8-K

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

FORM 8-K

CURRENT REPORT

Pursuant to Section 13 OR 15(d) of The Securities Exchange Act of 1934

Date of Report (Date of earliest event reported): April 14, 2023

IDEANOMICS, INC.

(Exact name of registrant as specified in its charter)

Nevada	20-1778374
(State or other jurisdiction of	(IRS Employer
incorporation)	Identification No.)

001-35561

(Commission File Number)

1441 Broadway, Suite 5116, New York, NY 10018

(Address of principal executive offices) (Zip Code)

212-206-1216

(Registrant’s telephone number, including area code)

N/A

(Former name or former address, if changed since last report.)

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

¨ Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

¨ Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

¨ Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

¨ Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

Securities registered pursuant to Section 12(b) of the Act:  

Title of each class	Trading symbol(s)	Name of each exchange on which registered
Common stock, $0.001 par value per share	IDEX	The Nasdaq Stock Market

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).

Emerging growth company  ¨

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ¨

Item 1.01 Entry into a Material Definitive Agreement.

FNL Stock Purchase Agreement

On April 14, 2023, David L. Beatty (the “Purchaser”), Ideanomics, Inc. (the “Seller”) and FNL Technologies, Inc. (“FNL”) entered into a Stock Purchase Agreement (the “SPA”) in which the Purchaser purchased from the Company 664,578 shares of FNL common stock (representing all of the shares of FNL common stock held by the Company) for an aggregate purchase price of $1,000,000. FNL holds 100% of the shares of Grapevine Logic, Inc., which the Company sold to FNL in April of 2021. Simultaneously, the Company withdrew from the Shareholders’ Agreement relating to FNL shares originally among the Company, the Purchaser and certain other holders of FNL stock.

Amended and Restated YA II Option Agreement

On April 17, 2023, Ideanomics, Inc. (the “Company”) entered into an Second Amended and Restated Option Agreement (the “Second Amended Option Agreement”) with Timios Holdings Corp. (“Timios”), a Delaware corporation, Fiducia Real Estate Solutions, Inc. (“Fiducia”), a Delaware corporation, and YA II PN, LTD., a Cayman Islands exempt corporation (“Buyer”).

In accordance with the Second Amended Option Agreement, the Company and Timios have granted the Buyer, an option (the “Call Right”), exercisable after May 30, 2023, to purchase (a) from the Company an amount of shares of common stock of Timios representing one hundred percent (100%) of the then issued and outstanding common stock of Timios on a Fully-Diluted Basis (as defined therein) at the time the Call Right is effected, or (b) from Timios one hundred percent (100%) of the then issued and outstanding common stock of Fiducia on a Fully-Diluted Basis at the time the Call Right is effected (such shares of Timios or Fiducia, as applicable, the “Call Shares”). In the event the Buyer desires to buy the Call Shares pursuant to the Amended and Restated Option Agreement, the Buyer shall deliver to the Company a written, unconditional and irrevocable notice (the “Call Exercise Notice”) of the Buyer’s election to exercise the applicable Call Right for the Call Purchase Price. Additionally, the Company shall have the right to repay the Debenture (as defined below) in full at any time during period commencing on April 17, 2023, and ending on May 30, 2023 (the “Payback Period”), plus a redemption premium of 50%. However, if the Company chooses to repay the Debenture prior to the end of the Payback Period, the Buyer will no longer retain any Call Right and the Second Amended Option Agreement will terminate automatically as of the date of such payment.

Pursuant to the Second Amended Option Agreement, if the Buyer exercises the Call Right, the aggregate purchase price at which the Buyer (or its permitted assignee) shall purchase the applicable Call Shares (the “Call Purchase Price”) shall be $3,500,000, inclusive of any funds received by Timios to meet its regulatory capital requirements. The Buyer may at its sole and exclusive right pay all or part of the Call Purchase Price by offset or setoff (collectively, the “Setoff”) of any or all amounts due and owing to the Buyer by the Company, including, without limitation, any outstanding amounts due and owing under the Debenture or any other debentures issued to the Buyer under the Original SDPA (defined below), or under any existing or future instrument, agreement, note, advance, standby equity purchase agreement, pre-paid advance or otherwise.

Second Amendment to Secured Convertible Debenture Purchase Agreement

On April 17, 2023, the Company entered into the Second Amendment to the Secured Debenture Purchase Agreement, as previously amended (the “Second Amended SDPA”) with the Buyer, which amended the original Secured Debenture Agreement (the “Original SDPA”), and simultaneously consummated the sale to the Investor of a new Secured Convertible Debenture (the “Debenture”) in a private placement pursuant to the SDPA. Upon the terms and subject to the conditions contained in the Amended SDPA and Debenture, the Company promises to pay to YA II PN, LTD. (“Holder”) $750,000 on September 30, 2023, (a) subject to earlier redemption at the Company’s option (upon payment of a redemption premium of 10% of the principal amount being redeemed or paid, plus, during the Payback Period, 50% of the principal amount being redeemed or paid (unless the Buyer, in its sole and absolute discretion, elects to exercise a Call Right (as defined in the Second Amended Option Agreement) in connection with the applicable redemption or payment, and (b) subject to acceleration at the holder’s option upon an event of default described in the Indenture. The Company will also pay interest on outstanding principal of the Debenture at an interest rate of eight percent (8%), provided that such interest rate shall be increased to 18% upon an event of default.

The foregoing are only a summaries of the material terms of the SPA, the Second Amended Option Agreement, the Second Amended SDPA and the Debenture, and do not purport to be complete descriptions of the rights and obligations of the parties thereunder, and such summaries are qualified in their entirety by reference to such agreements, which are filed as exhibits to this Current Report on Form 8-K.

2.01 Completion of Acquisition or Disposition of Assets

The information set forth in Item 1.01 above regarding the sale by the Company of its shares of FNL is incorporated herein by reference.

Item 5.02 Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers

On April 14, 2023, the Company received the resignation of the Company’s Chief Financial Officer, Stephen Johnston, effective as of that date. Mr. Johnston is resigning for personal reasons.

On April 18, 2023, the board of directors appointed Andrea Hayward as an independent director of the Company and as a member of the Audit Committee and Compensation Committee of the board, to be effective as of May 15, 2023. Ms. Hayward worked for over 31 years at United Parcel Service, where she has delivered specialized supply chain and logistics services on a global scale. Most recently, she served as Vice President of U.S. Network and Vice President of Transportation Technology, where she led over 8,000 employees with a business unit P&L of $1.5B. Ms. Hayward begins her service as an independent director of the Company on May 15, 2023. She has served as a director of Rehrig Pacific Company and Atlanta CASA.

On April 20, 2023, the board of directors appointed Scott Morrison as Chief Financial Officer of the Company. Mr. Morrison brings extensive years of advancing responsibilities across multiple business units of major companies. He has served as Chief Financial Officer of Wave, LLC, since 2021 and served as Chief Executive Officer EVŌQ Nano, Inc. (formerly Attostat) from 2017 to 2021, as Chief Financial Officer of EVŌQ from 2014 to 2016, as Vice President of Finance of Honeywell Aerospace, Bendix King Division, in 2014, as Director of Finance of Oldcastle Materials from 2012 to 2013.

Item 9.01 Financial Statements and Exhibits.

(d) Exhibits.

Exhibit Number	Description
10.1	Stock Purchase Agreement dated April 14, 2023
10.2	Second Amended and Restated Option Agreement dated April 17, 2023
10.3	Second Amended and Restated Secured Debenture Purchase Agreement dated October 25, 2022, as amended most recently as of April 17, 2023
10.4	Secured Debenture dated April 17, 2023
104	Cover page Interactive Data File (embedded within the Inline XBRL document).

SIGNATURES

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.

	Ideanomics, Inc.
Date: April 20, 2023	By:	/s/ Alfred P. Poor
		Alfred P. Poor
		Chief Executive Officer

EX-10.1

Exhibit 10.1

STOCK PURCHASE AGREEMENT

THIS STOCK PURCHASE AGREEMENT (this “Agreement”), is made as of April 14, 2023, by and among David L. Beatty, an individual residing at 38 Ticklefancy Lane, Salem, New Hampshire 03079 (the “Purchaser”), Ideanomics, Inc., a Nevada corporation (the “Seller”) and FNL Technologies, Inc., a Delaware corporation (“FNL”).

The parties hereby agree as follows:

1. Purchase and Sale of Common Stock.

1.1Sale and Issuance of Common Stock. Subject to the terms and conditions of this Agreement, the Purchaser agrees to purchase at the Closing (as defined below) and the Seller agrees to sell to the Purchaser at the Closing 664,578 shares of FNL Common Stock, $0.0001 par value per share (the “Common Stock”), at an aggregate purchase price of One Million Dollars ($1,000,000) (the “Purchase Price”). The shares of Common Stock purchased by the Purchaser pursuant to this Agreement shall be referred to in this Agreement as the “Shares,” and the sale and purchase of the Shares pursuant to this Agreement shall be referred to as the “Transaction.”

1.2 Closing; Delivery.

(a)The purchase and sale of the Shares shall take place remotely via the exchange of documents and signatures at 2:00 PM (EDT) on the date hereof or on such other date or at such other time as the Purchaser and the Seller may agree (which time and place are designated as the “Closing”).

(b)At the Closing, the Seller shall deliver to the Purchaser a certificate representing the Shares (the “Certificate”), together with stock powers duly executed in blank (the “Stock Powers”), together with such other documents as the Purchaser may reasonably request in order to effect the transfer of the Shares to the Purchaser, against payment of the Purchase Price therefor by wire transfer to a bank account designated by the Seller.

(c)FNL hereby agrees that, upon presentation of the Certificate and the Stock Powers, it will promptly issue to the Purchaser a new certificate for the Shares and will record the transfer of the Shares from the Seller to the Purchaser on FNL’s stock register.

1.3Defined Terms Used in this Agreement. In addition to the terms defined above, the following terms used in this Agreement shall be construed to have the meanings set forth or referenced below.

(a)“Affiliate” means, with respect to any specified Person, any other Person who, directly or indirectly, controls, is controlled by, or is under common control with such Person, including, without limitation, any general partner, managing member, officer, director or trustee of such Person, or any venture capital fund or registered investment company now or hereafter existing that is controlled by one (1) or more general partners, managing members or investment advisers of, or shares the same management company or investment adviser with, such Person.

(b)                “Code” means the Internal Revenue Code of 1986, as amended.

(c)                “Material Adverse Effect” means a material adverse effect on the Transaction.

(d)                “Person” means any individual, corporation, partnership, trust, limited liability company, association or other entity.

(e)                “Purchaser” has the meaning set forth in the Preamble.

(f)“Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.

2.Representations and Warranties of the Seller. The Seller hereby represents and warrants to the Purchaser that the following representations are true and complete as of the date of the Closing, except as otherwise indicated.

2.1Organization, Good Standing, Corporate Power and Qualification. The Seller is a corporation duly organized, validly existing and in good standing under the laws of the State of Nevada. The Seller has full power and authority to enter into this Agreement and to carry out the Transaction contemplated hereby.

2.2Authorization. All corporate action required to be taken by the Seller’s Board of Directors and stockholders in order to authorize the Seller to enter into this Agreement, and to sell and transfer the Shares at the Closing has been taken. All action on the part of the officers of the Seller necessary for the execution and delivery of this Agreement, the performance of all obligations of the Seller under this Agreement to be performed as of the Closing, and the sale and delivery of the Shares has been taken. This Agreement, when executed and delivered by the Seller, shall (assuming due execution and delivery by the Purchaser and FNL) constitute its valid and legally binding obligations of the Seller, enforceable against the Seller in accordance with its terms except (i) as limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance, or other laws of general application relating to or affecting the enforcement of creditors’ rights generally or (ii) as limited by laws relating to the availability of specific performance, injunctive relief, or other equitable remedies.

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2.3The Shares. The Seller is the sole record and beneficial owner of the Shares and holds the Shares free of any lien, charge or encumbrance or any adverse claim by any person or entity. The Shares, when sold and delivered in accordance with the terms and for the consideration set forth in this Agreement, will be (i) validly issued, fully paid and nonassessable, (ii) free of restrictions on transfer (including conversion or preemptive rights and rights of first refusal or similar rights) other than restrictions on transfer under this Agreement, applicable state and federal securities laws and (iii) free and clear of any lien, charge or encumbrance or any adverse claim by any person or entity other than liens or encumbrances created by or imposed by the Purchaser. The Shares have been issued in compliance with all applicable federal and state securities laws.

2.4Governmental Consents and Filings. Assuming the accuracy of the representations made by the Purchaser in Section 3 of this Agreement, no consent, approval, order or authorization of, or registration, qualification, designation, declaration or filing with, any federal, state or local governmental authority is required on the part of the Seller in connection with the consummation of the transactions contemplated by this Agreement, except for filings pursuant to applicable securities laws, which have been made or will be made in a timely manner.

2.5Litigation. There is no claim, action, suit, proceeding, arbitration, complaint, charge or investigation pending or to the Seller’s knowledge, currently threatened in writing (i) against the Seller or any officer or director of the Seller; or (ii) to the Seller’s knowledge, that questions the validity of this Agreement or the right of the Seller to enter into this Agreement, or to consummate the Transaction contemplated by this Agreement; or (iii) to the Seller’s knowledge, that would reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect.

2.6Compliance with Other Instruments. The Seller is not in violation or default (i) of any provisions of its Charter or Bylaws, (ii) of any instrument, judgment, order, writ or decree, or (iii) to its knowledge, of any provision of federal or state statute, rule or regulation applicable to the Seller, the violation of which would have a Material Adverse Effect. The execution, delivery and performance of this Agreement and the consummation of the Transaction contemplated by this Agreement will not result in any such violation or be in conflict with or constitute, with or without the passage of time and giving of notice, either (i) a default under any such provision, instrument, judgment, order, writ, decree, contract or agreement (including, but not limited to any voting rights agreement, registration rights, right of first refusal, co-sale agreement, or any other similar contractual rights agreement pertaining to the shares which are the subject of this Agreement); or (ii) an event which results in the creation of any lien, charge or encumbrance upon any assets of the Seller or the suspension, revocation, forfeiture, or nonrenewal of any material permit or license applicable to the Seller.

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2.7Disclosure. The Seller has made available to the Purchaser all the information reasonably available to the Seller that the Purchaser has requested for deciding whether to acquire the Shares. No representation or warranty of the Seller contained in this Agreement and no certificate furnished or to be furnished to Purchaser at the Closing contains any untrue statement of a material fact or, to the Seller’s knowledge, omits to state a material fact necessary in order to make the statements contained herein or therein not misleading in light of the circumstances under which they were made. It is understood that this representation is qualified by the fact that the Seller has not delivered to the Purchaser, and has not been requested to deliver, a private placement or similar memorandum or any written disclosure of the types of information customarily furnished to purchasers of securities.

2.8No Other Agreements. Except for this Agreement there are no other agreements, understandings, instruments, contracts or proposed agreements to which the Seller is a party or by which it is bound, or to which the shares are bound including, but not limited to, any voting rights agreement, registration rights, right of first refusal, co-sale, or any other similar contractual rights agreement pertaining to the shares which are the subject of this Agreement.

2.9Sophisticated Party. The Seller (i) is a sophisticated entity familiar with transactions similar to those contemplated by this Agreement, (ii) has adequate information concerning the business and financial condition of FNL to make an informed decision regarding the sale or transfer of the Shares, and (iii) has independently and without reliance upon the Purchaser or FNL (other than reliance on FNL’s and Purchaser’s express representations herein), and based on such information and the advice of such advisors as the Seller has deemed appropriate, made its own analysis and decision to enter into this Agreement. The Seller acknowledges that none of the Purchaser, FNL, or their respective affiliates is acting as a fiduciary or financial or investment adviser to the Seller, and has not given the Seller any investment advice or opinion on whether the sale or transfer of the Shares is prudent. The Seller acknowledges that (a) the Purchaser currently may have, and later may come into possession of, information with respect to FNL that is not known to the Seller and that may be material to a decision to sell or transfer the Shares, which, for the avoidance of doubt, may include, without limitation, any market share data, marketing plans, licenses, contract information, business plans (including with respect to mergers, acquisitions, dispositions, liquidity events, financings (equity or debt), joint ventures or other strategic alternatives), financial forecasts, historical financial data, notice of any intention by FNL to file a registration statement, valuations, capitalization information, budgets and other business information (“Seller Excluded Information”); (b) except for the information disclosed by FNL and/or the Purchaser in connection with their representations made herein, the Seller has not requested and does not wish to receive Seller Excluded Information from the Purchaser, and the Seller hereby waives and releases (and agrees that it shall not, and shall cause its affiliates and representatives to not, directly or indirectly, assert, make, assist, pursue or prosecute) any claims that the Seller might have against the Purchaser and FNL, whether under applicable securities laws or otherwise, with respect to the nondisclosure of the Seller Excluded Information in connection with the sale or transfer of the Shares and the Transaction contemplated by this Agreement; (c) Seller Excluded Information may be indicative of a value of the Shares that is substantially greater than the Purchase Price (or that such value may significantly appreciate over time), or otherwise adverse to the Seller’s interest, and, therefore, Seller Excluded Information might be material to the Seller’s decision to sell or transfer the Shares; (d) there is a potential disadvantage to which the Seller is subject on account of a possible disparity of information as between the Purchaser and the Seller; and (e) notwithstanding the Seller’s lack of knowledge of Seller Excluded Information, the Seller has determined to sell or transfer the Shares based on the Seller’s own investigation of FNL and the advice of the Seller’s advisors recognizing the possible unequal knowledge position of the Purchaser and the Seller. The Seller understands that the Purchaser will rely on the accuracy and truth of the foregoing representations, and the Seller hereby consents to such reliance.

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3.Representations and Warranties of the Purchaser. The Purchaser hereby represents and warrants to the Seller that:

3.1Authorization. The Purchaser has full power and authority to enter into this Agreement. This Agreement, when executed and delivered by the Purchaser, shall (assuming due execution and delivery by the Seller and FNL) constitute valid and legally binding obligations of the Purchaser, enforceable against the Purchaser in accordance with its terms, except as limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance and any other laws of general application affecting enforcement of creditors’ rights generally, and as limited by laws relating to the availability of specific performance, injunctive relief or other equitable remedies.

3.2Purchase Entirely for Own Account. This Agreement is made with the Purchaser in reliance upon the Purchaser’s representation to the Seller, which by the Purchaser’s execution of this Agreement, the Purchaser hereby confirms, that the Shares to be acquired by the Purchaser will be acquired for investment for the Purchaser’s own account, not as a nominee or agent, and not with a view to the resale or distribution of any part thereof, and that the Purchaser has no present intention of selling, granting any participation in, or otherwise distributing the same. By executing this Agreement, the Purchaser further represents that the Purchaser does not presently have any contract, undertaking, agreement or arrangement with any Person to sell, transfer or grant participations to such Person or to any third Person, with respect to any of the Shares. The Purchaser has not been formed for the specific purpose of acquiring the Shares.

3.3Restricted Securities. The Purchaser understands that the Shares have not been, and will not be, registered under the Securities Act, by reason of a specific exemption from the registration provisions of the Securities Act which depends upon, among other things, the bona fide nature of the investment intent and the accuracy of the Purchaser’s representations as expressed herein. The Purchaser understands that the Shares are “restricted securities” under applicable U.S. federal and state securities laws and that, pursuant to these laws, the Purchaser must hold the Shares indefinitely unless they are registered with the Securities and Exchange Commission and qualified by state authorities, or an exemption from such registration and qualification requirements is available. The Purchaser acknowledges that neither the Seller nor FNL has any obligation to register or qualify the Shares for resale. The Purchaser further acknowledges that if an exemption from registration or qualification is available, it may be conditioned on various requirements including, but not limited to, the time and manner of sale, the holding period for the Shares, and on requirements relating to the Seller which are outside of the Purchaser’s or FNL’s control, and which the Seller and FNL are under no obligation and may not be able to satisfy.

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3.4No Public Market. The Purchaser understands that no public market now exists for the Shares, and that the Seller and FNL have made no assurances that a public market will ever exist for the Shares.

3.5Legends. The Purchaser understands that the certificate representing that Shares and any securities issued in respect of or exchange for the Shares, may be notated with one or all of the following legends:

(a)“THE SHARES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AND HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO, OR IN CONNECTION WITH, THE SALE OR DISTRIBUTION THEREOF. NO SUCH TRANSFER MAY BE EFFECTED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT RELATED THERETO OR AN OPINION OF COUNSEL IN A FORM SATISFACTORY TO FNL THAT SUCH REGISTRATION IS NOT REQUIRED UNDER THE SECURITIES ACT OF 1933.”

(b)               Any legend set forth in, or required by, this Agreement.

(c)Any legend required by the securities laws of any state to the extent such laws are applicable to the Shares represented by the certificate, instrument, or book entry so legended.

3.6Accredited Investor. The Purchaser is an accredited investor as defined in Rule 501(a) of Regulation D promulgated under the Securities Act.

3.7No General Solicitation. Neither the Purchaser, nor any of its officers, directors, employees, agents, stockholders or partners has either directly or indirectly, including, through a broker or finder (a) engaged in any general solicitation, or

(b) published any advertisement in connection with the offer and purchase of the Shares.

3.8Residence. The office or offices of the Purchaser in which its principal place of business is identified in the address or addresses of the Purchaser set forth on the signature page.

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3.9Sophisticated Party. The Purchaser (i) is a sophisticated individual familiar with transactions similar to those contemplated by this Agreement, (ii) has adequate information concerning the business and financial condition of FNL to make an informed decision regarding his purchase of the Shares, and (iii) has independently and without reliance upon the Seller or FNL (other than reliance on FNL’s and the Seller’s express representations herein), and based on such information and the advice of such advisors as the Purchaser has deemed appropriate, made his own analysis and decision to enter into this Agreement. The Purchaser acknowledges that none of the Seller, FNL, or their respective affiliates is acting as a fiduciary or financial or investment adviser to the Purchaser, and has not given the Purchaser any investment advice or opinion on whether the purchase of the Shares is prudent. The Purchaser acknowledges that (a) the Seller currently may have, and later may come into possession of, information with respect to FNL that is not known to the Purchaser and that may be material to a decision to purchase the Shares, which, for the avoidance of doubt, may include, without limitation, any market share data, marketing plans, licenses, contract information, business plans (including with respect to mergers, acquisitions, dispositions, liquidity events, financings (equity or debt), joint ventures or other strategic alternatives), financial forecasts, historical financial data, notices provided to stockholders of FNL (such as notices under Section 228 of the Delaware General Corporation Law), notice of any FNL intention to file a registration statement, valuations, capitalization information, budgets and other business information (“Purchaser Excluded Information”); (b) except for the information disclosed by FNL and/or the Seller in connection with their representations made herein, the Purchaser has not requested and does not wish to receive Purchaser Excluded Information from the Seller, and the Purchaser hereby waives and releases (and agrees that he shall not, and shall cause his affiliates and representatives to not, directly or indirectly, assert, make, assist, pursue or prosecute) any claims that the Purchaser might have against the Seller and FNL, whether under applicable securities laws or otherwise, with respect to the nondisclosure of the Purchaser Excluded Information in connection with the sale or transfer of the Shares and the Transaction contemplated by this Agreement; (c) Purchaser Excluded Information may be indicative of a value of the Shares that is substantially less than the Purchase Price (or that such value may significantly depreciate over time), or otherwise adverse to the Purchaser’s interest, and, therefore, Purchaser Excluded Information might be material to the Purchaser’s decision to purchase the Shares; (d) there is a potential disadvantage to which the Purchaser is subject on account of a possible disparity of information as between the Seller and the Purchaser; and (e) notwithstanding the Purchaser’s lack of knowledge of Purchaser Excluded Information, the Purchaser has determined to purchase the Shares based on the Purchaser’s own investigation of FNL and the advice of the Purchaser’s advisors recognizing the possible unequal knowledge position of the Seller and the Purchaser. The Purchaser understands that the Seller will rely on the accuracy and truth of the foregoing representations, and the Purchaser hereby consents to such reliance.

