior to the Expiration
Date (A) that the Company shall, directly or indirectly, including
through subsidiaries, Affiliates or otherwise, in one or more
related transactions, (i) consolidate or merge with or into
(whether or not the Company is the surviving corporation) another
Subject Entity, or (ii) sell, assign, transfer, convey or otherwise
dispose of all or substantially all of the properties or assets of
the Company or any of its “significant subsidiaries”
(as defined in Rule 1-02 of Regulation S-X) to one or more Subject
Entities, or (iii) make, or allow one or more Subject Entities to
make, or allow the Company to be subject to or have its shares of
Class B Common Stock be subject to or party to one or more Subject
Entities making, a purchase, tender or exchange offer that is
accepted by the holders of at least either (x) 50% of the
outstanding shares of Class B Common Stock, (y) 50% of the
outstanding shares of Class B Common Stock calculated as if any
shares of Class B Common Stock held by all Subject Entities making
or party to, or Affiliated with any Subject Entities making or
party to, such purchase, tender or exchange offer were not
outstanding; or (z) such number of shares of Class B Common Stock
such that all Subject Entities making or party to, or Affiliated
with any Subject Entity making or party to, such purchase, tender
or exchange offer, become collectively the beneficial owners (as
defined in Rule 13d-3 under the Exchange Act) of at least 50% of
the outstanding shares of Class B Common Stock, or (iv) consummate
a stock purchase or other business combination (including, without
limitation, a reorganization, recapitalization, spin-off or scheme
of arrangement) with one or more Subject Entities whereby all such
Subject Entities, individually or in the aggregate, acquire, either
(x) at least 50% of the outstanding shares of Class B Common Stock,
(y) at least 50% of the outstanding shares of Class B Common Stock
calculated as if any shares of Class B Common Stock held by all the
Subject Entities making or party to, or Affiliated with any Subject
Entity making or party to, such stock purchase or other business
combination were not outstanding; or (z) such number of shares of
Class B Common Stock such that the Subject Entities become
collectively the beneficial owners (as defined in Rule 13d-3 under
the Exchange Act) of at least 50% of the outstanding shares of
Class B Common Stock, or (v) reorganize, recapitalize or reclassify
its shares of Class B Common Stock, (B) that the Company shall,
directly or indirectly, including through Subsidiaries, Affiliates
or otherwise, in one or more related transactions, allow any
Subject Entity individually or the Subject Entities in the
aggregate to be or become the “beneficial owner” (as
defined in Rule 13d-3 under the Exchange Act), directly or
indirectly, whether through acquisition, purchase, assignment,
conveyance, tender, tender offer, exchange, reduction in
outstanding shares of Class B Common Stock, merger, consolidation,
business combination, reorganization, recapitalization, spin-off,
scheme of arrangement, reorganization, recapitalization or
reclassification or otherwise in any manner whatsoever, of either
(x) at least 50% of the aggregate ordinary voting power represented
by issued and outstanding shares of Class B Common Stock, (y) at
least 50% of the aggregate ordinary voting power represented by
issued and outstanding shares of Class B Common Stock not held by
all such Subject Entities as of the date of this Warrant calculated
as if any shares of Class B Common Stock held by all such Subject
Entities were not outstanding, or (z) a percentage of the aggregate
ordinary voting power represented by issued and outstanding shares
of Class B Common Stock or other equity securities of the Company
sufficient to allow such Subject Entities to effect a statutory
short form merger or other transaction requiring other stockholders
of the Company to surrender their Class B Common Stock without
approval of the stockholders of the Company, or (C) directly or
indirectly, including through Subsidiaries, Affiliates or
otherwise, in one or more related transactions, the issuance by the
Company of or the entering by the Company into any other instrument
or transaction structured in a manner to circumvent, or that
circumvents, the intent of this definition in which case this
definition shall be construed and implemented in a manner otherwise
than in strict conformity with the terms of this definition to the
extent necessary to correct this definition or any portion of this
definition which may be defective or inconsistent with the intended
treatment of such instrument or transaction.

 




 

23








 





 


(w) “Group” means a “group”
as that term is used in Section 13(d) of the Exchange Act and as
defined in Rule 13d-5 thereunder.

 


(x) “Merger Agreement” means that
certain Plan of Merger and Equity Purchase Agreement, dated as of
the Issuance Date, by and among the Company, the Company, RO Merger
Sub I, Inc., an Arizona corporation and wholly owned subsidiary of
the Company, RO Merger Sub II, Inc., an Arizona corporation and
wholly owned subsidiary of the Company, RO Merger Sub III, Inc., an
Arizona corporation and wholly owned subsidiary of the Company, RO
Merger Sub IV, Inc., an Arizona corporation and wholly owned
subsidiary of the Company, C&W Motors, Inc., an Arizona
corporation, Metro Motorcycle, Inc., an Arizona corporation, Tucson
Motorcycles, Inc., an Arizona corporation, and Tucson Motorsports,
Inc., an Arizona corporation, William Coulter, an individual, Mark
Tkach, an individual, and each other Person (as defined therein)
who owns an Equity Interest (as defined therein) in any Transferred
Entity (as defined therein) and executes a Seller Joinder (as
defined therein), and Tkach, as the representative of the Sellers
(as defined therein).

 


(y) “Merger Closing” means the Closing,
as such term is defined in the Merger Agreement.

 


(z) “Options” means any rights,
warrants or options to subscribe for or purchase shares of Class B
Common Stock or Convertible Securities.

 


(aa) “Parent Entity” of a Person means
an entity that, directly or indirectly, controls the applicable
Person and whose common stock or equivalent equity security is
quoted or listed on an Eligible Market, or, if there is more than
one such Person or Parent Entity, the Person or Parent Entity with
the largest public market capitalization as of the date of
consummation of the Fundamental Transaction.

 


(bb) “Person” means an individual, a
limited liability company, a partnership, a joint venture, a
corporation, a trust, an unincorporated organization, any other
entity and a government or any department or agency
thereof.

 


(cc) “Principal Market” means the NASDAQ
Capital Market.

 


(dd) “Record Date” means, with respect
to any dividend, distribution or other transaction or event in
which the holders of Class B Common Stock have the right to receive
any cash, securities or other property or in which Class B Common
Stock (or other applicable security) is exchanged for or converted
into any combination of cash, securities or other property, the
date fixed for determination of holders of Class B Common Stock
entitled to receive such cash, securities or other property
(whether such date is fixed by the Board of Directors or by
statute, contract or otherwise).

 


(ee) “Standard Settlement Period” means
the standard settlement period, expressed in a number of Trading
Days, on the Company’s primary trading market with respect to
the Class B Common Stock as in effect on the date of delivery of
the Exercise Notice.

 


(ff) “Subject Entity” means any Person,
Persons or Group or any Affiliate or associate of any such Person,
Persons or Group.

 




 

24








 






 


(gg) “Subsidiary” means, as to any
Person, any corporation, partnership, limited liability company or
other organization, whether incorporated or unincorporated, of
which at least a majority of the securities or other interests
having by their terms voting power to elect a majority of the board
of directors or others performing similar functions with respect to
such corporation or other organization is directly or indirectly
beneficially owned or controlled by such party or by any one or
more of its subsidiaries, or by such party and one or more of its
subsidiaries.

 


(hh) “Successor Entity” means the Person
(or, if so elected by the Holder, the Parent Entity) formed by,
resulting from or surviving any Fundamental Transaction or the
Person (or, if so elected by the Holder, the Parent Entity) with
which such Fundamental Transaction shall have been entered
into.

 


(ii) “Trading Day” means any day on
which the Class B Common Stock is traded on the Principal Market,
or, if the Principal Market is not the principal trading market for
the Class B Common Stock, then on the principal securities exchange
or securities market on which the Class B Common Stock is then
traded; provided
that “Trading Day” shall not include any day that the
Class B Common Stock is suspended from trading during the final
hour of trading on such exchange or market (or if such exchange or
market does not designate in advance the closing time of trading on
such exchange or market, then during the hour ending at 4:00:00
p.m., New York Time).

 


(jj) “Transfer Agent” means West Coast Stock Transfer,
Inc., or any other
successor Person appointed to act in the capacity of transfer agent
of the Company.

 


(kk) “Treasury Regulations” means the
final or temporary regulations issued by the United States
Department of Treasury pursuant to its authority under the Code,
and any successor regulations.

 


(ll) “Warrant Price” means the price per
share of Class B Common Stock equivalent to the lowest price per
share of the Class B Common Stock issued by the Company in
connection with the Equity Issuance (as such term is defined in the
Debt Commitment Letter).

 


(mm) “Warrant Shares” means that number
of shares of Class B Common Stock equal to $40,000,000 divided by
the Warrant Price. Warrant shares are fully paid and nonassessable
shares of Class B Common Stock.

 


(nn) “Weighted Average Price” means, for
any security as of any date, the dollar volume-weighted average
price for such security on the Principal Market during the period
beginning at 9:30:01 a.m., New York City time, and ending at
4:00:00 p.m., New York City time, as reported by Bloomberg through
its “Volume at Price” function or, if the foregoing
does not apply, the dollar volume-weighted average price of such
security in the over-the-counter market on the electronic bulletin
board for such security during the period beginning at 9:30:01
a.m., New York City time, and ending at 4:00:00 p.m., New York City
time, as reported by Bloomberg, or, if no dollar volume-weighted
average price is reported for such security by Bloomberg for such
hours, the average of the highest closing bid price and the lowest
closing ask price of any of the market makers for such security as
reported in the OTC Pink Market maintained by OTC Markets Group
Inc. If the Weighted Average Price cannot be calculated for such
security on such date on any of the foregoing bases, the Weighted
Average Price of such security on such date shall be the fair
market value as mutually determined by the Company and the Holder.
If the Company and the Holder are unable to agree upon the fair
market value of such security, then such dispute shall be resolved
pursuant to Section
14 with the term
“Weighted Average Price” being substituted for the term
“Exercise Price.” All such determinations shall be
appropriately adjusted for any share dividend, share split or other
similar transaction during such period.

 


[Signature
Page Follows]


 




 

25








 






 


IN WITNESS WHEREOF, the Company has
caused this Warrant to Purchase Class B Common Stock to be duly
executed as of the Issuance Date set out above.

 




	
 

	


RUMBLEON,
INC.

 


By: /s/ Steve
Berrard



Name:
Steve
Berrard


Title:
CFO



 









Accepted
as of the date first written above:

 


OAKTREE
CAPITAL MANAGEMENT, L.P.,


Solely
as manager on behalf of certain funds or accounts within its
Strategic Credit Strategy


By:
/s/ Christine
Pope



Name:
Christine
Pope


Title:
Managing Director



 


 


 


 


 


 


 


 




 


[Signature
Page to Class B Common Warrant]

26








 










 



WARRANT HOLDERS

 


	


Investor

	
 

	


Warrants


	
 

	
 


	
 

	
 


	
 

	
 


	
 

	
 


	
 

	
 


	
 

	
 


	
 

	
 


	
 

	
 


	
 

	
 


	
 

	
 


	
 

	
 


	
 

	
 


	
 

	
 


	
 

	
 


	


Total

	
 

	
 







 


 


 


 


 


 


 


 


 




 

27








 










 



EXHIBIT A

 


EXERCISE
NOTICE

 



TO BE EXECUTED BY THE REGISTERED HOLDER TO EXERCISE THIS WARRANT TO
PURCHASE CLASS b COMMON STOCK

 



RUMBLEON, INC.

