UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
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Item 1.01 Entry into a Material Definitive Agreement.
As previously disclosed by KludeIn I Acquisition Corp., a Delaware corporation (the “Company”), the Company entered into an Agreement and Plan of Merger, dated as of May 18, 2022 (as amended by Amendment No. 1 to the Agreement and Plan of Merger, dated as of November 3, 2022 (the “First Amendment to Merger Agreement”), and Amendment No. 2 to the Agreement and Plan of Merger, dated as of December 23, 2022 (the “Second Amendment to Merger Agreement”), and as further amended by the Third Amendment to Merger Agreement described herein, and as may be further amended, restated and/or supplemented in accordance with its terms, the “Merger Agreement”), with Paas Merger Sub 1 Inc., a Delaware corporation and wholly-owned subsidiary of the Company (“Merger Sub 1”), Paas Merger Sub 2 LLC, a Delaware limited liability company and wholly-owned subsidiary of the Company (“Merger Sub 2”), and Near Intelligence Holdings Inc. (“Near”). Pursuant to the Merger Agreement, upon the terms and subject to the conditions set forth therein, immediately prior to the consummation of the transactions contemplated by the Merger Agreement (the “Closing”), (i) Merger Sub 1 will merge with and into Near, with Near surviving the merger as a wholly-owned subsidiary of the Company (the “First Merger”), and (ii) immediately following the First Merger, Near, as the surviving entity of the First Merger, will merge with and into Merger Sub 2, with Merger Sub 2 being the surviving entity (the “Second Merger” and, together with the First Merger, the “Mergers”). The Mergers and the other transactions contemplated by the Merger Agreement are collectively referred to herein as the “Transaction”. The Transaction is subject to customary closing conditions, including the approval of the Company’s stockholders and the listing on The Nasdaq Stock Market of the shares to be issued to Near stockholders as merger consideration.
All capitalized terms but not otherwise defined in this Current Report on Form 8-K have the meanings given to them in the Merger Agreement.
Third Amendment to Merger Agreement
On January 17, 2023, the Company and Near entered into that certain Amendment No. 3 to Agreement and Plan of Merger (the “Third Amendment to Merger Agreement”). Pursuant to the Third Amendment to Merger Agreement, the minimum cash condition to Closing was revised such that, upon the Closing, the Company is required to have cash and cash equivalents, including funds remaining in its trust account (after giving effect to the payment of public stockholder redemptions) and the proceeds of any funded transaction financing, prior to the payment of the Company’s unpaid expenses and before repayment of any loans owed by the Company to its sponsor, at least equal to $95,000,000 less the aggregate amount of proceeds of any Permitted Equity Financing and any Permitted Debt of Near or any other Target Company that is available to any of them following the Closing or that previously has been drawn down by any of them prior to the Closing, including amounts in escrow that would be eligible to be requested following the Closing and amounts that may be requested following the Closing that are contingent upon the occurrence of specified events or the satisfaction of certain conditions precedent, whether or not such events actually occur or such conditions ultimately are satisfied.
Other than as expressly modified pursuant to the Third Amendment to the Merger Agreement, the Merger Agreement, which was initially filed as Exhibit 2.1 to the Company’s Current Report on Form 8-K filed with the Securities and Exchange Commission (the “SEC”) on May 19, 2022, and subsequently amended by the First Amendment to Merger Agreement, filed as Exhibit 2.1 to the Company’s Current Report on Form 8-K filed with the SEC on November 9, 2022, and the Second Amendment to Merger Agreement, filed as Exhibit 2.1 to the Company’s Current Report on Form 8-K filed with the SEC on December 27, 2022, remains in full force and effect. The foregoing description of the Third Amendment to Merger Agreement does not purport to be complete and is subject to, and qualified in its entirety by, the full text of the Third Amendment to Merger Agreement, a copy of which is filed as Exhibit 2.1 to this Current Report on Form 8-K and which is incorporated herein by reference.
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Waiver of Certain Lock-Up Restrictions
Simultaneously with the execution and delivery of the Merger Agreement on May 18, 2022, the Company and certain security holders of Near (the “Holders”) entered into lock-up agreements (the “Lock-Up Agreements”) containing transfer and other restrictions on the disposition of the Restricted Securities (as defined in the Lock-Up Agreements) held by such Holders for the Lock-Up Period (as defined in the Lock-Up Agreements) specified therein, subject to certain exceptions.
On January 17, 2023, the Company determined to offer a one-time waiver of the restrictions under the Lock-Up Agreements (the “Notice of Waiver”) with certain Holders solely with respect to certain securities of Near held by such Holders (“Released Securities”), such that the restrictions under the Lock-Up Agreements with such Holders will no longer apply to such Released Securities. The Released Securities consist of 7.5% of the total number of shares of capital stock of Near held by such Holders as of the date of the Notice of Waiver, equal to an aggregate of 23,453 shares of Near (which shall be converted into a different number of securities of the Purchaser at the Closing pursuant to the terms of the Merger Agreement). All other Restricted Securities held by such Holders will remain fully subject to the Lock-Up Agreements in all respects, and the Lock-Up Agreements will remain unchanged and in full force and effect. Holders who are executive officers of Near will not have any of their Restricted Securities released from the lock-up restrictions contained in their respective Lock-Up Agreements. A copy of the form of Lock-Up Agreement was filed as Exhibit 10.3 to the Company’s Current Report on Form 8-K filed with the SEC on May 19, 2022.