4.Representations and Warranties of FNL. FNL hereby represents and warrants to the Purchaser as follows:

(a)Existence; Good Standing. FNL is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware and has all corporate power and authority required to carry on its business as now conducted and to own and operate its properties and assets as now owned and operated by it. FNL is not required by applicable law to qualify to conduct business as a foreign entity in any jurisdiction, except where the failure to be so qualified would not have a material adverse effect on the assets or business of FNL, considered as a whole.

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(b)Capitalization. The authorized capital of FNL consists, immediately prior to the Closing, of 5,000,000 shares of Common Stock, 2,470,945 shares of which are issued and outstanding. All of the outstanding shares of Common Stock have been duly authorized, are fully paid and nonassessable and were issued in compliance with all applicable federal and state securities laws. FNL holds no Common Stock in its treasury. FNL has reserved 125,008 shares of Common Stock for issuance upon exercise of outstanding warrants to purchase Common Stock and 1,339,150 shares of Common Stock for issuance to officers, directors, employees and consultants of FNL pursuant to its 2017 Stock Plan (as amended from time to time, the “Stock Plan”).

(c)The Shares. The Shares are (i) validly issued, fully paid and nonassessable and (ii) free of restrictions on transfer (including conversion or preemptive rights and rights of first refusal or similar rights) other than restrictions on transfer under applicable state and federal securities laws.

(d)Authorization; Enforceability. FNL has all requisite corporate power and authority to execute and deliver this Agreement, to perform its obligations hereunder, and to consummate the Transactions contemplated hereby. The execution and delivery by FNL of this Agreement and the performance by FNL of its obligations hereunder have been duly and validly authorized by all necessary corporate action. This Agreement, when executed and delivered by FNL shall (assuming the due execution and delivery of this Agreement by the Purchaser and the Seller) constitute the legal, valid and binding agreement of FNL, enforceable against FNL in accordance with its terms, except to the extent that enforceability may be subject to any applicable bankruptcy, insolvency, reorganization, moratorium or similar laws now or hereafter in effect relating to creditors’ rights generally or to general principles of equity.

(e)Litigation. There is no proceeding pending or, to the knowledge of FNL, threatened by or against FNL which would have a Material Adverse Effect on FNL or which would prevent, enjoin, alter or delay the Transaction contemplated by this Agreement.

(f)No Implied Warranties. Except for the representations and warranties contained in this Section 4, FNL does not make any other representation or warranty, express or implied, with respect to FNL, any of the Shares, or the Transaction contemplated by this Agreement or otherwise, and FNL disclaims any other representations or warranties.

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5. Conditions to the Purchaser’s Obligations at Closing. The obligation of the Purchaser to purchase Shares at the Closing is subject to the fulfillment, on or before the Closing, of each of the following conditions, unless otherwise waived:

5.1Representations and Warranties. The representations and warranties of the Seller contained in Section 2 and of FNL contained in Section 4 shall be true and correct in all respects as of the Closing.

5.2Performance. The Seller shall have performed and complied with all covenants, agreements, obligations and conditions contained in this Agreement that are required to be performed or complied with by the Seller on or before such Closing. In amplification, and not in limitation, of the foregoing, the Seller shall have delivered to the Purchaser the Certificate, the duly-executed Stock Powers and such other documents as the Purchaser may reasonably request in order to effect the transfer of the Shares to the Purchaser.

5.3Compliance Certificate. The CEO of the Seller shall deliver to the Purchaser at the Closing a certificate certifying that the conditions specified in Sections 5.1 and 5.2 have been fulfilled.

5.4Qualifications. All authorizations, approvals or permits, if any, of any governmental authority or regulatory body of the United States or of any state that are required in connection with the lawful issuance and sale of the Shares pursuant to this Agreement shall be obtained and effective as of such Closing.

5.5Shareholders’ Agreement. FNL, the Seller, the Key Holders party to that certain Shareholders’ Agreement dated as of April 20, 2021 (the “Shareholders’ Agreement”) and the Purchaser shall have executed and delivered an Amendment to the Shareholder’ Agreement pursuant to which the Seller shall have assigned to the Purchaser all of the Seller’s rights under that the Shareholders’ Agreement and the Purchaser shall have become a party to the Shareholders’ Agreement.

5.6Proceedings and Documents. All corporate and other proceedings in connection with the transactions contemplated at the Closing and all documents incident thereto shall be reasonably satisfactory in form and substance to the Purchaser, and the Purchaser (or its respective counsel) shall have received all such counterpart original and certified or other copies of such documents as reasonably requested. Such documents may include good standing certificates.

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6.Conditions of the Seller’s Obligations at Closing. The obligations of the Seller to sell Shares to the Purchaser at the Closing is subject to the fulfillment, on or before the Closing, of each of the following conditions, unless otherwise waived:

6.1 Representations and Warranties. The representations and warranties of the Purchaser contained in Section 3 and of FNL contained in Section 4 shall be true and correct in all respects as of the Closing.

6.2Performance. The Purchaser shall have performed and complied with all covenants, agreements, obligations and conditions contained in this Agreement that are required to be performed or complied with by them on or before the Closing.

6.3Qualifications. All authorizations, approvals or permits, if any, of any governmental authority or regulatory body of the United States or of any state that are required in connection with the lawful issuance and sale of the Shares pursuant to this Agreement shall be obtained and effective as of the Closing.

7. Miscellaneous.

7.1Survival of Warranties. Unless otherwise set forth in this Agreement, the representations and warranties of the Seller and the Purchaser contained in or made pursuant to this Agreement shall survive the execution and delivery of this Agreement and the Closing and shall in no way be affected by any investigation or knowledge of the subject matter thereof made by or on behalf of the Purchaser or the Seller.

7.2No Reliance. Each of the Seller and the Purchaser acknowledges and agrees that neither FNL, nor any of its stockholders, officers, directors, employees, or agents (other than the Seller and the Purchaser) have (i) acted as an agent, finder or broker for the Seller or the Purchaser or their respective agents with respect to the offer, purchase and/or sale of the Shares, (ii) made any representations or warranties of any kind, express or implied, to the Seller or the Purchaser or their respective agents in connection with the offer, purchase and/or sale of the Shares, other than as set forth in this Agreement, or (iii) have at any time had any duty to the Seller or the Purchaser or their respective agents to disclose any information relating to FNL, its business, or financial condition or relating to any other matters in connection with the offer, purchase and/or sale of the Shares.

7.3Successors and Assigns. The terms and conditions of this Agreement shall inure to the benefit of and be binding upon the respective successors and assigns of the parties. Nothing in this Agreement, express or implied, is intended to confer upon any party other than the parties hereto or their respective successors and assigns any rights, remedies, obligations or liabilities under or by reason of this Agreement, except as expressly provided in this Agreement.

7.4Governing Law. This Agreement shall be governed by the internal law of the State of Delaware, without regard to conflict of law principles that would result in the application of any law other than the law of the State of Delaware.

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7.5Counterparts. This Agreement may be executed in two (2) or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Counterparts may be delivered via electronic mail (including pdf or any electronic signature complying with the U.S. federal ESIGN Act of 2000, e.g., www.docusign.com) or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes.

7.6Titles and Subtitles. The titles and subtitles used in this Agreement are used for convenience only and are not to be considered in construing or interpreting this Agreement.

7.7 Notices.

(a)General. All notices and other communications given or made pursuant to this Agreement shall be in writing and shall be deemed effectively given upon the earlier of actual receipt, or (a) personal delivery to the party to be notified, (b) when sent, if sent by electronic mail during normal business hours of the recipient, and if not sent during normal business hours, then on the recipient’s next business day, (c) five (5) days after having been sent by registered or certified mail, return receipt requested, postage prepaid, or (d) one (1) business day after deposit with a nationally recognized overnight courier, freight prepaid, specifying next business day delivery, with written verification of receipt. All communications shall be sent to the respective parties at their address as set forth on the signature page, or to such e-mail address or address as subsequently modified by written notice given in accordance with this Section 7.6.

(b)Consent to Electronic Notice. The Purchaser consents to the delivery of any stockholder notice pursuant to the Delaware General Corporation Law (the “DGCL”), as amended or superseded from time to time, by electronic transmission pursuant to Section 232 of the DGCL (or any successor thereto) at the e-mail address set forth below the Purchaser’s name on the signature page, as updated from time to time by notice to the Seller. To the extent that any notice given by means of electronic transmission is returned or undeliverable for any reason, the foregoing consent shall be deemed to have been revoked until a new or corrected e-mail address has been provided, and such attempted electronic notice shall be ineffective and deemed to not have been given. The Purchaser agrees to promptly notify the Seller of any change in its e-mail address, and that failure to do so shall not affect the foregoing.

7.8No Finder’s Fees. Each party represents that it neither is nor will be obligated for any finder’s fee or commission in connection with this transaction. The Purchaser agrees to indemnify and to hold harmless the Seller from any liability for any commission or compensation in the nature of a finder’s or broker’s fee arising out of this transaction (and the costs and expenses of defending against such liability or asserted liability) for which the Purchaser or any of its officers, employees or representatives is responsible. The Seller agrees to indemnify and hold harmless the Purchaser from any liability for any commission or compensation in the nature of a finder’s or broker’s fee arising out of this transaction (and the costs and expenses of defending against such liability or asserted liability) for which the Seller or any of its officers, employees or representatives is responsible.

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7.9Amendments and Waivers. Any term of this Agreement may be amended, terminated or waived only with the written consent of the Seller and the Purchaser. Any amendment or waiver effected in accordance with this Section 7.9 shall be binding upon the Purchaser and each transferee of the Shares, each future holder of all such securities, and the Seller.

7.10Severability. The invalidity or unenforceability of any provision hereof shall in no way affect the validity or enforceability of any other provision.

7.11Delays or Omissions. No delay or omission to exercise any right, power or remedy accruing to any party under this Agreement, upon any breach or default of any other party under this Agreement, shall impair any such right, power or remedy of such non-breaching or non-defaulting party nor shall it be construed to be a waiver of any such breach or default, or an acquiescence therein, or of or in any similar breach or default thereafter occurring; nor shall any waiver of any single breach or default be deemed a waiver of any other breach or default theretofore or thereafter occurring. Any waiver, permit, consent or approval of any kind or character on the part of any party of any breach or default under this Agreement, or any waiver on the part of any party of any provisions or conditions of this Agreement, must be in writing and shall be effective only to the extent specifically set forth in such writing. All remedies, either under this Agreement or by law or otherwise afforded to any party, shall be cumulative and not alternative.

7.12Entire Agreement. This Agreement (including the Exhibits hereto) constitutes the full and entire understanding and agreement between the parties with respect to the subject matter hereof, and any other written or oral agreement relating to the subject matter hereof existing between the parties are expressly canceled.

7.13Dispute Resolution. The parties (a) hereby irrevocably and unconditionally submit to the jurisdiction of the state courts of New York and to the jurisdiction of the United States District Court for the Southern District of New York for the purpose of any suit, action or other proceeding arising out of or based upon this Agreement, (b) agree not to commence any suit, action or other proceeding arising out of or based upon this Agreement except in the state courts of New York or the United States District Court for the Southern District of New York, and (c) hereby waive, and agree not to assert, by way of motion, as a defense, or otherwise, in any such suit, action or proceeding, any claim that it is not subject personally to the jurisdiction of the above-named courts, that its property is exempt or immune from attachment or execution, that the suit, action or proceeding is brought in an inconvenient forum, that the venue of the suit, action or proceeding is improper or that this Agreement or the subject matter hereof may not be enforced in or by such court.

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WAIVER OF JURY TRIAL: EACH PARTY HEREBY WAIVES ITS RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT, THE OTHER TRANSACTION DOCUMENTS, THE SECURITIES OR THE SUBJECT MATTER HEREOF OR THEREOF. THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL-ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT AND THAT RELATE TO THE SUBJECT MATTER OF THIS TRANSACTION, INCLUDING, WITHOUT LIMITATION, CONTRACT CLAIMS, TORT CLAIMS (INCLUDING NEGLIGENCE), BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS. THIS SECTION HAS BEEN FULLY DISCUSSED BY EACH OF THE PARTIES HERETO AND THESE PROVISIONS WILL NOT BE SUBJECT TO ANY EXCEPTIONS. EACH PARTY HERETO HEREBY FURTHER WARRANTS AND REPRESENTS THAT SUCH PARTY HAS REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL, AND THAT SUCH PARTY KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL

7.14 Waiver and Release; Covenant Not to Sue.

(a)Acknowledgement and Release of Claims. Effective as of the Closing and in partial consideration of the consummation of the Transactions at the Closing, each Party hereto, for itself and its heirs, representatives, successors, assigns, employees, officers, directors, stockholders, partners, members, agents and affiliates (each of such parties as a releasor, in each case, the “Releasors”), hereby forever fully, irrevocably and unconditionally releases and discharges (the “Release”) each other Party hereto and each of their respective members (direct and indirect), partners (direct and indirect), managers, shareholders (direct and indirect), directors, officers, employees, agents, lenders (and agents related thereto), attorneys, advisors, and representatives (such parties, collectively with such other parties, in each case, the “Released Parties”) from any and all actions, suits, claims, demands, debts, sums of money, accounts, reckonings, bonds, bills, covenants, contracts, controversies, promises, judgments, liabilities or obligations of any kind whatsoever in law or equity and causes of action of every kind and nature, or otherwise (including, claims for damages, costs, expenses, and attorneys’, brokers’ and accountants’ fees and expenses) arising out of or related to events, facts, conditions or circumstances existing or arising on or prior to the Closing related to, or arising out of, the Transaction contemplated by this Agreement, which the Releasors can, shall or may have against the Released Parties, whether known or unknown, suspected or unsuspected, unanticipated as well as anticipated and that now exist or may hereafter accrue (collectively, the “Released Claims”).

(b)Covenant Not to Sue. Each Releasor hereby irrevocably covenants to refrain from, directly or indirectly, asserting any claim or demand, or commencing, instituting or causing to be commenced, any judicial, quasi-judicial or arbitral proceeding of any kind against the Released Parties, based upon any Released Claims. The provisions of this Agreement will extend and inure to the benefit of and be binding upon, in addition to each Party, the respective legal successors, distributees and assigns of such Party (including, without limitation, an acquirer of or successor to all or substantially all of such Party’s stock, assets or business) just as if such successors, distributees or assigns had executed this Agreement.

[Signature Pages Follow]

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IN WITNESS WHEREOF, the parties have executed this Stock Purchase Agreement as of the date first written above.

SELLER:
Ideanomics, Inc.
By:
Name:	Alfred P. Poor
Title:	Chief Executive Officer

Seller’s Address:

1441 Broadway, 5^th Floor

Suite 5116

New York, New York 10018

IN WITNESS WHEREOF, the parties have executed this Stock Purchase Agreement as of the date first written above.

PURCHASER:
Name:	David L. Beatty

Purchaser’s Address:

38 Ticklefancy Lane

Salem, New Hampshire 03079

IN WITNESS WHEREOF, the parties have executed this Stock Purchase Agreement as of the date first written above.

COMPANY:
FNL Technologies, Inc.
By:
Name:	Jordan T. Greenfield
Title:	Chief Executive Officer

FNL’s Address:

361 Newbury St.

Boston, MA 02210

EX-10.2

Exhibit 10.2

Execution Version

SECOND AMENDED AND RESTATED OPTION AGREEMENT

This SECOND AMENDED AND RESTATED OPTION AGREEMENT (this “Agreement”) is made and entered as of April 17, 2023 (the “Effective Date”) by and among IDEANOMICS, INC., a Nevada corporation (the “Company”), TIMIOS HOLDINGS CORP., a Delaware corporation (“Timios”), FIDUCIA REAL ESTATE SOLUTIONS, INC., a Delaware corporation (“Fiducia”), and YA II PN, LTD., a Cayman Islands exempt corporation (“Buyer”).

WHEREAS, the Company and the Buyer entered into that certain Secured Debenture Purchase Agreement as of October 25, 2022 (the “Original SPA”) pursuant to which the Buyer made financial accommodations to the Company. As a condition of such accommodations, the Buyer was granted an Option Agreement (the “Original Option”).

WHEREAS, the Company and the Buyer amended the Original SPA pursuant to that certain First Amendment to Secured Debenture Purchase Agreement dated as of March 30, 2023 (the “1^st SPA Amendment”);

WHEREAS, the Company and the Buyer are further amending the Original SPA (as modified by the 1^st SPA Amendment) pursuant to that certain Second Amendment to Secured Debenture Purchase Agreement dated as of Effective Date (the “2^nd SPA Amendment”; the Original SPA, as amended by the 1^st SPA Amendment and 2^nd SPA Amendment, the “SPA”);

WHEREAS, on March 30, 2023, the Buyer purchased a secured Convertible Debenture (as further updated on April 4, 2023, the “March 2023 Debenture”) from the Company in the principal amount of $1,400,000;

WHEREAS, in connection with the March 2023 Debenture, the Original Option was amended, restated and superseded (the “March 2023 Option”);

WHEREAS, on the Effective Date, the Buyer purchased a secured Convertible Debenture (the “April 2023 Debenture”; and together with the March 2023 Debenture, the “Debenture”) from the Company in the principal amount of $750,000;

WHEREAS, this Agreement amends, restates and supersedes the March 2023 Option. Pursuant to the terms and conditions set forth in this Agreement, the Company and Timios are granting to the Buyer, and the Buyer is accepting from the Company and Timios, an option to purchase (at the Buyer’s sole and exclusive discretion) from (i) the Company an amount of shares of common stock of Timios (the “Timios Common Stock”) representing one hundred percent (100%) of the then issued and outstanding Timios Common Stock on a Fully-Diluted Basis (as defined below) (the “Timios Call Shares”) at the time the Call Right (as defined below) is effected or (ii) Timios an amount of shares of common stock of Fiducia (the “Fiducia Common Stock”) representing one hundred percent (100%) of the then issued and outstanding Fiducia Common Stock on a Fully-Diluted Basis (as defined below) (the “Fiducia Call Shares”) at the time the Call Right (as defined below) is effected. For purposes hereof, the Timios Call Shares and/or the Fiducia Call Shares are referred to as the “Call Shares”). For purposes hereof, “Fully-Diluted Basis” shall mean at the time the Call Right is effected, without duplication, (i) all issued and outstanding Timios Common Stock or Fiducia Common Stock (as applicable), plus (ii) all shares of Timios Common Stock or Fiducia Common Stock (as applicable) issuable upon conversion of any convertible securities or instruments (whether debt or equity) or the exercise of any option, warrant or similar right, whether or not such conversion, right or option, warrant or similar right is then exercisable;

WHEREAS, as of the Effective Date, Timios is a wholly-owned subsidiary of the Company and Fiducia is a wholly-owned subsidiary of Timios;

WHEREAS, the Company, Timios, and Fiducia are jointly and severally liable to the Buyer for the Obligations (as defined in the SPA);

WHEREAS, the value of the financial obligations provided by the Buyer to the Company pursuant to the SPA and other Transaction Documents (as defined in the SPA) shall benefit any creditors of the Company, Timios, and Fidcuia, enhance the liquidity of the Company, Timios, and Fiducia, and otherwise is beneficial to the Company, Timios, and Fiducia;

WHEREAS, the execution of this Agreement is a condition to the Buyer’s obligation to purchase the April 2023 Debenture from the Company. The consideration for this Agreement and the Call Right set forth herein shall consist solely of the financial accommodations provided by the Buyer to Timios and the Company. The Buyer has not, and is not, providing any services to the Company in connection with the Original SPA or the SPA.

NOW, THEREFORE, in consideration of the foregoing and the mutual and dependent covenants hereinafter set forth, the parties hereto agree as follows:

1.             Grant of Option.

(a)Right to Buy. Subject to the terms and conditions of this Agreement at any time on and after the date hereof, the Company and Timios hereby grant to the Buyer, and the Buyer accepts from the Company and Timios, the right (the “Call Right”), but not the obligation, to purchase from the Company and Timios the Timios Call Shares or the Fiducia Call Shares (as applicable) at the Call Purchase Price (as defined below). References herein to the Call Shares shall mean the Timios Call Shares or the Fiducia Call Shares that are subject of the Call Right.

(b)           Procedures.

(i)If the Buyer desires to buy the Call Shares pursuant to Section 1(a), the Buyer shall deliver to the Company a written, unconditional and irrevocable notice (the “Call Exercise Notice”) of the Buyer’s election to exercise the applicable Call Right for the Call Purchase Price. Such Call Exercise Notice may not be exercised by Buyer on any date prior to May 30, 2023 (the period of time between the Effective Date and May 30, 2023, the “Payback Period”).

(ii)During the Payback Period, the Company shall have the right to repay (the “Repayment Amount”) the entire outstanding balance of the Debenture, plus a redemption premium of 50%. Notwithstanding anything to the contrary in Section 1(a) or in this Section 1(b), if the Buyer receives the Repayment Amount prior to the expiration of the Payback Period, then the Buyer will no longer retain any Call Right and this Agreement will terminate automatically as of the date of such payment. The Buyer’s right to pay the Repayment Amount shall irrevocably expire at the end of the Payback Period.

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(iii)By accepting the Call Exercise Notice, the Company and Timios shall each be deemed to represent and warrant to the Buyer (and, if applicable, its permitted assignee) as of the date of the Call Exercise Notice and as of the Call Right Closing Date that, as applicable, (A) each of the Company and Timios has full right, title and interest in and to the Call Shares; (B) each of the Company and Timios has all the necessary power, capacity and authority, and has taken all necessary action, to sell, transfer and assign the Call Shares as contemplated by this Section 1; (C) the Call Shares are validly issued, fully paid and nonassessable and free and clear of any and all liens, mortgages, pledges, security interests, options, rights of first offer, encumbrances or other restrictions or limitations of any nature whatsoever other than those arising in favor of the Buyer or state and federal regulations applicable to Timios, and the lien in favor of the Buyer over any Timios Call Shares is a valid, enforceable, perfected lien; (D) no consent, approval, order or authorization of, or registration, qualification, designation, declaration or filing with, any governmental entity or any other person or entity is required on the part of the Company or Timios in order to enable the Company and Timios to sell, transfer and deliver the Call Shares to the Buyer (or its permitted assignee); (E) the representations set forth in Section 1(f) below remain true and accurate as of such date; (F) the value of the Call Shares exceeds the aggregate value of the Obligations, and (G) any other representations and warranties required by the Buyer as to the operations and assets of the entities being acquired as a result of the acquisition of the Call Shares.