 


The
undersigned holder hereby exercises the right to purchase
[_________] shares of Class B Common Stock (“Warrant Shares”) of RumbleOn,
Inc., a Nevada corporation (the “Company”), evidenced by the
attached Warrant to Purchase Class B Common Stock (the
“Warrant”).
Capitalized terms used herein and not otherwise defined shall have
the respective meanings set forth in the Warrant.

 


1.
Exercise Price. The
Holder intends that payment of the Exercise Price shall be made as
(check one):

 


☐ Cash Exercise under
Section
1(a).

 


☐ Cashless Exercise
under Section
1(d).

 


2.
Cash Exercise. If
the Holder has elected a Cash Exercise, the Holder shall pay the
sum of $[_________] to the Company in accordance with the terms of
the Warrant.

 


3.
Delivery of Warrant
Shares. The Company shall deliver to the holder Warrant
Shares in accordance with the terms of the Warrant. If the shares
are to be delivered electronically, please complete the Depositary
information below.

 


DATED:                                                     




	
 

	
 

(Signature must
conform in all respects to name of the Holder as specified on the
face of the Warrant)

 


Registered
Holder


 


Address:
_________________________________


 


If
shares are to be delivered electronically:

 


Broker
name:


Broker
Depositary account #:


Account
at Broker shares are to be delivered to:










 




 

28









AGSH&F Draft 3/9/2021










 



ACKNOWLEDGMENT

 


The
Company hereby acknowledges this Exercise Notice.


 





	
 

	


RUMBLEON,
INC.

 


By:________________________________________


Name:


Title:


 








 

  

 

 

 

 

 


 




 

29








 






 



EXHIBIT B



FORM OF COMMITMENT TERMINATION WARRANT


 


THIS
WARRANT AND ANY SHARES ACQUIRED UPON THE EXERCISE OF THIS WARRANT
HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE “ACT”), AND MAY NOT BE SOLD,
PLEDGED, HYPOTHECATED, DONATED OR OTHERWISE TRANSFERRED WITHOUT
COMPLIANCE WITH THE REGISTRATION OR QUALIFICATION PROVISIONS OF
APPLICABLE FEDERAL AND STATE SECURITIES LAWS OR APPLICABLE
EXEMPTIONS THEREFROM.

 



RUMBLEON, INC.

 



WARRANT TO PURCHASE CLASS B COMMON STOCK1

 


Date of
Issuance: March 12, 2021 (“Issuance Date”)

 


RumbleOn, Inc., a
Nevada corporation (the “Company”), certifies that, for
good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, [Oaktree Capital Management, L.P.], the
registered holder hereof or its permitted assigns (the
“Holder”), is
entitled, subject to the terms and conditions set forth below, to
purchase from the Company, at the Exercise Price (as defined in
Section
1(c) below) then in
effect, upon surrender of this Warrant to Purchase Class B Common
Stock (including any Warrants to purchase Class B Common Stock
issued in exchange, transfer or replacement hereof, the
“Warrant”), at
any time or times on or after the Exercisability Date (as defined
below), but not after 11:59 p.m., New York Time, on the Expiration
Date (as defined below), the Warrant Shares (as defined below).
Except as otherwise defined herein, capitalized terms in this
Warrant shall have the meanings set forth in Section 18.

 

1. EXERCISE
OF WARRANT.

 

(a) Mechanics
of Exercise

 


.
Subject to the terms and conditions hereof, this Warrant may be
exercised by the Holder on any day on or after the Exercisability
Date, in whole or in part, by (i) delivery of a written notice
(including via email), in the form attached hereto as Exhibit A
(the “Exercise
Notice”), of the Holder’s election to exercise
this Warrant to the Company, and (ii) if the Holder is not electing
a Cashless Exercise (as defined below) pursuant to Section 1(d) of this Warrant, payment
to the Company of an amount equal to the applicable Exercise Price
multiplied by the number of Warrant Shares as to which this Warrant
is being exercised (the “Aggregate Exercise Price”) in cash
or wire transfer of immediately available funds (a
“Cash
Exercise”). The Holder shall not be required to
surrender this Warrant in order to effect an exercise hereunder,
provided, that in the event of an exercise of this Warrant for all
Warrant Shares then issuable hereunder, the Holder shall surrender
this Warrant to the Company by the third (3rd) Trading Day
following the Share Delivery Date (as defined below). On or before
the first (1st) Trading Day
following the date on which the Company has received the Exercise
Notice, the Company shall transmit by email an acknowledgement of
confirmation of receipt of the Exercise Notice to the

 


 

_____________________




1 Note to Draft: Akerman to deliver
customary legal opinion in connection with the issuance of this
Warrant.

 




 

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Holder.
No ink original or medallion guarantee shall be required on any
Exercise Notice. The Company shall cause the Warrant Shares
purchased hereunder to be transmitted by the Transfer Agent to the
Holder by (x)(i) crediting the account of the Holder’s
or its designee’s balance account with The Depository Trust
Company through its Deposit or Withdrawal at Custodian system (or
any equivalent or replacement system) if the Company is then a
participant in such system and if the Warrant Shares may be so
delivered, and (ii) either (with respect to the Common Stock)
(A) there is an effective registration statement permitting the
issuance of the Warrant Shares to or resale of the Warrant Shares
by the Holder or (B) the Warrant Shares are eligible for resale by
the Holder without volume or manner-of-sale limitations pursuant to
Rule 144 (assuming cashless exercise of the Warrant), or (ii)
otherwise by physical delivery of a certificate or copy of
book-entry form representing such shares, registered in the
Company’s share register in the name of the Holder or its
designee, for the number of Warrant Shares to which the Holder is
entitled pursuant to such exercise to the address specified by the
Holder in the Exercise Notice, by the date that is the earlier of
(i) two (2) Trading Days after the delivery to the Company of the
Exercise Notice, and (ii) the number of Trading Days comprising the
Standard Settlement Period after the delivery to the Company of the
Exercise Notice (such date, the “Share Delivery Date”),
provided, that,
except in the case of a cashless exercise of the Warrant, the
Company shall have received the Aggregate Exercise Price payable by
the Holder for the Warrant Shares purchased hereunder on or prior
to the applicable Share Delivery Date. If this Warrant is submitted
in connection with any exercise pursuant to this Section 1(a) and the number of Warrant
Shares represented by this Warrant submitted for exercise is
greater than the number of Warrant Shares being acquired upon an
exercise, then the Company shall as soon as practicable and in no
event later than two (2) Trading Days after any exercise and at the
Company’s own expense, issue a new Warrant (in accordance
with Section
8(e)) representing
the right to purchase the number of Warrant Shares purchasable
immediately prior to such exercise under this Warrant, less the
number of Warrant Shares with respect to which this Warrant is
exercised. The Company shall pay any and all taxes that may be
payable with respect to the issuance and delivery of Warrant Shares
upon exercise of this Warrant. The Company agrees that the Transfer
Agent shall at all times be a participant in the FAST program (or
any equivalent or replacement program) so long as this Warrant
remains outstanding and exercisable. Upon delivery of the Exercise
Notice, so long as the Aggregate Exercise Price, in the case of a
Cash Exercise, is delivered to the Company on or before the first
(1st)
Trading Day following delivery of the Exercise Notice, the Holder
shall be deemed for all corporate purposes to have become the
holder of record of the Warrant Shares with respect to which this
Warrant has been exercised, irrespective of the date such Warrant
Shares are issued and deposited into the Holder’s account
with the Transfer Agent. If the Aggregate Exercise Price, in the
case of a Cash Exercise, is delivered to the Company any time after
the first (1st) Trading Day
following delivery of the Exercise Notice, the Holder shall be
deemed for all corporate purposes to have become the holder of
record of the Warrant Shares with respect to which this Warrant has
been exercised on the date of delivery of the Aggregate Exercise
Price.

 




 

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(b) Failure
to Deliver and Buy-In Remedy. If the Company
fails for any reason (other than failure to receive any applicable
Aggregate Exercise Price) to deliver to the Holder the Warrant
Shares subject to an Exercise Notice by the Share Delivery Date,
the Company shall pay to the Holder, in cash, as liquidated damages
and not as a penalty, for each $1,000 of Warrant Shares subject to
such exercise (based on the Weighted Average Price of the Class B
Common Stock on the date of the applicable Exercise Notice), $10
per Trading Day (increasing to $20 per Trading Day on the fifth
(5th)
Trading Day after such liquidated damages begin to accrue) for each
Trading Day after such Share Delivery Date until such Warrant
Shares are delivered or Holder rescinds such exercise as provided
in the next sentence, provided, however, that Holder shall not
be entitled to any liquidated damages pursuant to this sentence if
Holder is entitled to a cash payment in connection with a Buy-In.
Any payments made pursuant to this Section 1(b) shall not constitute the
Holder’s exclusive remedy for such events; provided further, however, that any
payments made by the Company pursuant to this Section 1(b) shall reduce the amount
of any damages that the Holder may be entitled to as a remedy for
such events. If the Company fails to cause the Transfer Agent to
transmit to the Holder the Warrant Shares pursuant to Section 1(a) by the Share Delivery
Date, then the Holder will have the right to rescind such exercise.
In addition to any other rights available to the Holder, if the
Company fails to cause the Transfer Agent to issue and deposit into
the Holder’s account with the Transfer Agent such number of
Warrant Shares to which the Holder is entitled upon the
Holder’s exercise pursuant to an exercise on or before the
Share Delivery Date, and if after such Share Delivery Date the
Holder is required by its broker to purchase (in an open market
transaction or otherwise) or the Holder’s brokerage firm
otherwise purchases, shares of Class B Common Stock to deliver in
satisfaction of a sale by the Holder of the Warrant Shares which
the Holder anticipated receiving upon such exercise (a
“Buy-In”), then
the Company shall (i) pay in cash to the Holder the amount, if any,
by which (x) the Holder’s total purchase price (including
brokerage commissions, if any) for the shares of Class B Common
Stock, so purchased in such Buy-In exceeds (y) the amount obtained
by multiplying (1) the number of shares of Class B Common Stock
purchased in such Buy-In by (2) the price at which the sell order
giving rise to such Buy-In was executed, and (ii) at the option of
the Holder, either reinstate the portion of the Warrant and
equivalent number of Warrant Shares for which such exercise was not
honored (in which case such exercise shall be deemed rescinded) or
deliver to Holder the number of shares of Class B Common Stock that
would have been issued had the Company timely complied with its
exercise and delivery obligations hereunder (in which case, if
Holder has not previously delivered to the Company the Aggregate
Exercise Price for such shares of Class B Common Stock, Holder
shall be required to deliver such Aggregate Exercise Price to the
Company prior the delivery of such shares of Class B Common
Stock).

 


(c) Exercise
Price. For purposes of
this Warrant, “Exercise
Price” initially means the Warrant Price, subject to
adjustment as provided herein. For the avoidance of doubt, all
references to the “Exercise Price” herein refers to the
then current Exercise Price.

 


(d) Cashless
Exercise. Notwithstanding
anything contained herein to the contrary, the Holder may, in its
sole discretion, exercise this Warrant in whole or in part and, in
lieu of making the cash payment otherwise contemplated to be made
to the Company upon such exercise in payment of the Aggregate
Exercise Price, elect instead to receive upon such exercise the
“Net Number” of shares of Class B Common Stock
determined according to the following formula (a
“Cashless
Exercise”):

 


 




 

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Net
Number = (A x B) - (A x
C)


B

 


For
purposes of the foregoing formula:

 


A= the
total number of Warrant Shares with respect to which this Warrant
is then being exercised.

