Exhibit 10.102
ADDITIONAL ISSUANCE AGREEMENT
This Additional Issuance Agreement (this
“Agreement”), dated as of November 8, 2019, is made pursuant to Section 4.13 of that certain Securities Purchase
Agreement, dated as of September 27, 2019 (the “Purchase Agreement”), as amended, by and between Ideanomics,
Inc. (the “Company”) and ID Ventures 7, LLC (the “Purchaser”) for the purchase of the Company’s
10% Senior Secured Convertible Debentures due March 27, 2021 (the “Additional Debenture”), shares of Common
Stock (“Additional Shares”) and Common Stock Purchase Warrants (“Additional Warrants” and
together with the Additional Debentures and Additional Shares, the “Additional Securities”). Capitalized
terms used and not otherwise defined herein that are defined in the Purchase Agreement shall have the meanings given such terms
in the Purchase Agreement.
For good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows:
1. Issuance
of Additional Debenture, Additional Shares and Additional Warrants. The Company hereby agrees to issue to the Purchaser, and
the Purchaser hereby agrees to purchase, an Additional Debenture in the aggregate principal amount of $250,000, which Additional
Debenture shall otherwise be in the form of the Debenture along with Additional Warrants to purchase up to 375,000 shares of Common
Stock, which Additional Warrant shall otherwise be in the form of the Warrant and 260,000 Additional Shares (100,000 Additional
Shares pursuant to this Agreement and 160,000 shares pursuant to the Additional Issuance Agreement dated October 29, 2019). The
Company shall promptly deliver to the Purchaser the Additional Securities.
2. Documents.
The rights and obligations of the Purchaser and of the Company with respect to the Additional Securities, Additional Shares and
the shares of Common Stock issuable under the Additional Securities (the “New Underlying Shares”) shall be
identical in all respects to the rights and obligations of such Purchaser and of the Company with respect to the Debentures, the
Warrants and the Underlying Shares issued and issuable pursuant to the Purchase Agreement. Any rights of a Purchaser or covenants
of the Company which are dependent on such Purchaser holding securities of the Company or which are determined in magnitude by
such Purchaser’s purchase of securities pursuant to the Purchase Agreement shall be deemed to include any securities purchased
or issuable hereunder. The Purchase Agreement is hereby amended so that the term “Debentures” includes the Additional
Debenture, the term “Warrant” includes the Additional Warrant, the term “Shares” includes the “Additional
Shares” and the term “Underlying Shares” includes the New Underlying Shares.
3. Security
Interest. Company hereby acknowledges and agrees that the security interests granted to the holders of the Existing Debentures
and Debentures pursuant to the Existing Security Agreement applies to and covers the obligations of the Company to the Purchasers
evidenced by the Additional Debentures and (b) the Additional Debentures rank pari passu to the Existing
Debentures and the Debentures.
4. Subsidiary
Guarantee. The Additional Debenture constitutes an “Obligation” under the Subsidiary Guarantee as if the Additional
Debentures were Debentures issued pursuant to the Purchase Agreement.
5. Representations
and Warranties of the Company. The Company hereby makes to the Purchaser the following representations and warranties:
(a) Authorization;
Enforcement. The Company has the requisite corporate power and authority to enter into and to consummate the transactions contemplated
by this Agreement and otherwise to carry out its obligations hereunder and thereunder. The execution and delivery of this Agreement
by the Company and the consummation by the Company of the transactions contemplated hereby have been duly authorized by all necessary
action on the part of the Company and no further action is required by the Company, its board of directors or its stockholders
in connection therewith. This Agreement has been duly executed by the Company and, when delivered in accordance with the terms
hereof, will constitute the valid and binding obligation of the Company enforceable against the Company in accordance with its
terms, except (i) as limited by general equitable principles and applicable bankruptcy, insolvency, reorganization, moratorium
and other laws of general application affecting enforcement of creditors’ rights generally, (ii) as limited by laws relating
to the availability of specific performance, injunctive relief or other equitable remedies and (iii) insofar as indemnification
and contribution provisions may be limited by applicable law.