(iv)Subject to Section 1(c) below, the closing of a sale of the Call Shares pursuant to this Section 1 (the “Call Right Closing Date”) shall take place no later than thirty (30) days following receipt by the Company of the Call Exercise Notice. The Buyer shall give the Company at least ten (10) days’ written notice of the Call Right Closing Date.

(c)Call Purchase Price. In the event the Buyer exercises the Call Right hereunder, the aggregate purchase price at which the Buyer (or its permitted assignee) shall purchase the applicable Call Shares (the “Call Purchase Price”) shall be U.S. $3,500,000, inclusive of any funds received by Timios, Fiducia and/or any of their respective subsidiaries to meet their regulatory capital requirements. The Buyer may at its sole and exclusive right pay all or part of the Call Purchase Price by offset or setoff (collectively, the “Setoff”) of any or all amounts due and owing to the Buyer by the Company, including, without limitation, any outstanding amounts due and owing under the Debenture or any other debentures issued to the Buyer under the Original SPA, or under any existing or future instrument, agreement, note, advance, standby equity purchase agreement, pre-paid advance or otherwise. On or prior to the Call Right Closing Date, the Company shall pay, or cause to be paid, any payments triggered by the Call Right or the transactions contemplated thereby (including any costs associated with the change of control, transaction bonuses or employee retention payments); provided that such payments may not be made out of Timios or Fidicua accounts or funds.

(d)Cooperation. The parties hereto shall take all actions as may be reasonably necessary to consummate any sale contemplated by this Section 1, entering into agreements and delivering certificates and instruments and consents as may be deemed necessary or appropriate.

(e)Closing. On the applicable Call Right Closing Date, the Company and/or Timios (as applicable) shall deliver to the Buyer certificates representing the applicable Call Shares, accompanied by stock powers and all necessary stock transfer taxes paid and stamps affixed, if necessary, against receipt of the Call Purchase Price. In exchange for such Call Shares, on the Call Right Closing Date, the Buyer (or its permitted assignee) will pay the Call Purchase Price for the applicable Call Shares (by Setoff or in cash by wire transfer of immediately available funds, as applicable, at the Buyer’s sole and exclusive discretion) on such Call Right Closing Date to an account designated by the Company to Buyer in writing.

(f)Solvency. The representations and warranties of the Company in Section 3(aa) of the SPA are hereby incorporated by reference.

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2.Negative Covenants. From the date hereof until the election of the Buyer to effect the Call Right hereunder, without the prior written consent of the Buyer, the Company shall not, and shall not permit any of its direct or indirect subsidiaries (whether or not a subsidiary on the date hereof), including, but not limited to, Timios, Fiducia and their respective direct and indirect subsidiaries, to (a) directly or indirectly be in violation or breach of, or default under, any Negative Covenant (as defined in the SPA), and (b) amend, restate, modify, terminate or otherwise cancel any of its or their organizational or constituent documents (including, but not limited to, any articles of incorporation or formation, shareholders agreements, bylaws or other operating agreements).

3.Notices.

All notices and other communications given or made pursuant hereto shall be in writing and shall be deemed to have been duly given or made (a) as of the date delivered, if delivered personally, (b) on the date the delivering party receives confirmation, if delivered by email, (c) three (3) business days after being mailed by registered or certified mail (postage prepaid, return receipt requested) or (d) one (1) business day after being sent by overnight courier (providing proof of delivery), to the parties at the following addresses (or at such other address for a party as shall be specified in a notice given in accordance with this Section 3):

If to Buyer:

YA II PN, Ltd.

c/o Yorkville Advisors Global, LP

1012 Springfield Ave

Mountainside, New Jersey 07092

Email: mangelo@yorkvilleadvisors.com

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

Troy J. Rillo

1012 Springfield Avenue

Mountainside, New Jersey 07092

Email: trillo@yorkvilleadvisors.com

If to Company, Timios or Fiducia:

Ideanomics, Inc.

1441 Broadway, Suite #5116

New York NY 10018

Attn: Alfred P. Poor, Chief Executive Officer

Email: apoor@ideanomics.com

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4.             Entire Agreement. This Agreement constitutes the sole and entire agreement of the parties to this Agreement with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings and agreements, both written and oral, with respect to such subject matter.

5.             Successor and Assigns. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns. However, neither this Agreement nor any of the rights or obligations hereunder may otherwise be transferred or assigned by the Company or Timios without the prior written consent of Buyer. The Buyer may assign any or all of its rights and obligations hereunder, including, but not limited to, the Call Right (or any portion of such Call Right thereof), to one or more of its affiliates without the prior written consent of the Company or Timios. Any attempted transfer or assignment in violation of this Section 5 shall be void ab initio.

6.             No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person any legal or equitable right, benefit or remedy of any nature whatsoever, under or by reason of this Agreement.

7.             Headings. The headings in this Agreement are for reference only and shall not affect the interpretation of this Agreement.

8.             Amendment and Modification; Waiver. This Agreement may only be amended, modified or supplemented by an agreement in writing signed by the Company, Timios and the Buyer. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege. The execution of this Agreement shall not constitute a waiver by the Buyer of any previous, current or future breach or default by the Company, Timios, Fiducia or any of their Affiliates under any other agreement, including the SPA, the Debenture or the March 2023 Option.

9.             Severability. If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal or unenforceable, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.

10.           Specific Performance. The parties agree that irreparable damage would occur in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached. Accordingly, the parties agree that, in addition to any other remedies, each party shall be entitled to enforce the terms of this Agreement by a decree of specific performance without the necessity of proving the inadequacy of money damages as a remedy. Each party hereby waives any requirement for the securing or posting of any bond in connection with such remedy. Each party further agrees that the only permitted objection that it may raise in response to any action for equitable relief is that it contests the existence of a breach or threatened breach of this Agreement.

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11.            Governing Law. This Agreement, and all claims or causes of action (whether in contract or tort) that may be based upon, arise out of or relate to this Agreement, or the negotiation, execution or performance of this Agreement (including any claim or cause of action based upon, arising out of or related to any representation or warranty made in or in connection with this Agreement or as an inducement to enter into this Agreement), shall be governed by the internal laws of New York.

12.           Jurisdiction; Court Proceedings; Waiver of Jury Trial. Any dispute against any party to this Agreement arising out of or in any way relating to this Agreement shall be brought in any federal or state court located in the State of New York, New York County and each of the parties hereby submits to the exclusive jurisdiction of such courts for such purpose. Each party irrevocably and unconditionally agrees not to assert (a) any objection which it may ever have to the laying of venue in any federal or state court located in the State of New York, New York County, (b) any claim brought in any such court has been brought in an inconvenient forum or (c) any claim that such court does not have jurisdiction with respect to such dispute. EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT TO A TRIAL BY JURY AND AGREES THAT ANY OF THEM MAY FILE A COPY OF THIS PARAGRAPH WITH ANY COURT AS WRITTEN EVIDENCE OF THE KNOWING, VOLUNTARY AND BARGAINED-FOR AGREEMENT AMONG THE PARTIES IRREVOCABLY TO WAIVE ITS RIGHT TO TRIAL BY JURY IN ANY LITIGATION.

13.           Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which shall together be deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, e-mail or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original signed copy of this Agreement.

14.           No Strict Construction. The parties to this Agreement have participated jointly in the negotiation and drafting of this Agreement. In the event an ambiguity or question of intent or interpretation arises, this Agreement will be construed as if drafted jointly by the parties, and no presumption or burden of proof will arise favoring or disfavoring any party by virtue of the authorship of any of the provisions of this Agreement.

[signature page follows]

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IN WITNESS WHEREOF, the parties hereto have executed this Option Agreement on the date first written above.

COMPANY:
IDEANOMICS, INC.
By:
	Name:
	Title:
TIMIOS:
TIMIOS HOLDINGS CORP.
By:
	Name:
	Title:
FIDUCIA:
FIDUCIA REAL ESTATE SOLUTIONS, INC.
By:
	Name:
	Title:
BUYER:
YA II PN, LTD.
By: Yorkville Advisors Global, LP
Its: Investment Manger
By: Yorkville Advisory Global II, LLC
Its: General Partner
By:
	Name:	Troy Rillo, Esq.
	Title:	Partner

Signature Page to 2^nd A&R Option Agreement

EX-10.3

Exhibit 10.3

Execution Version

Second AMENDMENT TO Secured Debenture Purchase Agreement

This Second Amendment to Secured Debenture Purchase Agreement, dated as of April 17, 2023 (this “Amendment”), is by and among IDEANOMICS, INC., a company incorporated under the laws of the State of Nevada (the “Company”), each of the guarantors listed on Annex I attached hereto, (collectively, the “Guarantors”; the Guarantors, together with the Company, the “Credit Parties”), and YA II PN, LTD., a Cayman Islands exempt corporation (the “Buyer”).

RECITALS

A.       The Company and Buyer entered into a Secured Debenture Purchase Agreement, dated as of October 25, 2022 (as amended, restated, amended and restated, supplemented or modified from time to time, including pursuant to a First Amendment to Secured Debenture Purchase Agreement dated as of March 30, 2023, the “Purchase Agreement”).

B.       The Company desires to amend the Purchase Agreement in accordance with the terms hereof, and the Buyer is willing to do so strictly in accordance with the terms hereof.

TERMS

In consideration of the premises and of the mutual agreements herein contained, the parties agree as follows:

ARTICLE 1.

AMENDMENTS

Upon the Second Amendment Effective Date, the parties hereto agree that the Purchase Agreement is hereby amended in its entirety to the form attached as Exhibit A hereto.

ARTICLE 2.

REPRESENTATIONS

Each Credit Party represents and warrants to the Buyer that:

2.1       The execution, delivery and performance of this Amendment are within such Credit Party’s powers and have been duly authorized by all necessary limited liability company action. This Amendment has been duly executed and delivered by such Credit Party and constitutes a legal, valid and binding obligation of such Credit Party, enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at law.

2.2       The representations and warranties contained in Section 3 of the Purchase Agreement and the representations and warranties contained in the other Transaction Documents, which are qualified by materiality, are true in all respects and the representations and warranties therein that are not qualified by materiality are true in all material respects, on and as of the date hereof (other than such representations and warranties that refer to an earlier date, in which case such representations and warranties are true in all respects, or true in all material respects, as applicable, on and as of such earlier date).

2.3       No Default or Event of Default has occurred and is continuing on the date hereof.

ARTICLE 3.

CONDITIONS PRECEDENT

This Amendment shall become effective as of the date specified in the first paragraph hereof when each of the following conditions is satisfied or waived (the “Second Amendment Effective Date”):

3.1       This Amendment shall be executed by each of the Company and the Buyer.

3.2       The Consent and Agreement attached hereto shall be executed by each of the Guarantors.

ARTICLE 4.

MISCELLANEOUS.

4.1       References in the Purchase Agreement or in any other Transaction Document to the Purchase Agreement shall be deemed to be references to the Purchase Agreement as amended hereby and as further amended from time to time.

4.2       Except as expressly amended hereby, the Company acknowledges and agrees that (a) the Purchase Agreement and all other Transaction Documents to which it is a party are ratified and confirmed and shall remain in full force and effect, (b) it has no setoff, counterclaim, defense or other claim or dispute with respect to any Transaction Document, (c) the security interests and other Liens created by the Credit Parties under the Security Documents continue in full force and effect after giving effect to this Amendment (for clarity, excluding the security interests granted by Solectrac, Inc.), and secure, in addition to other obligations described as secured thereby, all Obligations (as defined in the Secured Debenture issued by the Company in favor of the Buyer on the Second Amendment Effective Date, and as hereinafter used), and (d) the guaranties granted by the Credit Parties under the Guaranty continue in full force and effect after giving effect to this Amendment, and guaranty, in addition to other obligations described as being guarantied thereby, all Obligations.

4.3       This Amendment shall be governed by and construed in accordance with the laws of the State of New York. This Amendment shall not be deemed to have otherwise prejudiced any present or future right or rights which the Buyer now has or may have under the Purchase Agreement or in any other Transaction Document and, in addition, shall not entitle the Company to a waiver, amendment, modification or other change to, of or in respect of any provision of the Purchase Agreement or in any other Transaction Document in the future in similar or dissimilar circumstances. This Amendment may be signed upon any number of counterparts with the same effect as if the signatures thereto and hereto were upon the same instrument. Terms used but not defined herein shall have the respective meanings ascribed thereto in the Purchase Agreement, as amended hereby. This Amendment is a Transaction Document.

[Remainder of Page Intentionally Left Blank]

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              IN WITNESS WHEREOF, the parties signing this Amendment have caused this Amendment to be executed and delivered as of the day and year first above written.

COMPANY
IDEANOMICS, INC.
By:
Name:
Title:
BUYER
YA II PN, LTD.
By:	Yorkville Advisors Global, LP
Its:	Investment Manager
	By: Yorkville Advisors Global II, LLC
	Its: General Partner
By:
Name:
Title:

Signature Page to

Second Amendment to Secured Debenture Purchase Agreement

CONSENT AND AGREEMENT

As of the date and year first above written:

(a)       Each of the undersigned hereby fully consents to the terms and provisions of the above Amendment and the consummation of the transactions contemplated hereby and acknowledges and agrees to all of the representations, covenants, terms and provisions of the above Amendment applicable to it.

(b)        Each of the undersigned hereby represents and warrants to the Buyer that (i) the execution, delivery and performance of this Consent and Agreement are within its powers and have been duly authorized by all necessary action, and (ii) this Consent and Agreement has been duly executed and delivered by it and constitutes a legal, valid and binding obligation of it, enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at law.

(c)       Except as expressly amended hereby, each of the undersigned hereby acknowledges and agrees that (i) the Purchase Agreement and all Transaction Documents to which it is a party are ratified and confirmed and shall remain in full force and effect, (ii) it has no set off, counterclaim, defense or other claim or dispute with respect to any Transaction Document; and (iii) notwithstanding anything to the contrary in any Transaction Document, the term “Obligations” as used and defined in the Guaranty and any Security Document executed by each of the undersigned shall include all Obligations of the Company under the Purchase Agreement and the other Transaction Documents.

(d)       Each of the undersigned hereby acknowledges that its consent and agreement hereto is a condition to the Buyer’s agreement pursuant to the above Amendment and it is in its interest and to its financial benefit to execute this consent and agreement. Terms used but not defined herein shall have the respective meanings ascribed thereto in the Purchase Agreement described in the above Second Amendment to Secured Debenture Purchase Agreement.

US HYBRID CORPORATION
By:
	Name:
	Title:

Annex I

SOLECTRAC, INC.
By:
	Name:
	Title:

Annex I

JUSTLY HOLDINGS INC.
JUSTLY MARKETS LLC
By:
	Name:
	Title:

Annex I

FIDUCIA REAL ESTATE SOLUTIONS, INC.

TIMIOS HOLDINGS CORP.

TIMIOS, INC.

TIMIOS AGENCY OF ALABAMA INC.

TIMIOS AGENCY OF ARKANSAS, INC.

TIMIOS AGENCY OF NEVADA INC.

TIMIOS AGENCY OF UTAH INC.

TIMIOS HAWAII, INC.

TIMIOS APPRAISAL MANAGEMENT, INC.

TIMIOS TITLE, A CALIFORNIA CORPORATION

CRESTVIEW ASSET MANAGEMENT SERVICES

LLC

CELER SETTLEMENTS, LLC

CELER ESCROW COMPANY

By:
	Name:
	Title:

Annex I

WIRELESS ADVANCED VEHICLE ELECTRIFICATION, LLC

BY: IDEANOMICS, INC.

ITS: SOLE MEMBER

By:
	Name:
	Title:

Annex I

Annex I

(Guarantors)

Pledgor	Type of Entity	Jurisdiction of Organization
US Hybrid Corporation	Corporation	Delaware
Solectrac, Inc.	Corporation	California
Justly Holdings Inc.	Corporation	Delaware
Justly Markets LLC	Limited liability company	Delaware
Timios Holdings Corp.	Corporation	Delaware
Fiducia Real Estate Solutions, Inc.	Corporation	Delaware
Timios, Inc.	Corporation	Delaware
Timios Appraisal Management, Inc.	Corporation	Delaware
Crestview Asset Management Services LLC	Limited liability company	Utah
Timios Title, a California Corporation	Corporation	California
Timios Agency of Alabama Inc.	Corporation	Alabama
Timios Agency of Nevada Inc.	Corporation	Nevada
Timios Agency of Utah Inc.	Corporation	Utah
Timios Agency of Arkansas, Inc.	Corporation	Arkansas
Timios Hawaii, Inc.	Corporation	Hawaii
Celer Escrow Company	Corporation	California
Celer Settlements, LLC	Limited liability company	Delaware
Wireless Advanced Vehicle Electrification, LLC	Limited liability company	Delaware

Annex I

Exhibit A

Exhibit A

Execution Version

SECURED DEBENTURE PURCHASE AGREEMENT

THIS SECURED DEBENTURE PURCHASE AGREEMENT (this “Agreement”), dated as of October 25, 2022, is by and between IDEANOMICS, INC., a company incorporated under the laws of the State of Nevada, with principal executive offices located at 1441 Broadway, Suite #5116, New York, NY 10018 (the “Company”), and the investor (the “Buyer”) listed on the Buyer Schedule attached hereto.

WITNESSETH

WHEREAS, the Company and the Buyer desire to enter into this transaction for the Company to sell and the Buyer to purchase the Convertible Debentures (as defined herein) pursuant to an exemption from registration pursuant to Section 4(a)(2) and/or Rule 506 of Regulation D (“Regulation D”) as promulgated by the U.S. Securities and Exchange Commission (the “SEC”) under the Securities Act of 1933, as amended (the “Securities Act”);

WHEREAS, the parties desire that, upon the terms and subject to the conditions contained herein, the Company shall issue and sell to the Buyer, as provided herein, and the Buyer shall purchase, secured debentures in the form attached hereto as “Exhibit A” (the “Convertible Debentures”) in the principal amount to be mutually agreed (the “Subscription Amount”), which may or may not, as mutually agreed upon by the parties and as set forth in the applicable Convertible Debenture, be convertible into shares of the Company’s common stock, par value $0.001 per share (the “Common Stock”) (as converted, the “Conversion Shares”), of which (a) $6,500,000 of principal amount shall be purchased upon the signing of this Agreement (the “First Closing”), (b) $1,400,000 of principal amount shall be purchased upon the First Amendment Effective Date (the “Second Closing”), and (c) $750,000 of principal amount shall be purchased upon the Second Amendment Effective Date (the “Third Closing”); the First Closing, the Second Closing, the Third Closing and each subsequent closing are each individually referred to as a “Closing” and collectively referred to as the “Closings”), in the amounts set forth opposite the Buyer’s name on the Buyer Schedule at a purchase price set forth on the Buyer Schedule (the “Purchase Price”);

WHEREAS, contemporaneously with the execution and delivery of this Agreement, the Company and certain of its subsidiaries are entering into, executing and delivering to the Buyer the Security Documents (as defined herein) pursuant to which the Company and certain of its subsidiaries have agreed to provide a first priority lien on their respective assets as security for certain obligations of the Company to the Buyer;

WHEREAS, on the Second Amendment Effective Date, the Company, Timios Holdings Corp., a Delaware corporation and wholly-owned Subsidiary of the Company (“Timios”), and Fiducia Real Estate Solutions, Inc., a Delaware corporation and wholly-owned Subsidiary of the Timios (“Fiducia”) are entering into, executing and delivering to the Buyer an option (the “Subsidiary Option”) to acquire, inter alia, one hundred percent (100%) of the then issued and outstanding common stock of Timios or Fiducia at the time of exercise of such Subsidiary Option;

WHEREAS, as of the Second Amendment Effective Date, the Company, Timios, Fiducia, and certain other parties thereto, are contemplating entering into a stock purchase agreement (the “Subsidiary Purchase Agreement”) to acquire, inter alia, one hundred percent (100%) of the then issued and outstanding common stock of Fiducia for a purchase price of $3,500,000 (the “Subsidiary Purchase Price”); and

WHEREAS, the Convertible Debentures and the Conversion Shares are collectively referred to herein as the “Securities.”

AGREEMENT

NOW, THEREFORE, in consideration of the premises and the mutual covenants contained herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Company and the Buyer hereby agree as follows:

1. PURCHASE AND SALE OF CONVERTIBLE DEBENTURES

(a)Purchase of Convertible Debentures. Subject to the satisfaction (or waiver) of the conditions set forth in Sections 6 and 7 below, the Company shall issue and sell to the Buyer, and the Buyer agrees to purchase from the Company at each Closing a Convertible Debenture with principal amount corresponding to the Subscription Amount set forth opposite the Buyer’s name on the Buyer Schedule.

(b)Closing Dates. Each Closing shall occur electronically at the offices Yorkville Advisors Global, LP, 1012 Springfield Avenue, Mountainside, NJ 07092. The date and time of each Closing shall be as follows: (i) the First Closing shall be 10:00 a.m., New York time, on the date of this Agreement (the “First Closing Date”), and (ii) each Closing after the First Closing shall be 10:00 a.m., New York time, on a Business Day to be mutually agreed (each such date, together with the First Closing Date, each individually referred to as a “Closing Date” and collectively referred to as the “Closing Dates”) on or after the date the Company receives Cap Approval.

(c)Form of Payment; Deliveries. Subject to the satisfaction of the terms and conditions of this Agreement, on each Closing Date, (i) the Buyer shall deliver to the Company the Purchase Price for the Convertible Debenture to be issued and sold to the Buyer at such Closing, minus any fees or expenses to be paid directly from the proceeds of such Closing as set forth herein, and (ii) the Company shall deliver to the Buyer the Convertible Debenture which the Buyer is purchasing at such Closing with a principal amount corresponding with the Subscription Amount set forth opposite the Buyer’s name on the Buyer Schedule, duly executed on behalf of the Company; provided, however, that $400,000 of the Purchase Price to be paid by Buyer in connection with the Second Closing shall be deemed to satisfy the outstanding balance of that certain Promissory Note in the original principal amount of $400,000 issued by the Company to the Buyer on or about March 29, 2023, and the Company hereby authorizes the Buyer to apply such portion of the Purchase Price to such obligations in lieu of delivering such portion of the Purchase Price to the Company.