 


B= the
Weighted Average Price of the shares of Class B Common Stock (as
reported by Bloomberg) on the date immediately preceding the date
of the Exercise Notice.

 


C= the
Exercise Price then in effect for the applicable Warrant Shares at
the time of such exercise.

 


The
Company hereby covenants and agrees that the Warrant Shares issued
in a Cashless Exercise shall be deemed to have been acquired by the
Holder pursuant to Rule 3(a)(9) of the Securities Act.

 


(e) No
Fractional Shares or Scrip. No fractional
shares or scrip representing fractional shares shall be issued upon
the exercise of this Warrant. As to any fraction of a share that
the Holder would otherwise be entitled to purchase upon such
exercise, the Company shall pay a cash adjustment in respect of
such final fraction in an amount equal to such fraction multiplied
by the Exercise Price.

 


2. ADJUSTMENT
OF EXERCISE PRICE. The Exercise
Price for the Warrant Shares shall be subject to adjustment
(without duplication) upon the occurrence of any of the following
events at any time after the Exercisability Date:

 


(a) Stock
Dividends, Combinations and Splits. The issuance of
Common Stock as a dividend or distribution to all holders of Class
B Common Stock, or a subdivision, combination, split, reverse split
or reclassification of the outstanding shares of Class B Common
Stock into a greater or smaller number of shares, in which event
the Exercise Price shall be adjusted based on the following
formula:

 


where:

 



E1
= 

the Exercise Price
in effect immediately after (i) 9:00 a.m., New York City
time (the “Open of
Business”) on the first date on which the Class B
Common Stock can be traded without the right to receive an issuance
or distribution (the “Ex-Date”) in the case of a
dividend or distribution or (ii) the consummation of the
transaction in the case of a subdivision, combination, split,
reverse split or reclassification;





 


 




 

33








 






 



E0
= 

the Exercise Price
in effect immediately prior to (i) the Open of Business on the
Ex-Date in the case of a dividend or distribution or (ii) the
consummation of the transaction in the case of a subdivision,
combination, split, reverse split or reclassification;





 



N0
= 

the number of
shares of Class B Common Stock outstanding immediately prior to
(i) the Open of Business on the Record Date in the case of a
dividend or distribution or (ii) the consummation of the
transaction in the case of a subdivision, combination, split,
reverse split or reclassification; and





 



N1
= 

the number of
shares of Class B Common Stock equal to (i) in the case of a
dividend or distribution, the sum of the number of shares
outstanding immediately prior to the Open of Business on the Record
Date for such dividend or distribution plus the total number of
shares issued pursuant to such dividend or distribution or
(ii) in the case of a subdivision, combination, split, reverse
split or reclassification, the number of shares outstanding
immediately after such subdivision, combination, split, reverse
split or reclassification.





 


Such
adjustment shall become effective immediately after (i) the
Open of Business on the Ex-Date in the case of a dividend or
distribution or (ii) the consummation of the transaction in
the case of a subdivision, combination, split, reverse split or
reclassification. If any dividend or distribution or subdivision,
combination, split, reverse split or reclassification of the type
described in this Section 2 is declared or announced but
not so paid or made, the Exercise Price shall again be adjusted to
the Exercise Price that would then be in effect if such dividend or
distribution or subdivision, combination, split, reverse split or
reclassification had not been declared or announced, as the case
may be. If any event occurs of the type contemplated by the
provisions of this Section 2(a) but not expressly provided
for by such provisions (including, without limitation, the granting
of stock appreciation rights, phantom stock rights or other rights
with equity features to the holders of the Company’s equity
securities), then the Board of Directors will make an appropriate
adjustment in the Exercise Price and the number of Warrant Shares
so as to protect the rights of the Holder; provided, that no such
adjustment pursuant to this paragraph will increase the Exercise
Price or decrease the number of Warrant Shares as otherwise
determined pursuant to this Section 2.

 


(b) Below
Exercise Price Issuances. Other than any
dividend or distribution covered in Section 2(c), below, if there is an
issuance of Convertible Securities (other than the issuance of
Class B Common Stock upon the exercise of any Convertible
Securities outstanding, and at the Effective Price in effect (as
may be adjusted as provided for in the instrument governing such
Convertible Security), as of the date of the Merger Agreement) with
an Effective Price lower than the Exercise Price, the Exercise
Price will be adjusted to be the Effective Price of such
Convertible Securities being issued. Such adjustment shall become
effective immediately after the Open of Business on the second
Business Day preceding (i) the Ex-Date in the case of a dividend or
distribution or (ii) the date of the issuance in the case of an
issuance other than a dividend or distribution. In the event that
an issuance of such Convertible Securities is announced but such
Convertible Securities are not so issued, the Exercise Price shall
again be adjusted to be the Exercise Price that would then be in
effect if such issuance had not occurred.

 


 




 

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(c) Other
Dividends and Distributions. The issuance as a
dividend or distribution to any holders of Class B Common Stock of
evidences of indebtedness, shares of capital stock or other
securities (other than Common Stock that is the subject of
Section
2(a) above, or
Purchase Rights that are the subject of Section 4(b) below), cash or other
property, in which event the Exercise Price will be adjusted based
on the following formula:

 

 


where:

 



E1
= 

the Exercise Price
in effect immediately after the Open of Business on the Ex-Date for
such dividend or distribution;





 



E0
= 

the Exercise Price
in effect immediately prior to the Open of Business on the Ex-Date
for such dividend or distribution;





 



P
= 

the Weighted
Average Price of a share of Class B Common Stock immediately prior
to the Open of Business on the second Business Day preceding the
Ex-Date for such dividend or distribution; and





 



FMV
= 

the Fair Market
Value of the portion of such dividend or distribution applicable to
one share of Class B Common Stock as of the Open of Business on the
Ex-Date for such dividend or distribution.





 


Such
decrease shall become effective immediately after the Open of
Business on the Ex-Date for such dividend or distribution. In the
event that such dividend or distribution is declared or announced
but not so paid or made, the Exercise Price shall again be adjusted
to be the Exercise Price which would then be in effect if such
distribution had not been declared or announced.

 


(d) Tender
or Exchange Offer. The payment in
respect of any tender offer or exchange offer by the Company for
outstanding Class B Common Stock on a pro rata basis, where the
cash and Weighted Average Price of any other consideration included
in the payment per share of the Class B Common Stock exceeds the
Weighted Average Price of a share of Class B Common Stock as of the
Open of Business on the second Business Day preceding the
expiration date of the tender or exchange offer (the
“Offer Expiration
Date”), in which event the Exercise Price will be
adjusted based on the following formula:

 


 


where:

 



E1
= 

the Exercise Price
in effect immediately after the Close of Business on the Offer
Expiration Date;





 



E0
= 

the Exercise Price
in effect immediately prior to the Close of Business on the Offer
Expiration Date;





 


 




 

35








 






 



N0
= 

the number of
shares of Class B Common Stock outstanding immediately prior to the
expiration of the tender or exchange offer (prior to giving effect
to the purchase or exchange of shares);





 



N1
= 

the number of
shares of Class B Common Stock outstanding immediately after the
expiration of the tender or exchange offer (after giving effect to
the purchase or exchange of shares);





 



A
= 

the aggregate cash
and Weighted Average Price of any other consideration payable for
shares of Class B Common Stock purchased in such tender offer or
exchange offer; and





 



P
= 

the Weighted
Average Price of a share of Class B Common Stock as of the Open of
Business on the second Business Day preceding the Offer Expiration
Date.





 


An
adjustment, if any, to the Exercise Price pursuant to this
Section
2(d) shall become
effective immediately after the Close of Business on the Offer
Expiration Date. In the event that the Company or a Subsidiary of
the Company is obligated to purchase shares of Class B Common Stock
pursuant to any such tender offer or exchange offer, but the
Company or such Subsidiary is permanently prevented by applicable
law from effecting any such purchases, or all such purchases are
rescinded, then the Exercise Price shall again be adjusted to be
the Exercise Price which would then be in effect if such tender
offer or exchange offer had not been made. Except as set forth in
the preceding sentence, if the application of this Section 2(d) to any tender offer or
exchange offer would result in an increase in the Exercise Price,
no adjustment shall be made for such tender offer or exchange offer
under this Section
2(d).

 


(e) Multiple
Adjustments. If any single
action would require adjustment of the Exercise Price pursuant to
more than one subsection of this Section 2, only one adjustment shall be
made and such adjustment shall be the amount of adjustment that has
the highest, relative to the rights and interests of the registered
holders of the Warrants then outstanding, absolute value. For the
purpose of calculations pursuant to this Section 2, the number of shares of
Class B Common Stock outstanding shall be based solely on the
number of shares of Class B Common Stock outstanding on the
applicable date of determination, without giving effect to the
conversion of any Convertible Securities outstanding as of such
date.

 


(f) Adjustment
Timing. Solely with
respect to an exercise of this Warrant for Class B Common Stock,
notwithstanding anything to the contrary set forth in this
Section
2 or any other
provision of this Warrant, if an Exercise Price adjustment becomes
effective on any Ex-Date, and a Holder that has exercised this
Warrant on or after such Ex-Date and on or prior to the related
Record Date would be treated as the record holder of the Class B
Common Stock on or prior to such Record Date, then, the Exercise
Price adjustment relating to such Ex-Date will not be made for such
exercising Holder. Instead, such Holder will be treated as if it
were the record owner of shares of Class B Common Stock on an
un-adjusted basis and participate in the related dividend,
distribution or other event giving rise to such
adjustment.

 


 




 

36








 






 


3. ADJUSTMENTS
TO NUMBER OF WARRANTS. Concurrently with
any adjustment to the Exercise Price under Section 2 (other than Section 2(b)), the number of Warrant
Shares hereunder will be adjusted such that the number of Warrant
Shares in effect immediately following the effectiveness of such
adjustment will be equal to the number of Warrant Shares in effect
immediately prior to such adjustment, multiplied by a fraction,
(i) the numerator of which is the Exercise Price in effect
immediately prior to such adjustment, and (ii) the denominator
of which is the Exercise Price in effect immediately following such
adjustment.

 

4. PURCHASE
RIGHTS; FUNDAMENTAL TRANSACTIONS.

 


(a) Purchase
Rights. If at any time
after the Exercisability Date and prior to the Expiration Date the
Company grants, issues or sells any Options, Convertible Securities
or rights to purchase stock, warrants, securities or other property
pro rata to all of the record holders of any class of shares of
Class B Common Stock (the “Purchase Rights”), then the Holder
will be entitled to acquire, upon the terms applicable to such
Purchase Rights, the aggregate Purchase Rights which the Holder
could have acquired if the Holder had held the number of shares of
Class B Common Stock acquirable upon complete exercise of this
Warrant, assuming a Cash Exercise for Class B Common Stock (in both
cases, and without regard to any limitations on the exercise of
this Warrant) on the date on which a record is taken for the grant,
issuance or sale of such Purchase Rights, or, if no such record is
taken, the date as of which the record holders of shares of Class B
Common Stock are to be determined for the grant, issue or sale of
such Purchase Rights.

