UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

FORM 10-K

 

 ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934

 

For the fiscal year ended December 31, 2022

 

OR

 

 TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934

 

For the transition period from January 1, 2022 to December 31, 2022

 

Commission file number 001-35850

  

TINGO GROUP, INC.
(Exact name of registrant as specified in its charter)

 

Delaware   27-0016420
(State or other jurisdiction of
incorporation or organization)
  (I.R.S. Employer
Identification No.)

 

28 West Grand Avenue, Suite 3, Montvale   NJ 07645
(Address of principal executive offices)   (Zip Code)

 

Registrant’s telephone number, including area code: (201) 225-0190

 

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

 

Title of each class   Trading Symbol   Name of each exchange on
which registered
Common Stock, par value $0.001   TIO   Nasdaq Capital Market

 

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

 

None.
(Title of class)

 

Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act. Yes ☐  No ☒

 

Indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or Section 15(d) of the Act. Yes ☐  No ☒

 

Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days.  Yes ☒  No ☐

 

Indicate by check mark whether the registrant has submitted electronically every Interactive Data File required to be submitted pursuant to Rule 405 of Regulation S-T (§ 232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit such files). Yes ☒  No ☐

 

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company or an emerging growth company. See definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act. (Check one): 

 

Large accelerated filer ☐ Accelerated filer ☐
Non-accelerated filer  ☒ Smaller reporting company  ☒
  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. ☐

 

Indicate by check mark whether the registrant has filed a report on and attestation to its management’s assessment of the effectiveness of its internal control over financial reporting under Section 404(b) of the Sarbanes-Oxley Act (15 U.S.C. 7262(b)) by the registered public accounting firm that prepared or issued its audit report. ☐

 

If securities are registered pursuant to Section 12(b) of the Act, indicate by check mark whether the financial statements of the registrant included in the filing reflect the correction of an error to previously issued financial statements. ☐

 

Indicate by check mark whether any of those error corrections are restatements that required a recovery analysis of incentive-based compensation received by any of the registrant’s executive officers during the relevant recovery period pursuant to §240.10D-1(b). ☐

 

Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Act). Yes ☐  No ☒

 

The aggregate market value of the common stock, $0.001 par value, of the registrant held by non-affiliates, as of June 30, 2022 was approximately $59,822,058 based on a per share price of $0.5688, the price at which the common stock was last sold as of June 30, 2022.

 

As of March 31, 2023, there were 163,727,382 shares of the issuer’s common stock outstanding.

 

 

 

 

 

 

INDEX

 

PART I    
Item 1. Business 1
Item 1A. Risk Factors 30
Item 1B. Unresolved Staff Comments 77
Item 2. Properties 77
Item 3. Legal Proceedings 78
Item 4. Mine Safety Disclosures 78
     
PART II    
Item 5. Market for Registrant’s Common Equity, Related Stockholder Matters and Issuer Purchases of Equity Securities 79
Item 6. [Reserved] 82
Item 7. Management’s Discussion and Analysis of Financial Condition and Results of Operations 82
Item 7A. Quantitative and Qualitative Disclosures About Market Risk 94
Item 8. Financial Statements and Supplementary Data 94
Item 9. Changes in and Disagreements with Accountants on Accounting and Financial Disclosure 94
Item 9A. Controls and Procedures 94
Item 9B. Other Information 95
Item 9C.   Disclosure Regarding Foreign Jurisdictions That Prevent Inspections 95
     
PART III    
Item 10. Directors, Executive Officers and Corporate Governance 96
Item 11. Executive Compensation 101
Item 12. Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters 103
Item 13. Certain Relationships and Related Transactions, and Director Independence 106
Item 14. Principal Accounting Fees and Services 106
     
PART IV    
Item 15. Exhibits, Financial Statement Schedules 107
Item 16. 10-K Summary 109

 

i

 

 

Unless the context provides otherwise, all references in this Annual Report on Form 10-K for the year ended December 31, 2022, or this Annual Report, to “TINGO GROUP,” “we,” “us,” “our,” the “Company,” the “Registrant” or similar terms, refer to TINGO GROUP, Inc., together with our wholly-owned subsidiaries and entities control under VIE’s arrangements (as defined below). Unless otherwise noted, all references to “dollars” or “$” are to United States dollars and all references to “NIS” are to New Israeli Shekels, and all references to “NGN” are to legal currency of the People’s Republic of Naira, and all references to “HK DOLLARS” are to legal currency of the People’s Republic of Hong Kong,  and all references to “RMB” are to legal currency of the People’s Republic of China; Our website address is included several times in this Annual Report as a textual reference only and the information in any such website is not incorporated by reference into this Annual Report.

 

CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS

 

This Annual Report on Form 10-K (“Form 10-K”) contains forward-looking statements which are made pursuant to the safe harbor provisions of Section 27A of the Securities Act of 1933, as amended, and Section 21E of the Securities Exchange Act of 1934, as amended (the “Exchange Act”). The forward-looking statements in this Form 10-K do not constitute guarantees of future performance and actual results could differ materially from those contained in the forward-looking statements. These statements are based on current expectations of future events. Such statements include, but are not limited to, statements about our products, including our newly acquired products, customers, regulatory approvals, the potential utility of and market for our products and services, our ability to implement our business strategy and anticipated business and operations, future financial and operational performance, our anticipated future growth strategy, including the recent merger with the sole operating subsidiary of Tingo, Inc and the integration of the two companies after the merger, or the acquisition of other companies or technologies, capital requirements, intellectual property, suppliers, joint venture partners, future financial and operating results, the impact of the COVID-19 pandemic, plans, objectives, expectations and intentions, revenues, costs and expenses, interest rates, outcome of contingencies, business strategies, regulatory filings and requirements, the estimated potential size of markets, capital requirements, the terms of any capital financing agreements and other statements that are not historical facts. You can find many of these statements by looking for words like “believes,” “expects,” “anticipates,” “estimates,” “may,” “should,” “will,” “could,” “plan,” “intend,” or similar expressions in this Form 10-K. We intend that such forward-looking statements be subject to the safe harbors created thereby.

 

These forward-looking statements are based on the current beliefs and expectations of our management and are subject to significant risks and uncertainties. If underlying assumptions prove inaccurate or unknown risks or uncertainties materialize, actual results may differ materially from current expectations and projections. Factors that might cause such a difference include those discussed under “Risk Factors,” as well as those discussed elsewhere in the Form 10-K.

 

You are cautioned not to place undue reliance on these forward-looking statements, which speak only as of the date of this Form 10-K or, in the case of documents referred to or incorporated by reference, the date of those documents.

 

All subsequent written or oral forward-looking statements attributable to us or any person acting on our behalf are expressly qualified in their entirety by the cautionary statements contained or referred to in this section. We do not undertake any obligation to release publicly any revisions to these forward-looking statements to reflect events or circumstances after the date of this Form 10-K or to reflect the occurrence of unanticipated events, except as may be required under applicable U.S. securities law. If we do update one or more forward-looking statements, no inference should be drawn that we will make additional updates with respect to those or other forward-looking statements.

 

ii

 

 

PART I

 

Item 1. Business.

 

TINGO GROUP, Inc. (the “Company”) was formed as a Delaware corporation on January 31, 2002 under the name Lapis Technologies, Inc. On March 14, 2013, we changed our corporate name to Micronet Enertec Technologies, Inc. On July 13, 2018, following the sale of our former subsidiary, Enertec Systems Ltd., we changed our name to MICT, Inc. On February 27, 2023, following the merger transaction with Tingo., we changed our name to TINGO GROUP, Inc. Our shares have been listed for trading on The Nasdaq Capital Market since April 29, 2013 under the symbol “TIO”.

 

The Company is a holding company conducting financial technology business and agri-fintech business through its subsidiaries and entities, both wholly-owned and controlled through various VIE arrangements (“VIE entities”, together with the Company, the “Group”), which are located mainly in Africa, Southeast Asia and the Middle East. The Group’s business has changed materially since December 1, 2022, following the completion of two material acquisitions of Tingo Mobile and Tingo Foods, the details of which are described under Acquisition of Tingo Mobile, Acquisition of Tingo Foods, and About Tingo Group Holdings below.

 

We currently operate in 3 segments and following the acquisition of Tingo Foods we will be operating in 4 segments i) Verticals and Technology, comprising of our operations in China where we have 3 VIE Entities through which we operate, mainly, our business of insurance brokerage.; ii) Online Stock Trading, comprising mainly the operation of Magpie Securities Limited (“Magpie”) through which we operate the business of online stock trading, mainly out of Hong Kong and Singapore; (iii)Comprehensive Platform Service which includes the operations of Tingo Mobile described above and includes the operations of Tingo Mobile for the month of December; and (iv) Tingo Foods, (purchased by the Company in February 2023) which commenced food processing operations in September 2022 .

 

Since July 1, 2020, following the completion of the Company’s acquisition of GFHI (the “GFHI Acquisition”) the Group has been operating in the financial technology sector. GFHI is a financial technology company with a marketplace in China, as well as the wider Southeast Asia area and other parts of the world and is currently in the process of building various platforms for business opportunities in different verticals and technology segments to capitalize on such technology and business, including the completion of the Company’s recent acquisitions of Tingo Mobile and Tingo Foods. The Company plans to increase its capabilities and its technological platforms through acquisition and licensing technologies to support its growth efforts, particularly in the agri-fintech, payment services, digital marketplace and financial services sectors.

 

In China, the Company is principally focused on developing insurance broker business and products across approximately 130 insurance branches in China through its subsidiaries and VIE entities, with planned expansion into additional markets. The Company has developed highly scalable proprietary platforms for insurance products (B2B, B2B2C and B2C) and financial services/products (B2C), the technology for which is highly adaptable for other applications and markets.

 

Following GFH Intermediate Holdings Ltd (“Intermediate”) acquisition of Magpie, a Hong Kong securities and investment services firm, on February 26, 2021 and the subsequent regulatory approval from the Hong Kong Securities and Futures Commission (“HKSFC”), Magpie is licensed to carry on Type 1 (dealing in securities), Type 2 (dealing in futures contracts), Type 4 (advising on securities) and Type 9 (asset management) regulated activities in Hong Kong.

 

Magpie launched Magpie Invest, a global stock trading app, on September 15, 2021. It is a proprietary technology investment trading platform that is currently operational in Hong Kong. Magpie has memberships/registrations with the Hong Kong Stock Exchange (“HKSE”), the London Stock Exchange (“LSE”) and the requisite Hong Kong and China Direct clearing companies. The Company’s financial services business and first financial services product, the Magpie Invest app, is able to trade securities on National Association of Securities Dealers Automated Quotations (” NASDAQ”) , New York Stock Exchange (“NYSE”) , TMX, HKSE, China Stock Connect, LSE, the Frankfurt Stock Exchange and the Paris Stock Exchange.

 

The growth of Magpie will continue to be realized and executed through the Company’s business development efforts, which include the pivot of Magpie’s strategic focuses to B2B, white-label and payment services in response to the change in market conditions for the retail client sector that materialized in 2022. In order to strengthen Magpie’s offering to potential B2B and white-label clients, and enable the broadening of its product offering, management made the decision to apply for a Capital Markets License (“CMS License”) from the Monetary Authority of Singapore (“MAS”), which was granted in full on September 20, 2022. Magpie’s CMS License enables it to offer several new products, including leveraged foreign exchange products and contracts for differences (“CFDs”), including CFDs on commodities prices and crypto-currency prices.

 

1

 

 

The following diagram illustrates the Company’s current corporate structure, including its subsidiaries, and variable interest entities (“VIEs”), as of December 31, 2022:

 

 

 

Acquisition of Tingo Mobile

 

Overview. On December 1, 2022, the Company acquired Tingo Mobile Limited, an agri-fintech business based in Nigeria (“Tingo Mobile”), from Tingo Inc., a Nevada corporation (“TMNA”). The acquisition was accomplished via a multi-phase forward triangular subsidiary merger. Under the terms of the Merger Agreement we entered into with TMNA and representatives of the shareholders of each of TMNA and the company (“Merger Agreement”), TMNA contributed its ownership of Tingo Mobile to a newly organized holding company incorporated in the British Virgin Islands (“Tingo BVI Sub”). TMNA then merged Tingo BVI Sub with and into MICT Fintech Ltd., a wholly-owned subsidiary of the company organized in the British Virgin Islands (“MICT Fintech”), resulting in Tingo Mobile being wholly-owned by the Company (hereinafter, the “Merger”).

 

Consideration Provided. As consideration for Tingo Mobile, we issued to TMNA 25,783,675 shares of our common stock, equal to 19.9% of our outstanding shares, calculated as of the closing date of the Merger (the “Common Consideration Shares”) and two series of convertible preferred shares – Series A Convertible Preferred Stock (“Series A Preferred Stock”) and Series B Convertible Preferred Stock (“Series B Preferred Stock”).

 

Key Terms of Series A Preferred Stock. Upon the approval of our stockholders, the Series A Preferred Stock will convert into 20.1% of the outstanding shares of our common stock, calculated as of the closing date of the Merger. If such shareholder approval is not obtained by June 30, 2023, all issued and outstanding shares of Series A Preferred Stock must be redeemed by us in exchange for TMNA receiving 27% of the total issued and outstanding shares of Tingo Group Holdings, LLC, a Delaware-incorporated subsidiary of the company (“TGH”) that is the immediate parent company of MICT Fintech, which in turn would reduce the Company’s interests in TGH and therefore Tingo Mobile by 27%. See TGH Group Structure below.

 

Key Terms of Series B Preferred Stock. Upon approval by Nasdaq of the change of control of the company and upon the approval of our stockholders, the Series B Preferred Stock will convert into 35.0% of the outstanding shares of our common stock, calculated as of the closing date of the Merger, giving TMNA an aggregate ownership of 75.0% of our outstanding common stock, if both the Series A and series B preferred stock are converted in full. If such shareholder or Nasdaq approval is not obtained by June 30, 2023, TMNA will have the right to cause us to redeem all of the Series B Preferred Stock for (x) $666,666,667 or, (y) an amount of common stock of TGH equivalent in value to $666,666,667.

 

Loan to TMNA. In connection with the Merger Agreement, we also loaned $23.7 million to TMNA. The loan bears interest at 5.0% per annum and matures on May 10, 2024.

 

2

 

 

Acquisition of Tingo Foods

 

Overview. On February 9, 2023, the company and MICT Fintech acquired from Dozy Mmobuosi, Tingo Mobile Founder and Chief Executive Officer all of the outstanding share capital of Tingo Foods PLC (“Tingo Foods”), a Nigerian public limited company that has operated in the food processing industry since its inception in September 2022. As part of its expansion strategy, Tingo Foods plans to fit out and operate a state-of-the-art food processing facility in the Delta State of Nigeria, which is expected to be the largest of its kind in Africa and scheduled for completion by the end of the first half of 2024. We agreed to fit out the Tingo Foods facility with the necessary processing equipment and further agreed to require Tingo Foods to enter into a long-term ground lease for the facility, with lease payments to commence when the facility becomes operational.

 

Consideration Provided. As consideration for Tingo Foods, we issued Mr. Mmobuosi a senior secured promissory note in the principal amount of $204 million, bearing interest at 5.0% per annum and maturing in 24 months.

 

About Tingo Group Holdings

 

TGH (and together with its subsidiaries, the “TGH Group”) is a Delaware limited liability company and a wholly-owned subsidiary of the Company. TGH is the leading Agri-Fintech company operating in Africa, with a comprehensive portfolio of innovative products, including a ‘device as a service’ smartphone and pre-loaded platform product. As part of its globalization strategy, TGH and its wholly owned subsidiary, Tingo Mobile Limited (“Tingo Mobile”), have recently begun to expand internationally and entered into trade partnerships that are contracted to increase the number of subscribed farmers from 9.3 million in 2022 to more than 32 million, providing them with access to services including, among others, the Nwassa ’seed-to-sale’ marketplace platform, insurance, micro-finance, and mobile phone and data top-up. Tingo Group’s other Tingo business verticals include: TingoPay, a SuperApp in partnership with Visa that offers a wide range of B2C and B2B services including payment services, an e-wallet, foreign exchange and merchant services; Tingo Foods, a food processing business that processes raw foods into finished products such as rice, pasta and noodles; and Tingo DMCC, a commodity trading platform and agricultural commodities export business based out of the Dubai Multi Commodities Center.

 

Tingo Mobile’s Nwassa platform is believed to be Africa’s leading digital agriculture ecosystem that empowers rural farmers and agri-businesses by using proprietary technology that enables users to access markets in which they operate. Using Tingo Mobile’s ecosystem, farmers can ship produce from farms throughout Nigeria, in both retail and wholesale quantities. Tingo Mobile’s system provides real-time pricing, straight from the farms, which eliminates middlemen. The customers of Nwassa users pay for produce bought using available pricing on the platform.

 

Although TGH has a large retail subscriber base, its business model is essentially a business-to-business-to-consumer (“B2B2C”) model. Each of TGH’s current subscribers is a member of one of a small number of cooperatives with whom a subsidiary of TGH has a contractual relationship, which facilitates the distribution of Tingo-branded smartphones into the various rural communities of user farmers/agri-workers. Through TGH’s smartphones and proprietary applications imbedded in the phones, TGH is able to provide a wider array of agri-fintech services and generate diverse revenue streams as described in more detail herein.

 

Services offered to TGH’s retail subscribers include smart phone leasing, an agri-marketplace, airtime top ups, utility payment services, bill-pay and e-wallet, insurance products and access to finance and lending services. The TGH Group offers its services to the agricultural market through the Nwassa platform and has recently launched a general B2C and B2B fintech platform and super-app, in partnership with Visa, branded as TingoPay.

 

On October 19, 2022, Tingo Mobile, signed an agreement with the All Farmers Association of Nigeria (AFAN), the umbrella body of the 56 recognized commodities and agricultural associations in Nigeria. Under the terms of the agreement, AFAN committed to add a minimum of 20 million additional subscribers to Tingo Mobile’s customer base. These new subscribers are expected to be comprised principally of owners of small and medium-sized agricultural enterprises throughout the country.

 

On November 10, 2022, Tingo Mobile opened a new regional head office in Ghana and launched operations there. In conjunction with the launch, Tingo Mobile also announced an agreement with the Ashanti Investment Trust, the investment arm of the Ashanti Kingdom, to enroll a minimum of 2 million new members in Ghana with Tingo Mobile within 120 days of signing and has agreed on a target to increase such enrollments to at least 4 million members.

 

On December 14, 2022, Tingo Mobile launched in Malawi as a strategic base from which to expand into East Africa and target neighboring countries such as Tanzania, Zambia, and Mozambique.

 

3

 

 

In addition to its agri-fintech business, on December 12, 2022, TGH launched its global commodities trading platform and export business (“Tingo DMCC”) from the Dubai Multi Commodity Centre (the “DMCC”) to facilitate offtake and export of agricultural commodities from both its existing customer base and new customers. Through the strong relationships between Tingo Mobile and the cooperatives and other parties it deals with in Nigeria and Ghana, TGH has secured access to significant quantities of agricultural produce for export, including wheat, millet, cassava, ginger, cashew nuts, cocoa and cotton.

 

On February 9, 2023, TGH acquired the entire share capital of Tingo Foods, which commenced food processing operations in September 2022, generating more than $400 million of revenue in its first four months of trading. Through Tingo Foods, the TGH Group expects to enhance its ability to integrate agricultural producers into the ’seed to sale’ value chain and digital ecosystem.

 

A key element of the growth plans for Tingo Foods is the development of its own food processing facility. To this end, through a joint venture, Tingo Foods has committed to build and operate a state-of-the-art $1.6 billion food processing facility in the Delta State of Nigeria, which is expected to be completed by the end of the first half of 2024. Tingo Foods estimates that its part of the build and fit-out costs will amount to approximately $500 million, which it expects to fund out of a combination of retained earnings and debt finance. The new facility is expected to multiply the size of Tingo Food’s processing capacity and revenues, allowing it to expand its current product range of rice, pasta, noodles, and other staple foods into new product areas such as tea, coffee, cereals, chocolate, biscuits, cooking oils, non-dairy milks, carbonated drinks, and mineral water, while also materially expanding its capacity for the offtake of produce from its farmers and increasing its supply into TGH’s commodity trading platform and export business. In line with its Environmental, Social and Governance (“ESG”) commitments, Tingo Foods has entered into a partnership with a third party company in the UK, Evtec Energy Plc, who have committed to fund and build a $150 million net zero carbon emission solar plant, to provide a sustainable and low-cost energy source to power its multi-billion dollar food processing facility. Through this first-of-its-kind facility in Nigeria, Tingo Foods aims to reduce Africa’s reliance on the import of finished food and beverage products and to increase exports of made-in-Africa produce, which in turn is expected to reduce the prices of finished products and significantly reduce shipping miles and carbon emissions.

 

As part of the TGH Group’s strategy to leverage its fintech platforms, infrastructure and the Tingo brand, it recently launched the TingoPay Super App in partnership with Visa. TingoPay broadens TGH’s reach outside of the agricultural sector, targeting retail customers of any age (18+) and demographic. TingoPay customers can apply for a Tingo Visa card and then access it via the TingoPay Super App, so as to make online transactions in their domestic or foreign currencies, as well as to manage their cards, set up repeat payments and access transaction statements. The Tingo Visa card’s interface with the TingoPay super app and e-wallet also allows customers to use their digital money easily and securely for both online and physical payments anywhere Visa is accepted. Additionally, TingoPay’s users can benefit from a broad selection of value-added services, including the ability to pay utilities and bills, top-up airtime and data, make funds and forex transfers, apply for loans, arrange pensions, purchase insurance products, make travel bookings and access the Nwassa agricultural produce marketplace. TingoPay and the Tingo Visa partnership are also expected to deliver significant benefits to businesses, in particular farmers and other Small and Medium Enterprises (SMEs) across all sectors. The integration of Visa’s range of merchant services with TingoPay’s commerce portal and the Nwassa marketplace, enables businesses to accept payments easily and securely in any currency from both retail and business customers, and use the TingoPay e-wallet to immediately fund purchases of inputs and make other payments.

 

TGH has an experienced management team, led by Dozy Mmobuosi, who founded Tingo Mobile in 2001 and serves as the TGH Group CEO. Mr. Mmobuosi is supported by an executive management team and has additional senior management personnel within each of its subsidiaries who are responsible for executing the TGH Group’s business strategy and day-to-day operations.

 

The TGH Group currently has trading operations in Nigeria, Ghana and Malawi in connection with Tingo Mobile, TingoPay and Tingo Foods, and Dubai in connection with the commodity trading platform and export business. In addition, TGH Group has administrative offices in the United States and the United Kingdom, which handle certain of the management and finance activities of the Company. 

 

4

 

 

TGH Strategy

 

The TGH Group aims to be the leading fintech and agri-fintech business in Africa, before expanding into Southeast Asia and certain other parts of the world, delivering financial inclusion and financial upliftment to its customers, including to rural farming communities through the Company’s agri-fintech platform and products.

 

ESG Initiatives. Global climate change provides a challenge to sustainable production and food security. A key area of global interest under the United Nations Sustainable Development Goals (“SDGs”) and environmental, social and governance (“ESG”) impact investing is social upliftment. TGH’s strategy and market execution naturally includes ESG principles and provides an opportunity to address SDGs, including food security, in Africa and globally. TGH seeks to accomplish this through its full range of agri-fintech products, including its Nwassa platform, its global commodity platform and export business and its Tingo Food food processing business. As noted above, TGH aims to align with SDGs and related initiatives, such as gender equality through upliftment of female entrepreneurship, financial inclusion, poverty alleviation and zero hunger.

 

Strategic Initiatives. TGH opportunistically reviews potential partnerships and mergers and acquisitions. TGH intends to identify key strategic partners and potential acquisitions that it believes can accelerate the TGH Group’s expansion towards becoming the leading agri-fintech operator in Africa, Southeast Asia and other emerging markets. TGH believes that pursuing a select number of investments in the agri-tech, banking services and fintech sectors can provide a strong pathway to enhance its proven activities in Nigeria and replicate them elsewhere, and TGH will continuously evaluate such opportunities. As TGH continues to grow, it intends to develop further strategic relationships and projects related to enhancing and expanding its capabilities and the development of the services that the TGH Group offers.

 

Agri-Fintech and Value-Added Services. TGH generates income from agri-fintech and value-added services, including, but not limited to:

 

Mobile device leasing ‘Device-as-a-Service’ (12-month contracts);

 

Airtime and data top-ups;

 

Nwassa (Agri-marketplace platform and value added transaction services);

 

Utilities and other bill pay services through its electronic wallet solution; and

 

Cross-sell fees from referrals for insurance and lending services offered by strategic partners.

 

Export Services. In connection with the launch of Tingo DMCC, TGH intends to provide various services related to its export business, either directly or outsourced to third parties, including:

 

Procurement;

 

Invoicing, billing, and collections;

 

Warehousing and storage;

 

Logistics services, including loading, unloading, transport, and delivery; and

 

Customs clearance and certified inspection.

 

5

 

 

Food Processing Services. In connection with the acquisition of Tingo Foods, TGH aims to become the preferred buyer of surplus agricultural produce in Africa and elsewhere, and a leading processor of finished food and beverage products.

 

Tingo Foods’ goal in Africa is to reduce the continent’s reliance on the import of finished food and beverage products and increase its exports of made-in-Africa produce between countries within the continent, as well as to the rest of the world. This is expected to reduce the prices of finished goods for Africa’s consumers, while also creating a substantial environmental benefit by reducing the current need to export raw food materials outside of the continent for processing only to then import the finished and more expensive products back into Africa. To enable Tingo Foods to significantly accelerate its growth and increase capacity, it has entered into a joint venture to construct and operate a $1.6 billion state-of-the-art food processing facility in Nigeria, which is expected to the largest of its kind in Africa. Tingo Foods expects to construct and open more food processing facilities in Africa and other key markets as it grows and as it secures the supply of more agricultural produce through Nwassa platform using Tingo Mobile.

 

  Key Strategies. TGH intends to achieve growth and build competitive advantages through the following key strategies:

 

  Increasing the number of TGH users in Nigeria, including through new partnerships with additional agricultural cooperatives;

 

Extending TGH’s services to other African countries, in addition to Nigeria, Ghana, and Malawi, where the TGH Group currently operates — these may include Tanzania, Zambia, Mozambique, Uganda and Kenya. TGH is conducting a detailed review with its corporate advisors to determine how best it can optimize and develop market entry strategies based on its proven success in Nigeria and, most recently, Ghana and Malawi;

 

In the medium term, expanding TGH’s services to countries outside of Africa, including China, other countries in Southeast Asia and certain countries in South America;

 

Expanding the Tingo DMCC commodity platform and export business across the globe;

 

Increasing the food and beverage processing capacity of Tingo Foods, including in to other countries within Africa and into other parts of the world; and

 

Further diversifying the TGH B2C and B2B customer base outside of the agricultural sector, with products such as TingoPay, Tingo Visa products, new app based products and a range of payment and foreign exchange services.

 

6

 

 

TGH Group Structure

 

The TGH Group structure has been organized to facilitate expansion within Africa, the integration of Tingo Foods into the company’s agricultural value chain, as well as the creation of TGH’s commodity export financing subsidiary in Dubai. The organizational structure of the TGH Group is represented in the following diagram (other non-agri-fintech subsidiaries of the company not shown):

 

 

 

Operations and Business Model

 

A key challenge in Africa’s agricultural value chain is the weak link between rural small holder farmers and demand centers in urban areas. TGH has developed the Nwassa platform to connect farmers directly with wholesale and retail purchasers, as well as experienced experts and suppliers. Farmers and farm cooperatives connect with brokers, arrange for storage and transportation of their produce, and ultimately obtain improved economic outcomes through higher product prices and lower storage and transportation losses. Since the launch of Nwassa in 2020  adoption and usage of the platform has grown rapidly.

 

Approximately 98% of TGH’s customers are active users of the Nwassa platform, and the platform processes approximately $1 billion USD in gross transaction value (GTV) on a monthly basis. In addition, TGH has invested in a cell-on-wheels platform to boost network and wireless coverage in regions with low wireless coverage in an effort to ensure its customers have consistent access to TGH services and Nwassa whenever such is required.

 

We believe that, as the TGH Group’s business continues to grow, it is positioned to benefit from operating leverage and economies of scale. In particular, TGH is able to provide incremental value-added services to its large customer base.

 

Customers. TGH, principally through Tingo Mobile, its wholly-owned subsidiary, has consistently maintained over 9.3 million customers since 2014, with a focus on supporting customers who primarily work in the agricultural sector, which is now expected to grow through the recently signed trade partnerships with the All Farmers Association of Nigeria, who have contracted to enrol a minimum of 20 million new farmers, and the Kingdom of Ashanti in Ghana, who have contracted to enrol between 2 million and 4 million+ farmers, as well as the recent launch into Malawi, and other such geographical expansion and new trade partnerships in the future. Tingo Mobile has been able to do this though a unique and efficient B2B2C business model.  A member of the TGH Group contracts with farming cooperatives and other associations who engage their large agricultural customers to utilize Tingo’s products and services. TGH’s customers are a mix of farmers (small holder and subsistence), and individuals who work in storage, transportation and logistics across the agricultural value chain. The number of customers stated above represents the number of mobile handset devices that have been distributed, with 1 year (12 month) contracts, to members of TGH’s partner farmers’ cooperatives and those making monthly (12) lease payments, via the cooperatives, to TGH. TGH then provides additional services to the members of the cooperatives as described herein, primarily through the Nwassa platform.

 

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  1. Low Attrition.

 

Because TGH contracts with agricultural cooperatives and associations who facilitate access to branded mobile devices and services to their members, attrition or “churn” rates have been consistently less than 1% over the last nine years.  The members of the farmers’ cooperatives have the option to sign up to TGH’s non-cancellable agreements for a 1-year leasing period. While these are non-cancelable agreements, there are instances whereby the farmers may cease making payments. However, as noted above, there has been a churn rate of less than 1% over each leasing cycle.

 

Customer count and activity on TGH’s various platforms are key drivers of its revenue. TGH currently generates revenue from the following sources:

 

Outright Sales of Mobile Phones. In 2020, Tingo Mobile sold 3.1 million handsets to a distributor based in Kenya, and in Q4 2021 Tingo Mobile sold an additional 2.9 million handsets to a non-agricultural cooperative in Nigeria. In Q3 2022, Tingo Mobile sold an additional 87,508 mobile devices in a bulk sale. TGH will likely seek to pursue similar sales opportunities in the future.

 

Mobile Voice and Data Service. Through a Mobile Virtual Network agreement with Airtel, Tingo Mobile provides its customers in Nigeria with voice and data services. Each month its customers receive 2,500 airtime minutes, 10 free SMS text messages outside the Tingo network, 100 free SMS messages within the Tingo network and 500 MB data for a monthly access fee of circa $3.00 USD (using 414 USD/NGN exchange rate) per month. This fee is shared with Airtel, of which TGH’s share (16%) equates to USD $0.48 per user per month.

 

Nwassa Platform. TGH’s proprietary platform, Nwassa, supports Nigeria’s agricultural value chain with market access and provides users with a variety of agri-tech and fintech services, including:

 

Access to agricultural markets for crops, packaging, warehousing, and cargo logistics;

 

Digital wallet services, including sending and receiving domestic payments, monitoring cash flow in real time and securely holding money;

 

Access to other third-party services such as utility bill payment, virtual airtime top-up, insurance services, and alternative lending solutions. For each third-party service or product purchased by its customers, TGH receives an introducer fee or commission:

 

Utility bill payment, airtime sales and commodity sales: 4% commission;

 

Insurance on the insureds mobile handsets of 100 NGN (or foreign equivalent) per subscriber, the USD equivalent is $0.24 per subscriber using 414 NGN/USD exchange rate;

 

  Lending: TGH receives a commission on each loan arranged with third party lenders via the platform;

 

Tingo Pay. The Tingo Pay app was launched in February 2023. Tingo Pay offers the following services:

 

Tingo wallet top-up;

 

Peer-to-peer payments (including merchant payments at stores);

 

Utility and expense payments (e.g., airtime, broadband, cable, electricity, water, hotels, flights);

 

Pension payments; and

 

QR code payment services.

 

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Separate to its Tingo Mobile, Nwassa and TingoPay businesses, TGH has diversified into the Tingo DMCC commodity trading platform and export business and the Tingo Foods food processing business, both of which aim to meet the globe’s increasing shortfall in food and beverage product supply and to tackle the world’s food security crisis. Tingo DMCC and Tingo Foods currently generate revenues from the following sources:

 

Tingo DMCC. The commodity trading platform and export business of Tingo DMCC facilitates through its operations in Dubai the sales of agricultural produce from farming cooperatives in Africa, as well as from other suppliers, and brokers the sale of such produce to distribution companies, wholesalers, supermarket groups and other large-volume buyers wherever they are in the world.

 

Tingo Foods. Having commenced trading in September 2022, Tingo Foods was acquired by TGH on February 9, 2023. To date, Tingo Foods has outsourced its processing activities to third-party food processing plants in Nigeria, for which Tingo Foods arranges the supply of raw crops, as well as the customers for the finished processed foods. Tingo Foods aims to open its own state-of-the-art food processing facility in Nigeria by the end of the first half of 2024, which will enable it to significantly expand its product range and also multiply the size of its processing capacity and revenues.

 

Competition

 

In Nigeria and the other African countries in which TGH operates, it competes with a large number of mobile phone carriers. Current competitors may seek to intensify their investments in those markets and also expand their businesses into new markets. Competitive pressure from current or future competitors or TGH’s failure to quickly and effectively adapt to a changing competitive landscape could adversely affect its growth. Current or future competitors may offer lower prices and enhanced features, and, as a result, TGH may be forced to lower its prices and upgrade its phones and network in order to maintain its market share.

 

With respect to TGH’s payment services, TGH faces competition from financial institutions that offer payment processing services, debit and credit card service providers, other offline payment options and other electronic payment system operators, in each of the markets in which TGH operates. TGH expects competition to intensify in the future, as existing and new competitors may introduce new services or enhance existing services. New entrants tied to established brands may engender greater user confidence in the safety and efficacy of their services.

 

We believe that developing and maintaining awareness of the Tingo brand is critical to achieving widespread acceptance of the Tingo network and is an important element in attracting new users. Furthermore, we believe that the importance of brand recognition will increase as competition in TGH’s markets increases. Successful promotion of the Tingo brand will depend largely on the effectiveness of TGH’s marketing efforts and its ability to ensure that the Tingo network remains reliable, and useful at competitive prices. Brand promotion activities may not yield increased revenue, and even if they do, any increased revenue may not offset the expenses TGH incurs in building its brand. If TGH fails to successfully promote and maintain its brand or incurs substantial expenses in an unsuccessful attempt to promote and maintain its brand, TGH may fail to attract new customers and cooperative partners or to grow or maintain its telecommunications network.

 

If TGH fails to compete effectively, it may lose existing users and fail to attract new users, which could have a material adverse effect on its business, financial condition, results of operations and prospects.

 

Market and Industry Trends

 

Africa is the second-largest continent by land mass and population. The continent is also the youngest by far, with a median age of 19.7 years for its 1.3 billion people in 2020. Tingo believes the building blocks for growth in Africa’s agriculture industry are in place and that it is well positioned to participate in the growth of this key demographic segment.

 

In a report by The Economist, Sub-Saharan Africa’s population is growing at a pace of 2.7% per year, which is more than twice as fast as the populations of South Asia 1.2% and Latin America 0.9%. At the current growth rate, the continent’s population will double by 2050. Africa’s younger population represents a significant opportunity for growth in the demand for agricultural commodities. This younger generation is also being born into a “networked” world and is more comfortable using technology to achieve their goals. In addition, Africa’s governments are increasingly focused on improving business conditions for entrepreneurs and small businesses on the continent. Sub-Saharan Africa’s World Bank Doing Business rank has improved by approximately 20 points: from 45 in 2004 to 65 in 2020. This trend appears likely to continue and will encourage the establishment of new ventures across a variety of economic sectors, including agriculture.

 

Foreign direct investment (FDI) to African countries hit a record $83 billion in 2021, according to UNCTAD’s World Investment Report 2022 published on 9 June. This was more than double the amount reported in 2020, when the COVID-19 pandemic weighed heavily on investment flows to the continent. Despite the strong growth, investment flows to Africa accounted for only 5.2% of global FDI, up from 4.1% in 2020. Foreign direct investments into Africa will likely continue to help resolve significant infrastructure constraints and create value in the agricultural sector.

 

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Nigeria is the largest economy and the most populous country in Africa and is therefore central to the continent’s growth. According to an Oxford Business Group 2021 report, agriculture accounts for 14% of total GDP in sub-Saharan Africa, and a majority of the continent’s population is employed in the sector. Agriculture is therefore central to African livelihoods as many of sub-Saharan Africans are small holder farmers and the FAO estimates that Africa holds 60% of the world’s uncultivated arable land.

 

In Nigeria, the agricultural industry employs 36% of the labour force and represents 22% of the country’s GDP according to a PWC report. Despite the scale of the agricultural industry in Nigeria, relative productivity remains disappointing. Nigeria’s suboptimal agricultural productivity is driven by several factors, including broken linkages to demand centers, inefficient capital allocation for the purchase of inputs, and underdeveloped and fragmented access to services. Tingo aims to play a significant role in resolving these issues.

 

Technology, Manufacturing and Distribution

 

TGH continuously invests in its technology, data collection and analytics capabilities, operating primarily through TGH-employed developers in Nigeria. TGH’s research and development activities focus on the production, maintenance and operation of new and existing products and services. We believe the development of TGH’s technology serves as an investment in future growth that will enhance consumer experience and satisfaction. We may seek to increase investments into TGH’ technology and data capabilities in the future.

 

In March 2020, Tingo Mobile entered into a mobile phone procurement contract with UGC Technologies Company Limited, with located in Shenze Town, China. In January 2022, Tingo Mobile entered into an agreement with Bullitt Mobile Limited, based in Reading, England, who are a supplier of branded cellular telephone products and accessories. We made the decision to diversify Tingo Mobile’s supplier base given the many challenges experienced by companies with globally distributed supply chains through the Covid-19 pandemic.

 

UGC Technologies Company Limited and Bullitt Mobile Limited are the TGH Group’s sole suppliers of mobile phones at present. The procurement contract with UGC Technologies Company Limited allows TGH to raise purchase orders in line with its customer demand and provides capacity to meet demand from wholesale customers. In addition, TGH is exploring opportunities to establish relationships with other production partners.

 

Intellectual Property

 

Intellectual property rights are important to TGH’s business. We rely on copyright laws in the United States and other jurisdictions to establish and protect its intellectual property rights. However, these laws provide only limited protection. Although we takes steps to protect the TGH Group’s intellectual property rights, we cannot be certain that the steps taken will be sufficient or effective to prevent unauthorized access, use or copying. Moreover, others may seek to infringe on, misappropriate, or otherwise violate TGH’s intellectual property rights. Policing the unauthorized use of TGH’s intellectual property rights can be difficult. The enforcement of TGH’s intellectual property rights also depends on any legal actions we may bring against any such parties being successful, but these actions are costly, time-consuming, and may not be successful, even when TGH’s rights have been infringed, misappropriated, or otherwise violated.

 

In addition, aspects of TGH’s platform and services include software covered by open-source licenses. The terms of various open-source licenses have not been interpreted by United States courts, and there is a risk that such licenses could be construed in a manner that imposes unanticipated conditions or restrictions on TGH’s services.

 

Although TGH relies on intellectual property rights in its business, it also seeks to preserve the integrity and confidentiality of its intellectual property rights through appropriate technological restrictions, such as physical and electronic security measures.

 

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Employees, Contract Personnel and Human Capital Resources

 

TGH employs approximately 30 executive, marketing, and administrative personnel, inclusive of its executive officers. The TGH Group has approximately 409 full-time employees, 38 part-time employees, and approximately 20,000 part-time, commission-only self-employed agents who work with TGH’s farmer cooperatives and the All Farmers Association of Nigeria. The self-employed agents act representatives and liaisons between Tingo Mobile, the cooperatives / AFAN and the farmers enrolled with Tingo Mobile and the Nwassa platform, assisting the farmers to utilize the services of Tingo Mobile and Nwassa and generate more transaction throughput, and to deal with any customer services requirements.

 

TGH understands that its success depends on its ability to attract, train and retain its employees and contract personnel. TGH strives to attract, recruit, and retain employees through competitive compensation and benefit programs, learning and development opportunities that support career growth and advancement opportunities, and employee engagement initiatives that foster a strong company culture.

 

Facilities

 

The TGH Group’s largest office is in Lagos, Nigeria, where the bulk of its operations and support personnel are located. Tingo also has offices located in Accra in Ghana, Lilongwe in Malawi and in Dubai.

 

In the United States and the United Kingdom, TGH subleases office space on a month-to-month basis.

 

Government Regulation

 

Telecommunications Regulation

 

NCC Act. The primary statute and set of regulations governing the telecommunications sector in Nigeria is the Nigerian Communications Act (2003) (the “NCC Act”) and regulations made under it. Also relevant are the Wireless Telegraphy Act (1966), as amended (the “WT Act”), Cybercrimes (Prohibition Prevention, Etc.) Act (2015), the National Information Technology Development Agency Act (2007) and, to the extent that telecommunications companies may wish to use spectra ordinarily reserved for broadcast, the National Broadcast Commission Act (1992) and the respective regulations made under these statutes. The NCC Act is the key regulatory framework for the Nigerian telecommunications industry. The NCC Act stipulates rules relating to the classes of licenses, licensing processes and offenses for failure to comply with the provisions of the Act. It established the Nigerian Communications Commission (“NCC”) as a federal agency and regulator charged with the responsibility of facilitating investments in and entry into the Nigerian market for the provision and supply of communication services, equipment and facilities, granting and renewing communications spectrum and operating licenses and the promotion of fair competition in the communications.

 

Nigerian Communications Commission (NCC). The NCC is the independent national regulatory authority for the telecommunications industry in Nigeria. It is responsible for stimulating investments in the sector and creating an enabling environment for competition among operators in the industry. The NCC is mandated to monitor all significant matters relating to the performance of all licensed telecommunications service providers and publish annual reports. The powers of the NCC range from the issuance of various licenses relating to the provision of communications services, equipment, and products, to regulating competition, issuing spectrum and numbering resources for the industry.

 

Licensing Framework for the Nigerian Telecommunications Sector. License requirement Section 32 of the NCC Act empowers the NCC to issue communication licenses for the operation and provision of communication services or facilities by way of class or individual license on such terms and conditions as the NCC may from time to time determine. No person can operate a telecommunications system or facility, or provide a communications service in Nigeria, unless authorized to do so under a communications license or exempted under regulations made by the NCC. The NCC also issues an ‘international sub-marine cable infrastructure landing station services license’, which allows the licensee to land, install, operate and manage submarine cable infrastructure in Nigeria. The license is typically for a period of 20 years or such other period as may be imposed by the regulator.

 

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Technical Standards and Duties to End Customers. The NCC Act and guidelines issued pursuant to it prescribe technical standards to which Tingo Mobile’s partner Airtel Nigeria is required to adhere. Under Section 130 of the NCC Act, the NCC must publish technical codes and specifications for telecommunication equipment and facilities to be used in Nigeria. It is an offense to use any technical equipment or system which hinders network inter-operability, or which compromises public safety. The NCC must also conduct type approval tests and issue certificates in respect of communications equipment and facilities to be used in Nigeria. It is an offense punishable by fine or imprisonment to sell or install any communications equipment or facilities without first obtaining the NCC’s type approval test certificate. The NCC regularly publishes technical standards applicable to all telecommunications equipment to be used in Nigeria on its website, as well as lists of approved handsets and telecommunications equipment that have been tested and approved by the NCC for use in Nigeria.

 

Universal Service Obligations. The NCC Act empowers the NCC to design, manage and implement a universal service system that will promote widespread availability and usage of network services and application services throughout Nigeria. The NCC furthers this objective by encouraging the installation of network facilities and the provision of network services and applications to institutions in underserved areas and communities.

 

Federal Ministry of Communications. The Federal Ministry of Communications for Nigeria is responsible for policy formulation as it pertains to the information and communications technology sector. Its policy direction drives activities and developments within the sector. The Federal Ministry of Communications is mandated to facilitate universal, ubiquitous and cost-effective access to communications infrastructure and to utilize information and communications for job creation, economic growth and transparency in governance.

 

Anti-Money Laundering Act and Anti-Money Laundering Regulations. Section 1 of the Nigeria Money Laundering (Prohibition) Act, 2011 (the “MLA”) provides that no body corporate shall, except in a transaction concluded through a financial institution, make or accept cash payment of a sum exceeding ₦10 million (approximately $27 thousand USD). Section 2 of the MLA places a reporting obligation on any body corporate transferring funds or securities exceeding $10 thousand USD or its equivalent to or from a foreign country. The relevant body corporate is required to report in writing, within seven days of the transaction, to the Central Bank of Nigeria and the Nigerian SEC.

 

Data Protection Laws

 

The Consumer Code of Practice Regulations. The Consumer Code of Practice Regulations (2007) (the “CCP Regulations”) issued by the NCC regulates data protection in the telecommunications sector. The CCP Regulations obligate NCC licensees to take all steps reasonable to prevent the “inappropriate” and “inadvertent” disclosure of customers’ information. The CCP Regulations also prohibit the transfer of the information of customers to third parties except as consented to by the customers or as permitted or required by the NCC or other applicable legal or regulatory requirements. Licensees that collect customers’ information are required to adopt and implement a policy regarding the proper collection, use and protection of that information and ensure that other licensees to whom they disclose such information have adopted the consumer information policy.

 

The Nigeria Data Protection Regulations. The Nigeria Data Protection Regulations (2019) (the “NDPR”) safeguard the rights of natural persons to data privacy and prohibit the manipulation of personal data. The NDPR applies to all transactions intended for the processing of personal data and the actual processing of personal data, notwithstanding the means by which the data processing is conducted or intended to be conducted, and in respect of natural persons present in Nigeria and natural persons residing in Nigeria or residing outside Nigeria but of Nigerian descent (the “Data Subject”). The NDPR imposes a duty of care on anyone entrusted with or in possession (“Data Controller”) of any information relating to a Data Subject (including but not limited to names, photographs, bank details, posts on social networking sites, and IP addresses) (“Personal Data”). A Data Controller will be held accountable for acts and omissions in respect of data processing and in accordance with the principles of handling Personal Data in the NDPR which are: (a) collection and procession of Personal Data in line with the specific, legitimate and lawful purpose consented to by the Data Subject; (b) adequacy, accuracy and non-prejudice of Personal Data; (c) storage during a reasonable period of need; and (d) security against all foreseeable hazards and breaches including but not limited to cyber-attack, manipulations and damage by exposure to natural elements.

 

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The consent of the Data Subject must be obtained by the Data Controller before processing the Personal Data of the Data Subject. In obtaining consent, the specific purpose of collection must be made known to the Data Subject. The Data Controller has an obligation to ensure that consent is not obtained by fraud, coercion or undue influence. Consent should also not be sought, given or accepted in any circumstance that will engender the direct or indirect propagation of criminal acts or antisocial conduct.

 

Legal Proceedings

 

In November 2017, the Nigeria Economic and Financial Crimes Commission (“EEFC”) brought a criminal charge (Case No. 6491C/2017) in the High Court of Lagos State, Nigeria, against Mr. Mmobuosi in connection with Tingo Mobile’s issuance of checks, amounting to approximately $72,000 in the aggregate, to three of Tingo Mobile’s suppliers. Payment on the checks was stopped due to a dispute with the suppliers over the delivery of services underlying the payments. These suppliers filed a petition with the EEFC who, in turn, filed the charge described above against Mr. Mmobuosi in his individual capacity as signatory for Tingo Mobile, as remitter of the checks.

 

The payment dispute between the suppliers, on the one hand, and Tingo Mobile, on the other hand, should have been resolved in a civil proceeding, particularly given that Tingo Mobile did have sufficient funds in its accounts to honor the checks, which would have been a prerequisite to defending a successful criminal charge. The suppliers, however, opted instead to file a petition with the EEFC against Tingo Mobile and Mr. Mmobuosi.

 

During the pendency of the charge, in April 2018, each of the suppliers entered into separate settlement agreements, dropping all charges against Tingo Mobile. Each of the suppliers also sent separate letters to the EEFC, informing the EEFC of their settlements and withdrawal of charges. Following the settlements and explanatory letters, the parties expected that the EEFC would, sua sponte, file a dismissal with the High Court.

 

As several years passed and the EEFC did not take action on its own to adjudicate or dismiss the charge, on June 28, 2022, counsel to Mr. Mmobuosi filed a Motion in the High Court of Lagos State in the Ikeja Judicial Division to dismiss the charges. The Motion has, thus far, been unopposed by the EEFC and any such opposition is not expected. We expect the matter to be dismissed later in 2023.

 

One or more members of the TGH Group is, from time to time, also involved in various de minimus legal proceedings before courts in the jurisdictions where we operate in the ordinary course of TGH’s business, and may also be subject to such proceedings in other countries. None of these proceedings is expected to have a material effect upon the TGH Group’s financial condition or results of operations.

 

TINGO GROUP’s Insurance Business Platform

 

The Company, through acquisitions from July 1, 2020 through July 2021 , holds several insurance businesses, that operate via its VIEs entities and subsidiaries, including one insurance brokerage company, Beijing Fucheng, and two insurance agency companies, All Weather and Guangxi Zhongtong, the Company conducts insurance brokerage and agency businesses in China and operates an online platform for sales of a wide range of insurance products, including, but not limited to, automobile insurance, property and liability insurance, life insurance and health insurance, which products are underwritten by over forty insurance companies in China.

 

VIE agreements with Guangxi Zhongtong:

 

On January 1, 2021, as amended on August 6, 2021, Bokefa, our wholly foreign-owned enterprise (“WFOE”), Guangxi Zhongtong, and nominee shareholders of Guangxi Zhongtong entered into six agreements, (together, the “Guangxi Zhongtong VIE Agreements”), described below, pursuant to which Bokefa is deemed to have controlling financial interest and be the primary beneficiary of Guangxi Zhogntong. Therefore, Guangxi Zhongtong is deemed a VIE of Bokefa.

 

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Loan Agreement

 

Pursuant to this agreement, Bokefa agreed to provide loans to the registered shareholders of Guangxi Zhongtong. The term of the loan shall start from the date when the loan is actually paid, until the date on which the loan is repaid in full. The agreement shall terminate when the shareholders repay the loan. The loan should be used solely for Guangxi Zhongtong’s operating expenses and should be exclusively repaid by transferring shares of Guangxi Zhongtong to Bokefa when PRC Law permits.

 

Exclusive Option Agreement

 

The effective term of the agreement is unlimited and the agreement shall terminate upon the transfer of all the equity interest of Guangxi Zhongtong to Bokefa in accordance with relevant laws and provisions as provided in the agreement, or upon written notice by Bokefa to shareholders. In consideration of Bokefa’s loan arrangement, the shareholders have agreed to grant Bokefa an exclusive option to purchase their equity interest. Distribution of residual profits, if any, are restricted without the approval of Bokefa. Upon request by Bokefa, Guangxi Zhongtong is obligated to distribute profits to the shareholders of Guangxi Zhongtong, who must remit such profits to Bokefa immediately. Guangxi Zhongtong and its shareholders are required to act in a manner that is in the best interest of Bokefa with regards to Guangxi Zhongtong’s business operation.

  

Equity Pledge Agreement

 

The agreement will be terminated upon such date when the other agreements have been terminated. Pursuant to the agreement, the nominee shareholders pledged all their equity interest in Guangxi Zhongtong to Bokefa as security for the obligations in the other agreements. Bokefa has the right to receive dividends on the pledged shares, and all shareholders are required to act in a manner that is in the best interest of Bokefa.

 

Business Cooperation Agreement

 

The agreement is effective until terminated by both parties. Guangxi Zhongtong and its shareholders agree that the legal person, directors, general manager and other senior officers of Guangxi Zhongtong should be appointed or elected by Bokefa. Guangxi Zhongtong and its shareholders agree that all the financial and operational decisions for Guangxi Zhongtong will be made by Bokefa.

 

Exclusive Service Agreement

 

The effective term of this agreement is for one year and it can be extended an unlimited number of times if agreed by both parties. Bokefa agrees to provide exclusive technical consulting and support services to Guangxi Zhongtong and Guangxi Zhongtong agrees to pay service fees to Bokefa.

 

Entrustment and Power of Attorney Agreement

 

The shareholders of Guangxi Zhongtong agreed to entrust all the rights to exercise their voting power and any other rights as shareholders of Guangxi Zhongtong to Bokefa. The shareholders of Guangxi Zhongtong have each executed an irrevocable power of attorney to appoint Bokefa as their attorney-in-fact to vote on their behalf on all matters requiring shareholder approval. The agreement is effective until deregistration of Guangxi Zhongtong.

 

On August 23, 2021, Beijing Yibao Technology Co., Ltd (“Beijing Yibao”), Guangxi Zhongtong Insurance Agency Co., Ltd (“Guangxi Zhongtong”), and two shareholders of Guangxi Zhongtong entered into a capital increase agreement pursuant to which Beijing Yibao will invest approximately RMB30 million (USD 4.7 million) into Guangxi Zhongtong. On October 21, 2021, Beijing Yibao transferred the funds separately and the transaction closed. As a result of the transaction, Beijing Yibao now holds a sixty percent (60%) equity interest in Guangxi Zhongtong and is the controlling shareholder. As a condition of the closing, the previous agreements consummated on January 1, 2021 per the GZ Frame Work Loan became null and void, and the loan should be repaid by the shareholders before December 31, 2023.

 

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VIE agreements with Beijing Fucheng:

 

On December 31, 2020, as amended on August 25, 2021, Bokefa, Beijing Fucheng Lianbao Technology Co., Ltd. (“Beijing Fucheng”), and the shareholders of Beijing Fucheng entered into six agreements, described below, pursuant to which Bokefa is deemed to have a controlling financial interest and be the primary beneficiary of Beijing Fucheng. Therefore, Beijing Fucheng is deemed a VIE of Bokefa. Beijing Fucheng was incorporated on December 29, 2020 and had no assets or liabilities as of December 31, 2020.

 

Loan Agreement

 

Pursuant to this agreement, Bokefa agreed to provide loans to the registered shareholders of Beijing Fucheng. The term of the loan under this agreement shall start from the date when the loan is actually paid and shall continue until the shareholders repay all the loan in accordance with this agreement. The agreement shall terminate when the shareholders repay the loan. The loan should be used solely for Beijing Fucheng’s operating expenses, and should be exclusively repaid by transferring shares of Beijing Fucheng to Bokefa when PRC Law permits. As of December 31, 2022, the loans were not drawn.

  

Exclusive Option Agreement

 

The effective term of the agreement is unlimited and the agreement shall terminate upon the transfer of all of the equity interest of Beijing Fucheng to Bokefa in accordance with relevant laws and provisions as provided in the agreement, or upon written notice by Bokefa to the shareholders. In consideration for Bokefa’s loan arrangement, the shareholders have agreed to grant Bokefa an exclusive option to purchase their equity interest. Distribution of residual profits, if any, is restricted without the approval of Bokefa. Upon request by Bokefa, Beijing Fucheng is obligated to distribute profits to the shareholders of Beijing Fucheng, who must remit those profits to Bokefa immediately. Beijing Fucheng and its shareholders are required to act in a manner that is in the best interest of Bokefa with regards to Beijing Fucheng’s business operations.

 

Equity Pledge Agreement

 

The agreement will be terminated at the date when the other agreements have been terminated. Pursuant to the agreement, the shareholders pledged all their equity interest in Beijing Fucheng to Bokefa as security for their obligations under the agreements. Bokefa has the right to receive dividends on the pledged shares, and all shareholders are required to act in a manner that is in the best interest of Bokefa.

 

Business Cooperation Agreement

 

The agreement is effective until terminated by both parties. Beijing Fucheng and its shareholders agree that the legal person, directors, general manager and other senior officers of Beijing Fucheng should be appointed or elected by Bokefa. Beijing Fucheng and its shareholders agree that all financial and operational decisions of Beijing Fucheng will be made by Bokefa.

  

Exclusive Service Agreement

 

The effective term of this agreement is for one year and it can be extended an unlimited number of times if agreed by both parties. Bokefa agrees to provide exclusive technical consulting and support services to Beijing Fucheng and Beijing Fucheng agrees to pay service fees to Bokefa.

 

Entrustment and Power of Attorney Agreement

 

The shareholders of Beijing Fucheng agreed to entrust all the rights to exercise their voting power and any other rights as shareholders of Beijing Fucheng to Bokefa. The shareholders of Beijing Fucheng have each executed an irrevocable power of attorney to appoint Bokefa as their attorney-in-fact to vote on their behalf on all matters requiring shareholder approval. The agreement is effective until deregistration of Beijing Fucheng.

 

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VIE agreements with All Weather:

 

On July 1, 2021, Bokefa, All Weather, and nominee shareholders of All Weather entered into six agreements, described below, pursuant to which Bokefa is deemed to have a controlling financial interest and be the primary beneficiary of All Weather. All Weather is deemed a VIE of Bokefa.

 

Loan Agreement

 

Pursuant to this agreement, Bokefa agreed to provide loans to the shareholders of All Weather. The term of the loan shall start from the date when the loan is actually paid until the date on which the loan is repaid in full. The agreement shall terminate when the shareholders repay the loan. The loan should be used solely by All Weather for operating expenses, and should be exclusively repaid by transferring shares of All Weather to Bokefa when PRC Law permits.

 

Exclusive Option Agreement

 

The effective term of the agreement is unlimited and the agreement shall terminate upon the transfer of all of the equity interest of All Weather to Bokefa in accordance with relevant laws and provisions in the agreement, or upon written notice by Bokefa to the shareholders. In consideration for Bokefa’s loan arrangement, the shareholders have agreed to grant Bokefa an exclusive option to purchase their equity interest. Distribution of residual profits, if any, is restricted without the approval of Bokefa. Upon request by Bokefa, All Weather is obligated to distribute profits to the shareholders of All Weather, who must remit the profits to Bokefa immediately. All Weather and its shareholders are required to act in a manner that is in the best interest of Bokefa with regard to All Weather’s business operations.

 

Equity Pledge Agreement

 

The agreement will be terminated at the date when the other agreements have been terminated. Pursuant to the agreement, the nominee shareholders pledged all their equity interest in All Weather to Bokefa as security for their obligations pursuant to the other agreements. Bokefa has the right to receive dividends on the pledged shares, and all shareholders are required to act in a manner that is in the best interest of Bokefa.

 

Business Cooperation Agreement

 

The agreement is effective until terminated by both parties. All Weather and its shareholders agree that the legal person, directors, general manager and other senior officers of All Weather should be appointed or elected by Bokefa. All Weather and its shareholders agree that all the financial and operational decisions of All Weather will be made by Bokefa.

 

Exclusive Service Agreement

 

The effective term of this agreement is for one year and it can be extended an unlimited number of times if agreed by both parties. Bokefa agrees to provide exclusive technical consulting and support services to All Weather and All Weather agrees to pay service fees to Bokefa.

 

Entrustment and Power of Attorney Agreement

 

The shareholders of All Weather agreed to entrust all their rights to exercise their voting power and any other rights as shareholders of All Weather to Bokefa. The shareholders of All Weather have each executed an irrevocable power of attorney to appoint Bokefa as their attorney-in-fact to vote on their behalf on all matters requiring shareholder approval. The agreement is effective until the deregistration of All Weather. 

 

VIE agreements with Tianjin Dibao:

 

On April 2, 2022, Shanghai Zheng Zhong Energy Technologies Co., Ltd, Tianjin Dibao, and nominee shareholder of Tianjin Dibao entered into six agreements, described below, pursuant to which Zheng Zhong Energy is deemed to have a controlling financial interest and be the primary beneficiary of Tianjin Dibao. Tianjin Dibao is deemed a VIE of Zheng Zhong Energy.

 

Loan Agreement

 

Pursuant to this agreement, Zheng Zhong Energy agreed to provide loans to the shareholder of Tianjin Dibao. The term of the loan shall start from the date when the loan is actually paid. The agreement shall terminate when the shareholder repay the loan. The loan should be used solely to purchase Tianjin Dibao’s 76% equity, and should be exclusively repaid by transferring shares of Tianjin Dibao to Zheng Zhong Energy when PRC Law permits.

 

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Exclusive Option Agreement

 

The effective term of the agreement is unlimited and the agreement shall terminate upon the transfer of all of the equity interest of Tianjin Dibao to Zheng Zhong Energy in accordance with relevant laws and provisions in the agreement, or upon written notice by Zhengzhong Energy to the shareholder. In consideration for Zheng Zhong Energy’s loan arrangement, the shareholder have agreed to grant Zheng Zhong Energy an exclusive option to purchase their equity interest. Distribution of residual profits, if any, is restricted without the approval of Zheng Zhong Energy. Upon request by Zheng Zhong Energy, Tianjin Dibao is obligated to distribute profits to the shareholder of Tianjin Dibao, who must remit the profits to Zheng Zhong Energy immediately. Tianjin Dibao and its shareholder are required to act in a manner that is in the best interest of Zheng Zhong Energy with regard to Tianjin Dibao’s business operations.

 

Equity Pledge Agreement

 

The agreement will be terminated at the date when the other agreements have been terminated. Pursuant to the agreement, the nominee shareholder pledged all of their equity interest in Tianjin Dibao to Zheng Zhong Energy as security for their obligations pursuant to the other agreements. Zheng Zhong Energy has the right to receive dividends on the pledged shares, and all shareholders are required to act in a manner that is in the best interest of Zheng Zhong Energy.

 

Business Cooperation Agreement

 

The agreement is effective until terminated by both parties. Tianjin Dibao and its shareholders agree that the legal person, directors, general manager and other senior officers of Tianjin Dibao should be appointed or elected by Zhengzhong Energy. Tianjin Dibao and its shareholder agree that all the financial and operational decisions of Tianjin Dibao will be made by Zheng Zhong Energy.

 

Exclusive Service Agreement

 

The effective term of this agreement is for one year and it can be extended an unlimited number of times if agreed by both parties. Zhengzhong Energy agrees to provide exclusive technical consulting and support services to Tianjin Dibao and Tianjin Dibao agrees to pay service fees to Zheng Zhong Energy.

 

Entrustment and Power of Attorney Agreement

 

The shareholder of Tianjin Dibao agreed to entrust all their rights to exercise their voting power and any other rights as shareholder of Tianjin Dibao to Zheng Zhong Energy. The shareholder of Tianjin Dibao have each executed an irrevocable power of attorney to appoint Zheng Zhong Energy as their attorney-in-fact to vote on their behalf on all matters requiring shareholder approval. The agreement is effective until the deregistration of Tianjin Dibao.

 

Market Opportunity

 

China’s insurance brokerage market has experienced rapid growth due to increased demand for insurance products in the past few years. According to iResearch report, the total insurance premium in China is expected to grow at a CAGR of 12.9% from 2019 to 2024.  China is the second biggest insurance market in the world. 497 insurance broker companies, which sell insurance policies underwritten by insurance companies and design and develop insurance products themselves according to customer needs, and 1764 insurance agent companies, which are only licensed to only sell insurance policies underwritten by insurance, sold insurance products with an aggregate premium amount of 3.98 trillion RMB (approximately $0.62 trillion) in the year of 2020.

 

Although the size of China’s insurance market in terms of insurance premium was the second largest in the world according to the iResearch report, insurance penetration (defined as insurance premium over GDP) and insurance density (defined as insurance premium per capita) in China were still substantially lower than those in developed countries, indicating significant growth potentials. According to the 14th Five Year Plan formulated by the Chinese government, China’s insurance penetration and density are expected to reach 6.8% and RMB6,596 (approximately US$971), respectively, by 2025.

 

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Driven by the significant medical protection gap and rising awareness for protection, the Chinese insurance market is expected to reach RMB7.8 trillion by 2024, representing a CAGR of 12.9% from 2019. Thanks to regulatory tailwinds, growth in household disposable income and increasing awareness for health protection, Chinese insurance market is expected to continue to maintain the strong growth momentum in the long term.

 

Local insurance companies in China only offer a limited range of insurance products, which cannot meet the needs of a 1.4 billion Chinese population, as compared to the product offerings by U.S. or European insurers in those countries with a smaller population.

 

Through its regulatory actions, the Chinese government encourages participation of foreign investors in insurance companies and related businesses. Under the PRC law, foreign investors are permitted to have up to 100% ownership in insurance companies. Furthermore, foreign joint venture companies may transact insurance business online and offline.

 

Products and Services

 

The Company started to set up its insurance business team in China in November 2020. The Company entered into VIE Agreements with one insurance brokerage company, Beijing Fucheng, and two insurance agency companies, All Weather and Tianjin Dibao , to conduct its insurance brokerage and agency businesses. As of the date of this Annual Report, the Company has 130 insurance business branches in China and a business operation team with approximately 324 employees. In addition, the Company has established collaboration relationships with leading insurance companies in China, such as The People’s Insurance Company of China Limited, Ping An Insurance, Pacific Insurance, Sunshine Insurance and Dadi Insurance. For the year ended December 31, 2022, the Insurance Companies generated income from sales of insurance products through insurance agents, which is the traditional sales model, aka “B (business) to A (agent)” model, and recognized $57.3 million of revenues in this verticals and technology segment.

 

The Company sells insurance products, mainly consisting of automobile insurance, property and liability insurance products, life insurance products and health insurance products, as insurance brokers agencies for insurance companies in China.

 

Automobile Insurance Products

 

The Company’s primary insurance products are automobile insurance. The standard automobile insurance policies the Company sells typically have a term of one year and cover damage caused to the insured vehicle from collision and other traffic accidents, falling or flying objects, fire, explosion and natural disasters. The Company also sell standard third-party liability insurance policies, which cover bodily injury and property damage caused in an accident involving an insured vehicle to a person not in the insured vehicle.

 

Property and Liability Insurance Products

 

The Company also offers commercial property insurance and liability insurance products. The commercial property insurance policies the Company sells typically cover damages to the insured property caused by fire, explosion, thunder and lightning. Comprehensive commercial property insurance policies generally cover damage, to the insured property caused by fire, explosion and certain natural disasters.

 

The liability insurance products the Company sells are primarily product liability and employer’s liability insurance products. These products generally cover losses to third parties due to the misconduct or negligence of the insured party but exclude losses due to fraud or the willful misconduct of the insured party.

 

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Life Insurance Products

 

The life insurance products the Company offers can be broadly classified into three categories, as set forth below. Due to constant product innovation by insurance companies, some of the insurance products the Company offers combine features of one or more of the following categories:

 

  Individual Whole Life Insurance. The individual whole life insurance products the Company sells provide insurance for the insured’s entire life in exchange for the periodic payment of fixed premiums over a pre-determined period. The face amount of the policy or, for some policies, the face amount plus accumulated interests, is paid upon the death of the insured.

 

  Individual Term Life Insurance. The individual term life insurance products the Company sells provide insurance for the insured for a specified time period or until the attainment of a certain age, in return for the periodic payment of fixed premiums over a pre-determined period. Term life insurance policies generally expire without value if the insured survives the coverage period.

 

  Group Life Insurance. The Company sells several group life insurance products, including group health insurance. These group products generally have a policy period of one year and require a single premium payment.

 

Health Insurance Products

 

The health insurance products the Company sells generally have a policy period of one year and require a single premium payment. These products generally cover medical expenses that arise due to an illness or casualty. The products we offer primarily include hospitalization subsidy insurance, group health insurance, group travel casualty insurance and group insurance for senior citizens.

 

Other Innovative Insurance Products

 

The Company has also worked together with a number of insurance companies to develop proprietary insurance products, such as student safety insurance, migrant workers’ wage guarantee insurance, golf sports insurance and loan credit guarantee insurance.

 

Services

 

In order to enhance customer satisfaction, the Company also provides customers with insurance plan proposal and claim service. Based on risk characteristics of the customer, the Company conducts an in-depth analysis of the risks a customer may encounter, and then uses the analysis as the basis to develop a customized risk management and transfer plan for the customer.

 

Additionally, as competition among insurance companies in China intensifies, some insurance companies have started to outsource their claim settlement functions to insurance claims adjusting companies. The Company has been providing its customers with insurance adjustment service.

 

Insurance Platform

 

Since the beginning of 2021, the Company has started to develop and build an online platform to help insurance brokers with client management and insurance policy sales. This platform supports insurance core data storage, policy management, insurance policy issuance, insurance agent management and service management, and auto insurance after-market (repair and maintenance for members) service management. This platform can be accessed as a mobile application from smart phones and as a built-in program on WeChat. Revenues streams for the insurance platform come from commissions earned on insurance sales, as well as from finance fees, insurer marketing fees and through the monetization of the Company’s big data technology.

 

Customers

 

Through the VIE entities and its subsidiaries, the Company sells insurance products and provides insurance proposal and claim services to both individual and institutional customers, including but not limited to automobile owners, small, medium and large companies, employers, employees, students and their parents, migrant workers, golf players and so on. By providing quality insurance products and premium services to customers, the Company strives to build a loyal customer base.

 

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Licenses

 

The VIE entities and our subsidiaries have obtained necessary approvals and licenses from the relevant PRC regulatory entities to operate insurance brokerage and agency business in China. The Company is the only company in China that has National Insurance Brokerage License, the National and Regional Insurance Agency License and the Insurance Adjuster License. The National Insurance Brokerage License enables us not only to sell policies to customers across the most developed China both online and offline, but also to design and develop insurance products and policies by ourselves as broker, which products and policies are underwritten by insurance companies, to better meet customers’ needs. The Insurance Agency License allows us to process the business all over China and locally at designated provinces by connecting to numerous insurance companies and sell a variety of existing insurance products and policies. Insurance Adjuster License allows us to inspect property damage or personal injury claims and collect information from all parties involved and assess the amount of insurance claims. Lastly but not least, we are also licensed to operate insurance brokerage and agency business through internet, which enable us to promote our products and service online to establish a cost-efficient, scalable and sustainable customer acquisition model.

 

Currently, Beijing Fucheng owned trough VIE’s structure has valid National Insurance Brokerage License, and All Weather owned trough VIE’s structure and Guangxi Zhongtong hold valid National and Regional Insurance Agency Licenses and Insurance Adjuster License. The relevant entities have also obtained the ICP licenses to conduct insurance transactions online, which allows customer to evaluate and purchase insurance products and/or receive customer services online.

 

Competitive Strengths

 

The Company believes the following strengths contribute to its success and differentiate the Company from its competitors:

 

Strong and Proven Execution Capabilities. The Insurance Business Platform have 324 employees. Of these employees, 96 were employed in marketing positions, 69 were employed in Customer Services & Risk positions and the remainder were employed in finance, research and development, management and administrative positions. Most of them have over 10 years of experience in insurance industry. These employees are located in our 115 insurance business branches in China. Our management team have a long track record of operating through large retail stores in China. We could take this advantage to explore potential insurance sales channels.

 

Unique and Comprehensive Insurance Licenses. We are the only company in China that has National Insurance Brokerage License, the National and Regional Insurance Agency License and the Insurance Adjuster License. Insurance agencies are entities that have obtained an insurance agency license from the regulator and engage in the sale of insurance products for, and within the authorization of, insurance companies. Insurance brokers are entities that have obtained an insurance broker license from the regulator and generally act on behalf the insurance applicants in seeking insurance coverage from insurance companies. Some insurance brokers also engage in reinsurance brokering and act on behalf of insurance companies in their dealings with reinsurance companies. Insurance adjuster firms are entities that have been approved by the regulator to engage in insurance adjusting activities such as the assessment, survey, authentication and loss estimation. With the licenses we are able to process the business throughout most of developed China, as well as rural areas across China, develop and provide comprehensive products and services by connecting to numerous insurance companies. With the broad business scope in which the licenses allow us to operate, we are able to serve 384 million car drivers on car insurance and repairing services, 280 million students in school and colleges and their parents on safe insurance and health insurance and 500 million farmers in rural areas on health insurance and life insurance.

 

Business Relationships. we have established collaboration relationships with a number of other companies, including oil and gas sector, financial services sector, large internet portals and other insurance companies in the PRC, to promote our insurance products and after-market and after-sales services offerings to their customers.

 

National Network.  We have built up a nationwide service network including over 130 insurance business branches  and 30 provinces in China. Any insurance agent, no matter where he or she lives, can register at our local branch and be qualified as an insurance agent.  These branches have signed business cooperation agreements with hundreds of local insurance companies to sell their developed insurance products in the region and provide insurance after-sales services for policyholders.

 

Brand Awareness. We have established ourselves as a trusted brand through our VIE entities and subsidiaries. We are able to provide standard services with the prestigious brand across China.

 

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Business Challenges

 

The Company is, and expects for the foreseeable future to be, subject to all the risks and uncertainties, inherent to a development-stage business and in a developing industry in China. These risks and challenges are, among other things:

 

  we operate in an industry that is heavily regulated by relevant governmental agencies in China;
     
  we rely on contractual arrangements with VIE entities and our subsidiaries, including Tianjin Dibao Technology Development Co. Ltd, Beijing Fucheng and All Weather, and their respective shareholders for our operations in China, which arrangement may not be as effective in providing operational control as direct ownership;

  

  our management may lack expertise, human and capital resources to implement important strategic initiatives in all branches across China;

 

  we may require additional capital to develop and expand our operations which may not be available to us when we require;

 

  our marketing and growth strategy may not be successful;

 

  our business may be subject to significant fluctuations in operating results; and

 

  we may not be able to attract, retain and motivate qualified professionals.

 

Business Strategy

 

The Company’s business strategy is to:

 

  Upgrade the online insurance plan to attract more insurance agents users for insurance sales through the Company’s platform. The Company plans to devote significant efforts to upgrading online platform to attract individual and institutional insurance agents to register on the Company’s platform and share commissions. The Company’s platform will provide the application programming interface to insurance agents and allow them to register as the Company’s insurance agents, sell insurance policies under the Company’s licenses with the Company’s platform. It will also enable the agents to have access to a vast selection of insurance products and receive higher commission on the Company’s platform through competitive pricing. The platform will also provide registered insurance agents (individuals or stores) with one-stop services, such as online insurance business training, business development, product promotion, policy issuing, claims settlement and after-sales service.

 

  Increase automobile insurance product offering. The Company plans to build comprehensive online automobile insurance after-market service features on its insurance platform to (i) connect automobile insurance customers with thousands of auto repair shops and auto wash stores nationwide and (ii) provide customers auto membership services, including online gas card recharge, online shopping, insurance claim settlements, roadside assistance, car wash appointment and maintenance and promotion coupons, insurance loyalty points and other related supporting services for insurance members. Through this platform, the Company will provide competitive insurance products and build a one-stop customer service system, including mobile billing function, online payment, inspection, loss assessment, online claim settlement and car purchase loans.

 

  Enhance business partner network and expand distribution network. The Company is currently negotiating collaboration agreements with large organizations in postal industry and gas stations industry, lottery stores, tobacco stores, car wash and maintenance chain stores all of which have big traffic of customers. The Company aims to transform the salesperson from the retail stores into users of the Company’s insurance platform and sell the insurance products online via the platform. Through the implementation of the B (business) to A (agent) to C (customer) and both online and offline promotion service model, the Company will lay out the sales scenarios of auto insurance and non-auto insurance products to reach insurance customers offline and provide customers with insurance product sales and after-sales claim services online. The Company also plans to expand its distribution network through opening more local branches in a number of selective major cities throughout China.

 

  Recruit talents and build a stronger sales force. The Company, through its VIE entities and our subsidiaries, has recruited a team of accomplished insurance industry and technology specialists, including senior executives from several of China’s largest listed and unlisted insurance companies, as well as from a number of China’s leading technology companies. The Company continues to recruit talents to join its professional team and sales force.

 

  Build a comprehensive and loyal customer base. In light of our expanded business and prospect, the increased recognition of our brand, and the latest market development, we have aim to focus on serving 384 million car drivers on car insurance and repairing services, 280 million students in school and colleges and their parents on safe insurance and health insurance and 500 million farmers in rural area on health insurance and life insurance.

 

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Stock Trading and Wealth Management Platform: Magpie Invest

 

The Company launched Magpie Invest, a global stock trading app, on September 15, 2021, through its wholly owned subsidiary, Magpie Securities Limited (“Magpie”).

 

Magpie Invest is a proprietary technology investment trading platform. The Magpie Invest technology allows the platform to currently connect to seven major stock exchanges with the ability to connect to other major exchanges as the business need arises.