(d)Maximum Shares. Notwithstanding anything in this Agreement to the contrary, the Company shall not issue any Common Stock pursuant to the transactions contemplated hereby or any other Transaction Documents (including the Conversion Shares) if the issuance of such shares of Common Stock would exceed the aggregate number of shares of Common Stock that the Company may issue in this transaction in compliance with the Company’s obligations under the rules or regulations of Nasdaq Stock Market (“Principal Market”) (the number of shares which may be issued without violating such rules and regulations shall be referred to as the “Exchange Cap”), except that such limitation shall not apply in the event that the Company (A) obtains the approval of its stockholders as required by the applicable rules of the Principal Market for issuances of shares of Common Stock in excess of such amount (“Cap Approval”) or (B) obtains a written opinion from outside counsel to the Company that such approval is not required, which opinion shall be reasonably satisfactory to the Buyer.

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2. BUYER’S REPRESENTATIONS AND WARRANTIES.

The Buyer represents and warrants to the Company with respect to only itself that, as of the date hereof and as of each Closing Date:

(a) Investment Purpose. The Buyer is acquiring the Securities for its own account for investment purposes and not with a view towards, or for resale in connection with, the public sale or distribution thereof, except pursuant to sales registered under or exempt from the registration requirements of the Securities Act; provided, however, that by making the representations herein, the Buyer does not agree, or make any representation or warranty, to hold any of the Securities for any minimum or other specific term and reserves the right to dispose of the Securities at any time in accordance with applicable law.

(b)Accredited Investor Status. The Buyer is an “Accredited Investor” as that term is defined in Rule 501(a)(3) of Regulation D.

(c)Reliance on Exemptions. The Buyer understands that the Securities are being offered and sold to it in reliance on specific exemptions from the registration requirements of United States federal and state securities laws and that the Company is relying in part upon the truth and accuracy of, and the Buyer’s compliance with, the representations, warranties, agreements, acknowledgments and understandings of the Buyer set forth herein in order to determine the availability of such exemptions and the eligibility of the Buyer to acquire the Securities.

(d)Transfer or Resale. The Buyer understands that the Securities have not been registered under the Securities Act or any state securities laws, and may not be offered for sale, sold, assigned or transferred unless subsequently registered under the Securities Act, or otherwise sold pursuant to an exemption from registration under the Securities Act.

(e)Legends. The Buyer agrees to the imprinting, so long as it is required by this Section 2(e), of a restrictive legend on the Securities in substantially the following form:

THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT UNDER ANY CIRCUMSTANCES BE SOLD, TRANSFERRED, OR OTHERWISE DISPOSED OF WITHOUT AN EFFECTIVE REGISTRATION STATEMENT FOR SUCH SECURITIES UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND ANY OTHER APPLICABLE SECURITIES LAWS.

Certificates evidencing the Conversion Shares shall not contain any legend (including the legend set forth above) (i) while a registration statement covering the resale of such security is effective under the Securities Act, (ii) following any sale of such Conversion Shares pursuant to Rule 144, (iii) if such Conversion Shares are eligible for sale under Rule 144, or (iv) if such legend is not required under applicable requirements of the Securities Act (including judicial interpretations and pronouncements issued by the staff of the SEC). The Buyer agrees that the removal of restrictive legend from certificates representing Securities as set forth in this Section 2(e) is predicated upon the Company’s reliance that the Buyer will sell any Securities pursuant to either the registration requirements of the Securities Act, including any applicable prospectus delivery requirements, or an exemption therefrom, and that if Securities are sold pursuant to a registration statement, they will be sold in compliance with the plan of distribution set forth therein.

(f)Organization; Authority. The Buyer is an entity duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization with the requisite power and authority to enter into and to consummate the transactions contemplated by the Transaction Documents to which it is a party and otherwise to carry out its obligations hereunder and thereunder.

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3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.

Except as disclosed in the SEC Documents, the Company hereby makes the representations and warranties set forth below to the Buyer as of the date hereof and as of each Closing:

(a)Organization and Qualification. The Company and each of its Subsidiaries are entities duly formed, validly existing and in good standing under the laws of the jurisdiction in which they are formed, and have the requisite power and authority to own their properties and to carry on their business as now being conducted and as presently proposed to be conducted. The Company and each of its Subsidiaries is duly qualified as a foreign entity to do business, as applicable, and is in good standing in every jurisdiction in which its ownership of property or the nature of the business conducted by it makes such qualification necessary, except to the extent that the failure to be so qualified or be in good standing would not reasonably be expected to have a Material Adverse Effect.

(b)Authorization; Enforcement; Validity. The Company has the requisite power and authority to enter into and perform its obligations under this Agreement and the other Transaction Documents and to issue the Securities in accordance with the terms hereof and thereof. The execution and delivery of this Agreement and the other Transaction Documents by the Company and the consummation by the Company of the transactions contemplated hereby and thereby (including, without limitation, the issuance of the Convertible Debentures, the reservation for issuance and issuance of the Conversion Shares issuable upon conversion of the Convertible Debentures), have been duly authorized by the Company’s board of directors and no further filing, consent or authorization is required by the Company, its board of directors or its stockholders or other governmental body. This Agreement has been, and the other Transaction Documents to which the Company is a party will be prior to the Closing, duly executed and delivered by the Company, and each constitutes the legal, valid and binding obligations of the Company, enforceable against the Company in accordance with its respective terms, except as such enforceability may be limited by general principles of equity or applicable bankruptcy, insolvency, reorganization, moratorium, liquidation or similar laws relating to, or affecting generally, the enforcement of applicable creditors’ rights and remedies and except as rights to indemnification and to contribution may be limited by federal or state securities law.

(c)Issuance of Securities. The issuance of the Securities are duly authorized and, upon issuance and payment in accordance with the terms of the Transaction Documents the Securities shall be validly issued, fully paid and non-assessable and free from all preemptive or similar rights, mortgages, defects, claims, liens, pledges, charges, taxes, rights of first refusal, encumbrances, security interests and other encumbrances (collectively, “Liens”) with respect to the issuance thereof. As of each Closing Date, the Company shall have reserved from its duly authorized capital stock not less than 300% of the maximum number of shares of Common Stock issuable upon conversion of all Convertible Debentures (assuming for purposes hereof that (x) such Convertible Debentures are convertible at the Conversion Price (as defined therein) as of the date of determination, and (y) any such conversion shall not take into account any limitations on the conversion of the Convertible Debentures set forth therein, including the Floor Price (as defined therein)). Upon issuance or conversion in accordance with the Convertible Debentures, the Conversion Shares, when issued, will be validly issued, fully paid and nonassessable and free from all preemptive or similar rights or Liens with respect to the issue thereof, with the holders being entitled to all rights accorded to a holder of Common Stock.

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(d)No Conflicts. The execution, delivery and performance of the Transaction Documents by the Company and the consummation by the Company of the transactions contemplated hereby and thereby (including, without limitation, the issuance of the Convertible Debentures, the Conversion Shares, and the reservation for issuance of the Conversion Shares) will not (i) result in a violation of the Articles of Incorporation, Bylaws, certificate of formation, memorandum of association, articles of association, bylaws or other organizational documents of the Company or any of its Subsidiaries, or any capital stock or other securities of the Company or any of its Subsidiaries, (ii) conflict with, or constitute a default under, or give to others any rights of termination, amendment, acceleration or cancellation of, any agreement, indenture or instrument to which the Company or any of its Subsidiaries is a party, or (iii) result in a violation of any law, rule, regulation, order, judgment or decree (including, without limitation, U.S. federal and state securities laws and regulations, the securities laws of the jurisdictions of the Company’s incorporation or in which it or its subsidiaries operate and the rules and regulations of the Principal Market and including all applicable laws, rules and regulations of the State of incorporation of the Company) applicable to the Company or any of its Subsidiaries or by which any property or asset of the Company or any of its Subsidiaries is bound or affected, except in the case of clauses (ii) and (iii) for any conflict, default, right or violation that would not reasonably be expected to result in a Material Adverse Effect.

(e)Consents. The Company is not required to obtain any material consent from, authorization or order of, or make any filing or registration with (other than any filings as may be required by any federal or state securities agencies and any filings as may be required by the Principal Market), any Governmental Authority or any regulatory or self-regulatory agency or any other Person in order for it to execute, deliver or perform any of its obligations under or contemplated by the Transaction Documents, in each case, in accordance with the terms hereof or thereof. All consents, authorizations, orders, filings and registrations which the Company or any Subsidiary is required to obtain pursuant to the preceding sentence have been or will be obtained or effected on or prior to each Closing Date, and neither the Company nor any of its Subsidiaries is aware of any facts or circumstances which might prevent the Company or any of its Subsidiaries from obtaining or effecting any of the registration, application or filings contemplated by the Transaction Documents. The Company is not in violation of the requirements of the Principal Market and has no knowledge of any facts or circumstances which could reasonably lead to delisting or suspension of the Common Stock in the foreseeable future. The Company has notified the Principal Market of the issuance of all of the Securities hereunder, which does not require obtaining the approval of the stockholders of the Company or any other Person or Governmental Authority, and the Principal Market has completed its review of the related Listing of Additional Share form.

(f)Acknowledgment Regarding Buyer’s Purchase of Securities. The Company acknowledges and agrees that the Buyer is acting solely in the capacity of an arm’s length purchaser with respect to the Transaction Documents and the transactions contemplated hereby and thereby and that the Buyer is not (i) an officer or director of the Company or any of its Subsidiaries, (ii) to its knowledge, an “affiliate” (as defined in Rule 144 promulgated under the 1933 Act (or a successor rule thereto) (collectively, “Rule 144”)) of the Company or any of its Subsidiaries or (iii) to its knowledge, a “beneficial owner” of more than 10% of the shares of Common Stock (as defined for purposes of Rule 13d-3 of the 1934 Act). The Company further acknowledges that the Buyer (or any affiliate of the Buyer) is not acting as a financial advisor or fiduciary of the Company or any of its Subsidiaries (or in any similar capacity) with respect to the Transaction Documents and the transactions contemplated hereby and thereby, and any advice given by the Buyer or any of its representatives or agents in connection with the Transaction Documents and the transactions contemplated hereby and thereby is merely incidental to the Buyer’s purchase of the Securities. The Company further represents to the Buyer that the Company’s decision to enter into the Transaction Documents to which it is a party has been based solely on the independent evaluation by the Company and its representatives.

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(g)No Integrated Offering. None of the Company, its Subsidiaries or any of their affiliates, nor any Person acting on their behalf has, directly or indirectly, made any offers or sales of any security or solicited any offers to buy any security, under circumstances that would cause this offering of the Securities to require approval of stockholders of the Company under any applicable stockholder approval provisions, including, without limitation, under the rules and regulations of any exchange or automated quotation system on which any of the securities of the Company are listed or designated for quotation. None of the Company, its Subsidiaries, their affiliates nor any Person acting on their behalf will take any action or steps that would cause the offering of any of the Securities to be integrated with other offerings of securities of the Company.

(h)Dilutive Effect. The Company understands and acknowledges that the number of Conversion Shares will increase in certain circumstances. The Company further acknowledges its obligation to issue the Conversion Shares upon conversion of the Convertible Debentures in accordance with the terms thereof is, absolute and unconditional regardless of the dilutive effect that such issuance may have on the ownership interests of other stockholders of the Company.

(i)Application of Takeover Protections; Rights Agreement. The Company and its board of directors have taken all necessary action, if any, in order to render inapplicable any control share acquisition, interested stockholder, business combination, poison pill (including, without limitation, any distribution under a rights agreement), stockholder rights plan or other similar anti-takeover provision under the Articles of Incorporation, Bylaws or other organizational documents or the laws of the jurisdiction of its incorporation or otherwise which is or could become applicable to the Buyer as a result of the transactions contemplated by this Agreement, including, without limitation, the Company’s issuance of the Securities and the Buyer’s ownership of the Securities.

(j)SEC Documents; Financial Statements. Other than with respect to the Form 10-Q for the quarters ended September 30, 2021, March 31,2022 and June 30, 2022 and the Form 10-K for the year ended December 31, 2022, during the two (2) years prior to the Second Amendment Effective Date, the Company has timely filed all reports, schedules, forms, proxy statements, statements and other documents required to be filed by it with the SEC pursuant to the reporting requirements of the Securities Exchange Act of 1934, as amended (the “1934 Act”) (all of the foregoing filed prior to the Second Amendment Effective Date and all exhibits and appendices included therein and financial statements, notes and schedules thereto and documents incorporated by reference therein being hereinafter referred to as the “SEC Documents”). The Company has delivered or has made available to the Buyer or its representatives true, correct and complete copies of each of the SEC Documents not available on the EDGAR system. As of their respective dates, the SEC Documents complied in all material respects with the requirements of the 1934 Act and the rules and regulations of the SEC promulgated thereunder applicable to the SEC Documents, and none of the SEC Documents, at the time they were filed with the SEC, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. As of their respective dates, the financial statements of the Company included in the SEC Documents complied in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto as in effect as of the time of filing. Such financial statements have been prepared in accordance with generally accepted accounting principles (“GAAP”), consistently applied, during the periods involved (except (i) as may be otherwise indicated in such financial statements or the notes thereto, or (ii) in the case of unaudited interim statements, to the extent they may exclude footnotes or may be condensed or summary statements) and fairly present in all material respects the financial position of the Company as of the dates thereof and the results of its operations and cash flows for the periods then ended (subject, in the case of unaudited statements, to normal year-end audit adjustments which will not be material, either individually or in the aggregate). The reserves, if any, established by the Company or the lack of reserves, if applicable, are reasonable based upon facts and circumstances known by the Company on the Second Amendment Effective Date and there are no loss contingencies that are required to be accrued by the Statement of Financial Accounting Standard No. 5 of the Financial Accounting Standards Board which are not provided for by the Company in its financial statements or otherwise. No other information provided by or on behalf of the Company to the Buyer which is not included in the SEC Documents contains any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein not misleading, in the light of the circumstance under which they are or were made. The Company is not currently contemplating to amend or restate any of the financial statements (including, without limitation, any notes or any letter of the independent accountants of the Company with respect thereto) included in the SEC Documents (the “Financial Statements”), nor is the Company currently aware of facts or circumstances which would require the Company to amend or restate any of the Financial Statements, in each case, in order for any of the Financials Statements to be in compliance with GAAP and the rules and regulations of the SEC. The Company has not been informed by its independent accountants that they recommend that the Company amend or restate any of the Financial Statements or that there is any need for the Company to amend or restate any of the Financial Statements.

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(k)Absence of Certain Changes. Since the date of the Company’s most recent audited financial statements contained in a Form 10-K, there has been no Material Adverse Effect, nor any event or occurrence specifically affecting the Company or its Subsidiaries that would be reasonably expected to result in a Material Adverse Effect. Since the date of the Company’s most recent audited financial statements contained in a Form 10-K, neither the Company nor any of its Subsidiaries has (i) declared or paid any dividends, (ii) sold any material assets, individually or in the aggregate, outside of the ordinary course of business or (iii) made any material capital expenditures, individually or in the aggregate, outside of the ordinary course of business. Neither the Company nor any of its Subsidiaries has taken any steps to seek protection pursuant to any law or statute relating to bankruptcy, insolvency, reorganization, receivership, liquidation or winding up, nor does the Company or any Subsidiary have any knowledge or reason to believe that any of their respective creditors intend to initiate involuntary bankruptcy proceedings or any actual knowledge of any fact which would reasonably lead a creditor to do so.

(l)No Undisclosed Events, Liabilities, Developments or Circumstances. No event, liability, development or circumstance has occurred or exists, or is reasonably expected to exist or occur specific to the Company, any of its Subsidiaries or any of their respective businesses, properties, liabilities, prospects, operations (including results thereof) or condition (financial or otherwise), that has not been publicly disclosed and would reasonably be expected to have a Material Adverse Effect.

(m)Conduct of Business; Regulatory Permits. Neither the Company nor any of its Subsidiaries is in violation of any term under its Articles of Incorporation or other organizational document, bylaws, any certificate of designation, preferences or rights of any other outstanding series of preferred stock of the Company or any of its Subsidiaries or Bylaws. Neither the Company nor any of its Subsidiaries is in violation of any judgment, decree or order or any statute, ordinance, rule or regulation applicable to the Company or any of its Subsidiaries, and neither the Company nor any of its Subsidiaries will conduct its business in violation of any of the foregoing, except in all cases for violations which would not reasonably be expected to have a Material Adverse Effect. Without limiting the generality of the foregoing, the Company is not in violation of any of the rules, regulations or requirements of the Principal Market and has no knowledge of any facts or circumstances that could reasonably lead to delisting or suspension of the Common Stock by the Principal Market in the foreseeable future. During the one year prior to the Second Amendment Effective Date, (i) the Common Stock has been listed or designated for quotation on the Principal Market, (ii) trading in the Common Stock has not been suspended by the SEC or the Principal Market and (iii) the Company has received no communication, written or oral, from the SEC or the Principal Market regarding the suspension or delisting of the Common Stock from the Principal Market, which has not been publicly disclosed. The Company and each of its Subsidiaries possess all certificates, authorizations and permits issued by the appropriate regulatory authorities necessary to conduct their respective businesses, except where the failure to possess such certificates, authorizations or permits would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, and neither the Company nor any of its Subsidiaries has received any notice of proceedings relating to the revocation or modification of any such certificate, authorization or permit. There is no agreement, commitment, judgment, injunction, order or decree binding upon the Company or any of its Subsidiaries or to which the Company or any of its Subsidiaries is a party which has or would reasonably be expected to have the effect of prohibiting or materially impairing any business practice of the Company or any of its Subsidiaries, any acquisition of property by the Company or any of its Subsidiaries or the conduct of business by the Company or any of its Subsidiaries as currently conducted other than such effects, individually or in the aggregate, which have not had and would not reasonably be expected to have a Material Adverse Effect on the Company or any of its Subsidiaries.

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(n)Foreign Corrupt Practices. Neither the Company nor any of its Subsidiaries nor any director, officer, agent, employee, nor any other person acting for or on behalf of the Company or any of its Subsidiaries (individually and collectively, a “Company Affiliate”) have violated the U.S. Foreign Corrupt Practices Act (the “FCPA”) or any other applicable anti-bribery or anti-corruption laws, nor has any Company Affiliate offered, paid, promised to pay, or authorized the payment of any money, or offered, given, promised to give, or authorized the giving of anything of value, to any officer, employee or any other person acting in an official capacity for any Governmental Authority to any political party or official thereof or to any candidate for political office (individually and collectively, a “Government Official”) or to any person under circumstances where such Company Affiliate knew or was aware of a high probability that all or a portion of such money or thing of value would be offered, given or promised, directly or indirectly, to any Government Official, for the purpose, in violation of applicable law, of: (i) (A) influencing any act or decision of such Government Official in his/her official capacity, (B) inducing such Government Official to do or omit to do any act in violation of his/her lawful duty, (C) securing any improper advantage, or (D) inducing such Government Official to influence or affect any act or decision of any Governmental Authority, or (ii) assisting the Company or its Subsidiaries in obtaining or retaining business for or with, or directing business to, the Company or its Subsidiaries.

(o)Equity Capitalization. As of the Second Amendment Effective Date, the authorized capital of the Company consists of 1,500,000,000 shares of common stock, par value $0.001 per share, and 50,000,000 shares are undesignated preferred stock. As of the Second Amendment Effective Date, the Company had 787,022,216 shares of common stock outstanding and 7,000,000 shares of preferred stock outstanding. The Common Stock is registered pursuant to Section 12(b) of the Exchange Act and is currently listed on the Nasdaq under the trading symbol “IDEX.” The Company has taken no action designed to, or reasonably likely to have the effect of, terminating the registration of the Common Stock under the Exchange Act, delisting the Common Stock from the Nasdaq, nor has the Company received any notification that the Commission or the Nasdaq is contemplating terminating such registration or listing, other than as publicly disclosed. To the Company’s knowledge, it is in compliance with all applicable listing requirements of the Nasdaq other than as publicly disclosed.

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(p)Existing Securities; Obligations. Except as disclosed in the SEC Documents: (A) none of the Company’s or any Subsidiary’s shares, interests or capital stock is subject to preemptive rights or any other similar rights or Liens suffered or permitted by the Company or any Subsidiary; (B) there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any shares, interests or capital stock of the Company or any of its Subsidiaries, or contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to issue additional shares, interests or capital stock of the Company or any of its Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any shares, interests or capital stock of the Company or any of its Subsidiaries; (C) there are no agreements or arrangements under which the Company or any of its Subsidiaries is obligated to register the sale of any of their securities under the 1933 Act (except pursuant to this Agreement); (D) there are no outstanding securities or instruments of the Company or any of its Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to redeem a security of the Company or any of its Subsidiaries; (E) there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; and (G) neither the Company nor any Subsidiary has any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement.

(q)Organizational Documents. The Company has furnished to the Buyer or filed on EDGAR true, correct and complete copies of the Company’s Articles of Incorporation, as amended and as in effect on the Second Amendment Effective Date (the “Articles of Incorporation”), and the Company’s bylaws, as amended and as in effect on the Second Amendment Effective Date (the “Bylaws”), and the terms of all convertible securities and the material rights of the holders thereof in respect thereto.

(r)Litigation. Except as disclosed in the SEC Documents, there is no action, suit, arbitration, proceeding, inquiry or investigation before or by the Principal Market, any court, public board, other Governmental Authority, self-regulatory organization or body pending or, to the knowledge of the Company, threatened against or affecting the Company or any of its Subsidiaries, the Common Stock or any of the Company’s or its Subsidiaries’ officers or directors, whether of a civil or criminal nature or otherwise, in their capacities as such, which would reasonably be expected to result in a Material Adverse Effect. After reasonable inquiry of its employees, the Company is not aware of any event which might result in or form the basis for any such action, suit, arbitration, investigation, inquiry or other proceeding. Without limitation of the foregoing, except as disclosed in the SEC Documents, there has not been, and to the knowledge of the Company, there is not pending or contemplated, any investigation by the SEC involving the Company, any of its Subsidiaries or any current or former director or officer of the Company or any of its Subsidiaries. Neither the Company nor any of its Subsidiaries is the subject of any order, writ, judgment, injunction, decree, determination or award of any Governmental Authority that would reasonably be expected to result in a Material Adverse Effect.

(s)Insurance. The Company and each of its Subsidiaries are insured by insurers of recognized financial responsibility against such losses and risks and in such amounts as management of the Company believes to be prudent and customary in the businesses in which the Company and its Subsidiaries are engaged. In accordance with the previous sentence, the Company currently maintains no insurance policies. Neither the Company nor any such Subsidiary has been refused any insurance coverage sought or applied for, and neither the Company nor any such Subsidiary has any reason to believe that it will be unable to renew its existing insurance coverage as and when such coverage expires or to obtain similar coverage from similar insurers as may be necessary to continue its business at a cost that would not have a Material Adverse Effect.