 


(b) Fundamental
Transactions. Upon the
occurrence of any Fundamental Transaction in which the Company is
neither the Successor Entity nor the Parent Entity of the Successor
Entity, the Successor Entity shall succeed to, and be substituted
for (so that from and after the date of such Fundamental
Transaction, the provisions of this Warrant referring to the
“Company” shall refer instead to the Successor Entity),
and may exercise every right and power of the Company and shall
assume all of the obligations of the Company under this Warrant
with the same effect as if such Successor Entity had been named as
the Company herein. Upon consummation of any Fundamental
Transaction pursuant to which holders of shares of Class B Common
Stock are entitled to receive shares of stock, securities, cash,
assets or any other property with respect to or in exchange for
shares of Class B Common Stock, the Successor Entity shall deliver
to the Holder confirmation that there shall be issued upon exercise
of this Warrant at any time after the consummation of such
Fundamental Transaction, in lieu of, or in addition to, the shares
of the Class B Common Stock (or other share of stock, securities,
cash, assets or other property purchasable upon the exercise of the
Warrant prior to such Fundamental Transaction), such shares of
stock, securities, cash, assets or any other property whatsoever
(including warrants or other purchase or subscription rights), if
any, that the Holder would have been entitled to receive upon the
happening of such Fundamental Transaction had this Warrant been
exercised immediately prior to such Fundamental Transaction, as
adjusted in accordance with the provisions of this Warrant. In
addition to and not in substitution for any other rights hereunder,
prior to the consummation of any Fundamental Transaction pursuant
to which holders of shares of Class B Common Stock are entitled to
receive shares of stock, securities, cash, assets or any other
property with respect to or in exchange for shares of Class B
Common Stock, the Company shall make appropriate provision to
ensure that the Holder will thereafter have the right to receive
upon exercise of this Warrant within thirty (30) days after the
consummation of the Fundamental Transaction but, in any event,
prior to the Expiration Date, in lieu of, or in addition to, the
Warrant Shares (or other securities, cash, assets or other
property) purchasable upon the exercise of the Warrant prior to
such Fundamental Transaction, such shares of stock, securities,
cash, assets or any other property whatsoever (including warrants
or other purchase or subscription rights) which the Holder would
have been entitled to receive upon the happening of such
Fundamental Transaction had the Warrant been exercised immediately
prior to such Fundamental Transaction.

 




 

37








 






 

 


5. RESERVATION
OF WARRANT SHARES. The Company
covenants that it will at all times reserve and keep available out
of the aggregate of its authorized but unissued and otherwise
unreserved shares of Class B Common Stock, solely for the purpose
of enabling it to issue Warrant Shares upon exercise of this
Warrant as herein provided, at least a number of shares of Class B
Common Stock equal to 100% of the number of shares of Class B
Common Stock which are then issuable and deliverable upon the Cash
Exercise of this entire Warrant for shares of Class B Common Stock,
assuming a Cash Exercise of the Warrant (the “Required Reserve Amount”), free
from preemptive or any other contingent purchase rights of Persons
other than the Holder (taking into account the adjustments and
restrictions in Section 2). The Company covenants that
all shares of Class B Common Stock so issuable and deliverable
shall, upon issuance and the payment of the applicable Exercise
Price in accordance with the terms hereof, be duly and validly
authorized, issued and fully paid and nonassessable. The Company
will take all such actions as may be reasonably necessary,
including but not limited to seeking stockholder approval, to
assure that such shares of Class B Common Stock may be issued as
provided herein without violation of any applicable law or
regulation, or of any requirements of any Eligible Market upon
which the Class B Common Stock may be listed.

 


6. INSUFFICIENT
AUTHORIZED SHARES. If at any time
while this Warrant remains outstanding the Company does not have
reserved for issuance upon exercise of this Warrant at least the
then Required Reserve Amount (an “Authorized Share Failure”), then
the Company shall immediately take all action necessary to increase
the Company’s authorized shares of Class B Common Stock to an
amount sufficient to allow the Company to reserve the Required
Reserve Amount for this Warrant then outstanding. Without limiting
the generality of the foregoing sentence, as soon as practicable
after the date of the occurrence of an Authorized Share Failure,
but in no event later than one hundred and twenty (120) days after
the occurrence of such Authorized Share Failure, the Company shall
hold a meeting of its stockholders for the approval of an increase
in the number of authorized shares of Class B Common Stock. In
connection with such meeting, the Company shall provide each
stockholder with a proxy statement and shall use its reasonable
best efforts to solicit its stockholders’ approval of such
increase in authorized shares of Class B Common Stock and to cause
the Board of Directors to recommend to the stockholders that they
approve such proposal.

 


7. WARRANT
HOLDER NOT DEEMED A STOCKHOLDER. Except as
otherwise specifically provided herein, the Holder, solely in such
Person’s capacity as a Holder, shall not be entitled to vote
or receive dividends or be deemed the holder of share capital of
the Company for any purpose, nor shall anything contained in this
Warrant be construed to confer upon the Holder, solely in such
Person’s capacity as a Holder, any of the rights of a
stockholder of the Company or any right to vote, give or withhold
consent to any corporate action (whether any reorganization, issue
of stock, reclassification of stock, consolidation, merger,
conveyance or otherwise), receive notice of meetings, receive
dividends or subscription rights, or otherwise, prior to the
issuance to the Holder which such Person is then entitled to
receive upon the due exercise of this Warrant. In addition, nothing
contained in this Warrant shall be construed as imposing any
liabilities on the Holder to purchase any securities (upon exercise
of this Warrant or otherwise) or as a stockholder of the Company,
whether such liabilities are asserted by the Company or by
creditors of the Company.

 




 

38








 





 

8. REGISTRATION
AND REISSUANCE OF WARRANTS.

 


(a) Registration
of Warrant. The Company shall
register this Warrant, upon the records to be maintained by the
Company for that purpose (the “Warrant Register”), in the name of
the record Holder hereof from time to time. The Company may deem
and treat the registered Holder of this Warrant as the absolute
owner hereof for the purpose of any exercise hereof or any
distribution to the Holder, and for all other purposes, absent
actual notice to the contrary. The Company shall also register any
transfer, exchange, reissuance or cancellation of any portion of
this Warrant in the Warrant Register. This Warrant shall
automatically be cancelled at 11:59:01 p.m., New York time, on the
Expiration Date and upon such cancellation, the Company shall
register the cancellation of this Warrant in the Warrant
Register.

 


(b) Transfer
of Warrant. This Warrant may
be offered for sale, sold, transferred or assigned without the
consent of the Company, except as may otherwise be required by
applicable securities laws. Subject to applicable securities laws,
if this Warrant is to be transferred, the Holder shall surrender
this Warrant to the Company, together with all applicable transfer
taxes and all additional documentation (including, without
limitation, an opinion of counsel reasonably satisfactory to the
Company) reasonably requested by the Company to confirm that any
such transfer of this Warrant complies with applicable securities
laws, whereupon the Company will promptly issue and deliver upon
the order of the Holder a new Warrant (in accordance with
Section
8(e)), registered
as the Holder may request, representing the right to purchase the
number of Warrant Shares being transferred by the Holder and, if
less than the total number of Warrant Shares then underlying this
Warrant is being transferred, a new Warrant (in accordance with
Section
8(e)) to the Holder
representing the right to purchase the number of Warrant Shares not
being transferred. The acceptance and execution of the new Warrant
by the transferee thereof shall be deemed the acceptance by such
transferee of all of the rights and obligations in respect of the
new Warrant that the Holder has in respect of this
Warrant.

 


(c) Lost,
Stolen or Mutilated Warrant. Upon receipt by
the Company of evidence reasonably satisfactory to the Company of
the loss, theft, destruction or mutilation of this Warrant, and, in
the case of loss, theft or destruction, if requested by the
Company, of any indemnification undertaking by the Holder to the
Company in customary form by the Holder to the Company (but without
the requirement to post a bond) and, in the case of mutilation,
upon surrender and cancellation of this Warrant, the Company shall
execute and deliver to the Holder a new Warrant (in accordance with
Section
8(e)) representing
the right to purchase the Warrant Shares then underlying this
Warrant.

 


(d) Exchangeable
for Multiple Warrants. This Warrant is
exchangeable, upon the surrender hereof by the Holder at the
principal office of the Company, together with all applicable
transfer taxes, for a new Warrant or Warrants (in accordance with
Section
8(e)) representing
in the aggregate the right to purchase the number of Warrant Shares
then underlying this Warrant, and each such new Warrant will
represent the right to purchase such portion of such Warrant Shares
as is designated by the Holder at the time of such surrender;
provided,
however, that the
Company shall not be required to issue new Warrants for fractional
Warrant Shares hereunder.

 


 




 

39








 






 


(e) Issuance
of New Warrants. Whenever the
Company or its Transfer Agent, as directed by the Company, is
required to issue a new Warrant pursuant to the terms of this
Warrant, such new Warrant shall (i) be of like tenor with this
Warrant, (ii) represent, as indicated on the face of such new
Warrant, the right to purchase the Warrant Shares then underlying
this Warrant (or in the case of a new Warrant being issued pursuant
to Section
8(b) or
Section
8(c), the Warrant
Shares designated by the Holder which, when added to the number of
shares of Class B Common Stock underlying the other new Warrants
issued in connection with such issuance, does not exceed the number
of Warrant Shares then underlying this Warrant), (iii) have an
issuance date, as indicated on the face of such new Warrant which
is the same as the Issuance Date and (iv) have the same terms and
conditions as this Warrant.

 


9. REGISTRATION
RIGHTS.

 


(a) Filing
of Registration Statement. As soon as
reasonably practicable, but in no event later than thirty (30) days
after a Commitment Termination occurs (such date of filing is
referred to as the “Filing
Date”), the Company shall file a registration
statement covering the resale of the Warrant Shares on a
registration statement (the “Registration Statement”) with the
SEC and effect the registration, qualifications or compliances
(including, without limitation, the execution of any required
undertaking to file post-effective amendments, appropriate
qualifications or exemptions under applicable blue sky or other
state securities laws and appropriate compliance with applicable
securities laws, requirements or regulations) as promptly as
possible after the filing thereof, but in any event prior to the
date that is sixty (60) days after the Filing Date.

 


(b) Expenses.
All registration expenses incurred in connection with any
registration, qualification, exemption or compliance pursuant to
this Section
9 shall be borne by
the Company.

 


(c) Registration
Defaults. The Company
further agrees that, in the event that the Registration Statement
(i) has not been filed with the SEC by the date such filing is
required pursuant to Section 9(a), (ii) has not been
declared effective by the SEC by the date such filing is required
pursuant to Section
9(a) (or, in the
event the Company receives comments on such Registration Statement,
the date that is ninety (90) days after the Filing Date), or (iii)
after the Registration Statement is declared effective by the SEC,
is suspended by the Company or ceases to remain continuously
effective as to all Warrant Shares for which it is required to be
effective, other than, in each case, within the time period(s)
permitted by Section
9(f)(ii) (each such event referred to in clauses (i), (ii)
and (iii), (a “Registration
Default”)), for any thirty-day period (a
“Penalty
Period”) during which the Registration Default remains
uncured (which initial thirty-day period shall commence on the
fifth Business Day after the date of such Registration Default if
such Registration Default has not been cured by such date), the
Exercise Price then in effect shall be reduced by an amount equal
to one percent (1%) of such Exercise Price for each Penalty Period
during which the Registration Default remains uncured; provided, however, that if the Holder
fails to provide the Company with any information that is required
to be provided in the Registration Statement with respect to the
Holder as set forth herein, then the commencement of the Penalty
Period described above shall be extended until five Business Days
following the date of receipt by the Company of such required
information; provided further, that the amount
payable to the Holder hereunder for any partial Penalty Period
shall be prorated for the number of actual days during such Penalty
Period during which a Registration Default remains uncured. The
Company shall deliver said cash payment to the Holder by the fifth
Business Day after the end of such Penalty Period. If the Company
fails to pay said cash payment to the Holder in full by the fifth
Business Day after the end of such Penalty Period, the Company will
pay interest thereon at a rate of ten percent (10%) per annum (or
such lesser maximum amount that is permitted to be paid by
applicable law) to the Holder, accruing daily from the date such
liquidated damages are due until such amounts, plus all such
interest thereon, are paid in full.