 

BI Intermediate (Hong Kong) Limited obtained an approval from the HKSFC on February 22, 2021 and successfully acquired Huapei Global Securities, Ltd. (“Huapei”), a licensed corporation in Hong Kong that is allowed to carry on Type 1 (dealing in securities), Type 2 (dealing in futures contracts), Type 4 (advising on securities) and Type 9 (assent management) regulated activities in Hong Kong, on February 26, 2021. Huapei subsequently changed its name to Magpie Securities Limited on May 27, 2021.

 

Magpie is a participant of the SEHK (Hong Kong Stock Exchange) & HKSCC (Hong Kong Securities Clearing Company) and the China Connect program, which allows for mutual market access between the Hong Kong Stock Exchange and the mainland Chinese stock exchanges. Magpie is also the member of London Stock Exchange.  

 

Magpie has recently expanded into Singapore through its application for a Capital Markets Services License (“CMS License”) from the Monetary Authority of Singapore (“MAS”), which was approved in full on September 20, 2022. Magpie’s Singapore operations and trading are scheduled to commence by early second quarter of 2023. The CMS License allows Magpie to offer new products, including leveraged foreign exchange and contracts for difference (“CFDs”) on stocks, index futures and commodities.

 

Magpie currently employs more than 25 full-time employees and 10 contract staff and aims to expand into additional jurisdictions and geographical markets, both within Asia and other regions.

 

In response to significant changes in retail client behaviors in the trading of global equity markets, and driven by the rise in global interest rates and the end of COVID-19 restrictions in early 2022, Magpie pivoted its business strategy to a “B2B” Brokage-as-a-Service model. Magpie is currently progressing this strategy with major banks and financial services companies in various jurisdictions. However, the continued uncertainty in the global markets has posed challenges to Magpie’s pursuit of this strategy and the execution of contracts with such banks and financial services companies.  

 

The Platform for Securities Trading

 

Magpie believes it offers a unique user experience built upon a scalable and secure platform. The platform is currently designed to serve the emerging affluent Chinese and Southeast Asian population and diaspora, and targets generation Z and the millennial markets. Magpie is pursuing an opportunity to facilitate a shift in the wealth management industry and build a digital gateway into broader financial services. The platform is designed to provide a user experience that integrates clear and relevant market and company data, and easy to use trade execution.

 

Magpie aims to continue to enhance its proprietary technology and build a comprehensive, user-oriented and cloud-based platform that is fully licensed to conduct securities brokerage business on a global basis by expanding its license portfolio. Magpie Invest serves as one of the foundations from which the Company can execute its growth strategy of building a broader financial services platform.

 

Magpie provides investing services through a proprietary digital platform, which is accessible through any mobile device operating on iOS and Android, and more recently on other electronic devices via its web-based platform which was launched during the third quarter of 2022. The Magpie Invest platform and applications currently offer market data, news, research, analytical tools and provides customers with a data foundation to help simplify the investing decision-making process.

 

Market Opportunity

 

According to an iResearch Report published on January 15, 2020, the market size of the online brokerage industry focusing on global Chinese investors in terms of U.S. and Hong Kong stock trading volume experienced rapid growth over the preceding three years. This presents an attractive market opportunity for online brokerage service providers focused on the global Chinese investor market. Magpie believes that the technology, functionality and user experience of the Magpie Invest platform also creates the opportunity for it to target a larger investor market (not only the Chinese investor market) in other major territories throughout the world.

 

Revenues are currently generated primarily from stock trading commission income. Magpie also has the opportunity to generate income from other revenue streams such as interest from financing and foreign exchange. Magpie plans to add derivatives, leveraged foreign exchange, and CFDs on global indexes and commodities to the platform in 2023, following the approval of its CMS License from MAS in September 2022.

 

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With the popularization of mobile technology and growing acceptance of online trading, the Company believes that the online securities market is subject to the following trends:

 

traditional brokers are shifting online while purely offline brokers are increasingly at a disadvantage or, in some cases, exiting the market altogether;

 

Internet giants continue to invest in online brokerage services, demonstrating the industry’s recognition of online brokerage services as an important component of a financial services business and potentially a gateway to broader opportunities;

 

technological barriers to entry remain high particularly relating to building a secure infrastructure that can transcend geographies and asset classes;

 

operational barriers to entry remain high particularly relating to regulatory and capital requirements;

 

user experience remains a key competitive strength as digitally born investors become a larger component of the addressable market; and

 

revenue models are evolving as competition intensifies, with ancillary and other value-added services underlying platform differentiation.

 

Challenges

 

Magpie’s ability to execute its business plan is subject to risks and uncertainties, including those relating to Magpie’s ability to:

 

manage the continued rollout of Magpie’s trading platforms and Magpie’s future growth;

 

navigate a complex and evolving regulatory environment;

 

offer personalized and competitive services;

 

increase the utilization of Magpie’s services by users and clients;

 

maintain and enhance the Company’s relationships with its business partners;;

 

enhance Magpie’s technology infrastructure to support the growth of Magpie’s business and maintain the security of Magpie’s systems and the confidentiality of the information provided and utilized across Magpie’s systems;

 

improve Magpie’s operational efficiency;

 

attract, retain and motivate talented employees to support Magpie’s business growth;

 

navigate economic and market conditions and fluctuation;

 

defend ourselves against legal and regulatory actions which could subject us to liability or damage our reputation, including, without limitation, actions involving intellectual property or privacy claims;

 

obtain any and all licenses necessary for the operation and growth of Magpie’s business, and to maintain the validity of such licenses as applicable to the operation and growth of Magpie’s business.

 

Strategy

 

Magpie intends to provide a high-quality and comprehensive investing experience by focusing on delivering convenience and stability to its own customers as well as to the customers of its white-label partners.

 

Magpie has designed every step of Magpie’s platform’s experience, from sourcing and researching ideas to trade execution, with a goal to create a simple and convenient experience. Magpie identifies certain hurdles that investors, particularly retail investors, face along their investing journey, and Magpie strives to mitigate inconvenience and information asymmetry through Magpie’s platform with the use of data and technology.

 

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Magpie recognizes that investing is a meaningful component of Magpie’s customers’ broader wealth management. With this in mind, the Magpie Invest platform features the following:

 

an automated multi-level protection mechanism to ensure the services and functions delivers to users and clients are secure;

 

strict security policies and measures, including encryption technology and a two-factor authentication function, to protect proprietary data such as customers’ personal information and trading data;

 

cloud technology which allows Magpie to process large amounts of data in-house, which should reduce the risks involved in data storage and transmission;

 

backed up data across different servers at different locations; and

 

electronic processing and execution of all orders and transactions, which is designed to minimize the risks associated with human error while maintaining the stability of the platform.

 

Magpie provides customers with a comprehensive set of services throughout their investing experience. Core services include trade execution and margin financing. The trade execution process is entirely online and automated. Orders are delivered directly to respective exchanges.

 

As a result of the operational efficiencies afforded by Magpie’s technology, Magpie can offer very competitive brokerage commission rates for online trading as compared to many of the more traditional competitors. Magpie’s revenues from securities brokerage services includes brokerage commissions and platform service fees from customers, which are recognized on a trade-date basis when the relevant transactions are executed.

 

Margin Financing

 

Magpie offers margin financing to customers who trade securities listed on the Hong Kong Stock Exchange, the major stock exchanges in the U.S., the United Kingdom and Europe in a manner compliant with the guidelines and requirements of the HKSFC . This feature essentially allows customers to borrow against their own stock and cash holdings in order to buy additional securities on margin. All financing extended to its customers is secured by shares which has sufficient liquidity and low volatility as assessed by Magpie. The shares are automatically pledged in cross-market account assets so that the value in a customers’ multiple market trading account, which may include cash in different currencies and acceptable securities listed on the aforementioned markets, will be aggregated when calculating the value of the customers’ collateral. Magpie believes this will provide efficiencies as it will eliminate the costs and procedures involved in cross-market currency translation or exchange.

 

Magpie’s customers are eligible for margin financing services when they hold securities that are acceptable as pledges to us in their accounts. Magpie maintains a list of acceptable marginable securities on Magpie’s website (www.magpiesecurities.com). The credit line for each eligible customer is determined based on the securities across all of their trading accounts. The margin financing services for eligible margin financing customers are activated automatically when the funds in their accounts are not sufficient to purchase the desired securities and there is still sufficient balance in their credit lines.

 

Magpie has a list of securities acceptable as collateral to us and their respective margin ratios that is regularly updated and shared with customers. Magpie’s risk management team’s role is to determine the margin ratio for each of the acceptable securities based on the trading frequency, historical price fluctuations and general market volatility. Magpie will also reference the financing terms of major financial institutions in establishing margin ratios and intend for margin requirements to be equal or lower than the financial institutions. Magpie’s margin ratios are monitored in real-time and the risk management team review and adjust the margin ratios for each acceptable security on a quarterly basis and more frequently in the case of a significant and rapid price decline.

 

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Impact of COVID-19 and Our Resources and Opportunities

 

The ongoing COVID-19 pandemic disrupted business operations of many companies in Hong Kong, China and elsewhere. We have taken a series of measures in response to the outbreak to protect our staff, including, among others, combined office and remote working arrangements for our employees and travel restrictions or suspension. Our operations, including our services to our clients and internal control over financial reporting, have not been materially affected by these measures as we timely implemented our business continuity plan without any meaningful resource constraints.

 

Further, in view of the increased market volatility witnessed in the global capital markets and increased COVID-19 restrictions in Hong Kong until the recent policy relaxation, although people are spending more time at home, it has not led to an increased in new account sign-ups, or increasing trading velocity and higher net asset inflow.

 

This has increased competition and raised the cost of acquisition of customers and also lengthened the cost recovery period which we believe is not currently economical.

 

PRC Regulations Relating to Insurance Agencies, Insurance Brokers and Other Intermediaries

 

The insurance industry is heavily regulated in the PRC. The applicable laws and regulations governing insurance activities undertaken within the territories of the PRC consist principally of the PRC Insurance Law and rules and regulations promulgated under that law. China Banking and Insurance Regulatory Commission, or the CBIRC, is the authority authorized by the PRC State Council to regulate and supervise the insurance industry in the PRC.

 

The PRC Insurance Law, which provided the initial framework for regulating the PRC insurance industry, was enacted in 1995, and significantly amended on January 1, 2003, October 1, 2009, August 31, 2014 and April 24, 2015. Among other things, the major provisions of the PRC Insurance Law include: (1) licensing of insurance companies and insurance intermediaries, such as agents and brokers; (2) separation of property and casualty business and life insurance business; (3) regulation of market conduct by participants; (4) substantive regulation of insurance products; (5) regulation of the financial condition and performance of insurance companies; and (6) supervisory and enforcement powers of the CBIRC

 

Regulations of Insurance Agencies

 

According to the Provisions on the Regulation of Insurance Agents, or the PRIA, which was promulgated by the China Banking and Insurance Regulatory Commission (CBIRC) on November 12, 2020 and was effective on January 1, 2021, the establishment of an insurance agency is subject to minimum registered capital requirement and other requirements and to the approval of the CBIRC. The term “insurance agency” refers to an institution or individual, including professional insurance agency, concurrent-business insurance agency and individual insurance agent, who, under the entrustment by an insurance company, collects corresponding commission therefrom, and, within the scope of authorization thereby, handles insurance business on behalf of the insurance company. A professional insurance agency company may take any of the following forms: (i) a limited liability company; or (ii) a joint stock limited company. The minimum registered capital of a professional insurance agency company whose business area is not limited to the province, autonomous region, municipality directly under the central government or city specifically designated in the state plan where its place of registration is located shall be RMB50 million. The minimum registered capital of a professional insurance agency company whose business area is the province, autonomous region, municipality directly under the central government or city specifically designated in the state plan where its place of registration is located shall be RMB20 million. The registered capital of a professional insurance agency company must be paid-in monetary capital. A professional insurance agency may engage in all or part of the following businesses:

 

  sales of insurance products as an agency;
     
  collection of insurance premiums as an agency;
     
  loss investigation and claims settlement of insurance-related services as an agency; and
     
  other relevant businesses as prescribed by the insurance regulator under the State Council.

 

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The name of a professional insurance agency company must contain the words “insurance agency”. A professional insurance agency falling under any of the following circumstances shall, within five days from the date on which such circumstance arise, report the same via the regulatory information system prescribed by the insurance regulator under the State Council, and make public disclosure thereof as required: (i) change of name, domicile or business premises; (ii) change of any shareholder, registered capital or form of organization; (iii) change of the name of any shareholder or the amount of capital contribution; (iv) changing the company’s articles of association; (v) making equity investment, establishing any overseas insurance institution or non-business institution; (vi) undergoing division, merger or dissolution, or any of its branches terminating insurance agency business activities; (vii) change of the main principal of any branch other than a provincial-level branch office; (viii) being subjected to administrative punishment or a criminal penalty, or under investigation for being suspected of committing any illegal or criminal offense; or (ix) any other matter to be reported as prescribed by the insurance regulator under the State Council. The senior managers of an insurance agency or its branches must meet specific qualification requirements and each senior manager of a professional insurance agency shall obtain the post-holding qualification approved by the competent insurance regulator prior to holding the post.

 

Under the PRIA, a professional insurance agency or a concurrent-business insurance agency collecting insurance premiums by proxy shall open an independent account for the collection of insurance premiums by proxy for settlement. A professional insurance agency or a concurrent-business insurance agency shall open an independent account for the collection of commission. They may not engage in the following activities: engaging in insurance agency business that may exceed the business scope and business area of the relevant principal insurance company; modifying any publicity material provided by the relevant principal insurance company without authorization; damaging the commercial goodwill of any competitor by means of fabricating or disseminating misrepresented facts, etc., or disrupting the order of the insurance market through false advertising, false publicity or other acts of unfair competition; having any insurance agency business dealing with an institution or individual illegally engaging in insurance business or insurance intermediary business; deducting any insurance commission directly from insurance premiums collected by proxy.

 

Regulations of Insurance Brokerages

 

The principal regulation governing insurance brokerages is the Provisions on the Supervision and Administration of Insurance Brokers, or the “POSAIB”, promulgated by the China Insurance Regulatory Commission, or the CIRC (the predecessor of the CBIRC) on February 1, 2018 and effective on May 1, 2018. The term of “insurance broker” refers to an entity which, representing the interests of insurance applicants, acts as an intermediary between insurance applicants and insurance companies for entering into insurance contracts, and collects commissions for the provision of such brokering services. To engage in insurance brokerage business within the territory of the PRC, an insurance brokerage shall satisfy the requirements prescribed by the CIRC and obtain an insurance brokerage business permit issued by the CIRC, after obtaining a business license. An insurance brokerage may take any of the following forms: (i) a limited liability company; or (ii) a joint stock limited company. The minimum registered capital of an insurance brokerage company whose business area is not limited to the province in which it is registered is RMB50 million while the minimum registered capital of an insurance brokerage company whose business area is limited to its place of registration is RMB10 million. The name of an insurance broker shall include the words “insurance brokerage.” An insurance brokerage may conduct the following insurance brokering businesses:

 

  making insurance proposals, selecting insurance companies and handling the insurance application procedures for the insurance applicants;

 

  assisting the insured or the beneficiary to claim compensation;
     
  reinsurance brokering business;
     
  providing consulting services to clients with respect to disaster and damage prevention, risk assessment and risk management; and
     
  other business activities approved by the CIRC.

 

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According to the POSAIB, to operate insurance brokerage business, an insurance brokerage company shall satisfy the following conditions: (i) its shareholders meet the requirements thereof, and make capital contribution with their self-owned, true and lawful funds instead of bank loans or non-self-owned funds in various forms; (ii) its registered capital meets the requirements above and is under the custody in accordance with the relevant provisions of the CIRC; (iii) its business scope recorded in the business license is in compliance with the relevant provisions; (iv) its articles of association are in conformity with the relevant provisions; (v) its company name is in conformity with the relevant provisions; (vi) its senior officers meet the qualification requirements thereof; (vii) it has established a governance structure and internal control system as stipulated by the CIRC, and a scientifically and reasonably feasible business mode; (viii) it has a fixed domicile in line with its scale of business; (ix) it has a business and financial information management system as stipulated by the CIRC; and (x) other conditions provided for in laws and administrative regulations and by the CIRC. In addition, any entities or individuals who are under any of the following circumstances may not be a shareholder of an insurance brokerage company: (i) have been punished or subject to major administrative penalties during the last five years; (ii) are being investigated by the relevant departments for suspected major offenses; (iii) have been identified as a subject of joint sanctions against discreditable conduct by relevant state authorities due to a serious discreditable conduct and shall be sanctioned accordingly in the insurance sector, or has had other bad records of serious discredits within the most recent five years; (iv) cannot invest in any enterprises in accordance with laws and administrative regulations; or (v) other circumstances where the CIRC deems the entity or individual inappropriate to be a shareholder of an insurance brokerage company in accordance with the principle of prudential supervision.

 

An insurance brokerage shall submit a written report to the CIRC and make public disclosure within five days from the date of occurrence of any of the following matters: (i) change of name, domicile or business premises; (ii) change of shareholders, registered capital or form of organization; (iii) change of names of shareholders or capital contributions; (iv) amendment to the articles of association; (v) equity investment, establishment of offshore insurance related entities or non-operational organizations; (vi) division, merger and dissolution or termination of insurance brokering business activities of its branches; (vii) change of the primary person in charge of its branches other than provincial branches; (viii) being a subject of administrative or criminal penalties, or under investigation for suspected involvement in any violation of law or a crime; and (ix) other reportable events prescribed by the CIRC.

 

Insurance brokerages are not allowed to sell non-insurance financial products, except for those products approved by relevant financial regulatory institutions and the insurance brokerage shall obtain relevant qualification in order to sell non-insurance related financial products that meets regulatory requirements.

 

Personnel of an insurance brokerage and its branches who engage in any of the insurance brokering businesses described above must comply with the qualification requirements prescribed by the CIRC. The senior managers of an insurance brokerage must meet specific qualification requirements set forth in the POSAIB.

 

Regulation of Internet Insurance Businesses

 

The principal regulation governing the operation of Internet insurance business is the Measures for the Regulation of Internet Insurance Business, or Regulation of Internet Insurance Business, promulgated by the CBIRC on December 7, 2020 and effective on February 1, 2021. Under the Regulation of Internet Insurance Business, the term of “Internet insurance business” refers to insurance operating activities in which insurance institutions conclude insurance contracts and provide insurance services relying on the Internet. Insurance institutions include insurance companies (including mutual insurance organizations and internet insurance companies) and insurance intermediaries; insurance intermediaries include insurance agents (excluding individual insurance agents), insurance brokers and insurance loss adjusters; insurance agents (excluding individual insurance agents) include professional insurance agencies, banks as concurrent-business insurance agencies and internet enterprises that have legally obtained insurance agency business permits; and professional insurance intermediaries include professional insurance agencies, insurance brokers and insurance loss adjusters. Self-operated network platform refers to any network platform being independently operated while enjoying complete data permission, which is legally established by an insurance institution for the purpose of internet insurance business operation. No network platform established by any branch of an insurance institution or any non-insurance institution with a related-party relationship with an insurance institution in terms of equity, personnel, etc., belongs to the category of self-operated network platform. Internet insurance product refers to any insurance product sold by an insurance institution via the Internet.

 

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An insurance institution which conducts internet insurance business along with its self-operated network platform shall meet the following conditions: (i) its service access place is located within the territory of the PRC; if its self-operated network platform is a website or mobile application, it shall legally go through the formalities for filing of internet information services with the relevant administrative department for the internet industry and obtain a filing number; or otherwise, it shall comply with relevant laws and regulations and meet the qualification requirements of the competent department for the relevant industry; (ii) it has an information management system and core business system that can support its internet insurance business operation, which can be effectively isolated from its other unrelated information systems; (iii) it has refined cybersecurity monitoring, information notification, emergency disposal working mechanisms as well as such cybersecurity protection means as refined perimeter protection, intrusion detection, data protection and disaster recovery; (iv) it implements the national classified cybersecurity protection system, carries out filing of cybersecurity classification, conducts classified protection evaluation on a regular basis, and implements security protection measures for the corresponding class; in terms of self-operated network platforms with insurance sales or insurance application function, as well as information management systems and core business systems that support their operation, relevant self-operated network platforms and information systems shall be under security protection of Class III or above; and in terms of self-operated network platforms without insurance sales or insurance application function, as well as information management systems and core business systems that support their operation, relevant self-operated network platforms and information systems shall be under security protection of Class II or above; (v) it has a legal and compliant marketing model, and has established an operation and service system that meets the needs for internet insurance operation and complies with the characteristics of internet insurance users while supporting its business coverage regions; (vi) it has established or defined its internet insurance business management department staffed by appropriate professionals, appointed a senior executive to act as the principal in charge of its internet insurance business, and specified the principal of each self-operated network platform; (vii) it has a sound internet insurance business management system and operating procedures; (viii) as an insurance company, it shall, when conducting internet insurance sales, comply with the relevant provisions of the CBIRC on regulatory evaluation of its solvency as well as protection of consumers’ rights and interests, etc.; (ix) as a professional insurance intermediary, it shall be a national institution with its operating area not limited to the province (autonomous region, municipality directly under the central government, or city specifically designated in the state plan) of the place where the business license of its head office is registered while complying with the relevant provisions of the CBIRC on classified regulation of professional insurance intermediaries; and (x) other conditions prescribed by the CBIRC. The Regulation of Internet Insurance Business also specifies requirements on disclosure of information regarding insurance products sold on the Internet and provides guidelines for the operations of the insurance institutions that engage in Internet insurance business.

 

Regulations of Foreign Investment in Insurance Intermediaries

 

Historically, PRC laws and regulations have restricted foreign investment in ownership of insurance intermediary companies. In recent years, some rules and regulations governing the insurance intermediary sector in China have begun to encourage foreign investment. For instance, On March 1, 2015, the MOFCOM and the NDRC jointly promulgated the Catalogue for the Guidance of Foreign Investment Industries (Revision 2015), or the 2015 Guidance Catalog, pursuant to which insurance brokerage are removed from the list of industries subject to foreign investment restriction. On April 27, 2018, the CBIRC further promulgated the Circular on Lifting Limits on the Business Scope of Foreign-invested Insurance Broker, which further lifts the restrictions on the business scope of foreign-invested insurance broker, and provides that foreign-invested insurance broker that has obtained the permit of in insurance brokerage business may conduct the following insurance brokerage business: (1) design insurance policy plans, select insurers and handle insurance formalities for policy holders; (2) assist the insured or beneficiaries with insurance claims; (3) reinsurance brokerage business; (4) provide principals with assessment to prevent from disasters, damage or risks, or risk management consulting services; and (5) other business approved by the CBIRC. For insurance agency business, the CBIRC promulgated the Circular on Permitting Foreign Investors to Engage in Insurance Agency Business in China on June 19, 2018, which provides that: (1) a professional insurance agent invested and established in China by an overseas insurance agent that has carried out the insurance agency business for over three years may apply for carrying out the insurance agency business in China, and the scope of specific allowable business and the market access criteria shall be subject to relevant provisions on professional insurance agents; or (2) a professional insurance agent established and invested in China by a China-based foreign-invested insurance company which has commenced its business for over three years may apply for carrying out the insurance agency business in China, and the scope of specific allowable business and the market access criteria shall be subject to relevant provisions on professional insurance agents. In addition, the CBIRC further promulgated the Circular on Clarifying the Measures Relating to the Liberalization of the Insurance Intermediary Market on December 3, 2021, which provides that an insurance brokerage company funded and established in China by an overseas insurance brokerage company, which has the actual business experience and qualifies under the relevant regulations of the CBIRC, is allowed to operate the insurance brokerage business; in the Circular on Issuing the Content relating to the Insurance Sector in the Legal Documentation of China’s Accession to the WTO (Bao Jian Ban Fa [2002] No. 14), the related requirements that the foreign investor to establish a foreign-funded insurance brokerage company in China should have a history of business operations of more than 30 years in any WTO member states, have maintained a representative office in China for a period of at least two consecutive years, and have a total asset of not less than US$200 million in the year immediately prior to the application, shall not longer be applicable.

 

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Regulations Related to Telecommunications Service and Online Trading

 

The Measures on Telecommunications Business Operating Licenses (2017 Revision), or the Telecom License Measures, which was promulgated by the Ministry of Industry and Information Technology on March 1, 2009 and last amended on July 3, 2017, requires that any approved telecommunications services provider shall conduct its business in accordance with the specifications in its license for value-added telecommunications services, or VATS License. The Administrative Measures on Internet Information Services (2011 Revision), which was promulgated on September 25, 2000 and amended on January 8, 2011 by the State Council, requires that commercial Internet information services providers, which mean providers of information or services to Internet users with charge, shall obtain a VATS License with the business scope of Internet information services, namely the Internet Content Provider License or the ICP License, from competent government authorities before providing any commercial Internet content services within the PRC. However, according to the 2019 Negative List/ the 2020 Negative List, the value-added telecommunications services carried on in PRC falls in the restricted category, and foreign investors cannot hold over 50% of equity interests in entities providing such services.

  

The Guiding Opinions of the Ministry of Commerce on Online Transactions (Provisional), which was promulgated and implemented on March 6, 2007, aims to regulate online transactions, assist and encourage participants to carry out online transactions, alert and prevent transaction risks, and provide guiding requirements on the basic principles for online transactions, the entering into of contracts by participants of online transactions, and the use of electronic signatures, online payments and advertising.

  

The Administrative Measures for On-line Trading, which was promulgated on February 17, 2014 and implemented with effect from March 15, 2014, further specifies the relevant measures for protecting on-line consumers’ rights, especially with regard to after-sale service, privacy protection and standard contract management, diversifies the types of unjust competitions conducted by an operator through network or certain media, and clarifies the regulatory and administrative responsibilities of the industry and commerce administration bureaus at different levels.

 

Pursuant to the E-Commerce Law of the PRC, which was promulgated by the SCNPC on August 31, 2018 and took effect on January 1, 2019, an e-commerce operator shall register itself as a market entity, fulfill its tax obligations pursuant to the relevant laws and obtain the administrative approvals necessary for its business operation, shall also display the information about its business license and the administrative approvals obtained for its business operation, or the links to the webpages with such information in the prominent position on its homepage, and shall expressly indicate the methods and procedures for querying, correcting and deleting its users’ information or deregistering their accounts and shall not set irrational conditions for such purposes.

 

In the area of online trading, the Company and its operating subsidiaries are subject to the above-mentioned regulations because the Company’s and its operating subsidiaries plan on acting as operators of various online platforms for online transactions in relation to all of its business sectors.

 

In addition, to the laws and regulations applicable to China which are summarized above, as a BVI incorporated company, to the extent that Intermediate itself (rather than through its operating subsidiaries) were to conduct certain of the activities referenced above, consideration would need to be given to certain regulatory requirements of the BVI and whether any licenses in the BVI are required.

 

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Employees

 

As of December 31, 2022, TINGO GROUP had approximately 797 full-time employees, The Chinese companies had approximately 324 full-time employees. Of these employees, 96 were employed in marketing positions, 69 were employed in Customer Services & Risk positions and the remainder were employed in finance, research and development, management and administrative positions. The HK companies had approximately 34 full-time employees. Of these employees, 1 were employed in marketing positions, 4 were employed in Customer Services & Risk positions and the remainder were employed in finance, research and development, management and administrative positions. Tingo mobile had approximately 409 full-time employees. Of these employees, 138 were employed in marketing positions, 26 were employed in Customer Services & Risk positions and the remainder were employed in finance, research and development, management and administrative positions. The Israeli companies had approximately 3 full-time employees in the finance department.

 

We have never experienced a work stoppage. To the best of our knowledge, we have good and sustainable relations with our employees.

 

Israeli labor laws and regulations apply to all employees based in Israel. The laws principally address matters such as paid vacation, paid sick days, length of the workday, payment for overtime and severance payments upon the retirement or death of an employee or termination of employment under specified circumstances. The severance payments may be funded, in whole or in part, through a managers’ insurance fund or a pension fund. The payments to the managers’ insurance fund or pension fund toward severance amount to 8.3% of wages. Furthermore, Israeli employees and employers are required to pay predetermined sums to the National Insurance Institute of Israel. Since January 1, 1995, these amounts also include payments for health insurance.

 

Item 1A. Risk Factors.

 

Investing in our securities is highly speculative and involves a high degree of risk. You should carefully consider the following factors and other information in this Annual Report and our other SEC filings before making a decision to invest in our securities. Additional risks and uncertainties that we are unaware of may become important factors that affect us. If any of the following events occur, our business, financial conditions and operating results may be materially and adversely affected. In that event, the trading price of our common stock and warrants may decline, and you could lose all or part of your investment.

 

Summary of Risks Affecting our Company

 

Our business is subject to numerous risks described in the section titled “Risk Factors” below. A summary of the material risk factors affecting our business is set forth below.

 

  The Company may be unable to successfully execute its growth strategy including the integration of the merger with Tingo Mobile.

 

 

The Company’s ability to be successful will be dependent upon the efforts of the Company Board and key personnel and the loss of such persons could negatively impact the operations and profitability of TINGO GROUP’s post-combination business.

     
  We may need a significant amount of additional capital, which could substantially dilute shares owned by current shareholders of the Company.

 

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  If TINGO GROUP fails to meet all applicable Nasdaq requirements, Nasdaq may delist its Common Stock, which could have an adverse impact on its liquidity and market price. 
     
  The COVID-19 pandemic, or any other pandemic, epidemic or outbreak of an infectious disease, may materially and adversely affect TINGO GROUP’s business and operations.

 

  Because almost all of TINGO GROUP’s officers and directors are located in non-U.S. jurisdictions, you may have no effective recourse against management for misconduct.
     
 

TINGO GROUP anticipates that its operating costs and expenses will increase as the Company continue to grow our business.

     
  The Company’s platform and internal systems rely on software and technological infrastructure that is highly technical, and if they contain undetected errors, its business could be adversely affected.
     
  Changes in China’s economic, political or social conditions or government policies could have a material adverse effect on our business and operations.
     
  The complexities, uncertainties and rapid changes in PRC regulation of the Internet-related businesses and companies require significant resources for compliance and the uncertainties in the PRC legal system could limit the legal protections available to us.
     
  The 2006 M&A Rules established complex procedures for some acquisitions of Chinese companies by foreign investors, which could make it difficult to pursue growth through acquisitions in China.
     
  Fluctuations in exchange rates of the RMB could materially affect financial results. Furthermore, TINGO GROUP’s financial results may be negatively affected by foreign exchange rate fluctuations.
     
  Under the enterprise income tax (“EIT”) Law, we may be classified as a “resident enterprise” of China. Such classification would likely result in unfavorable tax consequences.
     
  We have issued and may issue additional preferred stock in the future, and the terms of the preferred stock may reduce the value of our Common Stock.

 

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The Company’s trading platform has no operating history, which makes it difficult to evaluate the Company’s future prospects.

 

 

The Company operates in a highly competitive and fragmented market and may not be able to maintain a competitive position in the future.

 

 

If the Company is unable to obtain stockholder approval for the conversion of the Series A Preferred Stock into Common Stock by June 30, 2023 (the “Trigger Date”), then all issued and outstanding shares of Series A Preferred Stock will be redeemed by the Company in consideration of the right to receive cash and the Company shall cause Tingo LLC, a wholly-owned subsidiary of the Company (“Delaware Sub”), to issue to Tingo, the amount of membership interests of Delaware Sub as needed to cause Tingo, to own 27% of the total issued and outstanding membership interests of Delaware Sub.

 

  In the event that (i) the Company does not receive by the Trigger Date the stockholder approval with respect to the conversion of Series B Preferred Stock and the amendment of the Company certificate of incorporation to increase the number of authorized shares of Common Stock, (ii) the Nasdaq change of control application is rejected, or (iii) Nasdaq requires Material Restrictions (as defined in the Series B Certificate of Designation) in order to approve the Nasdaq change of control application (each a “Trigger Event”), each holder of Series B Preferred Stock, at its sole option, shall have the right, but not the obligation, to reduce the Stated Value per share of Series B Preferred Stock in exchange for membership interests of Delaware Sub, up to a maximum of 33% of the outstanding membership interests of Delaware Sub.

 

Risk Factors Related to the Integration of Intermediate and Ownership of TINGO GROUP’s Securities

 

TINGO GROUP may be unable to successfully execute its post merger growth strategy.

 

One of the Company’s strategies is to pursue organic growth by increasing product offerings and expanding into new verticals and new markets such as China and Africa. TINGO GROUP may not be able to successfully execute all or any of these initiatives, and the results may vary from the expectations of the combined entity or others. Further, even if these initiatives are successful, TINGO GROUP may not be able to expand and upgrade its technology systems and infrastructure to accommodate increases in the business activity in a timely manner, which could lead to operational breakdowns and delays, loss of customers, a reduction in the growth of its customer base, increased operating expenses, financial losses, increased litigation or customer claims, regulatory sanctions or increased regulatory scrutiny. In addition, Intermediate will need to continue to attract, hire and retain highly skilled and motivated executives and employees to both execute the growth strategy and to manage the resulting growth effectively.

 

Cross-border merger and acquisition transactions may be subject to additional rules and regulations and requirements that could make merger and acquisition activities more time-consuming and complex. Our ability to expand our business through future mergers and acquisitions would as such be materially and adversely affected.

 

TINGO GROUP may be required to take write-downs or write-offs, restructuring and impairment or other charges that could have a significant negative effect on its financial condition and its share price, which could cause you to lose some or all of your investment.

 

TINGO GROUP cannot assure you that the due diligence it conducted on Intermediate has revealed all material issues that may be present with regard to such companies, or that it would be possible to uncover all material issues through a customary amount of due diligence or that risks outside of TINGO GROUP’s control will not later arise. Each of TINGO GROUP and Intermediate therefore has made its decision to complete the Merger on the basis of limited information, and the business combination may not be as profitable as expected, if at all. As a result of these factors, TINGO GROUP may be forced to later write-down or write-off assets, restructure operations, or incur impairment or other charges that could result in reporting losses. Even if TINGO GROUP’s due diligence successfully identified certain risks, unexpected risks may arise and previously known risks may materialize in a manner not consistent with TINGO GROUP’s preliminary risk analysis. Even though these charges may be non-cash items and would not have an immediate impact on TINGO GROUP’s liquidity, the fact that TINGO GROUP reports charges of this nature could contribute to negative market perceptions about TINGO GROUP or TINGO GROUP’s securities. Accordingly, TINGO GROUP cannot predict the impact that the consummation of the Merger will have on TINGO GROUP’s securities.

 

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TINGO GROUP’s ability to be successful will be dependent upon the efforts of the TINGO GROUP Board and key personnel and the loss of such persons could negatively impact the operations and profitability of TINGO GROUP’s post-combination business.

 

TINGO GROUP’s ability to be successful will be dependent upon the efforts of the TINGO GROUP Board and key personnel. Furthermore, the business of TINGO GROUP following the Merger is made up in part of Intermediate’s business, and is entirely different from TINGO GROUP’s historical business. Individuals associated with Intermediate may be unfamiliar with the requirements of operating a U.S. public company, which could cause TINGO GROUP’s management to have to expend time and resources helping them become familiar with such requirements.

 

TINGO GROUP is dependent on the services of its executive officers, whose potential conflicts of interest may not permit TINGO GROUP to effectively execute its business strategy. Tingo Mobile depends on its executive officers and other key employees, and the loss of one or more of these employees or an inability to attract and retain other highly skilled employees could harm its business.

 

TINGO GROUP is currently dependent on the continued services and performance of its executive officers, particularly Darren Mercer, TINGO GROUP’s Chief Executive Officer and a director of the TINGO GROUP Board. Darren Mercer, is also the Chief Executive Officer of GFH which may result in a potential conflict of interest in Mr. Mercer carrying out his duties as a member of the TINGO GROUP Board.

 

TGH’s success, and the success of Tingo Mobile and other operating subsidiaries of TGH, depends largely upon the continued services of its executive officers and other key employees, and in particular on Dozy Mmobuosi, the founder and CEO of Tingo Mobile, and senior management staff in Nigeria and elsewhere. TGH relies on its leadership team in the areas of research and development, operations, security, marketing, sales, customer experience, general, and administrative functions, and on individual contributors in its research and development and operations. From time to time, there may be changes in TGH’s executive management team resulting from the hiring or departure of executives, which could disrupt its business. While TGH has employment agreements with its executive officers or other key personnel that require them to continue to work for TGH, some of these agreements are not for any specified period and, therefore, they could terminate their employment with TGH at any time. The loss of one or more of TGH’s executive officers, especially its Chief Executive Officer, or key employees could harm its business. Changes in TGH’s executive management team may also cause disruptions in, and harm to, its business.

 

Provisions in TINGO GROUP’s certificate of incorporation and under Delaware law could make a future acquisition of TINGO GROUP, which may be beneficial to stockholders, more difficult and may prevent attempts by TINGO GROUP stockholders to replace or remove the current management.

 

Provisions in TINGO GROUP’s certificate of incorporation, as amended, and TINGO GROUP’s amended and restated bylaws may discourage, delay or prevent a merger, acquisition or other change in control that stockholders may consider favorable, including transactions in which you might otherwise receive a premium for TINGO GROUP’s common stock. These provisions could also limit the price that investors might be willing to pay in the future for TINGO GROUP securities, thereby depressing the market price of TINGO GROUP’s securities. In addition, these provisions may frustrate, deter or prevent any attempts by TINGO GROUP stockholders to replace or remove current management by making it more difficult for stockholders to replace members of the TINGO GROUP Board. Because the TINGO GROUP Board is responsible for appointing the members of the TINGO GROUP management team, these provisions could in turn affect any attempt by stockholders to replace current members of the TINGO GROUP management team.

 

Moreover, because TINGO GROUP is incorporated in Delaware, it is governed by the provisions of Section 203 of the General Corporation Law of the State of Delaware, or the DGCL, which prohibits a person who owns in excess of 15% of outstanding voting stock from merging or combining with TINGO GROUP for a period of three years after the date of the transaction in which the person acquired in excess of 15% of outstanding voting stock, unless the merger or combination is approved in a prescribed manner. TINGO GROUP has not opted out of the restrictions under Section 203.

 

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We may need a significant amount of additional capital, which could substantially dilute your investment

 

We may need significant additional capital in the future to continue our planned operations. No assurance can be given that we will be able to obtain such funds upon favorable terms and conditions, if at all. Failure to do so could have a material adverse effect on our business. To the extent we raise additional capital by issuing equity securities, our stockholders may experience substantial dilution. We may sell Common Stock, convertible securities, or other equity securities in one or more transactions that may include voting rights (including the right to vote as a series on particular matters), preferences as to dividends and liquidation, and conversion and redemption rights, subject to applicable law, and at prices and in a manner we determine from time to time.

 

Such issuances and the exercise of any convertible securities will dilute the percentage ownership of our stockholders and may affect the value of our capital stock and could adversely affect the rights of the holders of such stock, thereby reducing the value of such stock. Moreover, any exercise of convertible securities may adversely affect the terms upon which we will be able to obtain additional equity capital, since the holders of such convertible securities can be expected to exercise them at a time when we would, in all likelihood, be able to obtain any needed capital on terms more favorable to us than those provided in such convertible securities.

 

If we sell shares or other equity securities in one or more other transactions, or issue stock or stock options pursuant to any future employee equity incentive plan, investors may be materially diluted by such subsequent issuances.

 

Historically, TINGO GROUP has funded its operations and capital expenditures primarily through equity issuances and cash generated from its operations along with negotiating credit terms with suppliers that allows to effectively match revenues from customers with supplier payment terms. Although TINGO GROUP currently anticipates that its existing cash and cash equivalents and cash flow from operations will be sufficient to meet its cash needs for the foreseeable future, it may require additional financing, and it may not be able to obtain debt or equity financing on favorable terms, if at all and to manage any currency risk due to a mismatch in the currency of revenues, primarily Naira and those of expenses. If TINGO GROUP raises debt financing, it may be required to accept terms that restrict its ability to incur additional indebtedness, force TINGO GROUP to maintain specified liquidity or other ratios or restrict its ability to pay dividends or make acquisitions.

 

If the price of our Common Stock is volatile, our securities could incur substantial losses.

 

The price of TINGO GROUP’s Common Stock has been and may continue to be volatile. The market price of TINGO GROUP’s Common Stock may be influenced by many factors, including but not limited to the following:

 

  developments regarding the Merger and the transactions;

 

  announcements of developments related to TINGO GROUP’s business (including those aspects of TINGO GROUP’s business received in connection with the Merger);

 

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  quarterly fluctuations in actual or anticipated operating results;

 

  announcements of technological innovations;

 

  new products or product enhancements introduced by Micronet or its competitors;

 

  developments in patents and other intellectual property rights and litigation;

 

  developments in relationships with third party manufacturers and/or strategic partners;

 

  developments in relationships with customers and/or suppliers;

 

  regulatory or legal developments in the United States, Israel, China and other countries;

 

  general conditions in the global economy; and

 

  the other factors described in this “Risk Factors” section.

 

A sale by TINGO GROUP of a substantial number of shares of the Common Stock or securities convertible into or exercisable for Common Stock may cause the price of the Common Stock to decline and may impair the ability to raise capital in the future.

 

Our Common Stock is traded on Nasdaq and despite certain increases of trading volume from time to time, there have been periods when it could be considered “thinly-traded,” meaning that the number of persons interested in purchasing Common Stock at or near bid prices at any given time may have been relatively small or non-existent. Financing transactions resulting in a large amount of newly-issued securities, or other events that cause current stockholders to sell shares, could place downward pressure on the trading price of Common Stock. In addition, the lack of a robust resale market may require a stockholder who desires to sell a large number of shares of Common Stock to sell those shares in increments over time to mitigate any adverse impact of the sales on the market price of TINGO GROUP stock. If TINGO GROUP stockholders sell, or the market perceives that its stockholders intend to sell for various reasons, including the ending of restriction on resale, substantial amounts of Common Stock in the public market, including shares issued upon the exercise of outstanding options or warrants, the market price of Common Stock could fall. Sales of a substantial number of shares of Common Stock may make it more difficult for TINGO GROUP to sell equity or equity-related securities in the future at a time and price that TINGO GROUP deems reasonable or appropriate. Moreover, TINGO GROUP may become involved in securities class action litigation arising out of volatility resulting from such sales that could divert management’s attention and harm TINGO GROUP’s business.

 

We may acquire other companies or technologies which could divert our management’s attention, result in additional dilution to our stockholders and otherwise disrupt our operations and adversely affect our operating results.

 

We may in the future seek to acquire or invest in other businesses, features or technologies that we believe could complement or expand our market, enhance our technical capabilities or otherwise offer growth opportunities. The pursuit of potential acquisitions, may divert the attention of management and cause us to incur various expenses in identifying, investigating and pursuing suitable acquisitions, whether or not they are consummated. In addition, to the extent that we enter into any term sheets or otherwise announce any intention to acquire any additional businesses, features or technologies, any such acquisition would generally be subject to completion of due diligence and required approvals, and would require additional financing, and there can be no assurance that any such acquisition will occur or be completed in a timely manner, or at all.

 

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If we acquire additional businesses, we may not be able to integrate the acquired personnel, operations, existing contracts and technologies successfully or effectively manage the combined business following the acquisition. We also may not achieve the anticipated benefits from any acquired business, due to a number of factors, including:

 

  failure to identify all of the problems, liabilities or other shortcomings or challenges of an acquired company or technology, including issues related to intellectual property, regulatory compliance practices, product quality and safety, revenue recognition or other accounting practices, or employee or client issues;

 

  difficulty incorporating acquired technology and rights into our proprietary software and of maintaining quality and security standards consistent with our brands;

 

  inability to generate sufficient revenue to offset acquisition or investment costs;

 

  incurrence of acquisition-related costs or equity dilution associated with funding the acquisition;

 

  difficulties and additional expenses associated with supporting legacy products and hosting infrastructure of the acquired business;

 

  risks of entering new markets or new product categories in which we have limited or no experience;

 

  difficulty converting the customers of the acquired business into our customers;

 

  diversion of our management’s attention from other business concerns;

 

  adverse effects to our existing business relationships as a result of the acquisition;

 

  potential loss of key employees, clients, vendors and suppliers from either our current business or an acquired company’s business;

 

  use of resources that are needed in other parts of our business;

 

  possible write offs or impairment charges relating to acquired businesses;

 

  compliance with regulatory matters covering the products of the acquired business; and

 

  use of substantial portions of our available cash to consummate the acquisition.

 

In addition, a significant portion of the purchase price of companies we acquire may be allocated to acquired goodwill and intangible assets, which must be assessed for impairment at least annually. In the future, if our acquisitions do not yield expected returns, we may be required to take charges to our operating results based on this impairment assessment process, which could adversely affect our results of operations. Acquisitions could also result in dilutive issuances of equity securities or the incurrence of debt, which could adversely affect our operating results. If an acquired business fails to meet our expectations, our business, operating results and financial condition may suffer.

 

If securities or industry analysts do not publish research or reports or publish unfavorable research about TINGO GROUP’s business, the price of its Common Stock could decline.

 

TINGO GROUP does not currently have any significant research coverage by securities and industry analysts and may never obtain such research coverage. If securities or industry analysts do not commence or maintain coverage of TINGO GROUP, the trading price for its Common Stock might be negatively affected. In the event such securities or industry analyst coverage is obtained, if one or more of the analysts who covers TINGO GROUP or will cover TINGO GROUP downgrades its securities, the price of Common Stock would likely decline. If one or more of these analysts ceases to cover TINGO GROUP or fails to publish regular reports on it, interest in the purchase of Common Stock could decrease, which could cause the price of Common Stock and trading volume to decline.

 

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If we fail to continue to meet all applicable Nasdaq requirements, Nasdaq may delist our common stock, which could have an adverse impact on the liquidity and market price of our common stock.

 

TINGO GROUP’s common stock is currently listed on Nasdaq, which has qualitative and quantitative listing criteria. If TINGO GROUP continues to be unable to comply with Nasdaq listing requirements, including, for example, if the closing bid price for TINGO GROUP common stock continues to fall below $1.00 per share, in breach of Nasdaq Listing Rule 5550(a)(2), Nasdaq could determine to delist the TINGO GROUP common stock which could adversely affect its market liquidity market price. In that regard, on January 27, 2022, TINGO GROUP received written notice from Nasdaq indicating that it was not in compliance with Nasdaq Listing Rule 5550(a)(2), as the closing bid price of its common stock had been below $1.00 per share. Nasdaq’s letter advised the Company that, based upon the closing bid price during the period from December 21, 2021 to January 26, 2022, the Company no longer meets this test. TINGO GROUP was able to regain compliance by maintaining a minimum closing bid price of at least $1.00 for a minimum of 10 consecutive trading days; however there can be no assurance that TINGO GROUP will be able to maintain compliance with the Nasdaq listing requirements, or that the common stock will not be delisted from Nasdaq in the future. Such delisting could adversely affect the ability to obtain financing for the continuation of TINGO GROUP’s operations or prevent us from completing the Acquisition or any other alternative transaction, and could result in the loss of confidence by investors, customers and employees and cause our shareholders to incur substantial losses.

 

If Nasdaq delists TINGO GROUP’s securities from trading on its exchange and TINGO GROUP is not able to list its securities on another national securities exchange, TINGO GROUP expects its securities could be quoted on an over-the-counter market. If this were to occur, TINGO GROUP could face significant material adverse consequences, including:

 

  a limited availability of market quotations for its securities;

 

  reduced liquidity for its securities;

 

  a determination that the TINGO GROUP’s common stock is a “penny stock” which will require brokers trading in the TINGO GROUP’s common stock to adhere to more stringent rules and possibly result in a reduced level of trading activity in the secondary trading market for TINGO GROUP’s securities;

 

  a limited amount of news and analyst coverage; and

 

  a decreased ability to issue additional securities or obtain additional financing in the future.

 

TINGO GROUP’s stockholders may not realize a benefit from the Company’s merger with Tingo Mobile commensurate with the ownership dilution they will experience in connection with the mergers.

 

If TINGO GROUP is unable to realize the full strategic and financial benefits anticipated as a result of the merger with Tingo Mobile, TINGO GROUP’s stockholders will have experienced substantial dilution of their ownership interests in TINGO GROUP without receiving any commensurate benefit, or only receiving part of the commensurate benefit to the extent TINGO GROUP is able to realize only part of the strategic and financial benefits anticipated from the mergers.

 

Intermediate may be subject to new or different statutory and regulatory requirements in the British Virgin Islands (“BVI”).

 

As the global regulatory and tax environment evolves, Intermediate may be subject to new or different statutory and regulatory requirements (for example, on January 1, 2019 the Economic Substance (Companies and Limited Partnerships) Act, 2018 of the British Virgin Islands came into force). It is difficult to predict what impact the adoption of these laws or regulations, or changes in the interpretation of existing laws or regulations could have on Intermediate, however, compliance with various additional obligations may create significant additional costs that may be borne by Intermediate or otherwise affect the management and operation of Intermediate.

 

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The COVID-19 pandemic, or any other pandemic, epidemic or outbreak of an infectious disease, may materially and adversely affect TINGO GROUP’s business and operations.

 

Since being declared a pandemic by the World Health Organization in March 2020, COVID-19 has negatively impacted global economies, disrupted consumer spending and global supply chains, and created significant volatility and disruption of financial markets.

 

TINGO GROUP’s operations and business have experienced disruptions due to the unprecedented conditions surrounding the spread of COVID-19 throughout China, North America, Israel and the world. The COVID-19 pandemic and both public and private measures taken to contain it have negatively affected TINGO GROUP’s business, results of operations, financial condition, and liquidity, all of which may continue or worsen.

 

Even after COVID-19 has subsided, TINGO GROUP may continue to experience materially adverse impacts to its business as a result of its global economic impact, including any recession that has occurred or may occur in the future. There are no comparable recent events which may provide guidance as to the effect of the spread of COVID-19, and, as a result, the ultimate impact of COVID-19, or a similar health epidemic or pandemic, is highly uncertain and subject to change. While TINGO GROUP continues to monitor the business metrics that it has historically used to predict its financial performance, it is uncertain as to whether these metrics will continue to function as they have in the past. In addition, COVID-19 cause lock downs of cities which may happen again and affect our ablity to file our financial statements on time.

 

We have issued and may issue additional preferred stock in the future, and the terms of the preferred stock may reduce the value of our Common Stock.

 

We are authorized to issue up to 15,000,000 shares of preferred stock in one or more series. Our board of directors may determine the terms of future preferred stock offerings without further action by our stockholders. If we issue shares of preferred stock, it could affect stockholder rights or reduce the market value of our outstanding Common Stock. In particular, specific rights granted to future holders of preferred stock may include voting rights, preferences as to dividends and liquidation, conversion and redemption rights, sinking fund provisions, and restrictions on our ability to merge with or sell our assets to a third party.

 

TINGO GROUP may be subject to litigation and regulatory investigations and proceedings, and may not always be successful in defending itself against such claims or proceedings. Negative outcomes of legal proceedings may adversely affect Tingo Group’s business and financial condition.

 

TINGO GROUP’s business operations entail substantial litigation and regulatory risks, including the risk of lawsuits and other legal actions relating to, among other matters, breach of contract, information disclosure, client onboarding procedures, sales practices, product design, fraud and misconduct, and control procedures deficiencies, as well as the protection of personal and confidential information of TINGO GROUP’s or Intermediate’s or Micronet’s clients. TINGO GROUP or its subsidiaries may be subject to arbitration claims and lawsuits in the ordinary course of its business. TINGO GROUP or its subsidiaries may also be subject to inquiries, inspections, investigations and proceedings by regulatory and other governmental agencies. TINGO GROUP and its subsidiaries will be subject to extensive and evolving regulatory requirements, non-compliance with which, may result in penalties, limitations and prohibitions on its future business activities or suspension or revocation of its licenses and trading rights, and consequently may materially and adversely affect its business, financial condition, operations and prospects.

 

Tingo Mobile is regularly involved in a number of legal proceedings before various courts. These proceedings may be complicated, costly, and disruptive to its business operations. Tingo Mobile may incur significant expenses in defending these matters and may be required to pay significant fines, awards, or settlements. In addition, litigation or other proceedings could result in restrictions on our current or future manner of doing business. Any of these potential outcomes, such as judgments, awards, settlements, or orders could have a material adverse effect on Tingo Mobile’s business, financial condition, operating results, or ability to do business.

 

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Additionally, the Merger and the transactions contemplated thereby, as well as certain private placements completed by the Company, may give rise to litigation and/or other legal disputes. As previously disclosed, in March 2017, TINGO GROUP entered into an Investment Banking Agreement (the “Sunrise Agreement”) with Sunrise Securities LLC and Trump Securities LLC (collectively, “Sunrise”) through Sunrise’s principal, Amnon Mandelbaum, pursuant to which Sunrise agreed to assist TINGO GROUP in identifying, analyzing, structuring, and negotiating suitable business opportunities, such as a sale of stock or assets, merger, tender offer, joint venture, financing arrangement, private placement, or any similar transaction or combination thereof. The parties had disagreements about, among other things, the applicability of the Sunrise Agreement, and the Company received demand letters and other correspondences from Sunrise threatening litigation in connection therewith. As of the date hereof, the parties have executed a settlement and release agreement for the release and waiver of the above claims however, TINGO GROUP was not able to timely file a registration statement to register the shares, and shares underlying the warrants per the settlement agreement. The Sunrise parties notified TINGO GROUP that it has breached the settlement agreement. TINGO GROUP has made a significant offer to the Sunrise parties to settle such matter and is negotiating with the Sunrise parties to resolve this issue immediately. For further details see “Legal Proceedings” below.

 

Actions brought against TINGO GROUP or its subsidiaries may result in settlements, injunctions, fines, penalties, suspension or revocation of licenses, reprimands or other results adverse to it that could harm its reputation. Even if TINGO GROUP is successful in defending itself against these actions, the costs of such defense may be significant. In market downturns, the number of legal claims and the amount of damages sought in legal proceedings may increase.

 

In addition, TINGO GROUP may face arbitration claims and lawsuits brought by its or tis subsidiaries’ users and clients who use its services and find them unsatisfactory. TINGO GROUP may also encounter complaints alleging misrepresentation with regard to its platforms and/or services. Actions brought against TINGO GROUP may result in settlements, awards, injunctions, fines, penalties or other results adverse to it including harm to its reputation. Even if TINGO GROUP is successful in defending against these actions, the defense of such matters may result in its incurring significant expenses. Predicting the outcome of such matters is inherently difficult, particularly where claimants seek substantial or unspecified damages, or when arbitration or legal proceedings are at an early stage. A significant judgement or regulatory action against TINGO GROUP or a material disruption in Intermediate’s stock trading platform business arising from adverse adjudications in proceedings against the directors, officers or employees would have a material adverse effect on TINGO GROUP’s liquidity, business, financial condition, results of operations and prospects.

 

Because almost all of TINGO GROUP’s officers and directors are located in non-U.S. jurisdictions, you may have no effective recourse against management for misconduct.

 

Currently, a majority of TINGO GROUP’s directors and officers are or will be nationals and/or residents of countries other than the United States, and all or a substantial portion of their assets are located outside the United States. As a result, it may be difficult for investors to enforce within the United States any judgments obtained against such officers or directors, including judgments predicated upon the civil liability provisions of the securities laws of the United States or any U.S. state. Additionally, it may be difficult to enforce civil liabilities under U.S. securities law in original actions instituted in Israel, Nigeria , the UK or PRC. UK, PRC, Nigeria or Israeli courts may refuse to hear a claim based on a violation of U.S. securities laws because such jurisdictions are not the most appropriate forum to bring such a claim. In addition, even if such courts agree to hear a claim, they may determine that Israeli, Nigeria , UK or PRC law, as applicable, and not U.S. law is applicable to hear the claim. If U.S. law is found to be applicable, the content of applicable U.S. law must be proved as a fact, which can be a time-consuming and costly process. Certain matters of procedure may also be governed by UK, PRC or Israeli law.

 

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TINGO GROUP’s financial results may be negatively affected by foreign exchange rate fluctuations.

 

TINGO GROUP’s revenues are mainly denominated in U.S. dollars. Where possible, TINGO GROUP matches sales and purchases in these and other currencies to achieve a natural hedge. To the extent TINGO GROUP is unable to fully match sales and purchases in different currencies, its business will be exposed to fluctuations in foreign exchange rates. Following the Merger, The Company’s revenue and expenses have been and are expected to continue to be primarily denominated in RMB, HK Dollar, Nis and Naira and we are exposed to the risks associated with the fluctuation in the currency exchange rate of RMB, HK Dollar, Nis and Naira. Should RMB, HK Dollar, Nis and Naira appreciate against other currencies, the value of the proceeds from this offering and any future financings, which are to be converted from U.S. dollar or other currencies into RMB, HK Dollar, Nis and Naira, would be reduced and might accordingly hinder our business development due to the lessened amount of funds raised. Substantial fluctuation in the currency exchange rate of RMB, HK Dollar, Nis and Naira may have a material adverse effect on Intermediate’s business, operations and financial position and the value of your investment in the Units.

 

We have identified a material weakness in our internal control over financial reporting as of December 31, 2022.

 

We conducted an evaluation under the supervision of our Chief Executive Officer and Chief Financial Officer (our Principal Executive Officer and Principal Financial Officer, respectively), regarding the effectiveness of the Company’s disclosure controls and procedures (as defined in Rules 13a-15(e) and 15d-15(e) under the Exchange Act) as of December 31, 2022 and management concluded that they were not effective. The five material weaknesses related to information technology and one material weakness related to engaging enough qualified employees knowledgeable in U.S. GAAP were directly related to our rapid growth, inability to timely integrate various information technology systems from all of its acquired businesses, the ongoing effects of COVID-19 and PRC regulations related thereto. See Item 9A Controls and Procedures for a further description of the identified material weaknesses. If we are unable to maintain an effective system of internal control over financial reporting, we may not be able to accurately report our financial results in a timely manner, which may adversely affect investor confidence in us and materially and adversely affect our business and operating results;

 

Risk Factors Relating to Intermediate’s and Tingo’s respective Businesses. TINGO GROUP anticipates that its operating costs and expenses will increase. Intermediate may not be able to manage its expansion effectively.

 

TINGO GROUP anticipates that its operating costs and expenses will increase in the foreseeable future as it endeavors to launch and grow Intermediate’s business, attract users and clients, enhance and develop its service offerings, enhance its technology capabilities, and increase its brand recognition. These efforts may prove more costly than TINGO GROUP anticipates, and it may not succeed in generating revenues sufficiently to offset these higher expenses. There are other external and internal factors that could negatively affect TINGO GROUP’s financial condition. For example, the transaction volume achieved on Intermediate’s platforms may be lower than expected, which may lead to lower than expected revenues. Furthermore, TINGO GROUP has adopted a share incentive plan in the past and may adopt new share incentive plans in the future, which have caused, and will result in, significant share-based compensation expenses to us. As a result of the foregoing and other factors, TINGO GROUP may incur net losses in the future.

 

Additionally, Intermediate’s current and planned personnel, systems, resources and controls may not be adequate to support and effectively manage its future operations. Intermediate’s plans for continuous expansion may increase the complexity of its business and may place a strain on its management, operations, technical systems, financial resources and internal control functions. Intermediate intends to upgrade its systems from time to time to cater to the need of launching new services, and the process of upgrading its systems may disrupt its ability to timely and accurately process information, which could adversely affect its results of operations and cause harm to its business.

 

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If the Company is unable to attract and retain clients, or if it fails to offer services to address the needs of its clients as it evolves, Intermediate’s business and results of operations may be materially and adversely affected.

 

If there is insufficient demand for Intermediate’s services, it might not be able to achieve and increase its transaction volume and revenues as it expects, and its and the Company’s business and results of operations may be adversely affected.

 

The Company’s success will depend largely on its ability to attract and retain clients, in particular those that have highly frequent transactions. Failure to deliver services in a timely manner at competitive prices with satisfactory experience will cause clients to lose confidence in Intermediate and use its platforms less frequently or even stop using its platforms altogether, which in turn will materially and adversely affect Intermediate’s business. Even if Intermediate is able to provide high-quality and satisfactory services on its platforms in a timely manner and at favorable price terms, the Company cannot assure you that Intermediate will be able to attract and retain clients, encourage repeat and increase trading transactions due to reasons out of its control, such as Intermediate’s clients’ personal financial reasons or the deterioration of the market conditions.

 

If Intermediate is unable to generate clients and increase its client retention rates in a cost-effective manner, Intermediate’s business, financial condition and results of operations are likely to be adversely affected. Although the Company expects to spend significant financial resources on marketing expenses, these efforts may not be cost-effective to attract clients to Intermediate. The Company cannot assure its investors that Intermediate will be able to gain, maintain, or grow a client base in a cost-effective way, if at all.

 

TINGO GROUP will depend on its maintenance of its intellectual property and its proprietary technology, and its future results may be impacted if it cannot maintain technological superiority in its industry. Tingo Mobile may not be able to respond quickly enough to changes in technology and technological risks, and to develop and maintain its intellectual property.

 

TINGO GROUP’s potential success depends on Tingo Mobile’s ability to achieve technological advances and Intermediate’s sophisticated proprietary technology to empower the efficient operations of its platforms. If Intermediate’s technology becomes more widely available to its current or future competitors for any reason, its operating results may be adversely affected.

 

Changes in legislative, regulatory or industry requirements or in competitive technologies may render certain of Tingo Mobile’s planned products obsolete or less attractive. Tingo Mobile’s communications equipment may become obsolete, and our ability to anticipate changes in technology and regulatory standards and to successfully develop and introduce new and enhanced products on a timely basis will be a significant factor in Tingo Mobile’s ability to remain competitive. We cannot provide assurance that Tingo Mobile will be able to achieve the technological advances that may be necessary for it to remain competitive or that certain of Tingo Mobile’s products will not become obsolete.

 

Additionally, to keep pace with changing technologies and client demands, Intermediate must correctly interpret and address market trends and enhance the features and functionality of its technology in response to these trends, which may lead to significant research and development costs. Intermediate may be unable to accurately determine the needs of its users and clients or the trends of the various industries it anticipates to enter or to design and implement the appropriate features and functionality of its technology in a timely and cost-effective manner, which could result in decreased demand for its services and a corresponding decrease in its revenue. Also, any adoption or development of similar or more advanced technologies by its competitors may require that TINGO GROUP devotes substantial resources to the development of more advanced technology at Intermediate to remain competitive. The markets in which Intermediate competes are characterized by rapidly changing technology, evolving industry standards and changing trading systems, practices and techniques. Intermediate may not be able to keep up with these rapid changes in the future, develop new technology, realize a return on amounts invested in developing new technologies or remain competitive in the future.

 

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In addition, Intermediate must protect its systems against physical damage from fire, earthquakes, power loss, telecommunications failures, computer viruses, hacker attacks, physical break-ins and similar events. Any software or hardware damage or failure that causes interruption or an increase in response time of its proprietary technology could reduce client satisfaction and decrease usage of its services.

 

Unexpected network interruptions, security breaches or computer virus attacks and failures in TINGO GROUP’s information technology systems could have a material adverse effect on its business, financial condition and results of operations. Additionally, interruptions or delays in the services provided by cellular networks or Internet service providers could impair Tingo Mobile’s operations and its business could suffer. Tingo Mobile’s use of open-source software may pose particular risks to its proprietary software and systems.

 

TINGO GROUP’s information technology systems will support all phases of its operations and will be an essential part of its technology infrastructure. If Intermediate’s systems fail to perform, it could experience disruptions in operations, slower response time or decreased customer satisfaction. Intermediate must be able to process, record and monitor a large number of transactions and its operations are highly dependent on the integrity of its technology systems and its ability to make timely enhancements and additions to its systems. System interruptions, errors or downtime can result from a variety of causes, including unexpected interruptions to the Internet infrastructure, technological failures, changes to Intermediate’s systems, changes in customer usage patterns, linkages with third-party systems and power failures. Intermediate’s systems will also be vulnerable to disruptions from human error, execution errors, errors in models such as those used for risk management and compliance, employee misconduct, unauthorized trading, external fraud, distributed denial of service attacks, computer viruses or cyberattacks, terrorist attacks, natural disaster, power outage, capacity constraints, software flaws, events impacting Intermediate’s key business partners and vendors, and other similar events.

 

Intermediate’s Internet-based businesses depend on the performance and reliability of the Internet infrastructure. Intermediate cannot assure its investors that the Internet infrastructure it depends on will remain sufficiently reliable for its needs. Any failure to maintain the performance, reliability, security or availability of Intermediate’s network infrastructure may cause significant damage to its ability to attract and retain users and clients. Major risks involving Intermediate’s network infrastructure include:

 

  breakdowns or system failures resulting in a prolonged shutdown of its servers;
     
  disruption or failure in the national backbone networks in the PRC, which would make it impossible for users and clients to access its platforms;
     
  damage from natural disasters or other catastrophic events such as typhoon, volcanic eruption, earthquake, flood, telecommunications failure, or other similar events; and
     
  any infection by or spread of computer viruses or other system failures.

 

Any network interruption or inadequacy that causes interruptions in the availability of Intermediate’s platforms or deterioration in the quality of access to its platforms could reduce user and client satisfaction and result in a reduction in the activity level of its users and clients as well as the number of clients making trading transactions on its platforms. Furthermore, increases in the volume of traffic on Intermediate’s platforms could strain the capacity of its computer systems and bandwidth, which could lead to slower response times or system failures. This could cause a disruption or suspension in Intermediate’s service delivery, which could hurt its brand and reputation. Intermediate may need to incur additional costs to upgrade its technology infrastructure and computer systems in order to accommodate increased demand if it anticipates that its systems cannot handle higher volumes of traffic and transaction in the future. In addition, it could take an extended period of time to restore full functionality to its technology or other operating systems in the event of an unforeseen occurrence, which could affect its ability to process and settle client transactions. Despite Intermediate’s efforts to identify areas of risk, oversee operational areas involving risks, and implement policies and procedures designed to manage these risks, there can be no assurance that it will not suffer unexpected losses, reputational damage or regulatory actions due to technology or other operational failures or errors, including those of its vendors or other third parties.

 

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In addition, any damage to or failure of Tingo Mobile’s systems generally would prevent it from operating its business. Tingo Mobile relies on the cellular networks and internet and, accordingly, depend upon the continuous, reliable, and secure operation of these networks and internet servers, related hardware and software, and network infrastructure that Tingo Mobile uses are vulnerable to damage or interruption from human error, intentional bad acts, earthquakes, floods, fires, severe storms, war, terrorist attacks, power losses, hardware failures, systems failures, telecommunications failures, and similar events, many of which are beyond Tingo Mobile’s control, any of which could disrupt its service, destroy user content, or prevent Tingo Mobile from being able to continuously back up or record changes in its users’ content. In the event of significant physical damage to one of these data centers, it may take a significant period of time to achieve full resumption of our services, and Tingo Mobile’s disaster recovery planning may not account for all eventualities. Moreover, negative publicity arising from these types of disruptions could damage Tingo Mobile’s reputation and may adversely impact use of its products. Tingo Mobile may not carry sufficient business interruption insurance to compensate it for losses that may occur as a result of any events that cause interruptions in its service.

 

Additionally, Tingo Mobile uses open-source software in its proprietary software and systems and intends to continue using open-source software in the future. The licenses applicable to Tingo Mobile’s use of open-source software may require that source code that is developed using open-source software be made available to the public and that any modifications or derivative works to certain open-source software continue to be licensed under open-source licenses. From time to time, Tingo Mobile may face claims from third parties claiming infringement of their intellectual property rights, or demanding the release or license of the open source software or derivative works that Tingo Mobile developed using such software (which could include Tingo Mobile’s proprietary source code) or otherwise seeking to enforce the terms of the applicable open source license. These claims could result in litigation and could require Tingo Mobile to purchase a costly license, publicly release the affected portions of its source code, be limited in or cease using the implicated software unless and until it can re-engineer such software to avoid infringement or change the use of, or remove, the implicated open-source software.

 

In addition to risks related to license requirements, use of certain open-source software can lead to greater risks than use of third-party commercial software, as open-source licensors generally do not provide warranties, indemnities or other contractual protections with respect to the software (for example, non- infringement or functionality). Tingo Mobile’s use of open-source software may also present additional security risks because the source code for open source software is publicly available, which may make it easier for hackers and other third parties to determine how to breach its website and systems that rely on open source software. Any of these risks could be difficult to eliminate or manage, and, if not addressed, could have a material adverse effect on Tingo Mobile’s business, financial condition, results of operations and prospects.

 

If TINGO GROUP or Tingo Mobile fails to protect its platform or the confidential information of its users and clients, whether due to cyber-attacks, computer viruses, physical or electronic break-ins or other reasons, it may be subject to liabilities imposed by relevant laws and regulations, and its reputation and business may be materially and adversely affected.

 

TINGO GROUP’s and Intermediate’s computer system, the networks it uses, the networks and online trading platforms of the exchanges and other third parties with whom it interacts, are potentially vulnerable to physical or electronic computer break-ins, viruses and similar disruptive problems or security breaches. A party that is able to circumvent TINGO GROUP’s or Intermediate’s security measures could misappropriate proprietary information or customer information, jeopardize the confidential nature of the information TINGO GROUP or Intermediate transmits over the Internet and mobile network or cause interruptions in its operations. TINGO GROUP, Intermediate or its respective service providers may be required to invest significant resources to protect against the threat of security breaches or to alleviate problems caused by any breaches.

 

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In addition, TINGO GROUP and Intermediate will collect, store and process certain personal and other sensitive data from its users and clients, which makes TINGO GROUP and Intermediate potentially vulnerable targets to cyber-attacks, computer viruses, physical or electronic break-ins or similar disruptions. While TINGO GROUP and Intermediate will take steps to protect the confidential information that it expects to have access to, its security measures could be breached. Because the techniques used to sabotage or obtain unauthorized access to systems change frequently and generally are not recognized until they are launched against a target, TINGO GROUP and Intermediate may not be able to anticipate these techniques or implement adequate preventative measures. Any accidental or willful security breaches or other unauthorized access to TINGO GROUP’s or Intermediate’s system could cause confidential user and client information to be stolen and used for criminal purposes. Security breaches or unauthorized access to confidential information could also expose TINGO GROUP and Intermediate to liability related to the loss of the information, time-consuming and expensive litigation and negative publicity. If security measures are breached because of third-party action, employee error, malfeasance or otherwise, or if design flaws in TINGO GROUP’s or Intermediate’s technology infrastructure are exposed and exploited, its relationships with users and clients could be severely damaged, it could incur significant liability and its stock trading platform business and operations could be adversely affected. Furthermore, Intermediate’s corporate clients may utilize its technology to serve their own employees and customers. Any failure or perceived failure by TINGO GROUP or Intermediate to prevent information security breaches or to comply with privacy policies or privacy-related legal obligations, or any compromise of security that results in the unauthorized release or transfer of personally identifiable information or other customer data, could cause Intermediate’s clients to lose trust in it and could expose Intermediate to legal claims.

 

In addition, Tingo Mobile collects personally identifiable information and other data from its consumers and prospective consumers. Tingo Mobile uses this information to provide services and relevant products to its consumers, to support, expand and improve its business, and to tailor our marketing and advertising efforts. Tingo Mobile may also share consumers’ personal data with certain third parties as authorized by the consumer or as described in Tingo Mobile’s privacy policy. As a result, Tingo Mobile is subject to governmental regulation and other legal obligations related to the protection of personal data, privacy and information security in certain countries where it does business, and there has been, and we expect there will be a continuing increase globally in laws that restrict or control the use of personal data. Consumer privacy and consumer protection laws may be interpreted or applied by regulatory authorities in a manner that could require Tingo Mobile to make changes to its contracts, or its operations, or incur fines, penalties, or settlement expenses, which may result in harm to its business, results of operations, financial condition, and brand.

 

There are uncertainties as to the interpretation and application of laws in one jurisdiction which may be interpreted and applied in a manner inconsistent to another jurisdiction and may conflict with TINGO GROUP’s or Intermediate’s policies and practices or require changes to the features of its system. TINGO GROUP and Intermediate cannot assure that its user information protection system and technical measures will be considered sufficient under applicable laws and regulations. If TINGO GROUP or Intermediate is unable to address any information protection concerns, any compromise of security that results unauthorized disclosure or transfer of personal data, or to comply with the then applicable laws and regulations, it may incur additional costs and liability and result in governmental enforcement actions, litigation, fines and penalties or adverse publicity and could cause its users and clients to lose trust in us, which could have a material adverse effect on its stock trading platform business, results of operations, financial condition and prospects. TINGO GROUP and Intermediate may also be subject to new laws, regulations or standards or new interpretations of existing laws, regulations or standards, including those in the areas of data security and data privacy, which could require TINGO GROUP or Intermediate to incur additional costs and restrict its stock trading platform business operations.

 

Additionally, the regulatory landscape surrounding data protection, data privacy and information security is rapidly changing across Africa. Among the African countries, only Ivory Coast, Ghana, Senegal, Morocco, Nigeria, South Africa and Tunisia have established comprehensive data protection and data privacy laws. These data protection laws and regulations were only recently enacted. For example, the National Information Technology Development Agency in Nigeria passed new data protection guidelines in 2017, and we have implemented new policies to comply with these regulations.

 

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Compliance with the various data protection laws in Africa is challenging due to the complex and sometimes contradictory nature of the different regulatory regimes. Because data protection regulations are not uniform among the various African nations in which TINGO GROUP, including its subsidiary Tingo Mobile operates, its ability to transmit consumer information across borders is limited by its ability to comply with conditions and restrictions that vary from country to country. In countries with particularly strict data protection laws, Tingo Mobile might not be able to transmit data out of the country at all and may be required to host individual servers in each such country where it collects data. For example, Ivory Coast, Ghana, Senegal, Morocco, and Tunisia all restrict data transfer across borders. Ghana also requires that a company notify consumers in the event of a personal data breach. Egypt currently has no data protection and privacy laws. However, the Egyptian government announced in 2017 that it is committed to doubling the size of its e-commerce sector by 2020 and intends to update all legislation and regulation relevant to e-commerce. Moreover, many data protection regimes apply based on where a consumer is located, and as TGH expands and new laws are enacted or existing laws change, it may be subject to new laws, regulations or standards or new interpretations of existing laws, regulations or standards, including those in the areas of data security, data privacy and regulation of email providers and those that require localization of certain data, which could require TGH to incur additional costs and restrict its business operations.

 

TGH and its subsidiaries in Nigeria and other African jurisdictions are also subject to other Nigeria and international laws. Although TGH takes precautions to prevent violations of these laws, its exposure for violating these laws increases as TGH continues to expand its international presence and any failure to comply with such laws could harm its reputation and our business.

 

Any failure or perceived failure by TGH or any of its subsidiares to comply with rapidly evolving privacy or security laws, policies, legal obligations or industry standards or any security incident that results in the unauthorized release or transfer of personally identifiable information or other consumer data may result in governmental enforcement actions, litigation (including consumer class actions), criminal prosecution, fines and penalties or adverse publicity and could cause our consumers to lose trust in the Tingo brand, which could have a material adverse effect on its business, financial condition, results of operations and prospects.

 

TINGO GROUP may not succeed in promoting and sustaining its brand, which could have an adverse effect on its future growth and business. If TINGO GROUP fails to compete effectively, it may lose existing users and fail to attract new users, which could have a material adverse effect on its business, financial condition, results of operations and prospects.

 

A critical component of TINGO GROUP’s launch and growth will be its ability to promote and sustain its brand. Promoting and positioning TINGO GROUP’s brand and platforms will depend largely on the success of its marketing efforts, its ability to attract users and clients cost-efficiently and its ability to consistently provide high-quality services and a superior experience. TINGO GROUP expects to incur significant expenses related to advertising and other marketing efforts, which may not be effective and may adversely affect its net margins.

 

If TINGO GROUP fails to maintain its brand cost-effectively, its ability to expand the number of users of the Tingo Mobile network will be impaired, its reputation may be harmed, and its business, results of operations, and financial condition may suffer.