(b) No
Conflicts. The execution, delivery and performance of this Agreement by the Company and the consummation by the Company of
the transactions contemplated hereby do not and will not: (i) conflict with or violate any provision of the Company’s certificate
or articles of incorporation, bylaws or other organizational or charter documents; or (ii) conflict with, or constitute a default
(or an event that with notice or lapse of time or both would become a default) under, result in the creation of any Lien (except
as contemplated by the Security Documents) upon any of the properties or assets of the Company in connection with, or give to others
any rights of termination, amendment, acceleration or cancellation (with or without notice, lapse of time or both) of, any material
agreement, credit facility, debt or other material instrument (evidencing Company debt or otherwise) or other material understanding
to which such Company is a party or by which any property or asset of the Company is bound or affected; or (iii) subject to the
Required Approvals, conflict with or result in a violation of any law, rule, regulation, order, judgment, injunction, decree or
other restriction of any court or governmental authority to which the Company is subject (including federal and state securities
laws and regulations), or by which any property or asset of the Company is bound or affected, except, in the case of each of clauses
(ii) and (iii), such as could not have or reasonably be expected to result in a Material Adverse Effect.
(c) Issuance
of the Additional Securities. The Additional Securities are duly authorized and, upon the execution of this Agreement by a
Purchaser, will be duly and validly issued, fully paid and nonassessable, free and clear of all Liens imposed by the Company other
than restrictions on transfer provided for in the Transaction Documents. The Additional Underlying Shares, when issued in accordance
with the terms of the Additional Securities, will be validly issued, fully paid and nonassessable, free and clear of all Liens
imposed by the Company. The Company has reserved from its duly authorized capital stock a number of shares of Common Stock for
issuance of the Additional Underlying Shares at least equal to the Required Minimum on the date hereof.
(d) Affirmation
of Prior Representations and Warranties. Except as set forth on Schedule 4(d) hereto, the Company hereby represents
and warrants to each Purchaser that the Company’s representations and warranties listed in Section 3.1 of the Purchase Agreement
are true and correct as of the date hereof.
4. Representations
and Warranties of the Purchaser. The Purchaser hereby represents and warrants as of the date hereof to the Company as follows:
(a) Authority.
The execution, delivery and performance by such Purchaser of the transactions contemplated by this Agreement have been duly authorized
by all necessary corporate or similar action on the part of such Purchaser. This Agreement has been duly executed by such Purchaser
and, when delivered by such Purchaser in accordance with the terms hereof, will constitute the valid and legally binding obligation
of such Purchaser, enforceable against it in accordance with its terms, except (i) as limited by general equitable principles and
applicable bankruptcy, insolvency, reorganization, moratorium and other laws of general application affecting enforcement of creditors’
rights generally, (ii) as limited by laws relating to the availability of specific performance, injunctive relief or other equitable
remedies and (iii) insofar as indemnification and contribution provisions may be limited by applicable law.
(b) Own
Account. Such Purchaser (i) understands that the Additional Securities are “restricted security” and have not
been registered under the Securities Act or any applicable state securities law, (ii) is acquiring the Additional Securities
as principal for its own account and not with a view to or for distributing or reselling such Additional Securities or any
part thereof in violation of the Securities Act or any applicable state securities law, (iii) has no present intention of
distributing any of such securities in violation of the Securities Act or any applicable state securities law and (iv) has no
arrangement or understanding with any other persons regarding the distribution of such Additional Securities (this
representation and warranty not limiting such Purchaser’s right to sell the Additional Underlying Shares pursuant to
the Registration Statement or otherwise in compliance with applicable federal and state securities laws) in violation of the
Securities Act or any applicable state securities law. Such Purchaser is acquiring the Additional Securities hereunder in the
ordinary course of its business. Such Purchaser does not have any agreement or understanding, directly or indirectly, with
any Person to distribute any of the Additional Securities or Additional Underlying Shares.
(c) Purchaser
Status. Such Purchaser is an “accredited investor” as defined in Rule 501 under the Securities Act.
(d) General
Solicitation. Such Purchaser is not purchasing the Additional Securities as a result of any advertisement, article, notice
or other communication regarding the Additional Securities published in any newspaper, magazine or similar media or broadcast over
television or radio or presented at any seminar or any other general solicitation or general advertisement.
5. Public
Disclosure. The Company shall, on or before 9 am ET on the Trading Day immediately following the date hereof, issue a Current
Report on Form 8-K, reasonably acceptable to the Purchaser, disclosing the material terms of the transactions contemplated hereby
and attaching this Agreement as an exhibit thereto. The Company shall consult with the Purchaser in issuing any other press releases
with respect to the transactions contemplated hereby.