 




 

40








 






 


(d) Registration
Period Covenants. In the case of
the registration, qualification, exemption or compliance effected
by the Company pursuant to this Warrant, the Company shall, upon
reasonable request, inform the Holder as to the status of such
registration, qualification, exemption and compliance. At its
expense, during the Registration Period, the Company
shall:

 


(i) except for such
times as the Company is permitted hereunder to suspend the use of
the prospectus forming part of the Registration Statement under
Section 9(f)(ii),
use its commercially reasonable efforts to keep such registration,
and any qualification, exemption or compliance under state
securities laws that the Company determines to obtain, continuously
effective with respect to the Holder, and to keep such Registration
Statement free of any material misstatements or omissions, until
the later of the following: (i) the second anniversary of the
applicable Exercisability Date and (ii) the date all Warrant Shares
may be sold under Rule 144 during any 90 day period without volume
or manner of sale limitations. The period of time during which the
Company is required hereunder to keep the Registration Statement
effective is referred to herein as the “Registration Period;”

 


(ii) advise the
Holders:

 


(A) within two Business
Days when the Registration Statement or any amendment thereto has
been filed with the SEC and when the Registration Statement or any
post-effective amendment thereto has become effective;

 


(B) within five
Business Days of any request by the SEC for amendments or
supplements to the Registration Statement or the prospectus
included therein or for additional information;

 


(C) within five
Business Days of the issuance by the SEC of any stop order
suspending the effectiveness of the Registration Statement or the
initiation of any proceedings for such purpose;

 


(D) within five
Business Days of the receipt by the Company of any notification
with respect to the suspension of the qualification of the Warrant
Shares included therein for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose;
and

 


(E) within five
Business Days of the occurrence of any event that requires the
making of any changes in the Registration Statement or the
prospectus so that, as of such date, the statements therein are not
misleading and do not omit to state a material fact required to be
stated therein or necessary to make the statements therein (in the
case of the prospectus, in the light of the circumstances under
which they were made) not misleading; provided that, the Company
shall not be required to provide, and shall not provide, the Holder
or its representatives with material, non-public information unless
the Holder agrees to receive such information and enters into a
written confidentiality agreement with the Company in a form
reasonably acceptable to the Company;

 


(F) use its
commercially reasonable efforts to obtain the withdrawal of any
order suspending the effectiveness of any Registration Statement as
soon as reasonably practicable;

 




 

41








 






 


(G) promptly deliver to
the Holder, without charge, as many copies of the prospectus
included in such Registration Statement and any amendment or
supplement thereto as the Holder may reasonably request in writing;
and the Company consents to the use, consistent with the provisions
hereof, of the prospectus or any amendment or supplement thereto by
the Holder of Warrant Shares in connection with the offering and
sale of the Warrant Shares covered by the prospectus or any
amendment or supplement thereto;

 


(H) if the Holder so
requests in writing, deliver to the Holder, without charge, (i) one
copy of the following documents, other than those documents
available via EDGAR: (A) its annual report to its stockholders, if
any (which annual report shall contain financial statements audited
in accordance with generally accepted accounting principles in the
United States of America by a firm of certified public accountants
of recognized standing), (B) if not included in substance in its
annual report to stockholders, its annual report on Form 10-K (or
similar form), (C) its definitive proxy statement with respect to
its annual meeting of stockholders, (D) each of its quarterly
reports to its stockholders, and, if not included in substance in
its quarterly reports to stockholders, its quarterly report on Form
10-Q (or similar form), and (E) a copy of the full Registration
Statement (the foregoing, in each case, excluding exhibits); and
(ii) if explicitly requested, all exhibits excluded by the
parenthetical to the immediately preceding clause (E);

 


(I) prior to any public
offering of Warrant Shares pursuant to any Registration Statement,
promptly take such actions as may be necessary to register or
qualify or obtain an exemption for offer and sale under the
securities or blue sky laws of such United States jurisdictions as
any such Holders reasonably request in writing, provided that the
Company shall not for any such purpose be required to qualify
generally to transact business as a foreign corporation in any
jurisdiction where it is not so qualified or to consent to general
service of process in any such jurisdiction, and do any and all
other acts or things reasonably necessary or advisable to enable
the offer and sale in such jurisdictions of the Warrant Shares
covered by such Registration Statement;

 


(J) upon the occurrence
of any event contemplated by Section 9(d)(ii)(E) above, except for
such times as the Company is permitted hereunder to suspend the use
of the prospectus forming part of the Registration Statement, the
Company shall use its commercially reasonable efforts to as soon as
reasonably practicable prepare a post-effective amendment to the
Registration Statement or a supplement to the related prospectus,
or file any other required document so that, as thereafter
delivered to purchasers of the Warrant Shares included therein, the
prospectus will not include any untrue statement of a material fact
or omit to state any material fact necessary to make the statements
therein, in the light of the circumstances under which they were
made, not misleading;

 


(K) otherwise use its
commercially reasonable efforts to comply in all material respects
with all applicable rules and regulations of the SEC that could
affect the sale of the Warrant Shares;

 


(L) use its
commercially reasonable efforts to cause all Warrant Shares to be
listed on each securities exchange or market, if any, on which
equity securities issued by the Company have been
listed;


 




 

42








 






 


(M) use its
commercially reasonable efforts to take all other steps necessary
to effect the registration of the Warrant Shares contemplated
hereby and to enable the Holders to sell Warrant Shares under Rule
144;

 


(N) provide to the
Holder and its representatives, if requested, the opportunity to
conduct a reasonable inquiry of the Company’s financial and
other records during normal business hours and make available on
reasonable prior notice and during normal business hours its
officers, directors and employees for questions regarding
information that the Holder may reasonably request in order to
fulfill any due diligence obligation on its part; and

 


(O) at the
Holder’s expense, permit a single counsel for the Holder to
review the Registration Statement and all amendments and
supplements thereto, at least two Business Days prior to the filing
thereof with the SEC;

 


(iii) upon request from
the Holder, take all customary actions, and to cause the Transfer
Agent to take all reasonable actions, necessary to remove any
legend on the Warrant Shares at the earliest possible time
permitted by applicable law; and

 


(iv) provide a legal
opinion of the Company's outside counsel, dated the effective date
of such Registration Statement, with respect to the Registration
Statement, each amendment and supplement thereto, the prospectus
included therein (including the preliminary prospectus) and such
other documents relating thereto in customary form and covering
such matters of the type customarily covered by legal opinions of
such nature.

 


(e) Indemnity.

 


(i) To the extent
permitted by law, the Company shall indemnify the Holder and each
person controlling the Holder within the meaning of Section 15 of
the Act, with respect to which any registration that has been
effected pursuant to this Section 9, against all claims, losses,
damages and liabilities (or action in respect thereof), including
any of the foregoing incurred in settlement of any litigation,
commenced or threatened (subject to Section 9(e)(iii) below),
arising out of or based on any untrue statement (or alleged untrue
statement) of a material fact contained in the Registration
Statement, prospectus, any amendment or supplement thereof, or
other document incident to any such registration, qualification or
compliance or based on any omission (or alleged omission) to state
therein a material fact required to be stated therein or necessary
to make the statements therein not misleading, in light of the
circumstances in which they were made, or any violation by the
Company of any rule or regulation promulgated by the Act applicable
to the Company and relating to any action or inaction required of
the Company in connection with any such registration, qualification
or compliance, and will reimburse the Holder and each person
controlling the Holder, for reasonable legal and other
out-of-pocket expenses reasonably incurred in connection with
investigating or defending any such claim, loss, damage, liability
or action as incurred; provided that the Company will
not be liable in any such case to the extent that any untrue
statement or omission or allegation thereof is made in reliance
upon and in conformity with written information furnished to the
Company by or on behalf of the Holder for use in preparation of
such Registration Statement, prospectus, amendment or supplement;
provided
further that the
Company will not be liable in any such case where the claim, loss,
damage or liability arises out of or is related to the failure of
the Holder to comply with the covenants and agreements contained in
this Warrant respecting sales of Warrant Shares, and except that
the foregoing indemnity agreement is subject to the condition that,
insofar as it relates to any such untrue statement or alleged
untrue statement or omission or alleged omission made in the
preliminary prospectus but eliminated or remedied in the amended
prospectus on file with the SEC at the time the Registration
Statement becomes effective or in the amended prospectus filed with
the SEC pursuant to Rule 424(b) or in the prospectus subject to
completion under Rule 434 of the Act, which together meet the
requirements of Section 10(a) of the Act (the “Final Prospectus”), such indemnity
shall not inure to the benefit of the Holder or any such
controlling person, if a copy of the Final Prospectus furnished by
the Company to the Holder for delivery was not furnished to the
person or entity asserting the loss, liability, claim or damage at
or prior to the time such furnishing is required by the Act and the
Final Prospectus would have cured the defect giving rise to such
loss, liability, claim or damage.

 




 

43








 






 


(ii) The Holder will
severally, and not jointly, indemnify the Company, each of its
directors and officers, and each person who controls the Company
within the meaning of Section 15 of the Act, against all claims,
losses, damages and liabilities (or actions in respect thereof),
including any of the foregoing incurred in settlement of any
litigation, commenced or threatened (subject to Section 9(e)(iii) below),
arising out of or based on any untrue statement (or alleged untrue
statement) of a material fact contained in the Registration
Statement, prospectus, or any amendment or supplement thereof,
incident to any such registration, or based on any omission (or
alleged omission) to state therein a material fact required to be
stated therein or necessary to make the statements therein not
misleading, in light of the circumstances in which they were made,
and will reimburse the Company, such directors and officers, and
each person controlling the Company for reasonable legal and any
other expenses reasonably incurred in connection with investigating
or defending any such claim, loss, damage, liability or action as
incurred, in each case to the extent, but only to the extent, that
such untrue statement or omission or allegation thereof is made in
reliance upon and in conformity with written information furnished
to the Company by or on behalf of the Holder about the Holder for
use in preparation of the Registration Statement, prospectus,
amendment or supplement; provided that the indemnity
shall not apply to the extent that such claim, loss, damage or
liability results from the fact that a current copy of the
prospectus was not made available to the person or entity asserting
the loss, liability, claim or damage at or prior to the time such
furnishing is required by the Act and the Final Prospectus would
have cured the defect giving rise to such loss, claim, damage or
liability. Notwithstanding the foregoing, the Holder’s
aggregate liability pursuant to this subsection (ii) shall be
limited to the net amount received by the Holder from the sale of
the Warrant Shares giving rise to such claims, losses, damages and
liabilities (and actions in respect thereof).