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(t) Manipulation of Price. Neither the Company nor any of its Subsidiaries has, and, to the knowledge of the Company, no Person acting on their behalf has, directly or indirectly, (i) taken any action designed to cause or to result in the stabilization or manipulation of the price of any security of the Company or any of its Subsidiaries to facilitate the sale or resale of any of the Securities, (ii) sold, bid for, purchased, or paid any compensation for soliciting purchases of, any of the Securities, or (iii) paid or agreed to pay to any Person any compensation for soliciting another to purchase any other securities of the Company or any of its Subsidiaries.

(u)Shell Company Status. The Company is not, and has never been, an issuer identified in, or subject to, Rule 144(i).

(v)Sanctions Matters.  Neither the Company nor any of its Subsidiaries or, to the knowledge of the Company, any director, officer or controlled affiliate of the Company or any director or officer of any Subsidiary, is a Person that is, or is owned or controlled by a Person that is (i) the subject of any sanctions administered or enforced by the U.S. Department of Treasury’s Office of Foreign Asset Control (“OFAC”), the United Nations Security Council, the European Union, Her Majesty’s Treasury, or other relevant sanctions authorities, including, without limitation, designation on OFAC’s Specially Designated Nationals and Blocked Persons List or OFAC’s Foreign Sanctions Evaders List or other relevant sanctions authority (collectively, “Sanctions”), or (ii) located, organized or resident in a country or territory that is the subject of Sanctions that broadly prohibit dealings with that country or territory (including, without limitation, the Crimea, Zaporizhzhia and Kherson regions, the Donetsk People’s Republic and Luhansk People’s Republic in Ukraine, Cuba, Iran, North Korea, Russia, Sudan and Syria (the “Sanctioned Countries”)). Neither the Company nor any of its Subsidiaries nor any director, officer or controlled affiliate of the Company or any of its Subsidiaries, has ever had funds blocked by a United States bank or financial institution, temporarily or otherwise, as a result of OFAC concerns.

(w)Neither the Company nor any of its Subsidiaries will, directly or indirectly, use the proceeds from the sale of Securities, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person (a) for the purpose of funding or facilitating any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions or is a Sanctioned Country, or (b) in any other manner that will result in a violation of Sanctions or applicable laws by any Person (including any Person participating in the transactions contemplated by this Agreement, whether as underwriter, advisor, investor or otherwise). For the past five (5) years, neither the Company nor any of its Subsidiaries has engaged in, and is now not engaged in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions or was a Sanctioned Country. 

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(x)Disclosure. The Company confirms that neither it nor any other Person acting on its behalf has provided the Buyer or its agents or counsel with any information that constitutes or could reasonably be expected to constitute material, non-public information concerning the Company or any of its Subsidiaries, other than the existence of the transactions contemplated by this Agreement and the other Transaction Documents. The Company understands and confirms that the Buyer will rely on the foregoing representations in effecting transactions in securities of the Company. All disclosures provided to the Buyer regarding the Company and its Subsidiaries, their businesses and the transactions contemplated hereby, including the schedules to this Agreement, furnished by or on behalf of the Company or any of its Subsidiaries, taken as a whole, are true and correct and does not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements made therein, in the light of the circumstances under which they were made, not misleading. All of the written information furnished after the date hereof by or on behalf of the Company or any of its Subsidiaries to the Buyer pursuant to or in connection with this Agreement and the other Transaction Documents, taken as a whole, will be true and correct in all material respects as of the date on which such information is so provided and will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements made therein, in the light of the circumstances under which they were made, not misleading. No event or circumstance has occurred or information exists with respect to the Company or any of its Subsidiaries or its or their business, properties, liabilities, prospects, operations (including results thereof) or conditions (financial or otherwise), which, under applicable law, rule or regulation, requires public disclosure at or before the Second Amendment Effective Date or announcement by the Company but which has not been so publicly disclosed. All financial projections and forecasts that have been prepared by or on behalf of the Company or any of its Subsidiaries and made available to the Buyer have been prepared in good faith based upon reasonable assumptions and represented, at the time each such financial projection or forecast was delivered to the Buyer, the Company’s best estimate of future financial performance (it being recognized that such financial projections or forecasts are not to be viewed as facts and that the actual results during the period or periods covered by any such financial projections or forecasts may differ from the projected or forecasted results). The Company acknowledges and agrees that the Buyer does not make and has not made any representations or warranties with respect to the transactions contemplated hereby other than those specifically set forth in Section 2.

(y)No General Solicitation. Neither the Company, nor any of its affiliates, nor any Person acting on its or their behalf, has engaged in any form of general solicitation or general advertising (within the meaning of Regulation D under the Securities Act) in connection with the offer or sale of the Securities.

(z)Private Placement. Assuming the accuracy of the Buyer’s representations and warranties set forth in Section 2, no registration under the Securities Act is required for the offer and sale of the Securities by the Company to the Buyer as contemplated hereby. The issuance and sale of the Securities hereunder does not contravene the rules and regulations of the Principal Market.

(aa)Solvency. On the date of this Agreement and on each Closing Date, and after giving effect to this Agreement and the other Transaction Documents and the obligations hereunder and thereunder, the Company and each Guarantor is Solvent. The payment and performance of the obligations of the Company and each Guarantor under the Transaction Documents will not cause the Company or such Guarantor to exceed its ability to pay its debts as they mature, and the Transaction Documents are made without any intent to hinder, delay or defraud either present or future creditors, purchasers or other interested Persons.

4. COVENANTS.

(a)Reporting Status. For the period beginning on the date hereof, and ending six (6) months after the date on which all the Convertible Debentures are no longer outstanding (the “Reporting Period”), the Company shall file on a timely basis all reports required to be filed with the SEC pursuant to the 1934 Act, and the Company shall not terminate its status as an issuer required to file reports under the 1934 Act even if the 1934 Act or the rules and regulations thereunder would no longer require or otherwise permit such termination.

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(b)Use of Proceeds. Neither the Company nor any Subsidiary will, directly or indirectly, use the proceeds of the transactions contemplated herein to repay any loans to any executives or employees of the Company or to make any payments in respect of any related party debt. Neither the Company nor any of its Subsidiaries will, directly or indirectly, use the proceeds from the transactions contemplated herein, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person (a) for the purpose of funding or facilitating any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions or is a Sanctioned Country, or (b) in any other manner that will result in a violation of Sanctions or applicable laws by any Person (including any Person participating in the transactions contemplated by this Agreement, whether as underwriter, advisor, investor or otherwise). For the past five years, neither the Company nor any of its Subsidiaries has engaged in, and is now not engaged in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions or was a Sanctioned Country.

(c)Listing. To the extent applicable, the Company shall promptly secure the listing or designation for quotation (as the case may be) of all of the Underlying Securities upon each national securities exchange and automated quotation system, if any, upon which the Common Stock is then listed or designated for quotation (as the case may be, each an “Eligible Market”), subject to official notice of issuance, and shall use reasonable efforts to maintain such listing or designation for quotation (as the case may be) of all Underlying Securities from time to time issuable under the terms of the Transaction Documents on such Eligible Market for the Reporting Period. Neither the Company nor any of its Subsidiaries shall take any action which could be reasonably expected to result in the delisting or suspension of the Common Stock on an Eligible Market during the Reporting Period. The Company shall pay all fees and expenses in connection with satisfying its obligations under this Section 4(c). “Underlying Securities” means the (i) the Conversion Shares, and (ii) any common stock of the Company issued or issuable with respect to the Conversion Shares, including, without limitation, (1) as a result of any stock split, stock dividend, recapitalization, exchange or similar event or otherwise and (2) shares of capital stock of the Company into which the shares of Common Stock are converted or exchanged without regard to any limitations on conversion of the Convertible Debentures.

(d)Pledge of Securities. Notwithstanding anything to the contrary contained in this Agreement, the Company acknowledges and agrees that, subject to compliance with applicable federal and state securities laws, the Securities may be pledged by the Buyer in connection with a bona fide margin agreement or other loan or financing arrangement that is secured by the Securities. The Company hereby agrees to execute and deliver such documentation as a pledgee of the Securities may reasonably request in connection with a pledge of the Securities to such pledgee by the Buyer.

(e)Disclosure of Transactions and Other Material Information. On or before 9:30 a.m., New York time, on the first Business Day after the Second Amendment Effective Date, the Company shall file a current report on Form 8-K describing all the material terms of the transactions contemplated by the Transaction Documents in the form required by the 1934 Act and attaching all the material Transaction Documents (including, without limitation, this Agreement (and all schedules to this Agreement) (including all attachments, the “Current Report”)). From and after the filing of the Current Report, the Company shall have disclosed all material, non-public information (if any) provided to the Buyer by the Company or any of its Subsidiaries or any of their respective officers, directors, employees or agents in connection with the transactions contemplated by the Transaction Documents. In addition, effective upon the filing of the Current Report, the Company acknowledges and agrees that any and all confidentiality or similar obligations with respect to the transactions contemplated by the Transaction Documents under any agreement, whether written or oral, between the Company, any of its Subsidiaries or any of their respective officers, directors, affiliates, employees or agents, on the one hand, and the Buyer or any of its affiliates, on the other hand, shall terminate. The Company shall not, and the Company shall cause each of its Subsidiaries and each of its and their respective officers, directors, employees and agents not to, provide the Buyer with any material, non-public information regarding the Company or any of its Subsidiaries from and after the date hereof without first obtaining the express prior written consent of the Buyer (which may be granted or withheld in the Buyer’s sole discretion).

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(f) Reservation of Shares. So long as any of the Convertible Debentures remain outstanding, the Company shall take all action necessary to at all times have authorized, and reserved for the purpose of issuance, no less than 300% of the maximum number of shares of Common Stock issuable upon conversion of all the Convertible Debentures then outstanding (assuming for purposes hereof that (x) the Convertible Debentures are convertible at the Conversion Price then in effect, and (y) any such conversion shall not take into account any limitations on the conversion of the Convertible Debentures) (the “Required Reserve Amount”); provided that at no time shall the number of shares of Common Stock reserved pursuant to this Section 4(f) be reduced other than proportionally in connection with any conversion and/or redemption, or reverse stock split. If at any time the number of shares of Common Stock authorized and reserved for issuance is not sufficient to meet the Required Reserve Amount, the Company will promptly take all corporate action necessary to authorize and reserve a sufficient number of shares, including, without limitation, calling a special meeting of stockholders to authorize additional shares to meet the Company’s obligations pursuant to the Transaction Documents, in the case of an insufficient number of authorized shares, recommending that stockholders vote in favor of an increase in such authorized number of shares sufficient to meet the Required Reserve Amount.

(g)Conduct of Business. The business of the Company and its Subsidiaries shall not be conducted in violation of any law, ordinance or regulation of any Governmental Authority, except where such violations would not reasonably be expected to result, either individually or in the aggregate, in a Material Adverse Effect.

(h)Trading Information. Upon the Company’s request, the Buyer agrees to provide the Company with trading reports setting forth the number and average sales prices of Conversion Shares sold to the Buyer during the prior trading week.

(i)Reserved.

(j)Right of First Refusal.

(i)Financing Offer. From the date of this Agreement until the second (2^nd) anniversary of the Second Amendment Effective Date, the Buyer shall have a right of first refusal if the Company receives a bona fide offer from any third party in connection with any binding proposal for any equity, convertible and variable rate financings (the “Financing Offer”). Each time the Company receives a bona fide offer for a Financing Offer that the Company desires to accept, the Company shall first make an offering of the Financing Offer to the Buyer (in such case, the “ROFR Holder”) in accordance with the following provisions prior to accepting the Financing Offer from the third party.

(ii)Offer Notice. The Company shall, within five (5) Business Days of receipt of the Financing Offer from the third party, give written notice (the “Offer Notice”) to the Buyer stating that it has received a bona fide offer from a third party, specifying (A) the terms and conditions of such Financing Offer, (B) the name of such third party, and (C) the proposed date, time and location of the closing of the Financing Offer, which shall not be less than sixty (60) days from the date of the Offer Notice.

(iii)Exercise of Right of First Refusal. Upon receipt of the Offer Notice, the Buyer shall have ten (10) Business Days (the “ROFR Notice Period”) to match the terms of such Financing Offer by delivering a written notice (the “ROFR Notice”) to the Company stating that it elects to match such Financing Offer on the terms specified in the Offer Notice. If the Buyer does not deliver a ROFR Notice to the Company during the ROFR Notice Period, then the Buyer shall be deemed to have waived its rights under this Section 4(j), and the Company shall thereafter be free to accept the terms of the Financing Offer with the third party that delivered such Financing Offer, without any further obligation to the Buyer.

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(iv) Consummation of Financing. If the Buyer does not deliver an ROFR Notice in accordance with this Section 4(j), the Company may, during the sixty (60) day period immediately following the expiration of the ROFR Notice Period (the “Waiver Period”), effectuate the Financing Offer on the terms and conditions no more favorable to the third party than those set forth in the Offer Notice. If the Company does not effectuate the Financing Offer within the Waiver Period, then the rights provided hereunder shall be deemed to be revived and the Financing Offer shall not be effected unless the Company sends a new Offer Notice to the Buyer in accordance with, and otherwise complies with, this Section 4(j).

(v)Cooperation. Each of the Company and the Buyer shall take all actions as may be reasonably necessary to consummate the financing contemplated by this Section 4(j), including, without limitation, entering into agreements and delivering certificates and instruments and consents as may be deemed necessary or appropriate.

(k)Reserved.

(l)Certain Negative Covenants. From the date hereof until all the Convertible Debentures have been repaid, without the prior written consent of the Buyer, the Company and Timios shall not, and shall not permit any of their respective direct or indirect subsidiaries (whether or not a subsidiary on the date hereof) to, directly or indirectly (i) other than Permitted Indebtedness (as defined in the Security Agreement), enter into, create, incur, assume, guarantee or suffer to exist any indebtedness for borrowed money of any kind, including, but not limited to, a guarantee, on or with respect to any of its property or assets now owned or hereafter acquired or any interest therein or any income or profits therefrom, (ii) other than Liens expressly permitted under Section 5.04 of the Security Agreement, enter into, create, incur, assume or suffer to exist any Lien of any kind, on or with respect to any of its capital stock, property or assets now owned or hereafter acquired or any interest therein or any income or profits therefrom, or (iii) amend its charter documents or other organizational documents, including, without limitation, its certificate of incorporation and bylaws, (iv) make any payments in respect of any related party debt, (v) enter into or agree to enter into any debenture, note, instrument, contract, financing arrangements, or other transaction that allows the holder of such instrument or counterparty to such transaction to acquire shares of Common Stock or capital stock, or receive payments based on the price of the Common Stock or capital stock, based on a price that varies or changes based on the market price of the Common Stock or capital stock, (vi) enter into any agreement, including but not limited to an “equity line of credit,” “ATM agreement” or other continuous offering or similar offering of Common Stock or other capital stock, (vii) issue, sell or otherwise dispose any of its capital stock, or grant any options, warrants or other rights to purchase or obtain (including upon conversion, exchange or exercise) any of its capital stock, (viii) other than as contemplated by this Agreement and the other Transaction Documents, adopt any plan of merger, consolidation, reorganization, liquidation or dissolution or file a petition in bankruptcy under any provisions of federal or state bankruptcy law or consent to the filings of any bankruptcy petition against it under any similar law, (ix) acquire by merger or consolidation with, or by purchase of a substantial portion of the assets or stock of, or by any other manner, any business or any Person or any division thereof; (x) other than as contemplated by this Agreement and the other Transaction Documents, split, combine or reclassify any shares of its capital stock, (xi) declare or pay any dividends or distribution on or in respect of any of its capital stock or redeem, purchase or acquire its capital stock, or (xii) contract to do any of the foregoing, or act or omit to act in any manner that would result in any of the foregoing (collectively, (i) through (xii) being referred to as the “Negative Covenants”).

(m)Reserved.

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(n)Amendment to Organizational Documents. From and after the date of this Agreement until the date upon which the Buyer elects to effect the option under the Subsidiary Option, the Company shall not, and shall cause each of its Subsidiaries not to, amend, restate, modify, terminate or otherwise cancel any organizational or constituent document (including, but not limited to, any articles of incorporation or formation, shareholders agreements, bylaws or other operating agreements) of the Company or its Subsidiaries without the prior written consent of the Buyer.

(o)Reserved.

(p)Public Announcements. Other than otherwise required by applicable law (based upon the reasonable advice of counsel), no party to this Agreement shall make any public announcements in respect of this Agreement or the transactions contemplated hereby or otherwise communicate with any news media without the prior written consent of the other party, and the parties shall cooperate as to the timing and contents of any such announcement.

(q)Post-Closing Obligations. The Company shall, and shall cause each of the Guarantors to, satisfy the requirements set forth on “Exhibit E” on or before the date specified for such requirement or such later date as is consented to by the Buyer.

5. REGISTER.

The Company shall maintain at its principal executive offices or with the Company’s transfer agent (or at such other office or agency of the Company as it may designate by notice to each holder of Securities), a register for the Convertible Debentures in which the Company shall record the name and address of the Person in whose name the Convertible Debentures have been issued (including the name and address of each transferee), the amount of Convertible Debentures held by such Person. The Company shall keep the register open and available at all times during business hours for inspection of the Buyer or its legal representatives.

6. CONDITIONS TO THE COMPANY’S OBLIGATION TO SELL.

The obligation of the Company hereunder to issue and sell the Convertible Debentures to the Buyer at each Closing is subject to the satisfaction, at or before each Closing Date, of each of the following conditions, provided that these conditions are for the Company’s sole benefit and may be waived by the Company at any time in its sole discretion by providing the Buyer with prior written notice thereof:

(a)The Buyer shall have executed each of the Transaction Documents to which it is a party and delivered the same to the Company.

(b)The Buyer shall have delivered to the Company the Purchase Price (less the amounts withheld pursuant to Section 4(d)) for the Convertible Debentures being purchased by the Buyer at the Closing by wire transfer of immediately available funds in accordance with the Closing Statement.

(c)The representations and warranties of the Buyer shall be true and correct in all material respects as of the date when made and as of each Closing Date as though originally made at that time (except for representations and warranties that speak as of a specific date, which shall be true and correct as of such specific date), and the Buyer shall have performed, satisfied and complied in all material respects with the covenants, agreements and conditions required by this Agreement to be performed, satisfied or complied with by the Buyer at or prior to such Closing Date.

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7. CONDITIONS TO THE BUYER’S OBLIGATION TO PURCHASE.

The obligation of the Buyer hereunder to purchase Convertible Debentures at each Closing is subject to the satisfaction, at or before each Closing Date, of each of the following conditions, provided that these conditions are for the Buyer’s sole benefit and may be waived by the Buyer at any time in its sole discretion by providing the Company with prior written notice thereof, and, provided, further, that, with respect to the First Closing Date, to the extent any of the following conditions are not satisfied as of the First Closing Date, the Company shall, and shall cause each of the Guarantors to, satisfy such conditions on or before the date that is five (5) Business Days following the First Closing Date, or or such later date as is consented to by the Buyer:

(a)The Company shall have duly executed and delivered to the Buyer each of the Transaction Documents to which it is a party and the Company shall have duly executed and delivered to the Buyer a Convertible Debenture with a principal amount corresponding to the Subscription Amount set forth opposite the Buyer’s name on the Buyer Schedule for the Closing.

(b)The Company shall have delivered to the Buyer copies of its and each Subsidiaries’ certified copies of its charter, as well as any shareholder or operating agreements by or among the shareholders or members of any of the Company’s Subsidiaries.

(c)The Company shall have delivered to the Buyer a certificate evidencing the incorporation and good standing of the Company as of a date within ten (10) days of the First Closing Date.

(d)The Company shall have delivered to the Buyer a solvency certificate in the form attached hereto as “Exhibit C.”

(e)Each and every representation and warranty of the Company shall be true and correct in all material respects (other than representations and warranties qualified by materiality, which shall be true and correct in all respects) as of the date when made and as of each Closing Date as though originally made at that time (except for representations and warranties that speak as of a specific date, which shall be true and correct as of such specific date) and the Company shall have performed, satisfied and complied in all respects with the covenants, agreements and conditions set forth in each Transaction Document required to be performed, satisfied or complied with by the Company at or prior to each Closing Date.

(f)The Common Stock (A) shall be designated for quotation or listed (as applicable) on the Principal Market and (B) shall not have been suspended, as of each Closing Date, by the SEC or the Principal Market from trading on the Principal Market nor shall suspension by the SEC or the Principal Market have been threatened, as of each Closing Date, either (I) in writing by the SEC or the Principal Market or (II) by falling below the minimum maintenance requirements of the Principal Market.

(g)The Company shall have obtained all governmental, regulatory or third-party consents and approvals, if any, necessary for the sale of the Securities, including without limitation, those required by the Principal Market, if any.

(h)No statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated or endorsed by any court or Governmental Authority of competent jurisdiction that prohibits the consummation of any of the transactions contemplated by the Transaction Documents.

(i)Since the date of execution of this Agreement, no event or series of events shall have occurred that has resulted in or would reasonably be expected to result in a Material Adverse Effect, or an Event of Default (as defined in the Convertible Debentures).

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(j) The Company shall have obtained approval of the Principal Market to list or designate for quotation (as the case may be) the maximum number of Conversion Shares issuable pursuant to the Convertible Debentures to be issued at the Closing.

(k)The Buyer shall have received a letter, duly executed by an officer of the Company, setting forth the wire amounts of the Buyer and the wire transfer instructions of the Company (the “Closing Statement”).

(l)(i) From the date hereof to the applicable Closing Date, trading in the Common Stock shall not have been suspended by the SEC or the Principal Market (except for any suspension of trading of limited duration agreed to by the Company, which suspension shall be terminated prior to the Closing), (ii) the closing price of the Common Stock during each of the five (5) consecutive Trading Days immediately prior to the applicable Closing Date shall be at least $0.20 per share, and (iii) at any time from the date hereof to the applicable Closing Date, trading in securities generally as reported by Bloomberg L.P. shall not have been suspended or limited, or minimum prices shall not have been established on securities whose trades are reported by such service, or on the Principal Market, nor shall a banking moratorium have been declared either by the United States or New York State authorities nor shall there have occurred any material outbreak or escalation of hostilities or other national or international calamity of such magnitude in its effect on, or any material adverse change in, any financial market which, in each case, in the reasonable judgment of the Buyer, makes it impracticable or inadvisable to purchase the Securities at the Closing.

(m)The Company and its Subsidiaries shall have delivered to the Buyer such other documents, instruments or certificates relating to the transactions contemplated by this Agreement and confirming such matters listed in this Section 7 as the Buyer or its counsel may reasonably request.

(n)Reserved.

(o)The Company shall have paid or reimbursed the Buyer (or its designee) for its reasonable attorneys’ fees and costs. The Company hereby authorizes the Buyer to deduct such amount from the Purchase Price to be paid by the Buyer to the Company at the First Closing.