 

We believe that developing and maintaining awareness of the Tingo brand is critical to achieving widespread acceptance of the Tingo Mobile network and is an important element in attracting new users. Furthermore, we believe that the importance of Tingo brand recognition will increase as competition in its market increases. Successful promotion of the Tingo brand will depend largely on the effectiveness of its marketing efforts and on its ability to ensure that the Tingo Mobile network remains reliable, and useful at competitive prices. Brand promotion activities may not yield increased revenue, and even if they do, any increased revenue may not offset the expenses Tingo Mobile incurs in building its brand. If Tingo Mobile fails to successfully promote and maintain its brand or incur substantial expenses in an unsuccessful attempt to promote and maintain its brand, it may fail to attract new organizations to Tingo Mobile or to grow or maintain its telecommunications network.

 

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In addition, to provide a high-quality user and client experience, TINGO GROUP expects to invest substantial amounts of resources in the development and functionality of Intermediate’s platforms, websites, technology infrastructure and client service operations. Intermediate’s ability to provide a high-quality user and client experience will also be highly dependent on external factors over which it may have little or no control, including, without limitation, the reliability and performance of software vendors and business partners. Failure to provide Intermediate’s users and clients with high quality services and experience for any reason could substantially harm its reputation and adversely impact its efforts to develop a trusted brand, which could have a material adverse effect on its stock trading platform business, results of operations, financial condition and prospects.

 

Any failure to protect either Intermediate’s or Tingo Mobile’s intellectual property could harm their respective businesses and competitive position. Additionally, the products and services utilized by Tingo Mobile and its suppliers and service providers may infringe on intellectual property rights owned by others.

 

Intermediate expects to rely primarily on trade secret, contract, copyright, trademark and patent law to protect its proprietary technology. It is possible that third parties may copy or otherwise obtain and use Intermediate’s proprietary technology without authorization or otherwise infringe on its rights. Intermediate may not be able to successfully pursue claims for infringement that interfere with its ability to use its technology, website or other relevant intellectual property or have adverse impact on its brand. Intermediate cannot assure TINGO GROUP’s investors that any of its intellectual property rights would not be challenged, invalidated or circumvented, or such intellectual property will be sufficient to provide Intermediate with competitive advantages. In addition, other parties may misappropriate its intellectual property rights, which would cause it to suffer economic or reputational damages. Because of the rapid pace of technological change, TINGO GROUP cannot assure you that all of Intermediate’s proprietary technologies and similar intellectual property will be patented in a timely or cost-effective manner, or at all. Furthermore, parts of Intermediate’s business rely on technologies developed or licensed by other parties, or co-developed with other parties, and Intermediate may not be able to obtain or continue to obtain licenses and technologies from these other parties on reasonable terms, or at all.

 

Any claims or litigation could cause Intermediate and us to incur significant expenses and, if successfully asserted against Intermediate or us, could require that we pay substantial damages or ongoing royalty payments, restrict Intermediate or us from conducting our business or require that we or Intermediate comply with other unfavorable terms. We and Intermediate may also be obligated to indemnify parties or pay substantial settlement costs, including royalty payments, in connection with any such claim or litigation and to obtain licenses, modify applications or refund fees, which could be costly. Even if we and Intermediate were to prevail in such a dispute, any litigation regarding Intermediate’s intellectual property could be costly and time-consuming and divert the attention of our management from Intermediate and our business operations.

 

TGH and its subsidiaries, including Tingo Mobile, relies on various patent, service mark, trademark, and trade secret laws and contractual restrictions to establish and protect its proprietary rights. Despite these actions, they only offer limited protection and may not prevent the misappropriation of TGH’s rights. Also, TGH may not be able to discover or determine the extent of or protect against any unauthorized use of its proprietary rights, which may increase the cost of protecting these rights or reduce TGH’s revenues. Any of these factors could have a material adverse effect on TGH’s business, financial condition, and operating results. TGH also purchases products from suppliers, including device suppliers, and outsource services to service providers, including billing and customer care functions, that incorporate or utilize intellectual property. TGH and some of its suppliers and service providers have received, and may receive in the future, assertions and claims from third parties that the products or software utilized by TGH or its suppliers and service providers infringe on the patents or other intellectual property rights of these third parties. These claims could require TGH or an infringing supplier or service provider to cease certain activities or to cease selling the relevant products and services. These claims can be time-consuming and costly to defend and divert management resources. If these claims are successful, TGH could be forced to pay significant damages or stop selling certain products or services or stop using certain trademarks, which could adversely affect its results of operations.

 

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Intermediate faces risks related to natural disasters, health epidemics and other outbreaks, which could significantly disrupt its operations. Additionally, equipment failure, natural disasters or terrorist acts may affect Tingo Mobile’s infrastructure and result in significant disruption to its business.

 

Intermediate’s stock trading platform business could be materially and adversely affected by natural disasters, health epidemics or other public safety concerns. Natural disasters may give rise to server interruptions, breakdowns, system failures, technology platform failures or Internet failures, which could cause the loss or corruption of data or malfunctions of software or hardware as well as adversely affect its ability to operate its platform and provide services and solutions. Intermediate’s stock trading platform business could also be adversely affected if its employees are affected by health epidemics. In addition, Intermediates’ results of operations could be adversely affected to the extent that any health epidemic harms the economy in general. If any natural disasters, health epidemics or other public safety concerns were to affect the locations where Intermediate operates, its operation may experience material disruptions, which may materially and adversely affect its stock trading platform business, financial condition and results of operations.

 

In addition, equipment failures, natural disasters, including severe weather, terrorist acts or other disruptions that affect TGH’s wireline and wireless networks, including transport facilities, communications switches, routers, microwave links, cell sites, or other equipment or third-party owned local and long-distance networks on which TGH relies, could disrupt its operations, require significant resources to remedy, result in a loss of subscribers or impair its ability to attract new subscribers, which in turn could have a material adverse effect on TGH’s business, results of operations and financial condition.

 

We could incur significant liability or our reputation could be damaged if our information systems are breached or we otherwise fail to protect customer or Company data or information systems.

 

In operating our business and providing services and solutions to customers, we collect, use, store, transmit and otherwise process certain electronic information, including personal, confidential, proprietary and sensitive data such as information related to financial records, health care and personal data of our customers, colleagues and vendors. We rely on the efficient, uninterrupted and secure operation of complex information technology systems and networks to operate our business and securely process, transmit and store electronic information. In the normal course of business, we also share electronic information with our vendors and other third parties. This electronic information comprises sensitive and confidential data, including information related to financial records, health care and customers’ personal data. Our information technology systems and safety control systems, and those of our numerous third-party providers, as well as the control systems of critical infrastructure they rely on are potentially vulnerable to unauthorized access, damage or interruption from a variety of external threats, including cyberattacks, computer viruses and other malware, ransomware and other types of data and systems-related modes of attack. Our systems are also subject to compromise from internal threats such as improper action by employees, vendors and other third parties with otherwise legitimate access to our systems. We could experience significant financial and reputational harm if our information systems are breached, sensitive customer or our data are compromised, surreptitiously modified, rendered inaccessible for any period of time or maliciously made public, or if we fail to make adequate or timely disclosures to the public or law enforcement agencies following any such event, whether due to delayed discovery or a failure to follow existing protocols.

 

Any disruption of our business operations due to a cyber attack, even for a limited amount of time, may adversely affect its business and financial condition. Our information technology and other systems — including those of its third-party service providers — that maintain and transmit our proprietary information, the confidential information of our business partners and its employees, and its subscribers’ information, including credit card information, location data, or other personal information, may be compromised by a malicious third-party penetration of our network security, including by state-sponsored parties, or company employees or external actors, and impacted by advertent or inadvertent actions or inactions by our employees and agents. As a result, our proprietary or confidential information or the proprietary or confidential information of our business partners, employees and subscribers may be lost, disclosed, accessed, used, corrupted, destroyed, or taken without consent. Cyber attacks, such as the use of malware, computer viruses, dedicated denial of service attacks, or other means for disruption or unauthorized access, and data breaches have increased in frequency, scope, and potential harm in recent years. Cyber attacks may occur in conjunction with physical attacks on our network infrastructure. We also purchase equipment and software from third parties that could contain software defects, Trojan horses, malware, or other means by which third parties could access its network or the information stored or transmitted on such network or equipment.

 

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While, to date, we are not aware of any cyber attacks or other cyber incidents that, individually or in the aggregate, have been material to TINGO GROUP’s consolidated operations or financial condition, the preventive actions the Company takes to reduce the risk of cyber incidents and protect its information technology and networks may be insufficient to repel a cyber attack in the future. In addition, the costs of such preventative actions, including insurance coverage that the Company maintains relating to cybersecurity incidents, may be significant, which may adversely affect its results of operations. Any disruption of the information technology systems that are necessary to conducting normal business operations due to a cyber attack, even for a limited amount of time, may prevent TGH from conducting normal business operations and adversely affect its financial condition. Any major compromise of the Company’s data or network security or that of its third-party service suppliers, failure to prevent or mitigate a loss of our services or network, its proprietary information, or its subscribers’ information, and delays in detecting any such compromise or loss, even for a limited amount of time, could disrupt the Company’s operations, impact its reputation and subscribers’ willingness to purchase its service, and subject the Company to significant additional expenses. Such expenses could include incentives offered to existing subscribers and other business relationships in order to retain their business, increased expenditures on cyber security measures and the use of alternate resources, lost revenues from business interruption, significant penalties under privacy laws, and litigation, which could be material. Furthermore, the potential costs associated with any such cyber attacks could be greater than the insurance coverage the Company maintains.

 

If TINGO GROUP is unable to obtain stockholder approval for the conversion of the Series A Preferred Stock into Common Stock by June 30, 2023 (the “Trigger Date”), then all issued and outstanding shares of Series A Preferred Stock will be redeemed by TINGO GROUP in consideration of the right to receive cash and TINGO GROUP shall cause Tingo LLC, a wholly-owned subsidiary of TINGO GROUP (“Delaware Sub”), to issue to Tingo, the amount of membership interests of Delaware Sub as needed to cause Tingo, to own 27% of the total issued and outstanding membership interests of Delaware Sub.

 

If stockholders have not approved the conversion of the Series A Preferred Stock into Common Stock by June 30, 2023 (the “Trigger Date”), then, (i) all issued and outstanding shares of Series A Preferred Stock will be immediately and automatically redeemed by the Company, and all accrued and unpaid dividends thereon to the date of redemption extinguished, in consideration of the right to receive an aggregate amount, in respect of all shares of Series A Preferred Stock, of $1.00 in cash, and (ii) the Company shall, within ten (10) Business Days following the Trigger Event, cause TGH to issue to TMNA, the amount of membership interests of TGH as needed to cause TMNA, to own 27% of the total issued and outstanding membership interests of TGH, subject to the terms of the Series A Preferred Stock Certificate of Designations. We cannot assure you we will receive stockholder approval for the conversion of the Series A Preferred Stock into Common Stock by the Trigger Date.

 

In the event that (i) TINGO GROUP does not receive by the Trigger Date the stockholder approval with respect to the conversion of Series B Preferred Stock and the amendment of TINGO GROUP’s certificate of incorporation to increase the number of authorized shares of Common Stock, (ii) the Nasdaq change of control application is rejected, or (iii) Nasdaq requires Material Restrictions (as defined in the Series B Certificate of Designation) in order to approve the Nasdaq change of control application (each a “Trigger Event”), each holder of Series B Preferred Stock, at its sole option, shall have the right, but not the obligation, to reduce the Stated Value per share of Series B Preferred Stock in exchange for membership interests of Delaware Sub, up to a maximum of 33% of the outstanding membership interests of Delaware Sub.

 

In the event that (i) we do not receive by June 30, 2023 the stockholder approval with respect to the conversion of Series B Preferred Stock and the amendment of TINGO GROUP’s certificate of incorporation to increase the number of authorized shares of Common Stock, (ii) the Nasdaq change of control application is rejected, or (iii) Nasdaq requires Material Restrictions (as defined in the Series B Certificate of Designation) in order to approve the Nasdaq change of control application (each a “Trigger Event”), each holder of Series B Preferred Stock, at its sole option, shall have the right, but not the obligation, to reduce the Stated Value per share of Series B Preferred Stock in exchange for membership interests of TGH, up to a maximum of 33% of the outstanding membership interests of TGH. If the holder of Series B Preferred Stock exercises its option to acquire the maximum number of membership interests of TGH, the Stated Value per share shall be reduced to $14,292.71. For each 1% the holder of Series B Preferred Stock chooses to receive in membership interests of TGH up to the maximum of 33%, the Stated Value per share of Series B Preferred Stock shall decrease by $216.56. Any amounts that equal less than 1% shall be proportionality reduced. On the date that is ninety (90) days following the date on which the earliest Trigger Event occurs, TINGO GROUP shall redeem all outstanding shares of Series B Preferred Stock for the Stated Value, as, and if, so reduced. We cannot assure you we will receive stockholder approval for the conversion of the Series A Preferred Stock into Common Stock by the Trigger Date or that Nasdaq will approve the change of control application in the present form.

 

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Failure or poor performance of third-party software, infrastructure or systems on which we rely could adversely affect our business.

 

We will rely on third parties to provide and maintain certain infrastructure that will be critical to its business. For example, a strategic partner provides services to us in connection with various aspects of our operations and systems. If such services become limited, restricted, curtailed or less effective or more expensive in any way or become unavailable to us for any reason, its business may be materially and adversely affected. The infrastructure of our third-party service providers may malfunction or fail due to events out of its control, which could disrupt its operations and have a material adverse effect on its business, financial condition, results of operations and cash flows. Any failure to maintain and renew our relationships with these third parties on commercially favorable terms, or to enter into similar relationships in the future, could have a material adverse effect on its business, financial condition, results of operations and cash flows.

 

We also rely on certain third-party software, computer systems and service providers. Any interruption in these third-party services or software, deterioration in their performance, or other improper operation could interfere with its trading activities, cause losses due to erroneous or delayed responses, or otherwise be disruptive to its business. If our arrangements with any third party are terminated, it may not be able to find an alternative source of software or systems support on a timely basis or on commercially reasonable terms. This could also have a material adverse effect on our business, financial condition, results of operations and cash flows.

 

Employee misconduct could expose us to significant legal liability and reputational harm.

 

Our platforms will operate in industries in which integrity and the confidence of its users and clients are of critical importance. During our daily operations, it will be subject to the risks of errors and misconduct by its employees, which include:

 

  engaging in misrepresentation or fraudulent activities when marketing or performing services to users and clients;
     
  improperly using or disclosing confidential information of its users and clients or other parties;
     
  concealing unauthorized or unsuccessful activities; or
     
  otherwise not complying with applicable laws and regulations or its internal policies or procedures.

 

If any of our employees engages in illegal or suspicious activities or other misconduct, it could suffer serious harm to its reputation, financial condition, client relationships and ability to attract new clients and even be subject to regulatory sanctions and significant legal liability. We may also be subject to negative publicity from the sanction that would adversely affect its brand, public image and reputation, as well as potential challenges, suspicions, investigations or alleged claims against us. It is not always possible to deter misconduct by its employees or senior management during the operations of its business or uncover any misconduct occurred in their past employment, and the precautions we take to detect and prevent any misconduct may not always be effective. Misconduct by our employees, or even unsubstantiated allegations of misconduct, could result in a material adverse effect on its reputation and its business.

 

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TGH may be adversely affected by changes in the regulations applicable to the telecommunications sector. Internet-related issues may reduce or slow the growth in the use of our services in the future. In particular, our future growth depends on the further acceptance of the Internet in China and particularly the mobile Internet as an effective platform for assessing trading and other financial services and content.

 

As the internet continues to revolutionize commercial relationships on a global scale and online penetration increases, new laws and regulations relating to the use of the internet in general and the e-commerce sector in particular may be adopted. These laws and regulations may govern the collection, use and protection of data, consumer protection, online payments, pricing, anti-bribery, tax, country specific prices and website contents and other aspects relevant to our business. The adoption or modification of laws or regulations relating to our operations could adversely affect our business by increasing compliance costs, including as a result of confidentiality or security breaches in case of non-compliance, and administrative burdens. In particular, privacy related regulation could interfere with TGH’s strategy to collect and use personal information as part of its data-driven approach along the value chain. We currently believe that TGH complies with these new guidelines, and its data protection and privacy policies address methods for continued compliance with such guidelines. TGH must comply with applicable regulations in all of the countries in which it operates, and any non-compliance could lead to fines and other sanctions.

 

Critical issues concerning the commercial use of the Internet, such as ease of access, security, privacy, reliability, cost, and quality of service, remain unresolved and may adversely impact the growth of Internet use. If Internet usage continues to increase rapidly, the Internet infrastructure may not be able to support the demands placed on it by this growth, and its performance and reliability may decline. Continuous rapid growth in Internet traffic may cause decreased performance, outages and delays. Our ability to increase the speed with which we provide services to users and clients and to increase the scope and quality of such services is limited by and dependent upon the speed and reliability of Intermediate’s users’ and clients’ access to the Internet, which is beyond our control. If periods of decreased performance, outages or delays on the Internet occur frequently or other critical issues concerning the Internet are not resolved, overall Internet usage or usage of our web-based services could increase more slowly or decline, which would cause Intermediate’s stock trading platform business, results of operations and financial condition to be materially and adversely affected.

 

Fluctuations in exchange rates of the RMB could materially affect financial results. Tingo Mobile is also experiencing difficulties in obtaining foreign exchange for use in its operations outside of Nigeria and is dependent for those operations on financing providers not situated in Nigeria.

 

The exchange rates between the RMB and the U.S. dollars and other foreign currencies are affected by, among other things, changes in China’s political and economic conditions. The People’s Bank of China regularly intervenes in the foreign exchange market to limit fluctuations in RMB exchange rates and achieve policy goals.

 

Tingo Mobile, Tingo Foods, and other businesses based in Nigeria generally are having difficulty sourcing foreign exchange through the Central Bank of Nigeria, which has restricted access to foreign exchange in an effort to support the local Naira currency. This has adversely affected Tingo Mobile’s customers and the business community generally in Nigeria. As a result, it has been necessary for TGH, the parent company of Tingo Mobile and Tingo Foods, to arrange financing outside of Nigeria for compliance, operations, and other costs associated with its business in the United States and other locations outside of Nigeria. Nevertheless, if TGH is unsuccessful in raising capital or generated cash flow outside of Nigeria, its operations may be adversely affected.

 

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The costs to comply with, or our failure to comply with laws related to privacy, data security and data protection could adversely affect our financial condition, operating results and our reputation. TGH and its subsidiaries are subject to governmental regulation and other legal obligations related to privacy, data protection and information security. If TGH is unable to comply with these, it may be subject to governmental enforcement actions, litigation, fines and penalties or adverse publicity.

 

Improper collection, use disclosure, cross border transfer, and retention of confidential, personal, or proprietary data could result in regulatory scrutiny, legal and financial liability, or harm to our reputation. In operating our business and providing services and solutions to clients, we store and transfer sensitive employee and client data, including personal data, in and across multiple jurisdictions. We collect data from client and individuals located all over the world and leverage systems and teams to process it. As a result, we are subject to a variety of laws and regulations regarding privacy, data protection, data security and cyber-security. These laws and regulations are continuously evolving and developing. Some of these laws and regulations are increasing the level of data handling restrictions, including rules on data localization, all of which could affect our operations and result in regulatory liability and high fines. In particular, high-profile security breaches at major companies continue to be disclosed regularly, which is leading to even greater regulatory scrutiny and fines at the highest levels they have ever been.

 

The scope and interpretation of the laws that are or may be applicable to us are often uncertain and may be conflicting. Given the breadth and depth of changes in data protection obligations, including classifying data and committing to a range of administrative, technical and physical controls to protect data, our compliance with laws will continue to require time, resources and review of the technology and systems we use.

 

Through its operating subsidiaries, TGH collects personally identifiable information and other data from its consumers and prospective consumers. TGH uses this information to provide services and relevant products to its consumers, to support, expand and improve its business, and to tailor our marketing and advertising efforts. TGH may also share consumers’ personal data with certain third parties as authorized by the consumer or as described in TGH’s privacy policy. As a result, TGH is subject to governmental regulation and other legal obligations related to the protection of personal data, privacy and information security in certain countries where it does business, and there has been, and we expect there will be a continuing increase globally in laws that restrict or control the use of personal data.

 

Additionally, the regulatory landscape surrounding data protection, data privacy and information security is rapidly changing across Africa. Among the African countries, only Ivory Coast, Ghana, Senegal, Morocco, Nigeria, South Africa and Tunisia have established comprehensive data protection and data privacy laws. These data protection laws and regulations were only recently enacted. For example, the National Information Technology Development Agency in Nigeria passed new data protection guidelines in 2017, and we have implemented new policies to comply with these regulations.

 

Compliance with the various data protection laws in Africa is challenging due to the complex and sometimes contradictory nature of the different regulatory regimes. Because data protection regulations are not uniform among the various African nations in which TGH operates, its ability to transmit consumer information across borders is limited by its ability to comply with conditions and restrictions that vary from country to country. In countries with particularly strict data protection laws, TGHor its relevant subsidiary might not be able to transmit data out of the country at all and may be required to host individual servers in each such country where it collects data. For example, Ivory Coast, Ghana, Senegal, Morocco, and Tunisia all restrict data transfer across borders. Ghana also requires that a company notify consumers in the event of a personal data breach. Egypt currently has no data protection and privacy laws. However, the Egyptian government announced in 2017 that it is committed to doubling the size of its e-commerce sector by 2020 and intends to update all legislation and regulation relevant to e-commerce. Moreover, many data protection regimes apply based on where a consumer is located, and as TGH expands and new laws are enacted or existing laws change, it may be subject to new laws, regulations or standards or new interpretations of existing laws, regulations or standards, including those in the areas of data security, data privacy and regulation of email providers and those that require localization of certain data, which could require TGH to incur additional costs and restrict its business operations.

 

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Any failure or perceived failure by TGH or its subsidiaries to comply with rapidly evolving privacy or security laws, policies, legal obligations or industry standards or any security incident that results in the unauthorized release or transfer of personally identifiable information or other consumer data may result in governmental enforcement actions, litigation (including consumer class actions), criminal prosecution, fines and penalties or adverse publicity and could cause our consumers to lose trust in TGH, which could have a material adverse effect on its business, financial condition, results of operations and prospects.

 

Risk Factors Relating to Intermediate’s Business

 

Intermediate’s trading platforms have no operating history, which makes it difficult to evaluate Intermediate’s future prospects.

 

Intermediate is focused on developing its various trading platforms and technology infrastructure, which have not launched. As Intermediate’s platforms will be built on technology and a significant portion of Intermediate’s staff come from Internet and technology companies, Intermediate has limited experience in most aspects of its trading platform business operation. Any aspect of Intermediate’s business model that does not achieve expected results may have a material and adverse impact on Intermediate’s financial condition and results of operations. It is therefore difficult to effectively assess TINGO GROUP’s future prospects.

 

Intermediate’s targeted markets may not develop as expected. Intermediate’s users and clients of Intermediate’s services may not be familiar with the development of these markets and may have difficulty distinguishing Intermediate’s services from those of Intermediate’s competitors. Convincing users and clients of the value of using Intermediate’s services will be critical to increasing the number of transactions on Intermediate’s platforms and to the success of Intermediate businesses.

 

You should consider Intermediate’s businesses in light of the risks and challenges it encounters or may encounter given the rapidly evolving markets in which it operates and its lack of operating history. These risks and challenges include our ability to, among other things:

 

  manage the launch of its trading platforms and its future growth;
     
  navigate a complex and evolving regulatory environment;
     
  offer personalized and competitive services;
     
  increase the utilization of its services by users and clients;
     
  maintain and enhance its relationships with its business partners;
     
  enhance its technology infrastructure to support the growth of its business and maintain the security of its systems and the confidentiality of the information provided and utilized across its systems;

 

  improve its operational efficiency;
     
  attract, retain and motivate talented employees to support its business growth;
     
  navigate economic condition and fluctuation;
     
  defend itself against legal and regulatory actions, such as actions involving intellectual property or privacy claims; and
     
  obtain any and all licenses necessary for the operation of its business.

 

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Our business and reputation may be harmed by changes in business, economic or political conditions that impact global financial markets, or by a systemic market event.

 

As the Company offers financial services, our business, results of operations and reputation are directly affected by elements beyond our control, such as economic and political conditions, changes in the volatility in financial markets (including volatility as a result of the COVID-19 pandemic), significant increases in the volatility or trading volume of particular securities, broad trends in business and finance, changes in volume of securities trading generally, changes in the markets in which such transactions occur and changes in how such transactions are processed. These elements can arise suddenly and the full impact of such conditions can remain uncertain. A prolonged weakness in equity markets, such as a slowdown causing reduction in trading volume in securities, derivatives or cryptocurrency markets, may result in reduced revenues and would have an adverse effect on our business, financial condition and results of operations. Significant downturns in the securities markets or in general economic and political conditions may also cause individuals to be reluctant to make their own investment decisions and thus decrease the demand for our products and services and could also result in our customers reducing their engagement with our platform. Conversely, significant upturns in the securities markets or in general economic and political conditions may cause individuals to be less proactive in seeking ways to improve the returns on their trading or investment decisions and, thus, decrease the demand for our products and services. Any of these changes could cause our future performance to be uncertain or unpredictable, and could have an adverse effect on our business, financial condition and results of operations.

 

In addition, some market participants could be overleveraged. In case of sudden, large price movements, such market participants may not be able to meet their obligations to their respective brokers who, in turn, may not be able to meet their obligations to their counterparties. As a result, the financial system or a portion thereof could suffer, and the impact of such an event could have an adverse effect on our business, financial condition and results of operations.

 

In addition, a prolonged weakness in the U.S. equity markets or a general economic downturn could cause our customers to incur losses, which in turn could cause our brand and reputation to suffer. If our reputation is harmed, the willingness of our existing customers, and potential new customers, to do business with us could be negatively impacted, which would adversely affect our business, financial condition and results of operations.

 

We operate in highly competitive markets, and many of our competitors have greater resources than we do and may have products and services that may be more appealing than ours to our current or potential customers.

 

The markets in which we compete are evolving and highly competitive, with multiple participants competing for the same customers. Our current and potential future competition principally comes from incumbent discount brokerages, established financial technology companies, venture-backed financial technology firms, banks, cryptocurrency exchanges, asset management firms and technology platforms. The majority of our competitors have longer operating histories and greater capital resources than we have and offer a wider range of products and services. The impact of competitors with superior name recognition, greater market acceptance, larger customer bases or stronger capital positions could adversely affect our results of operations and customer acquisition and retention. Our competitors may also be able to respond more quickly to new or changing opportunities and demands and withstand changing market conditions better than we can, especially larger competitors that may benefit from more diversified product and customer bases. For example, some of our competitors have quickly adopted, or are seeking to adopt, some of our key offerings and services, including commission-free trading, fractional share trading and no account minimums, since their introduction on our platform to compete with us. In addition, competitors may conduct extensive promotional activities, offer better terms or offer differentiating products and services that could attract our current and prospective customers and potentially result in intensified competition within our markets. We continue to experience aggressive price competition in our markets and we may not be able to match the marketing efforts or prices of our competitors. We may also be subject to increased competition as our competitors enter into business combinations or partnerships, or established companies in other market segments expand to become competitive with our business.

 

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In addition, we compete in a technology-intensive market characterized by rapid innovation. Some of our competitors in this market, including new and emerging competitors, are not subject to the same regulatory requirements or scrutiny to which we are subject, which could place us at a competitive disadvantage, in particular in the development of new technology platforms or the ability to rapidly innovate. We may be unable to effectively use new technologies, adapt our products and services to emerging market standards or develop or introduce and market enhanced or new products and services. If we are not able to update or adapt our products and services to take advantage of the latest technologies and standards, or are otherwise unable to tailor the delivery of our services to the latest personal and mobile computing devices preferred by our customers or to provide products or services that are of a quality preferred by our customers, it could have an adverse effect on our business, financial position and results of operations.

 

Our ability to compete successfully in the financial services market depends on a number of factors, including, among other things:

 

  providing easy-to-use, innovative and attractive products and services, as well as effective customer support;

 

  maintaining and expanding our market position;

 

  attracting and retaining customers;

 

  our reputation and the market perception of our brand and overall value;

 

  maintaining our relationships with our counterparties;

 

  maintaining competitive pricing;

 

  competing in a competitive landscape, including in the provision of products and services that have until recently been available only from our bank competitors;

 

  the effectiveness, reliability and stability of our technology (including the success of our outage prevention efforts and our cybersecurity measures and defenses), products and services;

 

  innovating effectively in launching new or enhanced products and services;

 

  adjusting to a dynamic regulatory environment;

 

  the differences in regulatory oversight regimes to which we and our competitors are subject; and

 

  general economic and market trends, including customer demand for financial products and services.

 

Our competitive position within our markets could be adversely affected if we are unable to adequately address these factors, which could have an adverse effect on our business, financial condition and results of operations.

 

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If we fail to retain existing customers or attract new customers, or if our customers decrease their use of our products and services, our growth could be slower than we expect and our business may be harmed.

 

Our continued business and revenue growth is dependent on our ability to attract new customers, retain existing customers, increase the amount that our customers use our products and services and sell our premium services, and we cannot be sure that we will be successful in these efforts. There are a number of factors that could lead to a decline in our number of customers or their usage of our products and services, or that could prevent us from increasing our number of customers, including:

 

  our failure to introduce new products or services, or our introduction of new products or services, or changes in our existing products or services, that are not favorably received;

 

  pricing for our products and services;

 

  harm to our brand and reputation, or decreases in the perceived quality, reliability or usefulness of our products and services;

 

  our customers engaging with competitive products and services;

 

  our customers having difficulty installing, updating or otherwise accessing the our app on mobile devices as a result of actions by us or third parties that we rely on to distribute our app;

 

  our customers experiencing security breaches, account intrusions or other unauthorized access as a result of actions by us or our business partners, including third parties that we rely on to distribute the application;

 

  our failure to provide adequate customer service to our customers;

 

  a cybersecurity attack, data breach or other security incident resulting in loss in customer confidence;

 

  our inability to manage network or service outages, interruptions and internet disruptions, including during times of high trading activity, or other performance or technical problems that prevent our customers from accessing and managing their accounts or assets in a rapid and reliable manner;

 

  changes in our customers’ investment strategies or level of interest in investing;

 

  the enactment of proposed legislation that would impose taxes on certain financial transactions;

 

  changes mandated by legislation, regulatory authorities or litigation that adversely affect our products and services, or our ability to provide them to our customers;

 

  any restrictions on trading that we impose on our platform as a result of the capital requirements and cash deposit and collateral requirements to; and

 

  deteriorating general economic conditions, including as a result of the COVID-19 pandemic or a general downturn in the equity markets.

 

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As we expand our business operations and enter new markets, new challenges in attracting and retaining customers will arise that we may not successfully address. Our success, and our ability to increase revenues and operate profitably, depends in part on our ability to cost-effectively acquire new customers, to retain existing customers and to keep existing customers engaged so that they continue to use our products and services. Our customers may choose to cease using our platform, products and services at any time, and may choose to transfer their accounts to another broker-dealer.

 

Our introduction of new products and services, or changes to existing products and services, could fail to attract or retain customers or generate growth and revenue.

 

Our ability to attract, engage and retain our customers and to increase our revenue depends heavily on our ability to continue to maintain and evolve our existing products and services and to create successful new products and services. We may introduce significant changes to our existing products and services or acquire or introduce new and unproven products and services, including using technologies with which we have little or no prior development or operating experience. We continue to incur substantial costs, and we may not be successful in continuing to generate profits, in connection with these efforts. In addition, the introduction of new products and services, or changes to existing products and services, may result in new or enhanced governmental or regulatory scrutiny or other complications that could adversely affect our business and results of operations. If our new or enhanced products and services fail to attract customers, or if our business plans are unsuccessful, we may fail to attract or retain customers or to generate sufficient revenue, operating margin or other value to justify our investments, and our business may be adversely affected.

 

If we do not keep pace with industry and technological changes and continue to provide new and innovative products and services, our business may become less competitive and our business may be adversely impacted.

 

Rapid and significant technological changes continue to confront the financial services industry, including developments in the methods in which securities are traded. If we fail to innovate and deliver products and services with market fit and differentiation, or fail to do so quickly enough as compared to our competitors, we may not be able to keep pace with industry and technological changes in our industry and we may face difficulty in competing within our market, which could harm our business.

 

We expect new technologies, products, services and industry norms to continue to emerge and evolve, and we cannot predict the effects of technological changes or industry practices on our business. Further, new technologies introduced in our markets may be superior to, or render obsolete, the technologies we currently use in our products and services. Incorporating new technologies into our products and services may require substantial expenditures and take considerable time, and we may not be successful in realizing a return on these development efforts in a timely manner or at all. Our ability to successfully adopt new products and services and to develop and incorporate new technologies may be inhibited by industry-wide standards, changes to laws and regulations, changing customer expectations, demands and preferences or third-party intellectual property rights. If we are unable to enhance our products and services or to innovate or to develop new products and services that achieve market acceptance or that keep pace with rapid technological developments and evolving industry standards or practices, our business could be adversely affected.

 

We will need to continuously modify, enhance and improve our products and services to keep pace with changes in internet-related hardware, mobile operating systems such as iOS and other software, communication, browser and database technologies. We may not be successful in either developing these modifications, enhancements and improvements or in bringing them to market quickly or cost-effectively in response to market demands. Furthermore, uncertainties about the timing and nature of new network platforms or technologies, or modifications to existing platforms or technologies, could increase our research and development expenses. Any failure of our products and services to keep pace with technological changes or to innovate or to operate effectively with future network platforms and technologies, or to do so in a timely and cost-effective manner, could reduce the demand for our products and services, result in customer dissatisfaction and negative publicity, reduce our competitive advantage and harm our business and reputation.

 

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Our products and internal systems rely on software that is highly technical, and if these systems contain errors, bugs or vulnerabilities, or if we are unsuccessful in addressing or mitigating technical limitations or vulnerabilities in our systems, our business could be adversely affected.

 

Our trading platform relies on software, including software developed or maintained internally and by third parties, that is highly technical and complex. In addition, our platform and our internal systems depend on the ability of such software, which includes machine learning models, to collect, store, retrieve, transmit, manage and otherwise process immense amounts of data. The software on which we rely may contain errors, bugs or vulnerabilities, and our systems are subject to certain technical limitations that may compromise our ability to meet our objectives. Some errors, bugs or vulnerabilities inherently may be difficult to detect and may only be discovered after code has been released for external or internal use. Errors, bugs, vulnerabilities, design defects or technical limitations within the software on which we rely may lead to negative customer experiences (including the communication of inaccurate information to customers), compromised ability of our products to perform in a manner consistent with customer expectations, delayed product introductions, compromised ability to protect the data (including personal data) of our customers and our intellectual property or an inability to provide some or all of our services. Such errors, bugs, vulnerabilities or defects could also be exploited by malicious actors and result in exposure of data of customers on our platform, or otherwise result in a security breach or other security incident. We may need to expend significant financial and development resources to analyze, correct, eliminate, or work around errors or defects or to address and eliminate vulnerabilities. Any failure to timely and effectively resolve any such errors, bugs, vulnerabilities or defects in the software on which we rely, and any associated degradations or interruptions of service, could result in damage to our reputation, loss of customers, loss of revenue, regulatory or governmental inquiries, civil litigation, or liability for damages, any of which could have an adverse effect on our business, financial condition and results of operations.

 

Our success depends in part upon effective operation with mobile operating systems, networks, technologies, products, hardware and standards that we do not control.

 

A substantial majority of our customers’ activity on our platform occurs on mobile devices. There is no guarantee that popular mobile devices will continue to feature our app, or that mobile device customers will continue to use our products and services rather than those of our competitors. We are dependent on the interoperability of our app with popular mobile operating systems, networks, technologies, products, hardware and standards that we do not control, such as mobile device operating systems. Any changes, bugs or technical issues in such systems or changes in our relationships with mobile operating system partners, device manufacturers or mobile carriers, or in their terms of service or policies that degrade the functionality of our app, reduce or eliminate our ability to distribute applications, give preferential treatment to competitive products, limit our ability to target or measure the effectiveness of applications, or impose fees or other charges related to our delivery of our application could adversely affect customer usage of our app. Further, we are subject to the standard policies and terms of service of these operating systems, as well as policies and terms of service of the various application stores that make our application and experiences available to our developers, creators and customers. These policies and terms of service govern the availability, promotion, distribution, content and operation generally of applications and experiences on such operating systems and stores. Each provider of these operating systems and stores has broad discretion to change and interpret its terms of service and policies with respect to our platform and those changes may be unfavorable to us and our developers’, creators’ and customers’ use of our platform. If we were to violate, or an operating system provider or application store believes that we have violated, its terms of service or policies, that operating system provider or application store could limit or discontinue our access to its operating system or store. In some cases, these requirements may not be clear or our interpretation of the requirements may not align with the interpretation of the operating system provider or application store, which could lead to inconsistent enforcement of these terms of service or policies against us, and could also result in the operating system provider or application store limiting or discontinuing access to its operating system or store. Any limitation or discontinuation of our access to any third-party platform or application store could adversely affect our business, financial condition or results of operations.

 

Additionally, in order to deliver a high-quality mobile experience for our customers, it is important that our products and services work well with a range of mobile technologies, products, systems, networks, hardware and standards that we do not control, and that we have good relationships with mobile operating system partners, device manufacturers and mobile carriers. We may not be successful in maintaining or developing relationships with key participants in the mobile ecosystem or in developing products that operate effectively with these technologies, products, systems, networks or standards. In the event that it is more difficult for our customers to access and use our app, or if our customers choose not to access or use our app on their mobile devices or use mobile products that do not offer access to our app, our customer growth and engagement could be harmed. In the event that our customers are adversely affected by these actions or if our relationships with such third parties deteriorate, our customer growth and engagement could be adversely affected and our business could be harmed.

 

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If there is any negative publicity with respect to TINGO GROUP, its industry peers or its industries in general, TINGO GROUP’s business and results of operations may be materially and adversely affected.

 

TINGO GROUP’s reputation and brand recognition plays an important role in earning and maintaining the trust and confidence of its current and potential users and clients. TINGO GROUP’s reputation and brand are vulnerable to many threats that can be difficult or impossible to control, and costly or impossible to remediate. Regulatory inquiries or investigations, lawsuits initiated by clients or other third parties, employee misconduct, perceptions of conflicts of interest and rumors, among other things, could substantially damage TINGO GROUP’s reputation, even if they are baseless or satisfactorily addressed. In addition, any perception that the quality of its services may not be the same as or better than that of other companies can also damage its reputation. Moreover, any negative media publicity about the industries in general or product or service quality problems of other firms in these industries, including TINGO GROUP’s competitors, may also negatively impact TINGO GROUP’s reputation and brand. If TINGO GROUP is unable to maintain a good reputation or further enhance its brand recognition, its ability to attract and retain users, clients, third-party partners and key employees could be harmed and, as a result, its business and revenues would be materially and adversely affected.

 

Intermediate’s platform and internal systems rely on software and technological infrastructure that is highly technical, and if they contain undetected errors, its business could be adversely affected.

 

Intermediate’s platforms and internal systems rely on software that is highly technical and complex. In addition, Intermediate’s platforms and internal systems depend on the ability of the software to store, retrieve, process and manage immense amounts of data. The software may now or in the future contain, undetected errors or bugs. Some errors may only be discovered after the code has been released for external or internal use. Errors or other design defects within the software on which Intermediate relies may result in a negative experience for users and clients, delay introductions of new features or enhancements, result in errors or compromise Intermediate’s ability to protect data or its intellectual property. Any errors, bugs or defects discovered in the software on which it relies could result in harm to Intermediate’s reputation, loss of users or financial service providers or liability for damages, any of which could adversely affect its business, results of operations and financial conditions.

 

From time-to-time TINGO GROUP may evaluate and potentially consummate investments and acquisitions or enter into alliances, which may require significant management attention, disrupt Intermediate’s stock trading platform business and adversely affect its financial results.

 

TINGO GROUP may evaluate and consider strategic investments, combinations, acquisitions or alliances to further increase the value of Intermediate’s platforms and better serve Intermediate’s users and clients. These transactions could be material to its financial condition and results of operations if consummated. TINGO GROUP may not have the financial resources necessary to consummate any acquisitions in the future or the ability to obtain the necessary funds on satisfactory terms. Any future acquisitions may result in significant transaction expenses and risks associated with entering new markets in addition to integration and consolidation risks. TINGO GROUP may not have sufficient management, financial and other resources to integrate any such future acquisitions or to successfully operate new businesses, and it may be unable to profitably operate its expanded company.

 

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Risks Related to Doing Business in China

 

Changes in China’s economic, political or social conditions or government policies could have a material adverse effect on our business and operations.

 

Intermediate division’s principal executive office and operations, through its operating subsidiaries, are located in China. We also plan to launch various platforms which are being built initially in China. Accordingly, TINGO GROUP’s business, financial condition, results of operations and prospects may be influenced to a significant degree by political, economic, social conditions and government policies in China generally. The Chinese economy differs from the economies of most developed countries in many respects, including the level of government involvement, level of development, growth rate, control of foreign exchange and allocation of resources. Although the PRC government has implemented measures emphasizing the utilization of market forces for economic reform, the reduction of state ownership of productive assets, and the establishment of improved corporate governance in business enterprises, a substantial portion of productive assets in China is still owned by the government. In addition, the PRC government continues to play a significant role in regulating industry development by imposing industrial policies. The PRC government also exercises significant control over China’s economic growth through allocating resources, controlling payment of foreign currency-denominated obligations, setting monetary policy, and providing preferential treatment to particular industries or companies.

 

While the Chinese economy has experienced significant growth over the past decades, such growth has been uneven, both geographically and among various sectors of the economy, and the rate of growth has been slowing since 2012. Any adverse changes in economic conditions in China, in the policies of the PRC government or in the laws and regulations in China, could have a material adverse effect on the overall economic growth of China. Such developments could adversely affect TINGO GROUP’s business and operating results, lead to reduction in demand for TINGO GROUP’s services and adversely affect TINGO GROUP’s competitive position. COVID-19 had a severe and negative impact on Chinese and global economy in the past few years. Whether this will lead to a prolonged downturn in the economy is still unknown. The PRC government has implemented various measures to encourage economic growth and guide the allocation of resources. Some of these measures may benefit the overall Chinese economy, but may have a negative effect on us. For example, our Intermediate division’s financial condition and results of operations may be adversely affected by government control over capital investments or changes in tax regulations. In addition, in the past the PRC government has implemented certain measures, including interest rate adjustment, to control the pace of economic growth. These measures may cause decreased economic activity in China, which may adversely affect our Intermediate division’s business and operating results.

 

The PRC legal system embodies uncertainties which could limit the legal protections available to us.

 

PRC laws and the PRC legal system in general may have a significant impact on our business operations in China. Although China’s legal system has developed over the last several decades, PRC laws, regulations and legal requirements remain underdeveloped relative to the United States of America. Moreover, PRC laws and regulations change frequently and their interpretation and enforcement involve uncertainties. For example, the interpretation or enforcement of PRC laws and regulations may be subject to government rules or policies, some of which are not published on a timely basis or at all. In addition, the relative inexperience of China’s judiciary system in some cases may create uncertainty as to the outcome of litigation. These uncertainties could limit our ability to enforce certain legal or contractual rights or otherwise adversely affect our business and operations.

 

Furthermore, due to the existence of unpublished rules and policies, and since newly issued PRC laws and regulations may have expected and unexpected retrospective effects, we may not be aware of a violation of certain PRC laws, regulations, policies or rules until after the event.

 

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The complexities, uncertainties and rapid changes in PRC regulation of the Internet-related businesses and companies require significant resources for compliance.

 

The PRC government extensively regulates the Internet industries, including foreign ownership of, and the licensing and permit requirements pertaining to, companies doing business in the Internet industry. These laws and regulations are relatively new and evolving, and their interpretation and enforcement involve significant uncertainty. As a result, in certain circumstances it may be difficult to determine what actions or omissions may be deemed to be in violation of applicable laws and regulations. Issues, risks and uncertainties relating to PRC regulation of these businesses include, but are not limited to, the following:

 

There are uncertainties relating to the regulation of the Internet-related businesses in China, including evolving licensing practices. This means that certain of our permits, licenses or operations may be subject to challenge, or we may fail to obtain permits or licenses that may be deemed necessary for operations.

 

New laws and regulations that regulate Internet activities, including operating online platforms for insurance intermediary may be promulgated. If these new laws and regulations are promulgated, additional licenses may be required for operations. If our operations do not comply with these new regulations after they become effective, or if we fail to obtain any licenses required under these new laws and regulations, TINGO GROUP or its subsidiaries could be subject to penalties.

 

The principal regulation governing the operation of Internet insurance business is the Measures for the Regulation of Internet Insurance Business, or Regulation of Internet Insurance Business, promulgated by the CBIRC on December 7, 2020 and effective on February 1, 2021. There is no assurance that Intermediate would be able to meet all the requirements set forth under the Regulation of Internet Insurance Business and effectively operate an online insurance brokerage business. Please refer to “Regulation of Internet Insurance Businesses”.

 

The interpretation and application of existing PRC laws, regulations and policies and any new laws, regulations or policies relating to the Internet-related industries have created substantial uncertainties regarding the legality of existing and future foreign investments in, and the businesses and activities of companies in these industries. We cannot assure you that Intermediate had obtained all the permits or licenses required for conducting its business in China or will be able to maintain existing licenses or obtain any new licenses required under any new laws or regulations. There are also risks associated with being found in violation of existing or future laws and regulations given the uncertainty and complexity of China’s regulation of these businesses.

 

In addition, new laws and regulations applicable to the Internet-related industries could be issued at the national or provincial level, or existing regulations could be interpreted more strictly. No assurance can be given that business on these industries in general or our services in particular will not be adversely impacted by further regulations. In particular, technical limitations on Internet use can also be developed or implemented. For example, restrictions can be implemented on personal Internet use in the workplace in general or access to Intermediate’s sites in particular. All such regulations, restrictions and limitations could lead to a reduction of user activities or a loss of users, and restrict the types of products and services we may be able to offer in China, which in turn could have a material adverse effect on our financial condition and results of operations in China.

 

The 2006 M&A Rules established complex procedures for some acquisitions of Chinese companies by foreign investors, which could make it difficult to pursue growth through acquisitions in China.

 

On August 8, 2006, six PRC regulatory authorities promulgated the Regulations on Mergers and Acquisitions of Domestics Enterprises by Foreign Investors (the “2006 M&A Rules”), which were later amended on June 22, 2009. The 2006 M&A Rules and some other regulations and rules concerning mergers and acquisitions established additional procedures and requirements that could make merger and acquisition activities by foreign investors more time consuming and complex, including requirements in some instances that the Ministry of Commerce, People’s Republic of China (“MOFCOM”) be notified in advance of any change-of-control transaction in which a foreign investor takes control of a PRC domestic enterprise. Moreover, the Anti-Monopoly Law of China requires that the anti-monopoly law enforcement authority shall be notified in advance of any concentration of undertaking if certain thresholds are triggered. In addition, the security review rules issued by the State Council that became effective in September 2011 specify that mergers and acquisitions by foreign investors that raise “national defense and security” concerns and mergers and acquisitions through which foreign investors may acquire de facto control over domestic enterprises that raise “national security” concerns are subject to strict review by the MOFCOM, and the rules prohibit any activities attempting to bypass a security review, including by structuring the transaction through a proxy or contractual control arrangement. In the future, we may grow our business by acquiring complementary businesses. Complying with the requirements of the above-mentioned regulations and other relevant rules to complete such transactions could be time consuming, and any required approval processes, including obtaining approval from the MOFCOM or its local counterparts may delay or inhibit our ability to complete such transactions, which could affect our ability to expand our business or maintain our market share.

 

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Governmental control of currency conversion may affect the value of business in China.

 

The PRC government imposes controls on the convertibility of the RMB into foreign currencies and, in certain cases, the remittance of foreign currency out of China. Certain revenues may be received in RMB. Shortages in the availability of foreign currency may restrict our or our partners’ ability in China to remit sufficient foreign currency to pay dividends or other payments, or otherwise satisfy their foreign currency-denominated obligations. Under existing PRC foreign exchange regulations, payments of current account items, including profit distributions, interest payments, expenditures from trade related transactions and services-related foreign exchange transactions, can be made in foreign currencies without prior approval from the State Administration of Foreign Exchange (“SAFE”) by complying with certain procedural requirements. However, approval from SAFE or its local branch is required where RMB is to be converted into foreign currency and remitted out of China to pay capital expenses such as the repayment of loans denominated in foreign currencies. The PRC government may also at its discretion restrict access to foreign currencies for current account transactions in the future.

 

 

Regulation and censorship of information disseminated over the Internet in China may adversely affect our business, and may cause liability for content that is displayed on any of its websites.

 

China has enacted laws and regulations governing Internet access and the distribution of products, services, news, information, audio-video programs and other content through the Internet. In the past, the PRC government has prohibited the distribution of information through the Internet that it deems to be in violation of PRC laws and regulations. If any of Intermediate’s Internet information on its online platforms is deemed by the PRC government to violate any content restrictions, we or our partners may not be able to continue to display such content and could become subject to penalties, including confiscation of income, fines, suspension of business and revocation of required licenses, which could materially and adversely affect our business, financial condition and results of operations. We or our partners may also be subjected to liability for any unlawful actions of their customers or users of their websites or for content distributed by such subsidiaries or partners that is deemed inappropriate. It may be difficult to determine the type of content that may result in liability.

 

It may be difficult for overseas regulators to conduct investigation or collect evidence within China.

 

Shareholder claims or regulatory investigation that are common in the United States generally are difficult to pursue as a matter of law or practicality in China. For example, in China, there are significant legal and other obstacles to providing information needed for regulatory investigations or litigation initiated outside China. Although the authorities in China may establish a regulatory cooperation mechanism with the securities regulatory authorities of another country or region to implement cross-border supervision and administration, such cooperation with the securities regulatory authorities in the Unities States may not be efficient in the absence of mutual and practical cooperation mechanism. Furthermore, according to Article 177 of the PRC Securities Law, or Article 177, which became effective in March 2020, no overseas securities regulator is allowed to directly conduct investigation or evidence collection activities within the territory of the PRC. While detailed interpretation of or implementation rules under Article 177 have yet to be promulgated, the inability for an overseas securities regulator to directly conduct investigation or evidence collection activities within China may further increase difficulties faced by you in protecting your interests.

 

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Under the enterprise income tax (“EIT”) Law, we may be classified as a “resident enterprise” of China. Such classification would likely result in unfavorable tax consequences.

 

Under the EIT Law, which has been revised effective as of December 29, 2018, and its implementation rules, (the “Implementation Rules”), which has been revised and effective as April 23, 2019, an enterprise established outside of the PRC with “de facto management bodies” within the PRC is considered a resident enterprise and is subject to enterprise income tax, or EIT, at the rate of 25% on its global income. The Implementation Rules define the term “de facto management bodies” as “establishments that carry out substantial and overall management and control over the manufacturing and business operations, personnel, accounting, properties, etc. of an enterprise.” The State Administration of Taxation issued the Notice Regarding the Determination of Chinese-Controlled Offshore Incorporated Enterprises as PRC Tax Resident Enterprises on the Basis of De Facto Management Bodies, or Circular 82, on April 22, 2009. Circular 82 provides that a foreign enterprise controlled by a PRC company or a PRC company group will be classified as a “resident enterprise” with its “de facto management bodies” located within China if the following criteria are satisfied: (i) the place where the senior management and core management departments that are in charge of its daily operations perform their duties is mainly located in the PRC; (ii) its financial and human resources decisions are made by or are subject to approval by persons or bodies in the PRC; (iii) its major assets, accounting books, company seals, and minutes and files of its board and shareholders’ meetings are located or kept in the PRC; and (iv) more than half of the enterprise’s directors or senior management with voting rights frequently reside in the PRC.

 

Currently, we do not believe we meet all of the criteria above. If the PRC authorities consider that we meet all of the criteria above and treat us as a resident enterprise, a 25% EIT on global income could significantly increase our tax burden and materially and adversely affect its financial condition and results of operations.

 

In addition, even if we are not deemed as a resident enterprise by the PRC authorities, pursuant to the EIT Law, dividends generated after January 1, 2008 and payable by a foreign-invested enterprise in China to its foreign investors will be subject to a 10% withholding tax, unless any such foreign investor’s jurisdiction of incorporation has a tax treaty with China that provides for a different withholding arrangement and provided that relevant tax authorities approved the foreign investors as the beneficial owners of such dividends under applicable tax regulations.

 

We face uncertainty with respect to indirect transfers of equity interests in PRC resident enterprises by non-PRC holding companies.

 

On February 3, 2015, the China State Administration of Taxation (“SAT”) issued the Circular on issues of enterprise Income Tax on Indirect Transfer of Assets by Non-PRC Resident Enterprise, or the SAT Circular 7, pursuant to which if a non-resident enterprise transfers the equity interests of a PRC resident enterprise indirectly by transfer of the equity interests of an offshore holding company (other than the purchase and sale of shares in public securities market) without a reasonable commercial purpose, the PRC tax authorities have the power to reassess the nature of the transaction and the indirect equity transfer might be treated as a direct transfer. As a result, the gain derived from such transfer, which means the equity transfer price minus the cost of equity, will be subject to the PRC withholding tax at a rate of up to 10%. SAT Circular 7 also brings challenges to both foreign transferor and transferee (or other person who is obligated to pay for the transfer) of taxable assets. Under the SAT Circular 7, the transfer which meets all of the following circumstances shall be deemed as having no reasonable commercial purpose: (i) over 75% of the value of the equity interests of the offshore holding company are directly or indirectly derived from PRC taxable properties; (ii) at any time during the year before the indirect transfer, over 90% of the total properties of the offshore holding company are investments within PRC territory, or in the year before the indirect transfer, over 90% of the offshore holding company’s total income is directly or indirectly derived from within PRC territory; (iii) the function performed and risks assumed by the offshore holding company are insufficient to substantiate its corporate existence; or (iv) the foreign income tax imposed on the indirect transfer is lower than the PRC tax imposed on the direct transfer of the PRC taxable properties. In October 2017, SAT issued the Announcement of the State Administration of Taxation on Issues Concerning the Withholding of Non-resident Enterprise Income Tax at Source, or SAT Circular 37, which came into effect on December 1, 2017 and was amended on June 15, 2018. The SAT Circular 37 further clarifies the practice and procedure of the withholding of nonresident enterprise income tax. Where a non-resident enterprise transfers taxable assets indirectly by disposing of the equity interests of an overseas holding company, which is an indirect transfer, the non-resident enterprise as either transferor or transferee, or the PRC entity that directly owns the taxable assets, may report such indirect transfer to the relevant tax authority. Using a “substance over form” principle, the PRC tax authority may disregard the existence of the overseas holding company if it lacks a reasonable commercial purpose and was established for the purpose of reducing, avoiding or deferring PRC tax.

 

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We face uncertainties as to the reporting and other implications of certain past and future transactions that involve PRC taxable assets, such as offshore restructuring, sale of the shares in our offshore subsidiaries and investments. We may be subject to filing obligations or taxed if we are transferors in such transactions, and may be subject to withholding obligations if we are transferees in such transactions, under SAT Circular 7 or SAT Circular 37, or both.

 

The enforcement of the PRC Labor Contract Law and other labor-related regulations in the PRC may adversely affect TINGO GROUP’s business and results of operations.

 

The Standing Committee of the National People’s Congress enacted the Labor Contract Law in 2008 and amended it on December 28, 2012. The Labor Contract Law introduced specific provisions related to fixed-term employment contracts, part-time employment, probationary periods, consultation with labor unions and employee assemblies, employment without a written contract, dismissal of employees, severance, and collective bargaining to enhance previous PRC labor laws. Under the Labor Contract Law, an employer is obligated to sign an unlimited-term labor contract with any employee who has worked for the employer for ten consecutive years. Further, if an employee requests or agrees to renew a fixed-term labor contract that has already been entered into twice consecutively, the resulting contract, with certain exceptions, must have an unlimited term, subject to certain exceptions. With certain exceptions, an employer must pay severance to an employee where a labor contract is terminated or expires. In the case of retrenching 20 or more employees or where the number of employees to be retrenched is less than 20 but comprises 10% or more of the total number of employees of such employer under certain circumstances, the employer shall explain the situation to the labor union or all staff 30 days in advance and seek the opinion of the labor union or the employees, the employer may carry out the retrenchment exercise upon reporting the retrenchment scheme to the labor administrative authorities. In addition, the PRC governmental authorities have continued to introduce various new labor-related regulations since the effectiveness of the Labor Contract Law.

 

Under the PRC Social Insurance Law and the Administrative Measures on Housing Fund, employees are required to participate in pension insurance, work-related injury insurance, medical insurance, unemployment insurance, maternity insurance, and housing funds and employers are required, together with their employees or separately, to pay the social insurance premiums and housing funds for their employees. If we fail to make adequate social insurance and housing fund contributions, or fail to withhold individual income tax adequately, we may be subject to fines and legal sanctions, and our business, financial conditions and results of operations may be adversely affected.

 

These laws designed to enhance labor protection tend to increase our labor costs. In addition, as the interpretation and implementation of these regulations are still evolving, our employment practices may not be at all times be deemed in compliance with the regulations. As a result, we could be subject to penalties or incur significant liabilities in connection with labor disputes or investigations.

 

PRC regulations relating to investments in offshore companies by PRC residents may subject our PRC-resident beneficial owners or our PRC subsidiaries to liability or penalties, limit our ability to inject capital into our PRC subsidiaries or limit our PRC subsidiaries’ ability to increase their registered capital or distribute profits.

 

SAFE promulgated the SAFE Circular 37 on July 4, 2014, which replaced the former circular commonly known as “SAFE Circular 75” promulgated by SAFE on October 21, 2005. SAFE Circular 37 and its implementing rules require PRC residents to register with banks designated by local branches of SAFE in connection with their direct establishment or indirect control of an offshore entity, for the purpose of overseas investment and financing, with the PRC residents’ legally owned assets or equity interests in domestic enterprises or offshore assets or interests, referred to in SAFE Circular 37 as a “special purpose vehicle.”

 

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We notified substantial beneficial owners of ordinary shares who we know are PRC residents of their filing obligation, and pursuant to the former SAFE Circular 75, we filed the above-mentioned foreign exchange registration on behalf of certain employee shareholders who we know are PRC residents. However, we may not be aware of the identities of all of our beneficial owners who are PRC residents. We do not have control over our beneficial owners, and there can be no assurance that all of our PRC-resident beneficial owners will comply with relevant SAFE regulations. The failure of our beneficial owners who are PRC residents to register or amend their SAFE registrations in a timely manner or the failure of future beneficial owners of our company who are PRC residents to comply with the registration procedures set forth in SAFE Circular 37 and subsequent implementation rules, may subject the beneficial owners or our PRC subsidiaries to fines and legal sanctions.

 

Furthermore, since it is unclear how those SAFE regulations, and any future regulation concerning offshore or cross-border transactions, will be further interpreted, amended and implemented by the relevant PRC government authorities, we cannot predict how these regulations will affect our business operations or future strategy. Failure to register or comply with relevant requirements may also limit our ability to contribute additional capital to our PRC subsidiaries and limit our PRC subsidiaries’ ability to distribute dividends to our company. These risks may have a material adverse effect on our business, financial condition and results of operations.

 

Any failure to comply with PRC regulations regarding our employee equity incentive plans may subject the PRC participants in the plans, us or our overseas and PRC subsidiaries to fines and other legal or administrative sanctions.

 

Pursuant to SAFE Circular 37, PRC residents who participate in share incentive plans in overseas non-publicly-listed companies may, prior to the exercise of an option, submit applications to SAFE or its local branches for the foreign exchange registration with respect to offshore special purpose companies. In the meantime, our directors, executive officers and other employees who are PRC citizens or who are non-PRC citizens residing in the PRC for a continuous period of not less than one year, subject to limited exceptions, and whom we or our overseas listed subsidiaries have granted restricted share units, or RSUs, options or restricted shares, may follow the Notice on Issues Concerning the Foreign Exchange Administration for Domestic Individuals Participating in Stock Incentive Plan of Overseas Publicly Listed Company, issued by SAFE in February 2012, to apply for the foreign exchange registration. According to those regulations, employees, directors and other management members participating in any stock incentive plan of an overseas publicly listed company who are PRC citizens or who are non-PRC citizens residing in China for a continuous period of not less than one year, subject to limited exceptions, are required to register with SAFE through a domestic qualified agent, which may be a PRC subsidiary of the overseas listed company, and complete certain other procedures. Failure to complete the SAFE registrations may subject them to fines and legal sanctions and may also limit their ability to make payment under the relevant equity incentive plans or receive dividends or sales proceeds related thereto in foreign currencies, or our ability to contribute additional capital into our domestic subsidiaries in China and limit our domestic subsidiaries’ ability to distribute dividends to us. We also face regulatory uncertainties under PRC law that could restrict our ability or the ability of our overseas listed subsidiaries to adopt additional equity incentive plans for our directors and employees who are PRC citizens or who are non-PRC citizens residing in the PRC for a continuous period of not less than one year, subject to limited exceptions.

 

In addition, the STA has issued circulars concerning employee RSUs, share options or restricted shares. Under these circulars, employees working in the PRC whose RSUs or restricted shares vest, or who exercise share options, will be subject to PRC individual income tax. The PRC subsidiaries of an overseas listed company have obligations to file documents related to employee RSUs, share options or restricted shares with relevant tax authorities and to withhold individual income taxes of those employees related to their RSUs, share options or restricted shares. Although we and our overseas listed subsidiaries currently withhold individual income tax from our PRC employees in connection with the vesting of their RSUs and restricted shares and their exercise of options, if the employees fail to pay, or the PRC subsidiaries fail to withhold, their individual income taxes according to relevant laws, rules and regulations, the PRC subsidiaries may face sanctions imposed by the tax authorities.

 

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If our auditor is sanctioned or otherwise penalized by the Public Company Accounting Oversight Board (“PCAOB”) or the SEC as a result of failure to comply with inspection or investigation requirements, our financial statements could be determined to be not in compliance with the requirements of the Exchange Act or other laws or rules in the United States, which could ultimately result in our Common Stock being delisted from The Nasdaq Capital Market.

 

In recent years, U.S. regulators have continued to express their concerns about challenges in their oversight of financial statement audits of U.S.-listed companies with significant operations in China. More recently, as part of increased regulatory focus in the U.S. on access to audit information, on May 20, 2020, the U.S. Senate passed the Holding Foreign Companies Accountable Act, or the HFCA Act, which includes requirements for the SEC to identify issuers whose audit reports are prepared by auditors that the PCAOB is unable to inspect or investigate completely because of a restriction imposed by a non-U.S. authority in the auditor’s local jurisdiction. While we understand that there has been dialogue among the CSRC, the SEC and the PCAOB regarding the inspection of PCAOB-registered accounting firms in China, there can be no assurance that our auditor or us will be able to comply with requirements imposed by U.S. regulators.

 

Furthermore, on June 4, 2020, the U.S. President issued a memorandum ordering the President’s Working Group on Financial Markets to submit a report to the President within 60 days of the memorandum that includes recommendations for actions that can be taken by the executive branch, the SEC, the PCAOB or other federal agencies and departments with respect to Chinese companies listed on U.S. stock exchanges and their audit firms, in an effort to protect investors in the United States. The recommendations are to include actions that could be taken under current laws and rules as well as possible new rulemaking recommendations.

 

On May 20, 2020, the HFCAA passed the United States Senate by unanimous consent. On December 2, 2020, the US House of Representatives passed by voice vote the Holding Foreign Companies Accountable Act (HFCAA), which would require auditors of foreign public companies to allow the Public Company Accounting Oversight Board (PCAOB) to inspect their audit work papers for audits of non-US operations as required by the Sarbanes-Oxley Act of 2002 (Sarbanes-Oxley). If a company’s auditors fail to comply for three consecutive years, then the Company’s shares would be prohibited from trading in the United States. The legislation passed the Senate in May. The HFCAA was signed into law on December 18, 2020. Furthermore, on June 22, 2021. the U.S. Senate passed. and the US house of representative on February 4, 2022 passed the Accelerating Holding Foreign Companies Accountable Act (the “AHFCAA”), which, if signed into law, would amend the HFCAA and require the SEC to prohibit an issuer’s securities from trading on any U.S. stock exchanges if its auditor is not subject to PCAOB inspections for two consecutive years instead of three consecutive years.

 

The HFCAA aims to address restrictions China has placed on the PCAOB’s ability to inspect or investigate PCAOB-registered public accounting firms in connection with their audits of Chinese companies. Sarbanes-Oxley created the PCAOB “to oversee the audit of public companies that are subject to the securities laws, and related matters, in order to protect the interests of investors and further the public interest in the preparation of informative, accurate, and independent audit reports for companies the securities of which are sold to, and held by and for, public investors.” Specifically, the PCAOB is responsible for registering public accounting firms, establishing standards applicable to the preparation of audit reports for companies, conducting inspections and investigations of public accounting firms to ensure they are complying with those standards, and bringing enforcement actions when they are not.

 

The HFCAA could adversely affect the listing and compliance status of China-based issuers listed in the United States, such as our company, and may have a material and adverse impact on the trading prices of the securities of such issuers, including our Common Stock, and substantially reduce or effectively terminate the trading of our Common Stock in the United States.

 

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Risk Factors Related to our insurance business

 

Results in our insurance brokerage segment may be adversely affected by a general decline in economic activity.

 

Demand for many types of insurance and reinsurance generally rises or falls as economic growth expands or slows. This is especially the case with our automobile insurance which is dependent upon the ability of persons to own and operate an automobile. This dynamic affects the level of commissions and fees generated by our VIEs. To the extent our customers become adversely affected by declining business conditions, they may choose to limit their purchases of insurance and reinsurance coverage, as applicable, which would inhibit our ability to generate commission revenue and other revenue based on premiums placed by us. Also, the insurance they seek to obtain through us may be impacted by changes in their assets, property values, sales or number of employees, which may reduce our commission revenue, and they may decide not to purchase our risk advisory or other services, which would inhibit our ability to generate fee revenue. Moreover, insolvencies and combinations associated with an economic downturn, especially insolvencies and combinations in the insurance industry, could adversely affect our brokerage business through the loss of customers or by limiting our ability to place insurance and reinsurance business, as well as our revenues from insurers. We are especially susceptible to this risk given the limited number of insurance company clients and reinsurers in the marketplace.

 

Volatility or declines in premiums and other market trends may significantly impede our ability to grow revenues and profitability.

 

A significant portion of our insurance brokerage revenue consists of commissions paid to us out of the premiums that insurers and reinsurers charge our clients for coverage. We do not determine the insurance premiums on which our commissions are generally based. Our revenues and profitability are subject to change to the extent that premium rates fluctuate or trend in a particular direction. The potential for changes in premium rates is significant, due to the normal cycles of pricing in the commercial insurance and reinsurance markets.

 

As traditional insurance companies continue to rely on non-affiliated brokers or agents to generate premium, those insurance companies may seek to reduce their expenses by lowering their commission rates. The reduction of these commission rates, along with general volatility or declines in premiums, may significantly affect our revenue and profitability. Because we do not determine the timing or extent of premium pricing changes, it is difficult to accurately forecast our commission revenues, including whether they will significantly decline. As a result, we may have to adjust our plans for future acquisitions, capital expenditures, dividend payments, loan repayments and other expenditures to account for unexpected changes in revenues, and any decreases in premium rates may adversely affect the results of our operations.

 

In addition to movements in premium rates, our ability to generate premium-based commission revenue may be challenged by disintermediation and the growing availability of alternative methods for clients to meet their risk-protection needs. This trend includes a greater willingness on the part of corporations to self-insure, the use of captive insurers, and the presence of capital markets-based solutions for traditional insurance and reinsurance needs. Further, the profitability of our insurance brokerage segment depends in part on our ability to be compensated for the analytical services and other advice that we provide, including the consulting and analytics services that we provide to insurers. If we are unable to achieve and maintain adequate billing rates for all of our services, our margins and profitability could decline. Furthermore, the insurance business in China where we operate is maturing and developing and if we do not compete efficiently and keep current with the trends in the market, our business may decline.

 

Our business may be harmed by any negative developments that may occur in the insurance industry or if we fail to maintain good relationships with insurance carriers.

 

Our businesses are heavily dependent on the insurance industry. Any negative developments that occur in the insurance industry may have a material adverse effect on our business and our results of operations. In addition, if we fail to maintain good relationships with insurance carriers, it may have a material adverse effect on our business and results of operations. The termination, amendment or consolidation of our relationships with our insurance carriers could harm our business, results of operations and financial condition.

 

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Cyberattacks are increasing in frequency and evolving in nature. We are at risk of attack by a variety of adversaries, including state-sponsored organizations, organized crime, hackers, through use of increasingly sophisticated methods of attack. In particular, we are at increased risk of a cyberattack when geopolitical tensions are high, as diplomatic events and economic policies may trigger espionage or retaliatory cyber incidents. In addition, remote work arrangements in response to COVID-19 have increased the risk of phishing and other cybersecurity attacks or unauthorized dissemination of personal, confidential, proprietary or sensitive data.

 

Our information systems must be continually updated, patched, and upgraded to protect against known vulnerabilities. The volume of new software vulnerabilities has increased markedly, as has the criticality of patches and other remedial measures. In addition to remediating newly identified vulnerabilities, previously identified vulnerabilities must also be continuously addressed. Accordingly, we are at risk that cyberattacks exploit these known vulnerabilities before they have been communicated by vendors or addressed. Any failure related to these activities could have a material adverse effect on our business.

 

We have numerous vendors and other third parties who receive personal information from us in connection with the services we offer our customers. We also use tens of IT vendors and software providers to maintain and secure our global information systems infrastructure. In addition, we have migrated certain data, and may increasingly migrate data, to the cloud hosted by third-party providers. Some of these vendors and third parties also have direct access to our systems. We are at risk of a cyberattack involving a vendor or other third party, which could result in a breakdown of such third party’s data protection processes or the cyberattacks gaining access to our infrastructure through a supply chain attack.

 

We have a history of making acquisitions and investments within the insurance market. The process of integrating the information systems of any businesses we acquire is complex and exposes us to additional risk. For instance, we may not adequately identify weaknesses and vulnerabilities in an acquired entity’s information systems, either before or after the acquisition, which could affect the value we are able to derive from the acquisition, expose us to unexpected liabilities or make our own systems more vulnerable to a cyberattack. In addition, if we discover a historical compromise, security breach or other cyber incident related to the target’s information systems following the close of the acquisition, we may be liable and exposed to significant costs and other unforeseen liabilities. We may also be unable to integrate the systems of the businesses we acquire into our environment in a timely manner, which could further increase these risks until such integration takes place.

 

 

We expect competition in the Chinese insurance industry to increase, which may materially and adversely affect the growth of our business.

 

We face competitive pressures from both domestic and foreign-invested insurance brokerage companies operating in China, which may compete with our insurance businesses, and other financial institutions that sell other financial investment products in competition with ours. If we are not able to adapt to these increasingly competitive pressures in the future, our growth rate may decline, which could materially and adversely affect our earnings.

 

 

Further development of regulations in China may impose additional costs or restrictions on our activities.

 

We operate in a highly regulated industry. The CBIRC supervises and administers the insurance industry in China. In exercising its authority, it is given certain discretion to administer the law. China’s insurance regulatory regime is undergoing significant changes toward a more transparent regulatory process and a convergent movement toward international standards. Some of these changes may result in additional costs or restrictions on our activities. For example, in November 2020, the Insurance Association of China issued a notice on revising the definition of critical illnesses, including revisions to the applicable scope and principles of critical illnesses as well as relevant provisions on insurance clauses for critical illnesses. From February 1, 2021, insurers may not continue to sell critical illness insurance products which were developed based on previous rules. The CBIRC in the same month also issued a notice stipulating that Critical Illness Morbidity Table in the Chinese Personal Insurance Industry (2020) promulgated by the China Association of Actuaries will serve as the evaluation table and pricing reference table for statutory liability reserve of life insurance products that include critical illness insurance liability. The notice also imposed restrictions on the applicable scope, evaluation of statutory reserves and pricing of the products. These new requirements apply to a number of key products sold by us. Although these new requirements are consistent with our long-term development strategy, making adjustments to relevant products during a short period of time may increase our operating costs and may adversely affect our business, results of operations and financial condition.

 

In addition, because the terms of our products are subject to regulations, changes in regulations may affect our profitability on the policies and contracts we issue.

 

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Any actions by the Chinese government, including any decision to influence our operations or to exert more oversight and control over any offering of securities conducted overseas and/or foreign investment in China-based issuers, may cause us to make material changes to our operations and could significantly limit or completely hinder our ability to offer or continue to offer securities to investors and cause the value of such securities to significantly decline or be worthless.

 

The Chinese government has exercised and continues to exercise significant oversight and regulation over almost every sector of the Chinese economy, including the insurance industry, and has discretion over many aspects in which it exercises such authority. Our operations are subject to various regulatory requirements. The Chinese government may also impose new and stricter regulations or impose new interpretations of existing regulations and take other actions that may influence our operations. These government actions, including changes in laws and regulations, particularly those relating to insurance, overseas listing, taxation, land use rights, foreign investment limitations, may result in a material change in our operations and the value of our securities.

 

On December 24, 2021, CSRC published proposed tightening rules governing Chinese companies listing abroad, which require an offshore IPO application to be filed with the CSRC. The proposed rules reflect the continued efforts and plan of the Chinese government to scrutinize and exert more oversight and control over capital market activities including offshore listings. We believe that we are currently not required to file with or obtain permissions from the CSRC to maintain our listing in U.S., but the CSRC or any other PRC regulatory authorities may issue any laws or rules that would require us to file with or obtain approvals from the CSRC or other governmental agencies, and may also take actions imposing restrictions on our continued listing in the U.S. Any such actions could significantly limit or completely hinder our ability to continue to offer securities to investors and cause the value of such securities to significantly decline or be worthless.

 

Our insurance business is exposed to various catastrophic events in which multiple losses can occur and affect multiple lines of business in any calendar year.

 

Natural disasters, such as hurricanes, earthquakes and other catastrophes, have the potential to adversely affect our operating results. Other risks, such as man-made catastrophes or pandemic disease, could also adversely affect our business and operating results to the extent they are covered by our insurance products. Concentration of exposure in certain industries or geographies may cause us to suffer disproportionate losses.

 

Catastrophic events, and any relevant regulations, could result in losses in any business in which we operate, and could expose us to:

 

  widespread claim costs associated with property, workers’ compensation, accident and health, travel, business interruption and mortality and morbidity claims;

 

  loss resulting from a decline in the value of our invested assets;

 

  limitations on our ability to recover deferred tax assets;

 

  loss resulting from actual policy experience that is adverse compared to the assumptions made in product pricing;

 

  revenue loss due to decline in customer base;

 

  declines in value and/or losses with respect to companies and other entities whose securities we hold and counterparties we transact business with and have credit exposure to, including insurers and reinsurers; and

 

  significant disruptions to our physical infrastructure, systems and operations.

 

Catastrophes will require us to pay out on many insurance claims including weather related natural disasters. The possibilities that the insurance companies that we write policies for cannot pay for the insurance claim could have a material adverse effect on our results of operations, cash flows and liquidity and we may be held liable for the unpaid insurance claims.

 

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Risks Related to Our Corporate Structure

 

If the PRC government deems that the VIE Agreements do not comply with PRC regulatory restrictions on foreign investment in the relevant industries or other laws or regulations of the PRC, or if these regulations or the interpretation of existing regulations change in the future, we could be subject to severe penalties or be forced to relinquish our interests in those operations, which may therefore materially reduce the value of our ordinary shares.

 

We are a holding company. As a holding company, we conduct a portion of our operations through our VIEs in the PRC. We receive the economic benefits of our VIE’s business operations through certain contractual arrangements; however, our rights under the VIEs Agreements do not provide us with an equity interest in our VIEs and is not the same as actual ownership.

 

Our PRC subsidiaries has entered into the VIE Agreements with our consolidated VIEs and their shareholders, which enable us to (i) exercise effective control over the consolidated VIE, (ii) receive substantially all of the economic benefits of the consolidated VIEs, and (iii) have an exclusive option to purchase all or part of the equity interests and assets in the consolidated VIEs when and to the extent permitted by PRC law. As a result of these contractual arrangements, we have control over and are the primary beneficiary of the consolidated VIE and hence consolidate its financial results as our consolidated VIE under U.S. GAAP.