 


(iii) Each party entitled
to indemnification under this Section 9(e) (the
“Indemnified
Party”) shall give notice to the party required to
provide indemnification (the “Indemnifying Party”) promptly
after such Indemnified Party has actual knowledge of any claim as
to which indemnity may be sought, and shall permit the Indemnifying
Party (at its expense) to assume the defense of any such claim or
any litigation resulting therefrom; provided that counsel for the
Indemnifying Party, who shall conduct the defense of such claim or
litigation, shall be approved by the Indemnified Party (whose
approval shall not unreasonably be withheld or delayed), and the
Indemnified Party may participate in such defense at such
Indemnified Party’s expense; provided further that the failure of any
Indemnified Party to give notice as provided herein shall not
relieve the Indemnifying Party of its obligations under this
Warrant, unless such failure is materially prejudicial to the
Indemnifying Party in defending such claim or litigation. An
Indemnifying Party shall not be liable for any settlement of an
action or claim effected without its written consent (which consent
will not be unreasonably withheld or delayed). No Indemnifying
Party, in its defense of any such claim or litigation, shall,
except with the consent (such consent not to be unreasonably
withheld or delayed) of the Indemnified Party consent to entry of
any judgment or enter into any settlement that does not include as
an unconditional term thereof the giving by the claimant or
plaintiff to such Indemnified Party of a release from all liability
in respect to such claim or litigation.

 




 

44








 






 


(iv) If the
indemnification provided for in this Section 9(e) is held by a court
of competent jurisdiction to be unavailable to an Indemnified Party
or is insufficient to hold such Indemnified Party harmless with
respect to any loss, liability, claim, damage or expense referred
to therein, then the Indemnifying Party shall contribute to the
amount paid or payable by such Indemnified Party as a result of
such loss, liability, claim, damage or expense in such proportion
as is appropriate to reflect the relative fault of the Indemnifying
Party on the one hand and of the Indemnified Party on the other in
connection with the statements or omissions that resulted in such
loss, liability, claim, damage or expense as well as any other
relevant equitable considerations. The relative fault of the
Indemnifying Party and of the Indemnified Party shall be determined
by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission to state a
material fact relates to information supplied by the Indemnifying
Party or by the Indemnified Party and the parties’ relative
intent, knowledge, access to information and opportunity to correct
or prevent such statement or omission. Notwithstanding the
foregoing, the Holder’s aggregate liability pursuant to this
subsection (iv) shall be limited to the net amount received by the
Holder from the sale of Warrant Shares giving rise to such loss,
liability, claim, damage or expense (or actions in respect thereof)
less all other amounts paid as damages in respect
thereto.

 


(f) Additional
Covenants and Agreements of the Holder.

 


(i) The Holder agrees
that, upon receipt of any notice from the Company of the happening
of any event requiring the preparation of a supplement or amendment
to a prospectus relating to Warrant Shares so that, as thereafter
delivered to the Holder, such prospectus shall not contain an
untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the
statements therein not misleading, the Holder will forthwith
discontinue disposition of Warrant Shares pursuant to the
Registration Statement and prospectus contemplated by Section 9(a) until its receipt of
copies of the supplemented or amended prospectus from the Company
and, if so directed by the Company, the Holder shall deliver to the
Company all copies, other than permanent file copies then in the
Holder’s possession, of the prospectus covering such Warrant
Shares current at the time of receipt of such notice.

 


(ii) The Holder shall
suspend, upon written request of the Company, any disposition of
Warrant Shares pursuant to the Registration Statement and
prospectus contemplated by Section 9(a) during no more than 90
calendar days (which need not be consecutive days) during any
12-month period to the extent that the Board of Directors of the
Company determines in good faith that the sale of Warrant Shares
under the Registration Statement would be reasonably likely to
cause a violation of the Act or Exchange Act; provided, that, in
the event the Company requests such suspension, then the Expiration
Date shall be extended by a number of Trading Days equal to the
number of Trading Days that occur during such
suspension.

 


(iii) As a condition to
the inclusion of its Warrant Shares, the Holder shall furnish to
the Company such information regarding the Holder and the
distribution proposed by the Holder as the Company may reasonably
request in writing, including completing a Registration Statement
questionnaire in the form provided by the Company, or as shall be
required in connection with any registration referred to in this
Section
9.

 




 

45








 






 


(iv) The Holder hereby
covenants with the Company (A) not to make any sale of the Warrant
Shares without effectively causing the prospectus delivery
requirements under the Act to be satisfied, and (B) if such Warrant
Shares are to be sold by any method or in any transaction other
than on a national securities exchange, Nasdaq or in the
over-the-counter market, in privately negotiated transactions, or
in a combination of such methods, to notify the Company at least
five Business Days prior to the date on which the Holder first
offers to sell any such Warrant Shares.

 


(v) The Holder
acknowledges and agrees that the Warrant Shares sold pursuant to
the Registration Statement are not transferable on the books of the
Company unless the stock certificate submitted to the transfer
agent evidencing such Warrant Shares is accompanied by a
certificate reasonably satisfactory to the Company to the effect
that (A) the Warrant Shares have been sold in accordance with such
Registration Statement and (B) the requirement of delivering a
current prospectus has been satisfied.

 


(vi) The Holder agrees
not to take any action with respect to any distribution deemed to
be made pursuant to such Registration Statement that would
constitute a violation of Regulation M under the Exchange Act or
any other applicable rule, regulation or law.

 


(vii) At the end of the
Registration Period, the Holders shall discontinue sales of shares
pursuant to such Registration Statement upon receipt of notice from
the Company of its intention to remove from registration the shares
covered by such Registration Statement which remain unsold, and
such Holders shall notify the Company of the number of shares
registered which remain unsold immediately upon receipt of such
notice from the Company.

 


(g) Additional
Covenants and Agreements of the Company. With a view to
making available to the Holder the benefits of certain rules and
regulations of the SEC that at any time permit the sale of the
Warrant Shares to the public without registration, so long as the
Holder still own Warrant Shares, the Company shall use its
commercially reasonable efforts to:

 


(i) make and keep
public information available, as those terms are understood and
defined in Rule 144, at all times;

 


(ii) file with the SEC
in a timely manner all reports and other documents required of the
Company under the Exchange Act; and

 


(iii) so long as the
Holder owns any Warrant Shares, make available or furnish to the
Holder, upon any reasonable request, a written statement by the
Company as to its compliance with Rule 144 and of the Exchange Act,
a copy of the most recent annual or quarterly report of the
Company, and such other reports and documents of the Company as the
Holder may reasonably request in availing itself of any rule or
regulation of the SEC allowing the Holder to sell any such
securities without registration.

 


(h) Assignment
of Registration Rights. The rights to
cause the Company to register Warrant Shares granted to the Holder
by the Company under Section 9(a) may be assigned by the
Holder in connection with a transfer by the Holder to a transferee
of the Warrants and all Warrant Shares, provided, however, that (i)
such transfer complies with all applicable securities laws and with
the terms and provisions of the Warrant; (ii) the Holder gives
prior written notice to the Company; and (iii) such transferee
agrees in writing to comply with the terms and provisions of the
Warrant, and has provided the Company with a completed Registration
Statement questionnaire in such form as is reasonably requested by
the Company.

 




 

46








 





 


10. CERTAIN
TAX MATTERS.

 


(a) No
Deductions or Withholdings. The grant of this
Warrant shall be made free and clear of, and without any deduction
or withholding for or on account of, any current or future taxes,
levies, imposts, duties, charges or other deductions or
withholdings levied by any national, state, provincial or local
taxing authority, or will be grossed up by Company for such
amounts.

 


(b) Cooperation.
In addition, and in connection with the ownership by Holder of this
Warrant and any Class B Common Stock issuable upon the exercise of
this Warrant, Company shall (and shall cause its subsidiaries to)
reasonably cooperate with the Holder, and use commercially
reasonable efforts to provide the Holder with all reasonably
requested information, records, and documents related to Company
and its subsidiaries that are necessary for, the completion of tax
and information returns of the Holder and its Affiliates (or their
direct or indirect equity owners) and their compliance with any
applicable tax laws, including with respect to withholding tax
obligations. Without limiting the generality of the foregoing, (x)
in the event that Company makes or has made any actual or deemed
distribution to its stockholders, Company shall make commercially
reasonable efforts to provide to the Holder such information
regarding the current and accumulated “earnings and
profits” of Company (including any projections with respect
to current earnings and profits) as the Holder may reasonably
request in order to determine what portion (if any) of any such
distribution is a dividend for U.S. federal income tax purposes and
(y) Company shall (1) provide to the Holder, upon written request
and within thirty (30) days following such request, either (A) a
certification that Company is not a United States real property
holding company, in accordance with Treasury Regulations Sections
1.897-2(g)(1)(ii) and 1.897-2(h)(1) or (B) written notice of its
legal inability to provide such a certification, and (2) in
connection with the provision of any certification pursuant to the
preceding clause (1)(A), comply with the notice provisions set
forth in Treasury Regulations Section 1.897-2(h)(2).

 


(c) Cashless
Exercise. If the Holder
elects to exercise this Warrant using the Cashless Exercise method
of payment, the Company, upon request of the Holder, shall use
commercially reasonable efforts to structure the exercise of this
Warrant in such a manner (as requested by the Holder) as to
maximize the after-tax returns to the Holder and its Affiliates (or
their direct or indirect equity owners), including, at the
Holder’s request, by treating the exercise as a
recapitalization within the meaning of Code Section
368(a)(1)(E).

 


11. NOTICES.
Whenever notice is required to be given under this Warrant, unless
otherwise provided herein, such notice shall be given in writing,
(a) if delivered from within the domestic United States, by
first-class registered or certified airmail, or nationally
recognized overnight express courier, postage prepaid, or by email
or (b) if delivered from outside the United States, by
International Federal Express or by email and (c) will be deemed
given (i) if delivered by first-class registered or certified
domestic mail, three (3) Business Days after so mailed, (ii) if
delivered by nationally recognized overnight carrier, one (1)
Business Day after so mailed, (iii) if delivered by International
Federal Express, two (2) Business Days after so mailed, and (iv) if
delivered by email, upon receipt, and will be delivered and
addressed as follows:


 




 

47








 






 

(a) If
to the Company, to

 


RumbleOn,
Inc.


901 W.
Walnut Hill Lane


Irving,
Texas 75038


Attention: Marshall
Chesrown and Peter Levy


Email:
Marshall Chesrown (marshall@rumbleon.com) and Peter Levy
(peter@rumbleon.com)

 


with a
copy to (which shall not constitute notice):

 


Akerman
LLP


The
Main Las Olas


201
East Las Olas Boulevard


Suite
1800


Fort
Lauderdale, FL 33301


Tel:
954.463.2700


Fax:
942.463.2224


Attention: Michael
Francis (michael.francis@akerman.com), Christina Russo
(christina.russo@akerman.com)


 

(b) If
to the Holder, to

 


[_________].

 


The
Company shall give written notice to the Holder (i) reasonably
promptly following any adjustment of the Exercise Price, setting
forth in reasonable detail, and certifying, the calculation of such
adjustment and (ii) at least ten (10) days prior to the date on
which the Company closes its books or takes a record (A) with
respect to any dividend or distribution upon the shares of Class B
Common Stock, (B) with respect to any grants, issuances or sales of
any Options, Convertible Securities or rights to purchase stock,
warrants, securities or other property pro rata to the record
holders of any class of shares of Class B Common Stock or (C) for
determining rights to vote with respect to any Fundamental
Transaction, dissolution or liquidation; provided, that in each case,
such information shall be made known to the public prior to or in
conjunction with such notice being provided to the Holder; and
provided,
further, that the
failure to deliver such notice or any defect therein or in the
delivery thereof shall not affect the validity of the corporation
action required to be specified in such notice. Upon receipt or
delivery by the Company of any notice in accordance with the terms
of this Warrant, unless the Company has in good faith determined
that the matters relating to such notice do not constitute
material, nonpublic information relating to the Company or its
subsidiaries, the Company shall contemporaneously with any such
receipt or delivery publicly disclose such material, nonpublic
information on a Current Report on Form 8-K or otherwise in
accordance with applicable laws. In the event that the Company
believes that a notice contains material, nonpublic information
relating to the Company or its subsidiaries, the Company so shall
indicate to such Holder contemporaneously with delivery of such
notice, and in the absence of any such indication, the Holder shall
be allowed to presume that all matters relating to such notice do
not constitute material, nonpublic information relating to the
Company or its subsidiaries.