(p)With respect to any Closing after the First Closing, the Company’s shareholders shall have approved Proposal No. 7 of the Company’s Preliminary Proxy on Form 14A filed with the Commission on October 7, 2022, with respect to the issuance of the Common Stock underlying (the “Underlying Common Stock”) the Convertible Debentures issuable under this Agreement such that Nasdaq Exchange Rule 5635 shall not impose any limitation on the Company’s issuance of such Underlying Common Stock.

(q)The Company shall have entered, executed and delivered to the Buyer the Subsidiary Option.

8. TERMINATION.

In the event that the First Closing shall not have occurred with respect to the Buyer within five (5) days of the date hereof, then the Buyer shall have the right to terminate its obligations under this Agreement with respect to itself at any time on or after the close of business on such date without liability of the Buyer to any other party; provided, however, (i) the right to terminate this Agreement under this Section 8 shall not be available to the Buyer if the failure of the transactions contemplated by this Agreement to have been consummated by such date is the result of the Buyer’s breach of this Agreement and (ii) the abandonment of the sale and purchase of the Convertible Debentures shall be applicable only to the Buyer providing such written notice, provided further that no such termination shall affect any obligation of the Company under this Agreement to reimburse the Buyer for the expenses described herein. Nothing contained in this Section 8 shall be deemed to release any party from any liability for any breach by such party of the terms and provisions of this Agreement or the other Transaction Documents or to impair the right of any party to compel specific performance by any other party of its obligations under this Agreement or the other Transaction Documents.

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9. CERTAIN DEFINED TERMS.

Unless otherwise defined in this Agreement:

(a)“Business Day” means any day except Saturday, Sunday and any day which shall be a federal legal holiday in the United States or a day on which banking institutions are authorized or required by law or other government action to close.

(b)“Equity Interests” means, as to any Person, all of the shares of capital stock of (or other ownership or profit interests in) such Person, all of the warrants, options or other rights for the purchase or acquisition from such Person of shares of capital stock of (or other ownership or profit interests in) such Person, all of the securities convertible into or exchangeable for shares of capital stock of (or other ownership or profit interests in) such Person or warrants, rights or options for the purchase or acquisition from such Person of such shares (or such other interests), and all of the other ownership or profit interests in such Person (including partnership, member or trust interests therein), whether voting or nonvoting, and whether or not such shares, warrants, options, rights or other interests are outstanding on any date of determination.

(c)“First Amendment Effective Date” means March 30, 2023.

(d)“Governmental Authority” means the government of the United States of America or any other nation, or of any political subdivision thereof, whether state, district, territory, county, municipal, local or otherwise, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government (including any supra-national bodies such as the European Union or the European Central Bank), and including the Persons holding or exercising the powers, privileges, discretions, titles, offices or authorities of any of the foregoing.

(e)“Guarantors” means each of US Hybrid Corporation, a Delaware corporation, Solectrac, Inc., a California corporation, Justly Holdings Inc., a Delaware corporation, Justly Markets LLC, a Delaware limited liability company, Timios Holdings Corp., a Delaware corporation, Fiducia Real Estate Solutions, Inc., a Delaware corporation, Timios, Inc., a Delaware corporation, Timios Appraisal Management, Inc., a Delaware corporation, Crestview Asset Management Services LLC, a Utah limited liability company, Timios Title, a California Corporation, a California corporation, Timios Agency of Alabama Inc., an Alabama corporation, Timios Agency of Nevada Inc., a Nevada corporation, Timios Agency of Utah Inc., a Utah corporation, Timios Agency of Arkansas, Inc., an Arkansas corporation, Timios Hawaii, Inc., a Hawaii corporation, Celer Escrow Company, a California corporation, Celer Settlements, LLC, a Delaware limited liability company, and Wireless Advanced Vehicle Electrification, LLC, a Delaware limited liability company.

(f)“Guaranty” means that certain Guaranty Agreement, dated on or about the First Closing Date, made by the Guarantors party thereto from time to time in favor of the Buyer, as may be amended, restated, supplemented or otherwise modified from time to time, including pursuant to joinders thereto.

(g)“March Note” means that certain Promissory Note dated as of March 29, 2023 issued by the Company in favor of the Buyer.

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(h)“Material Adverse Effect” means any material adverse effect on (i) the business, properties, assets, liabilities, operations (including results thereof), condition (financial or otherwise) or prospects of the Company and its Subsidiaries, taken as a whole, (ii) the transactions contemplated hereby or in any of the other Transaction Documents or any other agreements or instruments to be entered into by the Company in connection herewith or therewith or (iii) the authority or ability of the Company to perform any of its obligations under any of the Transaction Documents.

(i)“Option Agreement” means that certain Second Amended and Restated Option Agreement, dated as of the Second Amendment Effective Date, by the Company and Timios in favor of the Buyer, as may be amended, restated, supplemented or otherwise modified from time to time.

(j)“Other Debentures” means the Amended and Restated Convertible Debenture (No. Idex-102421/A) given by the Company to the Buyer with a Reissuance Date of August 29, 2022 with an amended principal amount of $16,717,808.55 and any other future debentures, notes, or other instruments that may be held by the Holder in the Company.

(k)“Perfection Certificate” means that certain Perfection Certificate delivered by the Debtors to the Secured Party, dated on or about the First Closing Date, as may be amended, restated, supplemented or otherwise modified from time to time, including pursuant to joinders thereto.

(l)“Person” means a corporation, an association, a limited liability company, a partnership, a joint venture, an organization, a business, an individual, a joint-stock company, a trust, an unincorporated organization, a Governmental Authority or any other entity, including any receiver, debtor-in-possession, trustee, custodian, conservator, liquidator or similar official.

(m)“Pledge Agreement” means that certain Pledge Agreement, dated as of the First Closing Date, by the Company and the Guarantors from time to time party thereto in favor of the Buyer, as may be amended, restated, supplemented or otherwise modified from time to time.

(n)“Second Amendment Effective Date” means April 17, 2023.

(o)“Security Agreement” means that certain Security Agreement, dated as of the First Closing Date, by the Company and the Guarantors party thereto from time to time in favor of the Buyer, as may be amended, restated, supplemented or otherwise modified from time to time, including pursuant to joinders thereto.

(p)“Security Documents” means, collectively, the Security Agreement, the Pledge Agreement, the Perfection Certificate, and any other security agreements, pledge agreements or other similar agreements delivered to the Buyer, the Guaranty and each of the other agreements, instruments or documents that creates a lien or guaranty in favor of the Buyer.

(q)“SEPA” means that certain Standby Equity Purchase Agreement dated as of September 1, 2022, by and between the Buyer and the Company, as amended on September 15, 2022, and as may be further amended, restated, supplemented or otherwise modified from time to time.

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(r)“Solvent” and “Solvency” mean, with respect to any Person on any date of determination, that on such date (a) the fair value of the property of such Person is greater than the total amount of liabilities, including contingent liabilities, of such Person, (b) the present fair saleable value of the assets of such Person is not less than the amount that will be required to pay the probable liability of such Person on its debts as they become absolute and matured, (c) such Person does not intend to, and does not believe that it will, incur debts or liabilities beyond such Person’s ability to pay such debts and liabilities as they mature, (d) such Person is not engaged in business or a transaction, and is not about to engage in business or a transaction, for which such Person’s property would constitute an unreasonably small capital, and (e) such Person is able to pay its debts and liabilities, contingent obligations and other commitments as they mature in the ordinary course of business. The amount of contingent liabilities at any time shall be computed as the amount that, in the light of all the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability.

(s)“Subsidiary” of a Person means a corporation, partnership, limited liability company, association or joint venture or other business entity of which a majority of the Equity Interests having ordinary voting power for the election of directors or other governing body (other than securities or interests having such power only by reason of the happening of a contingency) are at the time owned or the management of which is controlled, directly, or indirectly through one or more intermediaries, by such Person. Unless otherwise specified, all references herein to a “Subsidiary” or to “Subsidiaries” shall refer to a Subsidiary or Subsidiaries of the Company.

(t)“Trading Day” means a day on which the shares of Common Stock are quoted or traded on a Principal Market on which the shares of Common Stock are then quoted or listed; provided, that in the event that the shares of Common Stock are not listed or quoted, then Trading Day shall mean a Business Day.

(u)“Transaction Documents” means, collectively, this Agreement, the Convertible Debentures, the Other Debentures, the Security Documents, the Option Agreement, the March Note, and any and all documents, agreements, instruments or other items executed or delivered in connection with any of the foregoing.

10. MISCELLANEOUS.

(a)Recitals. The recitals to this Agreement are a material and substantive part of this Agreement. The recitals are incorporated herein and made part of this Agreement.

(b)Choice of Law, Venue, Jury Trial Waiver and Judicial Reference.

(c)Governing Law. This Agreement and the rights and obligations of the parties hereunder shall, in all respects, be governed by, and construed in accordance with, the laws (excluding the principles of conflict of laws) of the State of New York (the “Governing Jurisdiction”) (including Section 5-1401 and Section 5-1402 of the General Obligations Law of the State of New York), including all matters of construction, validity and performance.

(d)Jurisdiction; Venue; Service.

(1)The Company hereby irrevocably consents to the non-exclusive personal jurisdiction of the state courts of the Governing Jurisdiction and, if a basis for federal jurisdiction exists, the non-exclusive personal jurisdiction of any United States District Court for the Governing Jurisdiction.

(2)The Company agrees that venue shall be proper in any court of the Governing Jurisdiction selected by the Buyer or, if a basis for federal jurisdiction exists, in any United States District Court in the Governing Jurisdiction. The Company waives any right to object to the maintenance of any suit, claim, action, litigation or proceeding of any kind or description, whether in law or equity, whether in contract or in tort or otherwise, in any of the state or federal courts of the Governing Jurisdiction on the basis of improper venue or inconvenience of forum.

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(3) Any suit, claim, action, litigation or proceeding of any kind or description, whether in law or equity, whether in contract or tort or otherwise, brought by the Company against the Buyer arising out of or based upon this Agreement or any matter relating to this Agreement, or any other Transaction Document, or any obligations thereunder, or any contemplated transaction, shall be brought in a court only in the Governing Jurisdiction. The Company shall not file any counterclaim against the Buyer in any suit, claim, action, litigation or proceeding brought by the Buyer against the Company in a jurisdiction outside of the Governing Jurisdiction unless under the rules of the court in which the Buyer brought such suit, claim, action, litigation or proceeding the counterclaim is mandatory, and not permissive, and would be considered waived unless filed as a counterclaim in the suit, claim, action, litigation or proceeding instituted by the Buyer against the Company. The Company agrees that any forum outside the Governing Jurisdiction is an inconvenient forum and that any suit, claim, action, litigation or proceeding brought by the Company against the Buyer in any court outside the Governing Jurisdiction should be dismissed or transferred to a court located in the Governing Jurisdiction. Furthermore, the Company irrevocably and unconditionally agrees that it will not bring or commence any suit, claim, action, litigation or proceeding of any kind or description, whether in law or equity, whether in contract or in tort or otherwise, against the Buyer arising out of or based upon this Agreement or any matter relating to this Agreement, or any other Transaction Document, or any obligations thereunder, or any contemplated transaction, in any forum other than the courts of the State of New York sitting in New York County, and the United States District Court of the Southern District of New York, and any appellate court from any thereof, and each of the parties hereto irrevocably and unconditionally submits to the jurisdiction of such courts and agrees that all claims in respect of any such suit, claim, action, litigation or proceeding may be heard and determined in such New York State Court or, to the fullest extent permitted by applicable law, in such federal court. The Company and the Buyer agree that a final judgment in any such suit, claim, action, litigation or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.

(4)The Company and the Buyer irrevocably consents to the service of process out of any of the aforementioned courts in any such suit, claim, action, litigation or proceeding by the mailing of copies thereof by registered or certified mail postage prepaid, to it at the address provided for notices in this Agreement, such service to become effective thirty (30) days after the date of mailing.

(5)Nothing herein shall affect the right of the Buyer to serve process in any other manner permitted by law or to commence legal proceedings or to otherwise proceed against the Company or any other Person in the Governing Jurisdiction or in any other jurisdiction.

(e)Waiver of Jury Trial. The Company and the Buyer mutually waive all right to trial by jury of all claims of any kind arising out of or based upon this Agreement or any matter relating to this Agreement, or any other Transaction Document, or any obligations thereunder, or any contemplated transaction. The Company and the Buyer acknowledge that this is a waiver of a legal right and that the Company and the Buyer each make this waiver voluntarily and knowingly after consultation with counsel of its choice. The Company and the Buyer agree that all such claims shall be tried before a judge of a court having jurisdiction, without a jury.

(f)Counterparts. This Agreement may be executed in counterparts (and by different parties hereto in different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract. Delivery of an executed counterpart of a signature page of this Agreement by facsimile or in electronic (for example, “.pdf” or “tif”) format by email or other electronic transmission shall be effective as delivery of a manually executed counterpart of this Agreement. Signature pages may be detached from separate counterparts and attached to a single counterpart so that all signature pages are attached to the same document. In making proof of this Agreement, it shall not be necessary to produce more than one counterpart of this executed Agreement.

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(g)Electronic Signatures. The words “execution,” “signed,” “signature,” and words of like import in this Agreement shall be deemed to include electronic signatures or electronic records, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act.

(h)Headings; Gender. The headings of this Agreement are for convenience of reference and shall not form part of, or affect the interpretation of, this Agreement. Unless the context clearly indicates otherwise, each pronoun herein shall be deemed to include the masculine, feminine, neuter, singular and plural forms thereof. The terms “including,” “includes,” “include” and words of like import shall be construed broadly as if followed by the words “without limitation.” The terms “herein,” “hereunder,” “hereof” and words of like import refer to this entire Agreement instead of just the provision in which they are found.

(i)Entire Agreement, Amendments. This Agreement supersedes all other prior oral or written agreements between the Buyer, the Company, their affiliates and persons acting on their behalf with respect to the matters discussed herein, and this Agreement and the instruments referenced herein contain the entire understanding of the parties with respect to the matters covered herein and therein and, except as specifically set forth herein or therein, neither the Company nor the Buyer makes any representation, warranty, covenant or undertaking with respect to such matters. No provision of this Agreement may be waived or amended other than by an instrument in writing signed by the party to be charged with enforcement.

(j)Notices. Any notices, consents, waivers or other communications required or permitted to be given under the terms hereof must be in writing and will be deemed to have been delivered: upon the later of (A) either (i) receipt, when delivered personally or (ii) one (1) Business Day after deposit with an overnight courier service with next day delivery specified, in each case, properly addressed to the party to receive the same and (B) receipt, when sent by e-mail. The addresses and email addresses for such communications shall be:

If to the Company, to:	Ideanomics, Inc. 1441 Broadway, Suite #5116 New York NY 10018 Telephone: 212-206-1216 Attention:  Chief Executive Officer E-Mail:  apoor@ideanomics.com
If to the Buyer:	The address set forth in the Buyer Schedule

or at such other address and/or e-mail address and/or to the attention of such other person as the recipient party has specified by written notice given to each other party three (3) Business Days prior to the effectiveness of such change. Written confirmation of receipt (i) given by the recipient of such notice, consent, waiver or other communication, (ii) electronically generated upon sending the e-mail or (iii) provided by a nationally recognized overnight delivery service, shall be rebuttable evidence of personal service, receipt by e-mail or receipt from a nationally recognized overnight delivery service in accordance with clause (i), (ii) or (iii) above, respectively.

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(k) Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties and their respective successors and assigns, including any purchasers of any of the Convertible Debentures (but excluding any purchasers of Underlying Securities, unless pursuant to a written assignment by the Buyer). The Company shall not assign this Agreement or any rights or obligations hereunder without the prior written consent of the Buyer. In connection with any transfer of any or all of its Securities, the Buyer may assign all, or a portion, of its rights and obligations hereunder in connection with such Securities without the consent of the Company, in which event such assignee shall be deemed to be the Buyer hereunder with respect to such transferred Securities.

(l)Indemnification.

(m)In consideration of the Buyer’s execution and delivery of the Transaction Documents and acquiring the Securities thereunder and in addition to all of the Company’s other obligations under the Transaction Documents, the Company shall defend, protect, indemnify and hold harmless the Buyer and each holder of any Securities and all of their stockholders, partners, members, officers, directors, employees and direct or indirect investors and any of the foregoing Persons’ agents or other representatives (including, without limitation, those retained in connection with the transactions contemplated by this Agreement) (collectively, the “Indemnitees”) from and against any and all actions, causes of action, suits, claims, losses, costs, penalties, fees, liabilities and damages, and expenses in connection therewith (irrespective of whether any such Indemnitee is a party to the action for which indemnification hereunder is sought), and including reasonable attorneys’ fees and disbursements (the “Indemnified Liabilities”), incurred by any Indemnitee as a result of, or arising out of, or relating to (i) any misrepresentation or breach of any representation or warranty made by the Company in any of the Transaction Documents, (ii) any breach of any covenant, agreement or obligation of the Company or any Subsidiary contained in any of the Transaction Documents or (iii) any cause of action, suit, proceeding or claim brought or made against such Indemnitee by a third party (including for these purposes a derivative action brought on behalf of the Company or any Subsidiary) or which otherwise involves such Indemnitee that arises out of or results from (A) the execution, delivery, performance or enforcement of any of the Transaction Documents, (B) any transaction financed or to be financed in whole or in part, directly or indirectly, with the proceeds of the issuance of the Securities, or (C) any disclosure properly made by the Buyer pursuant to Section 4(f), or (D) the status of the Buyer or holder of the Securities either as an investor in the Company pursuant to the transactions contemplated by the Transaction Documents or as a party to this Agreement (including, without limitation, as a party in interest or otherwise in any action or proceeding for injunctive or other equitable relief). To the extent that the foregoing undertaking by the Company may be unenforceable for any reason, the Company shall make the maximum contribution to the payment and satisfaction of each of the Indemnified Liabilities which is permissible under applicable law.

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(n)Promptly after receipt by an Indemnitee under this Section 9(g) of notice of the commencement of any action or proceeding (including any governmental action or proceeding) involving an Indemnified Liability, such Indemnitee shall, if a claim in respect thereof is to be made against the Company under this Section 9(g), deliver to the Company a written notice of the commencement thereof, and the Company shall have the right to participate in, and, to the extent the Company so desires, to assume control of the defense thereof with counsel mutually reasonably satisfactory to the Company and the Indemnitee; provided, however, that an Indemnitee shall have the right to retain its own counsel with the fees and expenses of such counsel to be paid by the Company if: (A) the Company has agreed in writing to pay such fees and expenses; (B) the Company shall have failed promptly to assume the defense of such Indemnified Liability and to employ counsel reasonably satisfactory to such Indemnitee in any such Indemnified Liability; or (C) the named parties to any such Indemnified Liability (including any impleaded parties) include both such Indemnitee and the Company, and such Indemnitee shall have been advised by counsel that a conflict of interest is likely to exist if the same counsel were to represent such Indemnitee and the Company (in which case, if such Indemnitee notifies the Company in writing that it elects to employ separate counsel at the expense of the Company, then the Company shall not have the right to assume the defense thereof and such counsel shall be at the expense of the Company), provided further, that in the case of clause (C) above the Company shall not be responsible for the reasonable fees and expenses of more than one (1) separate legal counsel for the Indemnitees. The Indemnitee shall reasonably cooperate with the Company in connection with any negotiation or defense of any such action or Indemnified Liability by the Company and shall furnish to the Company all information reasonably available to the Indemnitee which relates to such action or Indemnified Liability. The Company shall keep the Indemnitee reasonably apprised at all times as to the status of the defense or any settlement negotiations with respect thereto. The Company shall not be liable for any settlement of any action, claim or proceeding effected without its prior written consent, provided, however, that the Company shall not unreasonably withhold, delay or condition its consent. The Company shall not, without the prior written consent of the Indemnitee, consent to entry of any judgment or enter into any settlement or other compromise which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnitee of a release from all liability in respect to such Indemnified Liability or litigation, and such settlement shall not include any admission as to fault on the part of the Indemnitee. Following indemnification as provided for hereunder, the Company shall be subrogated to all rights of the Indemnitee with respect to all third parties, firms or corporations relating to the matter for which indemnification has been made. The failure to deliver written notice to the Company within a reasonable time of the commencement of any such action shall not relieve the Company of any liability to the Indemnitee under this Section 9(g), except to the extent that the Company is materially and adversely prejudiced in its ability to defend such action.

(o)The indemnification required by this Section 9(g) shall be made by periodic payments of the amount thereof during the course of the investigation or defense, within ten (10) days after bills supporting the Indemnified Liabilities are received by the Company.

(p)The indemnity agreement contained herein shall be in addition to (A) any cause of action or similar right of the Indemnitee against the Company or others, and (B) any liabilities the Company may be subject to pursuant to the law.

(q)No Strict Construction. The language used in this Agreement will be deemed to be the language chosen by the parties to express their mutual intent, and no rules of strict construction will be applied against any party.

[REMAINDER PAGE INTENTIONALLY LEFT BLANK]

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IN WITNESS WHEREOF, the Buyer and the Company have caused their respective signature page to this Secured Debenture Purchase Agreement to be duly executed as of the date first written above.

COMPANY:  

IDEANOMICS, INC.

By:

Name:  

Title:

[Signature Page to Secured Debenture Purchase Agreement (Ideanomics)]

IN WITNESS WHEREOF, the Buyer and the Company have caused their respective signature page to this Secured Debenture Purchase Agreement to be duly executed as of the date first written above.

BUYER:
YA II PN, LTD.
By:		Yorkville Advisors Global, LP
Its:		Investment Manager
	By:	Yorkville Advisors Global II, LLC
	Its:	General Partner
	By:
	Name:
	Title:

[Signature Page to Secured Debenture Purchase Agreement (Ideanomics)]

LIST OF EXHIBITS:

Exhibit A	Form of Convertible Debentures
Exhibit B	Reserved
Exhibit C	Form of Solvency Certificate
Exhibit D	Reserved
Exhibit E	Post-Closing Obligations
Exhibit F	Form of Joinder Agreement

EXHIBIT A

FORM OF CONVERTIBLE DEBENTURES

EXHIBIT B

RESERVED

EXHIBIT C

FORM OF SOLVENCY CERTIFICATE

[___________], 20[__]

1.This Solvency Certificate is being executed and delivered pursuant to Section 7(e) of that certain Secured Debenture Purchase Agreement (the “SDPA”), dated as of October 25, 2022, by and between IDEANOMICS, INC., a company incorporated under the laws of the State of Nevada, with principal executive offices located at 1441 Broadway, Suite #5116, New York, NY 10018 (the “Company”), and the investor (the “Buyer”) listed on the Buyer Schedule attached thereto. Capitalized terms not defined herein shall have the meanings assigned to such terms in the SDPA.

2.I, [__], the [Chief Financial Officer] of the Company, solely in such capacity and not in an individual capacity, hereby certify that I am the [Chief Financial Officer] of the Company and that I am generally familiar with the businesses and assets of the Company and its Subsidiaries, I have made such other investigations and inquiries as I have deemed appropriate and I am duly authorized to execute this Solvency Certificate on behalf of the Company pursuant to the SDPA.