 

We believe that our corporate structure and contractual arrangements comply with the current applicable PRC laws and regulations. Our PRC legal counsel, Global Law Office, based on its understanding of the relevant laws and regulations, is of the opinion that each of the contracts among our wholly-owned PRC subsidiary, our consolidated VIE and its shareholders is valid, binding and enforceable in accordance with its terms. However, there are substantial uncertainties regarding the interpretation and application of current and future PRC laws and regulations. Thus, the PRC governmental authorities may take a view contrary to the opinion of our PRC legal counsel. It is uncertain whether any new PRC laws or regulations relating to variable interest entity structure will be adopted or if adopted, what they would provide. PRC laws and regulations governing the validity of these contractual arrangements are uncertain and the relevant government authorities have broad discretion in interpreting these laws and regulations.

 

If our corporate structure and contractual arrangements are deemed by the relevant regulators that have competent authority, to be illegal, either in whole or in part, we may lose control of our consolidated VIEs, which holds significant assets and accounts for significant revenue, and has to modify such structure to comply with regulatory requirements. However, there can be no assurance that we can achieve this without material disruption to our business. Further, if our corporate structure and contractual arrangements are found to be in violation of any existing or future PRC laws or regulations, the relevant regulatory authorities would have broad discretion in dealing with such violations, including:

 

  revoking our business and operating licenses;

 

  levying fines on us;

 

  confiscating any of our income that they deem to be obtained through illegal operations;

 

  shutting down our services;

 

  discontinuing or restricting our operations in China;

 

  imposing conditions or requirements with which we may not be able to comply;

 

  requiring us to change our corporate structure and contractual arrangements;

 

  restricting or prohibiting our use of the proceeds from overseas offering to finance our consolidated VIE’s business and operations; and

 

  taking other regulatory or enforcement actions that could be harmful to our business.

 

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Furthermore, new PRC laws, rules and regulations may be introduced to impose additional requirements that may be applicable to our corporate structure and contractual arrangements. Occurrence of any of these events could materially and adversely affect our business, financial condition and results of operations and the market price of our ordinary shares. In addition, if the imposition of any of these penalties or requirement to restructure our corporate structure causes us to lose the rights to direct the activities of our consolidated VIE or our right to receive their economic benefits, we would no longer be able to consolidate the financial results of such VIE in our consolidated financial statements, which may cause the value of our securities to significantly decline or even become worthless. However, we do not believe that such actions would result in the liquidation or dissolution of our company, our wholly-owned subsidiaries in China or our consolidated VIEs.

 

Our current corporate structure and business operations and the market price of our ordinary shares may be affected by the newly enacted Foreign Investment Law which does not explicitly classify whether VIE that are controlled through contractual arrangements would be deemed as foreign-invested enterprises if they are ultimately “controlled” by foreign investors.

 

The VIE structure has been adopted by many Chinese-based companies, including us, to obtain necessary licenses and permits in the industries that are currently subject to foreign investment restrictions in China. On March 15, 2019, the National People’s Congress, China’s national legislative body (the “NPC”) approved the Foreign Investment Law, which took effect on January 1, 2020. On December 26, 2019, the PRC State Council approved the Implementation Rules of the Foreign Investment Law, which came into effect on January 1, 2020. Since they are relatively new, uncertainties exist in relation to their interpretation. The Foreign Investment Law does not explicitly classify whether variable interest entities that are controlled through contractual arrangements would be deemed as foreign-invested enterprises if they are ultimately “controlled” by foreign investors. However, it has a catch-all provision under definition of “foreign investment” that includes investments made by foreign investors in China through other means as provided by laws, administrative regulations or the State Council. Therefore, it still leaves leeway for future laws, administrative regulations or provisions of the State Council to provide for contractual arrangements being viewed as a form of foreign investment. Therefore, there can be no assurance that our control over our consolidated VIE through contractual arrangements will not be deemed as foreign investment in the future.

 

Furthermore, if future laws, administrative regulations or provisions mandate further actions to be taken by companies with respect to existing contractual arrangements, we may face substantial uncertainties as to whether we can complete such actions in a timely manner, or at all. Failure to take timely and appropriate measures to cope with any of these or similar regulatory compliance challenges could materially and adversely affect our current corporate structure and business operations and the market price of our ordinary shares.

 

We conduct a portion of our operations through our VIEs, which is established in the PRC, and we rely on contractual arrangements with our consolidated VIEs and its shareholders to operate our business, which may not be as effective as direct ownership in providing operational control and otherwise have a material adverse effect as to our business.

 

We rely on contractual arrangements with our consolidated VIEs and its shareholders. A substantial majority of our revenue from Intermediate is generated by and a significant percentage of Intermediate consolidated assets are owned by the VIEs, whose financial statements are consolidated with ours. These contractual arrangements do not give us an equity interest in the VIEs and may not be as effective as direct ownership in providing us with control over our consolidated VIEs. If our consolidated VIEs or its shareholders fail to perform their respective obligations under these contractual arrangements, our recourse to the assets held by our consolidated VIEs is indirect and we may have to incur substantial costs and expend significant resources to enforce such arrangements in reliance on legal remedies under PRC law. These remedies may not always be effective, particularly in light of uncertainties in the PRC legal system. Furthermore, in connection with litigation, arbitration or other judicial or dispute resolution proceedings, assets under the name of any of record holder of equity interest in our consolidated VIEs, including such equity interest, may be put under court custody. As a consequence, we cannot be certain that the equity interest will be disposed pursuant to the contractual arrangement or ownership by the record holder of the equity interest.

 

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All of these contractual arrangements are governed by PRC law and provide for the resolution of disputes through arbitration in the PRC. Accordingly, these contracts would be interpreted in accordance with PRC laws and any disputes would be resolved in accordance with PRC legal procedures. The legal environment in the PRC is not as developed as in other jurisdictions, such as the U.S. As a result, uncertainties in the PRC legal system could limit our ability to enforce these contractual arrangements. In the event that we are unable to enforce these contractual arrangements, or if we suffer significant time delays or other obstacles in the process of enforcing these contractual arrangements, it would be very difficult to exert effective control over our consolidated VIEs, and our ability to conduct our business and our financial condition and results of operations may be materially and adversely affected.

 

Any failure by our consolidated VIEs or its shareholders to perform their contractual obligations would have a material adverse effect on our business and the market price of our ordinary shares.

 

Our wholly foreign-owned enterprise in the PRC, has entered into the VIEs Agreements with our consolidated VIEs and its shareholders. If our consolidated VIEs or its shareholders fail to perform their respective obligations under these contractual arrangements, we may incur substantial costs and expend additional resources seeking to enforce such arrangements. We may also have to rely on legal remedies under PRC laws, including seeking specific performance or injunctive relief, and claiming damages, which we cannot assure you will be effective under PRC laws. For example, if the shareholders of our consolidated VIEs were to refuse to transfer their equity interests in the consolidated VIEs to our WFOE or its designee when our WFOE exercises the purchase option pursuant to these contractual arrangements, or if the shareholders of the VIEs were otherwise to act in bad faith toward TINGO GROUP or our WFOE, then our WFOE may have to take legal actions to compel them to perform their contractual obligations.

 

All of the VIEs Agreements are governed by PRC laws and provide for the resolution of disputes through arbitration in China. Accordingly, these contracts would be interpreted in accordance with PRC laws and any disputes would be resolved in accordance with PRC legal procedures, but an arbitration proceeding is not as formal as a court proceeding and the arbitrator may apply PRC law in a manner different from a court. The legal system in the PRC is not as developed as in some other jurisdictions, such as the U.S., and the arbitrator may render a decision which is in conflict with our understanding of the laws of the PRC and we may have little if any recourse. As a result, uncertainties in the PRC legal system and the arbitration procedure could limit the ability of our WFOE to enforce these contractual arrangements. Meanwhile, there are very few precedents and formal guidelines as to how contractual arrangements in the context of a VIEs should be interpreted or enforced under PRC laws. There remain significant uncertainties regarding the ultimate outcome of such arbitration should it become necessary. In addition, under PRC laws, rulings by arbitrators are final and parties cannot appeal arbitration results in court unless such rulings are revoked or determined unenforceable by a competent court. If the losing parties fail to carry out the arbitration awards within a prescribed time limit, the prevailing parties may only enforce the arbitration awards in PRC courts through arbitration award recognition proceedings, which would require additional expenses and delay. In the event that our WFOE is unable to enforce these contractual arrangements, or if our WFOE suffers significant delay or other obstacles in the process of enforcing these contractual arrangements, TINGO GROUP may not be able to exert effective control over our consolidated VIEs, in which event we may lose the value of the VIEs Agreements and the relevant rights and licenses held by the VIEs which TINGO GROUP requires in order to operate its business, and its ability to conduct its business may be negatively affected. Any delay in effecting enforcement of our WFOE’s rights under the VIEs Agreements could materially and adversely affect our consolidated financial condition, the results of our operations, our prospects, our ability to continue in business and the market for and market price of our ordinary shares. If our WFOE is not able to enforce its rights, we may not be able to include the VIE’sfinancial statements with TINGO GROUP, which could cause our ordinary shares to lose most, if not all, of their value.

 

The arbitration provisions under the VIEs Agreements have no effect on the rights of our shareholders to pursue claims against us under the United States federal securities laws, although any such actions would have no effect on our WFOE’s ability to enforce its rights under the VIEs Agreements.

 

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The shareholders of our consolidated VIEs may have potential conflicts of interest with us, which may materially and adversely affect our business and financial condition and the value of our ordinary shares.

 

The interests of the shareholders of our consolidated VIEs in their capacities as such shareholders may differ from the interests of our company as a whole, as what is in the best interests of our consolidated VIEs, including matters such as whether to distribute dividends or to make other distributions to fund our offshore requirement to the extent that such funding is permitted under PRC laws, may not be in our best interests. There can be no assurance that when conflicts of interest arise, any or all of these shareholders will act in our best interests of or that any conflicts of interest will be resolved in our favor. In addition, these shareholders may breach or cause our consolidated VIEs and its subsidiaries to breach or refuse to renew the existing contractual arrangements with us.

 

Our WFOE, however, could, at all times, exercise its option under the exclusive option agreement to cause the VIEs shareholders to transfer all of their equity ownership in our consolidated VIEs to a PRC entity or individual designated by our WFOE as permitted by the then applicable PRC laws. In addition, if such conflicts of interest arise, our WFOE could also, in the capacity of attorney-in-fact of the shareholders of our consolidated VIEs as provided under the power of attorney, directly appoint new directors of our consolidated VIEs. We rely on the shareholders of our consolidated VIEs to comply with PRC laws and regulations, which protect contracts and provide that directors and executive officers owe a duty of loyalty to our company and require them to avoid conflicts of interest and not to take advantage of their positions for personal gains, and the laws of the Cayman Islands, which provide that directors have a duty of care and a duty to act honestly in good faith with a view to our best interests. However, the legal frameworks of both China and the Cayman Islands do not provide guidelines on resolving conflicts with other corporate governance regimes. If our WFOE cannot resolve any conflicts of interest or disputes between our WFOE and the shareholders of our consolidated VIEs, TINGO GROUP would have to rely on the arbitration provisions of the VIEs Agreements, which, as discussed in the previous risk factor, could result in the disruption of our business and subject us to substantial uncertainty as to the outcome of any such. As a result, in the event that the shareholders of the VIEs do not comply with their obligations under the VIEs Agreements, our WFOE may not be able to enforce its rights, in which event we may not be able to include the VIEs financial statements with TINGO GROUP’s which could cause our ordinary shares to lose most, if not all, of their value.

 

Contractual arrangements in relation to our consolidated VIEs may be subject to scrutiny by the PRC tax authorities who may determine that our consolidated VIEs owes additional taxes, which could negatively affect our financial condition and the value of your investment.

 

Under applicable PRC laws and regulations, arrangements and transactions among related parties may be subject to audit or challenge by the PRC tax authorities. The PRC Enterprise Income Tax Law, or the EIT Law, requires every enterprise in China to submit its annual enterprise income tax return together with a report on transactions with its related parties to the relevant tax authorities. The tax authorities may impose reasonable adjustments on taxation if they have identified any related party transactions that are inconsistent with the arm’s length principles. We may face material and adverse tax consequences if the PRC tax authorities determine that the contractual arrangements among our wholly-owned PRC subsidiary, our consolidated VIEs and its shareholders were not entered into on an arm’s length basis in such a way as to result in an impermissible reduction in taxes under applicable PRC laws, regulations and rules, and adjust their income in the form of a transfer pricing adjustment. A transfer pricing adjustment could, among other things, result in a reduction of expense deductions recorded by our wholly-owned PRC subsidiary or consolidated VIEs for PRC tax purposes, which could in turn increase their tax liabilities without reducing their tax expenses. Furthermore, the PRC tax authorities may impose late payment fees and other penalties on our PRC subsidiary and consolidated VIEs for adjusted but unpaid taxes according to applicable regulations. Our financial position could be materially and adversely affected if the tax liabilities of our PRC subsidiary and consolidated VIEs increase, or if they are required to pay late payment fees and other penalties.

 

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We may lose the ability to use and enjoy assets held by our consolidated VIEs that are material to the operation of our business if the entity goes bankrupt or becomes subject to a dissolution or liquidation proceeding.

 

Our consolidated VIEs hold substantially all of our assets. Under the contractual arrangements, our consolidated VIEs may not and its shareholders may not cause it to, in any manner, sell, transfer, mortgage or dispose of its assets or its legal or beneficial interests in the business without our WFOE’s prior consent. However, in the event that the shareholders of our consolidated VIEs breach these contractual arrangements and voluntarily liquidate our consolidated VIEs, or our consolidated VIEs declares bankruptcy and all or part of its assets become subject to liens or rights of third-party creditors, or are otherwise disposed of without our WFOE’s consent, we may be unable to continue some or all of our business activities, which could materially and adversely affect our business, financial condition and results of operations. If our consolidated VIEs undergoes a voluntary or involuntary liquidation proceeding, independent third-party creditors may claim rights to some or all of these assets, thereby hindering our ability to operate our business, which could materially and adversely affect our business, financial condition and results of operations.

 

Risk Factors Relating to Micronet’s Business and Industry

 

Potential political, economic and military instability in Israel could adversely affect operations.

 

Certain of TINGO GROUP and Micronet’s principal offices and operating facilities are located in Israel. Accordingly, with respect to such Israeli facilities, political, economic and military conditions in Israel directly affect the operations of TINGO GROUP and Micronet. Since the establishment of the State of Israel in 1948, a number of armed conflicts have taken place between Israel and its Arab neighbors. A state of hostility varying in degree and intensity has led to security and economic problems for Israel. Since October 2000, there has been an increase in hostilities between Israel and Palestinians, which has adversely affected the peace process and has negatively influenced Israel’s relationship with its Arab citizens and several Arab countries, including the Gaza Strip, the West Bank, Lebanon and Syria. Such ongoing hostilities may hinder Israel’s international trade relations and may limit the geographic markets where Micronet can sell its products and solutions. Hostilities involving or threatening Israel, or the interruption or curtailment of trade between Israel and its present trading partners, could materially and adversely affect operations.

 

In addition, Israel-based companies and companies doing business with Israel have been subject to an economic boycott by members of the Arab League and certain other predominantly Muslim countries since Israel’s establishment, along with other private organizations around the world. Although Israel has entered into various agreements with certain Arab countries and the Palestinian Authority, and various declarations have been signed in connection with efforts to resolve some of the economic and political problems in the Middle East, whether or in what manner these problems will be resolved is unpredictable. Wars and acts of terrorism have resulted in significant damage to the Israeli economy, including reducing the level of foreign and local investment.

 

Substantial costs as a result of litigation or other proceedings relating to intellectual property rights may be incurred, which would have an adverse effect on the value of TINGO GROUP’s equity interest in Micronet.

 

Third parties may challenge the validity of Micronet’s intellectual property rights or bring claims regarding Micronet’s infringement of a third party’s intellectual property rights. This may result in costly litigation or other time-consuming and expensive judicial or administrative proceedings, which could deprive Micronet of valuable rights, cause them to incur substantial expenses and cause a diversion for technical and management personnel. An adverse determination may subject Micronet to significant liabilities or require it to seek licenses that may not be available from third parties on commercially favorable terms, if at all. Further, if such claims are proven valid, through litigation or otherwise, Micronet may be required to pay substantial financial damages or be required to discontinue or significantly delay the development, marketing, sale or licensing of the affected products and intellectual property rights. The occurrence of any of the foregoing could have an adverse effect on the value of TINGO GROUP’s equity interest in Micronet.

 

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Risks Relating to TGH

 

Risks Related to Doing Business in Africa

 

Many African countries are, or have been, characterized by political instability or changes in regulatory or other government policies.

 

Frequent and intense periods of political instability make it difficult to predict future trends in governmental policies. For example, the Arab Spring of 2010 and 2011 caused substantial political turmoil across the Middle East and North Africa, particularly in Egypt. During this period of instability in Egypt, the government temporarily dissolved the parliament, suspended the constitution and shut down the internet. In addition, if government or regulatory policies in a market in which Tingo Mobile operates were to change or become less business-friendly, the business of Tingo Mobile and its operating subsidiaries based in Africa could be adversely affected.

 

Governments in Africa frequently intervene in the economies of their respective countries and occasionally make significant changes in policy and regulations.

 

Governmental actions have often involved, among other measures, nationalizations and expropriations, price controls, currency devaluations, mandatory increases on wages and employee benefits, capital controls and limits on imports. TGH’s business, financial condition and results of operations may be adversely affected by changes in government policies or regulations, including such factors as exchange rates and exchange control policies, inflation control policies, price control policies, consumer protection policies, import duties and restrictions, liquidity of domestic capital and lending markets, electricity rationing, tax policies, including tax increases and retroactive tax claims, and other political, diplomatic, social and economic developments in or affecting the countries where TGH or its subsidiaries operate. For example, the Central Bank of Nigeria requires domestic companies to obtain a certificate to obtain foreign exchange for operation in other countries. There can be no assurance that TGH will be successful in obtaining these certificates. Any failure to obtain the required certificates could impact TGH’s ability to utilize corporate funds in Nigeria for business purposes outside of Nigeria, or adversely affect the exchange rate at which such foreign exchange could be obtained. In the future, the level of intervention by the Nigerian Central Bank may continue to increase. These or other measures could have a material adverse effect on TGH’ business, financial condition, results of operations and prospects.

 

TGH’s business may be materially and adversely affected by an economic slowdown in any region of Africa.

 

While we believe that economic conditions in Africa will improve, poverty in Africa will decline and the purchasing power of African consumers will increase in the long term, there can be no assurance that these expected developments will actually materialize. The development of African economies, markets and levels of consumer spending are influenced by many factors beyond TGH’s control, including consumer perception of current and future economic conditions, political uncertainty, employment levels, inflation or deflation, real disposable income, poverty rates, wealth distribution, interest rates, taxation, currency exchange rates and weather conditions. For example, a collapse in oil prices in early 2016 placed pressure on Nigeria’s currency, causing a currency shortage and threatening substantial inflation. Consumer spending declined in the face of significant price increases. As Tingo Mobile’s operations in Nigeria generate the substantial majority of TGH’s revenues than its operations in any other country in which TGH currently operates, adverse economic developments in Nigeria could have a much more significant impact on TGH’s results than a similar downturn in other countries. The occurrence of any of these risks could have a material adverse effect on TGH’s business, financial condition, results of operations and prospects.

 

Uncertainties with respect to the legal system in certain African markets could adversely affect TGH.

 

Legal systems in Africa vary significantly from jurisdiction to jurisdiction. Many countries in Africa have not yet developed a fully integrated legal system, and recently-enacted laws and regulations may not sufficiently cover all aspects of economic activities in such markets. In particular, the interpretation and enforcement of these laws and regulations involve uncertainties. Since local administrative and court authorities have significant discretion in interpreting and implementing statutory provisions and contractual terms, it may be difficult to predict the outcome of administrative and court proceedings and our level of legal protection in many of the markets in which TGH or its subsidiaries operate. Moreover, local courts may have broad discretion to reject enforcement of foreign awards. These uncertainties may affect TGH’s ability to enforce its contractual rights or other claims. Uncertainty regarding inconsistent regulatory and legal systems may also embolden plaintiffs to exploit such uncertainties through unmerited or frivolous legal actions or threats in attempts to extract payments or benefits from TGH.

 

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Many African legal systems are based in part on government policies and internal rules, some of which are not published on a timely basis, or at all, and may have retroactive effect.

 

There are other circumstances where key regulatory definitions are unclear, imprecise or missing, or where interpretations that are adopted by regulators are inconsistent with interpretations adopted by a court in analogous cases. In Nigeria, for example, there are Sharia law courts that operate in the predominantly Muslim north, to which only Muslims are subject. Decisions of these courts are subject to appeal and reversal by the secular courts. As a result, TGH or one or more of its subsidiaries may not be aware of its violation of certain policies and rules until after the violation. In addition, any administrative and court proceedings in Africa may be protracted, resulting in substantial costs and the diversion of resources and management attention.

 

TGH’s business may be materially and adversely affected by violent crime or terrorism in any region of Africa.

 

Many of the markets in which TGH or its subsidiaries operate suffer from a high incidence in violent crime and terrorism, which may harm our business. Violent crime has the potential to interfere with our delivery and fulfilment operations. Further, the terrorist attacks of Boko Haram have created considerable economic instability in north-eastern Nigeria for nearly a decade. Although it is difficult to quantify the economic effect of Boko Haram’s terrorist activities, countless markets, shops, and schools have been temporarily or permanently closed over the years out of fear of coordinated attacks. In some of the areas most devastated by terrorism, commercial banks have chosen to remain open for only three hours per day. Many Nigerians have also chosen to migrate from the north to the south, or out of the country altogether. If Boko Haram’s terrorist activities were to spread throughout Nigeria, the increasing violence could have material adverse effects on the Nigerian economy. Recently there have been nationwide protests resulting in deaths of demonstrators in clashes with the armed forces in Nigeria calling for the ban of a police unit, the Special Anti- Robbery Squad, which demonstrations have continued after the squad was disbanded as broader protests against police brutality and corrupt government. A terrorist attack in Nairobi in January 2019 by Somalia-based militant group al-Shabab drew increased attention to the risks of destabilization in Kenya. An increase in violent crime or terrorism in any region of Africa may interfere with transportation activities and discourage economic activity, weaken consumer confidence, diminish consumer purchasing power or cause harm to TGH’s sellers and consumers in other ways, any of which could have a material adverse effect on TGH’s business, financial position, results of operations and prospects.

 

The operations of TGH’s agricultural customer base may be affected by climate change. 

 

The global climate is changing, and will continue to change, in ways that affect the planning and day to day operations of businesses, government agencies and other organizations. The manifestations of climate change include higher temperatures, altered rainfall patterns, and more frequent or intense extreme events such as heatwaves, drought, and storms. Nigeria is still practicing rain fed agriculture which renders agricultural operations there vulnerable to the adverse effects of climate change. Extreme events such as flooding, extreme heat and drought has led to soil degradation which has resulted in decreased agricultural production. These effects can impact agricultural operations in Nigeria and other African countries directly, as well as the personnel, physical assets, supply chain and marketing and distribution involved in those operations, and in turn adversely affect TGH’s customer base.

 

Tingo Mobile’s cash reserves are not diversified across a variety of financial institutions.

 

Tingo Mobile generates considerable cash flow from operations which it manages in conjunction with its primary deposit institution. Tingo Mobile has not, thus far, diversified its deposits among other financial institutions in Nigeria, and the amount that Tingo Mobile has on hand vastly exceeds the maximum deposit insurance provided by the Nigeria Deposit Insurance Corporation. If Tingo Mobile’s primary deposit institution were to experience a liquidity shortage or an interruption in banking activity, Tingo Mobile could be constrained from having access to its funds, and its operations, and that of TGH, could be materially adversely affected as a result.

 

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Risks Related to TGH’s Business and Industry Sectors in Which It Operates

 

Inflation may have an adverse effect on TGH’s subscriber base.

 

Throughout 2020, 2021, and continuing into 2022, growing demand and supply chain disruption had resulted in increased prices of agricultural inputs, such as seeds and fertilizer, which in turn constrained growers’ ability to preserve margins on agricultural production, particularly for smaller farmers. Phosphate prices, for example, had increased approximately 139% from February 2020 to the end of 2021, while nitrogen had increased more than 80% during that period. The invasion of Ukraine by Russian armed forces in February 2022 has exacerbated inflationary pressure for these inputs, particularly inasmuch as Russia accounts for 13% of global production of potash, phosphate, and nitrogen and has been subjected to sweeping sanctions from western governments and the global financial system. Because of these input price pressures, TGH’s subscribers may find it more cost effective to produce at lower rates than historical levels, or abandon the current growing season entirely. Any diminution of growing activity by TGH’s subscriber base could also lead to lower activity on its Nwassa platform and lower revenue overall. We cannot guarantee you that TGH’s subscriber base will not be adversely affected by inflationary pressures regarding agricultural inputs, or that TGH’s financial condition or results of operations will not be adversely affected as a result.

 

TGH and its subsidiaries face competition, which may intensify.

 

In Nigeria, Tingo Mobile competes with a large number of mobile phone carriers. Current competitors, such as MTN, Airtel, Glo and 9 Mobile, being the four largest mobile networks, may seek to intensify their investments in those markets and also expand their businesses in new markets. Competitive pressure from current or future competitors or our failure to quickly and effectively adapt to a changing competitive landscape could adversely affect Tingo Mobile’s growth. Current or future competitors may offer lower prices and enhanced features, and Tingo Mobile may be forced to lower its prices and upgrade its phones and network in order to maintain its market share. With respect to Tingo Mobile’s payment services, it faces competition from financial institutions with payment processing offerings, debit and credit card service providers, other offline payment options and other electronic payment system operators, in each of the markets in which TGH or its subsidiaries operate. We expect competition to intensify in the future as existing and new competitors of TGH may introduce new services or enhance existing services. New entrants tied to established brands may engender greater user confidence in the safety and efficacy of their services. The expansion of mobile network operators and independent payment service providers may increase competition in the medium term.

 

TGH, through its subsidiaries, has entered into, or may enter into, agreements with various parties for certain business operations. Any difficulties experienced by TGH in maintaining these arrangements could result in additional expense, loss of subscribers and revenue, interruption of TGH’s services, or a failure or delay in the roll-out of new technology.

 

TGH, through its subsidiaries such as Tingo Mobile, has entered into, and may in the future enter into, agreements with various third parties for the day-to-day execution of services, provisioning, maintenance, and upgrading of TGH’s wireless and wireline networks, including the permitting, building, and installation of network upgrades; leases and subleases for space on communications towers; the development and maintenance of certain systems necessary for the operation of its business; customer service, related support to its wireless subscribers, outsourcing aspects of its wireline network and back office functions; and to provide network equipment, handsets, devices, and other equipment. For example, Tingo Mobile depends heavily on local access facilities obtained from ILECs to serve its data and voice subscribers, and payments to ILECs for these facilities are a significant cost of service for Tingo Mobile’s wireless customers. We also expect TGH’s dependence on key suppliers to continue as more advanced technologies are developed, which may lead to additional significant costs. If TGH’s key vendors fail to meet their contractual obligations or experience financial difficulty, or if TGH fails to adequately diversify its reliance among vendors, it may experience disruptions to its business operations or incur significant costs implementing alternative arrangements.

 

TGH and its subsidiaries are subject to anti-corruption, anti-bribery, and similar laws, and non-compliance with such laws can subject any one of them to criminal penalties or significant fines and harm the group’s business and reputation.

 

TGH and its subsidiaries are subject to anti-corruption and anti-bribery and similar laws, such as the U.S. Foreign Corrupt Practices Act of 1977, as amended, or the FCPA, the U.S. domestic bribery statute contained in 18 U.S.C. § 201, U.S. Travel Act, the USA PATRIOT Act, the U.K. Bribery Act 2010, Nigeria anti-corruption statutes and other anti-corruption, anti-bribery and anti-money laundering laws in countries in which TGH or its subsidiaries conduct activities. Anti-corruption and anti-bribery laws have been enforced aggressively in recent years and are interpreted broadly and prohibit companies and their employees and agents from promising, authorizing, making, or offering improper payments or other benefits to government officials and others in the private sector. As TGH expands its networks in Africa and internationally, its risks under these laws may increase. Noncompliance with these laws could subject us to investigations, sanctions, settlements, prosecution, other enforcement actions, disgorgement of profits, significant fines, damages, other civil and criminal penalties or injunctions, adverse media coverage, and other consequences. Any investigations, actions or sanctions could harm its business, results of operations, and financial condition.

 

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Required licenses, permits or approvals may be difficult to obtain in the countries in which TGH or its subsidiaries currently operate, and once obtained may be amended or revoked arbitrarily or may not be renewed.

 

Given TGH’s diversified offering of services, it requires approvals and licenses from national, regional, and local governmental or regulatory authorities in the countries in which we currently operate. For example, we may be required to obtain licenses to be able to continue offering or expand certain of our payment solutions, and there can be no assurance that we will obtain any such licenses in a timely manner or at all. Even if obtained, licenses are subject to review, interpretation, modification or termination by the relevant authorities. Any unfavorable interpretation or modification or any termination of a required license may significantly harm our operations in the relevant country or may require us to close down parts or all of our operations in the relevant country.

 

We can offer no assurance that the relevant authorities will not take any action that could materially and adversely affect these licenses, permits or approvals or of TGH’s ability to provide its services. TGH may experience difficulties in obtaining or maintaining some of these licenses, approvals and permits, which may require it to undertake significant efforts and incur additional expenses. If TGH or a subsidiary operates without a license, it could be subject to fines, criminal prosecution or other legal action. Any difficulties in obtaining or maintaining licenses, approvals or permits or the amendment or revocation thereof could have a material adverse effect on TGH’s business, financial condition, results of operations and prospects.

 

Item 1B. Unresolved Staff Comments.

 

Not applicable.

 

Item 2. Properties.

 

BI Intermediate (Hong Kong) Limited, a Hong Kong company (“BI Intermediate”) currently maintains a single office space in unit 1602-1603 Hong Kong. The BI Intermediate lease is a month-to-month lease with a term of three years, expiring in February 29, 2024. The rent is $12,206 (HKD 95,200) per month. The office facility in Hong Kong occupies approximately 1,680 square feet and is used for the headquarters and sales support.

 

Magpie Securities Limited, a Hong Kong company (“Magpie”) currently maintains two offices space in unit 1601 Hong Kong and in unit 2502-2503 Hong Kong. The Magpie lease is a month-to-month lease with a term of two years nine months & two years four months, respectively expiring in February 29, 2024. The rent is $6,462 (HKD 50,400) per month and $12,744 (HKD 99,400) per month, respectively. The office facility in Hong Kong occupies approximately 840 square feet, the second office space occupies approximately 1680 square feet. They are used for the headquarters, sales support, marketing, finance and operating groups.

 

Shenzhen Magpie Information Consulting Technology CO., LTD, (“Shenzhen Magpie”) a wholly owned subsidiary of BI Intermediate currently maintains office space in Rm 06-07, 20/F, Block C, Eastern New World Square, 1003 Shennan Boulevard, Futian District, Shenzhen, China . The Shenzhen Magpie lease is a month-to-month lease expiring in April 30, 2023. The rent is $2,615 (RMB 50,000 per quarter) per month.

 

Bokefa Petroleum and Gas Co. Ltd, a wholly-owned subsidiary of BI Intermediate, currently has office space in Hangzhou, Zhejiang Province. The lease is payable on a monthly basis for two years at an annual rent of US$18,405.25. The office facility in Zhejiang Province occupies and is used for sales support, marketing and finance. The company expiring in insurance biasness.

 

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Tianjin Bokefa Technology Ltd. (“Tianjin Bokefa”) is a wholly-owned subsidiary of Bokefa Petroleum and Gas Co. Ltd and currently has office space in Beijing and Tianjin. Lease are paid annually or quarterly, with an average lease term of 1.50 years and an annual rent of US$231,164.83. The office facility in Beijing occupies and is used for the headquarters, sales support, marketing, finance and operating groups. The company expiring in insurance biasness.

 

Beijing Fucheng Insurance Brokerage Co. Ltd (“Fucheng”) is a wholly owned subsidiary of Beijing YibaoTech and currently has office space in Beijing and Guangxi. Leases are paid annually or quarterly, with an average lease term of 1.70 years and an annual rent of $115,144.00. The office facility in Beijing and Guangxi occupies and is used for sales support, marketing, finance and operations. The company expiring in insurance biasness.

 

Guangxi Zhongtong Insurance Agency Co Ltd is a 60% owned subsidiary of Beijing Yibao Technology Co., Ltd. and currently has office space in various cities in Guangxi Province. Leases are paid semi-annually, quarterly or monthly, with an average lease term of 1.55 years and an annual rent of $96,318.75. The office facility in Guangxi occupies and is used for headquarters, sales support, marketing, finance and operations. The company expiring in insurance biasness.

 

All Weather Insurance Agency, Inc. (“All Weather”) is a VIE controlled subsidiary and currently has office spaces in Beijing and other different cities in China. Leases are payable annually, semi-annually, quarterly or monthly, with an average lease term of 1.55 years and an annual rent of $344,742.74. The office facility in Beijing and other cities occupies and is used for headquarters, sales support, marketing, finance and operations. The company expiring in insurance biasness.

 

TGH currently leases office space near Salt Lake City, Utah in the United States.  The lease is for 3,692 square feet of executive office space and is paid at a monthly base rate of USD $3,000.  Other costs such as IT services, etc. are added monthly in addition to the base rate.  The lease has no end date but is on a month-to-month basis. 

 

TGH also currently leases office space in London in the United Kingdom. The lease is for 13 workstations and is paid at a monthly base rate of GBP 12,500.  The lease has an end date of June 30, 2023. 

 

Tingo Mobile currently maintains office space in (Allainz Towers, 95 Broad street Marina Lagos.) and building at (93 Dr Kenneth Ojo Crescent Lingo Estate Sahara 4, Lokogoma, FCT, Abuja). The Tingo lease is a month-to-month lease expiring on December 31, 2023. The rent is N6,450,000.00 (Approximately $14,500) per month. The office facility in Nigeria occupies approximately 1128 square meters. They are used for the headquarters, sales support, marketing, finance and operating groups.

 

In Ghana, we lease a 600 square meter office space in Accra at the rate of $8,000 per month, for a 2-year period commencing November 1, 2022.  We also lease a 3-bedroom apartment in Ghana for the use of our executives and staff to use while traveling to Ghana.  This lease is for a 1-year period commencing January 6, 2023 and is for $1,600 per month.

 

In Dubai, we lease office space at the rate of 33,333 Arab Emirate Dirhams (AED) per month.  Our lease covers approximately 300 square meters and is for a 1-year period commencing December 8, 2022.

 

Item 3. Legal Proceedings.

 

There is no open legal proceeding as of December 31, 2022 and as of today. We could be involved in ordinary course litigation.

 

Item 4. Mine Safety Disclosures.

 

Not applicable.

 

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PART II

 

Item 5. Market for Registrant’s Common Equity, Related Stockholder Matters and Issuer Purchases of Equity Securities.

 

Market Information

 

Our common stock began trading on Nasdaq under the symbol “TINGO GROUP” on February 27, 2023. under the symbol “TIO”. Before that date it was trading under the symbol “MICT” from April 29, 2013. Prior to that date, there was no established public trading market for our common stock.

 

Holders

  

As of March 31, 2023, we had 163,727,382 shares of common stock outstanding and such shares were held by 282 stockholders of record. Because some of the shares of our common stock are held by brokers and other institutions on behalf of stockholders, we are unable to estimate the total number of stockholders represented by these record holders.

 

Recent Sales of Unregistered Securities

 

On December 1, 2022, TGH and MICT Fintech were added as parties to the Merger Agreement, and TINGO GROUP completed the merger of Tingo BVI Sub with and into MICT Fintech and MICT Fintech became a wholly-owned subsidiary of TGH, which is a wholly-owned subsidiary of TINGO GROUP. At the closing of Merger , the total consideration paid by TINGO GROUP to TMNA was: (i) 25,783,675 shares of common stock of TINGO GROUP, representing approximately 19.9% of the number of shares of MICT’s common stock issued and outstanding immediately prior to Closing; (ii) 2,604.28 shares of Series A Preferred Stock convertible into 26,042,808 shares of TINGO GROUP Common Stock equal to approximately 20.1% of the total issued and outstanding TINGO GROUP Common Stock immediately prior to Closing; and (iii) 33,687.21 shares of Series B Preferred Stock convertible into 336,872,138 shares of TINGO GROUP Common Stock equal to approximately 35% of TINGO GROUP’s total issued and outstanding common stock. Of the foregoing of shares of TINGO GROUP common and preferred stock issued to TMNA in connection with the Merger (the “Merger Consideration Shares”), 5% of the Merger Consideration Shares was withheld in escrow to satisfy the indemnification obligations of TMNA under the Merger Agreement.

 

The issuance of the Merger Consideration Shares pursuant to the Merger Agreement was made in a transaction not constituting a public offering and, therefore, exempt from the registration requirements of the Securities Act of 1933, as amended , in reliance on the exemption from registration provided by Section 4(a)(2) of the Securities Act and/or Regulation D promulgated thereunder.

 

Securities Authorized for Issuance under Equity Compensation Plans

 

The following table summarizes information about stock options outstanding and exercisable as of December 31, 2022:

 

   Year ended
December  31 2022
   Year ended
December 31 2021
 
   Number of
Options
   Weighted
Average
Exercise
Price
   Number of
Options
   Weighted
Average
Exercise
Price
 
                 
Options outstanding at the beginning of period:   1,558,000   $1.74    1,158,000   $    2.24 
Changes during the period:                    
Granted   -   $-    740,000   $1.97 
Exercised   -   $-    (60,000)  $1.35 
Forfeited   (968,000)  $1.68    (280,000)  $1.41 
Options outstanding at the end of the period   590,000   $1.83    1,558,000   $1.74 
Options exercisable at the end of the period   434,167   $1.74    1,118,000   $1.57 

 

The Company has warrants outstanding as follows:

 

   Warrants
Outstanding
   Warrants
Exercisable
   Average
Exercise
Price
  Remaining
Contractual Life
 
Balance, December 31, 2021   62,863,879    62,863,879   $2.854   4.5 
Granted   -        $-   - 
Forfeited   -        $-   - 
Exercised   -        $-   - 
Balance, December 31, 2022   62,863,879    62,863,879   $2.854   4.25 

 

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Related party transaction

 

On January 1, 2021, we entered into a transaction through our wholly-owned subsidiary, Bokefa, with the shareholders of Guangxi Zhongtong Insurance Agency Co., Ltd (“Guangxi Zhongtong”), a local Chinese entity with business and operations in the insurance brokerage business. Pursuant to the transaction, we loaned the Guangxi Zhongtong shareholders through a frame work loan (the “GZ Frame Work Loan”) the amount of up to RMB 40 million (approximately $6,125,000) (“GZ Frame Work Loan Amount”) which is designated, if exercised, to be used as a working capital loan for Guangxi Zhongtong. As of December 31, 2022, only RMB 8,010,000 (approximately $1,243,000) was drawn down from the GZ Frame Work Loan for working capital and approximately $522,000 was drawn down for loans to shareholders of Guangxi Zhongtong (as stipulated in the agreement). In consideration for the GZ Frame Work Loan, the parties entered into various additional agreements which include: (i) a pledge agreement pursuant to which the shareholders have pledged their shares for the benefit of  Bokefa in order to secure the GZ Frame work Loan Amount  (ii) an exclusive option agreement pursuant to which Bokefa has an exclusive option to purchase the entire issued and outstanding common shares of Guangxi Zhongtong from the shareholders (“Option Agreement”) under such terms set forth therein (which include an exercise price not less than the maximum GZ Frame Work Loan Amount and the right to convert the GZ Frame Work Loan Amount into the purchased shares) (iii) an entrustment agreement and power of attorney agreement pursuant to which the shareholders irrevocably entrusted and appointed Tianjin Bokefa as their proxy and trustee to exercise on their behalf any and all rights under applicable law and the articles of association of Guangxi Zhongtong in the shareholder’s equity interest in Guangxi Zhongtong (iv) a business cooperation agreement and a master exclusive service agreement which grants Bokefa rights related to Guangxi Zhongtong’s business and operations in order to secure repayment of the GZ Frame Work Loan Amount.

 

On July 1, 2021, Bokefa entered into a transaction with the shareholders of All Weather Insurance Agency Co., Ltd (“All Weather”),. Pursuant to the Transaction, Bokefa agreed to provide the All Weather shareholders with a frame work loan (the “AW Frame Work Loan”) for a total amount of up to RMB 30 million (approximately $4.7 million) (the “AW Frame Work Loan Amount”) which, if utilized, will be used for working capital purposes of All Weather. In consideration for the AW Frame Work Loan, the parties entered into various additional agreements which include: (i) a pledge agreement pursuant to which the shareholders pledged their shares for the benefit of Bokefa in order to secure the amount for the AW Frame Work Loan Amount (ii) an exclusive option agreement pursuant to which Bokefa has an exclusive option to purchase the entire issued and outstanding common shares of All Weather from the Shareholders (“Option Agreement”) under such terms set forth in the Option Agreement (which include an exercise price not less than the maximum AW Frame Work Loan Amount and the right to convert the AW Frame Work Loan Amount into the purchased shares) (iii) an entrustment agreement and power of attorney agreement pursuant to which the shareholders irrevocably entrusted and appointed Bokefa as their proxy and trustee to exercise on their behalf any and all rights under applicable law and the articles of association of All Weather in the shareholder’s equity interest in All Weather and (iv) a business cooperation agreement and a master exclusive service agreement which grants Bokefa rights related to All Weather’s business and operations in order to secure repayment of the AW Frame Work Loan Amount. The Transaction was structured as a VIE structure (pursuant to which we do not technically hold the shares) and as a result of our direct ownership in Bokefa and its contractual arrangements with All Weather, we are regarded as All Weather’s controlling entity and the primary beneficiary of All Weather’s business. On October 27, 2021, the entire AW Frame Work Loan Amount of $4.7 million was transferred to the shareholders and $2.7 million was transferred back to All Weather for purposes of working capital. In addition, as of December 31, 2022, the Company has outstanding receivables from the shareholder of All Weather in the sum of approximately $4,603,000. The fund was provided in 2021 in advance to a transaction between the parties pursuant to which the VIE structure described above shall be replaced by an equity structure for purchase by TINGO GROUP of such equity interests in All Weather on such commercial and other terms to  be agreed by the parties.

 

On November 13, 2019, the Company and Micronet executed a convertible loan agreement pursuant to which the Company agreed to loan to Micronet $500,000 in the aggregate (the “Convertible Loan”). The Convertible Loan bears interest at a rate of 3.95% calculated and is paid on a quarterly basis. In addition, the Convertible Loan, if not converted, shall be repaid in four equal installments, the first of such installment payable following the fifth quarter after the issuance of the Convertible Loan, with the remaining three installments due on each subsequent quarter thereafter, such that the Convertible Loan shall be repaid in full upon the lapse of 24 months from its grant. In addition, the outstanding principal balance of the Convertible Loan, and all accrued and unpaid interest, is convertible at the Company’s option, at a conversion price equal to 0.38 NIS per Micronet share. Pursuant to the Convertible Loan agreement, Micronet also agreed to issue the Company an option to purchase up to one of Micronet’s ordinary shares for each ordinary share that it issued as a result of a conversion of the Convertible Loan (“Convertible Loan Warrant”), at an exercise price of 0.60 NIS per share, exercisable for a period of 15 months. On July 5, 2020, Micronet had a reverse split where the price of the Convertible Loan changed from 0.08 NIS per Micronet share into 5.7 NIS per Micronet share. The option’s exercised price was changed from 0.6 NIS per share to 9 NIS per Micronet share. On January 1, 2020, the Convertible Loan was approved at a general meeting of the Micronet shareholders and as a result, the Convertible Loan and the transactions contemplated thereby became effective. The loan was repaid on January 4, 2022.

 

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On May 13, 2022, the Company and TMNA executed a loan agreement pursuant to which the Company agreed to loan TMNA (“Maker”) a sum of $3,000,000 (the “Note” and “Loan” respectively) . The Loan bears an annual interest of 5%. The principal balance of the Loan and any accrued and unpaid interest due under the Note shall be due and payable on May 10, 2024 (“Initial Maturity Date”). The principal balance may be prepaid at any time by Maker without penalty.

 

On July 28, 2022, the Company agreed to replace the Note with a new note (“New Note”), pursuant to which the amount of the Loan granted under the New Note is $3,500,000, with all other terms remaining in effect without a change.

 

On September 28, 2022, the Company agreed to replace the New Note with a second new note (“Second New Note”), pursuant to which the amount of the Loan granted under the New Note is $3,700,000, with all other terms remaining in effect without a change.

 

On October 6, 2022, the Company agreed to replace the Second New Note with a third new Note (“Third New Note”) in the aggregate principal amount of $23,700,000 with all other terms remaining in effect without a change.

 

On October 15, 2022, TMNA extended a loan to Tingo Mobile in the aggregate principal amount of $15,866,000 (“Tingo Mobile Loan”). The Tingo Mobile loan bears interest at 5% per annum and matures on May 10, 2024.

 

On December 21, 2022, the Company and its subsidiary, MICT Fintech executed a loan agreement pursuant to which the Company agreed to loan MICT Fintech a sum of $10,000,000, with interest charged at a rate of 10% per annum. The principal balance of the loan and any accrued and unpaid interest shall be due and payable on December 31, 2023. On the same date, MICT Fintech loaned $10,000,000 to its subsidiary, Tingo Mobile, with interest charged at a rate of 25% per annum. The principal balance of this loan and any accrued and unpaid interest shall also be due and payable on December 31, 2023. The purpose of the loan is to fund costs relating to the purchase of smartphone handsets to be provided under operating lease agreements to two key customers of Tingo Mobile and Tingo Ghana Limited, which in turn is expected to facilitate a number of business revenue streams for Tingo Mobile and Tingo Ghana Limited, including but not limited to operating lease revenues, platform transaction revenues, product sale commissions and commodity export revenues. 

 

Overview. On February 9, 2023, the Company and MICT Fintech acquired from Dozy Mmobuosi, Tingo Mobile Founder and Chief Executive Officer all of the outstanding share capital of Tingo Foods PLC (“Tingo Foods”), a Nigerian public limited company that has operated in the food processing industry since its inception in September 2022. As part of its expansion strategy, Tingo Foods plans to fit out operate a state-of-the-art food processing facility in the Delta State of Nigeria, which is expected to be the largest of its kind in Africa, and scheduled for completion by the end of the first half of 2024.

 

Consideration Provided. As consideration for Tingo Foods, we issued Mr. Mmobuosi a senior secured promissory note in the principal amount of $204 million, bearing interest at 5.0% per annum and maturing in 24 months. In addition, we also agreed to fit out the Tingo Foods facility with the necessary processing equipment and further agreed to require Tingo Foods to enter into a long-term ground lease for the facility, with lease payments to commence when the facility becomes operational.

 

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Current assets – related parties

 

   December 31,   December 31, 
   2022   2021 
(USD in thousands)        
Shareholders of All Weather  $4,603   $3,680 
Beijing Fucheng Prospect Technology Co., Ltd   267      
Loan to Tingo inc.   8,099      
Convertible loan to Micronet   -    535 
Shareholders of Guangxi Zhongtong   522    919 
   $13,491   $5,134 

 

Current liabilities – related parties

 

   December 31,   December 31, 
   2022   2021 
(USD in thousands)        
Shareholders of Bokefa Petroleum and Gas  $  308   $           - 
Shareholders of All Weather   659    4 
Shareholders of Tingo Mobile Limited   56,539    - 
   $57,506   $4 

 

Dividend Policy

 

As of the date of this Annual Report on Form 10-K, we have not paid any cash dividends to stockholders. The declaration of any future cash dividend will be at the discretion of our board of directors and will depend upon our earnings, if any, our capital requirements and financial position, the general economic conditions, and other pertinent conditions. It is our present intention not to pay any cash dividends in the foreseeable future, but rather to reinvest earnings, if any, in our business operations.

 

Item 6. Reserved

 

Item 7. Management’s Discussion and Analysis of Financial Condition and Results of Operations

 

Results of Operations

 

Item 7. Management’s Discussion and Analysis of Financial Condition and Results of Operations

 

Results of Operations

 

Overview

 

We are a holding company conducting financial technology business and agri-fintech business through our subsidiaries and entities, both wholly-owned and controlled through various VIE arrangements (“VIE entities”), which are located mainly in Africa, Southeast Asia and the Middle East.

 

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We currently operate in three segments and following the recent launches of Tingo DMCC and TingoPay, and the acquisition of Tingo Foods, we will be operating in six segments i) Fintech Verticals and Technology, comprising of our operations in China where we have 3 VIEs through which we operate our business of insurance brokerage.; ii) Online Stock Trading, comprising mainly the operation of Magpie through which we operate the business of online stock trading, located mainly in Hong Kong and Singapore; iii) Comprehensive Platform Service which includes the operations of Tingo Mobile described above and includes the operations of Tingo Mobile for the month of December; (iv) Commodity Trading Platform and Export, through Tingo DMCC, which handles the trading of agricultural commodities and the export of crops and processed foods (Tingo DMCC launched in December 2022 and commenced trading in January 2023); (v) Fintech, Payment Services and Value Added Services Super App and Merchant Services through TingoPay (which launched on February 13, 2023); and (iv) Food Processing, where crops and raw foods are processed into finished products, through Tingo Foods, (Purchase by the Company in February 2023) which commenced food processing operations in September 2022 .

 

Acquisition of Tingo Mobile

 

Our business has changed significantly in recent years and more specifically since December 1, 2022, following the completion of the Acquisition of Tingo Mobile. We have made another significant acquisition subsequent to December 31, 2022, of Tingo Foods.

 

Tingo Mobile is the leading Agri-Fintech company in Africa, with a comprehensive portfolio of innovative products, including a ‘device as a service’ smartphone and pre-loaded platform product.

 

Tingo Mobile’s Nwassa platform is believed to be Africa’s leading digital agriculture ecosystem that empowers rural farmers and agri-businesses by using proprietary technology that enables users to access markets in which they operate. Using Tingo Mobile’s ecosystem, farmers can ship produce from farms throughout Nigeria. The ecosystem provides real-time pricing, straight from the farms, which eliminates middlemen.

 

Although Tingo Mobile has a large retail subscriber base, its business model is essentially a business-to-business-to-consumer (“B2B2C”) model. Each of our current subscribers is a member of one of a small number of cooperatives with whom we have a contractual relationship, which facilitates the distribution of Tingo-branded smartphones into the various rural communities of user farmers/agri-workers.

 

Our revenues from Tingo mobile are derived from agri-tech business, inter-alia, smart phone leasing, an agri-marketplace, airtime top ups, utility payment services, bill-pay and e-wallet, insurance products and access to finance and lending services.

 

On November 10, 2022, Tingo Mobile opened a new regional head office in Ghana and launched operations there enrolling additional 2 million new customers in Ghana and on December 14, 2022, Tingo Mobile launched in Malawi as a strategic base from which to expand into East Africa and target neighboring countries such as Tanzania, Zambia, and Mozambique.

 

In addition to its agri-fintech business, on December 12, 2022, we launched our global commodities trading platform and export business (“Tingo DMCC”) from the Dubai Multi Commodity Centre (the “DMCC”), which is regarded as the world’s No.1 Free Trade Zone and a major global commodity trading centre, to facilitate purchases and export of agricultural commodities from both its existing customer base and new customers. Through the strong relationships between Tingo Mobile and the cooperatives and other parties it deals with in Nigeria and Ghana, we have secured access to significant quantities of agricultural produce for export, including wheat, millet, cassava, ginger, cashew nuts, cocoa and cotton.

 

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As a complementary step, on February 9, 2023, we acquired the entire share capital of Tingo Foods, which commenced food processing operations in September 2022, generating more than $400 million of revenue in its first four months of trading. Through Tingo Foods, we expect to enhance our ability to integrate agricultural producers into the ’seed to sale’ value chain and digital ecosystem. We also plan the development of our own food processing facility, which is expected to be completed by the end of the first half of 2024.

 

As part of our strategy to leverage our fintech platforms, infrastructure and the Tingo brand, we recently launched the TingoPay Super App in partnership with Visa. TingoPay broadens our reach outside of the agricultural sector, targeting retail customers of any age (18+) and demographic. TingoPay customers via the TingoPay Super App, can make online transactions in their domestic or foreign currencies, as well as to manage their cards, set up repeat payments and access transaction statements.

 

We are aiming to be the leading fintech and agri-fintech business in Africa, before expanding into Southeast Asia and certain other parts of the world, delivering financial inclusion and financial upliftment to our customers, including to rural farming communities through the Company’s agri-fintech platform and products.

 

Reportable Segments

 

We report our financial performance based on the following segments: Verticals and Technology, Online Stock Trading, Comprehensive Platform Service. The segment amounts included in MD&A are presented on a basis consistent with our internal management reporting. Additional information on our reportable segments is contained in Note 14 – Segment Information and Geographic Data of the Notes to Financial Statements. Following the acquisition of Tingo Mobile the Company restructure its segments and retroactively applied it to all years presented.

 

Fintech Verticals and Technology – this segment comprising of our operations in China where we have 3 VIEs through which we operate, mainly, our business of insurance brokerage.

 

Online Stock Trading – this segment comprise mainly the operation of Magpie through which we operate the business of online stock trading, located mainly in Hong Kong and Singapore.

 

Comprehensive Platform Service – This segment includes the operations of Tingo Mobile described above and includes the operations of Tingo Mobile for the month of December.

 

Results of Operations

 

Year Ended December 31, 2022 Compared to Year Ended December 31, 2021

 

We measure our performance on a consolidated basis as well as the performance of each segment.

 

Revenues

 

Net revenues for the year ended December 31, 2022 were $146,035,000, compared to $55,676,000 for the year ended December 31, 2021, an increase of $90,359,000. The increase is mainly attributed to the acquisition of Tingo Mobile on December 1 2022, which in turn created the Company’s new Comprehensive Platform Service segment.

 

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SEGMENT RESULTS OF OPERATIONS

 

(In Thousands, except percentages)  2022   2021   Percentage Change 
             
Revenue            
             
Fintech Verticals and Technology  $57,364   $54,932    4%
Online Stock Trading   55    18    205%
Comprehensive Platform Service   88,616    -    -%
Mobile Resource Management        726    -%
                
Total  $146,035   $55,676    262%
                
Loss from operating               
                
Verticals and technology  $(12,538)  $(9,648)     
Corporate and others    (26,203)   (20,744)     
Online Stock Trading   (9,829)   (7,504)     
Comprehensive Platform Service   36,778    -      
Total  $(11,792)  $(37,896)     

 

Reportable Segments

 

Fiscal Year 2022 Compared with Fiscal Year 2021

 

Fintech Verticals and Technology

 

  Net revenues related to the fintech business and insurance agency business for the year ended December 31, 2022 was $57,364,000, as compared to $54,932,000 revenues for the year ended December 31, 2021, and reflects an increase of $2,432,000, for the year ended December 31, 2022 as compared to the same period last year. The increase is attributed to acquisition of All Weather which we started to consolidate their financial results and business lines from the consummation of the transaction on July 1, 2021 (as further detailed above),and was offset by decrease in revenues from Guangxi Zhongtong and Tianjing Bokefa as a result of the lockdown in certain cities and regions during 2022 due to COVID-19.

 

  Cost of revenues for the year ended December 31, 2022 was $47,837,000, as compared to $45,740,000 for the year ended December 31, 2021, reflecting an increase of $2,097,000. The increase is attributable to costs associated to the operations of All Weather which we started to consolidate on July 1, 2021 and was offset by decrease in Cost of revenues from Guangxi Zhongtong as a result of the lockdown in certain cities and regions during 2022 due to COVID-19.

 

Gross profit for the year ended December 31, 2022 was $9,527,000, as compared to $9,192,000 Gross profit for the year ended December 31, 2021, reflecting an increase of $335,000. The increase is attributable to the introduced insurance products with higher gross margins in 2022 as compared to last year, including engineering insurance and liability insurance. Therefore, the change in product mix resulted in higher gross margins.

 

Loss from operations related to the Fintech business and insurance agency business for the year ended December 31, 2022 was $12,538,000, as compared to $9,648,000 for the year ended December 31, 2021, and reflects an increase of $2,890,000 or 30%, for the year ended December 31, 2022 as compared to the same period last year. The increase is attributed to increase in selling and marketing expenses and increase in research and development expenses as further detailed below.

 

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Online Stock Trading

 

Net revenues related to the online stock trading platform segment for the year ended December 31, 2022 was $55,000, as compared to $18,000 for the year ended December 31, 2021, an increase of $37,000 as compared to last period. The increase is attributed to the launch of Magpie Invest, a global stock trading app, on September 15, 2021.

 

Cost of revenues related to the online stock trading platform segment for the year ended December 31, 2022 was $65,000 as compared to nil in 2021. The increase is attributed to the broker applied minimum monthly brokerage charge in year 2022.

 

Gross loss for the year ended December 31, 2022 was $10,000, as compared to gross profit of $18,000 for the year ended December 31, 2021, and reflects a decrease of $28,000. The decrease is attributed to the fact that the revenues can’t cover the broker monthly minimum charges.

 

  Loss from operations related to the online stock trading platform segment for the year ended December 31, 2022 was $9,829,000, as compared to $7,504,000 for the year ended December 31, 2021, and reflects an increase of $2,325,000 for the year ended December 31, 2022 as compared to the same period last year. The increase is attributed to increase in service charges amounts to $2,240,000.

 

Comprehensive AgriFtinech Platform Service

 

Net revenues for the year ended December 31, 2022 was $88,616,000, as compared to nil for the year ended December 31, 2021.

 

The increase is attributable to the acquisition of Tingo Mobile which was completed on December 1, 2022. We consolidate the operation of Tingo Mobile for one month and we expect revenues to increase significantly from 2023 when such operations are consolidated for a full year. The revenues of Tingo Mobile are also expected to increase due to its geographical expansion and the significant trade partnerships entered into during Q4 2022.

 

Cost of revenues for the year ended December 31, 2022 was $33,341,000, an increase of $33,341,000. The increase relates to the cost of revenues of Tingo Mobile since its acquisition and consolidation on December 1, 2022.

 

Gross profit for the year ended December 31, 2022 was $55,275,000 representing 62% margin. We believe that such margins will increase as a higher proportion of the revenues in Tingo Mobile are expected to be generated from its Nwassa digital marketplace and services.

 

  Gain from operations related to the Comprehensive AgriFtinech Platform Service segment for the year ended December 31, 2022 was $36,778,000. The increase is attributable to the acquisition of Tingo Mobile which was completed on December 1, 2022. We consolidate the operation of Tingo Mobile for one month.

 

Net revenues related to the Mobile Resource Management (MRM (Micronet)) for the year ended December 31, 2022 were $0, as compared to $726,000 for the year ended December 31, 2021 and reflects a decrease of $726,000 for the year ended December 31, 2022. MRM revenues were solely contributed by Micronet. The changes is attributed to the consolidation of the MRM Segment (Micronet) results as of the second quarter of 2020 and the dilution in our ownership and voting interests in Micronet, causing us to cease consolidating Micronet’s operations in our financial statements commencing from May 9, 2021.

 

Cost of revenues

 

Total Cost of revenues for the year ended December 31, 2022 was $81,243,000, compared to $46,456,000 for the year ended December 31, 2021. This represents an increase of $34,787,000, for the year ended December 31, 2022 as compared to the same period last year.

 

There was no Cost of revenues related to the MRM segment for the year ended December 31, 2022, as compared to $716,000 for the year ended December 31, 2021. The decrease is attributed to the dilution in our ownership and voting interests in Micronet, causing us to cease consolidating Micronet’s operations in our financial statements from May 9, 2021 through December 31, 2022. 

 

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Gross profit

 

Gross profit for the year ended December 31, 2022 was $64,792,000, representing 44% of the revenues. This is in comparison to gross profit of $9,220,000, representing 16% of the revenues for the year ended December 31, 2021 and reflects an increase of $55,572,000, for the year ended December 31, 2022 as compared to the same period last year. The increase is mainly attributable to the acquisition of Tingo Mobile, as well as to the development of our fintech business and insurance agency business.

 

There was no Gross profit related to the MRM (Micronet) segment for the year ended December 31, 2022, as compared to gross loss of $10,000 for the year ended December 31, 2021 and reflects a decrease of $10,000 for the year ended December 31, 2022. MRM Gross profit were. The change is attributed to the dilution in our ownership and voting interests in Micronet, causing us to cease consolidating Micronet’s operations in our financial statements from May 9, 2021

 

Selling and Marketing Expenses

 

Selling and Marketing expenses are part of operating expenses. Selling and marketing cost for the year ended December 31, 2022, was $11,140,000, as compared to $6,814,000 for year ended December 30, 2021. This represents an increase of $4,326,000, for the year ended December 31, 2022 as compared to the same period last year. The increase is mainly the result of : (i) an increase of $1,469,000 related to the operations of Tingo Mobile and; (ii) an increase of marketing charges related to the insurance brokerage within the Fintech Verticals and Technology segment, in an amount of $3,483,000 and; (iii) a decrease of $601,000 related to Online Stock trading segment. As global stock markets suffered sell-offs and high levels of volatility, resulting in reduced levels of retail investment, Magpie significantly reduces its marketing activity and instead focused on pivoting its business to a B2B model and to compliment the established business model of Tingo Mobile.

 

General and Administrative Expenses

 

General and administrative expenses are part of operating expenses. General and administrative expenses for the year ended December 31, 2022 was $58,165,000, compared to $36,488,000 for the year ended December 31, 2021. This represents an increase of $21,677,000, which is due in the main to (i) nonrecurring merger costs of $9,573,000, as noted above, (ii) an increase in salaries associated with the operations of the Fintech Verticals and Technology segment, whereby in 2021 we completed acquisitions of several insurance businesses that were only consolidated for part of the year, from the date of acquisition, whereas a full year of costs is included in 2022. The wages and salaries for the year ended December 31, 2022 also includes $3,603,000 of costs relating to Tingo Mobile; (iii) an increase in depreciation of $1,693,000, which relates in the main to Tingo Mobile; (iv) a decrease in share based expenses to directors and employees in the of amount of $4,633,000; and (v) an increase in service charges, mainly relating to the Online Stock Trading segment as the year ended December 31, 2021 only included such costs from the date of launch in September 2021, whereas the year ended December 31, 2022 includes a full year of costs. The increase in service charges amounts to $2,240,000.

 

Research and Development Expenses

 

Research and development costs, includes mainly salaries, materials and sub-contractors. R&D expenses for the year ended December 31, 2022 was $1,689,000, compared to $889,000 for the year ended December 31, 2021 an increase of $800,000. On one hand, we have an increase of $1,145,000 in expenses related to the acquisition of Zongtong and All weather in 2021. On the other hand, we have a decrease of $231,000 from deconsolidation of the MRM segment (Micronet) results with the company from the second quarter of 2021, and because the global stock markets trading keep going downwards, we can see a decrease of $114,000 from research and development expenses.

 

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Loss from Operations

 

Our loss from operations for the year ended December 31, 2022 was $11,792,000, compared to loss from operations of $37,896,000, for the year ended December 31, 2021. The decrease in loss from operations is mainly attributable to the profitable operations of Tingo mobile that we consolidated in December 1, 2022 for the first time.

 

Finance Income (Expense), Net

 

Finance income (expenses), net for the year ended December 31, 2022, was $(750,000) compared to $ 395,000 for the year ended December 31, 2021a decrease of $1,145,000. The decrease in financial expenses, net for the year ended December 31, 2022, is primarily due to a net favorable change in exchange rates.

 

Net Loss Attributed to TINGO GROUP, Inc.

 

Our net loss for the year ended December 31, 2022, was $47,069,000, compared to $36,428,000, for the year ended December 31, 2021 an increase of $10,641,000. The increase for the year ended December 31, 2022 is mainly a result of an increase in tax expenses relating to the acquisition and consolidation of Tingo.

 

Liquidity and Capital Resources 

 

We have funded our operations with proceeds from the sales of shares of our common stock, which we undertook in November 2020 and February and March 2021. As of December 31, 2022, our total cash and cash equivalents balance was $500,316,000, as compared to $96,619,000 as of December 31, 2021. This reflects an increase of $403,697,000 in cash and cash equivalents which relates in the main to the acquisition and consolidation of Tingo Mobile on December 1, 2022, which had accumulated such cash through its trading activities. Notwithstanding the sizeable cash balance held by Tingo Mobile, it should be noted that the majority of the cash is held at its bank in Nigeria, and there are certain foreign exchange restrictions in place that limit the conversion of such cash into US Dollars, and into other currencies from Naira. As stated in numerous recent Company announcements, we are progressing a strategy to dollarize the business of Tingo Mobile, including through the Tingo DMCC commodity trading platform and export business; expansion into other countries that have freely tradeable currency, such as Ghana, Malawi and Dubai; and through the launch of TingoPay in partnership with Visa.

 

The Company’s operations are cash generative following the acquisition of Tingo Mobile Limited. There is however the possibility that the Company may seek to raise external financing in the future, if required to fund its growth plans and expansion strategy

 

As stated above, the majority of the cash held by Tingo in Nigeria is not freely transferable inside the group. Even taking into account the foreign exchange restrictions on the cash in Tingo Mobile, based on our current operating plan we believe that our cash, cash equivalents, as of December 31, 2022, will be sufficient to fund our currently projected operating expenses for at least the next 12 months.

 

Sales of our Securities

 

On February 11, 2021, the Company announced that it has entered into a securities purchase agreement (the “February Purchase Agreement”) with certain institutional investors for the sale of (i) 22,471,904 shares of common stock, (ii) 22,471,904 Series A warrants to purchase 22,471,904 shares of common stock and (iii) 11,235,952 Series B warrants to purchase 11,235,952 shares of common stock at a combined purchase price of $2.67 (the “February Offering”). The gross proceeds to the Company from the February Offering were expected to be approximately $60.0 million. The Series A warrants are exercisable nine months after the date of issuance, have an exercise price of $2.80 per share and will expire five and one-half years from the date of issuance. The Series B warrants are exercisable nine months after the date of issuance, have an exercise price of $2.80 per share and will expire three and one-half years from the date of issuance. The Company received net proceeds of $54.0 million on February 16, 2021 after deducting the placement agent’s fees and other expenses.

 

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On March 2, 2021, the Company entered into a securities purchase agreement (the “March Purchase Agreement”) with certain investors for the purpose of raising approximately $54.0 million in gross proceeds for the Company. Pursuant to the terms of the March Purchase Agreement, the Company agreed to sell, in a registered direct offering, an aggregate of 19,285,715 shares of the Company’s common stock, par value $0.001 per share, at a purchase price of $2.675 per Share and in a concurrent private placement, warrants to purchase an aggregate of 19,285,715 shares of common stock, at a purchase price of $0.125 per warrant, for a combined purchase price per share and warrant of $2.80 which was priced at the market under Nasdaq rules. The warrants are immediately exercisable at an exercise price of $2.80 per share, subject to adjustment, and expire five years after the issuance date. The closing date for the March Purchase Agreement was on March 4, 2021. The Company received net proceeds of $48.69 million on March 4, 2021, after deducting the placement agent’s fees and other expenses.

 

Contractual Obligations

 

We have certain fixed contractual obligations and commitments that include future estimated payments. Changes in our business needs, cancellation provisions, and other factors may result in actual payments differing from the estimates. The following tables summarize our contractual obligations as of December 31, 2022, and the effect these obligations are expected to have on our liquidity and cash flows in future periods.

 

Contractual Obligation:  Total   Less than
1 year
   1-3 year   3-5 year   5+ year 
Office leases commitment   2,246,040    1,287,995    904,174    53,871    - 
Short-term debt obligations Commitment   837,442    460,477    376,965    -    - 
Services Contract Commitment   260,975    260,975    -    -    - 
Total   3,344,457    2,009,447    1,281,139    53,871    - 

 

Loans Provided by TINGO GROUP

 

On May 13, 2022, the Company and TMNA executed a loan agreement pursuant to which the Company agreed to loan TMNA (“Maker”) a sum of $3,000,000 (the “Note” and “Loan” respectively) . The Loan bears an annual interest of 5%. The principal balance of the Loan and any accrued and unpaid interest due under the Note shall be due and payable on May 10, 2024 (“Initial Maturity Date”). The principal balance may be prepaid at any time by Maker without penalty.

 

On July 28, 2022, the Company agreed to replace the Note with a new note (“New Note”), pursuant to which the amount of the Loan granted under the New Note is $3,500,000, with all other terms remaining in effect without a change.

 

On September 28, 2022, the Company agreed to replace the New Note with a second new note (“Second New Note”), pursuant to which the amount of the Loan granted under the New Note is $3,700,000, with all other terms remaining in effect without a change.

 

On October 6, 2022, the Company agreed to replace the Second New Note with a third new Note (“Third New Note”) in the aggregate principal amount of $23,700,000 with all other terms remaining in effect without a change.

 

On December 21, 2022, the Company and its subsidiary, MICT Fintech executed a loan agreement pursuant to which the Company agreed to loan MICT Fintech a sum of $10,000,000, with interest charged at a rate of 10% per annum. The principal balance of the loan and any accrued and unpaid interest shall be due and payable on December 31, 2023. On the same date, MICT Fintech loaned $10,000,000 to its subsidiary, Tingo Mobile, with interest charged at a rate of 25% per annum. The principal balance of this loan and any accrued and unpaid interest shall also be due and payable on December 31, 2023. The purpose of the loan is to fund costs relating to the purchase of smartphone handsets to be provided under operating lease agreements to two key customers of Tingo Mobile and Tingo Ghana Limited, which in turn is expected to facilitate a number of business revenue streams for Tingo Mobile and Tingo Ghana Limited, including but not limited to operating lease revenues, platform transaction revenues, product sale commissions and commodity export revenues. 

 

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Debt Repayment

 

As of December 31, 2022, the Company had short-term loans from others of $460,000 comprised as follows: $286,000 loans of All Weather Insurance Agency bear interest of  0%,  will be repaid before December 31, 2023. The $174,000 loans of Zhongtong Insurance that bear interest of 10% will be repaid before December 31, 2023.

 

As of December 31, 2021, the Company had short-term loans from others of $1,657,000 comprised as follows: $1,155,000 loans of All Weather Insurance Agency bear interest of 0%, of which $1,088,000 will be repaid on December 31, 2022 and $67,000 will be repaid on August 3, 2022. The $314,000 loans of Zhongtong Insurance that bear interest of 10% has been repaid subsequently on January 11, 2022, and the remaining loans of Zhongtong Insurance in amount of $188,000 loans that bear interest of 10% will be repaid before December 31, 2022.

 

As of December 31, 2022, the Company had long-term loans from others of $377,000 comprised as follows: $377,000 loans of All Weather Insurance Agency bear interest of 0%, will be repaid before December 31, 2025.

 

For the year ended December 31, 2022, our working capital was $265,781,000, compared to $102,107,000 for the year ended December 31, 2021. The increase is mainly due to the increase in our cash and trade account receivable, in relation to our acquisition and consolidation of Tingo Mobile on December 1, 2022, as described above. Based on our current business plan, and in view of our cash balance following the completion of the acquisition of Tingo Mobile, we anticipate that our cash balances will be sufficient to permit us to conduct our operations and carry out our contemplated business plans for at least the next 12 months from the date of this Report.

 

   For the year Ended
December 31,
 
   2022   2021 
   USD in
thousands
   USD in
thousands
 
Net Cash provided by (used in) Operating Activities  $46,011   $(31,336)
Net Cash provided by (used in) Investing Activities   366,961    (8,853)
Net Cash provided by (used in) Financing Activities   (10,715)   109,602 
Translation adjustment on cash and restricted cash   1,256    97 
Cash and cash equivalents and restricted cash at Beginning of Period   99,036    29,526 
Cash and cash equivalents and restricted cash at end of period  $502,549   $99,036 

 

Cash Flow from Operating Activities

 

For the year ended December 31, 2022, our cash flows from operating activities related to net loss adjusted for non-cash expenses, primarily depreciation and amortization and share based compensation in the amount of $(47,755,000), as well as (1) changes in deferred tax, net of $(28,759,000) which relates in the main to the deferred tax arising on the Purchase Price Allocation for the acquisition of Tingo Mobile; and (2) effects of changes in working capital in the amount of $30,503,000, which in the main relate to the acquisition and consolidation of Tingo Mobile, which completed on December 1, 2022.

 

 For the year ended December 31, 2021, our cash flows from operating activities related to net loss adjusted for non-cash expenses, primarily depreciation and amortization and share based compensation in the amount of $(18,979,000), as well as (1) changes in deferred tax, net of $2,539,000, and (2) effects of changes in working capital in the amount of $47,776,000.

 

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Cash Flow from Investing Activities

 

For the year ended December 31, 2022, we had net cash inflows arising from investing activities of $366,961,000, which consisted of (1) net cash used in investing of purchase of property and equipment of $39,645,000 and (2) cash held by at Tingo Mobile of $(430,563,000) which was consolidated into the Company from the completion of its acquisition on December 1, 2022 and (3) repayment of loan back from Micronet of $(534,000) (4) the issuance of a loan to Tingo Inc of $23,700,000 (5) loan to related party of $791,000. 

 

For the year ended December 31, 2021, we had net cash used in investing activities of $8,853,000, which consisted of (1) deconsolidation of Micronet operations of $2,466,000, (2) loan to related party of $4,265,000, (3) purchase of property and equipment of $689,000 and (4) investment in new companies and expansion of business activities of $913,000 and (5) additional intangible assets of $520,000.

 

Cash Flow from Financing Activities

 

For the year ended December 31, 2022, we had net cash provided by financing activities of $10,715,000, which consisted of: (1) repayment of loan to related party and others of $10,859,000 and (2) short term loan from bank of $(144,000).

 

For the year ended December 31, 2021, we had net cash provided by financing activities of $109,602,000, which primarily consisted of: (1) Proceeds from issuance of shares and warrants of $(105,366,000) from our public offering in February and March 2021; (2) proceeds from the exercise of warrants and options of $(2,554,000); (3) Repayment of current maturity of long-term bank loans of $195,000 and (4) receipt of loan from others of $(1,657,000) and (5) loan repayment from Micronet of $(220,000).

 

Financing Needs

 

The Company’s operations are cash generative following the acquisition of Tingo Mobile Limited. There is however the possibility that the Company may seek to raise external financing in the future, if required to fund its growth plans and expansion strategy, for example in relation to financing Tingo Foods’ share of the build and fit out of its new food processing facility.

 

In the event that any external financing is required to cover Tingo Foods’ share of the build and fit out of the new food processing facility, which is estimated at $500 million, the Company will seek to do so by raising debt funding.

 

Based on our current business plan, and in view of our cash balance following the Merger transaction described in this Item 2, we anticipate that our cash balances will be sufficient to permit us to conduct our operations and carry out our contemplated business plans for at least the next 12 months from the date of this Report.

 

Critical Accounting Policies and Estimates

 

In the preparation of consolidated financial statements in conformity with U.S. generally accepted accounting principles (“GAAP”), we are required to make estimates and judgments that affect the reported amounts of assets, liabilities, revenues, expenses, and the related disclosures. Our management reviews these estimates and assumptions on an ongoing basis. While we believe the estimates and judgments we use in preparing our consolidated financial statements are reasonable and appropriate, they are subject to future events and uncertainties regarding their outcome; therefore, actual results may materially differ from these estimates. If actual amounts are ultimately different from our estimates, the revisions are included in our results of operations for the period in which the actual amounts first become known. We consider the following items in the consolidated financial statements to require significant estimation or judgment. See Note 2 to our consolidated financial statements for a summary of our significant accounting policies.

 

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Acquisition Accounting

 

We have made significant acquisitions in the past and we intend to make additional acquisitions in the future that meet our selection criteria with an objective of increasing our revenues, improving our profitability, diversifying our end market and geographic exposure and strengthening our competitive position. The assets acquired and liabilities assumed are recorded based on their respective fair values at the date of acquisition. Such fair market value assessments require judgments and estimates that can be affected by various factors over time, which may cause final amounts to differ materially from original estimates. The significant judgments include the estimation of future cash flows, which are dependent on forecasts; the estimation of a long-term rate of growth; the estimation of the useful life over which cash flows will occur; and the determination of a risk-adjusted weighted average cost of capital. When appropriate, our estimates of the fair values of assets and liabilities acquired include assistance from independent third-party appraisal firms. The judgments made in determining the estimated fair value assigned to the assets acquired, as well as the estimated life of the assets, can materially impact net income in periods subsequent to the acquisition through depreciation and amortization, and in certain instances through impairment charges, if the asset becomes impaired in the future. As discussed below, we regularly review for impairments.