A copy of the form of Notice of Waiver is filed as Exhibit 10.1 to this Current Report on Form 8-K and is incorporated herein by reference.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits
| Exhibit No. | Description | |
| 2.1 | Amendment No. 3 to Agreement and Plan of Merger, dated as of January 17, 2023, by and among KludeIn I Acquisition Corp., Paas Merger Sub 1 Inc., Paas Merger Sub 2 LLC and Near Intelligence Holdings Inc. | |
| 10.1 | Notice of Waiver of Lock-Up Restrictions, dated as of January 17, 2023, made by KludeIn I Acquisition Corp. | |
| 104 | Cover Page Interactive Data File (embedded within the Inline XBRL document) |
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
Dated: January 17, 2023
| KLUDEIN I ACQUISITION CORP. | |||
| By: | /s/ Narayan Ramachandran | ||
| Name: | Narayan Ramachandran | ||
| Title: | Chief Executive Officer | ||
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Exhibit 2.1
AMENDMENT NO. 3 TO AGREEMENT AND PLAN OF MERGER
This AMENDMENT NO. 3 TO AGREEMENT AND PLAN OF MERGER (this “Amendment”) is made and entered into as of January 17, 2023, by and among KludeIn I Acquisition Corp., a Delaware corporation (together with its successors, the “Purchaser”), Paas Merger Sub 1 Inc., a Delaware corporation and a wholly-owned subsidiary of the Purchaser (“Merger Sub 1”), Paas Merger Sub 2 LLC, a Delaware limited liability company and a wholly-owned subsidiary of the Purchaser (“Merger Sub 2”), and Near Intelligence Holdings Inc., a Delaware corporation (the “Company”). All capitalized terms used but not defined herein shall have the meanings ascribed to them in the Agreement (as defined below).
WHEREAS, the parties hereto entered into that certain Agreement and Plan of Merger, dated as of May 18, 2022 (the “Original Agreement”);
WHEREAS, pursuant to the Agreement, the Purchaser shall acquire 100% of the equity interests of the Company, directly or indirectly, through (i) the merger of Merger Sub 1 with and into the Company, with the Company continuing as the surviving entity and a wholly-owned subsidiary of the Purchaser (the “First Merger”), and (ii) immediately following the First Merger, the merger of the Company with and into Merger Sub 2, with Merger Sub 2 continuing as the surviving entity and a wholly-owned subsidiary of the Purchaser (the “Second Merger” and, together with the First Merger, the “Mergers”);
WHEREAS, the parties hereto entered into that certain Amendment No. 1 to Agreement and Plan of Merger, dated as of November 3, 2022 (the “First Amendment”), and that certain Amendment No. 2 to Agreement and Plan of Merger, dated as of December 23, 2022 (the “Second Amendment”, and the Original Agreement as amended by the First Amendment and the Second Amendment, the “Amended Agreement”); and
WHEREAS, in connection with the Mergers and the other transactions contemplated by the Amended Agreement, the parties hereto desire to further amend the Amended Agreement upon the terms and subject to the conditions set forth herein (the Amended Agreement, as amended pursuant to this Amendment and as may be further amended, supplemented, modified and/or restated from time to time, the “Agreement”).
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and agreements herein contained, and intending to be legally bound hereby, the Purchaser and the Company agree as follows:
1. Amendment to the Agreement.
1.1 Amendment to Minimum Cash Condition. Section 6.2(d) of the Agreement is hereby amended and restated in its entirety as follows:
“(d) Minimum Cash Condition. Upon the Closing, the Purchaser shall have cash and cash equivalents, including funds remaining in the Trust Account (after giving effect to the completion and payment of the Redemption) and the proceeds of any funded Transaction Financing, prior to the payment of the Purchaser’s unpaid Purchaser Transaction Expenses due at the Closing and before repayment of any loans owed by Purchaser to Sponsor or other amounts due at the Closing, at least equal to Ninety-Five Million U.S. Dollars ($95,000,000) less the aggregate amount of proceeds of any Permitted Equity Financing and any Permitted Debt available to any Target Company following the Closing that previously has been drawn down by any Target Company prior to the Closing, including amounts in escrow that would be eligible to be requested by any Target Company following the Closing and amounts that may be requested by any Target Company following the Closing that are contingent upon the occurrence of specified events or the satisfaction of certain conditions precedent, whether or not such events actually occur or such conditions ultimately are satisfied (the “Minimum Cash Condition”) (provided that, for the avoidance of doubt, if such difference is a negative number, the Minimum Cash Condition shall be zero).”