6. Delivery
of Opinion. Concurrently herewith, the Company shall deliver to the Purchaser an opinion of counsel regarding this Agreement
and the issuance of the Additional Securities in form and substance reasonably acceptable to the Purchaser.
7. Effect
on Transaction Documents. Except as expressly set forth above, all of the terms and conditions of the Transaction Documents
shall continue in full force and effect after the execution of this Agreement and shall not be in any way changed, modified or
superseded by the terms set forth herein, including, but not limited to, any other obligations the Company may have to the Purchaser
under the Transaction Documents. Notwithstanding the foregoing, this Agreement shall be deemed for all purposes as an amendment
to any Transaction Document as required to serve the purposes hereof, and in the event of any conflict between the terms and provisions
of the Debentures or any other Transaction Document, on the one hand, and the terms and provisions of this Agreement, on the other
hand, the terms and provisions of this Agreement shall prevail.
8. Amendments
and Waivers. The provisions of this Agreement, including the provisions of this sentence, may not be amended, modified or supplemented,
and waivers or consents to departures from the provisions hereof may not be given, unless the same shall be in writing and signed
by the Company and each Purchaser.
9. Notices.
Any and all notices or other communications or deliveries required or permitted to be provided hereunder shall be delivered as
set forth in the Purchase Agreement.
10. Successors
and Assigns. This Agreement shall inure to the benefit of and be binding upon the successors and permitted assigns of
each of the parties and shall inure to the benefit of each Purchaser. The Company may not assign (except by merger) its
rights or obligations hereunder without the prior written consent of the Purchaser of the then-outstanding Securities. The
Purchaser may assign their rights hereunder in the manner and to the Persons as permitted under the Purchase Agreement.
11. Execution
and Counterparts. This Agreement may be executed in two or more counterparts, all of which when taken together shall be considered
one and the same agreement and shall become effective when counterparts have been signed by each party and delivered to the other
party, it being understood that both parties need not sign the same counterpart. In the event that any signature is delivered by
facsimile transmission or by e-mail delivery of a “.pdf” format data file, such signature shall create a valid and
binding obligation of the party executing (or on whose behalf such signature is executed) with the same force and effect as if
such facsimile or “.pdf” signature page were an original thereof.
12. Governing
Law. All questions concerning the construction, validity, enforcement and interpretation of this Agreement shall be determined
in accordance with the provisions of the Purchase Agreement.
13. Severability.
If any term, provision, covenant or restriction of this Agreement is held by a court of competent jurisdiction to be invalid, illegal,
void or unenforceable, the remainder of the terms, provisions, covenants and restrictions set forth herein shall remain in full
force and effect and shall in no way be affected, impaired or invalidated, and the parties hereto shall use their commercially
reasonable efforts to find and employ an alternative means to achieve the same or substantially the same result as that contemplated
by such term, provision, covenant or restriction. It is hereby stipulated and declared to be the intention of the parties that
they would have executed the remaining terms, provisions, covenants and restrictions without including any of such that may be
hereafter declared invalid, illegal, void or unenforceable.
14. Headings.
The headings in this Agreement are for convenience only, do not constitute a part of the Agreement and shall not be deemed to limit
or affect any of the provisions hereof.
15. Fees
and expenses. At the closing, the Company has agreed to reimburse the Purchaser $5,000 for its fees and expenses. The Company
shall deliver to each Purchaser, prior to closing, a completed and executed copy of a closing statement, for the closing of the
purchase and sale of the Additional Securities, otherwise in the form attached to the Purchase Agreement.
[SIGNATURE PAGE FOLLOWS]
NOVEMBER 8th 2019 Issuance
Executed as of the first date written above
by the undersigned duly authorized representatives of the Company and the Purchaser:
IDEANOMICS, INC.
By: |
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Name: Xxxxx XxXxxxxx |
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Title: CFO |
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Name of Purchaser: |
ID Ventures 7, LLC |
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Signature of Authorized Signatory: |
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Name of Authorized Signatory: |
Xxxxxxx Xxxx-Xxxxxxx |
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Title of Authorized Signatory: |
Managing Partner |
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Subscription Amount: $250,000 |
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Principal Amount: $250,000 |
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Warrant Shares: 375,000 |
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Shares: 260,000 |
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