 




 

48








 






 


12. NONCIRCUMVENTION.
The Company hereby covenants and agrees that the Company will not,
by amendment of its Articles or Bylaws, each as currently in
effect, or through any reorganization, transfer of assets,
consolidation, merger, scheme of arrangement, dissolution, issue or
sale of securities or any other voluntary action, avoid or seek to
avoid the observance or performance of any of the terms of this
Warrant, and will at all times in good faith carry out all the
provisions of this Warrant and take all action as may be required
to protect the rights of the Holder. Without limiting the
generality of the foregoing, the Company (i) shall not increase the
par value of any shares of Class B Common Stock receivable upon the
exercise of this Warrant above the Exercise Price then in effect,
and (ii) shall use all reasonable efforts to take all such actions
as may be necessary or appropriate in order that the Company may
validly and legally issue fully paid and nonassessable shares of
Class B Common Stock upon the exercise of this
Warrant.

 


13. AMENDMENT
AND WAIVER. Except as
otherwise provided herein, the provisions of this Warrant may not
be modified, amended or waived except pursuant to an instrument in
writing signed by the Company and the Holder. The Company may not
take any action herein prohibited, or omit to perform any act
herein required to be performed by it without the written consent
of the Holder and the Holder may not take any action herein
prohibited, or omit to perform any act herein required to be
performed by it without the written consent of the
Company.

 


14. GOVERNING
LAW; WAIVER OF JURY TRIAL. This Warrant
shall be governed by and construed and enforced in accordance with,
and all questions concerning the construction, validity,
interpretation and performance of this Warrant shall be governed
by, the internal laws of the State of New York, without giving
effect to any choice of law or conflict of law provision or rule
(whether of the State of New York or any other jurisdictions) that
would cause the application of the laws of any jurisdictions other
than the State of New York. THE
COMPANY AND THE HOLDER EACH HEREBY IRREVOCABLY WAIVES ANY RIGHT IT
MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY CLAIM BASED UPON OR
ARISING OUT OF THIS WARRANT OR ANY TRANSACTION CONTEMPLATED
HEREBY.

 


15. CONSTRUCTION;
HEADINGS. This Warrant
shall be deemed to be jointly drafted by the Company and the Holder
and shall not be construed against any person as the drafter
hereof. The headings of this Warrant are for convenience of
reference and shall not form part of, or affect the interpretation
of, this Warrant.

 


16. DISPUTE
RESOLUTION. In the case of a
dispute as to the determination of the Exercise Price or the
arithmetic calculation of the Warrant Shares, the Company shall
submit the disputed determinations or arithmetic calculations via
email within two (2) Trading Days of receipt of the Exercise Notice
giving rise to such dispute, as the case may be, to the Holder. If
the Holder and the Company are unable to agree upon such
determination or calculation of the Exercise Price or the Warrant
Shares within five (5) Trading Days after such disputed
determination or arithmetic calculation is submitted to the Holder,
then the Company shall, within two (2) Trading Days, submit via
email (a) the disputed determination of the Exercise Price to an
independent, reputable investment bank selected by the Company and
approved by the Holder or (b) the disputed arithmetic calculation
of the Warrant Shares to the Company’s independent, outside
accountant. The Company shall cause the investment bank or the
accountant, as the case may be, to perform the determinations or
calculations and notify the Company and the Holder of the results
no later than ten (10) Trading Days after the date that such
investment bank or accountant, as the case may be, receives the
disputed determinations or calculations. Such investment
bank’s or accountant’s determination or calculation, as
the case may be, shall be binding upon all parties absent
demonstrable error. The expenses of the investment bank and
accountant will be borne by the Company unless the investment bank
or accountant determines that the determination of the Exercise
Price or the arithmetic calculation of the Warrant Shares by the
Company was correct, in which case the expenses of the investment
bank and accountant will be borne by the Holder.


 




 

49








 






 


17. REMEDIES,
OTHER OBLIGATIONS, BREACHES AND INJUNCTIVE
RELIEF.
The remedies provided in this Warrant shall be cumulative and in
addition to all other remedies available under this Warrant, at law
or in equity (including a decree of specific performance and/or
other injunctive relief). The Company acknowledges that a breach by
it of its obligations hereunder may cause irreparable harm to the
Holder and that the remedy at law for any such breach may be
inadequate. The Company therefore agrees that, in the event of any
such breach or threatened breach, the Holder shall be entitled, in
addition to all other available remedies, to seek an injunction
restraining any breach, specific performance and any other relief
that may be available from a court of competent jurisdiction, and
in any case no bond or other security shall be required in
connection therewith.

 


18. CERTAIN
DEFINITIONS. For purposes of
this Warrant, the following terms shall have the following
meanings:

 


(a) “Affiliate” means, with respect to
any Person, any other Person that directly or indirectly controls,
is controlled by, or is under common control with, such Person, it
being understood for purposes of this definition that
“control” of a Person means the power directly or
indirectly either to vote 10% or more of the stock having ordinary
voting power for the election of directors of such Person or direct
or cause the direction of the management and policies of such
Person whether by contract or otherwise.

 


(b) “Articles” means the
Company’s Articles of Incorporation, as may be amended from
time to time.

 


(c) “Bloomberg” means Bloomberg
Financial Markets.

 


(d) “Board of Directors” means the
Board of Directors of the Company.

 


(e) “Business Day” means a day, other
than a Saturday or Sunday, on which banks in New York are open for
the general transaction of business.

 


(f) “Bylaws” means the Bylaws of the
Company, as amended and may be further amended from time to
time.

 


(g) “Class A Common Stock” means the
Company’s shares of Class A Common Stock, $0.001 par value
per share.

 


(h) “Class B Common Stock” means (i)
the Company’s shares of Class B Common Stock, $0.001 par
value per share, and (ii) any share capital into which such Class B
Common Stock shall have been changed or any share capital resulting
from a reclassification of such Class B Common Stock.

 


(i) “Close of Business” means 4:00pm
New York City time.

 


(j) “Code” means the U.S. Internal
Revenue Code of 1986, as amended (including any successor
statute).


 




 

50








 





 


(k) “Commitment Termination” means the
public announcement of the termination of the Debt Commitment
Letter and the commitments thereunder in accordance with the terms
of the Debt Commitment Letter (except for a termination as a result
of a breach by the Commitment Party (as such term is defined in the
Debt Commitment Letter) to uphold its obligations pursuant to the
Debt Commitment Letter).

 


(l) “Common Stock” means the common
stock of the Company, as defined in the Articles, and including the
Class A Common Stock and the Class B Common Stock.

 


(m) “Convertible Securities” means any
stock or securities directly or indirectly convertible into or
exercisable or exchangeable for shares of Class B Common Stock
except for such stock or securities issued as awards under the
Company’s equity incentive plan.

 


(n) “Debt Commitment Letter” means the
Commitment Letter, dated March [12], 2021, delivered by Oaktree
Capital Management, L.P. to the Company pursuant to which the
Holder agreed to provide certain financing to the Company in
connection with the transaction contemplated pursuant to the Merger
Agreement.

 


(o) “Effective Price” means the amount
paid or payable to acquire shares of Class B Common Stock (or in
the case of Convertible Securities, the amount paid or payable to
acquire the Convertible Security, if any, plus the exercise price
for the underlying Class B Common Stock).

 


(p) “Eligible Market” means the
Principal Market, The New York Stock Exchange, Inc., the NYSE
American LLC, The Nasdaq Stock Market, or the OTC Bulletin
Board.

 


(q) “Exchange Act” means the Securities
Exchange Act of 1934, as amended.

 


(r) “Exercisability Date” means the
date that is five (5) Trading Days after a Commitment
Termination.

 


(s) “Expiration Date” means the
eighteen (18) month anniversary of the Exercisability Date;
provided, that in the event that after such date, the SEC issues
any stop order suspending the effectiveness of the Registration
Statement, the Registration Statement is suspended by the Company
or ceases to remain continuously effective as to all Warrant Shares
for which it is required to be effective, then the Expiration Date
shall be extended by a number of Trading Days equal to the number
of Trading Days that occur during the period that such stop order
by the SEC has not been terminated or the Registration Statement is
suspended by the Company or ceases to remain
effective.

 


(t) “Fair Market Value” means, as of
the applicable date of determination, the fair market value of a
dividend or distribution as determined reasonably and in good faith
by the Board of Directors and the Holder; provided, that if the Board of
Directors and the Holder cannot mutually agree on a determination
of Fair Market Value within 30 days of the Ex-Date, the Fair Market
Value shall be determined by an independent appraiser selected by
the Board of Directors and reasonably satisfactory to the Holder
(the “Appraiser”). The determination of
Fair Market Value by the Appraiser shall be final and binding upon
the parties hereto, absent fraud or manifest error, and the Company
shall pay the fees and expenses of the Appraiser.

 




 

51








 






 


(u) “Fully-Diluted Basis” means, at any
given time and without duplication, (x) the aggregate number
of Common Stock and Preferred Stock (as such terms are defined in
the Articles) and any other shares of the Company outstanding at
such time plus (y) the aggregate number of Common Stock and
Preferred Stock and any other shares of the Company issuable
(subject to readjustment upon the actual issuance thereof) upon the
exercise, conversion or exchange of any Convertible Security
outstanding at such time and plus (z) the maximum amount of Common
Stock and Preferred Stock reserved or contemplated to be issued
pursuant to any equity incentive plan of the Company or its
Subsidiaries.