3.I further certify, solely in my capacity as [Chief Financial Officer] of the Company, and not in my individual capacity, as of the date hereof, and after giving effect to the SDPA and the other Transaction Documents and the obligations thereunder, the Company and each Guarantor is Solvent. The payment and performance of the obligations of the Company and each Guarantor under the Transaction Documents will not cause the Company or such Guarantor to exceed its ability to pay its debts as they mature, and the Transaction Documents are made without any intent to hinder, delay or defraud either present or future creditors, purchasers or other interested Persons.

IN WITNESS WHEREOF, the undersigned has hereunto set his/her hand on the date first above written.

IDEANOMICS, INC.

By:

Name:  

Title:

EXHIBIT D

RESERVED

EXHIBIT E

POST-CLOSING OBLIGATIONS

1.Not later than the date that is twenty (20) days after the First Closing Date, the Buyer shall have received the opinion of counsel to the Company and each Guarantor in the form reasonably acceptable to the Buyer.

2.Not later than the date that is five (5) Business Days after the First Closing Date, the Company shall, and shall cause each of the Guarantors to, satisfy each of the conditions specified in Section 7 that are not satisfied as of the First Closing Date.

3.Not later than the date that is five (5) Business Days after the First Closing Date, the Buyer shall have received evidence of filed stamped UCC-3 termination statements with respect to each Lien filed against the Company or any Subsidiary thereof other than a Permitted Lien.

4.The Company shall obtain and deliver to the Buyer a Control Agreement for the Deposit Accounts identified in the Perfection Certificate not later than the date that is 20 days following the First Closing Date.

5.Not later than the date that is five (5) Business Days after the First Closing Date, the Buyer shall have received a Joinder Agreement in the form set forth in “Exhibit F” to this Agreement for each of the Guarantors not party thereto on the First Closing Date, together with each of the following with respect to each such Guarantor:

(a)certified copies of its charter, as well as any shareholder or operating agreements by or among the shareholders or members of such Guarantor;

(b)a certificate evidencing the incorporation and good standing of such Guarantor as of a date within ten (10) days of the date of such joinders;

(c)such other documents, instruments or certificates relating to the transactions contemplated by this Agreement and confirming such matters listed in this Exhibit E as the Buyer or its counsel may reasonably request; and

(d)the Company shall have paid or reimbursed the Buyer (or its designee) for its reasonable attorneys’ fees and costs.

EXHIBIT F

FORM OF JOINDER AGREEMENT

JOINDER AND ASSUMPTION AGREEMENT

THIS JOINDER AND ASSUMPTION AGREEMENT is made as of [DATE], by [NAME OF GUARANTOR], a [JURISDICTION] [TYPE OF ORGANIZATION] (the “New Guarantor”).

Background

Reference is made to (i) that certain Secured Debenture Purchase Agreement, dated as of October 25, 2022 (as the same may be amended, restated, supplemented or otherwise modified from time to time, the “SDPA”), by and between IDEANOMICS, INC., a company incorporated under the laws of the State of Nevada (the “Company”), and the investor (the “Buyer”) listed on the Buyer Schedule attached thereto, (ii) the Guaranty Agreement, dated as of October 25, 2022 (as the same may be amended, restated, supplemented or otherwise modified from time to time, the “Guaranty”), by each of the Guarantors from time to time party thereto in favor of the Buyer, as Beneficiary and (iii) the other Transaction Documents referred to in the SDPA as the same may be amended, restated, supplemented or otherwise modified from time to time.

Agreement

Capitalized terms defined in the SPDA are used herein as defined therein. In consideration of the New Guarantor becoming a Guarantor under the terms of the SPDA and in consideration of the value of the direct and indirect benefits received by the New Guarantor as a result of becoming affiliated with the Company and the other Guarantors, the New Guarantor hereby agrees that effective as of the date hereof it hereby is, and shall be deemed to be, a Guarantor under the Guaranty and each of the other Transaction Documents to which the Guarantors are a party and agrees that from the date hereof and so long as any Obligation (as defined in any Transaction Document) or any other obligation of the Company or any Guarantor shall remain outstanding, the New Guarantor has assumed the joint and several obligations of a “Guarantor” under, and the New Guarantor shall perform, comply with and be subject to and bound by, jointly and severally, each of the terms, provisions and waivers of the Guaranty and each of the other Transaction Documents which are stated to apply to or are made by a “Guarantor”. Without limiting the generality of the foregoing, the New Guarantor hereby represents and warrants that (i) each any every representation and warranty set forth in Article III of the Guaranty, Article III of the Security Agreement and Article III of the Pledge Agreement applicable to the New Guarantor as a Guarantor is true and correct as to the New Guarantor in all material respects (other than representations and warranties qualified by materiality, which shall be true and correct in all respects) as of the date hereof, (ii) the New Guarantor shall have performed, satisfied and complied in all respects with the covenants, agreements and conditions set forth in each Transaction Document required to be performed, satisfied or complied with by the New Guarantor at or prior to the date hereof and (iii) the New Guarantor has heretofore received a true and correct copy of the SPDA, the Guaranty, and each of the other Transaction Documents (including any modifications thereof or supplements or waivers thereto) in effect on the date hereof.

The New Guarantor hereby makes, affirms, and ratifies in favor of the Buyer the Guaranty and each of the other Transaction Documents given by the Guarantors to the Buyer.

The New Guarantor is simultaneously delivering to the Buyer the following updates to the schedules to the Transaction Documents:

[NEW GUARANTOR TO PROVIDE LIST OF SCHEDULES TO BE UPDATED, INCLUDING SCHEDULES TO THE GUARANTY, SECURITY AGREEMENT, PLEDGE AGREEMENT AND PERFECTION CERTIFICATE.]

In furtherance of the foregoing, the New Guarantor shall execute and deliver or cause to be executed and delivered at any time and from time to time such further instruments and documents and do or cause to be done such further acts as may be reasonably necessary in the reasonable opinion of the Buyer to carry out more effectively the provisions and purposes of this Joinder and Assumption Agreement (this “Agreement”).

This Agreement and the other Transaction Documents constitute the entire contract among the parties relating to the subject matter hereof and supersede any and all previous agreements and understandings, oral or written, relating to the subject matter hereof including any prior confidentiality agreements and commitments.

This Agreement and the rights and obligations of the parties hereunder shall, in all respects, be governed by, and construed in accordance with, the laws (excluding the principles of conflict of laws) of the State of New York (the “Governing Jurisdiction”) (including Section 5-1401 and Section 5-1402 of the General Obligations Law of the State of New York), including all matters of construction, validity and performance.

The New Guarantor hereby irrevocably consents to the non-exclusive personal jurisdiction of the state courts of the Governing Jurisdiction and, if a basis for federal jurisdiction exists, the non-exclusive personal jurisdiction of any United States District Court for the Governing Jurisdiction.

The New Guarantor agrees that venue shall be proper in any court of the Governing Jurisdiction selected by the Buyer or, if a basis for federal jurisdiction exists, in any United States District Court in the Governing Jurisdiction. The New Guarantor waives any right to object to the maintenance of any suit, claim, action, litigation or proceeding of any kind or description, whether in law or equity, whether in contract or in tort or otherwise, in any of the state or federal courts of the Governing Jurisdiction on the basis of improper venue or inconvenience of forum.

Any suit, claim, action, litigation or proceeding of any kind or description, whether in law or equity, whether in contract or tort or otherwise, brought by the New Guarantor against the Buyer arising out of or based upon this Agreement or any matter relating to this Agreement, or any other Transaction Document, or any obligations thereunder, or any contemplated transaction, shall be brought in a court only in the Governing Jurisdiction. The New Guarantor shall not file any counterclaim against the Buyer in any suit, claim, action, litigation or proceeding brought by the Buyer against the New Guarantor in a jurisdiction outside of the Governing Jurisdiction unless under the rules of the court in which the Buyer brought such suit, claim, action, litigation or proceeding the counterclaim is mandatory, and not permissive, and would be considered waived unless filed as a counterclaim in the suit, claim, action, litigation or proceeding instituted by the Buyer against the New Guarantor. The New Guarantor agrees that any forum outside the Governing Jurisdiction is an inconvenient forum and that any suit, claim, action, litigation or proceeding brought by the New Guarantor against the Buyer in any court outside the Governing Jurisdiction should be dismissed or transferred to a court located in the Governing Jurisdiction. Furthermore, the New Guarantor irrevocably and unconditionally agrees that it will not bring or commence any suit, claim, action, litigation or proceeding of any kind or description, whether in law or equity, whether in contract or in tort or otherwise, against the Buyer arising out of or based upon this Agreement or any matter relating to this Agreement, or any other Transaction Document, or any obligations thereunder, or any contemplated transaction, in any forum other than the courts of the State of New York sitting in New York County, and the United States District Court of the Southern District of New York, and any appellate court from any thereof, and each of the parties hereto irrevocably and unconditionally submits to the jurisdiction of such courts and agrees that all claims in respect of any such suit, claim, action, litigation or proceeding may be heard and determined in such New York State Court or, to the fullest extent permitted by applicable law, in such federal court. The New Guarantor and the Buyer agree that a final judgment in any such suit, claim, action, litigation or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.

The New Guarantor and the Buyer irrevocably consents to the service of process out of any of the aforementioned courts in any such suit, claim, action, litigation or proceeding by the mailing of copies thereof by registered or certified mail postage prepaid, to it at the address provided for notices in the Security Agreement, such service to become effective thirty (30) days after the date of mailing.

Nothing herein shall affect the right of the Buyer to serve process in any other manner permitted by law or to commence legal proceedings or to otherwise proceed against the New Guarantor or any other Person in the Governing Jurisdiction or in any other jurisdiction.

The New Guarantor and the Buyer mutually waive all right to trial by jury of all claims of any kind arising out of or based upon this Agreement or any matter relating to this Agreement, or any other Transaction Document, or any obligations thereunder, or any contemplated transaction. The New Guarantor and the Buyer acknowledge that this is a waiver of a legal right and that the New Guarantor and the Buyer each make this waiver voluntarily and knowingly after consultation with counsel of its choice. The New Guarantor and the Buyer agree that all such claims shall be tried before a judge of a court having jurisdiction, without a jury.

This Agreement may be executed in counterparts (and by different parties hereto in different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract. Delivery of an executed counterpart of a signature page of this Agreement by facsimile or in electronic (for example, “.pdf” or “tif”) format by email or other electronic transmission shall be effective as delivery of a manually executed counterpart of this Agreement. Signature pages may be detached from separate counterparts and attached to a single counterpart so that all signature pages are attached to the same document. In making proof of this Agreement, it shall not be necessary to produce more than one counterpart of this executed Agreement.

The words “execution,” “signed,” “signature,” and words of like import in this Agreement shall be deemed to include electronic signatures or electronic records, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act.

IN WITNESS WHEREOF, and intending to be legally bound hereby, the New Guarantor has duly executed this Joinder and Assumption Agreement and delivered the same to the Buyer, as of the date and year first above written with the intention that it constitute a sealed instrument.

[NEW GUARANTOR]

By:

Name:  

Title:

Acknowledged and accepted:

YA II PN, Ltd.,

as the Buyer

By:

Name:  

Title:

[SCHEDULES TO BE ATTACHED]

BUYER SCHEDULE

(a)		(b)	(c)
Buyer		Subscription Amount of Convertible Debentures	Purchase Price
YA II PN, Ltd.
1012 Springfield Avenue	First Closing:	$6,500,000.00	$5,000,000.00
Mountainside, NJ 07092	Second Closing:	$1,400,000.00	$1,400,000.00
	Third Closing:	$750,000.00	$750,000.00
Email: Legal@yorkvilleadvisors.com	Closings after the Third Closing:	To be agreed	To be agreed
Legal Representative’s Address and E-Mail Address
Troy Rillo, Esq.
1012 Springfield Avenue
Mountainside, NJ 07092
Email: Legal@yorkvilleadvisors.com

EX-10.4

Exhibit 10.4

Execution Version

THIS DEBENTURE HAS NOT BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE. THESE SECURITIES HAVE BEEN SOLD IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS.

IDEANOMICS, INC.

Secured Debenture

Principal Amount:	$750,000
Issuance Date:	April 17, 2023
Debenture Number:	IDEX-041723

FOR VALUE RECEIVED, IDEANOMICS, INC., a Nevada corporation (the “Company”), hereby promises to pay to the order of YA II PN, LTD., or its registered assigns (the “Holder”), the amount set out above as the Principal Amount (as reduced pursuant to the terms hereof pursuant to redemption, or otherwise, the “Principal”) when due, whether upon the Maturity Date, acceleration, redemption or otherwise (in each case in accordance with the terms hereof) and to pay interest (“Interest”) on any outstanding Principal at the applicable Interest Rate from the date set out above as of the Issuance Date (the “Issuance Date”) until the same becomes due and payable, whether upon the Maturity Date or acceleration, redemption or otherwise (in each case in accordance with the terms hereof). Certain capitalized terms used herein and not otherwise defined are defined in Section 18. This Debenture is being issued pursuant to that certain Secured Debenture Purchase Agreement (as amended, restated, supplemented or otherwise modified from time to time, the “SDPA”), dated as of October 25, 2022 (the “First Closing Date”), as amended by that certain First Amendment to Secured Debenture Purchase Agreement dated as of March 30, 2023 (the “Second Closing Date”), and as further amended by that certain Second Amendment to Secured Debenture Purchase Agreement dated as of April 17, 2023 (the “Second Closing Date”) between the Company and the Holder. All obligations owed by the Company to the Holder under this Debenture and each other Transaction Document are guaranteed by the Guarantors pursuant to the Guaranty and secured by the Company and the Guarantors pursuant to the Security Documents.

(1)GENERAL TERMS

(a)Maturity Date. On the Maturity Date, the Company shall pay to the Holder an amount in cash representing all outstanding Principal, accrued and unpaid Interest, and any other amounts outstanding pursuant to the terms of this Debenture. The “Maturity Date” shall be September 30, 2023.

(b)Interest Rate and Payment of Interest. Interest shall accrue on the outstanding Principal Amount hereof at an annual rate equal to 8% (“Interest Rate”); provided that such Interest Rate shall be increased to 18% upon an Event of Default. Interest shall be calculated on the basis of a 365-day year and the actual number of days elapsed, to the extent permitted by applicable law.

(c) Reserved.

(d)Early Repayment. The Company at its option shall have the right, but not the obligation, to redeem (“Optional Redemption”) early a portion or all amounts outstanding under this Debenture as described in this Section; provided that the Company provides the Holder with at least ten (10) Business Days’ prior written notice (each, a “Redemption Notice”) of its desire to exercise an Optional Redemption. Each Redemption Notice shall be irrevocable and shall specify the outstanding balance of the Debenture to be redeemed and the applicable Redemption Premium.

(e)Reserved.

(2)EVENTS OF DEFAULT.

(a)An “Event of Default”, wherever used herein, means any one of the following events (whatever the reason and whether it shall be voluntary or involuntary or effected by operation of law or pursuant to any judgment, decree or order of any court, or any order, rule or regulation of any Governmental Authority):

(i)the Company’s or any Guarantor’s failure to pay to the Holder any amount of Principal, Redemption Premium, Interest, or other amounts when and as due under this Debenture or other Transaction Document;

(ii)the occurrence of any Bankruptcy Event of Default with respect to the Company or any Subsidiary of the Company;

(iii)the Company or any Subsidiary of the Company shall default beyond applicable grace and cured periods (if any) in any of its obligations under any other debenture or any mortgage, credit agreement or other facility, indenture agreement, factoring agreement or other instrument under which there may be issued, or by which there may be secured or evidenced any indebtedness for borrowed money or money due under any long term leasing or factoring arrangement of the Company or any Subsidiary of the Company in an amount exceeding $5,000,000, whether such indebtedness now exists or shall hereafter be created and such default shall result in such indebtedness becoming or being declared due and payable and such default is not thereafter cured within fifteen (15) Business Days;

(iv)Reserved;

(v)the Company or any Subsidiary of the Company shall be a party to any Change of Control Transaction unless in connection with such Change of Control Transaction this Debenture is retired;

(vi)Reserved;

(vii)the Company’s failure to file with the Commission any Periodic Report on or before the due date of such filing as established by the Commission. For purposes hereof, “Periodic Reports” means the Company’s (i) Quarterly Report on Form 10-Q for the fiscal quarter ending September 30, 2022, (ii) Annual Report on Form 10-K for the fiscal year ending December 31, 2022, (iii) Quarterly Report on Form 10-Q for the fiscal quarter ending March 31, 2023 and each fiscal quarter thereafter, and (iv) all other reports required to be filed by the Company with the Commission under applicable laws and regulations (including, without limitation, Regulation S-K) for so long as any amounts are outstanding under this Debenture or any Other Debenture; provided that all such Periodic Reports shall include, when filed, all information, financial statements, audit reports (when applicable) and other information required to be included in such Periodic Reports in compliance with all applicable laws and regulations;

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(viii)the Company or any Guarantor shall fail to observe or perform any other material covenant, agreement or warranty contained in, or otherwise commit any material breach or default of any provision of this Debenture (except as may be covered by Section 2(a)(i) through 2(a)(vii) hereof) or any other Transaction Document which is not cured within the time prescribed (if any);

(ix)any Event of Default (as defined in the Other Debentures or in any Transaction Document other than this Debenture) occurs with respect to any Other Debentures or any breach of any material term of any other debenture, note, or instrument held by the Holder in the Company or any agreement between or among the Company and the Holder;

(x)Reserved;

(xi)any representation or warranty made or deemed made by or on behalf of the Company or any Guarantor in or in connection with any Transaction Document, or any waiver hereunder or thereunder, or in any report, certificate, financial statement or other document furnished pursuant to or in connection with any Transaction Document, or any waiver thereunder, shall prove to have been incorrect in any material respect (or, in the case of any such representation or warranty already qualified by materiality, such representation or warranty shall prove to have been incorrect) when made or deemed made;

(xii)the Company or any of its Subsidiaries shall become unable, admit in writing its inability or fail generally to pay its debts as they become due;

(xiii)any material provision of any Transaction Document, at any time after its execution and delivery and for any reason other than as expressly permitted hereunder or thereunder or satisfaction in full of all Obligations, ceases to be in full force and effect; or the Company or any other Person contests in writing the validity or enforceability of any provision of any Transaction Document; or the Company or any Guarantor denies in writing that it has any or further liability or obligation under any Transaction Document, or purports in writing to revoke, terminate or rescind any Transaction Document;

(xiv)the Company uses the proceeds of the issuance of this Debenture, whether directly or indirectly, and whether immediately, incidentally or ultimately, to purchase or carry margin stock (within the meaning of Regulations T, U and X the Federal Reserve Board, as in effect from time to time and all official rulings and interpretations thereunder or thereof), or to extend credit to others for the purpose of purchasing or carrying margin stock or to refund indebtedness originally incurred for such purpose; or

(xv)any Security Document covering a material portion of the Collateral shall cease to create a valid and perfected lien, with the priority required by the Security Documents on and security interest in any material portion of the Collateral covered thereby.

(b)During the time that any portion of this Debenture is outstanding, if any Event of Default has occurred (other than an event with respect to the Company described in Section 2(a)(ii)), the full unpaid Principal amount of this Debenture, together with interest and other amounts owing in respect thereof and other Obligations accrued hereunder and under the other Transaction Documents, to the date of acceleration shall become at the Holder’s election given by notice pursuant to Section 7, immediately due and payable in cash; provided that, in case of any event with respect to the Company described in Section 2(a)(ii), the full unpaid Principal amount of this Debenture, together with interest and other amounts owing in respect thereof and other Obligations accrued hereunder and under the other Transaction Documents, to the date of acceleration, shall automatically become due and payable, in each case without presentment, demand, protest or other notice of any kind, all of which are hereby waived by the Company. The Holder need not provide, and the Company hereby waives, any presentment, demand, protest or other notice of any kind, and the Holder may immediately enforce any and all of its rights and remedies hereunder and all other remedies available to it under applicable law. Such declaration may be rescinded and annulled by Holder at any time prior to payment hereunder. No such rescission or annulment shall affect any subsequent Event of Default or impair any right consequent thereon.

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(3)RESERVED.

(4)INDEMNIFICATION.

With respect to the Company’s obligations under this Debenture and the other Transaction Documents:

To the fullest extent permitted by law, the Company shall, and hereby does, indemnify, hold harmless and defend the Holder, its investment manager and their respective directors, officers, partners, employees, agents, representatives, and successors and assigns of, and each Person, if any, who controls Holder within the meaning of the Securities Act or the Exchange Act (each, an “Indemnified Person”), against any losses, claims, damages, liabilities, judgments, fines, penalties, charges, costs, reasonable attorneys’ fees, amounts paid in settlement or expenses, joint or several (collectively, “Claims”) incurred in investigating, preparing or defending any action, claim, suit, inquiry, proceeding, investigation or appeal taken from the foregoing by or before any court or governmental, administrative or other regulatory agency, body or the Commission, whether pending or threatened, whether or not an Indemnified Person is or may be a party thereto (“Indemnified Damages”), to which any of them may become subject insofar as such Claims (or actions or proceedings, whether commenced or threatened, in respect thereof) arise out of or are based upon: (i) any untrue statement or alleged untrue statement of a material fact in any filing made in any public filing (including, without limitation, any Periodic Reports) made by the Company with the Commission, or the omission or alleged omission to state a material fact required to be stated therein or necessary to make the statements therein not misleading; or (ii) any violation or alleged violation by the Company of the Securities Act, the Exchange Act, any other law, including, without limitation, any state securities law (the matters in the foregoing clauses (i) through (iii) being, collectively, “Violations”). The Company shall reimburse the Indemnified Persons and each such controlling person promptly as such expenses are incurred and are due and payable, for any legal fees or disbursements or other reasonable expenses incurred by them in connection with investigating or defending any such Claim.

