Item 1.01 Entry into a Material Definitive Agreement.
Amendment No. 1 To Agreement and Plan of Merger
As previously reported, Ideanomics, Inc. ("Parent"), Longboard Merger Corp., Via
Motors International, Inc. (the "Company"), and Shareholder Representative
Services LLC solely in its capacity as Shareholders' Representative have entered
into that certain Agreement and Plan of Merger dated August 30, 2021 (the
"Agreement"), pursuant to which Longboard Merger Corp will merge with and into
the Company with the Company surviving the merger as a wholly-owned subsidiary
of the Parent.
On May 20, 2022 (the "Effective Date"), the parties to the Agreement amended
Section 1.1 of the Agreement and re-defined (i) the Note (as defined below) as
the first priority Secured Convertible Promissory Note, issued by the Company to
the order of the Parent, dated August 30, 2021 and as amended pursuant to a
certain Note Amendment (as defined below) and (ii) the Note amount to mean
US$44,818,111 dollars plus accrued but unpaid interest. As of the Effective
Date, the Parent loaned an additional US$4.5 million to the Company, as further
described below. This loan is secured by the assets of the Company and US$2.3
million will be a deduction to the purchase price. The parties have also agreed
to amend the termination provision, as described below, to replace "March 31,
2022" with "June 15, 2022."
Further, the parties to the Agreement amended Section 9.1(d) of the Agreement
and deleted it in its entirety and replaced it with the following: "(d) by
written notice by either the Company or Parent to the other, at any time after
June 15, 2022 if the Closing shall not have occurred on or prior to such date;
provided, that the right to terminate this Agreement under this Section 9.1(d)
shall not be available to such party if the action or inaction of such party or
any of its Affiliates has been a principal cause of or resulted in the failure
of the Closing to occur on or before such date and such action or failure to act
constitutes a breach of this Agreement."
The foregoing descriptions of the amendments to the Agreement are qualified in
their entirety by reference to the full text of Amendment No. 1 To Agreement and
Plan of Merger, which is filed as Exhibit 10.1 to this Current Report on Form
8-K (this "8-K").
Amendment No. 1 to the Secured Convertible Promissory Note
On the Effective Date, the Parent and the Company entered into Amendment No. 1
(the "Note Amendment") to that certain Secured Convertible Promissory Note,
dated August 30, 2021 ("Note"). Under the Note, the Company previously promised
to repay the loan amount of $42,500,000.00 advanced by the Company. As of the
Effective Date, the Company borrowed, and the Parent advanced, an additional
amount of US$2,318,111 on the terms and conditions set forth in the Note.
The Note Amendment provides that the principal sum payable under the Note shall
be US$44,818,111 and simple interest on (i) US$42,500,000 shall accrue from
August 30, 2021 and (ii) US$2,318,111 shall accrue from the Effective Date, in
each case, till the Maturity Date (as such term defined in the Note) at the rate
of four percent (4%) per annum.
The foregoing descriptions of the Note Amendment are qualified in their entirety
by reference to the full text of the Note Amendment, which is filed as Exhibit
10.2 to this 8-K.
May 2022 Secured Promissory Note
On the Effective Date, pursuant to the Secured Convertible Promissory Note
entered into by the Company and the Parent (the "May 2022 Note"), the Company
promised to pay to the Parent or any subsequent holder the principal sum of
US$2,181,889. Simple interest on the outstanding principal thereof shall accrue
from the Effective Date to the Maturity Date (as set forth below) at the rate of
four percent (4%) per annum.
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All principal and accrued but unpaid interest under the May 2022 Note will be
due and payable as follows: (i) if the Company terminates the Agreement under
Section 9.1(d) of thereof or if the Parent terminates the Agreement under
Section 9.1(b) thereof, the May 2022 Note will be due and payable on the 6 month
anniversary of the occurrence of such termination; or (ii) if the Agreement is
terminated under Section 9.1(a), (c) or (d) thereof or for any other reason, the
May 2022 Note will be due and payable on the 12 month anniversary of the
occurrence of such termination.
The Company shall have the privilege, without penalty, of repaying all or any
part of the May 2022 Note at any time. Any payments shall be applied first to
unpaid interest accrual and then to outstanding principal.
The Company assigned and pledged to the Parent, and granted to the Parent a
first priority security interest in all of the Company's right, title and
interest in and to the Collateral (as defined in the May 2022 Note), whether now
owned or hereafter acquired by the Company, including all proceeds of any and
all of the foregoing or hereinafter-described Collateral (including, without
limitation, proceeds that constitute property of the types described therein)
and, to the extent not otherwise included, all policies of insurance on any
property of the Company and all payments and proceeds under any such insurance
(whether or not the Parent is the loss payee thereof), or any indemnity warranty
or guaranty payable by reason of loss or damage to or otherwise with respect to
any of the foregoing Collateral; all cash; and all books of account and records,
including all computer software relating thereto.
If any of the following events of default set forth in Section 5 of the May 2022
Note shall occur with respect to the Company, then any unpaid portion of the May
2022 Note shall automatically become due and payable in cash, without
presentation, presentment, protest or demand or notice of any kind, all of which
are hereby expressly waived by the Company, and the Parent may proceed to
enforce payment in such a manner as it may elect.
Notwithstanding anything to the contrary contained in the May 2022 Note, all of
the Obligations (as defined in the May 2022 Note) under the May 2022 Note shall
be canceled upon the consummation of the Closing (as defined in the Agreement).
The foregoing descriptions of the May 2022 Note are qualified in their entirety
by reference to the full text of the May 2022 Note, which is filed as Exhibit
10.3 to this 8-K.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits.
Exhibit
Number Description
10.1 Amendment No.1 to Agreement and Plan of Merger.
10.2 Amendment No. 1 to Secured Convertible Promissory Note.
10.3 Secured Promissory Note, dated May 20, 2022.
104 Cover page Interactive Data File (embedded within the Inline XBRL document).
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