Exhibit 10.1


 


AMENDMENT NO. 2 TO AGREEMENT AND PLAN OF MERGER


 


This Amendment No. 2 to the
Agreement and Plan of Merger (the “Amendment”), is made as of June 15, 2022 (the “Second Amendment Date”),
by and among Ideanomics, Inc. (“Parent”), Longboard Merger Corp., (“Merger Corp”), Via Motors International,
Inc. (the “Company”), and Shareholder Representative Services LLC solely in its capacity as Shareholders’ Representative.
Each of the foregoing is referred to herein as a “Party” and, collectively, as the “Parties.”


 


WHEREAS, the Parties have
previously entered into a certain Agreement and Plan of Merger dated August 30, 2021, as amended pursuant to Amendment No.1 to Agreement
and Plan of Merger dated May 20, 2022 (together, the “Merger Agreement”), pursuant to which Merger Corp will merge
with and into the Company with the Company surviving the merger as a wholly-owned subsidiary of the Parent (the “Merger”);


 


WHEREAS, capitalized terms
used but not defined herein shall have the respective meanings given to them in the Agreement; and


 


WHEREAS, the Parties desire
and agree to amend and supplement certain terms set forth in the Merger Agreement on the terms and conditions contained herein;


 


NOW, THEREFORE, in consideration
of the mutual covenants herein contained and other good and valuable consideration, the mutual receipt and legal sufficiency of which
are hereby acknowledged, the Parties, intending to be legally bound, mutually agree as follows:


 


1.              The following defined terms in Section 1.1 of the Agreement are hereby deleted and replaced with the following:


 


“Secured
Convertible Promissory Note” means the first priority Secured Convertible Promissory Note, issued by the Company to the order
of Parent, dated August 30, 2021 and as amended, with the amount, structure, terms and conditions of funding thereunder as specified therein.


 


“Secured
Convertible Promissory Note Amount” means the amount of unpaid principal and interest outstanding from time to time under the
Secured Convertible Promissory Note.


 


“Secured
Promissory Note” means the Secured Promissory Note No. 1, issued by the Company to the order of Parent, dated May 20, 2022,
or any other secured promissory note issued by the Company to the order of Parent as contemplated in Section 5.23(b) hereof, with the
amount, structure, terms and conditions of funding thereunder as specified in such note.


 






     


     


    

 


2.             Section 2.10(b) of the Merger Agreement is hereby deleted in its entirety and replaced with the following:


 


“Except as set forth in the
Voting and Lock-up Agreements and this Section 2.10, each Major Stockholder shall not sell, assign, transfer or otherwise
dispose of, or enter into, any contract, option, swap, hedge, derivative, or other arrangement or understanding with respect to the
sale, assignment, pledge, or other disposition of any of the Stock Consideration issued to such Major Stockholder at the Effective
Time (such restriction, the “Major Stockholder Lock-up”). The Stock Consideration subject to the Major
Stockholder Lock-up shall be released as follows: (A) on a date that is six (6) months from the Closing Date twenty -five percent
(25%) of the Stock Consideration issued to the Major Stockholders shall be released from Major Stockholder Lock-up; (B) on a date
that is eight (8) months from the Closing Date twenty-five percent (25%) of the Stock Consideration issued to the Major Stockholders
shall be released from Major Stockholder Lock-up; (C) on a date that is ten (10) months from the Closing Date twenty-five percent
(25%) of the Stock Consideration issued to the Major Stockholders shall be released from Major Stockholder Lock-up; and (D) on a
date that is twelve (12) months from the Closing Date twenty-five percent (25%) of the Stock Consideration issued to the Major
Stockholders shall be released from Major Stockholder Lock-up.”


 


3.              
The Merger Agreement is hereby amended by inserting the following new Section 5.23: “5.23 Parent Loans to the Company.


 


		(a)	From time to time until the Closing Date, Parent shall loan
the Company such amounts as Parent and the Company mutually agree to meet certain operating expenses of the Company, under the terms
of the Secured Convertible Promissory Note, which shall be amended accordingly, with the amounts, structure, terms and conditions of
funding thereunder as specified therein (the “Bridge Loans”).



 


		(b)	In addition, from time to time until the Closing Date, Parent
shall loan the Company additional amounts for programs and facilities under the terms of one or more Secured Promissory Notes (the Bridge
Loans plus the aggregate amounts loaned by Parent to the Company under Secured Promissory Notes, collectively, “Additional Funds.”)