 

New and used equipment inventories, long-lived assets (primarily rental equipment), goodwill, and other intangible assets generally represent the largest component of our acquisitions. Inventories acquired in the transaction are valued at fair value, which approximates a market participant’s estimated selling price adjusted for (1) costs to sell and (2) a reasonable profit allowance. In addition to long-lived assets, we also acquire other assets and assume liabilities. These other assets and liabilities typically include, but are not limited to, accounts receivable, accounts payable, floor plans payable and other working capital items.

 

Because of their short-term nature, the fair values of these assets and liabilities generally approximate the carrying values reflected on the acquired entities balance sheets. However, when appropriate, we adjust these carrying values for factors such as collectability, existence, and consistency with Company accounting policies.

 

We record as goodwill the excess of the consideration transferred over the fair values of the identifiable net assets acquired. The intangible assets that we have acquired consist of tradenames, technology related intangibles and customer relationships. A tradename has a fair value equal to the present value of the royalty income attributable to it. The royalty income attributable to a tradename represents the hypothetical cost savings that are derived from owning the tradename instead of paying royalties to license the tradename from another owner.

 

Non-GAAP Financial Measures

 

In addition to providing financial measurements based on generally accepted accounting principles in the U.S., or GAAP, we provide additional financial metrics that are not prepared in accordance with GAAP, or non-GAAP financial measures. Management uses non-GAAP financial measures, in addition to GAAP financial measures, to understand and compare operating results across accounting periods, for financial and operational decision making, for planning and forecasting purposes and to evaluate our financial performance.

 

Management believes that these non-GAAP financial measures reflect our ongoing business in a manner that allows for meaningful comparisons and analysis of trends in our business, as they exclude expenses and gains that are not reflective of our ongoing operating results. Management also believes that these non-GAAP financial measures provide useful information to investors in understanding and evaluating our operating results and future prospects in the same manner as management and in comparing financial results across accounting periods and to those of peer companies.

 

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The non-GAAP financial measures do not replace the presentation of our GAAP financial results and should only be used as a supplement to, not as a substitute for, our financial results presented in accordance with GAAP.

 

The non-GAAP adjustments, and the basis for excluding them from non-GAAP financial measures, are outlined below:

 

Amortization of acquired intangible assets - We are required to amortize the intangible assets, included in our GAAP financial statements, related to the Transaction and the Acquisition. The amount of an acquisition’s purchase price allocated to intangible assets and term of its related amortization are unique to these transactions. The amortization of acquired intangible assets are non-cash charges. We believe that such charges do not reflect our operational performance. Therefore, we exclude amortization of acquired intangible assets to provide investors with a consistent basis for comparing pre- and post-transaction operating results.

 

Stock-based compensation is share based awards granted to certain individuals. They are non-cash and affected by our historical stock prices which are irrelevant to forward-looking analyses and are not necessarily linked to our operational performance.

 

Expenses related to the purchase of a business - These expenses relate directly to the purchase of the Tingo Mobile transaction and consist mainly of legal and accounting fees, insurance fees and other consultants. We believe that these expenses do not reflect our operational performance. Therefore, we exclude them to provide investors with a consistent basis for comparing pre- and post-Mobile Business purchase operating results.

 

Expenses related to settlement agreement - These expenses relate directly to the settlement agreement with Maxim and Sunrise. More information can be found in the legal proceeding part.

 

The following table reconciles, for the periods presented, GAAP net loss attributable to TINGO GROUP to non-GAAP net income attributable to TINGO GROUP. and GAAP loss per diluted share attributable to TINGO GROUP to non-GAAP net loss per diluted share attributable to TINGO GROUP.:

 

    Year ended
December 31,
 
    (Dollars in Thousands,
other than share and
per share amounts)
 
    2022     2021  
GAAP net loss attributable to TINGO GROUP, Inc.   $ (47,069 )   $ (36,428 )
Amortization of acquired intangible assets     5,590       2,925  
Stock-based compensation     6,615       10,580  
Expenses related to purchase of a business     9,574       -  
One time expenses relates to settlement agreement     143       303  
Income tax effect of above non-GAAP adjustments     (1,543 )     (773 )
Total Non-GAAP net loss attributable to TINGO GROUP, Inc.   $ (26,690 )   $ (23,393 )
                 
Non-GAAP net loss per diluted share attributable to TINGO GROUP, Inc.   $ (0.21 )   $ (0.20 )
Weighted average common shares outstanding used in per share calculations     129,345,764       112,562,199  
GAAP net loss per diluted share attributable to TINGO GROUP, Inc.   $ (0.36 )   $ (0.32 )
Weighted average common shares outstanding used in per share calculations     129,345,764       112,562,199  

 

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Item 7A.  Quantitative and Qualitative Disclosures about Market Risk.

 

Not applicable.

 

Item 8. Financial Statements and Supplementary Data.

 

The Report of Independent Registered Public Accounting Firm, the Consolidated Financial Statements and the Notes to Consolidated Financial Statements appearing on pages F-1 to F-59 of this Annual Report are incorporated herein by reference.

 

Item 9. Changes in and Disagreements with Accountants on Accounting and Financial Disclosure.

 

On October 3, 2022, Friedman LLP notified the Company that it resigned its position as external auditor of the Company. On October 6, 2022, the Audit Committee approved the appointment of Brightman Almagor Zohar & Co., certified public accountants, a firm in the Deloitte global network (“Deloitte Israel”) as the Company’s new independent registered public accounting firm, effective as of such date. As described below, the change in independent registered public accounting firm is not the result of any disagreement with Friedman LLP.

 

On June 17, 2022, the audit report of Friedman LLP on the financial statements of the Company, as of and for the year ended December 31, 2021, did not contain an adverse opinion or a disclaimer of opinion, nor was it qualified or modified as to uncertainty, audit scope, or accounting principles.

 

During the year ended December 31, 2021 and through the subsequent interim period preceding the expiry of Friedman LLP engagement as external auditor, there were: (i) no disagreements with Friedman LLP on any matter of accounting principles or practices, financial statement disclosure, or auditing scope or procedure, which if not resolved to Friedman LLP’s satisfaction would have caused it to make reference thereto in connection with its reports on the financial statements for such years. (ii) no reportable events of the type described in Item 304(a)(1)(v) of Regulation S-K.  

 

During the years ended December 31, 2021 and through the subsequent interim period preceding Deloitte Israel’s appointment as external auditor neither the Company nor anyone on its behalf consulted with Deloitte Israel with respect to any of (i) the application of accounting principles to a specified transaction, either completed or proposed; (ii) the type of audit opinion that might be rendered on the Company’s financial statements; or (iii) any matter that was either the subject of a disagreement (as defined in Item 304(a)(1)(iv) of Regulation S-K) or an event of the type described in Item 304(a)(2)(i) and (ii) of Regulation S-K.

 

The Company provided Friedman LLP with a copy of the foregoing disclosure and requested Friedman LLP to furnish the Company with a letter addressed to the Securities and Exchange Commission stating whether it agrees with the statements made therein. A copy of such letter, dated October 7, 2022, furnished by Friedman LLP is filed as Exhibit 10.19 to this Annual Report on Form 10-K.

 

Item 9A.  Controls and Procedures

 

Evaluation of Disclosure Controls and Procedures.

 

Disclosure controls and procedures are designed to ensure that information required to be disclosed in our reports filed or submitted under the Exchange Act is recorded, processed, summarized, and reported within the time periods specified in the SEC’s rules and forms. Disclosure controls and procedures include, without limitation, controls and procedures designed to ensure that information required to be disclosed in our reports filed or submitted under the Exchange Act is accumulated and communicated to management, including our Chief Executive Officer and our Chief Financial Officer (together, the “Certifying Officers”), or persons performing similar functions, as appropriate, to allow timely decisions regarding required disclosure. Under the supervision and with the participation of our management, including our Certifying Officers, we carried out an evaluation of the effectiveness of the design and operation of our disclosure controls and procedures as defined in Rules 13a-15(e) and 15d-15(e) under the Exchange Act. Based on this evaluation, the Certifying Officers concluded that the Company’s disclosure controls and procedures at December 31, 2022 were effective.

 

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Management’s Report on Internal Control Over Financial Reporting 

 

Our management is responsible for establishing and maintaining adequate internal control over financial reporting. Our internal control over financial reporting is designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of our consolidated financial statements for external reporting purposes in accordance with U.S. GAAP. Our internal control over financial reporting includes those policies and procedures that:

 

(1) pertain to the maintenance of records that, in reasonable detail, accurately and fairly reflect the transactions and dispositions of the assets of our Company;

 

(2) provide reasonable assurance that transactions are recorded as necessary to permit the preparation of consolidated financial statements in accordance with U.S. GAAP, and that our receipts and expenditures are being made only in accordance with authorizations of our management and directors; and

 

(3) provide reasonable assurance regarding prevention or timely detection of any unauthorized acquisition, use or disposition of our assets that could have a material effect on the consolidated financial statements.

 

Internal control over financial reporting may not prevent or detect errors or misstatements in our consolidated financial statements. Also, projections of any evaluation of effectiveness to future periods are subject to the risk that controls may become inadequate because of changes in conditions, or that the degree or compliance with the policies or procedures may deteriorate.

 

Management, including the Certifying officers has assessed the effectiveness of the Company’s internal control over financial reporting as of December 31, 2022 based on the criteria set forth in 2013 issued by the Committee of Sponsoring Organizations of the Treadway Commission. Based upon its review, the Certifying Officers concluded that as of December 31, 2022, the Company’s internal control over financial reporting was effective.

 

As permitted by SEC guidance, management has excluded from its assessment of internal control over financial reporting the internal controls related to Tingo Mobile acquired on December 1, 2022. As of December 31, 2022, and for the year ended December 31, 2022, total assets and total operating revenues excluded from management’s assessment of internal control over financial reporting related to this Tingo Mobile represented approximately 97% and 61% of the Company’s consolidated total assets and total operating revenues, respectively.

 

Remediation of Previously Reported Material Weakness

 

As previously disclosed in Item 9A of our Annual Reports on Form10-K for the year ended December 31, 2021, management identified five material weaknesses related to our Information Technology, consisting of (i) failure to implement certain formal risk and vulnerability assessment procedures, (ii) failure to upgrade certain operating systems and security patches on certain of our computers, (iii) failure to design and implement certain effective data backup and recovery management systems, (iv) failure to design and implement effective access to systems and data and (v) failure to have antivirus software running on certain of our computers; and one material weakness related to not having sufficient full-time personnel with appropriate levels of accounting knowledge and expertise.

 

During 2022, the Company performed the following remediation activities: With respect to the need to implement certain formal risk and vulnerability assessment procedures, the Company has adopted in its systems various new procedures to identify formal risk and conduct vulnerability assessment procedures; The Company has also upgraded its operating systems and installed security patches and antivirus software on its main financial systems; the Company is in the process of implementing up to date effective data backup and recovery process which will be completed during 2023 including the formation of a data room for the use of our entire group; Company has improved its ability to effectively access its systems and data mainly to its financial systems via adoption of an applicable authorization process. As of the date of this report, the Company has initiated the implementation of a proper firewall software to protect its systems and data. In addition, in order to improve and maintain appropriate levels of accounting knowledge and expertise, the Company hired additional staff in its finance department, conducted a mapping of its processes and controls that support financial reporting and performed tests to evaluate the effectiveness of the controls. As a result, management concluded that each of the previously reported material weaknesses was remediated as of December 31, 2022.

 

Changes in Internal Control Over Financial Reporting

 

Except for the changes noted above in connection with the initiatives to remediate material weaknesses, there have been no other changes in our internal control over financial reporting (as such term is defined in Rules 13a-15(f) and 15d-15(f) of the Exchange Act) during the most recent fiscal quarter that have materially affected, or are reasonably likely to materially affect, our internal control over financial reporting.

 

Item 9B. Other Information.

 

None.

 

Item 9C. Disclosure Regarding Foreign Jurisdictions That Prevent Inspections

 

Not applicable.

 

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PART III

 

Item 10. Directors, Executive Officers and Corporate Governance.

 

The following table sets forth the name, age and position of each current director and executive officer of the Company.

 

Name   Age     Position
Darren Mercer   59     Chief Executive Officer and Director
Hao (Kevin) Chen   41     Chief Financial Officer
Moran Amran   42     Controller
Yehezkel (Chezy) Ofir (1)(2)(3)(4)   70     Director
Robert Benton (1)(2)(3)   66     Director
John McMillan Scott (1)(2)(3)   76     Director
Sir David Trippier, R.D.,J.P.,D.L(1)(2)(3)   76     Director
John J. Brown   64     Director
​Kenneth Denos   55     Director, Executive Vice President, General Counsel of Tingo Group Holdings LLC, a wholly-owned subsidiary of the Company

 

(1)A member of the Audit Committee.
(2)A member of the Compensation Committee.
(3)A member of the Corporate Governance/Nominating Committee.
(4)On February 7, 2023, Yehezkel (Chezy) Ofir resigned from the board of directors effective immediately. The reason for Mr. Ofir’s resignation is to comply with the terms of the Amended Agreement and Plan of Merger with Tingo, Inc. and Tingo Mobile Limited and not in connection with any disagreements with the Company on any matter.

 

The following is a brief account of the business experience of each of our directors and executive officers during the past five years or more.

 

Darren Mercer. Mr. Mercer has served on our Board since November 2019 and was appointed as our Interim Chief Executive Officer in April 2020, and subsequently, our Chief Executive Officer. Mr. Mercer began his career as an investment banker in the 1980s, holding senior roles in institutional equity sales and corporate brokering at Henry Cooke Lumsden PLC and Albert E. Sharp LLC. In 2007, Mr. Mercer founded BNN and has served as its Chief Executive Officer since from its inception to October 2017. In February 2018, Mr. Mercer accepted an invitation to serve as an executive director from the newly appointed board of directors of BNN. During his tenure, Mr. Mercer restructured BNN by disposing of various subsidiaries and seeking strategic business partners. Mr. Mercer founded Global Fintech and Global Fintech Holdings Ltd. (“GFH”) in October 2018 and November 2019, respectively and has served as director of both companies since their inception, and as a Director of Strategic Partnerships and Business Development and Executive Director since 2017. Since Mr. Mercer joined the TINGO GROUP Board, he helped TINGO GROUP achieve substantial fund raising and introduced significant new business opportunities to TINGO GROUP. Mr. Mercer holds an MSI (DIP) qualification a BASc in Economics from the University of Manchester. We believe that Mr. Mercer is well-qualified to serve on the TINGO GROUP Board due to his extensive financial services, operational, management and investment experience.

 

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Yehezkel (Chezy) Ofir. Professor Ofir has served on the Board of TINGO GROUP since April 2013. He was appointed as a director of Micronet in September 2012. Mr. Ofir has over 25 years of business consulting experience and served as a director at various companies, including as an external director of Adama Ltd (SZSE: 000553) from 2012 until 2015, a director at Shufersal Ltd. (TASE: SAE) from 2004 to 2010, Director at the Israeli Postal Bank Company as of 2014 and acting Chairman and director as of 2016 until 2017. A director at Soda Stream (NASDAQ: Soda) from 2016 to 2019. A director at Hadassah Medical Centers (Ein-Karem, Jerusalem) from 2015-Currently, and Micronet (TAS: MCRNT), from 2013-Currently. Mr. Ofir has served as a member of the board of directors at TINGO GROUP Inc. (NASDAQ: TINGO GROUP) since April 2013. Mr. Ofir is the Kmart Chair Emeritus Professor and faculty member at the School of Business Administration, The Hebrew University of Jerusalem. Mr. Ofir holds a B.Sc. and M.Sc. in Engineering from Ben-Gurion University, M.Phil. and Ph.D. in Business Administration from Columbia University. We believe that Professor Ofir extensive experience in governance and in corporate business consulting makes him very well qualified to serve as a director of the Company.

 

Robert Benton. Mr. Benton has served on the Board of TINGO GROUP since April 2021.He has been the Director and Founder of Anthology Media, Ltd, (formerly Bob & Co, Ltd) where he provides integrated strategies designed to bridge the gap between creativity and finance for TV and film production companies since August 2010. Prior to his employment at Anthology Media, Ltd, Mr. Benton was a Managing Director and Head of Media Investments at Canaccord Adams Ltd., from September 2008 to June 2010, where he focused on marketing, sales, and corporate finance. Mr. Benton was also a Managing Director at Ingenious Media, an investment company specializing in the media, infrastructure, real estate and education sectors from August 2006 to May 2008. Prior to his employment at Canaccord Adams Ltd and Ingenious Media, Mr. Benton was employed as the Chief Executive Officer at Bridgewell Securities Ltd, a United Kingdom investment banking firm, from January 2002 to June 2006. From 1997 to 2001, Mr. Benton served as a Chairman and Chief Executive Officer for Charterhouse Securities Limited. Mr. Benton also served as the Global Head of Sales for ABN-ABRO from June 1994 to June 1997. Prior to that, Mr. Benton was a Managing Director of HSBC James Capel Ltd, from November 1992 to June 1995. Mr. Benton currently serves as the Deputy Chair of Everbright Securities Financial Holding Limited, which engages in the provision of financial brokerage services. He also sits on the board of directors for International Literacy Properties, a company that works with authors, managers of literary estates and individual heirs to help realize the value from book-based intellectual property. Mr. Benton has served on the board of The Discerning Eye, a United Kingdom based educational charity that promotes a wider understanding and appreciation of the visual arts and further stimulates debate about the place and purpose of art in our society through its annual exhibition. Mr. Benton sits on the Advisory Committee for Nash & Co Capital, Ltd, which is an independent corporate finance and advisory company. Previously, Mr. Benton served as the Chairman of Clarkson Plc, the FTSE 250 shipping group, from May 2005 to January 2015. Mr. Benton holds a degree in Politics and Economics from Exeter University. We believe Mr. Benton is well qualified to serve as a director due to his extensive leadership experience.

 

John M. Scott. Mr. Scott has served on our Board since November 2019. Mr. Scott began his career as a stockbroker in October 1970 with Charlton Seal Dimmock & Co. He became a Partner at the same firm in 1982 and subsequently a Director of Wise Speke Limited following a merger in 1990. In August 1994, he joined Albert E. Sharp LLP as a Director, where he remained until June 2007. In 2007, he joined WH Ireland Group Plc, a financial services company offering private wealth management, wealth planning and corporate broking services, where he oversaw the firm’s private client business in Manchester, U.K. until his retirement from his role as an Executive Director from WH Ireland’s Board of Directors in 2013. We believe that Mr. Scott is qualified to serve on our Board because of his accounting expertise and his experience serving as an officer and director of public and private companies.

 

Hao (Kevin) Chen. Mr. Chen was promoted by the Board to serve as the Chief Financial Officer of the Company in November 2021. He has more than 13 years of experience providing financial services to a variety of public and private companies, including in the role as Chief Financial Officer. He has a demonstrated history of working within the technology industry and is skilled in US GAAP accounting, SOX internal controls, debt and equity financing and strategic management. Mr. Chen previously served as the Chief Financial Officer and board member of China Rapid Finance (NYSE:XRF), a holding company operating primarily in the emergency rescues services business, which utilizes cloud and other cutting-edge technologies to provide emergency rescue services, including an app based mobile platform, cloud call centers and large data centers. Prior to that, Mr. Chen served as a Senior Financial Reporting Manager to Qunar.com (China’s online travel platform NASDAQ:QUNR) from 2013 to 2015 and served as an Audit Manager with Ernst & Young from 2008 to 2013. Mr. Chen holds a Master of Business Administration from Kellogg School of Management at Northwestern University, a Master of Economics from Shanghai University of Finance and Economics and a Bachelor of Mathematics from Shandong University. He is a Certified Public Accountant in the U.S.

 

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Moran Amran. Mrs. Amran has been the Company’s Controller since 2011. In January 2019 Ms. Amran was appointed to serve as the Company’s principal financial officer until Mr. Chen was promoted to the role in November 2021. From 2010 until 2011, she served as Financial Controller of the Global Consortium on Security Transformation, a global homeland security organization. From 2006 until 2007, she served as an assistant accountant for Agan Chemicals Ltd. Mrs. Amran holds a B.A. in Accounting and Business Management from The College of Management Academic Studies in Rishon LeZion, Israel, obtained an MBA from The Ono Academic College in Kiryat Ono, Israel and is a certified public accountant in Israel.

 

Sir David Trippier, R.D.,J.P.,D.L Until April 2011 Sir David Trippier was the Chairman of Cambridge shire Horizons, the company delivering sustainable development in the Cambridge Sub-region, and he was the Chairman of W H Ireland Group plc, Stockbrokers until May 2008 when the company was taken over by a consortium. He was until recently a Non-Executive Director of ITV Granada Television and has been a director or Chairman of several quoted companies. Sir David was knighted by the Queen in July 1992 when he was 46 years of age. In 1994 he was appointed by the Council of the Stock Exchange to sit on the committee, which formulated and launched the Alternative Investment Market (AIM) in June 1995. Since 1992, he has been Chairman or main Board Director of three companies, which have floated on the Stock Exchange and are now in the Main List, and one that has floated on the AIM Market. He was born in May 1946, educated at Bury Grammar School and later was commissioned as an officer in the Royal Marines Reserve in which he has served for 30 years. He passed the Commando Course at the Commando Training Centre in Devon in 1969 and the following year qualified as a parachutist at RAF Abingdon. He subsequently qualified as a Company Commander at the School of Infantry at Warminster and later passed the Staff College Course at the Royal Naval College at Greenwich. He has served with 40 Commando Royal Marines in Singapore and Malaysia, 41 Commando in Malta and the 3rd Commando Brigade in Norway. He was awarded the Royal Marines Reserve Decoration in 1983. In January 1996, he was appointed Honorary Colonel of the Royal Marines Reserve in the Northwest by the Commandant General Royal Marines. He retired from that role in January 2010. At the age of 22, he was admitted to the Stock Exchange. He was also a director of a financial planning company as well as being a Stockbroker. He was a senior partner in Pilling Trippier & Co before it was taken over by Capel-Cure Myers whilst he was a Minister. He was elected to the Rochdale Metropolitan Borough Council in 1969. In 1975, he became the leader of the Council when he was 28 years of age and in the same year was appointed a magistrate. In 1979, he was elected as MP for Rosendale at the age of 32 and became MP for the new constituency of Rosendale and Darwen from 1983 to 1992. In 1982, Sir David was appointed Parliamentary Private Secretary to the then Minister for Health (Rt Hon Kenneth Clarke QC, MP). From June 1983 to September 1985, Sir David was the Minister for Small Firms and Enterprise at the Department of Trade and Industry. From September 1985 to June 1987, he was the Minister for Tourism, Small Firms and Enterprise in the Department of Employment. In 1987 he became the Minister for Housing, Inner Cities and Construction in the Department of the Environment. Later in 1989, he was promoted to become the Minister of State for the Environment and Countryside. As the “Green” Minister he was instrumental in negotiating the international agreements on Climate Change and Global Warming on behalf of the United Kingdom. In February 1994, he became a Deputy Lieutenant of Lancashire. In April 1997, he became High Sheriff of Lancashire for the year 1997/98. In 1999, he published his autobiography entitled “Lend Me Your Ears”. He became the President of the Manchester Chamber of Commerce for the year 1999-2000. He was the National Chairman of the Tidy Britain Group from 1996 to 1998. He became the President of the Royal Lancashire Show for the year 1999. Sir David became the Chairman of the North West of England Reserve Forces and Cadets Association from 2000 to 2008. He was the National Vice Chairman of the Council of Reserve Forces from 1999 to 2008 representing the Royal Marines. He served as the County Chairman for the St. John Ambulance in Lancashire from 2003 to 2007. He was the County President of the Royal British Legion in Lancashire from 2005 to 2008.He was the founder of the Rosendale Enterprise Trust and the Rosendale Groundwork Trust. He is the President Elect of the Soldiers, Sailors, Airmen and Families Association - Forces Help for Greater Manchester. In November 2006, Sir David won a National Award for “Outstanding Leadership” sponsored by the Daily Telegraph. He was nominated as one of 100 of Britain’s most influential men and women in the Public and Private Sectors. He is married and has three sons. His wife, Lady Ruth Trippier, is a practicing barrister on the Northern Circuit.

 

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Kenneth Denos.    Kenneth Denos has served as Tingo, Inc.’s Executive Vice President, General Counsel, and Corporate Secretary since September 2021. Since June 2005, Mr. Denos has been an officer and director of Equus Total Return, Inc. (NYSE: EQS), a closed-end fund traded on the New York Stock Exchange, serving as its President and CEO from 2007-09. He is also a founder and principal of Outsize Capital Ltd., an international corporate finance advisory firm based in London, and is the founder and Chairman of Kenneth I. Denos, P.C., a U.S.-based corporate and consumer law firm. Previously, Mr. Denos was the CEO of MCC Global NV, a Frankfurt stock exchange listed investment advisory firm based in London, and also served as a director and executive officer of two London Stock Exchange listed firms, Healthcare Enterprise Group plc and Tersus Energy plc. Mr. Denos has worked in the private equity and advisory industry for virtually his entire career, having served as a principal and/or advisor to private and public companies and funds in the Middle East, Europe, Africa, and North America. He holds a Bachelor of Science degree in Business Finance and Political Science from the University of Utah. He also holds a Master of Business Administration and a Juris Doctor from the University of Utah. We believe that Mr. Denos is well-qualified to serve on the board due to his extensive international legal and corporate governance background, as well as his financial services and investment experience.

 

John J. Brown.    John J. Brown has served on the board of directors of Tingo, Inc. since September 2021. Since 2016, Mr. Brown has also been the Managing Partner of Sands Point Consulting, an advisor to entrepreneurs, founders, and senior corporate leaders to develop new business strategies for a rapidly changing market. From 2009 – 2016, he was the Group Managing Director and a member of the WMA Executive Committee for UBS Wealth Management Americas. From 1995-2000, Mr. Brown was the Managing Director and Global Head of Convertible Securities Trading at UBS, and from 1980-1995 and again from 2000-2009 he was a Managing Director for Merrill Lynch & Co., holding senior executive leadership positions at Merrill Lynch, most notably COO, Operations, Technology & Corp. Services Group. At Merrill Lynch, Mr. Brown managed a $1 billion annual operating budget. He also served as the Head of US Equity Financing & CEO, Merrill Lynch Professional Clearing Corp in its Prime Broker Division. We believe Mr. Brown is well qualified to sit on our board due to his extensive experience at various positions at UBS and Merrill Lynch, as well, as his experience in developing new business strategies.

 

Family Relationships

 

There are no arrangements between our directors and any other person pursuant to which our directors were nominated or elected for their positions. There are no family relationships between any of our directors or executive officers.

 

Corporate Governance

 

Our board of directors is currently comprised of six directors. Mr. Mercer, our Chief Executive Officer is not independent as that term is defined under the Nasdaq Listing Rules. Each of our directors, other than Mr. Mercer, qualify as “independent” under the Nasdaq Listing Rules, and SEC rules with respect to members of boards of directors and our Audit Committee, Compensation Committee and Corporate Governance/Nominating Committee, and otherwise meet the Nasdaq corporate governance requirements.

 

As of April 2. 2020, the Board does not have a chairman. Recognizing that the Board is composed almost entirely of outside directors, in addition to the Board’s strong committee system (as described more fully below), we believe this leadership structure is appropriate for the Company and allows the Board to maintain effective oversight of management. On May 23, 2021, Mr. Scott was elected to serve as vice Chairman of the Board.

 

Our board of directors has three standing committees: the Compensation Committee, the Audit Committee and the Corporate Governance/Nominating Committee.

 

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Audit Committee

 

The members of our Audit Committee are Mr. Benton, Sir David Trippier, R.D.,J.P.,D.L and Mr. Scott. Mr. Benton is the Chairman of the Audit Committee, and our board of directors has determined that Mr. Benton is an “Audit Committee financial expert” and that all members of the Audit Committee are “independent” as defined by the rules of the SEC and the Nasdaq rules and regulations. The Audit Committee operates under a written charter that is posted on our website at www.TINGO GROUP-inc.com. The primary responsibilities of our Audit Committee include:

 

appointing, compensating and retaining our registered independent public accounting firm;

     

overseeing the work performed by any outside accounting firm;

 

assisting the board of directors in fulfilling its responsibilities by reviewing: (1) the financial reports provided by us to the SEC, our stockholders or to the general public and (2) our internal financial and accounting controls; and

 

recommending, establishing and monitoring procedures designed to improve the quality and reliability of the disclosure of our financial condition and results of operations.

 

Compensation Committee

 

The members of our Compensation Committee are Mr. Benton, Sir David Trippier, R.D.,J.P.,D.L and Mr. Scott. Mr. Scott is the Chairman of the Compensation Committee and our board of directors has determined that all of the members of the Compensation Committee are “independent” as defined by the rules of the SEC and Nasdaq rules and regulations. The Compensation Committee operates under a written charter that is posted on our website at www.TINGO GROUP-inc.com. The primary responsibilities of our Compensation Committee include:

 

reviewing and recommending to our board of directors of the annual base compensation, the annual incentive bonus, equity compensation, employment agreements and any other benefits of our executive officers;

 

administering our equity-based compensation plans and exercising all rights, authority and functions of the board of directors under all of the Company’s equity compensation plans, including without limitation, the authority to interpret the terms thereof, to grant options thereunder and to make stock awards thereunder; and

 

annually reviewing and making recommendations to our board of directors with respect to the compensation policy for such other officers as directed by our board of directors.

 

The Compensation Committee meets, as often as it deems necessary, without the presence of any executive officer whose compensation it is then approving. The Compensation Committee and the Company engaged or received advice from compensation consultant in 2022.

 

Corporate Governance/Nominating Committee

 

The members of our Corporate Governance/Nominating Committee are Mr. Benton, Sir David Trippier, R.D.,J.P.,D.L and Mr. Scott. Mr. Scott is the Chairman of the Corporate Governance/Nominating Committee and our board of directors has determined that all of the members of the Corporate Governance/Nominating Committee are “independent” as defined by Nasdaq rules and regulations. The Corporate Governance/Nominating Committee operates under a written charter that is posted on our website at www.TINGO GROUP-inc.com. The primary responsibilities of our Corporate governance and Nominating Committee include:

 

assisting the board of directors in, among other things, effecting board organization, membership and function including identifying qualified board nominees; effecting the organization, membership and function of board of directors committees including composition and recommendation of qualified candidates; establishment of and subsequent periodic evaluation of successor planning for the Chief Executive Officer and other executive officers; development and evaluation of criteria for board membership such as overall qualifications, term limits, age limits and independence; and oversight of compliance with applicable corporate governance guidelines; and

 

identifying and evaluating the qualifications of all candidates for nomination for election as directors.

 

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Potential nominees will be identified by the board of directors based on the criteria, skills and qualifications that will be recognized by the Corporate Governance/Nominating Committee. In considering whether to recommend any particular candidate for inclusion in the board of directors’ slate of recommended director nominees, our Corporate Governance/Nominating Committee will apply criteria including the candidate’s integrity, business acumen, knowledge of our business and industry, age, experience, diligence, conflicts of interest and the ability to act in the interests of all stockholders. No particular criteria will be a prerequisite or will be assigned a specific weight, nor do we have a diversity policy. We believe that the backgrounds and qualifications of our directors, considered as a group, should provide a composite mix of experience, knowledge and abilities that will result in a well-rounded board of directors and allow the board of directors to fulfill its responsibilities.

 

There have not been any changes in our process for nominating directors.

 

Delinquent Section 16(a) Reports

 

Section 16(a) of the Exchange Act, requires our directors and executive officers, and anyone who beneficially owns ten percent (10%) or more of our Common Stock, to file with the SEC initial reports of beneficial ownership and reports of changes in beneficial ownership of Common Stock. Anyone required to file such reports also need to provide us with copies of all Section 16(a) forms they file.

 

Based solely upon a review of (i) copies of the Section 16(a) filings received during or with respect to 2021 and (ii) certain written representations of our officers and directors, we believe that all filings required to be made pursuant to Section 16(a) of the Exchange Act during and with respect to 2021 Please update were filed in a timely manner.

 

Code of Ethics

 

We have adopted a Code of Business Conduct and Ethics that applies to our directors, executive officers and all of our employees. The Code of Business Conduct and Ethics is available on our website at www.TINGO GROUP-inc.com.

 

Item 11. Executive Compensation

 

The following Summary of Compensation table sets forth the compensation paid by our Company during the two years ended December 31, 2022 and 2021, to all Executive Officers earning in excess of $100,000 during any such year. 

 

Name and Principal Position  Year  Salary(1)   Bonus(2)   Option
Awards(3)
   Stock Based
Awards (5)
   All Other
Compensation(4)
   Total 
Darren Mercer  2021  $571,251   $913,125   $-   $8,580,000   $196,074   $10,260,450 
Chief Executive Officer (7)  2022  $800,000   $999,875   $-   $2,145,600   $229,362   $4,174,837 
Hao (Kevin) Chen (6)  2021  $141,000   $-   $-   $-   $-   $141,000 
Chief Financial Officer  2022  $216,000    -    -   $53,640    -   $269,640 
Moran Amran  2021  $232,013   $116,795   $153,744   $-   $17,082   $519,634 
Controller  2022  $244,310   $90,000   $201   $21,456   $21,488   $377,455 

 

(1)Salary paid partly in NIS and partly in U.S. dollars. The amounts are converted according to the average foreign exchange rate U.S. dollar/NIS for 2022 and 2021, respectively.
(2)Represents discretionary bonus in connection with the performance and achievements of TINGO GROUP.
(3)The fair value recognized for such option awards was determined as of the grant date in accordance with Accounting Standards Codification, or ASC, Topic 718. Assumptions used in the calculations for these amounts are included in Note 3 to the consolidated financial statements for the year ended December 31, 2020 included elsewhere in this Annual Report.
(4)Includes the following: pay-out of unused vacation days, personal use of company car (including tax gross-up), personal use of company cell phone, contributions to manager’s insurance (retirement and severance components), contributions to advanced study fund, recreational allowance, premiums for disability insurance and contributions to pension plan.
(5)The Company accounts for stock-based compensation under the fair market value method under which compensation cost is measured at the grant date based on the value of the award and is recognized over the service period, which is usually the vesting period.
(6)On November 29, 2021, the board of directors of TINGO GROUP, promoted Hao (Kevin) Chen, its Financial controller of its China business to serve as the Chief Financial Officer of the Company.
(7)Effective on October 2021, the board of directors approved Darren Mercer’s new employment terms inclusive of an annual base salary of $800,000.

 

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Employment Agreements

 

Darren Mercer

 

Effective October 2021, the board of directors approved Darren Mercer’s new employment terms as follows: (i) an annual base salary fee will be $800,000 and, (ii) a total annual bonus in accordance with the bonus program adopted by the Company from time-to-time. The target bonus amount for Mr. Mercer’s work in the calendar year 2021 was $713,000. The Target Bonus Amount for 2022, 2023, and 2024 shall be $1,200,000.  Which Executive works for the Company outside the United Kingdom for at least five days.

 

All other terms of Mr. Mercer’s employment agreement, as amended, remain in full force and effect. 

 

Hao Chen

 

On November 29, 2021, the board of directors of TINGO GROUP promoted Hao (Kevin) Chen, its Financial controller of its China business to serve as the Chief Financial Officer of the Company. The Company and Mr. Chen are finalizing the negotiation of Mr. Chen’s employment agreement and will file such agreement when available.

 

None of our employees is subject to a collective bargaining agreement.

 

Outstanding Equity Awards

 

During 2022, no options and shares were issued to our directors, officers and employees under our 2012 Incentive Plan.

 

During 2022, TINGO GROUP issued 6,612,500 shares of common stock to our directors, officers and employees under our 2020 Incentive Plan out of which 4,000,000 shares of common stock were issued to Darren Mercer (which shall be released/vest subject to satisfaction of applicable performance conditions) under our 2020 Incentive Plan.

 

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Director Compensation

 

The following table summarizes the compensation paid to non-employee directors during the year ended December 31, 2022. 

 

Name(1)  Fees
Earned
or paid
in cash
($) (6)
   Option
Awards
($) (2)(3)(4)
   Stock
Awards
($)
   All Other
Compensation
($)
   Total
($)
 
Yehezkel (Chezy) Ofir(2)  $45,000   $10,322   $59,004   $-   $114,326 
Sir David Trippier (5)  $28,750   $-   $21,456   $-   $50,206 
Robert Benton (3)  $45,000   $27,525   $21,456   $-   $93,981 
John McMillan Scott (4)  $55,000   $55,050   $107,280   $334   $217,664 

 

(1)The fair value recognized for such option awards was determined as of the grant date in accordance with ASC Topic 718. Assumptions used in the calculations for these amounts are included in Note 3 to our consolidated financial statements for the year ended December 31, 2022 included elsewhere in this Annual Report.
(2)As of December 31, 2022, Professor Yehezkel (Chezy) Ofir, held options to purchase 30,000 shares, the options to purchase 30,000 shares were granted to him on May 23, 2021 at an exercise price of $1.81 per share. Out of which 22,500 of the options have vested. As of December 31, 2022, Professor Yehezkel (Chezy) Ofir, held 235,000 shares, out of which 110,000 were granted to him on May 10, 2022.
(3)As of December 31, 2022, Mr. Robert Benton, held options to purchase 80,000 shares, the options to purchase 80,000 shares were granted to him on May 23, 2021 at an exercise price of $1.81 per share. Out of which 60,000 of the options have vested. As of December 31, 2022, Mr. Robert Benton, held 40,000 shares, out of which 40,000 were granted to him on May 10, 2022.
(4)As of December 31, 2022, Mr. John McMillan Scott held options to purchase 160,000 shares, the options to purchase 160,000 shares were granted to him on May 23, 2021 at an exercise price of $1.81 per share. Out of which 120,000 of the options have vested. As of December 31, 2022, Mr. John McMillan Scott, held 300,000 shares, out of which 200,000 were granted to him on May 10, 2022.
(5)As of December 31, 2022, Sir David Trippier held no options to purchase shares. As of December 31, 2022, Sir David Trippier, held 40,000 shares, out of which 40,000 were granted to him on May 10, 2022.
(6)For the year ended December 31, 2022, we paid an aggregate amount of $173,750 to our directors as Compensation for serving on our board of directors. Independent directors received $30,000 fixed annual fees plus $ 5,000 fixed fee for membership in each committee, the vice chairman of the board received an additional fixed annual fee of $ 10,000 in salary.

 

Other than as described above, we have no present formal plan for compensating our directors for their service in their capacity as directors. Directors are entitled to reimbursement for reasonable travel and other out-of-pocket expenses incurred in connection with attendance at meetings of our board of directors. The board of directors may award special remuneration to any director undertaking any special services on our behalf other than services ordinarily required of a director. Other than indicated above, no director received and/or accrued any compensation for his or her services as a director, including committee participation and/or special assignments during 2021.

 

Item 12. Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters.

 

The following table sets forth information regarding the beneficial ownership of our common stock as of March 30, 2023 based on information obtained from the persons named below, with respect to the beneficial ownership of shares of our common stock, by:

 

each person known by us to be the beneficial owner of more than 5% of our outstanding shares of common stock;

 

each of our executive officers and directors that beneficially owns shares of our common stock; and

 

all our executive officers and directors as a group.

 

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Beneficial ownership is determined according to the rules of the SEC, which generally provide that a person has beneficial ownership of a security if he, she or it possesses sole or shared voting or investment power over that security, including options and warrants that are currently exercisable or will become exercisable within 60 days. Except as described in the footnotes below and subject to applicable community property laws and similar laws, we believe that each person listed below has sole voting and investment power with respect to such shares.

 

In the table below, percentage ownership is based on 163,679,382 shares of Common Stock outstanding as of March 31, 2023. The table below does not include any shares of Common Stock underlying our outstanding options or warrants because such securities are not exercisable within 60 days of May 31, 2023.

 

Unless otherwise indicated, we believe that all persons named in the table have sole voting and investment power with respect to all shares of common stock beneficially owned by them.

 

   Number of Shares Beneficially Owned   Percentage of Shares Beneficially Owned(1) 
5% Stockholders        
Tingo, Inc.(1)   25,783,675    15.7%
Darren Mercer   15,620,939    9.5%

Why twice Directors and Named Executive Officers

          
Moran Amran(2)   382,500    * 
Yehezkel (Chezy) Ofir(3)   257,500    * 
Darren Mercer   15,620,939    9.5%
John McMillan Scott(4)   530,000    * 
Robert John Benton(5)   160,000    * 
Hao (Kevin) Chen(6)   300,000    * 
Sir David Trippier(7)   100,000    * 

Kenneth Denos

   45,000     
John Brown   45,000     
Directors and executive officers as a group (9 persons)(8)   17,170,939    9.5%

 

*Less than one percent
(1)Does not include 26,042,808 shares of common stock underlying shares of Series A Preferred Stock and 336,872,138 shares of common stock underlying shares of Series B Preferred Stock held by Tingo, Inc.. The conversion of each of the Series A Preferred Stock and Series B Preferred Stock is subject to the approval of TINGO GROUP’s stockholders and the conversion of the Series B Preferred Stock is further subject to the approval of Nasdaq of a Change of Control application with respect to the TINGO GROUP acquisition of Tingo Mobile.
(2)Consists of 257,500 shares of common stock and 125,000 shares of common stock issuable upon the exercise of stock options owned by Mrs. Amran.
(3)Consists of 235,000 shares of common stock and 22,500 shares of common stock issuable upon the exercise of stock options owned by Mr. Ofir.
(4)Consists of 410,000 shares of common stock and 120,000 shares of common stock issuable upon the exercise of stock options owned by Mr. Scott.
(5)Consists of 100,000 shares of common stock and 60,000 shares of common stock issuable upon the exercise of stock options owned by Mr. Benton.
(6)Consists of 300,000 shares of common stock owned by Mr. Hao and the remaining balance of 100,000 shares will be issued on or before May 10, 2023, subject to performance.
(7)Consists of 100,000 shares of common stock owned by Sir David Trippier.
(8)Consists of 45,000 shares of common stock owned by Kenneth Denos.
(9)Consists of 45,000 shares of common stock owned by John Brown.
(10)Consists of 427,500 shares of common stock issuable upon the exercise of stock options beneficially owned by the referenced persons.

 

104

 

 

Securities Authorized For Issuance Under Equity Compensation Plans

 

2012 Plan: Our 2012 Stock Incentive Plan (the “2012 Incentive Plan”) was initially adopted by the Board on November 26, 2012 and approved by our stockholders on January 7, 2013 and subsequently amended on September 30, 2014, October 26, 2015, November 15, 2017 and November 8, 2018. Under the 2012 Incentive Plan, as amended, up to 5,000,000 shares of our Common Stock, are currently authorized to be issued as shares or options. As of 31.12.2022, the total number of options and shares of common stock awarded under the 2012 Incentive Plan is 3,994,782 and includes options and shares of common stock which have been issued or have been allocated to be issued. The 2012 Incentive Plan is intended as an incentive to retain directors, officers, employees, consultants and advisors to the Company, persons of training, experience and ability, to attract new employees, directors, consultants and advisors whose services are considered valuable, to encourage the sense of proprietorship and to stimulate the active interest of such persons in the development and financial success of the Company, by granting to such persons options to purchase shares of the Company’s Common Stock (“2012 Options”), shares of the Company’s stock, with or without restrictions, or any other share-based award (“2012 Award(s)”). The Plan is intended as an incentive to retain in the employ of, and as directors, consultants and advisors to TINGO GROUP, Inc., a Delaware corporation (the “Company”), and its subsidiaries (including any “employing company” under Section 102(a) of the Ordinance (as hereinafter defined) and any “subsidiary” within the meaning of Section 424(f) of the United States Internal Revenue Code of 1986, as amended (the “Code”), collectively, the “Subsidiaries”), persons of training, experience and ability, to attract new employees, directors, consultants and advisors whose services are considered valuable, to encourage the sense of proprietorship and to stimulate the active interest of such persons in the development and financial success of the Company and its Subsidiaries, by granting to such persons either (i) options to purchase shares of the Company’s Stock, (the “Options”), (ii) shares of the Company’s Stock, with or without restrictions, or (iii) any other Stock-based award, granted to a Grantee or an Optionee (as such terms are defined below hereunder) under the Plan and any Stock issued pursuant to the exercise thereof. Stock awards and the grant of Options to purchase shares of Stock, or the issue of each of the above under sub-sections (i) - (iii) shall be referred as the “Award(s).

 

The following table summarizes the equity securities granted under the 2012 Stock Incentive as of December 31, 2022. The shares covered by outstanding equity securities awards are subject to adjustment for changes in capitalization, stock splits, stock dividends and similar events.

 

Plan Category  Number of securities to be issued upon exercise of outstanding options, warrants and rights (*)   Weighted-
average exercise price of outstanding options, warrants and rights
   Number of securities remaining available for future issuance under equity compensation plans (excluding securities reflected in column (a)) 
   (a)   (b)   (c) 
Equity compensation plans approved by security holders   590,000   $1.96    1,005,218 
Equity compensation plans not approved by security holders   -    -    - 
Total   590,000   $1.96    1,005,218 

 

(*)Excluded the shares of common stock awarded under the 2012 Incentive Plan in amount of 2,146,782.

 

105

 

 

Pursuant to our 2012 Stock Incentive Plan, as amended, our board of directors is authorized to award (i) stock options to purchase shares of common stock and (ii) shares of common stock, to our officers, directors, employees and certain others, up to a total of 5,000,000 shares of common stock, subject to adjustment in the event of a stock split, stock dividend, recapitalization or similar capital change.

  

As of December 31, 2022 1,005,218 stock options remain available for future awards under the 2012 Stock Incentive Plan.

  

2020 Plan: The 2020 Stock Incentive Plan (the “2020 Incentive Plan”) provides for the issuance of up to 25,000,000 shares of our common stock plus a number of additional shares issued upon the expiration or cancellation of awards under our 2014 Incentive Plan, which was terminated when the 2020 Incentive Plan was approved by our stockholders. Generally, shares of common stock reserved for awards under the 2020 Incentive Plan that lapse or are canceled (other than by exercise) will be added back to the share reserve available for future awards. However, shares of common stock tendered in payment for an award or shares of common stock withheld for taxes are not available again for future awards. In addition, Shares repurchased by the Company with the proceeds of the option exercise price may not be reissued under the 2020 Incentive Plan.  

 

Item 13. Certain Relationships and Related Transactions, and Director Independence.

 

Darren Mercer, our Chief Executive Officer, and a director, presently owns, with certain family members and related parties, approximately one third of the issued and outstanding shares of GFH and is the sole officer and one of three directors of GFH.

 

Please update for the tingle transaction including the tingle foods transaction

 

Item 14. Principal Accounting Fees and Services.

 

The fees billed by Brightman Almagor Zohar & Co and Friedman LLP . for the fiscal year 2022 and the fees billed by Friedman LLP for the fiscal year 2021, our independent registered public accounting firms, for professional services provided to the Company were as follows: 

 

   Year ended on
December 31,
   Year ended on
December 31,
 
   2022   2021 
         
Audit Fees  $1,575,481   $470,000 
           
Tax Fees  $-   $- 
           
All Other Fees  $-   $52,517 
Total Fees  $1,575,481   $522,517 

 

Audit Fees

 

Audit fees are for audit services for each of the years shown in this table, review of our quarterly financial results submitted on Form 10-Q, and performance of local statutory audits.

 

All Other Fees

 

Other fees that related to other services.

 

Audit Committee Pre-Approval Policies and Procedures

 

Currently, the audit committee acts with respect to audit policy, choice of auditors, and approval of out of the ordinary financial transactions. The audit committee pre-approves all services provided by our independent registered public accounting firm. All of the above services and fees were reviewed and approved by the audit committee before the services were rendered.

 

106

 

 

PART IV

 

Item 15. Exhibits, Financial Statement Schedules.

 

1. Reference is made to the Report of Independent Registered Public Accounting Firm, the Consolidated Financial Statements and the Notes to Consolidated Financial Statements under Item 8 of Part II appearing on pages F-1 through F-59 hereto, which are incorporated herein by reference.

 

2. Financial Statement Schedules:

 

None.

 

3. Exhibit Index.

 

The following is a list of exhibits filed as part of this Annual Report:

 

Number of
Exhibits
  Description
2.1   Agreement of Plan and Merger, dated as of November 7, 2019, by and among the parties named therein (incorporated by reference to Exhibit 2.1 to our Current Report on Form 8-K, filed with the Securities and Exchange Commission on November 13, 2019).
     
2.2   Amended and Restated Agreement and Plan of Merger, dated as of April 15, 2020, by and among the parties named therein (incorporated by reference to Exhibit 2.1 to our Current Report on Form 8-K, filed with the Securities and Exchange Commission on April 21, 2020).
     
2.3   Agreement and Plan of Merger, dated as of May 10, 2022, by and among the parties named therein (incorporated by reference to Exhibit 2.1 to our Current Report on Form 8-K, filed with the Securities and Exchange Commission on May 17, 2022).
     
2.4*   Securities Purchase Agreement, dated as of February 9, 2023, by and among MICT, Inc., MICT Fintech Limited, Tingo Foods PLC and Dozy Mmobousi.
     
2.5*   Senior Secured Promissory Note, dated as of February 9, 2023, by amd among MICT, Inc. and MICT Fintech Limited
     
3.1   Amended and Restated Certificate of Incorporation of the Company (Incorporated by reference to Exhibit 3.1 to our Current Report on Form 8-K, filed with the Securities and Exchange Commission on May 17, 2022).
     
3.2   Amended and Restated Bylaws of the Company (Incorporated by reference to Exhibit 3.5 of Amendment No. 2 to our Registration Statement on Form S-1 (File No. 333-185470), filed with the Securities and Exchange Commission on March 18, 2013).
     
4.1   Form of Warrant Agreement (Incorporated by reference to Exhibit 4.1 to our Current Report on Form 8-K filed with the Securities and Exchange Commission on March 4, 2021).
     
4.2   Form of Series A Warrant Agreement (Incorporated by reference to Exhibit 4.1 to our Current Report on Form 8-K filed with the Securities and Exchange Commission on February 16, 2021).
     
4.3   Form of Series B Warrant Agreement (Incorporated by reference to Exhibit 4.2 to our Current Report on Form 8-K filed with the Securities and Exchange Commission on February 16, 2021).
     
4.4   Form of Warrant Agreement (Incorporated by reference to Exhibit 4.1 to our Current Report on Form 8-K filed with the Securities and Exchange Commission on March 4, 2021).
     
4.5   Form of Placement Agent Warrant Agreement (Incorporated by reference to Exhibit 4.2 to our Current Report on Form 8-K filed with the Securities and Exchange Commission on March 4, 2021).
     
4.6*   Description of the Registrant’s Securities Registered Pursuant to Section 12 of the Securities Exchange Act of 1934, as Amended.

 

107

 

 

Number of
Exhibits
  Description
10.1   Amended and Restated 2012 Stock Incentive Plan, as amended to date (Incorporated by reference to Exhibit B to our Proxy Statement on Schedule 14A (File No. 001-35850) filed with the Securities and Exchange Commission on November 8, 2018) +
     
10.2   2014 Stock Incentive Plan (Incorporated by reference to Exhibit “C” to our Proxy Statement (File No. 001-35850), filed with the Securities and Exchange Commission on August 26, 2014) +
     
10.3   Amendment to 2014 Stock Incentive Plan (Incorporated by reference to Exhibit “A” to our Proxy Statement (File No. 001-35850), filed with the Securities and Exchange Commission on November 8, 2018) +
     
10.4   Form of Stock Option Agreement (Incorporated by reference to Exhibit 10.3 of our Quarterly Report on Form 10-Q for the fiscal quarter ended September 30, 2014, filed with the Securities and Exchange Commission on November 6, 2014.
     
10.5   Form of Primary Security Agreement (incorporated by reference to Exhibit 10.1 to our Current Report on Form 8-K filed with the Securities and Exchange Commission on January 24, 2020).
     
10.6   Form of Primary Registration Rights Agreement (incorporated by reference to Exhibit 10.2 to our Current Report on Form 8-K filed with the Securities and Exchange Commission on January 24, 2020).
     
10.7   Form of Securities Purchase Agreement, dated as of April 15, 2020, by and between the Company and the Purchasers listed therein (Incorporated by reference to Exhibit 10.1 to our Current Report on Form 8-K, filed with the Securities and Exchange Commission on April 21, 2020).
     
10.8   Form of Exchange Agreement (Incorporated by reference to Exhibit 10.1 to our Current Report on Form 8-K filed with the Securities and Exchange Commission on September 10, 2020).
     
10.9   Form of Exchange Agreement (Incorporated by reference to Exhibit 10.1 to our Current Report on Form 8-K filed with the Securities and Exchange Commission on September 16, 2020).
     
10.10   Form of Securities Purchase Agreement (Incorporated by reference to Exhibit 10.1 to our Current Report on Form 8-K filed with the Securities and Exchange Commission on November 4, 2020).
     
10.11   Form of Placement Agency Agreement (Incorporated by reference to Exhibit 10.2 to our Current Report on Form 8-K filed with the Securities and Exchange Commission on November 4, 2020).
     
10.12   Form of Conversion Agreement (Incorporated by reference to Exhibit 10.2 to our Quarterly Report on Form 10-Q filed with the Securities and Exchange Commission on November 18, 2020).
     
10.13   2020 Equity Incentive Plan (Incorporated by reference to Exhibit 10.5 to our Quarterly Report on Form 10-Q filed with the Securities and Exchange Commission on November 18, 2020).
     
10.14*   Amendment to 2020 Equity Incentive Plan.

 

108

 

 

Number of
Exhibits
Description
10.15   Form of Securities Purchase Agreement (Incorporated by reference to Exhibit 10.1 to our Current Report on Form 8-K filed with the Securities and Exchange Commission on February 16, 2021).
     
10.16   Form of Securities Purchase Agreement (Incorporated by reference to Exhibit 10.1 to our Current Report on Form 8-K filed with the Securities and Exchange Commission on March 4, 2021).
     
10.17   Employment Agreement by and between the Company and Darren Mercer, dated May 10, 2022.
     
10.18   Form of Loan Agreement (incorporated by reference to Exhibit 2.1 to our Current Report on Form 8-K, filed with the Securities and Exchange Commission on May 17, 2022).
     
10.19   Letter of Friedman LLP, to the Securities and Exchange Commission dated October 7, 2022
     
10.20*   Form of All Assets Debenture Agreement, between Tingo Foods PLC and Dozy Mmobuosi
     
21.1*   List of Subsidiaries.
     
23.1*   Consent of Brightman Almagor Zohar & Co.
     
23.2*   Consent of Friedman LLP.
     
31.1*   Certification by Chief Executive Officer, required by Rule 13a-14(a) or Rule 15d-14(a) of the Exchange Act.
     
31.2*   Certification by Chief Financial Officer, required by Rule 13a-14(a) or Rule 15d-14(a) of the Exchange Act.
     
32.1**   Certification by Chief Executive Officer, required by Rule 13a-14(b) or Rule 15d-14(b) of the Exchange Act and Section 1350 of Chapter 63 of Title 18 of the United States Code.
     
32.2**   Certification by Chief Financial Officer, required by Rule 13a-14(b) or Rule 15d-14(b) of the Exchange Act and Section 1350 of Chapter 63 of Title 18 of the United States Code.
     
101.INS*   Inline XBRL Instance Document
     
101.SCH*   Inline XBRL Taxonomy Extension Schema Document
     
101.CAL*   Inline XBRL Taxonomy Extension Calculation Linkbase Document
     
101.DEF*   Inline XBRL Taxonomy Extension Definition Linkbase Document
     
101.LAB*   Inline XBRL Taxonomy Extension Label Linkbase Document
     
101.PRE*   Inline XBRL Taxonomy Extension Presentation Linkbase Document
     
104   Cover Page Interactive Data File (formatted as Inline XBRL and contained in Exhibit 101).

 

* Filed herewith

 

** Furnished herewith

 

+ Indicates management contract or compensatory plan or arrangement.

 

Item 16. 10-K Summary.

 

None.

 

109

 

 

SIGNATURES

 

Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.

 

  TINGO GROUP, INC.
   
Date: March 31, 2023 By: /s/ Darren Mercer
  Name:  Darren Mercer
  Title: Chief Executive Officer

 

Pursuant to the requirements of the Securities Exchange Act of 1934, this report has been signed below by the following persons on behalf of the registrant and in the capacities and on the dates indicated.

 

Signature   Title   Date
         
/s/ Darren Mercer   Chief Executive Officer, Director   March 31, 2023
Darren Mercer   (Principal Executive Officer)    
         
/s/ Kevin Chen   Chief Financial Officer   March 31, 2023
Kevin Chen   (Principal Financial Officer)    
         
/s/ Robert Benton   Director   March 31, 2023
Robert Benton        
         
/s/ Kenneth Denos   Director   March 31, 2023
Ken Denos        
         
/s/ Sir David Trippier, R.D., J.P., D.L.     Director   March 31, 2023
Sir David Trippier, R.D., J.P., D.L.         
         
/s/ John McMillan Scott     Director   March 31, 2023
John McMillan Scott          
         
/s/ John Brown   Director   March 31, 2023
John Brown        
         

 

110

 

 

TINGO GROUP, INC.

 

CONSOLIDATED FINANCIAL STATEMENTS

 

TABLE OF CONTENTS

 

Report of Independent Registered Public Accounting Firm Brightman Almagor Zohar & Co. (PCAOB ID 1197) F-2
Report of Independent Registered Public Accounting Firm Friedman LLP, PCAOB #711 F-4
Consolidated Balance Sheets as of December 31, 2022 and December 31, 2021 F-6
Consolidated Statements of Operations for the Years Ended December 31, 2022 and 2021 F-8
Consolidated Statements of Comprehensive Loss for the Years Ended December 31, 2022 and 2021 F-9
Statements of Changes in Temporary Equity and Stockholders’ Equity for the years ended December 31, 2022 and 2021 F-10
Consolidated Statements of Cash Flows F-11
Notes to Consolidated Financial Statements F-14

 

F-1

 

 

 

 

REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

 

To the shareholders and the Board of Directors of Tingo Group, Inc.

 

Opinion on the Financial Statements

 

We have audited the accompanying consolidated balance sheet of Tingo Group, Inc. (the “Company”) as of December 31, 2022, the related consolidated statements of operations, comprehensive loss, changes in temporary equity and stockholders’ equity and cash flows for the year ended December 31, 2022, and the related notes (collectively referred to as the “financial statements”). In our opinion, the financial statements present fairly, in all material respects, the financial position of the Company as of December 31, 2022, and the results of its operations and its cash flows for the year ended December 31, 2022, in conformity with accounting principles generally accepted in the United States of America.

 

Basis for Opinion

 

These financial statements are the responsibility of the Company’s management. Our responsibility is to express an opinion on the Company’s financial statements based on our audit. We are a public accounting firm registered with the Public Company Accounting Oversight Board (United States) (PCAOB) and are required to be independent with respect to the Company in accordance with the U.S. federal securities laws and the applicable rules and regulations of the Securities and Exchange Commission and the PCAOB.

 

We conducted our audit in accordance with the standards of the PCAOB. Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement, whether due to error or fraud. The Company is not required to have, nor were we engaged to perform, an audit of its internal control over financial reporting. As part of our audit, we are required to obtain an understanding of internal control over financial reporting but not for the purpose of expressing an opinion on the effectiveness of the Company’s internal control over financial reporting. Accordingly, we express no such opinion.

 

Our audit included performing procedures to assess the risks of material misstatement of the financial statements, whether due to error or fraud, and performing procedures that respond to those risks. Such procedures included examining, on a test basis, evidence regarding the amounts and disclosures in the financial statements. Our audit also included evaluating the accounting principles used and significant estimates made by management, as well as evaluating the overall presentation of the financial statements. We believe that our audit provides a reasonable basis for our opinion.

 

Critical Audit Matter

 

The critical audit matter communicated below is a matter arising from the current-period audit of the financial statements that was communicated or required to be communicated to the audit committee and that (1) relates to accounts or disclosures that are material to the financial statements and (2) involved our especially challenging, subjective, or complex judgments. The communication of critical audit matters does not alter in any way our opinion on the financial statements, taken as a whole, and we are not, by communicating the critical audit matter below, providing a separate opinion on the critical audit matter or on the accounts or disclosures to which it relates.

 

F-2

 

 

Determine the Accounting Acquirer and Evaluate the Valuation and Balance Sheet Presentation of the Consideration – Acquisition of Tingo Mobile Ltd – Refer to Note 13 to the Financial Statements

 

Critical Audit Matter Description

 

As described in Note 13 to the financial statements, in May 2022 the Company entered into an Agreement and Plan of Merger with Tingo, Inc. On December 1, 2022, Tingo Group, Inc. completed the merger with a total consideration paid by Tingo Group, Inc to the shareholders of Tingo, Inc. by cash, shares of common stock of Tingo Group, Inc. as well as shares of Series A and B Preferred Stock of Tingo Group, Inc. convertible into common stock upon certain conditions as determined in the Agreement and Plan of Merger. As result of the merger, the Company was determined to be the accounting acquirer and started to consolidate Tingo Mobile Ltd. as of December 1, 2022.

 

Management estimated the fair value of consideration at the acquisition date using the Tingo, Inc.’s market value (Level 2 observable input) at the date of the transaction instead of the market value of the Company in accordance with ASC 820 – “Fair Value Measurement” or ASC 820. Management considered that the market value of Tingo Inc. at that date, better reflects the fair value of the consideration then measuring the fair value of the consideration using the Company own shares as they determine that its share price at the acquisition date may not be representative of fair value. Management also estimated the fair value of the redeemable preferred stock at the acquisition date to be approximately $553 million and recognized it outside of permanent equity. The provisional purchase price allocation included a software intangible asset of $90.1 million, trade names and trademarks intangible asset of $54.5 million, farmer cooperative intangible asset of $24.8 million and goodwill of $ 81.5 million.

 

The principal considerations for our determination that performing procedures relating to the determination of the accounting acquirer and evaluating the valuation and balance sheet presentation of the consideration in the acquisition of Tingo Mobile Ltd. is a critical audit matter, are: (i) the complexity of the accounting guidance and significant judgement exercised by the Company’s management in assessing the accounting treatment of this transaction, specifically, when determining the accounting acquirer and when developing the fair value estimates of the consideration and its presentation in the financial statements, (ii) high degree of auditor judgement, subjectivity, and effort in performing procedures on evaluating management conclusion on the accounting acquirer and evaluating management’s significant judgement related to the use of Level 2 observable inputs; and (iii) the audit effort involved the use of professionals with specialized skills and knowledge.

 

How the Critical Audit Matter Was Addressed in the Audit

 

Our audit procedures related to the determination of the accounting acquirer and evaluating the valuation and presentation of the consideration in the acquisition of Tingo Mobile Ltd. included the following, among others:

 

We read the Agreement and Plan of Merger to identify and assess the relevant terms and conditions to evaluate the appropriateness of management’s accounting treatment.

 

With the assistance of our technical accounting specialist, we evaluated management’s assessment and conclusion that Tingo Group Inc. is the accounting acquirer and will be the one to consolidate Tingo Mobile Ltd. financial statements from the date of the transaction.

 

We assessed and evaluated, with the assistance of our fair value specialists, management’s market value valuation technique used to determine the fair value of the consideration paid in accordance with ASC 820 and the determination of the category within the fair value hierarchy (categorizes into three levels);

 

We assessed and evaluated the appropriateness of management presentation of the consideration as equity and the portion classified outside permanent equity by considering the terms in the Agreement and Plan of Merger; and

 

We evaluated the completeness and accuracy of the transaction disclosures based on ASC 805-10-50 “Business Combinations” by comparing management’s disclosures to information obtained from our other audit procedures.

 

/s/ Brightman Almagor Zohar & Co.

 

Brightman Almagor Zohar & Co.

Certified Public Accountants

A Firm in the Deloitte Global Network

 

Tel Aviv, Israel

March 31, 2023

We have served as the Company’s auditor since 2022.

 

F-3

 

 

 

REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

 

To the Board of Directors and Stockholders of

Tingo Group, Inc. (formerly known as MICT, Inc.)

 

Opinion on the Financial Statements

 

We have audited the accompanying consolidated balance sheet of Tingo Group, Inc. (formerly known as MICT, Inc., the “Company”) as of December 31, 2021, and the related consolidated statements of operations, comprehensive loss, changes in equity and cash flows for the year ended December 31, 2021, and the related notes (collectively referred to as the consolidated financial statements). In our opinion, the consolidated financial statements present fairly, in all material respects, the financial position of the Company as of December 31, 2021, and the results of its operations and its cash flows for the year ended December 31, 2021, in conformity with accounting principles generally accepted in the United States of America.

 

Basis for Opinion

 

These consolidated financial statements are the responsibility of the Company’s management. Our responsibility is to express an opinion on the Company’s consolidated financial statements based on our audit. We are a public accounting firm registered with the Public Company Accounting Oversight Board (United States) (PCAOB) and are required to be independent with respect to the Company in accordance with the U.S. federal securities laws and the applicable rules and regulations of the Securities and Exchange Commission and the PCAOB.

 

We conducted our audit in accordance with the standards of the PCAOB. Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the consolidated financial statements are free of material misstatement, whether due to error or fraud. The Company is not required to have, nor were we engaged to perform, an audit of its internal control over financial reporting. As part of our audit, we are required to obtain an understanding of internal control over financial reporting, but not for the purpose of expressing an opinion on the effectiveness of the Company’s internal control over financial reporting. Accordingly, we express no such opinion.

 

Our audit included performing procedures to assess the risks of material misstatement of the consolidated financial statements, whether due to error or fraud, and performing procedures that respond to those risks. Such procedures included examining, on a test basis, evidence regarding the amounts and disclosures in the consolidated financial statements. Our audit also included evaluating the accounting principles used and significant estimates made by management, as well as evaluating the overall presentation of the consolidated financial statements. We believe that our audit provides a reasonable basis for our opinion.

 

Critical Audit Matters

 

The critical audit matters communicated below are matters arising from the current period audit of the consolidated financial statements that were communicated or required to be communicated to the audit committee and that: (1) relate to accounts or disclosures that are material to the consolidated financial statements and (2) involved our especially challenging, subjective or complex judgments. The communication of critical audit matters does not alter in any way our opinion on the consolidated financial statements, taken as a whole, and we are not, by communicating the critical audit matters below, providing separate opinions on the critical audit matters or on the accounts or disclosures to which they relate.

 

Valuation related to business combinations

 

Description of Critical Audit Matter

 

As discussed in Note 1 to the consolidated financial statements, the Company consummated several business combinations during the year ended December 31, 2021, including Magpie Securities Limited, Guangxi Zhongtong Insurance Agency Co., Ltd, Beijing Yibao Technology Co., Ltd and All Weather Insurance Agency Co., Ltd.

 

F-4

 

 

We identified the audit of valuation related to those business combinations as a critical audit matter because of the significant estimates and assumptions management used. Performing audit procedures to evaluate the reasonableness of these estimates and assumptions required a high degree of auditor judgment and an increased extent of effort.

 

How We Addressed the Matter in Our Audit

 

The primary procedures we performed to address these critical audit matters included the following:

 

We obtained an understanding and evaluated the reasonableness of management’s process for developing the discounted cash flows. We evaluated the reasonableness of management’s significant assumptions used in developing such discounted cash flows, such as future projections of revenue growth rates and profitability, and estimated working capital needs by testing the underlying data used by the management in its analyses to compare to historical and other industry data, as well as validating certain assertions with data internal to the management and from other sources.

 

With the assistance of our valuation specialists, we evaluated the reasonableness of the valuation methodology and discount rates by testing the source information underlying the determination of the discount rates and the mathematical accuracy of the calculation, and developing a range of independent estimates and comparing those to the discount rates selected by management.

 

Long-Lived Assets and Goodwill Impairment Assessment

 

Description of Critical Audit Matter

 

As discussed in Note 2 to the consolidated financial statements, the Company assesses the recoverability of its long-lived assets based on the undiscounted future cash flow and recognizes an impairment loss when the estimated undiscounted future cash flow expected to result from the use of the assets plus the net proceeds expected from disposition of the asset, if any, are less than the carrying value of the assets. The Company measures a goodwill impairment using a single step impairment model, whereby the impairment equals the difference between the carrying amount and the estimated fair value of the specified reporting units in their entirety.

 

We identified the impairment assessment for long-lived assets and goodwill as a critical audit matter because of the significant estimates and assumptions management used. Performing audit procedures to evaluate the reasonableness of these estimates and assumptions required a high degree of auditor judgment and an increased extent of effort.

 

How We Addressed the Matter in Our Audit

 

The primary procedures we performed to address these critical audit matters included the following:

 

  We obtained an understanding and evaluated the reasonableness of management’s process for developing the discounted cash flows. We evaluated the reasonableness of management’s significant assumptions used in developing such discounted and undiscounted cash flows, such as future projections of revenue growth rates and profitability, and estimated working capital needs by testing the underlying data used by the management in its analyses to compare to historical and other industry data, as well as validating certain assertions with data internal to the management and from other sources.

 

  With the assistance of our valuation specialists, we evaluated the reasonableness of the valuation methodology and discount rates by testing the source information underlying the determination of the discount rates and the mathematical accuracy of the calculation, and developing a range of independent estimates and comparing those to the discount rates selected by management.

 

/s/ Friedman LLP

 

We served as the Company’s auditor from July 2021 through October 2022.

 

New York, New York

June 17, 2022

 

F-5

 

 

TINGO GROUP, Inc.

CONSOLIDATED BALANCE SHEETS

(In Thousands, except Share and Par Value Data)

 

   December 31,
2022
   December 31,
2021
 
ASSETS        
Current assets:        
Cash  and cash equivalents  $500,316   $96,619
Trade accounts receivable, net   11,541    17,879 
Related party receivables   13,491    5,134 
Other current assets   5,828    7,865
Total current assets   531,176    127,497 
           
Property and equipment, net   855,125    677 
Intangible assets, net   
185,407
    21,442 
Goodwill   
101,247
    19,788 
Right of use assets under operating lease   2,260    1,921 
Long-term deposit and other non-current assets   514    824 
Deferred tax assets   3,661    1,764 
Restricted cash escrow   2,233    2,417 
Micronet Ltd. equity method investment   735    1,481 
Total long-term assets   1,151,182    50,314 
           
Total assets  $1,682,358   $177,811 

 

F-6

 

 

TINGO GROUP, Inc.

CONSOLIDATED BALANCE SHEETS

(In Thousands, except Share and Par Value Data)

 

    December 31,
2022
     December 31,
2021
 
 
LIABILITIES TEMPORARY EQUITY AND EQUITY        
         
Short-term loan  $460   $1,657 
Trade accounts payable   11,092    14,416 
Deposit held on behalf of clients   2,528    3,101 
Related party payables   57,506    4 
Current operating lease liability   1,215    1,298 
Other current liabilities   192,594    4,914 
Total current liabilities   265,395    25,390 
           
Long term loan   377    - 
Long term operating lease liability   905    691 
Deferred tax liabilities   89,597    3,952 
Accrued severance pay   50    56 
Total long-term liabilities   90,929    4,699 
           
Commitment and Contingencies (Note 18)   -    
-
 
           
Temporary equity          
Preferred stock Series B subject to redemption: $0.001 par value, 33,687.21 shares authorized and 0 shares issued and outstanding as of December 31, 2022 and 2021, respectively.   553,035    - 
           
Stockholders’ Equity:          

Preferred stock Series A: $0.001 par value, 2,604.28 shares authorized and 0 shares issued and outstanding as of December 31, 2022 and 2021, respectively.

   

3

    - 
Common stock; $0.001 par value, 425,000,000 shares authorized, 157,599,882 and 122,435,576 shares issued and outstanding as of December 31, 2022 and December 31, 2021, respectively   158    122 
Additional paid in capital   889,579    220,786 
Accumulated other comprehensive loss   4,367    (414)
Accumulated deficit   (123,463)   (76,394)
TINGO GROUP, Inc. stockholders’ equity   770,644    144,100 
           
Non-controlling interests   2,355    3,622 
           
Total stockholders’ equity   772,999    147,722 
           
Total liabilities, temporary equity and stockholders’ equity  $1,682,358   $177,811 

 

 

F-7

 

 

TINGO GROUP, Inc.

CONSOLIDATED STATEMENTS OF OPERATIONS

(In Thousands, Except Share and Loss Per Share Data)

 

   Year ended December 31, 
   2022   2021 
Revenues  $146,035   $55,676 
Cost of revenues   81,243    46,456 
Gross profit   64,792    9,220 
Operating expenses:          
Research and development   1,689    889 
Selling and marketing   11,140    6,814 
General and administrative   58,165    36,488 
Amortization of intangible assets   5,590    2,925 
Total operating expenses   76,584    47,116 
Loss from operations   (11,792)   (37,896)
           
Equity in net loss of Micronet   
-
    (1,934)
Loss from decrease in holding percentage in former VIE   
-
    (1,128)
Other income, net   2,151    1,261 
Finance income (expense), net   (750)   395 
Loss before income tax expense (benefit)   (10,391)   (39,302)
Income tax expense (benefit)   37,474    (1,791)
Net loss  after provision for income taxes   (47,865)   (37,511)
Gain (loss) from equity investment   (746)   353 
Net loss   (48,611)   (37,158)
Net loss attributable to non-controlling stockholders   (1,542)   (730)
Net loss attributable to TINGO GROUP  $(47,069)  $(36,428)
Loss per share attributable to TINGO GROUP:          
Basic and diluted loss per share
  $(0.36)  $(0.32)
Weighted average common shares outstanding:          
Basic and diluted
   129,345,764    112,562,199 

 

F-8

 

 

TINGO GROUP, Inc.

CONSOLIDATED STATEMENTS OF COMPREHENSIVE LOSS

(In Thousands, except Share and Par Value Data)

 

   Year ended
December 31,
 
   2022   2021 
         
Net loss  $(48,611)  $(37,158)
Other comprehensive loss, net of tax:          
Currency translation adjustment   4,781    (218)
           
Total comprehensive loss  $(43,830)  $(37,376)
           
Comprehensive loss attributable to the non-controlling stockholders  $(1,267)  $(926)
           
Comprehensive loss attributable to TINGO GROUP  $(42,563)  $(36,450)

 

F-9

 

 

TINGO GROUP, Inc.

STATEMENTS OF CHANGES IN TEMPORARY EQUITY AND STOCKHOLDERS’ EQUITY

(In Thousands, Except Numbers of Shares)

 

   Common Stock   Additional
Paid-in
   Accumulated   Accumulated
Other
Comprehensive
   Capital
reserve
related to
transaction
with the
Minority
   Non- controlling   Total
Stockholders’
 
   Amount   Shares   Capital   Deficit   Loss   stockholders   Interest   Equity 
Balance, December  31, 2020   68    68,757,450    102,333    (39,966)   (196)   (174)   3,631    65,696 
Shares issued to service providers and employees   7    7,010,020    9,869    
-
    
-
    
-
    
-
    9,876 
Stock based compensation   
-
    -    711    
-
    
-
    
-
    
-
    711 
Exercising options for employees and consultants        60,000    80    
-
    
-
    
-
    
-
    80 
Net loss   
-
    -    
-
    (36,428)   
-
    
-
    (730)   (37,158)
Other comprehensive loss   
-
    -    
-
    -    (218)   174    (197)   (241)
Loss of control of subsidiary   
-
    -    
-
    
-
    
-
    
-
    (2,989)   (2,989)
Minority interest- Zhongtong Insurance                                 3,232    3,232 
Initially consolidated entity                                 675    675 
Issuance of shares upon November 2020 Securities Purchase Agreement   3    2,400,000    2,673    
-
    
-
    
-
    
-
    2,676 
Issuance of shares upon February 2021 Purchase Agreement   23    22,471,904    53,977    
-
    
-
    
-
    
-
    54,000 
Issuance of shares upon March 2021 Securities Purchase Agreement   19    19,285,715    48,671    
-
    
-
    
-
    
-
    48,690 
Exercising warrants   2    2,450,487    2,472    
-
    
-
    
-
    
-
    2,474 
Balance, December 31, 2021   122    122,435,576    220,786    (76,394)   (414)   
-
    3,622    147,722 

 

    Preferred stock  Series B subject to redemption     Preferred stock
Series A
    Common Stock     Additional Paid-in      Accumulated     Accumulated
Other
Comprehensive
    Non-
controlling
    Total
Stockholders’
 
    Amount     Shares     Amount     Shares     Amount     Shares     Capital     Deficit     Income (Loss)     Interest     Equity  
Balance, December 31, 2021     -       -       -       -       122       122,435,576       220,786       (76,394 )     (414 )     3,622       147,722  
Shares issued to service providers and employees     -       -       -       -       10       9,380,631       6,407       -       -       -       6,417  
Stock based compensation     -       -       -       -               -       208       -       -       -       208  
Net loss     -       -       -       -       -       -       -       (47,069 )     -       (1,542 )     (48,611 )
Tingo transaction     553,035       33,687       3       2,604       26       25,783,675       662,178                               662,207  
Other comprehensive (loss)/income     -       -            -       -       -       -       -       -       4,781       275       5,056  
Balance, December 31, 2022     553,035       33,687       3       2,604       158       157,599,882       889,579       (123,463 )     4,367       2,355       772,999  

 

F-10

 

 

TINGO GROUP, Inc.