 


(v) “Fundamental Transaction” means at
any time after the Exercisability Date and prior to the Expiration
Date (A) that the Company shall, directly or indirectly, including
through subsidiaries, Affiliates or otherwise, in one or more
related transactions, (i) consolidate or merge with or into
(whether or not the Company is the surviving corporation) another
Subject Entity, or (ii) sell, assign, transfer, convey or otherwise
dispose of all or substantially all of the properties or assets of
the Company or any of its “significant subsidiaries”
(as defined in Rule 1-02 of Regulation S-X) to one or more Subject
Entities, or (iii) make, or allow one or more Subject Entities to
make, or allow the Company to be subject to or have its shares of
Class B Common Stock be subject to or party to one or more Subject
Entities making, a purchase, tender or exchange offer that is
accepted by the holders of at least either (x) 50% of the
outstanding shares of Class B Common Stock, (y) 50% of the
outstanding shares of Class B Common Stock calculated as if any
shares of Class B Common Stock held by all Subject Entities making
or party to, or Affiliated with any Subject Entities making or
party to, such purchase, tender or exchange offer were not
outstanding; or (z) such number of shares of Class B Common Stock
such that all Subject Entities making or party to, or Affiliated
with any Subject Entity making or party to, such purchase, tender
or exchange offer, become collectively the beneficial owners (as
defined in Rule 13d-3 under the Exchange Act) of at least 50% of
the outstanding shares of Class B Common Stock, or (iv) consummate
a stock purchase or other business combination (including, without
limitation, a reorganization, recapitalization, spin-off or scheme
of arrangement) with one or more Subject Entities whereby all such
Subject Entities, individually or in the aggregate, acquire, either
(x) at least 50% of the outstanding shares of Class B Common Stock,
(y) at least 50% of the outstanding shares of Class B Common Stock
calculated as if any shares of Class B Common Stock held by all the
Subject Entities making or party to, or Affiliated with any Subject
Entity making or party to, such stock purchase or other business
combination were not outstanding; or (z) such number of shares of
Class B Common Stock such that the Subject Entities become
collectively the beneficial owners (as defined in Rule 13d-3 under
the Exchange Act) of at least 50% of the outstanding shares of
Class B Common Stock, or (v) reorganize, recapitalize or reclassify
its shares of Class B Common Stock, (B) that the Company shall,
directly or indirectly, including through Subsidiaries, Affiliates
or otherwise, in one or more related transactions, allow any
Subject Entity individually or the Subject Entities in the
aggregate to be or become the “beneficial owner” (as
defined in Rule 13d-3 under the Exchange Act), directly or
indirectly, whether through acquisition, purchase, assignment,
conveyance, tender, tender offer, exchange, reduction in
outstanding shares of Class B Common Stock, merger, consolidation,
business combination, reorganization, recapitalization, spin-off,
scheme of arrangement, reorganization, recapitalization or
reclassification or otherwise in any manner whatsoever, of either
(x) at least 50% of the aggregate ordinary voting power represented
by issued and outstanding shares of Class B Common Stock, (y) at
least 50% of the aggregate ordinary voting power represented by
issued and outstanding shares of Class B Common Stock not held by
all such Subject Entities as of the date of this Warrant calculated
as if any shares of Class B Common Stock held by all such Subject
Entities were not outstanding, or (z) a percentage of the aggregate
ordinary voting power represented by issued and outstanding shares
of Class B Common Stock or other equity securities of the Company
sufficient to allow such Subject Entities to effect a statutory
short form merger or other transaction requiring other stockholders
of the Company to surrender their Class B Common Stock without
approval of the stockholders of the Company, or (C) directly or
indirectly, including through Subsidiaries, Affiliates or
otherwise, in one or more related transactions, the issuance by the
Company of or the entering by the Company into any other instrument
or transaction structured in a manner to circumvent, or that
circumvents, the intent of this definition in which case this
definition shall be construed and implemented in a manner otherwise
than in strict conformity with the terms of this definition to the
extent necessary to correct this definition or any portion of this
definition which may be defective or inconsistent with the intended
treatment of such instrument or transaction.

 




 

52








 






 


(w) “Group” means a “group”
as that term is used in Section 13(d) of the Exchange Act and as
defined in Rule 13d-5 thereunder.

 


(x) “Merger Agreement” means that
certain Plan of Merger and Equity Purchase Agreement, dated as of
the Issuance Date, by and among the Company, the Company, RO Merger
Sub I, Inc., an Arizona corporation and wholly owned subsidiary of
the Company, RO Merger Sub II, Inc., an Arizona corporation and
wholly owned subsidiary of the Company, RO Merger Sub III, Inc., an
Arizona corporation and wholly owned subsidiary of the Company, RO
Merger Sub IV, Inc., an Arizona corporation and wholly owned
subsidiary of the Company, C&W Motors, Inc., an Arizona
corporation, Metro Motorcycle, Inc., an Arizona corporation, Tucson
Motorcycles, Inc., an Arizona corporation, and Tucson Motorsports,
Inc., an Arizona corporation, William Coulter, an individual, Mark
Tkach, an individual, and each other Person (as defined therein)
who owns an Equity Interest (as defined therein) in any Transferred
Entity (as defined therein) and executes a Seller Joinder (as
defined therein), and Tkach, as the representative of the Sellers
(as defined therein).

 


(y) “Options” means any rights,
warrants or options to subscribe for or purchase shares of Class B
Common Stock or Convertible Securities.

 


(z) “Parent Entity” of a Person means
an entity that, directly or indirectly, controls the applicable
Person and whose common stock or equivalent equity security is
quoted or listed on an Eligible Market, or, if there is more than
one such Person or Parent Entity, the Person or Parent Entity with
the largest public market capitalization as of the date of
consummation of the Fundamental Transaction.

 


(aa) “Person” means an individual, a
limited liability company, a partnership, a joint venture, a
corporation, a trust, an unincorporated organization, any other
entity and a government or any department or agency
thereof.

 


(bb) “Principal Market” means the NASDAQ
Capital Market.

 


(cc) “Record Date” means, with respect
to any dividend, distribution or other transaction or event in
which the holders of Class B Common Stock have the right to receive
any cash, securities or other property or in which Class B Common
Stock (or other applicable security) is exchanged for or converted
into any combination of cash, securities or other property, the
date fixed for determination of holders of Class B Common Stock
entitled to receive such cash, securities or other property
(whether such date is fixed by the Board of Directors or by
statute, contract or otherwise).

 


(dd) “Standard Settlement Period” means
the standard settlement period, expressed in a number of Trading
Days, on the Company’s primary trading market with respect to
the Class B Common Stock as in effect on the date of delivery of
the Exercise Notice.

 


(ee) “Subject Entity” means any Person,
Persons or Group or any Affiliate or associate of any such Person,
Persons or Group.

 




 

53








 






 


(ff) “Subsidiary” means, as to any
Person, any corporation, partnership, limited liability company or
other organization, whether incorporated or unincorporated, of
which at least a majority of the securities or other interests
having by their terms voting power to elect a majority of the board
of directors or others performing similar functions with respect to
such corporation or other organization is directly or indirectly
beneficially owned or controlled by such party or by any one or
more of its subsidiaries, or by such party and one or more of its
subsidiaries.

 


(gg) “Successor Entity” means the Person
(or, if so elected by the Holder, the Parent Entity) formed by,
resulting from or surviving any Fundamental Transaction or the
Person (or, if so elected by the Holder, the Parent Entity) with
which such Fundamental Transaction shall have been entered
into.

 


(hh) “Trading Day” means any day on
which the Class B Common Stock is traded on the Principal Market,
or, if the Principal Market is not the principal trading market for
the Class B Common Stock, then on the principal securities exchange
or securities market on which the Class B Common Stock is then
traded; provided
that “Trading Day” shall not include any day that the
Class B Common Stock is suspended from trading during the final
hour of trading on such exchange or market (or if such exchange or
market does not designate in advance the closing time of trading on
such exchange or market, then during the hour ending at 4:00:00
p.m., New York Time).

 


(ii) “Transfer Agent” means West Coast
Stock Transfer, Inc., or any
other successor Person appointed to act in the capacity of transfer
agent of the Company.

 


(jj) “Treasury Regulations” means the
final or temporary regulations issued by the United States
Department of Treasury pursuant to its authority under the Code,
and any successor regulations.

 


(kk) “Warrant Price” means [insert
amount equal to the Weighted Average Price of the Company’s
Class B Common Stock determined over the first five (5) Trading
Days following a Commitment Termination].

 


(ll) “Warrant Shares” means [insert
amount equal to that number of shares of Class B Common Stock equal
to five percent (5%) of the public equity market capitalization of
the Company, on a Fully-Diluted Basis, as of the close of trading
on the date after a Commitment Termination is publicly announced,
provided that if such date is not a Trading Day, then the first
Trading Day immediately following such date]..

 


(mm) “Weighted Average Price” means, for
any security as of any date, the dollar volume-weighted average
price for such security on the Principal Market during the period
beginning at 9:30:01 a.m., New York City time, and ending at
4:00:00 p.m., New York City time, as reported by Bloomberg through
its “Volume at Price” function or, if the foregoing
does not apply, the dollar volume-weighted average price of such
security in the over-the-counter market on the electronic bulletin
board for such security during the period beginning at 9:30:01
a.m., New York City time, and ending at 4:00:00 p.m., New York City
time, as reported by Bloomberg, or, if no dollar volume-weighted
average price is reported for such security by Bloomberg for such
hours, the average of the highest closing bid price and the lowest
closing ask price of any of the market makers for such security as
reported in the OTC Pink Market maintained by OTC Markets Group
Inc. If the Weighted Average Price cannot be calculated for such
security on such date on any of the foregoing bases, the Weighted
Average Price of such security on such date shall be the fair
market value as mutually determined by the Company and the Holder.
If the Company and the Holder are unable to agree upon the fair
market value of such security, then such dispute shall be resolved
pursuant to Section
14 with the term
“Weighted Average Price” being substituted for the term
“Exercise Price.” All such determinations shall be
appropriately adjusted for any share dividend, share split or other
similar transaction during such period.

 


[Signature
Page Follows]










 

54








 






 


IN WITNESS WHEREOF, the Company has
caused this Warrant to Purchase Class B Common Stock to be duly
executed as of the Issuance Date set out above.


 





	
 

	


RUMBLEON,
INC.

 


By:________________________________________


Name:


Title:


 








 

 


Accepted
as of the date first written above:

 


OAKTREE
CAPITAL MANAGEMENT, L.P.,


Solely
as manager on behalf of certain funds or accounts within its
Strategic Credit Strategy



By:________________________________________







Name:


Title:


 


 


 


 


 




 


[Signature
Page to Class B Common Warrant]

55








 










 



WARRANT HOLDERS

 


	


Investor

	
 

	


Warrants


	
 

	
 


	
 

	
 


	
 

	
 


	
 

	
 


	
 

	
 


	
 

	
 


	
 

	
 


	
 

	
 


	
 

	
 


	
 

	
 


	
 

	
 


	
 

	
 


	
 

	
 


	
 

	
 


	


Total

	
 

	
 







 




 

56








 










 



EXHIBIT A

 


EXERCISE
NOTICE

 



TO BE EXECUTED BY THE REGISTERED HOLDER TO EXERCISE THIS WARRANT TO
PURCHASE CLASS b COMMON STOCK

 


RUMBLEON,
INC.

 


The
undersigned holder hereby exercises the right to purchase
[_________] shares of Class B Common Stock (“Warrant Shares”) of RumbleOn,
Inc., a Nevada corporation (the “Company”), evidenced by the
attached Warrant to Purchase Class B Common Stock (the
“Warrant”).
Capitalized terms used herein and not otherwise defined shall have
the respective meanings set forth in the Warrant.

 


1.
Exercise Price. The
Holder intends that payment of the Exercise Price shall be made as
(check one):

 


☐ Cash Exercise under
Section
1(a).

 


☐ Cashless Exercise
under Section
1(d).

 


2.
Cash Exercise. If
the Holder has elected a Cash Exercise, the Holder shall pay the
sum of $[_________] to the Company in accordance with the terms of
the Warrant.

 


3.
Delivery of Warrant
Shares. The Company shall deliver to the holder Warrant
Shares in accordance with the terms of the Warrant. If the shares
are to be delivered electronically, please complete the Depositary
information below.

 

 



DATED:                                                     




	
 

	
 

(Signature must
conform in all respects to name of the Holder as specified on the
face of the Warrant)

 


Registered
Holder


 


Address:
_________________________________


 


If
shares are to be delivered electronically:

 


Broker
name:


Broker
Depositary account #:


Account
at Broker shares are to be delivered to:










 

 




 

57








 










 



ACKNOWLEDGMENT

 


The
Company hereby acknowledges this Exercise Notice.


 


 









	
 

	


RUMBLEON,
INC.

 


By:________________________________________


Name:


Title:


 








 

 

 

 


 




 

58