Item 1.01 Entry into a Material Definitive Agreement
Second Amended and Restated Merger Agreement
On October 6, 2022, the Company, Tingo, the representative for the
stockholders of the Company (“Purchaser Representative”), and the representative for Tingo (“Seller Representative”),
entered into the Second Amended and Restated Merger Agreement (the “Amended Agreement”) amending and restating the
previous Amended and Restated Merger Agreement entered into by the parties on June 15, 2022 (the “Previous Agreement”).
Pursuant to the Amended Agreement, (i) Tingo shall form a British Virgin
Islands company and wholly-owned subsidiary (“Tingo Sub”) and transfer into Tingo Sub all of its rights, title, interest
and liabilities in all of its other subsidiaries, and (ii) MICT shall form a Delaware corporation and wholly-owned subsidiary (“Delaware
Sub”) and cause Delaware Sub to form a British Virgin Islands company and wholly-owned subsidiary of Delaware Sub (“BVI
Sub”).
Subject to the terms and conditions set forth
in the Amended Agreement, upon the consummation of the transactions contemplated therein (the “Closing”), BVI Sub will
merge with and into Tingo Sub (the “Business Combination” and, together with the other transactions contemplated by
the Amended Agreement, the “Transactions”), with the BVI Sub continuing as the surviving company in the Business Combination
and a wholly-owned subsidiary of Delaware Sub.
The following summary of the Amended Agreement is qualified in its
entirety by reference to the complete text of the Amended Agreement, a copy of which is attached hereto as Exhibit 2.1. MICT’s
stockholders, warrant holders and other interested parties are urged to read such agreement in its entirety.
Business Combination Consideration
As consideration for the Business Combination,
Tingo shall receive from the MICT: (i) 25,783,675 shares of MICT Common Stock equal to approximately 19.9% of the total issued and outstanding
MICT Common Stock; (ii) 2,604.28 shares of Series A Preferred Stock convertible into 26,042,808 shares of MICT Common Stock equal to approximately
20.1% of the total issued and outstanding MICT Common Stock; and (iii) 46,643.83 shares of Series B Preferred Stock convertible into 466,438,345
shares of MICT Common Stock equal to approximately 35% of the total issued and outstanding MICT Common Stock, provided that 5% of the
foregoing consideration shall be withheld in Escrow.
Escrow
As part of the Amended Agreement, Purchaser Representative,
Seller Representative, and a mutually agreeable escrow agent shall enter into an escrow agreement, whereby an amount equal to 5% of the
total number of shares of MICT Common Stock, Series A Preferred Stock, and Series B Preferred Stock transferred as part of the consideration
for the Business Combination (the “Escrow Property”) shall be held in escrow for a period of up to two years after
the Closing of the Business Combination. The Escrow Property shall be the sole source of payment for any obligations incurred by Tingo
in relation to any indemnification claims.
Post-Closing Purchaser Board
The Amended Agreement provides that the post-closing
Board of MICT shall consist of six members, with four designated by MICT and two designated by Tingo.
Series A Preferred Stock
Upon the approval of MICT’s stockholders,
each share of Series A Preferred Stock issued by MICT to Tingo shall automatically convert into 10,000 shares of MICT Common Stock in
accordance with the terms of its certificate of designation attached hereto as Exhibit 3.1. If such shareholder approval is not
obtained by June 30, 2023, all issued and outstanding shares of Series A Preferred Stock shall be redeemed by MICT in exchange for Tingo
receiving 27% of the total issued and outstanding shares of Delaware Sub (“Series A Redemption”).
Series B Preferred Stock
Upon approval by Nasdaq of the change of control
of MICT and upon the approval of MICT’s stockholders, each share of Series B Preferred Stock issued by MICT to Tingo shall automatically
convert into 10,000 shares of MICT Common Stock in accordance with the terms of its certificate of designation attached hereto as Exhibit
3.2. If such shareholder or Nasdaq approval is not obtained by June 30, 2023, Tingo shall have the right to (i) cause the Series A
Redemption to take place within 90 days; and (ii) cause MICT to redeem all of the Series B Preferred Stock in exchange for (x) $666,666,667
or (y) an amount of common stock of Delaware Sub equivalent in value to $666,666,667 (reduced from the aggregate value of the Series B
Preferred Stock at issuance, which is $1,000,000,000).
Representations and Warranties
The Amended Agreement contains representations
and warranties by each of MICT and Tingo which are substantially similar to each party’s representations and warranties from the
Previous Agreement.
Indemnification Provisions
The Amended Agreement contains indemnification
provisions substantially similar to those contained in the Previous Agreement.
Covenants of the Parties
The Amended Agreement provides for covenants from
each party which are substantially similar to the covenants provided in the Previous Agreement, except that the Amended Agreement also
includes covenants relating to: (1) formation and joinder of the Delaware Sub to the Amended Agreement; (2) formation and joinder of the
BVI Sub to the Amended Agreement; (3) formation and joinder of the Tingo Sub to the Amended Agreement; (4) MICT using commercially reasonable
efforts to cause additional MICT stockholders to sign voting and support agreements in favor of the Business Combination by Closing; (5)
MICT and Tingo mutually agreeing on a budget for Tingo for the remainder of the fiscal year ending December 31, 2022; (6) covenants relating
to timely response by each party to SEC comments in connection with the Business Combination; and (7) other appropriate actions to be
taken by each party to obtain (i) Nasdaq approval of a change in control of MICT and (ii) MICT stockholder approval relating to the conversion
of the Series A Preferred Stock and Series B Preferred Stock.
Closing Conditions
The Amended Agreement contains customary conditions
to Closing substantially similar to the Previous Agreement, except that the Amended Agreement further includes the following conditions
(unless waived): (i) a general release which releases MICT from claims from Tingo covering the period prior to the execution of the Amended
Agreement; (ii) a general release which releases Tingo from claims from MICT covering the period prior to the execution of the Amended
Agreement; (iii) Tingo’s delivery of an employment agreement entered into between Dozy Mmobuosi and Tingo; (iv) delivery of the
Amended Purchaser Loan; and (v) MICT shall have received evidence of the effective transfer from Tingo to Tingo Sub of all of the rights,
title, interest and liabilities of all of the other subsidiaries of Tingo.
Governing Law and Arbitration
The Amended Agreement is governed by New York
law and provides for governing law and arbitration provisions substantially similar to those provided under the Previous Agreement.
The foregoing description of the Amended Agreement
and the Transactions does not purport to be complete and is qualified in its entirety by the terms and conditions of the Amended Agreement,
a copy of which is filed as Exhibit 2.1 hereto and is incorporated herein by reference.
Certain Related Agreements and Certificates
Amended Purchaser Loan
Simultaneous with the execution of the Amended
Agreement, MICT extended to Tingo a loan in the principal amount of $23,700,000 with an interest rate of 5% per year (the “Amended
Purchaser Loan”, attached hereto as Exhibit 10.1), and which shall amend and restate the loan agreement between MICT
and Tingo dated May 10, 2022, for a principal amount of $3,500,000 (the “Previous Loan”). Pursuant to the Amended Purchaser
Loan, MICT shall pay to Tingo the difference in the principal amount between the Amended Purchaser Loan and the Previous Loan within three
(3) Business Days of the signing of the Amended Agreement.
Series A Certificate of Designation
The powers, designations, limitations, preferences
and rights associated with the Series A Preferred Stock are set out in its certificate of designation attached hereto as Exhibit 3.1.
Series B Certificate of Designation
The powers, designations, limitations, preferences
and rights associated with the Series B Preferred Stock are set out in its certificate of designation attached hereto as Exhibit 3.2.