CONSOLIDATED STATEMENTS OF CASH FLOWS

(In Thousands, except Share and Par Value Data)

 

   Year ended
December 31,
 
   2022   2021 
CASH FLOWS FROM OPERATING ACTIVITIES:        
Net loss  $(48,611)  $(37,158)
           
Adjustments to reconcile net loss to net cash used in operating activities:          
Loss (gain) on previously held equity in Micronet   
-
    1,934 
Loss from decrease in holding percentage in former VIE   
-
    1,128 
Equity in net (income) loss from equity method investment   746    (353)
Provision for doubtful accounts   618    2,574 
Depreciation and amortization   39,766    3,088 
Shares issued to service providers and employees   6,417    9,876 
Stock-based compensation for employees and consultants   208    711 
Loss from disposal of property and equipment   
-
    21 
Changes in operating assets and liabilities:          
Other non-current assets   
-
    
-
 
Change in deferred taxes, net   28,759    (2,539)
Change in long-term deposit and other non-current assets   311    (542)
Change in right of use assets   1,311    486 
Change in lease liabilities   (1,518)   (479)
Change in restricted cash escrow   184    
-
 
Change in accrued interest due to related party   (266)   (163)
Increase (decrease) in trade accounts receivable, net   7,747    (19,579)
Increase (decrease) in other current assets   1,685    (3,189)
Increase (decrease) in trade accounts payable   (2,234)   13,846 
Increase (decrease) in deposit held on behalf of clients   (573)   3,101 
Accrued interest and exchange rate differences on loans from others   (59)   
-
 
Increase (decrease) in other current liabilities   11,520    (4,099)
Net cash provided by (used in) operating activities  $46,011   $(31,336)
           
CASH FLOWS FROM INVESTING ACTIVITIES:          
Purchase of intangible assets, net   
-
    (520)
Net cash acquired through business combination - Magpie Securities Limited (Appendix B)   
-
    1,834 
Payment on business acquired - Beijing Fucheng (Appendix A)   
-
    (4,891)
Net cash acquired on an variable interest entity acquired - Guangxi Zhongtong (Appendix E)   
-
    460 
Loan provided to related party   (791)   (4,265)
Loan provided to Tingo Inc pursuant to the merger agreement   (23,700)   
-
 
Receipt of loan from related party (Micronet)   534    
-
 
Net cash acquired on an variable interest entity acquired – All Weather (Appendix D)   
-
    1,560 
Purchase of property and equipment   (39,645)   (689)
Cash received from disposal of property and equipment   
-
    124 
Acquisition of Tingo Mobile, Inc (Appendix F)   430,563    - 
Deconsolidation of Micronet (Appendix C)   
-
    (2,466)
Net cash provided by (used in) investing activities  $366,961   $(8,853)
           
CASH FLOWS FROM FINANCING ACTIVITIES:          
Cash received from issuance of shares by a subsidiary   
-
    
-
 
Receipt of short- term loans from banks and others   144    1,657 
Receipt of loan from affiliate company   
-
    220 
Repayment of bank loans and others   (859)   (195)
Repayment on loan to related party   (10,000)   
-
 
Proceeds from issuance of shares and warrants   
-
    105,366 
Proceeds from exercise of warrants   
-
    2,474 
Proceeds from exercise of options   
-
    80 
Net cash provided by (used in) financing activities  $(10,715)  $109,602 
           
TRANSLATION ADJUSTMENT OF CASH AND RESTRICTED CASH   1,256    97 
           
NET CHANGE IN CASH AND RESTRICTED CASH   403,513    69,510 
           
Cash  and cash equivalents and restricted cash at the beginning of the year   99,036    29,526 
           
Cash  and cash equivalents and restricted cash at end of the year  $502,549   $99,036
           
Supplemental disclosure of cash flow information:          
Amount paid during the period for:          
           
Interest  $6   $44 
Taxes  $535   $146 

 

F-11

 

 

The following table provides a reconciliation of cash and restricted cash reported within the balance sheets that sum to the total of the same amounts shown in the statements of cash flows:

 

    Year ended
December 31,
 
    2022     2021  
Cash and cash equivalent at end of the year   $ 500,316     $ 96,619  
Restricted cash escrow at end of the year     2,233       2,417  
Cash, cash equivalent and restricted cash escrow at end of the year   $ 502,549     $ 99,036  

 

Appendix A: Beijing Fucheng

 

   February 10,
2021
 
Net working capital  $106 
Property and equipment   26 
Current liabilities   (55)
Intangible assets   4,814 
Cash  $4,891 

 

Appendix B: Magpie Securities Limited

 

   February 26,
2021
 
Net working capital  $206 
Investment and loan to Magpie   (2,947)
Property and equipment   24 
Current liabilities   (19)
Intangible assets   902 
Cash  $(1,834)

 

Appendix C: Deconsolidation of Micronet Ltd.

 

   May 9,
2021
 
Working capital other than cash  $(3,849)
Finance lease   33 
Accrued severance pay, net   96 
Translation reserve   134 
Micronet Ltd.investment in fair value   1,128 
Non-controlling interests   2,990 
Net loss from loss of control   1,934 
Cash  $2,466 

 

F-12

 

 

Appendix D: All Weather Insurance Agency

 

   July 1,
2021
 
Net working capital  $(1,665)
Property and equipment   153 
Right of use assets   208 
Lease liabilities   (258)
Intangible assets   903 
Deferred Tax liability   (226)
Minority interest   (675)
Cash  $(1,560)

 

Appendix E: Guangxi Zhongtong Insurance Agency Co., Ltd:

 

   October 21,
2021
 
Net working capital  $152 
Property and equipment   13 
Intangible assets   2,174 
Goodwill   (153)
Deferred Tax liability   (544)
Minority interest   (3,230)
Loss on equity interest   1,128 
Net cash provided by acquisition  $(460)

 

Appendix F :Acquisition of Tingo

 

   December 1,
2022
 
Net working capital  $(256,181)
Property and equipment   844,764 
Intangible assets   169,559 
Goodwill   81,459 
Deferred Tax liability   (54,923)
Investment in fair value   (1,215,241)
Net cash provided by acquisition  $(430,563)

 

The accompanying notes are an integral part of the consolidated financial statements 

 

F-13

 

 

TINGO GROUP, Inc.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

(In Thousands, except Share and Par Value Data)

 

NOTE 1 — DESCRIPTION OF BUSINESS

 

Overview

 

TINGO GROUP, Inc. (“TINGO GROUP” or the “Company”) was formed as a Delaware corporation on January 31, 2002 under the name Lapis Technologies, Inc. On March 14, 2013, we changed our corporate name to Micronet Enertec Technologies, Inc. On July 13, 2018, following the sale of our former subsidiary, Enertec Systems Ltd., we changed our name to MICT, Inc. On February 27, 2023, following the acquisition of Tingo Mobile Limited (“Tingo Mobile”), we changed our name to TINGO GROUP, Inc. Our shares have been listed for trading on The Nasdaq Capital Market since April 29, 2013 under the symbol “TIO”.

 

The Company is a holding company conducting financial technology business and agri-fintech business through its subsidiaries and entities, both wholly-owned and controlled through various VIE arrangements (“VIE entities”), which are located mainly in Africa, Southeast Asia and the Middle East. The Company’s business has changed materially since December 1, 2022, following the completion of two material acquisitions of Tingo Mobile and Tingo Foods.

 

We currently operate in 3 segments (i) Verticals and Technology, comprising of our operations in China where we have 3 VIEs through which we operate, mainly, our business of insurance brokerage (see Notes 9, 10, 11, and 12).; (ii) Online Stock Trading, comprising mainly the operation of Magpie Securities Limited (“Magpie”) through which we operate the business of online stock trading, located mainly in Hong Kong and Singapore; (iii) Comprehensive Platform Service which includes the operations of Tingo Mobile described above and includes the operations of Tingo Mobile for the month of December.

 

Since July 1, 2020, following the completion of TINGO GROUP’s acquisition of GFH Intermediate Holdings Ltd or Intermediate (the “GFHI Acquisition”) the Company has been operating in the financial technology sector. GFHI is a financial technology company with a marketplace in China, as well as the wider Southeast Asia area and other parts of the world and is currently in the process of building various platforms for business opportunities in different verticals and technology segments to capitalize on such technology and business, including to compliment TINGO GROUP’s recent acquisitions of Tingo Mobile and Tingo Foods. The Company plans to increase its capabilities and its technological platforms through acquisition and licensing technologies to support its growth efforts, particularly in the agri-fintech, payment services, digital marketplace and financial services sectors.

 

In China, TINGO GROUP is principally focused on developing insurance broker business and products across approximately 130 insurance branches in China through its subsidiaries and VIE entities, with planned expansion into additional markets. The Company has developed highly scalable proprietary platforms for insurance products business-to-business (“B2B”) and business-to-business-to-consumer (“B2B2C”) and business -to-consumer (“B2C”) and financial services/products, the technology for which is highly adaptable for other applications and markets.

 

Following GFH Intermediate Holdings Ltd’s (“Intermediate”) acquisition of Magpie, a Hong Kong securities and investment services firm, on February 26, 2021 and the subsequent receipt of regulatory approval from the Hong Kong Securities and Futures Commission, Magpie is licensed to deal in securities, futures and options, and also undertake the business of securities advisory services and asset management.

 

Magpie launched Magpie Invest, a global stock trading app, on September 15, 2021. It is a proprietary technology investment trading platform that is currently operational in Hong Kong. The technology of Magpie Invest allows the platform to connect to all major stock exchanges. Magpie has memberships/registrations with the Hong Kong Stock Exchange (“HKSE”), the London Stock Exchange (“LSE”) and the requisite Hong Kong and China Direct clearing companies. TINGO GROUP’s financial services business and first financial services product, the Magpie Invest app, is able to trade securities on National Association of Securities Dealers Automated Quotations (“NASDAQ”), New York Stock Exchange (“NYSE”), TMX, HKSE, China Stock Connect, LSE, the Frankfurt Stock Exchange and the Paris Stock Exchange.

 

The growth of Magpie will continue to be realized and executed through the Company’s business development efforts, which include the pivot of Magpie to a B2B, white-label and payment services strategy in respond to the significant change in market conditions for the retail client sector that materialized in 2022. In order to strengthen Magpie’s offering to potential B2B and white-label clients, and enable the broadening of its product offering, management made the decision to apply for a Capital Markets License (“CMS License”) from the Monetary Authority of Singapore (“MAS”), which was granted in full on September 20, 2022. Magpie’s CMS License enables it to offer several new products, including leveraged foreign exchange products and contract for differences (“CFDs”), including CFDs on commodities prices and crypto-currency prices.

 

F-14

 

 

TINGO GROUP, Inc.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

(In Thousands, except Share and Par Value Data)

 

On December 1, 2022, the Company acquired Tingo Mobile, an agri-fintech business based in Nigeria, from Tingo Inc., a Nevada corporation (“TMNA”). Under the terms of the merger agreement, we entered into with TMNA and representatives of the shareholders of each of TMNA and the Company (“Tingo Merger Agreement”), TMNA contributed its ownership of Tingo Mobile to a newly organized holding company incorporated in the British Virgin Islands (“Tingo BVI Sub”). TMNA then merged Tingo BVI Sub with and into MICT Fintech Ltd., a wholly-owned subsidiary of the Company organized in the British Virgin Islands (“MICT Fintech”), resulting in Tingo Mobile being wholly-owned by the Company.

 

As of December  31, 2022, Tingo Mobile had approximately 9.3 million subscribers using its mobile phones and Nwassa payment platform. Tingo Mobile believes that Nwassa payment platform is Africa’s leading digital agriculture ecosystem that empowers rural farmers and agri-businesses by using proprietary technology to enable access to markets in which they operate. The Nwassa payment platform also has an escrow structure that creates trust between buyers and sellers. Tingo Mobile’s system provides real-time pricing, straight from the farms, eliminating middlemen. Users’ customers pay for produce bought using available pricing on our Nwassa payment platform. The Nwassa payment platform is paperless, verified and matched against a smart contract. Data is efficiently stored on the blockchain.

 

The Nwassa payment platform has created an escrow solution that secures the buyer, where funds are not released to its subscribers until fulfilment. The Nwassa payment platform also facilitates trade financing, ensuring that banks and other lenders compete to provide credit to its subscribers.  

 

Pursuant to the Tingo Merger Agreement, TMNA transferred its ownership of Tingo Mobile to Tingo BVI Sub, which was then merged with and into MICT Fintech, a wholly-owned subsidiary of Tingo Group Holdings, LLC, a Delaware limited liability company and a wholly-owned subsidiary of TINGO GROUP (“TGH”).

 

On December 1, 2022 (the “Tingo Closing”), pursuant to certain joinder agreements, TGH and MICT Fintech were added as parties to the Tingo Merger Agreement, and TINGO GROUP completed the merger of Tingo BVI Sub with and into MICT Fintech (the “Tingo Combination”).

 

Liquidity

 

The Company has been incurring losses in 2022 and 2021. The loss from operations were US$11,792 and US$37,896 as of December 31, 2022 and 2021, respectively. The net cash in operating activities was US$46,011 for the year ended December 31, 2022 and US$31,336 net cash used in operating activities for the years ended December 31, 2021.

 

The Company’s primary resources of cash has been its ability to generate cash from operating activities, obtain capital financing from equity interest investors and borrow funds on favorable economic terms to fund its general operations and capital expansion needs. The Company’s ability to continue as a going concern is dependent on management’s ability to successfully execute its business plan, which includes increasing revenue while controlling operating cost and expenses to generate positive operating cash flows and obtaining funds from outside sources of financing to generate positive financing cash flows. As of December 31, 2022 and 2021, the Company’s balance of cash and cash equivalents was $500,316 and $96,619, respectively.

 

The Company believes its existing cash will be sufficient to fund its anticipated operating cash requirements for at least twelve months following the date of this filing.

 

The Company’s operations and business may still be subject to adverse effect due to the unprecedented conditions surrounding the spread of COVID-19 throughout North America, Israel, China and the world. Although currently the COVID-19 (due to the measures implemented to reduce the spread of the virus) have not had a material adverse effect on the Company consolidated financial reports; there can be no assurance that Company’s financial reports will not be affected in the future from COVID-19 or resulting from restrictions and other government actions.

 

F-15

 

 

TINGO GROUP, Inc.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

(In Thousands, except Share and Par Value Data)

 

Variable Interest Entities (VIEs)

 

We currently conduct our insurance broker business in China using 3 VIEs (see Notes 9, 10, 11 and 12). The Company consolidates certain VIEs for which it is the primary beneficiary. VIEs consist of certain operating entities not wholly owned by the Company. See Note 2 for more information on the Company’s accounting policies related to the consolidation of VIEs.

 

The assets and liabilities of the Company’s VIEs that were included in the Company’s consolidated balance sheets are as follows:

 

   December 31,
2022
   December 31,
2021
 
Current assets:        
Cash  $3,690   $1,260 
Accounts receivable, net   6,823    2,462 
Related parties   2,001    
-
 
Other current assets   2,278    4,550 
Total current assets   14,792    8,272 
           
Property and equipment, net   176    208 
Intangible assets   5,712    5,718 
Long-term prepaid expenses   48    48 
Right of use assets   711    530 
Restricted cash   1,479    1,632 
Deferred tax assets   793    369 
Total long-term assets   8,919    8,505 
           
Total assets  $23,711   $16,777 
           
Current liabilities:          
Short term loan from others  $286   $1,155 
Trade accounts payable   4,817    697 
Related party   4,002    4,583 
Operating lease short term liability   230    
-
 
Other current liabilities   4,515    2,401 
Total current liabilities   13,850    8,836 
           
Long-term liabilities:          
Long term loan   377    - 
Lease liability   257    106 
Deferred tax liability   224    224 
Total long-term liabilities   858    330 
           
Total liabilities  $14,708   $9,166 

 

F-16

 

 

TINGO GROUP, Inc.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

(In Thousands, except Share and Par Value Data)

 

Revenues, loss from operations and net loss of the VIEs that were included in the Company’s consolidated statements of operations are as follows:

 

   Year ended December 31, 
   2022   2021 
   USD
in thousands
   USD
in thousands
 
         
Revenues  $51,841   $19,683 
Loss from operations  $(1,531)  $(1,883)
Net loss  $(541)  $(526)

 

NOTE 2 — SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES

 

Basis of Presentation

 

The consolidated financial statements have been prepared in accordance with United States Generally Accepted Accounting Principles (“GAAP”) applied on a consistent basis.

 

Principle of Consolidation

 

The consolidated financial statements include the financial statements of the Company, its subsidiaries and variable interest entities (“VIEs”). Inter-company transactions and balances among the Company and its subsidiaries are eliminated upon consolidation. As the Company has both the power to direct the activities of the entities that most significantly impact its economic performance and the right to receive benefits or the obligation to absorb losses of the entities that could potentially be significant to the entities, the Company is considered the primary beneficiary of VIEs. (see Notes 9, 10, 11 and 12).

 

Noncontrolling Interest

 

Noncontrolling interest (“NCI”) reflect the portion of income or loss and the corresponding equity attributable to third-parties in certain consolidated subsidiaries that are not 100% owned by the Company. Noncontrolling interest is presented as a separate component in our consolidated statements of operation. NCI is allocated a share of income or loss in the respective consolidated subsidiaries in proportion to their relative ownership interest.

 

Functional currency and Exchange Rate Income (Loss)

 

The functional currency of our foreign entities is their local currency. For these foreign entities, we translate their financial statements into U.S. dollars using average exchange rates for the period for statements of operations amounts and using end-of-period exchange rates for assets and liabilities. We record these translation adjustments in Accumulated other comprehensive loss, a separate component of stockholders’ equity, in our consolidated balance sheets. Exchange gains and losses resulting from the conversion of transaction currency to functional currency are charged or credited to other comprehensive income (expense), net.

 

The exchange rate used for conversion Nigerian Naira and RMB to USD is presented below:

 

Currency  December 31,
2022
   December 31,
2021
 
Naira   448.55    412.49 
RMB   6.8972    6.3726 

 

Use of Estimates

 

The preparation of consolidated financial statements in conformity with U.S. GAAP requires management to make estimates and assumptions that affect the reported amounts and disclosures. These estimates and assumptions take into account historical and forward-looking factors that the Company believes are reasonable. Actual results could differ significantly from those estimates.

 

F-17

 

 

TINGO GROUP, Inc.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

(In Thousands, except Share and Par Value Data)

 

Cash and Cash Equivalents 

 

Cash and cash equivalents consist of cash, bank deposits, money market funds and high liquid short-term investments with insignificant interest rate risk and original maturities of three months or less.

 

Restricted Cash

 

The Company, as an insurance broker, is required to reserve 10% of its registered capital in cash held in an escrow bank account pursuant to the China Insurance Regulatory Commission (“CIRC”) rules and regulations. As of December 31, 2022 and 2021, restricted cash amounted to $2,233 and $2,417 respectively.

 

Accounts receivable, net

 

Accounts receivables are recorded at amounts billed to customers, net of an allowance for doubtful accounts. Trade accounts receivable are recorded at invoiced amounts. On a periodic basis, management evaluates its accounts receivable and determines whether to provide an allowance or if any accounts should be written off. The allowance is determined based on specific analysis of each customer account receivable’s aging, assessment of its related risk and ability of the customer to make the required payment. In addition, in accordance with ASC 326, “Financial Instruments - Credit Losses”, an allowance is maintained for estimated forward-looking losses resulting from possible inability of customers to make required payments (current expected losses). The amount of the allowance is determined principally on the basis of past collection experience and known financial factors regarding specific customers. Trade accounts receivables are written off against the allowance when it becomes evident that collection will not occur. As of December 31, 2022 and December 31, 2021, allowance for expected credit losses was $3,012 and $2,606, respectively.

 

Financial Instruments

 

The Company accounts for debt and equity issuances as either equity-classified or liability-classified instruments based on an assessment of the instruments specific terms and applicable authoritative guidance in Financial Accounting Standards Board (“FASB”) Accounting Standards Codification (“ASC”) 480, Distinguishing Liabilities from Equity (“ASC 480”) and ASC 815, Derivatives and Hedging (“ASC 815”). The assessment considers whether the warrants are freestanding financial instruments pursuant to ASC 480, meet the definition of a liability pursuant to ASC 480, and whether the warrants meet all of the requirements for equity classification under ASC 815, including whether the warrants are indexed to the Company’s own common stock and whether the warrant holders could potentially require “net cash settlement” in a circumstance outside of the Company’s control, among other conditions for equity classification. This assessment, which requires the use of professional judgment, is conducted at the time of issuance of the instruments and as of each subsequent quarterly period end date while the instruments are outstanding.

 

For issued or modified instruments that meet all of the criteria for equity classification, the instruments are required to be recorded as a component of additional paid-in capital at the time of issuance. For issued or modified instruments that do not meet all the criteria for equity classification, the instruments are required to be recorded at their initial fair value on the date of issuance, and each balance sheet date thereafter. Changes in the estimated fair value of the instruments are recognized as a non-cash gain or loss on the statements of operations.

 

F-18

 

 

TINGO GROUP, Inc.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

(In Thousands, except Share and Par Value Data)

 

Property and Equipment

 

Property and equipment are stated at cost, net of accumulated depreciation and amortization. Depreciation and amortization is calculated by the straight-line method over their estimated useful lives. Useful lives of depreciation are as follows:

 

Category   Useful Life
Machinery and equipment   3-7 years
Furniture and fixtures   3-14 years
Transportation equipment   4-7 years
Leasehold improvements   Over the shorter of lease term or life of the assets
Computer equipment   3 years
Buildings   20 years
Office Equipment   5 years
Plant & Machinery   4 years
Mobile Devices   3 years
Site Installations   4 years

 

Stock Based Compensation

 

The Company applies the provisions of ASC Topic 718 “Compensation - Stock Compensation”, under which employees’ share-based awards are recognized based on the grant-date fair values. The Company estimates the fair value of stock-based compensation awards granted using the grant date fair value of the awards.

 

Stock-based compensation expense is recognized evenly over the vesting period. The Company accounts for forfeitures as they occur. For stock options, fair value is determined using an option-pricing model that takes into account the stock price at the grant date, the exercise price, the expected life of the option, the volatility of the underlying stock, the expected dividends on it, and the risk-free interest rate over the expected life of the option.

 

Cost of revenues

 

Cost of revenues are from our Comprehensive Platform Service and also from our Chinese’s companies Verticals and technology segment. Our Cost of revenues expenses consist primarily from commission costs and depreciation Expense.

 

Research and Development Costs

 

Research and development costs are from our online stock trading platform segment and also from our Chinese’s companies Verticals and technology segment. Our research and development expenses consist primarily of expenditures for consulting fees, compensation, and salary costs and expensed as incurred unless these costs qualify for capitalization as internal-use software development costs.

 

Earnings (Loss) per Share

 

In accordance with FASB ASC 260, “Earnings Per Share,” the basic net loss per share is computed by dividing the net loss attributable to ordinary shareholders by the weighted average number of shares of common stock outstanding during the period. Basic net loss per share excludes the dilutive effect of stock options or warrants. The calculation of the basic and diluted earnings per share is the same for all periods presented, as the effect of the potential common shares equivalents is anti-dilutive due to the Company’s net loss position for all periods presented.

 

F-19

 

 

TINGO GROUP, Inc.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

(In Thousands, except Share and Par Value Data)

 

Leases

 

The Company as Lessee: Operating lease right-of-use assets (“ROU assets”) represent the Company’s right to use an underlying asset for the lease term and lease liabilities represent the Company’s obligation to make lease payments arising from the lease. ROU assets and lease liabilities are recognized at the lease commencement date based on the present value of lease payments over the lease term. Because the rate implicit on most of the Company’s leases are not readily determinable, the Company’s incremental borrowing rate is used based on the information available at the commencement date in determining the present value of lease payments. The lease terms may include options to extend or terminate the lease when it is reasonably certain that the Company will exercise such options. Lease expense for operating leases is recognized on a straight-line basis over the lease term as an operating expense

 

ROU assets are reviewed for impairment when indicators of impairment are present. ROU assets from operating leases are subject to the impairment guidance in ASC 360, Property, Plant, and Equipment, as ROU assets are long-lived nonfinancial assets.

 

The Company recognized no impairment of ROU assets as of December 31, 2022 and December 31, 2021.

 

The operating lease is included in right-of-use assets and lease liability on the consolidated balance sheets.

 

The Company as Lessor: We evaluate all agreements entered into or modified that convey to others the use of property or equipment for a term to determine whether the agreement is or contains a lease. The underlying assets associated with these agreements are evaluated for future use beyond the lease term. We have elected the non-lease component separation practical expedient for all classes of assets where we are the lessor.

 

We entered into agreement with standard terms to lease mobile phones to the customers for 1 year. Under the agreement the right and ownership of the mobile phones shall remain with the Company (Lessor). Lessor has the exclusive right to terminate the agreement in whole or part. The agreement has lease and non lease component. The lease component is accounted as operating lease and income is recognized on a straight-line basis over the lease term as a revenue and certain non-lease components may be accounted for under the revenue recognition guidance in ASC Topic 606, Revenue from Contracts with Customers, or ASC Topic 606. See the “Revenue Recognition”.

 

The Company follows ASC No 842, Leases starting from the January 1, 2021.

  

Investments

 

The Company accounts for its equity investment over which it has significant influence but does not own a majority equity interest or otherwise control, using the equity method. The Company adjusts the carrying amount of the investment and recognizes investment income or loss for its share of the earnings or loss of the investee after the date of investment. The Company assesses its equity investment for other-than-temporary impairment by considering factors including, but not limited to, current economic and market conditions, operating performance of the entity, including current earnings trends and undiscounted cash flows, and other entity-specific information. The fair value determination, particularly for investments in a privately held entity, requires judgment to determine appropriate estimates and assumptions. Changes in these estimates and assumptions could affect the calculation of the fair value of the investment and determination of whether any identified impairment is other-than-temporary.

 

As of December 31, 2022, the Company owned 31.47% of shares in Micronet which was accounted for under equity method.

 

As of December 31, 2022, the Company owned 24% of the shares in Beijing Fucheng and controlled the remaining 76% through contractual arrangements as discussed in Note 1. The Company consolidates Beijing Fucheng.

 

F-20

 

 

TINGO GROUP, Inc.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

(In Thousands, except Share and Par Value Data)

 

Fair value measurement

 

ASC 820, “Fair Value Measurements and Disclosures” (“ASC 820”), requires an entity to maximize the use of observable inputs and minimize the use of unobservable inputs when measuring fair value. ASC 820 establishes a fair value hierarchy based on the level of independent, objective evidence surrounding the inputs used to measure fair value. A financial instrument’s categorization within the fair value hierarchy is based upon the lowest level of input that is significant to the fair value measurement.

 

ASC 820 prioritizes the inputs into three levels that may be used to measure fair value:

 

Level 1 applies to assets or liabilities for which there are quoted prices in active markets for identical assets or liabilities.

     

Level 2 applies to assets or liabilities for which there are inputs other than quoted prices that are observable for the asset or liability such as quoted prices for similar assets or liabilities in active markets; quoted prices for identical assets or liabilities in markets with insufficient volume or infrequent transactions (less active markets); or model-derived valuations in which significant inputs are observable or can be derived principally from, or corroborated by, observable market data.

     

Level 3 applies to assets or liabilities for which there are unobservable inputs to the valuation methodology that are significant to the measurement of the fair value of the assets or liabilities.

 

Financial instruments included in current assets and current liabilities are reported in the consolidated balance sheets at face value or cost, which approximate fair value because of the short period of time between the origination of such instruments and their expected realization and their current market rates of interest.

 

Intangible assets

 

The Company’s intangible assets with definite useful lives primarily consist of licensed software, Technology, Trade name/ trademarks, Customer relationship and Farmer Cooperative. The Company amortizes its intangible assets with definite useful lives over their estimated useful lives and reviews all the intangible assets for frequent impairment indicators on quarterly basis. The Company typically amortizes its intangible assets with definite useful lives on a straight-line basis over the shorter of the contractual terms or the estimated useful lives. The Company did not record any impairment of intangible assets as of December 31, 2022 and December 31, 2021.

 

Intangible assets are stated at cost less accumulated amortization. Amortization is computed using the straight-line method over the estimated useful lives of the assets. The estimated useful lives are as follows:

 

  Useful Life
License & software indefinite useful life and some of them for 10 years and some of them for 6 years
Technology know-how 6 years
Trade name/ trademarks indefinite useful life and some of them for 5 years and some of them for 10 years
Customer relationship 5-10 years
Farmer cooperative 8 years

 

F-21

 

 

TINGO GROUP, Inc.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

(In Thousands, except Share and Par Value Data)

 

Goodwill

 

Goodwill represents the excess of the purchase price over the estimated fair value of the identifiable net assets acquired in the acquisition of a business. We test goodwill for impairment annually in the fourth quarter and when events or changes in circumstances indicate that the fair value of a reporting unit with goodwill has been reduced below its carrying value. Events that could indicate impairment and trigger an interim impairment assessment include, but are not limited to, current economic and market conditions, including a decline in market capitalization, a significant adverse change in legal factors, business climate, operational performance of the business or key personnel, and an adverse action or assessment by a regulator. The Company has determined that there are two reporting units for purposes of testing goodwill for impairment.

 

In testing goodwill for impairment, the Company has the option to first consider qualitative factors to determine whether it is more likely than not that the fair value of a reporting unit is less than its carrying value. Such qualitative factors include industry and market considerations, economic conditions, entity-specific financial performance and other events, such as changes in management, strategy and primary customer base. If based on the Company’s qualitative assessment it is more likely than not that the fair value of the reporting unit is less than its carrying amount, quantitative impairment testing is required. However, if the Company concludes otherwise, quantitative impairment testing is not required. The results of the Company’s qualitative goodwill impairment test performed on the first business day of fourth quarter for fiscal years 2022 and 2021 did not indicate any impairments.

 

Temporary Equity

 

Equity instruments that are redeemable for cash or other assets are classified as temporary equity if the instrument is redeemable, at the option of the holder, at a fixed or determinable price on a fixed or determinable date or upon the occurrence of an event that is not solely within the control of the issuer.

 

Redeemable equity instruments are initially carried at the relative fair value of the equity instrument at the issuance date, which is subsequently adjusted at each balance sheet date if the instrument is currently redeemable or probable of becoming redeemable. The Series B Preferred Stock issued in connection with the acquisition of Tingo Mobile described in Note 3 were classified as temporary equity in the accompanying financial statements.

 

Business Combinations

 

We allocate the purchase consideration to the identifiable net assets acquired, including intangible assets and liabilities assumed, based on estimated fair values at the date of the acquisition. The excess of the fair value of the purchase consideration over the fair value of the identifiable assets and liabilities, if any, is recorded as goodwill. During the measurement period, which is up to one year from the acquisition date, we may adjust provisional amounts that were recognized at the acquisition date to reflect new information obtained about facts and circumstances that existed as of the acquisition date.

 

Determining the fair value of assets acquired and liabilities assumed requires significant judgment, including the selection of valuation methodologies including the income approach, the cost approach, and the market approach. Significant assumptions used in those methodologies include, but are not limited to, the expected values of the underlying metric, the systematic risk embedded in the underlying metric, the volatility of the underlying metric, the risk-free rate, and the counterparty risk. The use of different valuation methodologies and assumptions is highly subjective and inherently uncertain and, as a result, actual results may differ materially from estimates.

 

F-22

 

 

TINGO GROUP, Inc.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

(In Thousands, except Share and Par Value Data)

 

Revenue Recognition

 

The Company follows ASC 606 “Revenue from Contracts with Customers” and recognizes revenue when it transfers the control of promised goods or services to customers in an amount that reflects the consideration the Company expects to be entitled to in exchange for those goods or services.

 

The Company’s revenues from the insurance segment are generated from providing insurance brokerage services or insurance agency services on behalf of insurance carriers.

 

Our performance obligation to the insurance carrier is satisfied and commission revenue is recognized at a point in time when an insurance policy becomes effective. The Company provides customers with information regarding services and commission charge from the customers on a monthly basis. Performance obligation is satisfied at a point in time when the requested information is delivered to the customer.

 

In accordance with ASC 606-10-55, Revenue Recognition: Principal Agent Considerations, the Company reports revenue on a gross or net basis based on management’s assessment of whether the Company acts as a principal or agent in the transaction. To the extent the Company acts as the principal, revenue is reported on a gross basis. To the extent the Company acts as the agent, revenue is reported on a net basis. The determination of whether the Company act as a principal or an agent in a transaction is based on an evaluation of whether the Company controls the good or service prior to transfer to the customer.

 

The Company reports its insurance revenue net of amounts due to the insurance companies as the Company is not the primary obligor in the relevant arrangements, the Company does not finalize the pricing, and does not bear any risk related to the insurance policies.

 

The Company’s revenues from the online stock trading platform are generated from stock trading commission income. Commission revenue is recognized at a point in time when transfer of control occurs. Trade execution performance obligation generally occurs on the trade date because that is when the underlying financial instrument (for a purchase) or purchaser (for a sale) is identified, and the pricing is agreed upon.

 

The Company’s revenues from Tingo Mobile’s comprehensive platform service recognizes revenue upon transfer of control of promised products or services to customers in an amount that reflects the consideration the Company expects to receive in exchange for those products or services. The Company offers customers the ability to lease the phones on one year terms, and purchase data and calls, as well as use of the NWASSA payment platform. As part of these contracts, the Company records revenue . The Company also records depreciation expense on a straight-line basis over the useful life of the phones, which is estimated by management at three years.

 

The Company exercised judgement in determining in determining the accounting policies related to these transactions, including the following:

 

Determination of whether products and services are considered distinct performance obligations that should be accounted for separately versus together, such as phone leases and purchase of data.

 

Determination of stand-alone selling prices for each distinct performance obligation and for products and services that are not sold separately.

 

The pattern of delivery (i.e., timing of when revenue is recognized) for each distinct performance obligation.

 

Estimation of variable consideration when determining the amount of revenue to recognize (i.e., separate items on NWASSA platform)

 

F-23

 

 

TINGO GROUP, Inc.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

(In Thousands, except Share and Par Value Data)

 

Income Taxes

 

The Company accounts for income taxes using an asset and liability approach as prescribed in ASC 740-10 “Income Taxes” whereby deferred tax asset and liability account balances are determined based on differences between financial reporting and tax bases of assets and liabilities. Deferred taxes are measured using the enacted tax rates anticipated (under applicable law as of the balance sheet date) to apply when the deferred taxes are expected to be paid or realized. Deferred tax assets and liabilities, as well as any related valuation allowance, are classified as noncurrent items on the balance sheets.

 

The Company evaluates the potential realization of its deferred tax assets for each jurisdiction in which the Company operates at each reporting date and establishes valuation allowances when it is more likely than not that all or a part of its deferred tax assets will not be realized. The ultimate realization of deferred tax assets is dependent upon the generation of future taxable income of the same character and in the same jurisdiction. The Company considers all available positive and negative evidence in making this assessment, including, but not limited to, the scheduled reversal of deferred tax liabilities and deferred tax assets and projected future taxable income.

 

ASC 740-10 prescribes a two-step approach for recognizing and measuring uncertain tax positions. The first step is to evaluate tax positions taken or expected to be taken in a tax return by assessing whether they are more-likely-than-not sustainable, based solely on their technical merits, upon examination and including resolution of any related appeals or litigation process. The second step is to measure the associated tax benefit of each position as the largest amount that the Company believes is more-likely-than-not realizable. Differences between the amount of tax benefits taken or expected to be taken in its income tax returns and the amount of tax benefits recognized in its financial statements, represent the Company’s unrecognized income tax benefits. The Company’s policy is to include interest and penalties related to unrecognized income tax benefits as a component of income tax expense.

 

TINGO GROUP and its subsidiaries and VIEs within the jurisdiction of the United States, Israel and China are subject to a tax examination for the most recent three, four and five years, respectively.

 

Impairment of Long-Lived Assets

 

The Company reviews long-lived assets and intangible assets on a periodic basis, as well as when such review is required based upon relevant circumstances, to determine whether events or changes in circumstances indicate that the carrying amount of such assets may not be recoverable, considering the undiscounted cash flows expected from them. If applicable, the Company recognizes an impairment loss based upon the difference between the carrying amount and the fair value of such assets, in accordance with ASC 360-10 “Property, Plant and Equipment”. As of December 31, 2022, and 2021, no indicators of impairment have been identified.

 

Comprehensive Income (Loss)

 

In accordance with ASC 220 “Comprehensive Income”, comprehensive income represents the change in shareholders’ equity during a reporting period from transactions and other events and circumstances from non-owner sources. It includes all changes in equity during a reporting period except those resulting from investments by owners and distributions to owners. Other comprehensive income (“OCI”) represents gains and losses that are included in comprehensive income but excluded from net profit.

 

F-24

 

 

TINGO GROUP, Inc.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

(In Thousands, except Share and Par Value Data)

 

Statutory reserves

 

Pursuant to the laws applicable to the PRC, PRC entities must make appropriations from after-tax profit to the non-distributable “statutory surplus reserve fund”. Subject to certain cumulative limits, the “statutory surplus reserve fund” requires annual appropriations of 10% of after-tax profit until the aggregated appropriations reach 50% of the registered capital (as determined under accounting principles generally accepted in the PRC (“PRC GAAP”) at each year-end). For foreign invested enterprises and joint ventures in the PRC, annual appropriations should be made to the “reserve fund”. For foreign invested enterprises, the annual appropriation for the “reserve fund” cannot be less than 10% of after-tax profits until the aggregated appropriations reach 50% of the registered capital (as determined under PRC GAAP at each year-end). If the Company has accumulated loss from prior periods, the Company is able to use the current period net income after tax to offset against the accumulate loss.

 

Segment reporting

 

ASC Topic 280, “Segment Reporting”, establishes standards for reporting information about operating segments on a basis consistent with management approach,” following the method that management organizes the Company’s reportable segments for which separate financial information is made available to, and evaluated regularly by, the chief operating decision maker (the “CODM”), in allocating resources and in assessing performance.

 

The Company’s CODM has been identified as the CEO, who reviews consolidated and each of the segments results when making decisions about allocating resources and assessing performance of the Company.

 

Based on management’s assessment, the Company determined that it has three operating segments and therefore three reportable segments as defined by ASC 280.

 

Recently issued accounting pronouncements

 

In May 2019, the FASB issued ASU 2019-05, which is an update to ASU Update No. 2016-13, Financial Instruments — Credit Losses (Topic 326): Measurement of Credit Losses on Financial Instruments, which introduced the expected credit losses methodology for the measurement of credit losses on financial assets measured at amortized cost basis, replacing the previous incurred loss methodology. The amendments in Update 2016-13 added Topic 326, Financial Instruments — Credit Losses, and made several consequential amendments to the Codification. Update 2016-13 also modified the accounting for available-for-sale debt securities, which must be individually assessed for credit losses when fair value is less than the amortized cost basis, in accordance with Subtopic 326-30, Financial Instruments — Credit Losses — Available-for-Sale Debt Securities. The amendments in this Update address those stakeholders’ concerns by providing an option to irrevocably elect the fair value option for certain financial assets previously measured at amortized cost basis. For those entities, the targeted transition relief will increase comparability of financial statement information by providing an option to align measurement methodologies for similar financial assets. Furthermore, the targeted transition relief also may reduce the costs for some entities to comply with the amendments in Update 2016-13 while still providing financial statement users with decision-useful information. In November 2019, the FASB issued ASU No. 2019-10, which to update the effective date of ASU No. 2016-02 for private companies, not-for-profit organizations and certain smaller reporting companies applying for credit losses, leases, and hedging standard. The new effective date for these preparers is for fiscal years beginning after December 15, 2022. The Company does not expect the adoption of this ASU would have a material effect on the Company’s consolidated financial statements.

 

F-25

 

 

TINGO GROUP, Inc.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

(In Thousands, except Share and Par Value Data)

 

In October 2021, the FASB issued ASU 2021-08, “Business Combinations”. The amendments in this Update address how to determine whether a contract liability is recognized by the acquirer in a business combination and resolve the inconsistency of measuring revenue contracts with customers acquired in a business combination by providing specific guidance on how to recognize and measure acquired contract assets and contract liabilities from revenue contracts in a business combination. The amendments in this Update apply to all entities that enter into a business combination within the scope of Subtopic 805-10, Business Combination-Overalls. For public business entities, ASU 2021-08 is effective for fiscal years beginning after December 15, 2022, including interim periods within those fiscal years. Early application is permitted. The amendments in this Update should be applied prospectively to business combinations occurring on or after the effective date of the amendments. The Company does not expect the adoption of this standard to have a material impact on its consolidated financial statements.

 

Except as mentioned above, the Company does not believe other recently issued but not yet effective accounting standards, if currently adopted, would have a material effect on the Company’s consolidated balance sheets, consolidated statements of operations, comprehensive loss and cash flows.

 

Reclassification

 

Certain prior year amounts in the consolidated financial statements and the notes thereto have been reclassified where necessary to conform to the current year presentation. These reclassifications did not affect the prior period total assets, total liabilities, stockholders’ deficit, net loss or net cash used in operating activities.

 

Note 3 — Stockholders’ Equity

   

A. Common stock:

 

Common stock confers upon its holders the rights to receive notice to participate and vote in general meetings of the Company, and the right to receive dividends if declared.

 

B. Series A preferred stock:

 

As part of the consideration paid by TINGO GROUP to TMNA at the closing of the Merger on December 1, 2022, the Company issued 2,604.28 shares of Series A preferred stock which are convertible into 26,042,808 shares of TINGO GROUP common stock equal to approximately 20.1% of the total issued and outstanding common stock immediately prior to Closing. The Series A preferred stocks will be convertible to TINGO GROUP common stock upon stockholders approval. If stockholders have not approved the conversion of the Series A Preferred Stock into TINGO GROUP common stock by June 30, 2023 (the “Trigger Date”), then, TINGO GROUP will issue to TMNA stocks to cause TMNA to own 27% of the total issued and outstanding membership interests of TGH. See also Note 13.

 

C. Temporary equity:

 

As part of the consideration paid by TINGO GROUP to TMNA at the closing of the Tingo Merger on December 1, 2022, the Company issued 33,687.21 shares of Series B preferred stock convertible into 336,872,138 shares of TINGO GROUP common stock equal to approximately 35% of the total issued and outstanding common stock immediately prior to Closing. The Series B preferred stocks will be convertible to TINGO GROUP common stock upon approval by Nasdaq of the change of control of TINGO GROUP and upon the approval of TINGO GROUP’s stockholders. If such shareholder or Nasdaq approval is not obtained by June 30, 2023, TMNA shall have the right to (i) cause the redemption of Series B preferred stock to take place within 90 days; and (ii) cause TINGO GROUP to redeem all of the Series B preferred stock in exchange for $666,666,667 or an amount of common stock of TGH equivalent in value to $666,666,667. See also Note 13. As the redemption provisions to redeem the Series B preferred stock in cash is outside the control of the Company and contingent upon the approval of shareholders or Nasdaq approval of the change in control application of Tingo Group, they are required to be presented outside of Stockholders’ Equity and therefore were presented as temporary equity on the face of the Consolidated Balance Sheets.

 

F-26

 

 

TINGO GROUP, Inc.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

(In Thousands, except Share and Par Value Data)

 

C. Stock Option Plan:

 

2012 plan. Our 2012 Stock Incentive Plan (the “2012 Incentive Plan”) was initially adopted by the Board on November 26, 2012 and approved by our stockholders on January 7, 2013 and subsequently amended on September 30, 2014, October 26, 2015, November 15, 2017 and November 8, 2018. Under the 2012 Incentive Plan, as amended, up to 5,000,000 shares of our Common Stock, are currently authorized to be issued pursuant to option awards granted thereunder, 3,994,782 shares of which have been issued or have been allocated to be issued as of December 31, 2022 and 1,005,218 shares remain available for future issuance as December 31, 2022. The 2012 Incentive Plan is intended as an incentive to retain directors, officers, employees, consultants and advisors to the Company, persons of training, experience and ability, to attract new employees, directors, consultants and advisors whose services are considered valuable, to encourage the sense of proprietorship and to stimulate the active interest of such persons in the development and financial success of the Company, by granting to such persons options to purchase shares of the Company’s Common Stock (“2012 Options”), shares of the Company’s stock, with or without restrictions, or any other share-based award (“2012 Award(s)”). The Plan is intended as an incentive to retain in the employ of, and as directors, consultants and advisors to TINGO GROUP, Inc., and its subsidiaries (including any “employing company” under Section 102(a) of the Ordinance (as hereinafter defined) and any “subsidiary” within the meaning of Section 424(f) of the United States Internal Revenue Code of 1986, as amended (the “Code”), collectively, the “Subsidiaries”), persons of training, experience and ability, to attract new employees, directors, consultants and advisors whose services are considered valuable, to encourage the sense of proprietorship and to stimulate the active interest of such persons in the development and financial success of the Company and its Subsidiaries, by granting to such persons either (i) options to purchase shares of the Company’s Stock, (the “Options”), (ii) shares of the Company’s Stock, with or without restrictions, or (iii) any other Stock-based award, granted to a Grantee or an Optionee (as such terms are defined below hereunder) under the Plan and any Stock issued pursuant to the exercise thereof. Stock awards and the grant of Options to purchase shares of Stock, or the issue of each of the above under sub-sections (i) - (iii) shall be referred as the “Award(s).

 

2020 plan. The 2020 Incentive Plan provides for the issuance of up to 25,000,000 shares of our common stock plus a number of additional shares issued upon the expiration or cancellation of awards under our 2014 Incentive Plan, which was terminated when the 2020 Incentive Plan was approved by our stockholders. Generally, shares of common stock reserved for awards under the 2020 Incentive Plan that lapse or are canceled (other than by exercise) will be added back to the share reserve available for future awards. However, shares of common stock tendered in payment for an award or shares of common stock withheld for taxes are not available again for future awards. In addition, Shares repurchased by the Company with the proceeds of the option exercise price may not be reissued under the 2020 Incentive Plan.

 

The following table summarizes information about stock options outstanding and exercisable as of December 31, 2022:

 

Options Outstanding   Options Exercisable 
Number
Outstanding on
December 31,
2022
   Weighted Average
Remaining
Contractual Life
   Number
Exercisable on
December 31,
2022
   Exercise Price 
    Years       $ 
 125,000    8.5    125,000    1.41 
 370,000    8.5    277,500    1.81 
 95,000    8.5    31,667    2.49 
 590,000         434,167      

 

F-27

 

 

TINGO GROUP, Inc.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

(In Thousands, except Share and Par Value Data)

 

B. Stock Option Plan - (continued):

 

   Year ended
December  31, 2022
   Year ended
December 31, 2021
 
   Number of Options   Weighted
Average
Exercise
Price
   Number of Options   Weighted
Average
Exercise
Price
 
                 
Options outstanding at the beginning of period:   1,558,000   $1.74    1,158,000   $2.24 
Changes during the period:                    
Granted   
-
   $
-
    740,000   $1.97 
Exercised   
-
   $
-
    (60,000)  $1.35 
Forfeited   (968,000)  $1.68    (280,000)  $1.41 
                     
Options outstanding at the end of the period   590,000   $1.83    1,558,000   $1.74 
Options exercisable at the end of the period   434,167   $1.74    1,118,000   $1.57 

 

The Company has warrants outstanding as follows:

 

   Warrants
Outstanding
   Average
Exercise
Price
   Remaining
Contractual
Life
 
Balance, December 31, 2021   62,863,879   $2.854    4.5 
Granted   
-
   $
-
    
-
 
Forfeited   
-
   $
-
    
-
 
Exercised   
-
   $
-
    
-
 
Balance, December 31, 2022   62,863,879   $2.854    4.25 

 

The Company is required to assume a dividend yield as an input in the Black-Scholes model. The dividend yield assumption is based on the Company’s historical experience and expectation of future dividends payouts and may be subject to change in the future.

 

The Company uses historical volatility in accordance with FASB ASC Topic 718, “Compensation - stock compensation”. The computation of volatility uses historical volatility derived from the Company’s exchange-traded shares.

 

The risk-free interest assumption is the implied yield currently available on U.S. Treasury zero-coupon bonds, issued with a remaining term equal to the expected life term of the Company’s options.

 

Pre-vesting rates forfeitures were zero based on pre-vesting forfeiture experience.

 

The fair value of each option granted is estimated on the date of grant, using the Black-Scholes option-pricing model with the following weighted average assumptions: dividend yield of 0% for all years; expected volatility: 2022 and 2021-87.2%-100.4%; risk-free interest rate: 2022 and for 2021-0.99%-1.64%; and expected life: 2022 and for 2021-6.5-10 years.

 

The Company uses the simplified method to compute the expected option term for options granted.

 

F-28

 

 

TINGO GROUP, Inc.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

(In Thousands, except Share and Par Value Data)

 

On November 2, 2020 the Company entered into a Securities Purchase Agreement (the “Purchase Agreement”) with certain investors for the purpose of raising $25.0 million in gross proceeds for the Company (the “Offering”). Pursuant to the terms of the Purchase Agreement, the Company sold, in a registered direct offering, an aggregate of 10,000,000 units (each, a “Unit”), with each Unit consisting of one share of the Company’s common stock and one warrant to purchase 0.8 of one share of Common Stock at a purchase price of $2.50 per Unit. The warrants are exercisable nine months after the date of issuance at an exercise price of $3.12 per share and will expire five years following the date the warrants become exercisable. The closing of the sale of Units pursuant to the. Purchase Agreement occurred on November 4, 2020. By December 31, 2020, the Company had received a total of $22.325 million in gross proceeds pursuant to Offering and issued in the aggregate, 7,600,000 Units. The remaining gross proceeds, in the additional aggregate amount of $2.675 million, were received by the Company on March 1, 2021 and in consideration for such proceeds, the Company issued the remaining 2,400,000 units.

 

On February 11, 2021, the Company announced that it had entered into a securities purchase agreement (the “February Purchase Agreement”) with certain institutional investors for the sale of (i) 22,471,904 shares of common stock, (ii) 22,471,904 Series A warrants to purchase 22,471,904 shares of common stock and (iii) 11,235,952 Series B warrants to purchase 11,235,952 shares of common stock at a combined purchase price of $2.67 (the “February Offering”). The gross proceeds to the Company from the February Offering were expected to be approximately $60.0 million. The Series A warrants will be exercisable nine months after the date of issuance, have an exercise price of $2.80 per share and will expire five and one-half years from the date of issuance. The Series B warrants will be exercisable nine months after the date of issuance, have an exercise price of $2.80 per share and will expire three and one-half years from the date of issuance. The Company received net proceeds of $54.0 million on February 16, 2021 after deducting the placement agent’s fees and other expenses.

 

On March 2, 2021, the Company entered into a securities purchase agreement (the “March Purchase Agreement”) with certain investors for the purpose of raising approximately $54.0 million in gross proceeds for the Company. Pursuant to the terms of the March Purchase Agreement, the Company agreed to sell, in a registered direct offering, an aggregate of 19,285,715 shares of the Company’s common stock, par value $0.001 per share, at a purchase price of $2.675 per share and in a concurrent private placement, warrants to purchase an aggregate of 19,285,715 shares of common stock, at a purchase price of $0.125 per warrant, for a combined purchase price per share and warrant of $2.80 which was priced at the market under Nasdaq rules. The warrants are immediately exercisable at an exercise price of $2.80 per share, subject to adjustment, and expire five years after the issuance date. The closing date for the transaction consummated under the March Purchase Agreement was on March 4, 2021. The Company received net proceeds of $48.69 million on March 4, 2021, after deducting the placement agent’s fees and other expenses.

  

On May 17, 2021, the Company’s Board of Directors (the “Board”) unanimously approved a grant of fully vested 6,000,000 shares of common stock to Mr. Darren Mercer, the Company’s Chief Executive Officer. The issuance of the shares was pursuant to the Company’s long term incentive plan as previously approved by the stockholders and negotiated in connection with the Company’s acquisition of Global Fintech Holdings Limited. The Board unanimously agreed to issue the shares in recognition of Mr. Mercer’s direct contribution to achieving numerous key deliverables including: (i) the completion of several acquisitions, including those of Fucheng Insurance and Magpie; (ii) obtaining regulatory approval from the Hong Kong SFC regarding the acquisition of Magpie; (iii) the execution of several major commercial contracts and partnerships, including with a number of major insurance agents and one of China’s largest payment service providers; (iv) the execution of an exclusive partnership with the Shanghai Petroleum and Natural Gas Trading Center to which allows TINGO GROUP to provide financial services to its customers; (v) the successful launch of the insurance business in December 2020 and the delivery of significant revenues and revenue growth in Q1 2021; and (vi) the completion of capital raises totaling in excess of $140 million and broadening the Company’s institutional investor base.

 

F-29

 

 

TINGO GROUP, Inc.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

(In Thousands, except Share and Par Value Data)

 

On May 17, 2021, the Board unanimously approved a grant of fully vested 300,000 shares of common stock of the Company to Richard Abrahams, Magpie’s Chief Executive Officer.

 

Our 2012 Incentive Plan was initially adopted by the Board on November 26, 2012 and approved by our stockholders on January 7, 2013 and subsequently amended on September 30, 2014, October 26, 2015, November 15, 2017 and November 8, 2018. Under the 2012 Incentive Plan, as amended, up to 5,000,000 shares of our common stock, are currently authorized to be issued pursuant to option awards granted thereunder. On May 17, 2021, May 23, 2021 and June 28, 2021, the Company granted an aggregate of 125,000, 370,000 and 245,000 respectively, options under the 2012 Incentive Plan, with an exercise price of $1.41, $1.81 and $2.49, respectively, of which 433,667 options vested and 150,000 options expired as of December 31, 2022. This resulted in a stock-based compensation expense of approximately $208,079 recorded for the twelve months ended December 31, 2022, based on a fair value determined using a Black-Scholes model.

 

On March 22, 2021, 20,000 shares of common stock were issued to an employee who exercised their options at an exercise price of $1.41.

 

In September 2021, the Board unanimously approved a grant of 87,000 fully vested shares of common stock of the Company to some of our employees.

 

On September 13, 2021, 40,000 shares of common stock were issued to an employee who exercised their options at an exercise price of $1.32.

 

On September 28, 2021, The Company granted 823,020 shares of common stock of the Company to China Strategic Investments Limited.

 

On May 10, 2022, The Company granted 1,659,500 shares of common stock of the Company to Cushman Holdings Limited, an unrelated third party, as an introducer fee for TMNA.

 

On May 10, 2022, The Company granted 858,631 shares of common stock of the Company to China Strategic Investments Limited, an unrelated third party, in connection with the GFHI acquisition as discussed in Note

 

On May 10, 2022, The Company granted 612,500 shares of common stock of the Company to some of our directors and employees. The shares were issued pursuant to the 2020 Incentive Plan.

 

On May 10, 2022, the Company’s Board unanimously approved a grant of fully vested 4,000,000 shares of common stock to Mr. Darren Mercer. The shares were issued under the Company’s long term incentive plan as such long term incentive plan previously approved by the stockholders and negotiated in connection with the Company’s acquisition of Global Fintech Holdings Limited. The Board unanimously agreed to issue the shares in recognition of Mr. Mercer’s direct contribution to achieving numerous key deliverables including: (i) the execution of several major commercial contracts and partnerships, including with a number of major insurance agents and one of China’s largest payment service providers; (ii) entered into an Agreement and Plan of Merger with Tingo.

 

F-30

 

 

TINGO GROUP, Inc.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

(In Thousands, except Share and Par Value Data)

 

On December 1, 2022, The Company granted 2,000,000 shares of common stock of the Company to Mr. Wei Qi, the company consultant, who has a professional business development goal as part of his agreement with the company. The shares were issued pursuant to the 2020 Incentive Plan.

 

On February 5, 2023, The Company granted 1,309,500 shares of common stock of the Company to Cushman Holdings Limited, an unrelated third party, as a success fee relating to the completion of the acquisition of Tingo Mobile Limited.

 

On February 5, 2023, The Company granted 750,000 shares of common stock of the Company to an unrelated third party, relating to the purchase by GFH Intermediate Holdings Limited of certain software, technology and intellectual property from the beneficial owner of Data Insight Holdings Limited,

 

On February 5, 2023, The Company granted 100,000 shares of common stock of the Company to China Strategic Investments Limited as an ex gratia payment for the provision of corporate finance services. 

 

On February 5, 2023, The Company granted 720,000 shares of common stock of the Company to certain directors and employees. The shares were issued pursuant to the 2020 Incentive Plan and 2012 Incentive Plan.

 

On February 5, 2023, the Company’s Board unanimously approved a grant of 3,200,000 fully vested shares of common stock to Mr. Darren Mercer in recognition of the completion of the acquisition of Tingo Mobile which is expected to be transformational for the Company. The size of the award takes into account the improved terms for TINGO GROUP that were negotiated in October 2022, and also the value Mr Mercer is delivering to the growth of TINGO GROUP.

 

On March 6, 2023, The Company granted 48,000 shares of common stock of the Company to CORPROMINENCE LLC as part of the payment for their services. 

 

NOTE 4 — FAIR VALUE MEASUREMENTS

 

The Company measures and reports certain financial instruments as assets and liabilities at fair value on a recurring basis. The Company’s financial assets measured at fair value on a recurring basis were as follows (in thousands)

 

   Fair value measurements 
   December 31, 2022 
(USD in thousands)  Level 1   Level 2   Level 3   Total 
Cash and cash equivalents  $500,316    
     -
    
     -
   $500,316 
Total  $500,316    
-
    
-
   $500,316 

 

   Fair value measurements 
   December 31, 2021 
(USD in thousands)  Level 1   Level 2   Level 3   Total 
Cash and cash equivalents  $96,619    
     -
    
        -
   $96,619 
Total  $96,619    
-
    
-
   $96,619 

 

F-31

 

 

TINGO GROUP, Inc.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

(In Thousands, except Share and Par Value Data)

 

NOTE 5 — PROPERTY AND EQUIPMENT, NET

 

Property and equipment consist of the following:

 

   December 31, 
(USD in thousands)  2022   2021 
Building  $29,256   $- 
Land   8,097    - 
Office furniture and equipment   577    431 
Site installations   176,150    - 
Cell phones   1,258,902    - 
Machinery and equipment   9,408    153 
Leasehold improvement   225    203 
Transportation equipment   688    415 
    1,483,303    1,202 
Less accumulated depreciation and amortization   (628,178)   (525)
PROPERTY AND EQUIPMENT, NET  $855,125   $677 

 

Depreciation and amortization expenses totaled $34,176 and $163 for the years ended December 31, 2022 and 2021, respectively.

 

NOTE 6 — INTANGIBLE ASSETS, NET

 

Composition:

 

   Useful
life
  December 31,   December 31, 
(USD in thousands)  years  2022   2021 
Original amount:           
Technology know-how  6  $11,490   $11,490 
Trade name/trademarks  Indefinite or
5-8 years
   55,507    923 
Customer relationship  5-10 years   4,802    4,802 
Farmer Cooperative  6 years   24,811    
-
 
License  Indefinite or
10 years
   8,498    8,498 
Software  5-6 years   90,332    172 
       195,440    25,885 
Accumulated amortization:             
Technology know-how      (4,788)   (2,873)
trade name/ trademarks      (859)   (174)
Customer related intangible assets      (2,288)   (1,355)
Farmer Cooperative      (345)   
-
 
License      (235)   (39 
Software      (1,518)   (2)
       (10,033)   (4,443)
INTANGIBLE ASSETS, NET     $185,407   $21,442 

 

The estimated future amortization of the intangible assets (excluded of deferred tax assets) as of December 31, 2022 is as follows:

 

(USD in thousands)    
2023  $29,765 
2024   29,765 
2025   29,257 
2026   27,791 
2027 onward   61,910 
Total  $178,028 

 

F-32

 

 

TINGO GROUP, Inc.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

(In Thousands, except Share and Par Value Data)

 

NOTE 7 — EQUITY INVESTMENT IN MICRONET

 

As of March 31, 2021, the Company held 50.31% of Micronet’s issued and outstanding shares. On May 9, 2021, following the exercise of options by minority stockholders, the Company’s ownership interest was diluted to 49.88% and as a result the Company is no longer required to consolidate Micronet’s operating results in its financial statements. From May 9, 2021, the Company accounted for the investment in Micronet in accordance with the equity method. The company recognized a loss in 2021 from deconsolidation of Micronet in the amount of $1,934.

 

On June 16, 2021, Micronet announced that it had completed a public equity offering on the TASE. Pursuant to the offering, Micronet sold an aggregate number of 18,400 securities units (the “Units”) at a price of 14.6 NIS per Unit with each Unit consisting of 100 ordinary shares, 25 series A options and 75 series B options, resulting in the issuance of 1,840,000 ordinary shares, 460,000 series A options and 1,380,000 series B options. Micronet raised total gross proceeds of 26,864,000 NIS (approximately $8,290,000) in the Offering. The Company did not participate in the Offering, and, as a result, the Company’s ownership interest was further diluted to 31.47% of the outstanding ordinary shares of Micronet and 30.54% on a fully diluted basis as of December 31, 2022.

 

Purchased identifiable intangible assets are amortized on a straight-line basis over their respective useful lives. The table set forth below summarizes the estimates of the fair value of assets acquired and liabilities assumed and resulting gain on bargain purchase.

 

On November 13, 2019, the Company and Micronet executed a convertible loan agreement pursuant to which the Company agreed to loan to Micronet $500,000 (the “Convertible Loan”). The Convertible Loan bears interest at a rate of 3.95% calculated and paid on a quarterly basis. In addition, the Convertible Loan, if not converted, shall be repaid in four equal installments, the first of such installment payable following the fifth quarter after the issuance of the Convertible Loan, with the remaining three installments due on each subsequent quarter thereafter, such that the Convertible Loan shall be repaid in full upon the lapse of 24 months from its issuance. In addition, the outstanding principal balance of the Convertible Loan, and all accrued and unpaid interest, is convertible at the Company’s option, at a conversion price equal to 0.38 NIS per Micronet share. Pursuant to the convertible loan agreement, Micronet also agreed to issue the Company an option to purchase one of Micronet’s ordinary shares for each ordinary share that it issued as a result of a conversion of the Convertible Loan at an exercise price of 0.60 NIS per share, exercisable for a period of 15 months. On July 5, 2020, the Company had a reverse split where the price of the Convertible Loan changed from 0.08 NIS per Micronet share into 5.7 NIS per Micronet share. The option’s exercise price changed from 0.6 NIS per share to 9 NIS per Micronet share.

 

On January 1, 2020, the Convertible Loan was approved at a general meeting of the Micronet shareholders and as a result, the Convertible Loan and the transactions contemplated thereby became effective. The loan was repaid on January 4, 2022.

 

On August 13, 2020, TINGO GROUP Telematics extended to Micronet an additional loan in the aggregate amount of $175 (the “Loan Sum”) which governed the existing outstanding intercompany debt. The loan does not bear any interest and has a term of twelve months. The Loan Sum was granted for the purpose of supporting Micronet’s working capital and general corporate needs. The loan was repaid on August 25, 2021.

 

NOTE 8 — GFH Intermediate Holdings Ltd Acquisition

 

On July 1, 2020, TINGO GROUP completed its acquisition of GFHI pursuant to the previously announced agreement and plan of merger (the “Merger Agreement”) entered into on November 7, 2019 by and between TINGO GROUP, Micronet, GFHI, Global Fintech Holding Ltd, a British Virgin Islands company and the sole shareholder of GFHI, and TINGO GROUP Merger Subsidiary Inc., a British Virgin Islands company and a wholly owned subsidiary of TINGO GROUP, as amended and restated on April 15, 2020. As described in the Merger Agreement, upon consummation of the acquisition, the outstanding share of GFHI were cancelled in exchange for a convertible promissory note in the principal amount of $25,000 issued to GFH by TINGO GROUP. This note has been converted into 22,727,273 shares of common stock of TINGO GROUP at a conversion price of $1.10 per share. As a result of the acquisition goodwill and intangible assets were created.

 

As of the date of this annual report, COVID-19 and the resulting government regulations enacted in China and elsewhere have not had a material adverse effect on GFHI financial reports; however, there can be no assurance that GFHI financial reports will not be affected in the future from COVID-19 or resulting government actions.

 

F-33

 

 

TINGO GROUP, Inc.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

(In Thousands, except Share and Par Value Data)

 

Purchased identifiable intangible assets are amortized on a straight-line basis over their respective useful lives. The table set forth below summarizes the estimates of the fair value of assets acquired and liabilities assumed and resulting gain on bargain purchase. In addition, the following table summarizes the allocation of the preliminary purchase price as of the acquisition date:

 

GFH Intermediate Holdings LTD, Purchase Price Allocation

 

(USD in thousands)

 

Total share consideration (1)  $32,050 
Total Purchase Consideration  $32,050 
Less:     
Intangible assets - trade name/ trademarks  $580 
Intangible assets - developed technology   11,490 
Intangible assets - Customer database (2)   4,500 
Deferred Tax liability (3)   (4,308)
Fair value of net assets acquired  $12,262 
Goodwill value (4)  $19,788 

 

(1) The purchase consideration represented the fair value of the convertible promissory notes that were converted into common stock of TINGO GROUP.
(2) The customer database value is based on the cost to recreate, as indicated by management.
(3) Represents the income tax effect of the difference between the accounting and income tax bases of the identified intangible assets, using an assumed statutory income tax rate of 26%.
(4) The goodwill is not deductible for tax purposes.

 

NOTE 9 — VIE’S AGREEMENTS

 

The Company consolidates certain VIEs as it is the primary beneficiary since it has both the power to direct the activities of the VIEs that most significantly impact the VIE’s economic performance and has the right to receive benefits or the obligation to absorb losses of the VIEs that could potentially be significant to the VIEs which are derived from various agreements described below.

 

VIE agreements with Guangxi Zhongtong Insurance Agency Co., Ltd (Guangxi Zhongtong):

 

On January 1, 2021, Bokefa Petroleum and Gas Co. Ltd., our wholly foreign-owned enterprise (“WFOE”), Guangxi Zhongtong, and nominee shareholders of Guangxi Zhongtong entered into six agreements, described below, pursuant to which Bokefa is deemed to have controlling financial interest and be the primary beneficiary of Guangxi Zhogntong. Therefore, Guangxi Zhongtong is deemed a VIE of Bokefa:

 

Loan Agreement

 

Pursuant to this agreement, Bokefa agreed to provide loans to the nominee shareholders of Guangxi Zhongtong. The term of the loan shall start from the date when the loan is actually paid, until the date on which the loan is repaid in full. The agreement shall terminate when the shareholders repay the loan. The loan should be used solely for Guangxi Zhongtong’s operating expenses and should be exclusively repaid by transferring shares of Guangxi Zhongtong to Bokefa when PRC Law permits.

 

Exclusive Option Agreement

 

The effective term of the agreement is unlimited and the agreement shall terminate upon the transfer of all the equity interest of Guangxi Zhongtong to Bokefa in accordance with relevant laws and provisions as provided in the agreement, or upon written notice by Bokefa to shareholders. In consideration of Bokefa’s loan arrangement, the shareholders have agreed to grant Bokefa an exclusive option to purchase their equity interest. Distribution of residual profits, if any, are restricted without the approval of Bokefa. Upon request by Bokefa, Guangxi Zhongtong is obligated to distribute profits to the shareholders of Guangxi Zhongtong, who must remit such profits to Bokefa immediately. Guangxi Zhongtong and its shareholders are required to act in a manner that is in the best interest of Bokefa with regards to Guangxi Zhongtong’s business operation.

 

Equity Pledge Agreement

 

The agreement will be terminated upon such date when the other agreements have been terminated. Pursuant to the agreement, the nominee shareholders pledged all their equity interest in Guangxi Zhongtong to Bokefa as security for the obligations in the other agreements. Bokefa has the right to receive dividends on the pledged shares, and all shareholders are required to act in a manner that is in the best interest of Bokefa.

 

F-34

 

 

TINGO GROUP, Inc.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

(In Thousands, except Share and Par Value Data)

 

Business Cooperation Agreement

 

The agreement is effective until terminated by both parties. Guangxi Zhongtong and its shareholders agree that the legal person, directors, general manager and other senior officers of Guangxi Zhongtong should be appointed or elected by Bokefa. Guangxi Zhongtong and its shareholders agree that all the financial and operational decisions for Guangxi Zhongtong will be made by Bokefa.

 

Exclusive Service Agreement

 

The effective term of this agreement is for one year and it can be extended an unlimited number of times if agreed by both parties. Bokefa agrees to provide exclusive technical consulting and support services to Guangxi Zhongtong and Guangxi Zhongtong agrees to pay service fees to Bokefa.

 

Entrustment and Power of Attorney Agreement

 

The shareholders of Guangxi Zhongtong agreed to entrust all the rights to exercise their voting power and any other rights as shareholders of Guangxi Zhongtong to Bokefa. The shareholders of Guangxi Zhongtong have each executed an irrevocable power of attorney to appoint Bokefa as their attorney-in-fact to vote on their behalf on all matters requiring shareholder approval.

 

On August 23, 2021, Beijing Yibao Technology Co., Ltd(“Beijing Yibao”), Guangxi Zhongtong , and two shareholders of Guangxi Zhongtong entered into a capital increase agreement pursuant to which Beijing Yibao would invest approximately RMB30,000 ($4,700) into Guangxi Zhongtong. On October 21, 2021, Beijing Yibao transferred the total investment funds of  RMB30,000 ($4,700)  to Guanxi Zhongtong, and 60% of the shares were issued to Beijing Yibao. The capital increase transaction was closed accordingly on October 21, 2021. As a result of the transaction, Beijing Yibao now holds a sixty percent (60%) equity interest in Guangxi Zhongtong and is the controlling shareholder. As a condition of the closing, the previous agreements consummated on January 1, 2021 per the GZ Frame Work Loan became null and void, and the loan lent to the shareholders under the GZ Frame Work Loan agreement should be fully repaid by the shareholders before December 31, 2023.

 

VIE agreements with Beijing Fucheng Lianbao Technology Co., Ltd. (Beijing Fucheng):

 

On December 31, 2020, as amended on August 25, 2021, Bokefa, Beijing Fucheng, and the shareholders of Beijing Fucheng entered into six agreements, described below, pursuant to which Bokefa is deemed to have a controlling financial interest and be the primary beneficiary of Beijing Fucheng. Therefore, Beijing Fucheng is deemed a VIE of Bokefa.

 

Loan Agreement

 

Pursuant to this agreement, Bokefa agreed to provide loans to the registered shareholders of Beijing Fucheng. The term of the loan under this agreement shall start from the date when the loan is actually paid and shall continue until the shareholders repay all the loan in accordance with this agreement. The agreement shall terminate when the shareholders repay the loan. The loan should be used solely for Beijing Fucheng’s operating expenses, and should be exclusively repaid by transferring shares of Beijing Fucheng to Bokefa when PRC Law permits.  

 

Exclusive Option Agreement

 

The effective term of the agreement is unlimited and the agreement shall terminate upon the transfer of all of the equity interest of Bejing Fucheng to Bokefa in accordance with relevant laws and provisions as provided in the agreement, or upon written notice by Bokefa to the shareholders. In consideration for Bokefa’s loan arrangement, the shareholders have agreed to grant Bokefa an exclusive option to purchase their equity interest. Distribution of residual profits, if any, is restricted without the approval of Bokefa. Upon request by Bokefa, Beijing Fucheng is obligated to distribute profits to the shareholders of Beijing Fucheng, who must remit those profits to Bokefa immediately. Beijing Fucheng and its shareholders are required to act in a manner that is in the best interest of Bokefa with regards to Beijing Fucheng’s business operations.

 

Equity Pledge Agreement

 

The agreement will be terminated at the date when the other agreements have been terminated. Pursuant to the agreement, the shareholders pledged all their equity interest in Beijing Fucheng to Bokefa as security for their obligations under the agreements. Bokefa has the right to receive dividends on the pledged shares, and all shareholders are required to act in a manner that is in the best interest of Bokefa.

 

Business Cooperation Agreement

 

The agreement is effective until terminated by both parties. Beijing Fucheng and its shareholders agree that the legal person, directors, general manager and other senior officers of Beijing Fucheng should be appointed or elected by Bokefa. Beijing Fucheng and its shareholders agree that all financial and operational decisions of Beijing Fucheng will be made by Bokefa.

 

F-35

 

 

TINGO GROUP, Inc.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

(In Thousands, except Share and Par Value Data)

 

Exclusive Service Agreement

 

The effective term of this agreement is for one year and it can be extended an unlimited number of times if agreed by both parties. Bokefa agrees to provide exclusive technical consulting and support services to Beijing Fucheng and Beijing Fucheng agrees to pay service fees to Bokefa.

 

Entrustment and Power of Attorney Agreement

 

The shareholders of Beijing Fucheng agreed to entrust all the rights to exercise their voting power and any other rights as shareholders of Beijing Fucheng to Bokefa. The shareholders of Beijing Fucheng have each executed an irrevocable power of attorney to appoint Bokefa as their attorney-in-fact to vote on their behalf on all matters requiring shareholder approval. The agreement is effective until deregistration of Beijing Fucheng.

 

VIE agreements with All Weather Insurance Agency Co., Ltd. (All Weather):

 

On July 1, 2021, Bokefa, All Weather., and nominee shareholders of All Weather entered into six agreements, described below, pursuant to which Bokefa is deemed to have a controlling financial interest and be the primary beneficiary of All Weather. All Weather., Ltd.is deemed a VIE of Bokefa.

 

Loan Agreement

 

Pursuant to this agreement, Bokefa agreed to provide loans to the nominee shareholders of All Weather. The term of the loan is one year and shall start from the date when the loan is actually paid. The agreement shall terminate when the shareholders repay the loan. The loan should be used solely by All Weather for operating expenses, and should be exclusively repaid by transferring shares of All Weather to Bokefa when PRC Law permits.

 

Exclusive Option Agreement

 

The effective term of the agreement is unlimited and the agreement shall terminate upon the transfer of all of the equity interest of All Weather to Bokefa in accordance with relevant laws and provisions in the agreement, or upon written notice by Bokefa to the shareholders. In consideration for Bokefa’s loan arrangement, the shareholders have agreed to grant Bokefa an exclusive option to purchase their equity interest. Distribution of residual profits, if any, is restricted without the approval of Bokefa. Upon request by Bokefa, All Weather is obligated to distribute profits to the shareholders of All Weather, who must remit the profits to Bokefa immediately. All Weather and its shareholders are required to act in a manner that is in the best interest of Bokefa with regard to All Weather’s business operations.

 

Equity Pledge Agreement

 

The agreement will be terminated at the date when the other agreements have been terminated. Pursuant to the agreement, the nominee shareholders pledged all of their equity interest in All Weather to Bokefa as security for their obligations pursuant to the other agreements. Bokefa has the right to receive dividends on the pledged shares, and all shareholders are required to act in a manner that is in the best interest of Bokefa.

 

Business Cooperation Agreement

 

The agreement is effective until terminated by both parties. All Weather and its shareholders agree that the legal person, directors, general manager and other senior officers of All Weather should be appointed or elected by Bokefa. All Weather and its shareholders agree that all the financial and operational decisions of All Weather will be made by Bokefa.