 


		(c)	Parent’s obligation to provide Additional Funds to the
Company is subject to the Company delivering an officer’s certificate signed by the chief executive officer of the Company to the
effect that, assuming the Additional Funds are provided to the Company (i) the Fundamental Representations of the Company are true and
correct in all respects (subject only to de minimis exceptions) as of the date when the certificate is issued, except for those Fundamental
Representations of the Company made as of a specified date, which shall be measured only as of such specified date, and (ii) the representations
and warranties of the Company in the Merger Agreement (other than the Fundamental Representations) are true and correct (without giving
effect to any “materiality” or “Material Adverse Effect” qualifications) in all respects as of the date when
the certificate is issued, except for such representations and warranties made as of a specified date, which shall be measured only as
of such specified date except, in the case of sub-clause (ii), where the failure of such representations and warranties to be true and
correct would not have a Material Adverse Effect on the Group Companies, taken as a whole.



 






     


     


    

 


		(d)	If this Agreement is terminated, all principal and interest
accrued on the Additional Funds advanced by Parent to the Company will be due and payable as follows: (i) if Company terminates this
Agreement under Section 9.1(d) or if Parent terminates this Agreement under Section 9.1(b), such amounts will be due and payable on the
6-month anniversary of the occurrence of such termination; provided, however, Parent may not terminate this Agreement under
Section 9.1(b) if Parent’s failure to provide any Additional Funds has been a principal cause of or resulted in a material breach
of any of the representations, warranties or covenants of the Company in this Agreement; or (ii) if this Agreement is terminated under
Section 9.1(a), (c), (d) or (f) or for any other reason, such amounts will be due and payable on the 12 month anniversary of the occurrence
of such termination.”



 


4.              
Section 9.1(d) of the Merger Agreement is hereby deleted in its entirety and replaced with the following:


 


“(d)     by written notice by either
the Company or Parent to the other, at any time after August 31, 2022 if the Closing shall not have occurred on or prior to such date;
provided, that the right to terminate this Agreement under this Section 9.1(d) shall not be available to such party if the
action or inaction of such party or any of its Affiliates has been a principal cause of or resulted in the failure of the Closing to occur
on or before such date and such action or failure to act constitutes a breach of this Agreement; also provided, however, that Parent may
extend the date in this Section 9.1(d) by up to thirty (30) days at its sole election, by written notice from Parent to Company no later
than August 15, 2022.”


 


5.              
The Merger Agreement is hereby amended by inserting the following Section 9.1(f):


 


“(f)     by the Company, at any time
prior to the Closing, if Parent fails to fund the Bridge Loans as agreed by Parent and the Company, subject to satisfaction of the condition
in Section 5.23(a) hereof.”


 


6.              Except to
the extent herein expressly modified by the foregoing provisions of this Amendment, the Merger Agreement is hereby ratified and
confirmed in all respects.


 


7.              This Amendment may be executed
by electronic signatures and in any number of counterparts with the same effect as if all signatory parties had signed the same document.
All counterparts shall be construed together and shall constitute one and the same instrument.


 


[signature page follows]


 






     


     


    

 


IN WITNESS WHEREOF, each of the Parties has caused
this Amendment to be duly executed and delivered in its name and on its behalf, all as of the day and year first above written.


 


	 	IDEANOMICS, INC., a Nevada corporation
	 	 
	 	By:	/s/ Alf Poor
	 	Name:	Alf Poor
	 	Title:	Chief Executive Officer
	 	 
	 	LONGBOARD MERGER CORP., a Delaware corporation
	 	 
	 	By:	/s/ Alf Poor
	 	Name:	Alf Poor
	 	Title:	Chief Executive Officer
	 	 
	 	VIA MOTORS INTERNATIONAL, INC., a Delaware corporation
	 	 
	 	By:	/s/ Bob Purcell
	 	Name:	Bob Purcell
	 	Title:	CEO 
	 	 
	 	SHAREHOLDER REPRESENTATIVE SERVICES LLC
	 	 
	 	By:	/s/ Sam Rifle
	 	Name:	Sam Rifle
	 	Title:	Managing Director




 


[Signature Page to Amendment No. 2 to the Merger Agreement]