Promptly after receipt by an Indemnified Person under this Section 4 of notice of the commencement of any action or proceeding (including any governmental action or proceeding) involving a Claim, such Indemnified Person shall, if a Claim in respect thereof is to be made against any indemnifying party under this Section 4, deliver to the indemnifying party a written notice of the commencement thereof, and the indemnifying party shall have the right to participate in, and, to the extent the indemnifying party so desires, jointly with any other indemnifying party similarly noticed, to assume control of the defense thereof with counsel mutually satisfactory to the indemnifying party and the Indemnified Person; provided, however, that an Indemnified Person shall have the right to retain its own counsel with the fees and expenses of not more than one (1) counsel for such Indemnified Person to be paid by the indemnifying party, if, in the reasonable opinion of counsel retained by the indemnifying party, the representation by such counsel of the Indemnified Person and the indemnifying party would be inappropriate due to actual or potential differing interests between such Indemnified Person and any other party represented by such counsel in such proceeding. The Indemnified Person shall cooperate fully with the indemnifying party in connection with any negotiation or defense of any such action or claim by the indemnifying party and shall furnish to the indemnifying party all information reasonably available to the Indemnified Person which relates to such action or claim. The indemnifying party shall keep the Indemnified Person fully apprised at all times as to the status of the defense or any settlement negotiations with respect thereto. No indemnifying party shall be liable for any settlement of any action, claim or proceeding effected without its prior written consent; provided, however, that the indemnifying party shall not unreasonably withhold, delay or condition its consent. No indemnifying party shall, without the prior written consent of the Indemnified Person, consent to entry of any judgment or enter into any settlement or other compromise which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnified Person of a release from all liability in respect to such claim or litigation. Following indemnification as provided for hereunder, the indemnifying party shall be subrogated to all rights of the Indemnified Person with respect to all third parties, firms or corporations relating to the matter for which indemnification has been made. The failure to deliver written notice to the indemnifying party within a reasonable time of the commencement of any such action shall not relieve such indemnifying party of any liability to the Indemnified Person under this Section 4, except to the extent that the indemnifying party is prejudiced in its ability to defend such action.

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The indemnification required by this Section 4 shall be made by periodic payments of the amount thereof during the course of the investigation or defense, as and when bills are received or Indemnified Damages are incurred.

The indemnity agreements contained herein shall be in addition to (i) any cause of action or similar right of the Indemnified Person against the indemnifying party or others, and (ii) any liabilities the indemnifying party may be subject to pursuant to the law.

(5)CONTRIBUTION. To the extent any indemnification by an indemnifying party is prohibited or limited by law, the indemnifying party agrees to make the maximum contribution with respect to any amounts for which it would otherwise be liable under Section 4 to the fullest extent permitted by law.

(6)REISSUANCE OF THIS DEBENTURE.

(a)Transfer. If this Debenture is to be transferred, the Holder shall surrender this Debenture to the Company, whereupon the Company will forthwith issue and deliver upon the order of the Holder a new Debenture (in accordance with Section 6(d)), registered in the name of the registered transferee or assignee, representing the outstanding Principal being transferred by the Holder (along with any accrued and unpaid interest thereof) and, if less than the entire outstanding Principal is being transferred, a new Debenture (in accordance with Section 6(d)) to the Holder representing the outstanding Principal not being transferred.

(b)Lost, Stolen or Mutilated Debenture. Upon receipt by the Company of evidence reasonably satisfactory to the Company of the loss, theft, destruction or mutilation of this Debenture, and, in the case of loss, theft or destruction, of any indemnification undertaking by the Holder to the Company in customary form and, in the case of mutilation, upon surrender and cancellation of this Debenture, the Company shall execute and deliver to the Holder a new Debenture (in accordance with Section 6(d)) representing the outstanding Principal.

(c)Debenture Exchangeable for Different Denominations. This Debenture is exchangeable, upon the surrender hereof by the Holder at the principal office of the Company, for a new Debenture or Debentures (in accordance with Section 6(d)) representing in the aggregate the outstanding Principal of this Debenture, and each such new Debenture will represent such portion of such outstanding Principal as is designated by the Holder at the time of such surrender.

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(d)Issuance of New Debentures. Whenever the Company is required to issue a new Debenture pursuant to the terms of this Debenture, such new Debenture (i) shall be of like tenor with this Debenture, (ii) shall represent, as indicated on the Principal Amount of such new Debenture, the Principal remaining outstanding (or in the case of a new Debenture being issued pursuant to Section 6(a) or Section 6(c), the Principal designated by the Holder which, when added to the principal represented by the other new Debentures issued in connection with such issuance, does not exceed the Principal remaining outstanding under this Debenture immediately prior to such issuance of new Debentures), (iii) shall have an issuance date, as indicated on the Principal Amount of such new Debenture, which is the same as the Issuance Date of this Debenture, (iv) shall have the same rights and conditions as this Debenture, and (v) shall represent accrued and unpaid Interest from the Issuance Date.

(7)NOTICES. Any notices, consents, waivers or other communications required or permitted to be given under the terms hereof must be in writing and will be deemed to have been delivered: upon the later of (A) either (i) receipt, when delivered personally or (ii) one (1) Business Day after deposit with an overnight courier service with next day delivery specified, in each case, properly addressed to the party to receive the same and (B) receipt, when sent by e-mail. The addresses and e-mail addresses for such communications shall be:

If to the Company, to:	Ideanomics, Inc. 1441 Broadway, Suite #5116 New York NY 10018 Telephone: 212-206-1216 Attention:  Chief Executive Officer E-Mail:  apoor@ideanomics.com
If to the Holder:	YA II PN, Ltd. c/o Yorkville Advisors Global, LLC 1012 Springfield Avenue Mountainside, NJ 07092 Attention: Mark Angelo Telephone: 201-985-8300 Email: Legal@yorkvilleadvisors.com

or at such other address and/or e-mail address and/or to the attention of such other person as the recipient party has specified by written notice given to each other party three (3) Business Days prior to the effectiveness of such change. Written confirmation of receipt (i) given by the recipient of such notice, consent, waiver or other communication, (ii) electronically generated upon sending the e-mail or (iii) provided by a nationally recognized overnight delivery service, shall be rebuttable evidence of personal service, receipt by e-mail or receipt from a nationally recognized overnight delivery service in accordance with clause (i), (ii) or (iii) above, respectively.

(8)Except as expressly provided herein, no provision of this Debenture shall alter or impair the obligations of the Company, which are absolute and unconditional, to pay the Principal of, interest and other charges (if any) on, this Debenture at the time, place, and rate, and in the coin or currency, herein prescribed. This Debenture is a direct obligation of the Company.

(9)Reserved.

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(10) After the Issuance Date, without the Holder’s consent, the Company will not and will not permit any of its Subsidiaries to, directly or indirectly, enter into, create, incur, assume or suffer to exist any indebtedness or any security interests or liens of any kind, on or with respect to any of its property or assets now owned or hereafter acquired or any interest therein or any income or profits therefrom.

(11)Choice of Law; Venue.

(a)       Governing Law. This Debenture and the rights and obligations of the Parties hereunder shall, in all respects, be governed by, and construed in accordance with, the laws (excluding the principles of conflict of laws) of the State of New York (the “Governing Jurisdiction”) (including Section 5-1401 and Section 5-1402 of the General Obligations Law of the State of New York), including all matters of construction, validity and performance.

(b)       Jurisdiction; Venue; Service.

(i)       The Company hereby irrevocably consents to the non-exclusive personal jurisdiction of the state courts of the Governing Jurisdiction and, if a basis for federal jurisdiction exists, the non-exclusive personal jurisdiction of any United States District Court for the Governing Jurisdiction.

(ii)       The Company agrees that venue shall be proper in any court of the Governing Jurisdiction selected by the Holder or, if a basis for federal jurisdiction exists, in any United States District Court in the Governing Jurisdiction. The Company waives any right to object to the maintenance of any suit, claim, action, litigation or proceeding of any kind or description, whether in law or equity, whether in contract or in tort or otherwise, in any of the state or federal courts of the Governing Jurisdiction on the basis of improper venue or inconvenience of forum.

(iii)       Any suit, claim, action, litigation or proceeding of any kind or description, whether in law or equity, whether in contract or tort or otherwise, brought by the Company against the Holder arising out of or based upon this Debenture or any matter relating to this Debenture, or any other Transaction Document, or any Obligations, or any contemplated transaction, shall be brought in a court only in the Governing Jurisdiction. The Company shall not file any counterclaim against the Holder in any suit, claim, action, litigation or proceeding brought by the Holder against the Company in a jurisdiction outside of the Governing Jurisdiction unless under the rules of the court in which the Holder brought such suit, claim, action, litigation or proceeding the counterclaim is mandatory, and not permissive, and would be considered waived unless filed as a counterclaim in the suit, claim, action, litigation or proceeding instituted by the Holder against the Company. The Company agrees that any forum outside the Governing Jurisdiction is an inconvenient forum and that any suit, claim, action, litigation or proceeding brought by the Company against the Holder in any court outside the Governing Jurisdiction should be dismissed or transferred to a court located in the Governing Jurisdiction. Furthermore, the Company irrevocably and unconditionally agrees that it will not bring or commence any suit, claim, action, litigation or proceeding of any kind or description, whether in law or equity, whether in contract or in tort or otherwise, against the Holder arising out of or based upon this Debenture or any matter relating to this Debenture, or any other Transaction Document, or any Obligations, or any contemplated transaction, in any forum other than the courts of the State of New York sitting in New York County, and the United States District Court of the Southern District of New York, and any appellate court from any thereof, and each of the parties hereto irrevocably and unconditionally submits to the jurisdiction of such courts and agrees that all claims in respect of any such suit, claim, action, litigation or proceeding may be heard and determined in such New York State Court or, to the fullest extent permitted by applicable law, in such federal court. The Company and the Holder agree that a final judgment in any such suit, claim, action, litigation or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.

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(iv)       The Company and the Holder irrevocably consent to the service of process out of any of the aforementioned courts in any such suit, claim, action, litigation or proceeding by the mailing of copies thereof by registered or certified mail postage prepaid, to it at the address provided for notices in this Debenture, such service to become effective thirty (30) days after the date of mailing.

(v)       Nothing herein shall affect the right of the Holder to serve process in any other manner permitted by law or to commence legal proceedings or to otherwise proceed against the Company or any other Person in the Governing Jurisdiction or in any other jurisdiction.

(12)If the Company fails to strictly comply with the terms of this Debenture and/or any other Transaction Document, then the Company shall reimburse the Holder promptly for all fees, costs and expenses, including, without limitation, attorneys’ fees and expenses incurred by the Holder in any action in connection with this Debenture and/or any other Transaction Document, including, without limitation, those incurred: (i) during any workout, attempted workout, and/or in connection with the rendering of legal advice as to the Holder’s rights, remedies and obligations, (ii) collecting any sums which become due to the Holder, (iii) defending or prosecuting any proceeding or any counterclaim to any proceeding or appeal; or (iv) the protection, preservation or enforcement of any rights or remedies of the Holder.

(13)Any waiver by the Holder of a breach of any provision of this Debenture shall not operate as or be construed to be a waiver of any other breach of such provision or of any breach of any other provision of this Debenture. The failure of the Holder to insist upon strict adherence to any term of this Debenture on one or more occasions shall not be considered a waiver or deprive that party of the right thereafter to insist upon strict adherence to that term or any other term of this Debenture. Any waiver must be in writing.

(14)If any provision of this Debenture is invalid, illegal or unenforceable, the balance of this Debenture shall remain in effect, and if any provision is inapplicable to any person or circumstance, it shall nevertheless remain applicable to all other persons and circumstances. If it shall be found that any interest or other amount deemed interest due hereunder shall violate applicable laws governing usury, the applicable rate of interest due hereunder shall automatically be lowered to equal the maximum permitted rate of interest. The Company covenants (to the extent that it may lawfully do so) that it shall not at any time insist upon, plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay, extension or usury law or other law which would prohibit or forgive the Company from paying all or any portion of the Principal of or interest on this Debenture as contemplated herein, wherever enacted, now or at any time hereafter in force, or which may affect the covenants or the performance of this indenture, and the Company (to the extent it may lawfully do so) hereby expressly waives all benefits or advantage of any such law, and covenants that it will not, by resort to any such law, hinder, delay or impeded the execution of any power herein granted to the Holder, but will suffer and permit the execution of every such as though no such law has been enacted.

(15)Whenever any payment or other obligation hereunder shall be due on a day other than a Business Day, such payment shall be made on the next succeeding Business Day.

(16)THE PARTIES MUTUALLY WAIVE ALL RIGHT TO TRIAL BY JURY OF ALL CLAIMS OF ANY KIND ARISING OUT OF OR BASED UPON THIS DEBENTURE OR ANY MATTER RELATING TO THIS DEBENTURE, OR ANY OTHER TRANSACTION DOCUMENT, OR ANY OBLIGATIONS, OR ANY CONTEMPLATED TRANSACTION. THE PARTIES ACKNOWLEDGE THAT THIS IS A WAIVER OF A LEGAL RIGHT AND THAT THE PARTIES EACH MAKE THIS WAIVER VOLUNTARILY AND KNOWINGLY AFTER CONSULTATION WITH COUNSEL OF THEIR RESPECTIVE CHOICE. THE PARTIES AGREE THAT ALL SUCH CLAIMS SHALL BE TRIED BEFORE A JUDGE OF A COURT HAVING JURISDICTION, WITHOUT A JURY.

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(17)The Parties agree that, notwithstanding that this Debenture is not convertible into the Company’s Common Stock, this Debenture shall be considered a “Convertible Debenture” (as defined in the SDPA).

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

(a)“Bankruptcy Event of Default” means, with respect to any Person, any of the following events or circumstances: (a) such Person shall (i) commence a voluntary case or other proceeding seeking (A) liquidation, reorganization, or other relief with respect to itself or its debts under any bankruptcy, insolvency, or similar law now or hereafter in effect or (B) the appointment of a trustee, receiver, liquidator, custodian, or other similar official of it or any substantial part of its assets, or shall consent to any such relief or to the appointment of or taking possession by any such official in an involuntary case or other proceeding commenced against it, (ii) make a general assignment for the benefit of creditors, (iii) fail generally to pay its debts as they become due, or (iv) take any action to authorize any of the foregoing; or (b) if (i) an involuntary case or other proceeding shall be commenced against such Person seeking (A) liquidation, reorganization or other relief with respect to it or its debts under any bankruptcy, insolvency or similar law now or hereafter in effect or (B) the appointment of a trustee, receiver, liquidator, custodian or other similar official of it or any substantial part of its assets, and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of sixty (60) days, or (ii) an order for relief shall be entered against such Person under the federal bankruptcy laws as now or hereafter in effect.

(b)“Business Day” means any day except Saturday, Sunday and any day which shall be a federal legal holiday in the United States or a day on which banking institutions are authorized or required by law or other government action to close.

(c)“Change of Control Transaction” means the occurrence of (a) an acquisition after the Issuance Date by an individual or legal entity or “group” (as described in Rule 13d-5(b)(1) promulgated under the Exchange Act) of effective control (whether through legal or beneficial ownership of capital stock of the Company, by contract or otherwise) of in excess of fifty percent (50%) of the voting securities of the Company (except that the acquisition of voting securities by the Holder or any other current holder of convertible securities of the Company shall not constitute a Change of Control Transaction for purposes hereof), (b) a replacement at one time or over time of more than one-half of the members of the board of directors of the Company (other than as due to the death or disability of a member of the board of directors) which is not approved by a majority of those individuals who are members of the board of directors on the Issuance Date (or by those individuals who are serving as members of the board of directors on any date whose nomination to the board of directors was approved by a majority of the members of the board of directors who are members on the Issuance Date), (c) the merger, consolidation or sale of fifty percent (50%) or more of the assets of the Company or any Subsidiary of the Company in one or a series of related transactions with or into another entity, or (d) the execution by the Company of an agreement to which the Company is a party or by which it is bound, providing for any of the events set forth above in (a), (b) or (c).

(d)“Collateral” has the meaning given to such term in the Security Agreement and the Pledge Agreement.

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(e) “Commission” means the U.S. Securities and Exchange Commission.

(f)“Common Stock” means the common stock, par value $0.001, of the Company and stock of any other class into which such shares may hereafter be changed or reclassified.

(g)“Debenture” means this Secured Debenture.

(h)“Equity Interests” means, as to any Person, all of the shares of capital stock of (or other ownership or profit interests in) such Person, all of the warrants, options or other rights for the purchase or acquisition from such Person of shares of capital stock of (or other ownership or profit interests in) such Person, all of the securities convertible into or exchangeable for shares of capital stock of (or other ownership or profit interests in) such Person or warrants, rights or options for the purchase or acquisition from such Person of such shares (or such other interests), and all of the other ownership or profit interests in such Person (including partnership, member or trust interests therein), whether voting or nonvoting, and whether or not such shares, warrants, options, rights or other interests are outstanding on any date of determination.

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

(j)“Governmental Authority” means the government of the United States of America or any other nation, or of any political subdivision thereof, whether state, district, territory, county, municipal, local or otherwise, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government (including any supra-national bodies such as the European Union or the European Central Bank), and including the Persons holding or exercising the powers, privileges, discretions, titles, offices or authorities of any of the foregoing.

(k)“Guarantors” means each of US Hybrid Corporation, a Delaware corporation, Solectrac, Inc., a California corporation, Justly Holdings Inc., a Delaware corporation, Justly Markets LLC, a Delaware limited liability company, Timios Holdings Corp., a Delaware corporation (“Timios”), Fiducia Real Estate Solutions, Inc., a Delaware corporation (“Fiducia”), Timios, Inc., a Delaware corporation, Timios Appraisal Management, Inc., a Delaware corporation, Crestview Asset Management Services LLC, a Utah limited liability company, Timios Title, a California Corporation, a California corporation, Timios Agency of Alabama Inc., an Alabama corporation, Timios Agency of Nevada Inc., a Nevada corporation, Timios Agency of Utah Inc., a Utah corporation, Timios Agency of Arkansas, Inc., an Arkansas corporation, Timios Hawaii, Inc., a Hawaii corporation, Celer Escrow Company, a California corporation, Celer Settlements, LLC, a Delaware limited liability company, and Wireless Advanced Vehicle Electrification, LLC, a Delaware limited liability company.

(l)“Guaranty” means that certain Guaranty Agreement, dated on or about the First Closing Date, made by each of the Guarantors party thereto from time to time in favor of the Holder, as may be amended, restated, supplemented or otherwise modified from time to time.

(m)“Obligations” means all of the Company’s and each Guarantor’s now existing and hereafter created or arising obligations, indebtedness and liabilities of any kind (whether primary or secondary, conditional or unconditional, contingent or noncontingent, joint or several) owed to the Holder, whether existing, created, incurred or arising in the Company’s or such Guarantor’s capacity as a borrower, guarantor, indemnitor, customer, purchaser, lessee, licensee, applicant, counterparty, debtor or other obligor, including (a) any loan amount, principal, interest (including interest accruing during the pendency of any bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether allowed or allowable in such proceeding), fee, charge, indemnification obligation, reimbursement obligation, royalty, premium, cost, expense, price, rent or other amount owed by the Company or such Guarantor to the Holder at any time, including future advances, protective advances and other financial accommodations, (b) any obligations, indebtedness or liabilities of the Company and the Guarantors to the Holder under any Transaction Document at any time, and (c) any of the foregoing that may have been, or that may be, acquired by the Holder from any third party, the Company or any Guarantor at any time.

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(n)“Option Agreement” means that certain Second Amended and Restated Option Agreement, dated as of the Third Closing Date, by the Company, Timios, and Fiducia in favor of the Holder, as may be amended, restated, supplemented or otherwise modified from time to time.

(o)“Other Debentures” means the Amended and Restated Convertible Debenture (No. Idex-102421/A) given by the Company to the Holder with a Reissuance Date of August 29, 2022 with an amended principal amount of $16,717,808.55 and any other future debentures, notes, or other instruments that may be held by the Holder in the Company, including, without limitation, any Other SDPA Debenture, and any other debentures, notes, or other instruments issued in exchange, replacement, or modification of the foregoing, each as may be amended, restated, supplemented or otherwise modified from time to time.

(p)“Other SDPA Debenture” means any debenture, note, or other instrument that may be issued under the SDPA other than this Debenture, each as may be amended, restated, supplemented or otherwise modified from time to time.

(q)“Payback Period” means the period commencing on April 17, 2023 and ending on May 30, 2023.

(r)“Person” means a corporation, an association, a limited liability company, a partnership, a joint venture, an organization, a business, an individual, a joint-stock company, a trust, an unincorporated organization, a Governmental Authority or any other entity, including any receiver, debtor-in-possession, trustee, custodian, conservator, liquidator or similar official.

(s)“Pledge Agreement” means that certain Pledge Agreement, dated as of the First Closing Date, by the Company and the Guarantors from time to time party thereto in favor of the Holder, as may be amended, restated, supplemented or otherwise modified from time to time.

(t)“Redemption Premium” means 10% of the Principal amount being redeemed or paid, as applicable, plus, (i) during the Payback Period, 50% of the Principal amount being redeemed or paid in cash (unless the Buyer, in its sole and absolute discretion, elects to exercise a Call Right (as defined in the Option Agreement) in connection with the applicable redemption or payment and (ii) following the Payback Period, 20% of the Principal amount being redeemed in cash.

(u)“Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.

(v)“Security Agreement” means that certain Security Agreement, dated as of the First Closing Date, by the Company and the Guarantors from time to time party thereto in favor of the Holder, as may be amended, restated, supplemented or otherwise modified from time to time.

(w)“Security Documents” means, collectively, the Security Agreement, the Pledge Agreement, the Perfection Certificate, and any other security agreements, pledge agreements or other similar agreements delivered to the Holder, the Guaranty and each of the other agreements, instruments or documents that creates a lien or guaranty in favor of the Holder.

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(x)“Subsidiary” of a Person means a corporation, partnership, limited liability company, association or joint venture or other business entity of which a majority of the Equity Interests having ordinary voting power for the election of directors or other governing body (other than securities or interests having such power only by reason of the happening of a contingency) are at the time owned or the management of which is controlled, directly, or indirectly through one or more intermediaries, by such Person. Unless otherwise specified, all references herein to a “Subsidiary” or to “Subsidiaries” shall refer to a Subsidiary or Subsidiaries of the Company.

(y)“Transaction Documents” means, collectively, this Debenture, the Other SDPA Debentures, the SDPA, the Security Documents, the Option Agreement and any and all documents, agreements, instruments or other items executed or delivered in connection with any of the foregoing, including, without limitation, any future Secured Debentures and Secured Convertible Debentures that may be issued by the Company to the Holder pursuant to the terms of the SDPA.

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IN WITNESS WHEREOF, the Company has caused this Secured Debenture to be duly executed by a duly authorized officer as of the date set forth above.

COMPANY:
IDEANOMICS, INC.
By:
Name:	Alfred P. Poor
Title:	Chief Executive Officer

XML

Cover	Apr. 14, 2023
Cover [Abstract]
Document Type	8-K
Amendment Flag	false
Document Period End Date	Apr. 14, 2023
Entity File Number	001-35561
Entity Registrant Name	IDEANOMICS, INC.
Entity Central Index Key	0000837852
Entity Tax Identification Number	20-1778374
Entity Incorporation, State or Country Code	NV
Entity Address, Address Line One	1441 Broadway
Entity Address, Address Line Two	Suite 5116
Entity Address, City or Town	New York
Entity Address, State or Province	NY
Entity Address, Postal Zip Code	10018
City Area Code	212
Local Phone Number	206-1216
Written Communications	false
Soliciting Material	false
Pre-commencement Tender Offer	false
Pre-commencement Issuer Tender Offer	false
Title of 12(b) Security	Common stock, $0.001 par value per share
Trading Symbol	IDEX
Security Exchange Name	NASDAQ
Entity Emerging Growth Company	false