 

Exclusive Service Agreement

 

The effective term of this agreement is for one year and it can be extended an unlimited number of times if agreed by both parties. Bokefa agrees to provide exclusive technical consulting and support services to All Weather and All Weather agrees to pay service fees to Bokefa.

 

Entrustment and Power of Attorney Agreement

 

The shareholders of All Weather agreed to entrust all their rights to exercise their voting power and any other rights as shareholders of All Weather to Bokefa. The shareholders of All Weather have each executed an irrevocable power of attorney to appoint Bokefa as their attorney-in-fact to vote on their behalf on all matters requiring shareholder approval. The agreement is effective until the deregistration of All Weather.

 

F-36

 

 

TINGO GROUP, Inc.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

(In Thousands, except Share and Par Value Data)

 

VIE agreements with Tianjin Dibao Technology Development Co. Ltd. (Tianjin Dibao):

 

On April 2, 2022, Zheng Zhong Energy, Tianjin Dibao , and nominee shareholder of Tianjin Dibao entered into six agreements, described below, pursuant to which Zheng Zhong Energy is deemed to have a controlling financial interest and be the primary beneficiary of Tianjin Dibao. Tianjin Dibao is deemed a VIE of Zheng Zhong Energy.

 

Loan Agreement

 

Pursuant to this agreement, Zheng Zhong Energy agreed to provide loans to the shareholder of Tianjin Dibao. The term of the loan shall start from the date when the loan is actually paid. The agreement shall terminate when the shareholder repay the loan. The loan should be used solely to purchase Tianjin Dibao’s 76% equity, and should be exclusively repaid by transferring shares of Tianjin Dibao to Zheng Zhong Energy when PRC Law permits.

 

Exclusive Option Agreement

 

The effective term of the agreement is unlimited and the agreement shall terminate upon the transfer of all of the equity interest of Tianjin Dibao to Zheng Zhong Energy in accordance with relevant laws and provisions in the agreement, or upon written notice by Zheng Zhong Energy to the shareholder. In consideration for Zheng Zhong Energy’s loan arrangement, the shareholder have agreed to grant Zheng Zhong Energy an exclusive option to purchase their equity interest. Distribution of residual profits, if any, is restricted without the approval of Zheng Zhong Energy. Upon request by Zheng Zhong Energy, Tianjin Dibao is obligated to distribute profits to the shareholder of Tianjin Dibao, who must remit the profits to Zheng Zhong Energy immediately. Tianjin Dibao and its shareholder are required to act in a manner that is in the best interest of Zheng Zhong Energy with regard to Tianjin Dibao’s business operations.

 

Equity Pledge Agreement

 

The agreement will be terminated at the date when the other agreements have been terminated. Pursuant to the agreement, the nominee shareholder pledged all of their equity interest in Tianjin Dibao to Zheng Zhong Energy as security for their obligations pursuant to the other agreements. Zheng Zhong Energy has the right to receive dividends on the pledged shares, and all shareholders are required to act in a manner that is in the best interest of Zhengzhong Energy.

 

Business Cooperation Agreement

 

The agreement is effective until terminated by both parties. Tianjin Dibao and its shareholders agree that the legal person, directors, general manager and other senior officers of Tianjin Dibao should be appointed or elected by Zheng Zhong Energy. Tianjin Dibao and its shareholder agree that all the financial and operational decisions of Tianjin Dibao will be made by Zheng Zhong Energy.

 

Exclusive Service Agreement

 

The effective term of this agreement is for one year and it can be extended an unlimited number of times if agreed by both parties. Zheng Zhong Energy agrees to provide exclusive technical consulting and support services to Tianjin Dibao and Tianjin Dibao agrees to pay service fees to Zheng Zhong Energy.

 

Entrustment and Power of Attorney Agreement

 

The shareholder of Tianjin Dibao agreed to entrust all their rights to exercise their voting power and any other rights as shareholder of Tianjin Dibao to Zheng Zhong Energy. The shareholder of Tianjin Dibao have each executed an irrevocable power of attorney to appoint Zheng Zhong Energy as their attorney-in-fact to vote on their behalf on all matters requiring shareholder approval. The agreement is effective until the deregistration of Tianjin Dibao.

 

F-37

 

 

TINGO GROUP, Inc.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

(In Thousands, except Share and Par Value Data)

 

NOTE 10 — BEIJING FUCHENG LIANBAO TECHNOLOGY CO., LTD TRANSACTION

 

On February 10, 2021, the Company closed a transaction pursuant to which it acquired (via Beijing Fucheng in which it holds 24% and engaged in a VIE structure) all of the shares of Beijing Yibao Technology Co., Ltd., and, indirectly, its wholly-owned subsidiary Beijing Fucheng Insurance Brokerage Co., Ltd. (the “Fucheng Insurance Transaction”).

 

The table set forth below summarizes the estimates of the fair value of assets acquired and liabilities assumed. In addition, the following table summarizes the allocation of the preliminary purchase price as of the acquisition date:

 

Beijing Fucheng Lianbao Technology Co., Ltd transaction, Purchase Price Allocation

 

(USD in thousands)        
Total cash consideration   $ 5,711  
Total purchase consideration   $ 5,711  
Less:        
Net working capital   $ 926  
Property and equipment     26  
Intangible assets - License     4,814  
Current liabilities     (55 )
Fair value of net assets acquired   $ 5,711  

 

Since we started consolidating Beijing Fucheng Lianbao reports from February 10, 2021, the pro forma numbers are immaterial and therefore we did not present them.

 

NOTE 11 — Guangxi Zhongtong Insurance Agency Co., Ltd Acquisition

 

On January 1, 2021, we entered into a transaction through Bokefa, with the shareholders of Guangxi Zhongtong Insurance Agency Co., Ltd (“Guangxi Zhongtong”), a local Chinese entity with business and operations in the insurance brokerage business. Pursuant to the transaction, we granted loans to Guangxi Zhongtong’s shareholders through a frame work loan (the “GZ Frame Work Loan”) the amount of up to RMB 40,000 (approximately $6,125) (“GZ Frame Work Loan Amount”) which is designated, if exercised, to be used as a working capital loan for Guangxi Zhongtong. As of December 31, 2022, only RMB 8,010 (approximately $1,243) was drawn down from the GZ Frame Work Loan for working capital and approximately $919 was drawn down for loans to shareholders of Guangxi Zhongtong (as stipulated in the agreement). In consideration for the GZ Frame Work Loan, the parties entered into various additional agreements which include: (i) a pledge agreement pursuant to which the shareholders have pledged their shares for the benefit of  Bokefa in order to secure the GZ Frame work Loan Amount  (ii) an exclusive option agreement pursuant to which Bokefa has an exclusive option to purchase the entire issued and outstanding common shares of Guangxi Zhongtong from the shareholders (“Option Agreement”) under such terms set forth therein (which include an exercise price not less than the maximum GZ Frame Work Loan Amount and the right to convert the GZ Frame Work Loan Amount into the purchased shares) (iii) an entrustment agreement and power of attorney agreement pursuant to which the shareholders irrevocably entrusted and appointed Tianjin Bokefa as their proxy and trustee to exercise on their behalf any and all rights under applicable law and the articles of association of Guangxi Zhongtong in the shareholder’s equity interest in Guangxi Zhongtong (iv) a business cooperation agreement and a master exclusive service agreement which grants Bokefa rights related to Guangxi Zhongtong’s business and operations in order to secure repayment of the GZ Frame Work Loan Amount.

 

F-38

 

 

TINGO GROUP, Inc.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

(In Thousands, except Share and Par Value data)

 

This transaction was structured pursuant to a Variable Interest Entity, Structure (in which we do not hold the shares). As such, and given our direct ownership in Bokefa and its contractual arrangements with Guangxi Zhongtong, we are regarded as Guangxi Zhongtong’s controlling entity and primary beneficiary of Guangxi Zhongtong business. We have, therefore, consolidated the financial position and operating results of Guangxi Zhongtong using the fair value of the assets and liabilities of Guangxi Zhongtong.

 

Beijing Fucheng Lianbao Technology Co., Ltd is an entity incorporated on December 29, 2020, in which Bokefa owns 24% equity interest with the remaining 76% controlled by Bokefa through VIE agreements. On February 10, 2021, Beijing Fucheng acquired all of the shares of Beijing Yibao Technology Co., Ltd., which holds 100% of the equity interest in Beijing Fucheng Insurance Brokerage Co., Ltd. (“Fucheng Insurance”). Fucheng Insurance is a Chinese insurance brokerage agency and a nation-wide licensed entity which offers insurance brokerage services for a broad range of insurance products. Fucheng Insurance, through their nationwide license, will give us the flexibility to offer and create tailor-made insurance products, leverage customers directly or through distribution partners and procure better deals with both our existing and new insurance company partners. Fucheng Insurance further enables us to accelerate the onboarding of new agents onto our platforms all throughout China. It also creates the opportunity to promote our business through some of China’s biggest online portals, which will provide business-to-business-to-consumer (B2B2C) as well as business-to-consumer (B2C) channels. When Fucheng Insurance initiates its nationwide rollout of its mobile application, it will facilitate access to those portals’ large customer bases which will also offer TINGO GROUP’S full suite of insurance products. Beijing Fucheng shares were acquired for approximately $5,700, and funded through the Company.

 

On October 21, 2021, Yibao transferred such funds and the transaction closed. As a result of the transaction, Yibao now holds a sixty percent (60%) equity interest in Guangxi Zhongtong and is the controlling shareholder. As a condition of the Closing, the previous agreements consummated on January 1, 2021 per the Frame Work Loan became null and void.

 

Purchased identifiable intangible assets are amortized on a straight-line basis over their respective useful lives. The table set forth below summarizes the estimates of the fair value of assets acquired and liabilities assumed. In addition, the following table summarizes the allocation of the preliminary purchase price as of the acquisition date:

 

Guangxi Zhongtong Insurance Agency Co., Ltd, Purchase Price Allocation

 

(USD in thousands)

 

Total cash consideration   $
-
 
Total Purchase Consideration  $
-
 
Less:     
Debt-free net working capital  $613 
Property and equipment   13 
Intangible assets - Licenses   1,926 
Intangible assets - customer relationship (1)   248 
Deferred Tax liability (2)   (544)
Fair value of net assets acquired  $2,256 
Fair value of the Noncontrolling interest  $(3,231)
Gain on equity interest   1,128 
Equity investment   
-
 
Change in investment   (2,103)
Bargain gain from acquisition  $(153)

 

(1) The customer database value is based on the cost to recreate, as indicated by management.
(2) Represents the income tax effect of the difference between the accounting and income tax bases of the identified intangible assets, using an assumed statutory income tax rate of 26%.

 

F-39

 

 

TINGO GROUP, Inc.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

(In Thousands, except Share and Par Value Data)

 

NOTE 12 ALL WEATHER TRANSACTION

 

On July 1, 2021, we entered into a transaction through Bokefa, with the shareholders of All Weather, a local Chinese entity with business and operations in the insurance brokerage business. Pursuant to the transaction, we granted loans to All Weather’s shareholders through a frame work loan (the “AW Frame Work Loan”) the amount of up to RMB 30,000 (approximately $4,700) (“AW Frame Work Loan Amount”) which is designated, if exercised, to be used as a working capital loan for All Weather. As of December 31, 2022, RMB 30,000 (approximately $4,700) was drawn down from the AW Frame Work Loan for working capital. In consideration for the AW Frame Work Loan, the parties entered into various additional agreements which include: (i) a pledge agreement pursuant to which the shareholders have pledged their shares for the benefit of  Bokefa in order to secure the AW Frame work Loan Amount  (ii) an exclusive option agreement pursuant to which Bokefa has an exclusive option to purchase the entire issued and outstanding common shares of All Weather from the shareholders (“Option Agreement”) under such terms set forth therein (iii) an entrustment agreement and power of attorney agreement pursuant to which the shareholders irrevocably entrusted and appointed Bokefa as their proxy and trustee to exercise on their behalf any and all rights under applicable law and the articles of association of All Weather in the shareholder’s equity interest in All Weather (iv) a business cooperation agreement and a master exclusive service agreement which grants Bokefa rights related to All Weather’s business and operations in order to secure repayment of the AW Frame Work Loan Amount.

 

This transaction was structured pursuant to a Variable Interest Entity Structure (in which we do not hold the shares). As such, and given our direct ownership in Bokefa and its contractual arrangements with All Weather, we are regarded as All Weather’s controlling entity and primary beneficiary of All Weather’s business. We have, therefore, consolidated the financial position and operating results of All Weather into our consolidated financial statements, using the fair value of the assets and liabilities of All Weather.

 

Purchased identifiable intangible assets are amortized on a straight-line basis over their respective useful lives. The table set forth below summarizes the estimates of the fair value of assets acquired and liabilities assumed and resulting gain on bargain purchase. In addition, the following table summarizes the allocation of the preliminary purchase price as of the acquisition date:

 

All Weather, Purchase Price Allocation

 

(USD in thousands)

 

Total cash consideration   $
-
 
Total purchase consideration  $
-
 
Less:     
Debt-free net working capital  $(105)
Property and equipment   153 
Right of use assets   208 
Lease liabilities   (258)
Intangible assets - licenses (1)   849 
Intangible assets - customer relationship (1)   54 
Deferred Tax liability (2)   (226)
Fair value of net assets acquired  $675 
Noncontrolling interest  $(675)
Change in investment   (675)
Goodwill   $
-
 

 

(1) The customer database value is based on the cost to recreate, as indicated by management.
(2) Represents the income tax effect of the difference between the accounting and income tax bases of the identified intangible assets, using an assumed statutory income tax rate of 25%.

 

All Weather’s net revenues and net loss are presented if the acquisition date had occurred at the beginning of the annual reporting period.

 

   Year ended   Year ended 
   December 31,   December 31, 
  

(Unaudited)

 
(USD in thousands)  2022   2021 
Revenues  $146,035   $69,566 
           
Net loss  $(47,115)  $(36,514)

 

F-40

 

 

TINGO GROUP, Inc.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

(In Thousands, except Share and Par Value Data)

 

NOTE 13 TINGO MOBILE LIMITED TRANSACTION

 

On May 10, 2022, TMNA entered into the Tingo Merger Agreement with MICT Merger Sub, Inc., a Nevada corporation and a wholly owned subsidiary of TINGO GROUP (“Merger Sub”), and TINGO GROUP, Inc., a Delaware corporation (“TINGO GROUP”).

 

On June 15, 2022, TMNA, Merger Sub and TINGO GROUP entered into an Amended and Restated Agreement and Plan of Merger, following the completion of extensive due diligence by TINGO GROUP and its advisors.

 

Following the execution of the Amended and Restated Merger Agreement, TINGO GROUP and TMNA explored ways in which the combination of Tingo’s core businesses and TINGO GROUP could be accomplished with the greatest speed and efficiency and on a tax-free basis. Based upon advice from each of the companies’ advisors, the parties negotiated a Second Amended and Restated Merger Agreement, which determined the Merger to be a multi-phase forward-triangular Merger. On October 6, 2022, TINGO GROUP and TMNA, as well as individual representatives of each company’s shareholders, executed the Tingo Merger Agreement

 

On November 9, 2022, TMNA filed a Definitive Information Statement with the U.S. Securities and Exchange Commission to complete the Tingo Merger.

 

Pursuant to the Tingo Merger Agreement, TMNA transferred its ownership of Tingo Mobile to Tingo BVI Sub, which was then merged with and into MICT Fintech Limited (“MICT Fintech”), a British Virgin Islands company and a wholly-owned subsidiary of Tingo Group Holdings, LLC, a Delaware limited liability company and a wholly-owned subsidiary of TINGO GROUP (“TGH”)

 

On December 1, 2022 (the “Tingo Closing”), pursuant to certain joinder agreements, TGH and MICT Fintech were added as parties to the Merger Agreement, and TINGO GROUP completed the merger of Tingo BVI Sub with and into MICT Fintech (the “Tingo Combination”).

 

Under the terms of the Tingo Merger Agreement, TINGO GROUP issued to TMNA (i) 25,783,675 shares of common stock of TINGO GROUP, representing approximately 19.9% of the number of shares of TINGO GROUP’s common stock issued and outstanding; (ii) 2,604.28 shares of Series A Preferred Stock convertible into 26,042,808 shares of TINGO GROUP common stock equal to approximately 20.1% of the total issued and outstanding TINGO GROUP common stock immediately prior to Tingo Closing; and (iii) 33,687.21 shares of Series B Preferred Stock convertible into 336,872,138 shares of TINGO GROUP common stock equal to approximately 35% of the total issued and outstanding common stock immediately prior to Tingo Closing. The rights of the Series A Preferred Stock and the Series B Preferred Stock are set forth in Certificates of Designation of Preferences, Rights and Limitations that TINGO GROUP filed with the Secretary of State of the State of Delaware on November 30, 2022.

 

Also, at the Tingo Closing, TINGO GROUP added two individuals appointed by TMNA to TINGO GROUP’s existing board of directors.

 

Following execution of the Tingo Merger Agreement, TINGO GROUP extended to TMNA a loan in the principal amount of $23,700 with an interest rate of 5% per year (the “Amended Purchaser Loan”), and which amended and restated a previous loan agreement between TINGO GROUP and TMNA dated September 28, 2022, for a principal amount of $3,700.

 

If all of the transactions contemplated by the Tingo Merger Agreement and related agreements are consummated (including, for the avoidance of doubt, the conversions of the Series A Preferred Stock and Series B Preferred Stock into common stock), which will require further TINGO GROUP stockholder approval and Nasdaq approvals, such transactions would constitute a change of control of TINGO GROUP, as TMNA, would own a majority of the outstanding shares (on an as-converted basis) of TINGO GROUP.

 

Conversion of Series A Preferred Stock

 

Subject to stockholder approval, each share of Series A Preferred Stock will be convertible into approximately 10,000 shares of TINGO GROUP Common Stock. If stockholders have not approved the conversion of the Series A Preferred Stock into TINGO GROUP common stock by June 30, 2023 (the “Trigger Date”), then, (i) all issued and outstanding shares of Series A Preferred Stock will be immediately and automatically redeemed by TINGO GROUP, and all accrued and unpaid dividends thereon to the date of redemption extinguished, in consideration of the right to receive an aggregate amount, in respect of all shares of Series A Preferred Stock, of $1.00 in cash, and (ii) TINGO GROUP shall, within ten (10) business days following the Trigger Event, cause TINGO GROUP to issue to TMNA the amount of membership interests of TGH as needed to cause TMNA to own 27% of the total issued and outstanding membership interests of TGH, subject to the terms of the Series A Preferred Stock Certificate of Designations.

 

F-41

 

 

TINGO GROUP, Inc.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

(In Thousands, except Share and Par Value Data)

 

Conversion of Series B Preferred Stock

 

Upon approval by Nasdaq of the change of control of TINGO GROUP and upon the approval of TINGO GROUP’s stockholders, each share of Series B Preferred Stock issued by TINGO GROUP to TMNA shall automatically convert into 10,000 shares of TINGO GROUP common stock in accordance with the terms of its certificate of designation. If such shareholder or Nasdaq approval is not obtained by June 30, 2023, TMNA shall have the right to (i) cause the Series B Redemption to take place within 90 days; and (ii) cause TINGO GROUP to redeem all of the Series B Preferred Stock in exchange for (x) $666,666,667 or (y) an amount of common stock of TGH 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). As the Series B Preferred Stock redemption is contingent upon the approval of shareholders or Nasdaq approval, they are presented outside of Stockholders’ Equity in a total amount of approximately $553 million which reflect their fair value proportion from the consideration.

 

The Series B Preferred Stock shall have no voting rights, however, the Series B Preferred Stock are entitled to receive dividends and conversion rights. The dividend rate on Series B Preferred Stock shall be the sum of (i) 4% of the Stated Value (as defined in the Series B Certificate of Designation) per share per annum plus (ii) if a dividend was declared and paid on the outstanding shares of Common Stock, an amount equal to the amount each share of Series B Preferred Stock would have received if it had been converted into Common Stock prior to the payment of the dividend, as declared by the Board of Directors. Regarding the conversion rights, upon the occurrence of the Conversion Date as defined within the Series B Certificate of Designation, each outstanding share of Preferred Stock shall be automatically converted into 10,000 shares of Common Stock, which in the aggregate shall be equal to 35.0% of Common Stock outstanding immediately prior to the Tingo Closing.

 

In accordance with ASC 805, Business Combinations, at Tingo Closing, the Tingo Merger was accounted as business combinations under which, TINGO GROUP was the acquirer and Tingo BVI Sub and its subsidiaries will be treated as the “acquired” company for financial reporting purposes. Under the acquisition accounting method, the total estimated purchase price was allocated to the identifiable assets acquired and liabilities assumed based on their fair values. The excess of the purchase price over the net of the acquisition date amounts of the identifiable assets acquired and liabilities assumed has been recorded as goodwill. Management’s estimate of the fair values of the acquired intangible assets as of December 1, 2022 is preliminary and subject to change and is based on established and accepted valuation techniques performed with the assistance of third-party valuation specialists. Additional information, which existed as of the acquisition date but is yet unknown to the Company may become known to the Company during the remainder of the measurement period, which will not exceed twelve months from the acquisition date. Changes to amounts will be recorded as adjustments to the provisional amounts recognized as of the acquisition date and may result in a corresponding adjustment to goodwill in the period in which new information becomes available. The goodwill that arose from the acquisition consists of synergies expected from integrating Tingo Mobile into the Company’s operations and customer base.

 

Tingo Mobile, Purchase Price Allocation

 

Purchased identifiable intangible assets are amortized on a straight-line basis over their respective useful lives. The table set forth below summarizes the estimates of the fair value of assets acquired and liabilities assumed and resulting goodwill. In addition, the following table summarizes the allocation of the preliminary purchase price as of the acquisition date:

 

Total Merger consideration (1)  $1,215,241 
Total purchase consideration  $1,215,241 
Less:     
Net working capital  $170,327 
Property and equipment   844,764 
Intangible – farmer cooperative   24,811 
Intangible – trade names and trade marks   54,576 
Intangible – software   90,172 
Deferred tax liability (2)   (50,868)
   $1,133,782 
Goodwill (3)  $81,459 

 

(1)

The $1,215,241 value of the Merger Consideration transferred was determined in accordance with ASC 820 and ASC 805. ASC 820 requires that fair value to maximize objective evidence and be determined using assumptions that a market participant would use, and when level 1 inputs exist, it should be used unless determined to be not representative. That would have meant using the unadjusted TINGO GROUP quoted price at the time of completion of the Transaction. The Company is of the opinion however, that the market value per share price as quoted on Nasdaq is not representative of the fair value and should not be used to determine the merger consideration. Using market value per share of TINGO GROUP would have led to a significant bargain purchase gain and an internal rate of return that was not reasonable as well as other valuation anomalies that it created. Hence, and in accordance with ASC 805-30-30-5, the Company reassessed the determination of the consideration transferred and determined that using Tingo, Inc. quoted price traded at the OTC Tingo Closing is more appropriate in determining the consideration fair value.  

(2) Represents the income tax effect of the difference between the accounting and income tax bases of the identified intangible assets, using an assumed statutory income tax rate of 30%.
(3) The goodwill is not deductible for tax purposes.

 

F-42

 

 

TINGO GROUP, Inc.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

(In Thousands, except Share and Par Value Data)

 

During the measurement period, which is up to one year from the acquisition date, we may adjust provisional amounts that were recognized at the acquisition date to reflect new information obtained about facts and circumstances that existed as of the acquisition date.

 

NOTE 14 — SEGMENTS

 

ASC 280, “Segment Reporting”, establishes standards for reporting information about operating segments on a basis consistent with the Company’s internal organizational structure as well as information about geographical areas, operating segments and major customers in financial statements for detailing the Company’s operating segments.

 

Operating segments are based upon our internal organization structure, the manner in which our operations are managed and the availability of separate financial information. As a result of our acquisition of GFHI on July 1, 2020 (see Note 8) and Tingo Mobile on December 1, 2022 (see Note 13), we currently serve the marketplace, through our operating subsidiaries, as a financial technology company (Fintech Industry) targeting the African, Middle Eastern and South East Asia marketplaces as well as other areas of the world.

 

During the period between June 23, 2020, and May 9, 2021, we have held a controlling interest in Micronet, and we have presented our mobile resource management (“MRM”) business operated by Micronet as a separate operating segment. As of May 9, 2021, the Company’s ownership interest was diluted and, as a result, we deconsolidated Micronet.

 

As of December 31, 2022, the Company has 3 segments. This change came with the completion of the Tingo Mobile acquisition on December 1, 2022. The Company changed its reporting structure to better reflect what the CODM is reviewing to make organizational decisions and resource allocations. Following the loss of control over Micronet, MRM is no longer a separate operating segment or reportable segment since the CODM does not review discrete financial information for the business. The Company recast the information for the fiscal years ended December 31, 2022 to align with this presentation.

 

The activities of each of our reportable segments from which the Company earns revenues, records equity earnings or losses and incurs expenses are described below:

 

Verticals and technology segment develops insurance platform, for the Chinese market and have been generating revenues from insurance products in China.

 

Comprehensive platform service segment develops Nwassa agri-fintech marketplace platform, which enables customers in Nigeria to trade agricultural produce with customers, as well as to purchase farming inputs, to top up of airtime and data, to pay bills and utilities, to arrange insurance and to procure finance.

 

Online stock trading segment develops technology investment trading platform that is currently operational in Hong Kong and Singapore.

 

F-43

 

 

TINGO GROUP, Inc.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

(In Thousands, except Share and Par Value Data)

 

The following table summarizes the financial performance of our operating segments:

 

    Year ended December 31, 2021  
(USD in thousands)   Verticals
and
technology
    Comprehensive platform service    

Corporate
and others
(3)

    Online
stock
trading
    Consolidated  
                               
Revenues from external customers   $ 54,932               -      $ 726      $ 18     $ 55,676  
Segment operating loss     (9,604 )(1)     -       (20,788 )(2)     (7,504 )     (37,896 )
Other income, net                     (1,801 )            
(1,801
)
Finance income (expenses), net                     395       395          
Loss before provision for income taxes                                   $ (39,302 )

 

(1) Includes $2,931 of intangible assets amortization, derived from GFHI acquisition.
(2)Includes $103 of intangible assets amortization, derived from Micronet consolidation.
(3)Corporate and Other represents those results that: (i) are not specifically attributable to a reportable segment; (ii) are not individually reportable or (iii) have not been allocated to a reportable segment for the purpose of evaluating their performance, including certain general and administrative expense items.

 

   Year ended December 31, 2022 
(USD in thousands)  Verticals
and
technology
   Online
stock
trading
   Corporate
and others (3)
   Comprehensive platform service   Consolidated 
Revenues from external customers  $57,364   $55        $88,616   $146,035 
Segment operating loss   
(12,539
)(1)   (9,829)   (26,203)   36,779(2)   (11,792)
Other income, net             2,151         2,151 
Finance income (expenses), net             (750)        (750)
Consolidated loss before income tax benefit                      $(10,391)

 

(1) Includes $2,931 of intangible assets amortization, derived from GFHI acquisition.
(2)

Includes $2,416 of intangible assets amortization, derived from Tingo Mobile acquisition.

 

F-44

 

 

TINGO GROUP, Inc.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

(In Thousands, except Share and Par Value Data)

 

The following table summarizes the financial statements of our balance sheet accounts of the segments:

 

   As of December 31, 2021 
(USD in thousands)  Verticals
and
technology
   Comprehensive
platform
service
   Corporate
and others
   Online
stock
trading
   Consolidated 
                     
Assets related to segments  $86,474(1)  $
                -
    30,756   $60,581(3)  $177,811 
Liabilities related to segments   
(23,516
)(2)   
-
    (2,620)   (3,953)   (30,089)
Total equity                      $147,722 

 

(1) Includes $19,292 of intangible assets and $19,788 goodwill, derived from GFHI’s acquisition.
(2) Includes $3,728 of deferred tax liability, derived from GFHI acquisition.
(3) Includes $1,222 of intangible assets.

 

   As of December 31, 2022 
(USD in thousands)  Verticals
and
technology
   Online
stock
trading
   Comprehensive
platform
service
   Corporate
and others
   Consolidated 
                     
Assets related to segments  $40,831(1)  $21,077(3)  $1,541,093(4)   79,357   $1,682,358 
Liabilities and  redeemable preferred stock series B related to segments   
(18,406
)(2)   (3,911)   
(877,353
)(5)   (9,689)   (909,359)
Total equity                      $772,999 

 

(1) Includes $17,009 of intangible assets and $19,788 goodwill, derived from GFHI’s acquisition.

(2)

Includes $3,125 of deferred tax liability, derived from GFHI All weather and Zhongtong acquisitions.

(3) Includes $1,226 of intangible assets.
(4) Includes $167,143 of intangible assets and $81,459 goodwill, derived from Tingo Mobile acquisition.
(5) Includes $50,143 of deferred tax liability, derived from Tingo Mobile acquisition and $553,035 redeemable preferred stock series B.

 

NOTE 15 — TRADE ACCOUNTS RECEIVABLE, NET

 

Trade accounts receivable were comprised of the following:

 

   December 31,   December 31, 
(USD in thousands)  2022   2021 
Trade accounts receivable  $14,553   $20,485 
Allowance for doubtful accounts   (3,012)   (2,606)
   $11,541   $17,879 

 

F-45

 

 

TINGO GROUP, Inc.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

(In Thousands, except Share and Par Value Data)

 

Movement of allowance for doubtful accounts for the fiscal year ended December 31, 2022 and the fiscal year ended December 31, 2021 are as follows:

 

(USD in thousands)  2022   2021 
Beginning balance  $2,606   $5 
Provision   618    2,574 
Exchange rate fluctuation   (212)   32 
Decrease due to deconsolidation of Micronet   
-
    (5)
   $3,012   $2,606 

 

NOTE 16 — SUPPLEMENTARY FINANCIAL STATEMENTS INFORMATION

 

A. Other Current Assets:

 

   December 31,   December 31, 
   2022   2021 
(USD in thousands)        
Prepaid expenses  $1,019   $1,715 
Advance to suppliers   2,821    2,338
Deposit   287    1,335 
Business advance to employee   
-
    1,444 
Other receivables   1,701    1,033 
   $5,828   $7,865

 

 

B. Other Current Liabilities:

 

    December 31,  
(USD in thousands)   2022     2021  
Employees and wage-related liabilities   $ 1,064     $ 500  
expenses payable     5,298       -  
Payment received by customers in advance     15       73  
Accrued expenses     2,431       1,802  
Income tax payable     178,582       365  
Other tax payable     3,267       273  
Advances from employee     1,402       990  
Deposit     383       364  
Due to insurance companies     151       142  
Other     1       405  
    $ 192,594     $ 4,914  

 

F-46

 

 

TINGO GROUP, Inc.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

(In Thousands, except Share and Par Value Data)

 

NOTE 17 — RELATED PARTIES

 

Current assets – related parties

 

   December 31,   December 31, 
   2022   2021 
(USD in thousands)        
Shareholders of All Weather  $4,603   $3,680 
Beijing Fucheng Prospect Technology Co., Ltd   267      
Loan to Tingo Inc.(1)   8,099    
 
 
Convertible loan to Micronet (1)   
-
    535 
Shareholders of Guangxi Zhongtong   522    919 
   $13,491   $5,134 

 

  (1) Tingo’s loan- as discussed in Note 13.

 

Current liabilities – related parties

 

   December 31,   December 31, 
   2022   2021 
(USD in thousands)        
Shareholders of Bokefa Petroleum and Gas  $308   $
        -
 
Shareholders of All Weather   659    4 
Shareholders of Tingo Mobile Limited   56,539    
-
 
   $57,506   $4 

 

Darren Mercer, our Chief Executive Officer and a director, presently owns, with certain family members and related parties, approximately one third of the issued and outstanding shares of GFH and is the sole officer and one of three directors of GFH. In addition, prior to the closing the transactions contemplated by the agreement and plan of merger, entered into on November 7, 2019 and amended and restated on April 15, 2020 by and among TINGO GROUP, GFH Intermediate Holdings Ltd., a British Virgin Islands company (“Intermediate”), TINGO GROUP Merger Subsidiary Inc., a British Virgin Islands company and a wholly-owned subsidiary of TINGO GROUP (“Merger Sub”) and GHF as the sole shareholder of Intermediate, pursuant to which the Merger Sub merged with and into Intermediate, with Intermediate continuing as the surviving entity, as a result of which GFH became a wholly owned subsidiary of TINGO GROUP (the “Merger”). Mr. Mercer was the sole officer and director of Intermediate.

 

F-47

 

 

TINGO GROUP, Inc.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

(In Thousands, except Share and Par Value Data)

 

On April 2, 2020, Darren Mercer, current board member of the Company, was appointed, the interim Chief Executive Officer of the Company and was given a fee of $25 per month for his services to the Company. Effective on July 1, 2020 the board of directors approved the following consideration  for Darren Mercer: (i) An annual base fee will be $495 per year and, (ii) a signing bonus of $100 and, (iii) a total annual bonus in accordance with the bonus program adopted by the Company from time-to-time with a target bonus opportunity equal to 100% of the Base Fee, With respect to a Target Bonus for a given year, the Company shall award up to 40% of such Target Bonus, as it so determines, on the basis of Mr.  Mercer’s performance in the first six months of the year and up to the remaining 60% of such Target Bonus on the basis of Mr. Mercer’s performance in the remaining 6 months of the year.  In addition, the Board of Directors may declare and grant a discretionary bonus for Mr. Mercer based on various targets and performance criteria to be established by the Board of Directors. The evaluation of the performance of Mr. Mercer as measured by the applicable targets and the awarding of applicable bonuses, if any, shall be at the sole discretion of the Board of Directors. On December 21, 2020, the board of directors approve additional $200 bonus. The agreement shall end on the third anniversary of the Start Date. The engagement above was formalized in the foam of independent contractor.

 

Effective on October 2021, the board of directors approve Darren Mercer (“Executive”) new employment terms as follows: (i) an annual base salary fee will be $800 and, (ii) a total annual bonus in accordance with the bonus program adopted by the Company from time-to-time. The Target Bonus amount for Executive’s work in the calendar year 2021 shall be $713.  Executive’s Target Bonus opportunities for his work in the calendar years 2022 and 2023 shall be $1,200. The annual bonus under this Section 3(b), if any, shall be payable at the discretion of the Company based on achievement of performance metrics to be established by the Board for each year, including, for calendar years 2022 and 2023. Such metrics shall include goals based on revenue generated Executive’s consulting businesses.  Executive must be employed by the Company on the date of payment in order to earn and receive any above, except in the event of termination without Cause or resignation for Good Reason (as such terms are include In the Agreement).  In addition, the Board may declare and grant a discretionary bonus for Executive based on various targets and performance criteria to be established by the Board. The evaluation of the performance of Executive as measured by the applicable targets and the awarding of applicable bonuses, if any, shall be at the sole discretion of the Board. In addition, Executive shall be entitled to Health Insurance If available on commercially reasonable terms, based on a health insurance plan to be determined in the Company’s discretion, Key Man Life Insurance (at the Company sole discretion), up to 35 (thirty-five) days of paid vacation per year, subject to the Company’s vacation policies in effect from time-to-time and to those paid public holidays set by the Company. Executive is also entitled to be reimbursed for reasonable and customary business expenses incurred by Executive during employment subject to all terms and conditions of the Company’s expense policies in effect from time to time and for an expense account of $300 for the purposes of: (i) funding an office and accommodations for use of Executive and (ii) paying Executive additional compensation at the rate of $8.33 per month during the Term, as compensation for the additional expense of living overseas for those months in which Executive works for the Company outside the United Kingdom for at least five days.

 

As of December 31, 2022, Professor Yehezkel (Chezy) Ofir, held options to purchase 30,000 shares, 30,000 options to purchase shares were granted on May 23, 2021 at an exercise price of $1.81 per share. Out of which 22,500 of the options have vested.

 

As of December 31, 2022, Mr. Robert Benton, held options to purchase 80,000 shares, the options to purchase 80,000 shares were granted to him on May 23, 2021 at an exercise price of $1.81 per share. Out of which 60,000 of the options have vested.

 

As of December 31, 2022, Mr. John McMillan Scott held options to purchase 160,000 shares, the options to purchase 160,000 shares were granted to him on May 23, 2021 at an exercise price of $1.81 per share. Out of which 120,000 of the options have vested.

 

F-48

 

 

TINGO GROUP, Inc.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

(In Thousands, except Share and Par Value Data)

 

On October 6, 2022, the Company extended to Tingo Inc a loan in the principal amount of $23,700 with an interest rate of 5% per year, and which shall amend and restate the loan agreement between TINGO GROUP and Tingo dated September 28, 2022, for a principal amount of $3,700 (the “Previous Loan”). Pursuant to the Amended Purchaser Loan. In October 2022, Tingo Inc loan to Tingo mobile an amount of $15,866.The loan shall be due and payable on May 10, 2024 and bear interest at the rate of five percent (5%) per annum .

 

On February 5, 2023, the Company granted 720,000 shares of common stock of the Company to certain Directors and employees. The shares were issued pursuant to the 2020 Incentive Plan and 2012 Incentive Plan.

 

On February 5, 2023, the Company’s Board of Directors (the “Board”) unanimously approved a grant of 3,200,000 Fully vested shares of common stock to Mr. Darren Mercer, the Company’s Chief Executive Officer, in recognition of the completion of the acquisition of Tingo Mobile Limited, which is expected to be transformational for the Company. The size of the award takes into account the improved terms for the Company that were negotiated in October 2022, and also the value Mr Mercer is delivering to the growth of the Company .

 

NOTE 18 — COMMITMENT AND CONTINGENCIES

 

We have certain fixed contractual obligations and commitments that include future estimated payments. Changes in our business needs, cancellation provisions, and other factors may result in actual payments differing from the estimates. The following tables summarize our contractual obligations as of December 31, 2022, and the effect these obligations are expected to have on our liquidity and cash flows in future periods.

 

Contractual Obligation:   Total     Less than
1 year
    1-3 year     3-5 year     5+ year  
Office leases commitment     2,246,040       1,287,995       904,174       53,871       -  
Short-term debt obligations Commitment     837,442       460,477       376,965       -       -  
Services Contract Commitment     260,975       260,975       -       -       -  
Total     3,344,457       2,009,447       1,281,139       53,871       -  

 

Legal Proceedings

 

The Company is subject to litigation arising from time to time in the ordinary course of its business. There is no open legal proceeding as of December 31, 2022 and as of today. We could be involved in ordinary course litigation.

 

NOTE 19 — OPERATING LEASES

 

The following table provides a summary of leases by balance sheet location:

 

Assets/liabilities  December 31,   December 31, 
(USD in thousands)  2022   2021 
Assets        
Right-of-use assets  $2,260   $1,921 
           
Liabilities          
Lease liabilities- current portion  $1,215   $1,298 
Lease liabilities- long term   905    691 
Total Lease liabilities  $2,120   $1,989 

 

F-49

 

 

TINGO GROUP, Inc.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

(In Thousands, except Share and Par Value Data)

 

The operating lease expenses were as follows:

 

(USD in thousands)  Year ended
December 31,
 
   2022   2021 
Operating lease cost  $1,222   $1,440 

 

Maturities of operating lease liabilities were as follows:

 

(USD in thousands)   Year ended
December 31,
 
2023*     1,288  
2024     656  
2025     221  
2026     27  
2027     21  
Thereafter     33  
Total lease payment     2,246  
Less: imputed interest     (126 )
Total lease liabilities     2,120  

 

* Not include operating leases with a term less than one year.

 

Lease term and discount rate  December 31,
2022
 
     
Weighted-average remaining lease term (years) – operating leases   2.23 
Weighted average discount rate – operating leases   5.70%

 

The Company leases mobile phones that classified as operating leases. The following table summarizes the components of operating lease revenue recognized during the years ended December 31, 2022

 

   Year Ended
December 31,
 
Lease revenue  2022 
Fixed contractual payments   38,847 

 

Future fixed contractual lease payments to be received under non-cancelable operating leases in effect as of December 31, 2022, assuming no new or renegotiated leases or option extensions on lease agreements are executed, are as follows (dollars in thousands):

 

Years Ending December 31,  Future lease payments due 
2023   537,753 
2024   
-
 
2025   
-
 
2026   
-
 
2027   
-
 
Thereafter   
-
 

 

F-50

 

 

TINGO GROUP, Inc.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

(In Thousands, except Share and Par Value Data)

 

NOTE 19 — PROVISION FOR INCOME TAXES

 

A. Basis of Taxation

 

United States:

 

The statutory federal income tax rate in U.S. was 21% in 2021 and in the year ended December 31, 2022 and 2021. As of December 31, 2022 the operating loss carry forward were $60,230, among which there was $5,115 expiring from 2025 through 2037, and the remaining $55,115 has no expiration date.

 

Israel:

 

The Company’s Israeli subsidiaries and associated are governed by the tax laws of the State of Israel which had a general tax rate of 23% in the years ended December 31, 2022 and 2021. As of December 31, 2022 the operating loss carry forward were $8,290, which does not have an expiration date.

 

Mainland China:

 

The Company’s Chinese subsidiaries in the PRC are subject to the PRC Corporate Income Tax Law (“CIT Law”) and are taxed at the statutory income tax rate of 25%. As of December 31, 2022 the operating loss carry forward was $13,714, which will expire from 2026 through 2027.

 

Hong Kong:

 

Our subsidiaries incorporated in Hong Kong, such as Magpie Securities Limited and BI Intermediate Limited, are subject to Hong Kong profit tax on their profits arising from their business operations carried out in Hong Kong. Hong Kong profits tax for a corporation from the year of assessment 2018/2019 onwards is generally 8.25% on assessable profits up to HK$2,000,000; and 16.5% on any part of assessable profits over HK$2,000,000. Under the Hong Kong Inland Revenue Ordinance, profits that we derive from sources outside of Hong Kong are generally not subject to Hong Kong profits tax.

 

As of December 31, 2022, the tax loss carry forward was $17,243 for Magpie Securities Limited, and the operating loss carry forward was $5,342 for BI Intermediate Limited. Tax losses can be carried forward indefinitely until utilized.

 

F-51

 

 

TINGO GROUP, Inc.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

(In Thousands, except Share and Par Value Data)

 

Singapore:

 

Our subsidiaries incorporated in Singapore are subject to an income tax rate of 17% for taxable income earned in Singapore. Singapore does not impose a withholding tax on dividends for resident companies. In 2022, we did not incur any income tax as there was no estimated assessable profit that was subject to Singapore income tax.

 

As of December 31, 2022, the operating loss carry forward was USD$758 subject to qualifying conditions, trade losses can be carried forward indefinitely while unutilized donations can be carried forward for up to 5 Years of Assessment.

 

Nigeria:

 

The Company’s Nigeria subsidiary Tingo Mobile Limited is governed by the tax laws of the Federal Republic of Nigeria which had a corporate tax rate of 30% in the year ended December 31, 2022 and 2021. As of December 31, 2022, the operating loss carry forward were nil, which does not have an expiration date.

 

TINGO GROUP and its subsidiaries and VIEs within the jurisdiction of the United States, Israel and China are subject to a tax examination for the most recent three, four and five years, respectively.

 

B. Loss before income taxes

 

  Year ended December 31, 
(USD in thousands)  2022   2021 
         
Domestic  $(25,346)  $(20,157)
Foreign   14,955    (19,145)
Total  $(10,391)   (39,302)

 

C.

Provision for Expense (Benefit) Taxes

 

  Year ended December 31, 
(USD in thousands)  2022   2021 
Current        
Domestic  $330   $81 
Foreign   6,266    484 
Total  $6,596    565 
Deferred          
Domestic  $(762)  $
 
Foreign   31,640    (2,356)
Total  $37,474   $(1,791)

 

D. Deferred Tax Assets and Liabilities

 

Deferred tax reflects the net tax effects of temporary differences between the carrying amounts of assets or liabilities for financial reporting purposes and the amounts used for income tax purposes. Deferred tax assets were included in long-term deposit and prepaid expenses, and the Company’s deferred taxes were in respect of the following:

 

   December 31,   December 31, 
(USD in thousands)  2022   2021 
Deferred tax assets        
Provisions for employee rights and other temporary differences  $234   $260 
Provisions for bad debt   753    696 
Net operating loss carry forward   21,839    12,034 
Valuation allowance   (19,165)   (11,226)
Deferred tax assets, net of valuation allowance   3,661    1,764 
Deferred tax liabilities          
Recognition of intangible assets arising from business combinations   (89,597)   (3,952)
Deferred tax assets (liabilities), net  $(85,936)  $(2,188)

 

F-52

 

 

TINGO GROUP, Inc.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

(In Thousands, except Share and Par Value Data)

 

D. The reconciliation of income tax at the U.S. statutory rate to the Company’s effective tax rate as follows:

 

    2022     2021  
U.S. federal statutory rate     21 %     21 %
Change in valuation allowance     (53 )%     (16 )%
Non-deductible share-based compensation     (9 )%    
-
 
Other expenses non-deductible for tax purposes     (175 )%    
-
 
Difference in foreign tax rates     (24 )%    
-
 
Effective tax rate     (240 )%     5 %

 

NOTE 20 — GOODWILL

 

   Year ended December 31, 2021 
(USD in thousands)  Verticals and technology   Comprehensive platform service   Corporate and others (3)   Online stock trading   Consolidated 
                     
Balance as of January 1, 2021  $19,788    
      -
   $2,617   $
    -
   $22,405 
Impairment loss   
-
    
-
    
-
    
-
    
-
 
Acquisitions in 2021   
-
    
-
    
-
    
-
    
-
 
Loss of control   
 
    
 
    (2,617)   
 
    (2,617)
Forex   
-
    
-
    
-
    
-
    
-
 
Balance as of December 31, 2021   19,788    

-

    
-
        $19,788 

 

   Year ended December 31, 2022 
(USD in thousands)  Verticals and technology   Comprehensive platform service   Corporate and others (3)   Online stock trading   Consolidated 
                     
Balance as of January 1, 2022  $19,788    
-
   $    $
          -
  $19,788 
Impairment loss   
-
    
-
    
-
    
-
    
-
 
Acquisitions in 2022   
-
    81,459    
      -
    
-
    81,459 
Loss of control             
-
         
-
 
Forex   
-
    
-
    
-
    
-
    
-
 
Balance as of December 31, 2022   19,788    81,459    
-
        $101,247 

 

NOTE 21 — CONDENSED FINANCIAL INFORMATION OF TINGO GROUP, INC (Parent Company)

 

On December 1, 2022, we acquired Tingo Mobile (see Note 13). Tingo Mobile may generally repatriate capital and associated returns thereon by applying to the Nigerian Central Bank for approval. All transfer of funds to the registrant in the form of cash dividends, loans or advances or in other form is subject to an application and approval process for currency payments out of Nigeria. The cash and cash equivalents under restriction in Tingo Mobile as of December 31, 2022 is $461.7 million. The amount of such restricted net assets exceeds 25% of consolidated net assets as of December 31, 2022.

 

Basis of presentation

 

The Tingo Group, Inc. (the “Parent Company”) condensed financial information should be read in conjunction with our consolidated financial statements. The condensed financial statements include the activity of the Parent Company and reflect its subsidiaries using the equity method of accounting. Under the equity method, the investment in consolidated subsidiaries and VIE’s is stated at cost plus equity in undistributed earnings or loss of the consolidated subsidiaries and VIE’s.

 

F-53

 

 

TINGO GROUP, Inc.

CONDENSED BALANCE SHEETS

(Parent Company Only)

(In Thousands, except Share and Par Value Data)

 

   December 31,
2022
   December 31,
2021
 
ASSETS        
Current assets:        
Cash and cash equivalents  $14,924   $29,674 
Related party receivables   114,657    107,952 
Other current assets   98    2,308 
Total current assets   129,679    139,934 
           
Other non-current assets   239    600 
Equity method investments   1,200,886    5,062 
Total long-term assets   1,201,125    5,662 
Total assets  $1,330,804   $145,596 

 

F-54

 

 

TINGO GROUP, Inc.

CONDENSED BALANCE SHEETS

(Parent Company Only)

(In Thousands, except Share and Par Value Data)

 

    December 31,
2022
    December 31,
2021
 
LIABILITIES TEMPORARY EQUITY AND EQUITY            
Other current liabilities   $ 7,125     $ 1,496  
Total current liabilities     7,125       1,496  
Redeemable preferred stock Series B: $0.001 par value, 33,687.21 shares authorized and 0 shares issued and outstanding as of December 31, 2022 and 2021, respectively.     553,035       -  
Stockholders’ Equity:    
 
     
 
 
Redeemable preferred stock Series A: $0.001 par value, 2,604.28 shares authorized and 0 shares issued and outstanding as of December 31, 2022 and 2021, respectively.     3       -  
Common stock; $0.001 par value, 250,000,000 shares authorized, 157,599,882 and 122,435,576 shares issued and outstanding as of December 31, 2022 and December 31, 2021, respectively     158       122  
Additional paid in capital     889,579       220,786  
Accumulated other comprehensive loss     4,367       (414 )
Accumulated deficit     (123,463 )     (76,394 )
Total equity     770,644       144,100  
Total liabilities temporary equity and equity   $ 1,330,804     $ 145,596  

 

F-55

 

 

TINGO GROUP, Inc.

CONDENSED STATEMENTS OF OPERATIONS

(Parent Company Only)

(In Thousands, Except Share and Loss Per Share Data)

 

   Year ended
December 31,
 
   2022   2021 
Revenues  $
-
   $
-
 
Cost of revenues   
-
    
-
 
Gross profit   
-
    
-
 
Operating expenses:          
General and administrative   25,714    19,136 
Amortization of intangible assets   
-
    
-
 
Total operating expenses   25,714    19,136 
Loss from operations   (25,714)   (19,136)
(Loss) gain of controlling equity investment held in Micronet   
-
    
-
 
Finance income (expense), net   3,175    1,786 
Loss before income tax expense   (22,539)   (17,350)
Income tax expense   330    81 
Loss after income tax expense   (22,869)   (17,431)
Gain (loss) from equity investment   (24,200)   (18,997)
Net loss  $(47,069)  $(36,428)
Basic and diluted loss per share
  $(0.36)  $(0.32)
Weighted average common shares outstanding:          
Basic and diluted
   129,345,764    112,562,199 

 

F-56

 

 

TINGO GROUP, Inc.

CONDENSED STATEMENTS OF CASH FLOWS

(Parent Company Only)

(In Thousands, except Share and Par Value Data)

 

    Year ended December 31,  
    2022     2021  
CASH FLOWS FROM OPERATING ACTIVITIES:            
Net loss   $ (22,869 )   $ (17,431 )
Adjustments to reconcile net loss to net cash used in operating activities:                
Shares issued to service providers and employees     6,417       9,876  
Stock-based compensation for employees and consultants     208       711  
Changes in operating assets and liabilities:                
Change in other non-current assets     361       (600 )
Change in accrued interest due to related party     (3,312 )     (115 )
Increase (decrease) in other current assets     2,210       (1,524 )
Increase (decrease) in other current liabilities     5,628       (1,992 )
Net cash used in operating activities   $ (11,357 )   $ (11,075 )
CASH FLOWS FROM INVESTING ACTIVITIES:                
Loan to related party     (203 )     (88,000 )
Receipt of loan from related party     30,000      
-
 
Loan to Tingo Inc pursuant to the merger agreement     (23,700 )    
-
 
Receipt of loan from related party (Micronet)     534      
-
 
Loan to Tingo Mobile     (10,024 )    
-
 
Net cash used in investing activities   $ (3,393 )   $ (88,000 )
CASH FLOWS FROM FINANCING ACTIVITIES:                
Proceeds from issuance of shares and warrants    
-
      105,366  
Proceeds from exercise of warrants    
-
      2,474  
Proceeds from exercise of options    
-
      80  
Net cash provided by financing activities   $
-
    $ 107,920  
                 
TRANSLATION ADJUSTMENT OF CASH    
-
     
-
 
                 
NET CHANGE IN CASH     (14,750 )     8,845  
                 
Cash at the beginning of the year     29,674       20,829  
                 
Cash at end of the year   $ 14,924     $ 29,674  

 

F-57

 

 

TINGO GROUP, Inc.

CONSOLIDATED STATEMENTS OF CASH FLOWS

(In Thousands, except Share and Par Value Data)

 

NOTE 22 — SUBSEQUENT EVENTS

 

On February 2, 2023 (“Effective Date”), the Company., entered into settlement and repurchase agreements (the “Repurchase Agreements”) with certain holders of the outstanding warrants over its common stock (“Warrant Holders”). The warrants being repurchased were originally issued by TINGO GROUP between November 2020 and March 2021 pursuant to three offerings of common stock and warrants. The exercise prices of the warrants were $3.12 in the first offering and $2.80 in the subsequent two offerings, with various expiration dates falling between August 16, 2024 and August 16, 2026. The repurchase will result in the surrender and cancellation of the warrants held by each Warrant Holder.

 

Repurchase Payment

 

Pursuant to the Repurchase Agreements, the Company agreed to repurchase warrants representing an aggregate amount of 28,117,835 shares of its common stock, for which it is paying $0.15 per share on March 3, 2023 and $0.10 per share on May 1, 2023 at an aggregate cost to the Company of $7,029. Additionally, the Company has also entered into Repurchase Agreements with certain other Warrant Holders with respect to an additional 1,064,000 shares, who have agreed to grant TINGO GROUP an option from July 1, 2023 to July 31, 2023 to repurchase their warrants for $0.25 per share upon the exercise of such option. TINGO GROUP’s payment for the repurchase of warrants serves as consideration and full and final settlement of all claims which were or might have been asserted by Warrant Holders arising from the Warrants.

 

If TINGO GROUP fails to make timely payment under the terms of the Repurchase Agreements, the Warrants shall remain outstanding and be exercisable in full in accordance with their terms, and the Warrant Holders shall retain all rights available under applicable law or equity with respect to the Warrants.

 

Representations and Warranties

 

The Repurchase Agreements contain a number of representations and warranties by each of the Company and the Warrant Holders as of the Effective Date. Most material of which the Warrant Holders represent and warrant that they are the sole owner of, and have good, valid and marketable title to the Warrants free of any restrictions, among other representations and warrants. the Company represents and warrants that it has received all necessary consents, approvals, and authorizations to approve its obligations under the Repurchase Agreements, among other representations and warrants. The representations and warranties made by the Company and the Seller are customary for transactions similar to this transaction.

  

Most Favored Nation

 

The Company represented and warranted as of the Effective Date that from and after the Effective Date through the respective expiration dates of the Warrants, that none of the terms offered to any other holder of the Company’s warrants (outstanding as of the Effective Date), with respect to any amendment, settlement, repurchase or redemption (whether pursuant to the terms of such warrants or otherwise) of any such warrants (outstanding as of the Effective Date) since the Announcement Time (“Other Warrant Settlement Document”), is or will be more favorable to such holder than those of the Warrant Holders and that the Repurchase Agreements are, without any further action by the Warrant Holders or the Company , deemed amended and modified in an economically and legally equivalent manner such that the Warrant Holders shall receive the benefit of the more favorable terms contained in such Other Warrant Settlement Document.

 

F-58

 

 

TINGO GROUP, Inc.

CONSOLIDATED STATEMENTS OF CASH FLOWS

(In Thousands, except Share and Par Value Data)

 

On February 7, 2023, Yehezkel (Chezy) Ofir tendered his resignation to the board of directors (the “Board”) of the Company, effective immediately. The reason for Mr. Ofir’s resignation is to comply with the terms of the Amended Agreement and Plan of Merger with Tingo, Inc. and Tingo Mobile Limited (“Tingo”), where it was agreed the Board would be comprised of four of the existing directors of the Company and two new directors nominated by Tingo, Inc. and not in connection with any disagreements with the Company on any matter.

 

On February 9, 2023 (“Effective Date”), TINGO GROUP, Inc. and TINGO GROUP Fintech Ltd., an indirect wholly owned subsidiary of the Company organized under the laws of the British Virgin Islands (“TINGO GROUP Fintech”) purchased from Dozy Mmobuosi 100% of the ordinary shares of Tingo Foods PLC (“Tingo Foods”) (the “Acquisition”). Mr. Mmobuosi is the majority shareholder, Chairman and Chief Executive Officer of Tingo, Inc., a Nevada corporation. Tingo, Inc.

 

Given the recent timing of the transaction, the initial accounting for the transaction is incomplete at the time these financial statements were authorized for issuance. Accordingly, not all relevant disclosures are available for this transaction. Tingo Foods started its operational business in September 2022 and generated revenue of more than $400 million dollars (unaudited) during the approximate four-month period ended on December 31, 2022.

 

As consideration for the Acquisition, TINGO GROUP agreed to pay Mr. Mmobuosi, a purchase price equal to the cost value of Tingo Foods’ stock, which will be satisfied by the issuance of a secured promissory note (“Promissory Note”) in the amount of US$204,000,000. The Promissory Note is for a terms of two years with an interest rate of 5%. MICT Fintech agreed to certain covenants with respect to its ability to incur additional debt or create additional liens. The Acquisition will not result in any new issuance of the Company common stock, nor of any instruments convertible into shares of the Company.

 

The parties additionally agreed that Mr. Mmobuosi, as the owner of the real property on which the business of Tingo Foods is located and operates, to finance and complete construction of the building, and for TINGO GROUP and Tingo Foods to fit out the building and premises, including the installation of mechanized equipment, for the specialized operations of a large food processing facility. Lastly, Mr. Mmobuosi will also provide TINGO GROUP and Tingo Foods with a long-term lease with respect to the real property.

 

On February 14, 2023, TINGO GROUP through its wholly-owned subsidiary Tingo Mobile, and Visa, the global leader in digital payments, launched their pan-African strategic partnership, which aims to improve access to digital payments and financial services, and drive financial inclusion across Africa. The launch of the Tingo Visa card, together with the new TingoPay Super App and the TingoPay business portal, opens significant global opportunities to Tingo’s subscribers, allowing secure cashless payments at more than 61 million merchants in over 200 countries through Visa’s global network, as well as the ability for business subscribers to more readily and securely accept payments from customers and other third parties.

 

On February 23, 2023, the Company filed an amendment to its certificate of incorporation, as amended, with the Secretary of State of Delaware to change its corporate name from “MICT, Inc.” to “Tingo Group, Inc.” . The Name Change was effective as of February 27, 2023. Also effective February 27, 2023 the Company changed its trading symbol on the Nasdaq Capital Market from “MICT” to “TIO” (the “Symbol Change”).

 

 

F-59

 

 

185407000 101247000 0.32 0.36 112562199 129345764 The $1,215,241 value of the Merger Consideration transferred was determined in accordance with ASC 820 and ASC 805. ASC 820 requires that fair value to maximize objective evidence and be determined using assumptions that a market participant would use, and when level 1 inputs exist, it should be used unless determined to be not representative. That would have meant using the unadjusted TINGO GROUP quoted price at the time of completion of the Transaction. The Company is of the opinion however, that the market value per share price as quoted on Nasdaq is not representative of the fair value and should not be used to determine the merger consideration. Using market value per share of TINGO GROUP would have led to a significant bargain purchase gain and an internal rate of return that was not reasonable as well as other valuation anomalies that it created. 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Exhibit 2.4

 

SECURITIES PURCHASE AGREEMENT

 

by and among

 

MICT, INC.,

 

MICT FINTECH LIMITED,

as the Purchaser,

 

TINGO FOODS PLC,

as the Company,

 

and

 

DOZY MMOBUOSI,

as the Seller

 

 

 

Effective as of

February 9, 2023

 

 

 

 

TABLE OF CONTENTS

 

  Page
   
ARTICLE 1 DEFINITIONS AND CONSTRUCTION 1
     
Section 1.1 Definitions 1
     
Section 1.2 Additional Defined Terms 5
     
Section 1.3 Construction 6
     
ARTICLE 2 THE TRANSACTION 6
     
Section 2.1 Purchase and Sale of Acquired Shares 6
     
Section 2.2 Purchase Consideration 6
     
Section 2.3 Closing 7
     
Section 2.4 Closing Transactions 7
     
Section 2.5 Post-Closing 8
     
ARTICLE 3 REPRESENTATIONS AND WARRANTIES OF THE SELLER 8
     
Section 3.1 Organization and Good Standing 8
     
Section 3.2 Authority and Enforceability 9
     
Section 3.3 No Conflict 9
     
Section 3.4 Capitalization and Ownership 9
     
Section 3.5 Financial Statements 10
     
Section 3.6 Books and Records 11
     
Section 3.7 Accounts Receivable; Bank Accounts 11
     
Section 3.8 Inventories 11
     
Section 3.9 No Undisclosed Liabilities 11
     
Section 3.10 Absence of Certain Changes and Events 11
     
Section 3.11 Assets 13
     
Section 3.12 Real Property. 13
     
Section 3.13 Intellectual Property. 13
     
Section 3.14 Contracts. 14
     
Section 3.15 Tax Matters. 15
     
Section 3.16 Employee Benefit Matters. 15
     
Section 3.17 Employment Matters 16
     
Section 3.18 Environmental, Health and Safety Matters. 16
     
Section 3.19 Compliance with Laws and Governmental Authorizations. 16
     
Section 3.20 Legal Proceedings 16
     
Section 3.21 Anti-Corruption and Trade Regulation 16

 

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TABLE OF CONTENTS

(continued)

 

    Page
     
Section 3.22 Insurance 17
     
Section 3.23 Related Party Transactions 17
     
Section 3.24 Brokers or Finders 17
     
Section 3.25 Non-Reliance 18
     
ARTICLE 4 REPRESENTATIONS AND WARRANTIES OF THE PURCHASER 18
     
Section 4.1 Organization and Good Standing 18
     
Section 4.2 Authority and Enforceability 18
     
Section 4.3 No Conflict 18
     
Section 4.4 Legal Proceedings 18
     
Section 4.5 Investment Intent 19
     
Section 4.6 Brokers or Finders 19
     
ARTICLE 5 COVENANTS 19
     
Section 5.1 Fit-Out of Premises and Procurement of Processing Equipment 19
     
Section 5.2 Funding for Company Expansion 19
     
Section 5.3 Consents and Filings 19
     
Section 5.4 Seller Release 19
     
Section 5.5 Confidentiality 20
     
Section 5.6 Public Announcements 20
     
Section 5.7 Noncompetition and Nonsolicitation 20
     
Section 5.8 Further Assurances 21
     
ARTICLE 6 CERTAIN TAX MATTERS 21
     
Section 6.1 Tax Returns 21
     
Section 6.2 Payment of Taxes 22
     
Section 6.3 Tax Apportionment 22
     
Section 6.4 Transactional Taxes 23
     
ARTICLE 7 INDEMNIFICATION 23
     
Section 7.1 Indemnification by the Seller 23
     
Section 7.2 Indemnification by the Purchaser 23
     
Section 7.3 Claim Procedure 24
     
Section 7.4 Third Party Claims 24
     
Section 7.5 Survival 26
     
Section 7.6 Limitations on Liability. 26

 

ii

 

 

TABLE OF CONTENTS

(continued)

 

    Page
     
Section 7.7 No Right of Indemnification or Contribution 26
     
Section 7.8 Tax Refunds, Insurance Proceeds and Other Payments 27
     
Section 7.9 Exclusive Remedy 27
     
ARTICLE 8 GENERAL PROVISIONS 27
     
Section 8.1 Notices 27
     
Section 8.2 Amendment 29
     
Section 8.3 Waiver and Remedies 29
     
Section 8.4 Entire Agreement 29
     
Section 8.5 Assignment and Successors and No Third Party Rights 29
     
Section 8.6 Severability 29
     
Section 8.7 Exhibits and Schedules 30
     
Section 8.8 Interpretation 30
     
Section 8.9 Governing Law 30
     
Section 8.10 Specific Performance 30
     
Section 8.11 Jurisdiction and Service of Process 30
     
Section 8.12 Waiver of Jury Trial 30
     
Section 8.13 Expenses 31
     
Section 8.14 Counterparts 31

 

Exhibit A - Form of Purchaser Note
Exhibit B-1 - Form of Purchaser Debenture
Exhibit B-2 - Form of Company Debenture
Exhibit C - Form of Lease
Exhibit D - Form of Share Transfer Instrument

 

iii

 

 

SECURITIES PURCHASE AGREEMENT

 

This Securities Purchase Agreement (the “Agreement”) is made effective as of February 9, 2023 (the “Effective Date”), by and among (i) MICT, Inc., a Delaware corporation (“MICT”), (ii) MICT Fintech Limited, a British Virgin Islands business company and a wholly-owned subsidiary of MICT (the “Purchaser”), (iii) Tingo Foods PLC, a Nigerian public company limited by shares (the “Company”), and

(iv) Dozy Mmobuosi, an individual (the “Seller”).

 

The Seller desires to sell to the Purchaser, and the Purchaser desires to purchase from the Seller, all of the issued and outstanding capital shares of the Company (collectively, the “Acquired Shares”) in accordance with the provisions of this Agreement.

 

NOW, THEREFORE, intending to be legally bound and in consideration of the mutual provisions set forth in this Agreement and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:

 

ARTICLE 1

DEFINITIONS AND CONSTRUCTION

 

Section 1.1 Definitions. For the purposes of this Agreement and the Ancillary Agreements: “Affiliate” means, with respect to a specified Person, a Person that directly, or indirectly through one or more intermediaries, controls, is controlled by or is under common control with, the specified Person. In addition to the foregoing, if the specified Person is an individual, the term “Affiliate” also includes (a) the individual’s spouse, (b) the members of the immediate family (including parents, siblings and children) of the individual or of the individual’s spouse and (c) any corporation, limited liability company, general or limited partnership, trust, association or other business or investment entity that directly or indirectly, through one or more intermediaries controls, is controlled by or is under common control with any of the foregoing individuals. For purposes of this definition, the term “control” (including the terms “controlling,” “controlled by” and “under common control with”) means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise. For the avoidance of doubt, (i) the Seller shall not be considered an Affiliate of the Purchaser and (ii) each of the Seller and the Company shall be considered an Affiliate of the other prior to (but not with respect to periods from and after) the Closing.

 

Ancillary Agreements” means, collectively, the Purchaser Note, the Debenture and the Lease.

 

Business Day” means any day other than a Saturday, Sunday or a legal holiday on which commercial banking institutions in New York, New York are authorized or required to close for business either under applicable Law or action of any Governmental Authority, excluding as a result of “stay at home”, “shelter-in-place”, “non-essential employee” or any other similar orders or restrictions or the closure of any physical branch locations at the direction of any Governmental Authority so long as the electronic funds transfer systems, including for wire transfers, of commercially banking institutions in New York, New York are generally open for use by customers on such day.

 

Code” means the U.S. Internal Revenue Code of 1986.

 

Confidential Information” means any information, in whatever form or medium, concerning the business or affairs of the Company.

 

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Consent” means any approval, consent, ratification, waiver or other authorization.

 

Contract” means any contract, agreement, lease, license, commitment, warranty, guaranty, mortgage, note, bond, option, warrant, right or other instrument or consensual obligation, whether written or oral.

 

Debenture” means either or both of those certain All Assets Debentures, substantially in the forms attached hereto as Exhibit B-1 and Exhibit B-2, whereby the Purchaser and the Company, respectively will separately pledge various assets and properties as security for the Purchaser’s obligations under the Purchaser Note.

 

Employee Benefit Plan” means (i) any “employee benefit plan” or benefits scheme as defined under ERISA or (ii) any plan, fund (including any superannuation fund) or other similar program or arrangement established or maintained outside the United States by the Company or any one or more of its Subsidiaries primarily for the benefit of employees of the Company or such Subsidiaries residing outside the United States, which plan, fund or other similar program or arrangement provides, or results in, retirement income, a deferral of income in contemplation of retirement or payments to be made upon termination of employment, and which plan is not subject to ERISA or the Code.

 

Encumbrance” means any charge, claim, mortgage, servitude, easement, right of way, community or other marital property interest, covenant, equitable interest, license, lease or other possessory interest, lien, option, pledge, hypothecation, security interest, preference, priority, right of first refusal, condition, limitation or restriction of any kind or nature whatsoever (whether absolute or contingent).

 

Environmental Law” means any Law (a) relating to pollution (or the cleanup thereof) or the protection of natural resources, endangered or threatened species, human health or safety, or the environment (including ambient air, soil, surface water or groundwater, or subsurface strata); or (b) concerning the presence of, exposure to, or the management, manufacture, use, containment, storage, recycling, reclamation, reuse, treatment, generation, discharge, transportation, processing, production, disposal or remediation of any Hazardous Materials.

 

ERISA” means the Employee Retirement Income Security Act of 1974.

 

Governing Document” means any charter, articles, bylaws, certificate or similar document adopted, filed or registered in connection with the creation, formation, organization or governance of any entity.

 

Governmental Authority” means any (a) nation, region, state, county, city, town, village, district or other jurisdiction, (b) federal, state, local, municipal, foreign or other government, (c) department, agency or instrumentality of a foreign or other government, including any state-owned or state-controlled instrumentality of a foreign or other government, (d) governmental or quasi-governmental authority of any nature (including any governmental agency, branch, department or other entity and any court or other tribunal), (e) public international organization or multinational organization or (f) body exercising, or entitled to exercise, any administrative, executive, judicial, legislative, police, regulatory or taxing authority or power of any nature.

 

Governmental Authorization” means any Consent, license, franchise, permit, exemption, clearance or registration issued, granted, given or otherwise made available by or under the authority of any Governmental Authority or pursuant to any Law.

 

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Hazardous Material” means any waste or other substance that is listed, defined, designated or classified as, or otherwise determined to be, hazardous, radioactive or toxic or a pollutant or a contaminant under any Environmental Law, including any admixture or solution thereof, and including petroleum and all derivatives thereof or synthetic substitutes therefor, asbestos or asbestos-containing materials in any form or condition and polychlorinated biphenyls.

 

IFRS” means the International Financial Reporting Standards as issued by the International Accounting Standards Board, as in effect as of the Effective Date.

 

Indebtedness” means, with respect to any Person, (a) all indebtedness of such Person, whether or not contingent, for borrowed money, (b) all obligations of such Person evidenced by notes, bonds, debentures or other similar instruments or debt securities and warrants or other rights to acquire any such instruments or securities and (c) all Indebtedness of others referred to in clauses (a) and (b) hereof that is directly or indirectly guaranteed in any manner by such Person or that such Person has agreed (contingently or otherwise) to purchase or otherwise acquire or in respect of which it has otherwise assured a creditor against loss.

 

Intellectual Property” means all of the following anywhere in the world and all legal rights, title or interest in, under or in respect of the following arising under Law: (a) all patents and applications for patents and all related reissues, reexaminations, divisions, renewals, extensions, provisionals, continuations and continuations in part; (b) all copyrights, copyright registrations and copyright applications, copyrightable works and all other corresponding rights; (c) all mask works, mask work registrations and mask work applications and all other corresponding rights; (d) all trade dress and trade names, logos, Internet addresses and domain names, trademarks and service marks and related registrations and applications, including any intent to use applications, supplemental registrations and any renewals or extensions, all other indicia of commercial source or origin and all goodwill associated with any of the foregoing; (e) all inventions (whether patentable or unpatentable and whether or not reduced to practice), know how, technology, technical data, trade secrets, confidential business information, manufacturing and production processes and techniques, recipes, formulas, research and development information, financial, marketing and business data, pricing and cost information, business and marketing plans, advertising and promotional materials, customer, distributor, reseller and supplier lists and information, correspondence, records, and other documentation, and other proprietary information of every kind; (f) all computer software (including source and object code), firmware, development tools, algorithms, files, records, technical drawings and related documentation, data and manuals; (g) all databases and data collections; (h) all other proprietary rights; and (i) all copies and tangible embodiments of any of the foregoing (in whatever form or medium).

 

IRS” means the U.S. Internal Revenue Service and, to the extent relevant, the U.S. Department of Treasury.

 

Judgment” means any order, injunction, judgment, decree, ruling, assessment or arbitration award of any Governmental Authority or arbitrator.

 

Knowledge” means, with respect to Seller, (a) the actual knowledge of Seller after conducting a reasonable investigation and (b) the actual knowledge of the principal executive officer of the Company after conducting a reasonable investigation.

 

Law” means any federal, state, local, municipal, foreign, international, multinational, or other constitution, law, statute, treaty, rule, regulation, ordinance, code, binding case law or principle of common law.

 

3

 

 

Liability” includes liabilities, debts or other obligations of any nature, whether known or unknown, absolute, accrued, contingent, liquidated, unliquidated or otherwise, due or to become due or otherwise.

 

Loss” means any loss, Proceeding, Judgment, damage, fine, penalty, expense (including reasonable attorneys’ or other professional fees and expenses and court costs), injury, Liability, Tax, Encumbrance or other cost, expense or adverse effect whatsoever, whether or not involving the claim of another Person, but excluding any special, incidental, indirect, exemplary, punitive or consequential damages, lost profits, loss of revenue, lost sales, or amounts calculated as a multiple of earnings, profits, revenue, sales or other measure.

 

Material Adverse Effect” means any event, change, circumstance, effect or other matter that has, or could reasonably be expected to have, either individually or in the aggregate with all other events, changes, circumstances, effects or other matters, a material adverse effect on (a) the business, assets, Liabilities, properties, condition (financial or otherwise), prospects, operating results or operations of the Company, taken as a whole, or (b) the ability of the Company or the Seller to perform its obligations under this Agreement or to consummate timely the transactions contemplated by this Agreement; provided, however, that none of the following, either alone or in combination, will constitute, or be considered in determining whether there has been, a Material Adverse Effect: any event, change, circumstance, effect or other matter resulting from or related to (i) any outbreak or escalation of war or major hostilities or any act of terrorism, (ii) changes in Laws or IFRS, (iii) changes that generally affect the industries and markets in which the Company operates, (iv) changes in financial markets, general economic conditions or political conditions, (v) any action required to be taken or prohibited by this Agreement or action taken or failed to be taken at the request of, or consented to by, the Purchaser, or (vi) the public announcement of the transactions contemplated by this Agreement (except, with respect to clauses (i), (ii), (iii) and (iv), to the extent that any such event, change, circumstance, effect or other matter, alone or in combination, disproportionately has a greater adverse impact on the Company, taken as a whole, as compared to the other companies operating in the same industries and markets in which the Company operates.

 

NGN” or “” means Nigerian Naira.

 

Occupational Safety and Health Law” means any Law designed to provide safe and healthful working conditions and to reduce occupational safety and health hazards.

 

Permitted Encumbrances” means (a) statutory liens of carriers, warehousemen, mechanics, materialmen and other similar Persons incurred in the ordinary course of business for sums not yet due and payable and that do not impair the conduct of the Company’s business or the present or proposed use of the affected property or asset, and (b) statutory liens for current real or personal property Taxes not yet due and payable and for which adequate reserves have been recorded in line items on the Balance Sheet.

 

Person” means an individual or an entity, including a corporation, limited liability company, partnership, trust, unincorporated organization, association or other business or investment entity, or any Governmental Authority.

 

Premises” means, collectively, certain real property and improvements thereon owned by the Seller and located on an aggregate of approximately 400 hectares in Onicha-Ugbo, Delta State, Nigeria, including facilities being constructed thereupon for the operation of the Company.

 

Proceeding” means any action, arbitration, audit, examination, investigation, hearing, litigation or suit (whether civil, criminal, administrative, judicial or investigative, whether formal or informal, and whether public or private) commenced, brought, conducted or heard by or before, or otherwise involving, any Governmental Authority or arbitrator.

 

4

 

 

Subsidiary” means, with respect to a specified Person, any corporation or other entity of which (a) a majority of the voting power of the equity securities or other interests is owned, directly or indirectly, by such Person (without regard to the occurrence of any contingencies affecting voting power) or (b) the power to elect a board majority (or persons performing similar functions) or otherwise control the entity is held directly or indirectly by such Person.

 

Tax” means (a) any federal, state, local, foreign or other tax, charge, fee, duty (including customs duty), levy or assessment, including any income, gross receipts, net proceeds, alternative or add- on minimum, corporation, ad valorem, turnover, real property, personal property (tangible or intangible), sales, use, franchise, excise, value added, stamp, leasing, lease, user, transfer, fuel, excess profits, profits, occupational, premium, interest equalization, windfall profits, severance, license, registration, payroll, environmental (including taxes under Section 59A of the Code), capital stock, capital duty, disability, estimated, gains, wealth, welfare, employee’s income withholding, other withholding, unemployment or social security or other tax of whatever kind (including any fee, assessment or other charges in the nature of or in lieu of any tax) that is imposed by any Governmental Authority, (b) any interest, fines, penalties or additions resulting from, attributable to, or incurred in connection with any items described in this paragraph or any related contest or dispute and (c) any items described in this paragraph that are attributable to another Person but that the Company is liable to pay by Law, by Contract or otherwise, whether or not disputed.