2. Miscellaneous.
2.1 No Further Amendment. The parties hereto agree that all other provisions of the Amended Agreement shall, subject to the amendments set forth in Section 1 of this Amendment, continue unmodified, in full force and effect and constitute legal and binding obligations of the parties in accordance with their terms. This Amendment is limited precisely as written and shall not be deemed to be an amendment to any other term or condition of the Amended Agreement or any of the documents referred to therein. This Amendment shall form an integral and inseparable part of the Agreement. From and after the date of this Amendment, each reference in the Agreement to “this Agreement,” “hereof,” “hereunder” or words of like import, and all references to the Agreement in any and all agreements, instruments, documents, notes, certificates and other writings of every kind of nature (other than in this Amendment or as otherwise expressly provided) will be deemed to mean the Amended Agreement, as amended by this Amendment, whether or not this Amendment is expressly referenced.
2.2 Other Terms. The provisions of Article IX of the Agreement are incorporated herein by reference and shall apply to the terms and provisions of this Amendment and the Parties, mutatis mutandis.
[Signature Pages Follow]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed and delivered as of the date first written above by their respective officers thereunto duly authorized.
| Purchaser: | |||
| KludeIn I Acquisition Corp. | |||
| By: | /s/ Narayan Ramachandran | ||
| Name: | Narayan Ramachandran | ||
| Title: | Chief Executive Officer | ||
| The Company: | |||
| Near Intelligence Holdings Inc. | |||
| By: | /s/ Anil Mathews | ||
| Name: | Anil Mathews | ||
| Title: | Director & CEO | ||
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Exhibit 10.1
NOTICE OF WAIVER
This Notice of Waiver, dated as of January 17, 2023, is made by KludeIn I Acquisition Corp., a Delaware corporation (the “Purchaser”).
Reference is made to that certain Agreement and Plan of Merger, dated as of May 18, 2022 (as amended to date and as may be further amended, supplemented, modified and/or restated from time to time in accordance with its terms, the “Merger Agreement”), by and among the Purchaser, Near Intelligence Holdings, Inc., a Delaware corporation (“Near”), Paas Merger Sub 1, a Delaware corporation and a wholly-owned subsidiary of the Purchaser (“Merger Sub 1”), and Paas Merger Sub 2, a Delaware limited liability company and a wholly-owned subsidiary of the Purchaser (“Merger Sub 2”), pursuant to which, among other things, (i) Merger Sub 1 shall merge with and into the Company, with the Company continuing as the surviving entity (the “First Merger”), and as a result of which, among other things, all of the issued and outstanding capital stock of the Company as of immediately prior to the First Effective Time shall no longer be outstanding and shall automatically be cancelled and shall cease to exist, in exchange for the right to receive the Merger Consideration as set forth in the Merger Agreement, all upon the terms and subject to the conditions set forth in the Merger Agreement and in accordance with the applicable provisions of the DGCL, and (ii) the Company, as the surviving entity of the First Merger, shall merge with and into Merger Sub 2, with Merger Sub 2 continuing as the surviving entity (the “Surviving Entity”), and as a result of which, among other things, all of the issued and outstanding capital stock of the Company as of immediately prior to the Second Effective Time shall no longer be outstanding and shall automatically be cancelled and shall cease to exist and each membership interest of Merger Sub 2 issued and outstanding immediately prior to the Second Effective Time shall remain outstanding as a membership interest of the Surviving Entity, all upon the terms and subject to the conditions set forth in the Merger Agreement and in accordance with the applicable provisions of the LLCA. Capitalized terms used and not otherwise defined herein shall have the meanings given to them in the Merger Agreement.
In connection with the Merger Agreement, the Purchaser and certain security holders of the Company (the “Holders”) entered into lock-up agreements, dated as of May 18, 2022 (the “Lock-Up Agreements”), containing transfer and other restrictions on the disposition of the Restricted Securities (as defined in the Lock-Up Agreements) held by such Holder for the Lock-Up Period (as defined in the Lock-Up Agreements) specified therein, subject to certain exceptions.
The Purchaser hereby agrees to offer a one-time waiver of the restrictions under the Lock-Up Agreements with the Holders specified on Exhibit A hereto solely with respect to seven and one-half percent (7.5%) of the number of shares of capital stock of Near held by each such Holder based upon the representations of such Holder in such Holder’s respective Lock-Up Agreement. Based upon such information, the number of shares of capital stock of Near held by each such Holder to be released (the “Released Securities”) is set forth opposite such Holder’s name on Exhibit A hereto (the “Released Securities”; the Released Securities also shall include the Restricted Securities into which such Near shares are converted at the Closing pursuant to the terms of the Merger Agreement). The restrictions under the Lock-Up Agreements with such Holders shall no longer apply solely with respect to such Released Securities. For the avoidance of doubt, all other Restricted Securities held by such Holders shall remain fully subject to the Lock-Up Agreements in all respects, and the Lock-Up Agreements shall remain unchanged and shall remain in full force and effect.
[Signature Page Follows]
IN WITNESS WHEREOF, this Notice of Waiver has been duly executed by the undersigned duly authorized officer of the Purchaser as of the date first above written.
| KludeIn I Acquisition Corp. | |||
| By: | /s/ Narayan Ramachandran | ||
| Name: | Narayan Ramachandran | ||
| Title: | Chairman & CEO | ||