 

Tax Return” means any report, return, filing, declaration, claim for refund, or information return or statement related to Taxes, including any schedule or attachment thereto, and including any amendment thereof.

 

Transaction Expenses” means all fees and expenses of the Company incurred in connection with the negotiation and execution of this Agreement and the consummation of the transactions contemplated hereby that are unpaid as of the Closing.

 

USD” or “$” means United States Dollars.

 

Section 1.2 Additional Defined Terms. For purposes of this Agreement and (unless otherwise specified therein) the Ancillary Agreements, the following terms have the meanings specified in the indicated Section of this Agreement:

 

Defined Term Section
   
Acquired Shares Preamble
Agreement Preamble
Balance Sheet 3.5(a)(i)
Certain Jurisdictions 3.21(d)
Claim Notice 7.3(a)
Closing 2.3
Closing Date 2.3
Company Preamble
Company Intellectual Property 3.13
Controlling Party 7.4(c)
Effective Date Preamble
Financial Statements 3.5(a)
Indemnified Party 7.3(a)
Indemnifying Party 7.3(a)
Leased Real Property 3.12
MICT Preamble
Noncontrolling Party 7.4(c)
Owned Intellectual Property 3.13
Owned Real Property 3.12
Purchaser Preamble
Purchaser Indemnified Parties 7.1
Real Property 3.12
Restricted Period 5.7
Restricted Persons 5.5(a)
Securities Act 3.4(c)
Seller Disclosure Schedule Article 3
Seller Preamble
Special Claim 7.4(b)
Third Party Claim 7.4(a)
Third Party Intellectual Property 3.13

 

5

 

 

Section 1.3 Construction. Any reference in this Agreement to an “Article,” “Section,” “Exhibit” or “Schedule” refers to the corresponding Article, Section, Exhibit or Schedule of or to this Agreement, unless the context indicates otherwise. The table of contents and the headings of Articles and Sections are provided for convenience only and are not intended to affect the construction or interpretation of this Agreement. All words used in this Agreement are to be construed to be of such gender or number as the circumstances require. The words “including,” “includes,” or “include” are to be read as listing non-exclusive examples of the matters referred to, whether or not words such as “without limitation” or “but not limited to” are used in each instance. Where this Agreement states that a party “shall”, “will” or “must” perform in some manner or otherwise act or omit to act, it means that the party is legally obligated to do so in accordance with this Agreement. Any reference to a statute is deemed also to refer to any amendments or successor legislation as in effect at the relevant time. Any reference to a Contract or other document as of a given date means the Contract or other document as amended, supplemented and modified from time to time through such date.

 

ARTICLE 2

THE TRANSACTION

 

Section 2.1 Purchase and Sale of Acquired Shares. In accordance with the provisions of this Agreement, at the Closing, the Seller will sell and transfer to the Purchaser, and the Purchaser will purchase and acquire from the Seller, all of the Acquired Shares.

 

Section 2.2 Purchase Consideration. The aggregate purchase consideration for the Acquired Shares shall consist of a combination of a senior secured promissory note and certain undertakings and obligations of the Purchaser and certain of its Subsidiaries as follows:

 

(a) a senior secured promissory note issued by the Purchaser in favor of the Seller, substantially in the form attached hereto as Exhibit A, in the original principal amount of Two Hundred Four Million U.S. Dollars ($204,000,000) (the “Purchaser Note”), secured by a security interest in certain assets and property of the Purchaser and the Company as set forth in the Debenture, and having a maturity of twenty-four (24) months following the Closing Date;

 

(b) a long-term lease of the Premises by the Company, substantially in the form of the agreement attached hereto as Exhibit C (the “Lease”); and

 

6

 

 

(c) the undertakings and covenants of the Purchaser relating to the Purchaser Fit-Out Obligations and providing financial resources to enable the Company to achieve the Company Projections as described in Sections 5.1 and 5.2.

 

Section 2.3 Closing. The closing of the transactions contemplated by this Agreement (the “Closing”) will take place at the offices of Ellenoff Grossman & Schole LLP, on the Effective Date immediately following the execution and delivery hereof, or at such other time and place as the Purchaser and the Seller may agree in writing. The date on which the Closing actually occurs is referred to in this Agreement as the “Closing Date.”

 

Section 2.4 Closing Transactions.

 

(a) At the Closing, the Seller will deliver (or procure the delivery) to the Purchaser of the following:

 

(i) duly executed share transfer forms in the agreed form as set out in Exhibit D to this Agreement in favor of the Purchaser or its nominee(s) in respect of the Acquired Shares;

 

(ii) evidence of cancellation of existing share certificates (if any) issued in favor of the Seller representing the Acquired Shares.

 

(iii) the Debentures executed by the Seller;

 

(iv) the Lease executed by Tingo International Holdings PLC;

 

(v) resignations effective as of the Closing Date of each director and each officer of the Company other than those whom the Purchaser has specified in writing prior to the Closing; and

 

(vi) such other documents, instruments and agreements as the Purchaser reasonably requests for the purpose of consummating the transactions contemplated by this Agreement.

 

(b) In addition to the foregoing obligations of the parties, the Company shall, and the Seller shall cause the Company to, carry out the following actions at Closing:

 

(i) the directors of the Company shall approve: (x) the registration of the transfer of the Acquired Shares to the Purchaser or its nominee(s) and the entry of the Purchaser or its nominee(s) in the register of members of the Company; (y) the cancellation of the share certificates (if any) issued to the Seller in respect of the Acquired Shares and the issuance of new share certificates in favor of the Purchaser or its nominee(s) with respect to the Acquired Shares; and (z) that the Company does all that is necessary to give effect to the transactions contemplated under this Agreement;

 

(ii) the appointment of the Purchaser’s nominees as directors and other officers of the Company (taking effect on and from the Closing Date) by the Company; and

 

(iii) the Company takes all other corporate actions and makes all other corporate and regulatory filings as are necessary to reflect the sale and transfer of the Acquired Shares to the Purchaser as contemplated under this Agreement.

 

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(c) At the Closing, the Purchaser will deliver to the Seller:

 

(i) the Purchaser Note executed by the Purchaser;

 

(ii) the Debentures executed by the Purchaser and the Company;

 

(iii) the Lease executed by the Company; and

 

(iv) such other documents, instruments and agreements as the Seller reasonably requests for the purpose of consummating the transactions contemplated by this Agreement.

 

Section 2.5 Post Closing. The Company shall ensure, and the Seller shall procure that:

 

(a) no later than 60 days after the Closing Date (or such other period as may be agreed by the parties), the records of the Company with the Corporate Affairs Commission of the Federal Republic of Nigeria are updated to evidence:

 

(i) the transfer of the Acquired Shares from the Seller to the Purchaser;

 

(ii) resignations of each director and each officer of the Company other than those whom the Purchaser has specified in writing prior to the Closing; and

 

(iii) the appointment of the directors and other officers nominated by the Purchaser,

 

(b) by no later than 60 days after Closing Date (or such other period as may be agreed by the parties):

 

(i) the name of the Purchaser or its nominee(s) is entered into the register of members of the Company as the holder of the Acquired Shares; and

 

(ii) the Purchaser or its nominee(s) is issued with new share certificates evidencing its shareholding in the Company,

 

(c) the Company takes all other corporate actions and makes all other corporate and regulatory filings as are necessary to reflect the sale and transfer of the Acquired Shares to the Purchaser.

 

ARTICLE 3

REPRESENTATIONS AND WARRANTIES OF THE SELLER

 

The Seller represents and warrants to the Purchaser and MICT as follows, except as set forth on the disclosure schedule delivered by the Seller to the Purchaser and MICT concurrently with the execution and delivery of this Agreement and dated as of the Effective Date (the “Seller Disclosure Schedule”):

 

Section 3.1 Organization and Good Standing. The Company is a public company limited by shares with company number 1961594, duly organized under, validly existing and in good standing under the Laws of the Federal Republic of Nigeria and has all requisite corporate power and authority to own, lease and operate its properties and assets and to conduct its business as presently conducted. The Company is duly qualified to do business and is in good standing in each jurisdiction in which the character of the properties it owns, operates or leases or the nature of its activities makes such qualification necessary. Copies of the Company’s Governing Documents, as currently in effect, have been delivered to the Purchaser and are accurate and complete as of the Effective Date. The Company is not in violation of its Governing Documents.

 

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Section 3.2 Authority and Enforceability.

 

(a) The Company has all requisite corporate power and authority to execute, deliver and perform its obligations under this Agreement and each Ancillary Agreement to which it is a party. The execution, delivery and performance of this Agreement and each Ancillary Agreement and the consummation of the transactions contemplated hereby and thereby have been duly authorized by all necessary action on the part of the Company. The Company has duly and validly executed and delivered this Agreement and, on or prior to the Closing, the Company will have duly and validly executed and delivered each Ancillary Agreement to which it is a party. This Agreement constitutes, and upon execution and delivery each Ancillary Agreement to which the Company is a party will constitute, the valid and binding obligation of the Company, enforceable against the Company in accordance with its terms.

 

(b) The Seller has all requisite power, authority and capacity to execute, deliver and perform his obligations under this Agreement and each Ancillary Agreement to which he is a party. The execution, delivery and performance of this Agreement and each Ancillary Agreement and the consummation of the transactions contemplated hereby and thereby have been duly authorized by all necessary action on the part of the Seller. The Seller has duly and validly executed and delivered this Agreement. This Agreement constitutes, and upon execution and delivery each Ancillary Agreement to which the Seller is a party will constitute, the valid and binding obligation of the Seller, enforceable against the Seller in accordance with its terms, except as enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally and by general principles of equity (regardless of whether considered in a proceeding in equity or at Law).

 

Section 3.3 No Conflict. Neither the execution, delivery and performance of this Agreement or any Ancillary Agreement by the Company or the Seller, nor the consummation of the transactions contemplated hereby or thereby, will (a) conflict with or violate in any material respect the Governing Documents of the Company, or any resolution adopted by the board of directors or shareholders of the Company, (b) result in (with or without notice or lapse of time or both) a breach or default under or create in any Person the right to terminate, cancel, accelerate or modify, or require any notice, consent or waiver under, any material Contract to which the Company or the Seller is a party or by which the Company, the Seller or any of their respective material properties or assets is otherwise bound or affected, (c) result in the imposition of any Encumbrances on any of the Acquired Shares or any of the properties or assets of the Company, (d) violate in any material respect any Law, Judgment or Governmental Authorization applicable to the Company or the Seller or any of their respective businesses, properties or assets, or (e) require the Company or the Seller to obtain any material Consent or Governmental Authorization or make any filing or registration with any Governmental Authority or other Person.

 

Section 3.4 Capitalization and Ownership.

 

(a) The entire share capital of the Company consists solely of 2,000,000,000 ordinary shares, nominal value ₦1.00 per share, constituting the Acquired Shares, all of which are issued and outstanding. The Seller is the sole owner (of record and beneficially) of all of the Acquired Shares, free and clear of all Encumbrances. Upon the consummation of the Closing, the Purchaser will be the beneficial owner of the entire equity interest in the Company, free and clear of all Encumbrances.

 

(b) The Company has no Subsidiaries and has never had any Subsidiaries. The Company does not own, control or have any right or obligation to acquire, and has never owned, controlled or had any right or obligation to acquire, beneficially or otherwise, any capital shares or other equity interests or debt instruments of any Person.

 

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(c) Except as set forth in this Section 3.4, (i) there are no equity securities of any class of the Company, or any security exchangeable into or exercisable for such equity securities, authorized, issued, reserved for issuance or outstanding and (ii) there are no options, warrants, equity securities, calls, rights or other Contracts to which the Company is a party or by which the Company is bound obligating the Company to issue, exchange, transfer, deliver or sell, or cause to be issued, exchanged, transferred, delivered or sold, additional capital shares or other equity interests of the Company or any security or rights convertible into or exchangeable or exercisable for any such shares or other equity interests, or obligating the Company to grant, extend, accelerate the vesting of, change the price of, otherwise modify or amend or enter into any such option, warrant, equity security, call, right, or Contract. There are no outstanding or authorized stock appreciation, phantom stock, profit participation or similar rights with respect to the Company. There are no Contracts to which the Company or the Seller or any Affiliate of the Company or the Seller is a party or by which the Company or the Seller or any Affiliate of the Company or the Seller is bound with respect to the voting (including voting trusts or proxies), registration under the U.S. Securities Act of 1933 (the “Securities Act”) or any foreign securities Law, or the sale or transfer (including Contracts imposing transfer restrictions) of any capital shares or other equity interests of the Company. No holder of Indebtedness of the Company has any right to convert or exchange such Indebtedness for any equity securities or other securities of the Company. No holder of Indebtedness of the Company has any rights to vote for the election of directors of the Company or to vote on any other matter.

 

(d) All of the Acquired Shares and the issued and outstanding equity securities of each Subsidiary are duly authorized, validly issued, fully paid, nonassessable, not subject to or issued in violation of any purchase option, right of first refusal, preemptive right, subscription right or any similar right and have been issued in compliance with all applicable Laws in all material respects.

 

(e) There are no obligations, contingent or otherwise, of the Company to repurchase, redeem or otherwise acquire any capital shares of the Company. The Company is not subject to any obligation or requirement to provide funds to or make any investment (in the form of a loan, capital contribution or otherwise) in any Subsidiary or any other Person.

 

Section 3.5 Financial Statements.

 

(a) Attached as Section 3.5 of the Seller Disclosure Schedule are correct and complete copies of the following financial statements (collectively, the “Financial Statements”):

 

(i) the unaudited balance sheet of the Company as of January 31, 2023 (the “Balance Sheet”); and

 

(ii) the unaudited statement of profit and loss of the Company for the five (5) months ended January 31, 2023.

 

(b) The Financial Statements (including the notes thereto) are correct and complete, are consistent with the books and records of the Company and have been prepared in accordance with IFRS, consistently applied throughout the periods involved. The Financial Statements fairly present the financial condition of the Company as of the respective dates and for the periods indicated therein. No financial statements of any Person other than the Company are required by IFRS to be included in the financial statements of the Company.

 

(c) The Company has not extended or maintained credit, arranged for the extension of credit, or renewed an extension of credit, in the form of a personal loan to or for any director or executive officer (or equivalent thereof) of the Company. The Company is not a party to any off-balance sheet arrangements that could have a current or future material adverse effect upon the Company’s financial condition or results of operations.

 

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Section 3.6 Books and Records. The books of account, minute books, share record books and other records of the Company, all of which have been made available to the Purchaser, are accurate and complete in all material respects and have been maintained in accordance with sound business practices and an adequate system of internal controls. The minute books of the Company in all material respects contain accurate and complete records of all meetings held of, and material corporate actions taken by, the Company’s shareholders, directors and directors’ committees, and no such meeting at which a material corporate action was taken has been held for which minutes have not been prepared and are not contained in such minute books. At the time of the Closing, all of such books and records will be in the possession of the Company.

 

Section 3.7 Accounts Receivable; Bank Accounts.

 

(a) All accounts receivable reflected on the Balance Sheet or arising after the date of the Balance Sheet have arisen from bona fide transactions involving the sale of goods or the rendering of services in the ordinary course of business. Such accounts receivable are collectible in full, net of the respective reserves shown on the Balance Sheet or, with respect to accounts receivable arising after the date of the Balance Sheet, on the accounting records of the Company as of the Closing Date, as the case may be (which reserves have been calculated consistent with the past custom and practice of the Company). There is no contest, claim, defense or right of setoff, other than returns in the ordinary course of business, relating to the amount or validity of material account receivable.

 

(b) Section 3.7(b) of the Seller Disclosure Schedule sets forth an accurate and complete list of all bank accounts and safe deposits of the Company and a listing of the Persons authorized to draw or borrow thereon or to obtain access thereto.

 

Section 3.8 Inventories. All inventories of the Company are of a quality and quantity usable and, with respect to finished goods, salable in the ordinary course of business, except for obsolete, damaged, defective or slow-moving items that have been written off or written down to fair market value or for which adequate reserves have been established. All such inventory is owned by the Company free and clear of all Encumbrances, and no inventory is held on a consignment basis. The quantities of each item of inventory (whether raw materials, work-in-process or finished goods) are not excessive, but are reasonable in the present circumstances of the Company’s business.

 

Section 3.9 No Undisclosed Liabilities. The Company has no Liabilities except (a) material Liabilities reflected or reserved against in the Balance Sheet and (b) Liabilities incurred in the ordinary course of business after the date of the Balance Sheet.

 

Section 3.10 Absence of Certain Changes and Events. Since the date of the Balance Sheet, the Company has conducted its business only in the ordinary course of business and there has not been any Material Adverse Effect. Without limiting the generality of the foregoing, since the date of the Balance Sheet, there has not been with respect to the Company any:

 

(a) amendment to its Governing Documents;

 

(b) issuance, sale, grant or other disposition of or Encumbrance on any of its capital shares or other securities or any options, warrants or other rights to acquire, any such securities;

 

(c) split, combination or reclassification of any of its capital shares;

 

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(d) declaration, setting aside or payment of any dividend or other distribution (whether in cash, securities or other property) in respect of its capital shares;

 

(e) incurrence, assumption or guarantee of any Indebtedness;

 

(f) sale, lease, license, pledge or other disposition of, or Encumbrance on, any of its properties or assets (other than sales of inventory for fair consideration and in the ordinary course of business);

 

(g) consummation of (i) any merger, consolidation or other business combination, or( ii) the purchase of all or a substantial portion of the assets or any shares of any business or Person;

 

(h) damage to, or destruction or loss of, any of its material assets or material properties, whether or not covered by insurance;

 

(i) entry into, modification, acceleration, cancellation or termination of any material Contract except in the ordinary course of business;

 

(j) (i) adoption, entry into, termination or amendment of any Company Plan, or employment, severance or similar Contract, (ii) increase in the compensation or fringe benefits of, or payment of any bonus to, any director or officer of the Company, (iii) amendment or acceleration of the payment, right to payment or vesting of any compensation or benefits, or (iv) grant of any awards under any bonus, incentive, performance or other compensation plan or arrangement or benefit plan;

 

(k) entry into any hedging Contract or other financial agreement or arrangement designed to protect the Company against fluctuations in commodities prices or exchange rates;

 

(l) cancellation, compromise, release or waiver of any claims or rights (or series of related claims or rights) with a value exceeding $1,000,000 or otherwise outside the ordinary course of business;

 

(m) settlement or compromise in connection with any Proceeding involving the Company;

 

(n) capital expenditure or other expenditure with respect to property, plant or equipment in excess of $1,000,000 in the aggregate;

 

(o) change in accounting principles, methods or practices or investment practices, including any changes as were necessary to conform with IFRS;

 

(p) making or rescission of any Tax election, settlement or compromise of any Tax Liability or amendment of any Tax Return;

 

(q) material acceleration or delay in the payment of accounts payable or other Liabilities or in the collection of notes or accounts receivable;

 

(r)   resignation or termination or threatened resignation or termination of the employment of any of its key officers or employees;

 

(s)   material revaluation of any of its assets, including writing down the value of inventory or writing off notes or accounts receivable;

 

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(t) increase, reduction, draw-down or reversal of its reserves (other than in accordance with IFRS);

 

(u) transfer, assignment or grant of any license or sublicense of any rights under or with respect to any material Intellectual Property; or

 

(v) authorization or agreement, in writing or otherwise, to do any of the foregoing.

 

Section 3.11 Assets. The Company has good and valid title to, or in the case of leased assets, valid leasehold interests in, all of its tangible personal property and assets, free and clear of any Encumbrances other than Permitted Encumbrances except as could not reasonably be expected to result in a Material Adverse Effect. The Company owns or leases all tangible assets used in or necessary to conduct its business as conducted except as could not reasonably be expected to result in a Material Adverse Effect. Each such tangible asset has been maintained in accordance with normal industry practice, is in good operating condition and repair (ordinary wear and tear excepted) and is suitable and sufficient for the purposes for which it is being used.

 

Section 3.12  Real Property. Section 3.12 of the Company Disclosure Schedule sets forth an accurate and complete description of: (i) all real property owned by the Company (the “Owned Real Property”), and (ii) all real property leased by the Company (the “Leased Real Property,” and together with the Owned Real Property, collectively, the “Real Property”). The Seller has delivered to the Purchaser accurate and complete copies of all deeds, title reports, surveys, title policies, Encumbrances and appraisals relating to the Owned Real Property and all leases relating to the Leased Real Property. The Company has insurable fee simple title to each parcel of Owned Real Property and a valid leasehold interest in each Leased Real Property, free and clear of any Encumbrances, other than Permitted Encumbrances. The Company is not in default under any lease of any of the Leased Real Property. There are no leases, subleases, licenses or other agreements granting to any Person other than the Company any right to the possession, use, occupancy or enjoyment of the Owned Real Property or Leased Real Property or any portion thereof. The use and operation of the Real Property in the conduct of the Company’s business do not violate any Law, covenant, restriction, easement, license, permit or Contract. All buildings, structures, fixtures and other improvements included in the Owned Real Property and Leased Real Property are in compliance with all applicable Laws. There are no Proceedings pending nor, to the Seller’s Knowledge, threatened in writing against or affecting the Real Property or any portion thereof. The Company has not received notice of any order or action by any Governmental Authority with respect to the Real Property.

 

Section 3.13  Intellectual Property. The Company owns or otherwise has the valid and legally enforceable rights to use all material Intellectual Property owned, created, acquired, licensed or used by the Company (the “Company Intellectual Property”), and the consummation of the transactions contemplated hereby will not alter or impair any such rights in any material respect. The Company Intellectual Property constitutes all of the Intellectual Property used in or necessary to conduct the business of the Company as presently conducted. Section 3.13 of the Seller Disclosure Schedule sets forth an accurate and complete list of (i) all of the Company Intellectual Property owned by the Company (the “Owned Intellectual Property”), and (ii) all Intellectual Property used by the Company pursuant to a license or other right granted by a third party (the “Third Party Intellectual Property”). To the Seller’s Knowledge, no Person has infringed or misappropriated any of the Company Intellectual Property. The Company has not commenced or threatened any Proceeding, or asserted any allegation or claim, against any Person for infringement or misappropriation of the Company Intellectual Property or breach of any Contract involving the Company Intellectual Property. Neither the conduct of the business of the Company nor the Company’s creation, use, license or other transfer of the Company Intellectual Property infringes or misappropriates any other Person’s Intellectual Property in any material respect. The Company has not received written notice of any pending or threatened Proceeding or any claim in which any Person alleges that the Company, its business or the Company Intellectual Property has violated any Person’s Intellectual Property rights. There are no pending disputes between the Company and any other Person relating to the Company Intellectual Property. The Company has taken all commercially reasonable steps necessary to protect and maintain the confidentiality of all trade secrets and confidential business information included in the Company Intellectual Property.

 

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Section 3.14 Contracts.

 

(a) Section 3.14 of the Seller Disclosure Schedule sets forth an accurate and complete list of each material Contract to which the Company is a party or by which the Company or any of its material properties or assets is bound or affected, which:

 

(i) contains obligations of the Company in excess of $250,000;

 

(ii) involves payments based, in whole or in part, on profits, revenues, fee income or other financial performance measures of the Company;

 

(iii)             is a mortgage, indenture, guarantee, loan or credit agreement, security agreement or other Contract relating to Indebtedness other than accounts receivables and payables in the ordinary course of business;

 

(iv) is an employment, management, consulting or similar Contract;

 

(v) is a severance or similar Contract pursuant to which the Company has any continuing obligations;

 

(vi)              relates to the acquisition, disposition, lease or sublease of any real or personal property, or that otherwise affects the ownership of, leasing of, title to, or use of, any real or personal property (other than personal property leases and conditional sales agreements having a value per item or aggregate payments of less than $100,000 and a term of less than one (1) year);

 

(vii)            is a license or other Contract under which (A) the Company has licensed or otherwise granted rights in any Company Intellectual Property to any Person or (B) any Person has licensed or sublicensed to the Company, or otherwise authorized the Company to use, any Third Party Intellectual Property;

 

(viii)          includes any noncompetition or nonsolicitation covenant or any exclusive dealing or similar arrangement that limits the ability of the Company to compete (geographically or otherwise) in any line of business; or

 

(ix)              is otherwise material to the business, properties, assets or Liabilities of the Company or under which the consequences of a default or termination could reasonably be expected to result in a Material Adverse Effect.

 

(b) The Seller has delivered to the Purchaser an accurate and complete copy of each Contract required to be listed in Section 3.14 of the Seller Disclosure Schedule. Each such Contract is legal, valid, binding, enforceable and in full force and effect except as enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally and by general principles of equity (regardless of whether considered in a proceeding in equity or at law). Neither the Company nor, to the Seller’s Knowledge, any other party to any such Contract is in breach or default under, or has provided or received any notice of any intention to terminate, any such Contract.

 

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Section 3.15 Tax Matters.

 

(a) The Company has timely filed all Tax Returns that it was required to file in accordance with applicable Laws, and each such Tax Return is accurate and complete in all respects. The Company has timely paid all Taxes due with respect to the taxable periods covered by such Tax Returns and all other Taxes (whether or not shown on any Tax Return). No claim has ever been made by a Governmental Authority in a jurisdiction where the Company does not file a Tax Return that it is or may be subject to taxation by that jurisdiction. The Company has not requested an extension of time within which to file any Tax Return which has not since been filed.

 

(b) All Taxes that the Company is required by Law to withhold or collect have been duly withheld or collected and, to the extent required by applicable Law, have been paid over to the proper Governmental Authority.

 

(c) No Tax audits or other Proceedings are pending or being conducted, nor has the Company received any notice from any Governmental Authority that any such audit or other Proceeding is pending, threatened or contemplated. There is no claim or assessment pending, or threatened against the Company for any alleged deficiency in Taxes. The Company has not waived any statute of limitations with respect to Taxes or agreed to an extension of time with respect to any Tax assessment or deficiency.

 

(d) The Company is not a party to or bound by any Tax sharing agreement, Tax indemnity obligation or similar Contract or practice with respect to Taxes. The Company is not and has not been a member of an affiliated group within the meaning of Section 1504(a) of the Code (or any similar group defined under a similar provision of foreign, state or local Law), other than a group of which the Company is the common parent, and the Company has no Liability for Taxes of any other Person under Section 1.1502-6 of the Treasury Regulations (or any similar provision of foreign, state or local Law), as a transferee or successor, by Contract or otherwise.

 

(e) The Company is not and has not been a United States real property holding corporation (as defined in Section 897(c)(2) of the Code) during the applicable period specified in Section 897(c)(1)(A)(ii) of the Code.

 

Section 3.16 Employee Benefit Matters.

 

(a) The Company does not now and has never in the past established, maintained, participated in, administered or contributed to (or had an obligation under applicable Law or otherwise to do any of the foregoing) any Employee Benefit Plan, and the Company has no Liabilities with respect thereto.

 

(b) The consummation of the transactions contemplated by this Agreement and the Ancillary Agreements will not (i) entitle any individual to severance pay, unemployment compensation or other benefits or compensation by the Company under any applicable Law or otherwise; or (ii) accelerate the time of payment or vesting, or increase the amount of any compensation due, or in respect of, any director, officer, employee or independent contractor of the Company.

 

(c) Except to the extent required by applicable Law, the Company does not provide health or welfare benefits to any former or retired employee and is not obligated to provide such benefits to any active employee following such employee’s retirement or other termination of employment or service.

 

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Section 3.17  Employment Matters. Section 3.17 of the Seller Disclosure Schedule sets forth an accurate and complete list of all employees and independent contractors currently performing services for the Company, along with the position, hire date, and compensation and benefits. The Company is not a party to or bound by any collective bargaining or other Contract with any labor organization representing any of its employees, and there are no labor organizations representing or, to the Seller’s Knowledge, attempting to represent any employee of the Company. The Company has not experienced any labor strike, slowdown, lockout, or other work stoppage or labor dispute, nor to the Seller’s Knowledge is any such action threatened. The Company has complied with all applicable Laws relating to labor and employment matters, including fair employment practices, equal employment opportunity, discrimination and other employment activities. There is no Proceeding pending or, to the Seller’s Knowledge, threatened against or affecting the Company relating to the alleged violation by the Company (or its directors or officers) of any Law pertaining to labor relations or employment matters. Since December 31, 2017, there has been no complaint, claim or charge filed or, to the Seller’s Knowledge, threatened, against the Company with or by any Governmental Authority responsible for prevention of unlawful employment practices.

 

Section 3.18  Environmental, Health and Safety Matters. Each of the Company and its predecessors is, and at all times has been, in compliance with all Environmental Laws and Occupational Safety and Health Laws. The Company has not received any notice, report or other information regarding any actual or alleged violation of any Environmental Laws or Occupational Safety and Health Laws, including any investigatory, remedial or corrective obligations relating to the Company or any Real Property or other property or facility currently or previously owned, leased, operated or controlled by the Company. No Hazardous Materials, contamination, landfill, surface impoundment, disposal area, underground storage tank, groundwater monitoring well, drinking water well or production water well is present or, to the Seller’s Knowledge, has ever been present at any Real Property or other property or facility currently or previously owned, leased, operated or controlled by the Company. Neither the Company nor any of its predecessors has treated, stored, disposed of, transported, handled, generated, or released any Hazardous Materials.

 

Section 3.19 Compliance with Laws and Governmental Authorizations.

 

(a) The Company is in compliance and has complied with all Laws or Governmental Authorizations applicable to it or to the conduct of its business or the ownership or use of any of its properties or assets. The Company has not received at any time since December 31, 2017 any notice or other communication from any Governmental Authority or any other Person regarding any actual, alleged or potential violation of, or failure to comply with, any applicable Law, Judgment or Governmental Authorization.

 

(b) All Governmental Authorizations necessary for the Company to conduct its business have been obtained by the Company and are valid and in full force and effect. Section 3.19(b) of the Seller Disclosure Schedule lists all of the material Governmental Authorizations issued to the Company. No event has occurred that, with or without notice or lapse of time or both, would reasonably be expected to result in the revocation, suspension, lapse or limitation of any Governmental Authorization listed in Section 3.19(b) of the Seller Disclosure Schedule.

 

Section 3.20 Legal Proceedings. There are no Proceedings pending or, to the Seller’s Knowledge, threatened in writing (a) by or against the Company or that otherwise relate to or could reasonably be expected to affect the Company’s business, properties or assets, or (b) against the Seller or the Company that challenge, or that may have the effect of preventing, delaying, making illegal or otherwise interfering with, any of the transactions contemplated by this Agreement.

 

Section 3.21 Anti-Corruption and Trade Regulation.

 

(a) Neither the Company nor any of its Affiliates, directors, officers, employees, consultants, agents or other representatives (nor any Person acting on behalf of any of the foregoing) has directly, or indirectly through a third-party intermediary, paid, offered, given, promised to pay, or authorized the payment of any money or anything of value (including any gift, sample, travel, meal and lodging expense, entertainment, service, equipment, debt forgiveness, donation, grant or other thing of value, however characterized) to (i) any officer or employee of a Governmental Authority (ii) any officer or employee of a Governmental Authority, (iii) any political party or official thereof, (iv) any candidate for political office or (v) any other Person at the suggestion, request, direction or for the benefit of any of the above- described Persons.

 

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(b) Neither the Company nor any of its Affiliates, directors, officers, employees, consultants, agents or other representatives has violated or is in violation of any applicable Law combating bribery or corruption, including Laws implementing the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions.

 

(c) Each transaction of the Company has been properly and accurately recorded on the books and records of the Company and each document on which entries in the Company’s books and records are based (including purchase orders, customer or company invoices and service agreements) is accurate and complete in all respects. The Company maintains a system of internal accounting controls, internal controls over financial reporting and disclosure controls and procedures adequate to ensure (i) that books, records and accounts accurately reflect, in reasonable detail, the transactions and dispositions of the Company’s assets, (ii) that the integrity of its financial statements is maintained and (iii) that access to assets is permitted only in accordance with management’s general or specific authorizations.

 

(d) The Company has not at any time engaged in the sale, purchase, import, export, re-export or transfer of products or services, either directly or indirectly, to or from Cuba, Iran, North Korea, Russia, Syria, or the Crimea, Donetsk or Luhansk regions of Ukraine (the “Certain Jurisdictions”) or been a party to or beneficiary of, or had any interest in, any franchise, license, management or other Contract with any Person, either public or private, in the Certain Jurisdictions or been a party to any investment, deposit, loan, borrowing or credit arrangement or involved in any other financial dealings with any Person, either public or private, in the Certain Jurisdictions.

 

Section 3.22  Insurance. Section 3.22 of the Seller Disclosure Schedule sets forth an accurate and complete list of all material insurance policies maintained by the Company. All such insurance policies are in full force and effect and all premiums due and payable under such policies have been paid and the Company is otherwise in compliance with the terms thereof. The Seller has no Knowledge of any threatened termination of, or material premium increase with respect to, any such policy.

 

Section 3.23  Related Party Transactions. Except as set forth on Section 3.23 of the Seller Disclosure Schedule, neither the Seller nor any director, officer, employee or Affiliate of the Company (or Affiliate of any the Seller or any such director, officer, employee or Affiliate), is a party to any agreement, Contract, commitment or transaction with the Company, other than (i) business dealings conducted in the ordinary course of business on terms and conditions as favorable to the Company as would have been obtained by it at the time in a comparable arm’s-length transaction, or (ii) in the case of employees of the Company, salaries and employee benefits and other transactions pursuant to any Company Plans in the ordinary course of business.

 

Section 3.24  Brokers or Finders. Neither the Seller nor the Company, nor any Person acting on behalf of the Seller or the Company has incurred any Liability to pay any fees or commissions to any broker, finder or agent or any other similar payment in connection with any of the transactions contemplated by this Agreement.

 

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Section 3.25  Non-Reliance. Except for the representations and warranties contained in this Article 3 (including the related portions of the Seller Disclosure Schedule), none of the Seller, the Company or any other Person has made or makes any other express or implied representation or warranty, either written or oral, on behalf of the Seller or the Company, including any representation or warranty as to the accuracy or completeness of any information regarding the Company furnished or made available to the Purchaser and its representatives or as to the future revenue, profitability or success of the Company, or any representation or warranty arising from statute or otherwise in law.

 

ARTICLE 4

REPRESENTATIONS AND WARRANTIES OF THE PURCHASER AND MICT

 

Each of the Purchaser and MICT represents and warrants to the Seller, jointly and severally, that as of the Effective Date and as of the Closing Date the statements set forth in this Article 4 are true and correct:

 

Section 4.1  Organization and Good Standing. Each of the Purchaser and MICT has been duly organized, validly existing and is in good standing under the Laws of the jurisdiction of its organization or formation.

 

Section 4.2  Authority and Enforceability. Each of the Purchaser and MICT has all requisite corporate power and authority to execute and deliver this Agreement and each Ancillary Agreement to which it is a party and to perform its obligations under this Agreement and each such Ancillary Agreement. The execution, delivery and performance of this Agreement and each Ancillary Agreement to which the Purchaser or MICT is a party and the consummation of the transactions contemplated hereby and thereby have been duly authorized by all necessary action on the part of the Purchaser. Each of the Purchaser and MICT has duly and validly executed and delivered this Agreement and, on or prior to the Closing, each of the Purchaser and MICT will have duly and validly executed and delivered each Ancillary Agreement to which it is a party. This Agreement constitutes, and upon execution and delivery each Ancillary Agreement to which the Purchaser or MICT is a party will constitute, the valid and binding obligation of the Purchaser or MICT, as applicable, enforceable against the Purchaser and MICT in accordance with its terms, except as enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally and by general principles of equity (regardless of whether considered in a proceeding in equity or at Law).

 

Section 4.3 No Conflict. Neither the execution, delivery and performance by the Purchaser or MICT of this Agreement or any Ancillary Agreement to which the Purchaser or MICT is a party, nor the consummation of the transactions contemplated hereby or thereby, will (a) conflict with or violate in any material respect the Governing Documents of the Purchaser or MICT, or any resolution adopted by the board of directors or shareholders of the Purchaser or MICT, (b) result in (with or without notice or lapse of time or both) a breach or default under or create in any Person the right to terminate, cancel, accelerate or modify, or require any notice, consent or waiver under, any material Contract to which the Purchaser or MICT is a party or by which the Purchaser or MICT or any their respective material properties or assets is otherwise bound or affected, (c) violate in any material respect any Law, Judgment or Governmental Authorization applicable to the Purchaser or MICT or any of their respective material properties or assets, or (d) require the Purchaser or MICT to obtain any material Consent or Governmental Authorization or make any filing with any Governmental Authority or other Person.

 

Section 4.4  Legal Proceedings. There is no Proceeding pending or, to the Purchaser’s or MICT’s knowledge, threatened in writing against the Purchaser or MICT that challenges, or that may have the effect of preventing, delaying, making illegal or otherwise interfering with, any of the transactions contemplated by this Agreement.

 

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Section 4.5 Investment Intent. The Purchaser is acquiring the Acquired Shares for its own account and not with a view to their distribution within the meaning of Section 2(11) of the Securities Act.

 

Section 4.6  Brokers or Finders. Neither the Purchaser, MICT nor any Person acting on behalf of either of them has incurred any Liability to pay any fees or commissions to any broker, finder or agent or any other similar payment in connection with any of the transactions contemplated by this Agreement.

 

ARTICLE 5

COVENANTS

 

Section 5.1  Fit-Out of Premises and Procurement of Processing Equipment. Following the Closing, the parties shall cooperate in good faith to jointly approve a development plan for the Premises, wherein, following construction of the Premises by the Seller, the Purchaser shall fund and finance the fit- out and mechanization of the Premises, including the procurement and installation of machinery and specialized building infrastructure necessary to operate the business of the Company on the Premises (the “Purchaser Fit-Out Obligation”).

 

Section 5.2  Funding for Company Expansion. Following the Closing, the parties shall jointly, and in good faith, cooperate to develop a budget and financial forecasts for the Company for the five (5) year period following the Closing Date (collectively, the “Company Projections”). The Purchaser undertakes to secure sufficient financing to enable the Company to grow and develop according to such capital requirements as are contained or assumed within the Company Projections; provided, however, that a failure by the Company to meet the Company Projections shall not constitute a breach of this Section.

 

Section 5.3  Consents and Filings. Each of the Company and the Seller will use its commercially reasonable efforts (i) to take promptly, or cause to be taken (including actions after the Closing), all actions, and to do promptly, or cause to be done, all things necessary, proper or advisable to consummate and make effective the transactions contemplated by this Agreement and (ii) as promptly as practicable after the Effective Date, to obtain all Governmental Authorizations from, give all notices to, and make all filings with, all Governmental Authorities, and to obtain all other Consents from, and give all other notices to, all other Persons, that are necessary or advisable in connection with the authorization, execution and delivery of this Agreement and the consummation of the transactions contemplated by this Agreement.

 

Section 5.4  Seller Release. Effective as of the Closing Date, Seller and his Affiliates, successors and assigns (the “Seller Releasing Parties”) hereby (but subject to exclusions hereafter set out in this Section 5.4) fully and unconditionally release, acquit and forever discharge the Purchaser and the Company and their respective equityholders, controlling persons, directors, officers, employees, agents, representatives, controlled Affiliates, members, managers, general or limited partners, or assignees (and any former, current or future equityholder, controlling person, director, officer, employee, agent, representative, controlled Affiliate, member, manager, general or limited partner, or assignee of any of the foregoing (each, a “Seller Released Party”) from any and all manner of actions, claims, demands, Proceedings, Liabilities, Losses, compensation or other relief, whether known or unknown, whether at Law or in equity, that such party ever had, now has or ever may have or claim to have against any Seller Released Party arising out of or relating to the operation or ownership of the Company prior to the Closing (including in respect of the management of the Company) (collectively, the “Seller Released Claims”) but excluding any and all claims under this Agreement or the Ancillary Agreements and any and all claims based on fraud or willful misconduct. Effective as of the Closing Date, the Seller Releasing Parties expressly waive all rights afforded by any Law which limits the effect of a release with respect to unknown claims. Each Seller Releasing Party understands the significance of this release of unknown claims and waiver of statutory protection against a release of unknown claims, and acknowledges and agrees that this waiver is an essential and material term of this Agreement. Each Seller Releasing Party acknowledges that the Purchaser will be relying on the waiver and release provided in this Section 5.4 in connection with entering into this Agreement and that this Section 5.4 is intended for the benefit of, and to grant third party rights to each Seller Released Party to enforce this Section 5.4.

 

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Section 5.5  Confidentiality.

 

(a) From and after the Closing, the Seller will, and will cause each of its Affiliates and its and their respective directors, officers, shareholders, employees, agents, consultants and other advisors and representatives (its “Restricted Persons”) to, maintain the confidentiality of, and not use for their own benefit or the benefit of any other Person, the Confidential Information.

 

(b) Except as contemplated by Section 5.6, neither the Purchaser nor the Seller will, and the Purchaser and the Seller will cause each of their respective Restricted Persons not to, disclose to any Person any information with respect to the legal, financial or other terms or conditions of this Agreement, any of the Ancillary Agreements or any of the transactions contemplated hereby or thereby. The foregoing does not restrict the right of any party to disclose such information (i) to its respective Restricted Persons to the extent reasonably required to facilitate the negotiation, execution, delivery or performance of this Agreement and the Ancillary Agreements, (ii) to any Governmental Authority or arbitrator to the extent reasonably required in connection with any Proceeding relating to the enforcement of this Agreement or any Ancillary Agreement, (iii) to any Governmental Authority or securities exchange to the extent required by applicable securities Laws or securities exchange rules, and (iv) as permitted in accordance with Section 5.5(c). Each party will advise its respective Restricted Persons with respect to the confidentiality obligations under this Section 5.5(b) and will be responsible for any breach or violation of such obligations by its Restricted Persons.

 

(c) If a party or any of its respective Restricted Persons become legally compelled to make any disclosure that is prohibited or otherwise restricted by this Agreement, then such party will (i) promptly notify the other party in writing, (ii) consult with and assist the other party in obtaining an injunction or other appropriate remedy to prevent such disclosure and (iii) use its commercially reasonable efforts to obtain a protective order or other reliable assurance that confidential treatment will be accorded to any information so disclosed. Subject to the previous sentence, the disclosing party or such Restricted Persons may make only such disclosure that, in the opinion of its counsel, it is legally compelled or otherwise required to make.

 

(d) To the extent that the Seller has not done so prior to the Closing, the Seller will, immediately following the Closing, surrender to the Company all data, documents, records, data bases, specifications, customer lists, financial reports and all other tangible embodiments of Confidential Information, it being expressly understood that all these writings, tangible embodiments and other things are the exclusive property of the Company.

 

Section 5.6  Public Announcements. Any public announcement or similar publicity with respect to this Agreement or the transactions contemplated by this Agreement will be issued at such time and in such manner as the parties may mutually agree unless such announcement is required by applicable Law or the rules and regulation of any securities exchange.

 

Section 5.7  Noncompetition and Nonsolicitation. The Seller acknowledges and agrees that the Company has devoted substantial time, effort and resources to developing the Company’s trade secrets and other confidential and proprietary information, as well as the Company’s relationships with customers, suppliers, employees and others doing business with the Company; that such relationships, trade secrets and other information are vital to the successful conduct of the Company’s business in the future; that because of the Seller’s access to the Company’s confidential information and trade secrets, the Seller would be in a unique position to divert business from the Company and to commit irreparable damage to the Company were the Seller to be allowed to compete with the Company or to commit any of the other acts prohibited below; that the enforcement of the restrictive covenants against the Seller would not impose any undue burden upon the Seller; and that the ability to enforce the restrictive covenants against the Seller is a material inducement to the decision of the Purchaser to consummate the transactions contemplated by this Agreement. Accordingly, during the period commencing on the Closing Date and ending on the fourth (4th) anniversary of the Closing Date (the “Restricted Period”):

 

(a)             the Seller will not, directly or indirectly, engage in any business anywhere in the world that develops, manufactures, produces, markets, sells or distributes any products or provides any services of the kind developed, under development, manufactured, produced, marketed, sold, distributed or provided by the Company as of the Closing, or own an interest in, manage, operate, join, control, lend money or render financial assistance to, be employed by, any Person that competes with the Purchaser or the Company in developing, manufacturing, producing, marketing, selling or distributing any products or providing any services of the kind developed, under development, manufactured, produced, marketed, sold, distributed or provided by the Company as of the Closing; provided, however, that, for the purposes of this Section 5.7, ownership of securities having no more than 1% of the outstanding voting power of any Person which are listed on any national securities exchange will not be deemed to be in violation of this Section 5.7 as long as the Person owning such securities has no other connection or relationship with such Person. The Restricted Period will be extended by the length of any period during which the Seller is in breach of the terms of this Section 5.7(a); and

 

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(b)             the Seller will not, directly or indirectly, for itself or on behalf of or in conjunction with any other Person, (i) solicit any employee of the Purchaser or the Company away from or out of the employ of the Purchaser or the Company unless such individual will have ceased to be employed by the Purchaser and the Company for a period of at least six (6) months prior thereto or (ii) cause, induce or attempt to cause or induce any customer, strategic partner, supplier, distributor, landlord or others doing business with the Purchaser or the Company to cease or reduce the extent of its business relationship with the Purchaser or the Company or to deal with any competitor of the Purchaser or the Company; provided, however, that this Section 5.7(b) will not be deemed to prohibit the Seller from engaging in general media advertising or solicitation that may be targeted to a particular geographic or technical area but that is not targeted towards employees of the Purchaser or the Company.

 

Section 5.8  Further Assurances. Subject to the other express provisions of this Agreement, upon the request of any party to this Agreement, the other parties will (a) furnish to the requesting party any additional information, (b) execute and deliver, at their own expense, any other documents and (c) take any other actions as the requesting party may reasonably require to more effectively carry out the intent of this Agreement and the transactions contemplated by this Agreement.

 

ARTICLE 6

CERTAIN TAX MATTERS

 

Section 6.1  Tax Returns.

 

(a) The Seller will prepare and file (or cause to be prepared and filed) on a timely basis all Tax Returns of the Company for taxable periods ending on or before the Closing Date that are not filed by the Closing Date. Such Tax Returns will be prepared in a manner consistent with and utilizing the accounting methods utilized in the preparation of the prior Tax Returns of the Company. The Purchaser shall cause the Company to provide the Seller and its representatives with access to the books and records of the Company reasonably necessary during normal working hours to prepare such Tax Returns. The Seller (i) will submit all such Tax Returns and any requested work papers to the Purchaser for its review at least thirty (30) days prior to filing and consider in good faith any comments provided by the Purchaser and (ii) will, promptly after filing, forward to the Purchaser an accurate and complete copy of such filed Tax Returns and proof of payment of the subject Taxes. In the event that the Seller fails to prepare and file or cause to be prepared or filed any Tax Return it is required to file pursuant to this Section 6.1(a), the Purchaser shall have the right, but not the obligation, to prepare and file such Tax Returns at its expense.

 

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(b) The Purchaser will prepare and file (or cause to be prepared and filed) all Tax Returns with respect to the Company for all taxable periods ending after the Closing Date (as well as any Tax Returns for taxable periods ending on or before the Closing Date that it elects to file).

 

Section 6.2  Payment of Taxes.

 

(a) To the extent that Taxes of the Company for all taxable periods and portions of periods through the Closing Date (including all such Taxes payable with respect to Tax Returns filed under this Article 6 and any Taxes assessed after the Closing with respect to taxable periods or portions of periods through the Closing Date) are accrued or expressly reserved for as current Liabilities in line items on the Balance Sheet (excluding any reserve for deferred Taxes established to reflect timing differences between book and Tax income), the Purchaser will pay or cause to be paid such Taxes. To the extent such Taxes for all taxable periods and portions of periods through the Closing Date are not so reflected as current Liabilities on the Balance Sheet, the Seller will pay all such Taxes. Taxes that are payable with respect to a taxable period that begins before the Closing Date and ends after the Closing Date will be allocated to the portion of the period that ends on the Closing Date in accordance with Section 6.3.

 

(b) In the case of Tax Returns filed by the Purchaser under this Article 6 and as to which the Purchaser expects payment from the Seller, the Purchaser may elect to deliver the pertinent Tax Return to the Seller and inform the Seller of any amounts due from the Seller at least ten (10) days prior to the due date of the pertinent Tax Return and the Seller will pay such amounts to the Purchaser in immediately available funds at least two (2) Business Days prior to the due date of the Tax Return. In the case of any Tax Returns filed by the Seller, the Seller will pay the amount of Taxes due with respect to such Tax Returns (with the Purchaser being required to supply any amounts payable by the Purchaser by the due date of the subject Tax Return).

 

Section 6.3  Tax Apportionment. In the case of Taxes that are payable with respect to a taxable period that begins before the Closing Date and ends after the Closing Date, the portion of any such Tax that is allocable to the portion of the period ending on the Closing Date will be:

 

(a) in the case of Taxes that are either (i) based upon or related to income or receipts or (ii) imposed in connection with any sale or other transfer or assignment of property (real or personal, tangible or intangible) (other than any transaction Taxes contemplated by Section 6.4), deemed equal to the amount which would be payable if the taxable period ended as of the close of business on the Closing Date; and

 

(b) in the case of Taxes imposed on a periodic basis with respect to the assets of the Company, or otherwise measured by the level of any item, deemed to be the amount of such Taxes for the entire period (or, in the case of such Taxes determined on an arrears basis, the amount of such Taxes for the immediately preceding period), multiplied by a fraction the numerator of which is the number of calendar days in the period ending on the Closing Date and the denominator of which is the number of calendar days in the entire period.

 

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Section 6.4  Transactional Taxes. Notwithstanding any other provision of this Agreement, all transfer, documentary, recording, notarial, sales, use, registration, stamp and other similar Taxes or fees imposed by any taxing authority in connection with the transactions contemplated by this Agreement will be borne by the Seller. The Seller will, at its own expense, file all necessary Tax Returns and other documentation with respect to all such Taxes and, if required by applicable Law, the Purchaser will, and will cause its Affiliates to, join in the execution of any such Tax Returns or other documentation.

 

ARTICLE 7

INDEMNIFICATION

 

Section 7.1  Indemnification by the Seller. Subject to the limitations expressly set forth in Section 7.5 and 7.6, the Seller will indemnify and hold harmless the Purchaser and its Affiliates (including MICT and, following the Closing, the Company) and their respective directors, officers, equity owners, employees, agents, consultants and other advisors and representatives (collectively, the “Purchaser Indemnified Parties”) from and against, and will pay and reimburse them for, any and all Losses incurred or suffered by the Purchaser Indemnified Parties directly or indirectly arising out of, relating to or resulting from any of the following:

 

(a) any inaccuracy in or breach of any representation or warranty of the Seller contained in this Agreement, any Ancillary Agreement or in any certificate or instrument delivered by or on behalf of the Seller pursuant to this Agreement or any Ancillary Agreement;

 

(b) any nonperformance or other breach of any covenant or agreement of the Seller or the Company contained in this Agreement, any Ancillary Agreement or in any certificate or instrument delivered by or on behalf of the Seller pursuant to this Agreement or any Ancillary Agreement; and

 

(c) except to the extent accrued or expressly reserved for as current Liabilities in line items on the Balance Sheet (excluding any reserve for deferred Taxes established to reflect timing differences between book and Tax income) (i) any Taxes of the Company with respect to taxable periods ending on or before the Closing Date, (ii) with respect to taxable periods beginning before the Closing Date and ending after the Closing Date, any Taxes of the Company which are allocable, pursuant to Section 6.3, to the portion of such period ending on the Closing Date and (iii) any Taxes relating to any member of an affiliated group with which the Company has filed a Tax Return on a consolidated, combined or unitary basis.

 

For the sole purposes of determining Losses under this Section 7.1 (and not for determining whether any inaccuracy in, or breach of any representation or warranty, or nonperformance or other breach of any covenant or agreement by the Seller or the Company has occurred), the representations, warranties and covenants shall not be deemed qualified by any reference to materiality, “Material Adverse Effect” or similar qualification. Seller acknowledges that Section 7.1 is intended for the benefit of, and to grant third party rights to each Purchaser Indemnified Party to enforce this Section 7.1.

 

Section 7.2  Indemnification by the Purchaser and MICT. Subject to the limitations expressly set forth in Section 7.6, the Purchaser (and, as to Section 7.2(a), the Purchaser and MICT jointly and severally) will indemnify and hold harmless the Seller from and against, and will pay and reimburse the Seller for, any and all Losses incurred or suffered by the Seller directly or indirectly arising out of, relating to or resulting from any of the following:

 

(a) any inaccuracy in or breach of any representation or warranty or other statement of the Purchaser or MICT contained in this Agreement, any Ancillary Agreement or in any certificate or instrument delivered by the Purchaser pursuant to this Agreement or any Ancillary Agreement; and

 

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(b) any nonperformance or other breach of any covenant or agreement of the Purchaser contained in this Agreement, any Ancillary Agreement or in any certificate or instrument delivered by the Purchaser pursuant to this Agreement or any Ancillary Agreement.

 

For the sole purposes of determining Losses under this Section 7.2 (and not for determining whether any inaccuracy in, or breach of any representation or warranty, or nonperformance or other breach of any covenant or agreement by the Purchaser has occurred), the representations, warranties and covenants shall not be deemed qualified by any reference to materiality, material adverse effect or similar qualification.

 

Section 7.3 Claim Procedure.

 

(a) A party that seeks indemnity under this Article 7 (an “Indemnified Party”) will give written notice (a “Claim Notice”) to the party from whom indemnification is sought (an “Indemnifying Party”) containing (i) a description and, if known, the estimated amount of any Losses incurred or reasonably expected to be incurred by the Indemnified Party, and (ii) a reasonable explanation of the basis for the Claim Notice to the extent of the facts then known by the Indemnified Party.

 

(b) Within thirty (30) days after delivery of a Claim Notice, the Indemnifying Party will deliver to the Indemnified Party a written response to such Claim Notice. If the Indemnifying Party fails to so respond within thirty (30) days after delivery of the Claim Notice, then the Indemnifying Party will be deemed to have irrevocably accepted the Claim Notice and agreed to pay the Losses at issue in the Claim Notice.

 

(c) If, within thirty (30) days after delivery of the Claim Notice, the Indemnifying Party delivers a written notice disputing the Indemnified Party’s entitlement to indemnification for the Losses described in the Claim Notice, then the dispute may be resolved by any legally available means consistent with the provisions of Section 8.11.

 

(d) Any indemnification payment pursuant to this Article 9 will be effected by wire transfer of immediately available funds from the Indemnifying Party to an account designated by the Indemnified Party, and will be made within five (5) Business Days after the date on which (i) the amount of such payments are determined by mutual agreement of the parties, (ii) the amount of such payments are determined pursuant to Section 7.3 if a written response has not been timely delivered in accordance with Section 7.3(b) or (iii) both such amount and the Indemnifying Party’s obligation to pay such amount have been finally determined by a final Judgment of a court having jurisdiction over such proceeding as permitted by Section 8.11 if a written response has been timely delivered in accordance with Section 7.3(b).

 

Section 7.4 Third Party Claims.

 

(a) If any Indemnified Party receives notice of a claim or demand, whether or not involving a Proceeding, by any Person who is not a party to this Agreement or an Affiliate of a party to this Agreement (a “Third Party Claim”) against such Indemnified Party with respect to which the Indemnifying Party is obligated to provide indemnification under this Agreement, the Indemnified Party will give the Indemnifying Party a Claim Notice within thirty (30) days following receipt of such notice of such Third Party Claim. Such Claim Notice will describe the facts constituting the basis for such Third Party Claim and the amount of the damages claimed by the other Person, in each case to the extent known to the Indemnified Party. Notwithstanding the foregoing, no delay or deficiency on the part of the Indemnified Party in so notifying the Indemnifying Party will relieve the Indemnifying Party of any Liability or obligation under this Agreement except to the extent the Indemnifying Party has suffered actual Losses directly caused by the delay or other deficiency.

 

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(b) Within thirty (30) days after the Indemnified Party’s delivery of a Claim Notice under this Section 7.4, the Indemnifying Party may assume control of the defense of such Third Party Claim by giving to the Indemnified Party written notice of the intention to assume such defense, but if and only if the Indemnifying Party further:

 

(i) acknowledges in writing to the Indemnified Party that any Losses that may be assessed in connection with the Third Party Claim constitute Losses for which the Indemnified Party will be indemnified pursuant to this Article 7 without contest or objection and that the Indemnifying Party will advance all expenses and costs of defense; and

 

(ii) retains counsel for the defense of the Third Party Claim reasonably satisfactory to the Indemnified Party and furnishes to the Indemnified Party evidence satisfactory to the Indemnified Party that the Indemnifying Party has and will have sufficient financial resources to fund on a current basis the cost of such defense and pay all Losses that may arise under the Third Party Claim.

 

However, if the Seller is the Indemnifying Party, in no event may the Indemnifying Party assume, maintain control of, or participate in, the defense of any Third Party Claim (A) involving criminal liability, (B) in which any relief other than monetary damages is sought against the Indemnified Party or (C) in which the outcome of any Judgment or settlement in the matter could reasonably be expected to adversely affect the Indemnified Party’s Tax Liability or the ability of the Indemnified Party to conduct its business (collectively, clauses (A) – (C), the “Special Claims”). An Indemnifying Party will lose any previously acquired right to control the defense of any Third Party Claim if for any reason the Indemnifying Party ceases to actively, competently and diligently conduct the defense.

 

(c) If the Indemnifying Party does not, or is not able to, assume or maintain control of the defense of a Third Party Claim in compliance with Section 7.4(b), the Indemnified Party will have the right to control the defense of the Third Party Claim. If the Indemnified Party controls the defense of the Third Party Claim, the Indemnifying Party agrees to pay to the Indemnified Party promptly upon demand from time to time all reasonable attorneys’ fees and other costs and expenses of defending the Third Party Claim. To the extent that the Third Party Claim does not constitute a Special Claim, the party not controlling the defense (the “Noncontrolling Party”) may participate therein at its own expense. However, if the Indemnifying Party assumes control of such defense as permitted above and the Indemnified Party reasonably concludes that the Indemnifying Party and the Indemnified Party have conflicting interests or different defenses available with respect to the Third Party Claim, then the reasonable fees and expenses of counsel to the Indemnified Party will be considered and included as “Losses” for purposes of this Agreement. The party controlling the defense (the “Controlling Party”) will reasonably advise the Noncontrolling Party of the status of the Third Party Claim and the defense thereof and, with respect to any Third Party Claim that does not relate to a Special Claim, the Controlling Party will consider in good faith recommendations made by the Noncontrolling Party. The Noncontrolling Party will furnish the Controlling Party with such information as it may have with respect to such Third Party Claim and related Proceedings (including copies of any summons, complaint or other pleading which may have been served on such party and any written claim, demand, invoice, billing or other document evidencing or asserting the same) and will otherwise cooperate with and assist in the defense of the Third Party Claim.

 

(d) If the Indemnified Party is controlling the defense of a Third Party Claim, the Indemnified Party has the right to agree in good faith to any compromise or settlement of, or the entry of any Judgment arising from, the Third Party Claim without prior notice to or consent of the Indemnifying Party. All amounts paid or payable under such settlement or Judgment are Losses that the Indemnifying Party owes to the Indemnified Party under this Article 7. The Indemnifying Party will not agree to any compromise or settlement of, or the entry of any Judgment arising from, the Third Party Claim without the prior written consent of the Indemnified Party, which consent the Indemnified Party will not unreasonably withhold or delay. The Indemnified Party will have no Liability with respect to any compromise or settlement of, or the entry of any Judgment arising from, any Third Party Claim effected without its consent.

 

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(e) Notwithstanding the provisions of Section 8.11, the Seller consents to the non-exclusive jurisdiction of any court in which a Proceeding is brought by another Person against any Purchaser Indemnified Party for purposes of any claim that a Purchaser Indemnified Party may have under this Agreement with respect to the Proceeding or the matters alleged therein. The Seller agrees that process may be served on it with respect to such a claim anywhere in the world.

 

Section 7.5 Survival. All representations and warranties contained in this Agreement, any Ancillary Agreement or in any certificate or instrument delivered pursuant to this Agreement will survive the Closing, for a period of three (3) years from the Closing Date; provided, however, that (i) the representations and warranties set forth in Section 3.15 (Tax Matters) will survive until 180 days following the expiration of the statute of limitations applicable to the underlying matters covered by such provision, and (ii) the representations and warranties set forth in Sections 3.1 (Organization and Good Standing), 3.2 (Authority and Enforceability), 3.4 (Capitalization and Ownership) and 3.24 (Brokers or Finders) will survive until the expiration of the statute of limitations applicable to the underlying matters covered by such provisions. Notwithstanding the foregoing, any claims for indemnification asserted in good faith with reasonable specificity (to the extent known at such time) and in writing by notice from before the expiration of the applicable survival period will not thereafter be barred by the expiration of the relevant representation or warranty and such claims will survive until finally resolved.

 

Section 7.6 Limitations on Liability.

 

(a) The Seller will not be liable to the Purchaser Indemnified Parties for indemnification under Section 7.1(a) unless and until the aggregate Losses for which they would otherwise be liable under Section 7.1(a) exceed $500,000, at which point the Seller is liable for the aggregate Losses and not just amounts in excess of that sum.

 

(b) The Purchaser and MICT will not be liable to the Seller for indemnification under Section 9.2(a) unless and until the aggregate Losses for which they would otherwise be liable under Section 9.2(a) exceed $500,000 (at which point the Purchaser is liable for the aggregate Losses and not just amounts in excess of that sum).

 

(c) Neither the Seller nor the Purchaser Indemnified Parties will be entitled to indemnification for Losses under this Agreement in an aggregate amount in excess of $20,000,000.

 

(d) Nothing in this Agreement will limit the Liability of a party to another party for fraud or willful misconduct.

 

Section 7.7 No Right of Indemnification or Contribution. The Seller has no right of indemnification or contribution against the Company with respect to any breach by the Seller or the Company of any of their representations, warranties, statements, covenants or agreements contained in this Agreement, any Ancillary Agreement or in any certificate, instrument or other document delivered by or on behalf of the Seller or the Company pursuant to this Agreement or any Ancillary Agreement, whether by virtue of any contractual or statutory right of indemnity or otherwise, and all claims to the contrary are hereby waived and released.

 

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Section 7.8 Tax Refunds, Insurance Proceeds and Other Payments. The amount of any and all Losses for which indemnification is provided pursuant to this Article 7 will be net of (i) any Tax benefit to which an Indemnified Party is entitled by reason of the payment of such Losses (taking into account any Tax cost or reduction in Tax benefit by reason of the receipt of the indemnification payment) and (ii) any amounts of any insurance proceeds, indemnification payments, contribution payments or reimbursements receivable by, or payable in kind to, the Indemnified Party with respect to such Losses or any of the circumstances giving rise thereto. In connection therewith, if, at any time following payment in full by the Indemnifying Party of any amounts of Losses due under this Agreement, the Indemnified Party receives any insurance proceeds, indemnification payments, contribution payments or reimbursements relating to the circumstances giving rise to such Losses, the Indemnified Party will promptly remit to the Indemnifying Party such proceeds, payments or reimbursements in an amount not to exceed the amount of the corresponding indemnification payment made by the Indemnifying Party. The Purchaser will use (and will cause its Affiliates to use) commercially reasonable efforts to mitigate any Loss and to collect the proceeds of any available insurance which would have the effect of reducing any Losses (in which case the net proceeds thereof will reduce the Losses).

 

Section 7.9 Exclusive Remedy. From and after the Closing, the sole and exclusive remedy of the Purchaser for any breach of any representation, warranty or covenant under this Agreement (other than claims or causes of action arising from intentional fraud or willful misconduct) will be pursuant to the indemnification obligations set forth in this Article 7 and, except to the extent the Purchaser has asserted a claim for indemnification by giving a Claim Notice in accordance with Section 7.3 or 7.4 prior to the expiration of the applicable survival period set forth in Section 7.5, the Purchaser will have no remedy against the Seller for any breach of any provision of this Agreement. Each of the Seller and the Purchaser hereby waives any and all other remedies (other than claims or causes of action arising from intentional fraud or willful misconduct) that may be available at law or equity for any breach of any representation, warranty or covenant under this Agreement. Notwithstanding the foregoing, nothing herein will limit the right of any party to seek injunctive or equitable relief for any breach or threatened breach of any covenant in this Agreement or any Ancillary Agreement.

 

ARTICLE 8

GENERAL PROVISIONS

 

Section 8.1 Notices. All notices and other communications under this Agreement must be in writing and are deemed duly delivered when (a) delivered if delivered personally or by nationally recognized overnight courier service (costs prepaid), (b) sent by electronic mail in with confirmation of transmission by the transmitting equipment (or, the first Business Day following such transmission if the date of transmission is not a Business Day) or (c) received or rejected by the addressee, if sent by certified or registered mail, return receipt requested; in each case to the following addresses or email addresses and marked to the attention of the individual (by name or title) designated below (or to such other address, email address or individual as a party may designate by notice to the other parties):

 

If to the Seller:

 

Dozy Mmobuosi

c/o Kenneth I. Denos

11650 South State Street, Suite 240

Draper, UT 84020

U.S.A.

Tel.: 001 (801) 619-1195

Email: kdenos@denoslaw.com

 

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with a copy (which will not constitute notice) to:

 

Kenneth I. Denos

11650 South State Street, Suite 240

Draper, UT 84020 U.S.A.

Tel.: 001 (801) 619-1195

Email: kdenos@denoslaw.com

 

If to the Company:

 

Tingo Foods PLC
95 Broad Street,
Marina

Lagos
Nigeria

Attn: Chris Cleverly
Tel: +44 7843 945515

Email: cjcleverly@gmail.com

 

with a copy (which will not constitute notice) to:

 

Ellenoff Grossman & Schole LLP

1345 Avenue of the Americas, 11th Floor
New York, New York 10105

U.S.A.

Attn: Richard I. Anslow, Esq.

Jonathan Deblinger, Esq.

Tel.: +1 (212) 370-1300

Email: ranslow@egsllp.com

jdeblinger@egsllp.com

 

If to the Purchaser or MICT:

 

MICT, Inc./ MICT Fintech Limited
28 West Grand Avenue

Suite 3

Montvale, NJ 07645
U.S.A.

Attn: Darren Mercer, CEO

Tel: 001 (201) 225-0190

Email: darren@mict-inc.com

 

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with a copy (which will not constitute notice) to:

 

Ellenoff Grossman & Schole LLP

1345 Avenue of the Americas, 11th Floor
New York, New York 10105

U.S.A.

Attn: Richard I. Anslow, Esq.

Tel.: +1 (212) 370-1300

Email: ranslow@egsllp.com

 

Section 8.2 Amendment. This Agreement may not be amended, supplemented or otherwise modified except in a written document signed by each party to be bound by the amendment and that identifies itself as an amendment to this Agreement.

 

Section 8.3 Waiver and Remedies. The parties may (a) extend the time for performance of any of the obligations or other acts of any other party to this Agreement, (b) waive any inaccuracies in the representations and warranties of any other party to this Agreement contained in this Agreement or in any certificate, instrument or document delivered pursuant to this Agreement or (c) waive compliance with any of the covenants, agreements or conditions for the benefit of such party contained in this Agreement. Any such extension or waiver by any party to this Agreement will be valid only if set forth in a written document signed on behalf of the party or parties against whom the waiver or extension is to be effective. No extension or waiver will apply to any time for performance, inaccuracy in any representation or warranty, or noncompliance with any covenant, agreement or condition, as the case may be, other than that which is specified in the written extension or waiver. No failure or delay by any party in exercising any right or remedy under this Agreement or any of the documents delivered pursuant to this Agreement, and no course of dealing between the parties, operates as a waiver of such right or remedy, and no single or partial exercise of any such right or remedy precludes any other or further exercise of such right or remedy or the exercise of any other right or remedy. Any enumeration of a party’s rights and remedies in this Agreement is not intended to be exclusive, and a party’s rights and remedies are intended to be cumulative to the extent permitted by law and include any rights and remedies authorized in law or in equity.

 

Section 8.4  Entire Agreement. This Agreement (including the Schedules and Exhibits hereto and the documents and instruments referred to in this Agreement that are to be delivered at the Closing) constitutes the entire agreement among the parties and supersedes any prior understandings, agreements or representations by or among the parties, or any of them, written or oral, with respect to the subject matter of this Agreement.

 

Section 8.5  Assignment and Successors and No Third Party Rights. This Agreement binds and benefits the parties and their respective successors and assigns, except that the Seller may not assign any rights under this Agreement without the prior written consent of the Purchaser. No party may delegate any performance of its obligations under this Agreement, without the prior written consent of the other party. Nothing expressed or referred to in this Agreement will be construed to give any Person, other than the parties to this Agreement, any legal or equitable right, remedy or claim under or with respect to this Agreement or any provision of this Agreement, except solely (a) to the extent explicitly otherwise provided in Section 5.4 (as to Seller Released Parties) and Section 7.1 (as to Purchaser Indemnified Parties) and (b) such rights as may inure to a successor or permitted assignee under this Section.

 

Section 8.6  Severability. If any provision of this Agreement is held invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions of this Agreement are not affected or impaired in any way and the parties agree to negotiate in good faith to replace such invalid, illegal and unenforceable provision with a valid, legal and enforceable provision that achieves, to the greatest lawful extent under this Agreement, the economic, business and other purposes of such invalid, illegal or unenforceable provision.

 

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Section 8.7  Exhibits and Schedules. The Exhibits and Schedules to this Agreement (including the Seller Disclosure Schedule) are incorporated herein by reference and made a part of this Agreement. The Seller Disclosure Schedule is arranged in sections and paragraphs corresponding to the numbered and lettered sections and paragraphs of Article 3 and Article 4, as applicable. The disclosure in any section or paragraph of the Seller Disclosure Schedule qualifies other sections and paragraphs in this Agreement only to the extent it is clear by appropriate cross-references that a given disclosure is applicable to such other sections and paragraphs. The listing or inclusion of a copy of a document or other item is not adequate to disclose an exception to any representation or warranty in this Agreement unless the representation or warranty relates to the existence of the document or item itself.

 

Section 8.8  Interpretation. In the negotiation of this Agreement, each party has received advice from its own attorney. The language used in this Agreement is the language chosen by the parties to express their mutual intent, and no provision of this Agreement will be interpreted for or against any party because that party or its attorney drafted the provision.

 

Section 8.9  Governing Law. Unless any Exhibit or Schedule specifies a different choice of law, the internal laws of the State of New York (without giving effect to any choice or conflict of law provision or rule (whether of the State of New York or any other jurisdiction) that would cause the application of laws of any other jurisdiction) govern all matters arising out of or relating to this Agreement and its Exhibits and Schedules and all of the transactions it contemplates, including its validity, interpretation, construction, performance and enforcement and any disputes or controversies arising therefrom or related thereto.

 

Section 8.10  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. The parties accordingly agree that, in addition to any other remedy to which they are entitled at law or in equity, the parties are entitled to injunctive relief to prevent breaches of this Agreement and otherwise to enforce specifically the provisions of this Agreement. Each party expressly waives any requirement that any other party obtain any bond or provide any indemnity in connection with any action seeking injunctive relief or specific enforcement of the provisions of this Agreement.

 

Section 8.11  Jurisdiction and Service of Process. Any action or proceeding arising out of or relating to this Agreement or the transactions contemplated by this Agreement must be brought in the courts of the State of New York, New York County, or, if it has or can acquire jurisdiction, in the United States District Court for the Southern District of New York. Each of the parties knowingly, voluntarily and irrevocably submits to the exclusive jurisdiction of each such court in any such action or proceeding and waives any objection it may now or hereafter have to venue or to convenience of forum. Any party to this Agreement may make service on another party by sending or delivering a copy of the process to the party to be served at the address and in the manner provided for the giving of notices in Section 8.1. Nothing in this Section 8.11, however, affects the right of any party to serve legal process in any other manner permitted by law.

 

Section 8.12  Waiver of Jury Trial. Each of the parties knowingly, voluntarily and irrevocably waives, to the fullest extent permitted by Law, all right to trial by jury in any action, Proceeding or counterclaim (whether based on contract, tort or otherwise) arising out of or relating to this Agreement or the transactions contemplated by this Agreement or the actions of any party to this Agreement in the negotiation, administration, performance or enforcement of this Agreement.

 

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Section 8.13  Expenses. Except as otherwise provided in this Agreement, whether or not the transactions contemplated by this Agreement are consummated, the Seller, on the one hand, and the Purchaser, on the other hand, will pay all of their own expenses (including, but not limited to, all compensation and expenses of counsel, financial advisors, consultants, actuaries and independent accountants) incurred in connection with the preparation and negotiation of this Agreement and the consummation of the transactions contemplated by this Agreement; provided that the Seller will bear all Transaction Expenses of the Company.

 

Section 8.14  Counterparts. The parties may execute this Agreement in multiple counterparts, each of which constitutes an original as against the party that signed it, and all of which together constitute one agreement. This Agreement is effective upon delivery of one executed counterpart from each party to the other parties. The signatures of all parties need not appear on the same counterpart. The delivery of signed counterparts by email transmission in .pdf, .tiff or other electronic format that includes a copy of the sending party’s signature(s) is as effective as signing and delivering the counterpart in person.

 

[Signature page follows.]

 

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The parties have executed and delivered this Agreement effective as of the Effective Date.

 

MICT   Purchaser
     
MICT, INC.   MICT FINTECH LIMITED
     
By: /s/ Darren Mercer   By: /s/ Darren Mercer
  Darren Mercer     Darren Mercer
  Chief Executive Officer     Chief Executive Officer
     
Company   Seller
     
TINGO FOODS PLC    
     
By: /s/ Chris Cleverly   /s/ Dozy Mmobuosi
  Chris Cleverly   Dozy Mmobuosi, in his individual capacity
  Director    

 

[Signature Page to Securities Purchase Agreement]

 

 

 

 

Exhibit A- Form of Purchaser Note

 

[see attached]

 

 

 

 

 

Exhibit B-1 – Form of Purchaser Debenture

 

[see attached]

 

 

 

 

 

Exhibit B-2 – Form of Company Debenture

 

[see attached]

 

 

 

 

 

Exhibit C – Form of Lease

 

[see attached]

 

 

 

 

 

Exhibit D – Form of Share Transfer Instrument

 

I, Dozy Mmobuosi of c/o Kenneth I. Denos, 11650 South State Street, Suite 240 Draper, UT 84020, U.S.A. , (hereinafter called the “Transferor”) hereby transfers to MICT Fintech Limited of 28 West Grand Avenue, Suite 3, Montvale, NJ 07645, U.S.A. or its nominee (hereinafter called the “Transferee”) Two Billion (2,000,000,000) ordinary shares of ₦1.00 each that I currently hold in Tingo Foods PLC, a Nigerian public company limited by shares incorporated under the laws of the Federal Republic of Nigeria with RC Number 1961594, with its registered office at 95 Allianz Towers, Broad Street, Marina, Lagos State, Nigeria (the “Company”), to hold unto the Transferee subject to the conditions in the memorandum and articles of association of the Company before the execution hereof, and the Transferee hereby agrees to accept and take the said shares subject to the conditions aforesaid.

 

Dated this ninth day of February, 2023

 

Executed on behalf of the above-named Transferor by:

 

Name: Dozy Mmobuosi______________________________________________________  
     
Occupation: Director_____________________________________________________________  
     
Address: c/o Kenneth I. Denos, 11650 South State Street, Suite 240________________  
  Draper, UT 84020, U.S.A.________________________________________  
     
Signature: /s/ Dozy Mmobuosi  
     
     
Executed on behalf of the above-named Transferee by:  
     
Name: Darren Mercer_______________________________________________________  
     
Occupation: Director____________________________________________________________  
     
Address: 28 West Grand Avenue, Suite 3, Montvale, NJ 07645, U.S.A_____________________  
     
Signature: /s/ Darren Mercer  

 

 

 

 

Exhibit 2.5

 

MICT, INC.

MICT FINTECH LIMITED

 

Senior Secured Promissory Note

 

Original Issuance Date: February 9, 2023

Maturity Date: February 9, 2025

Original Principal Amount: U.S. $204,000,000

 

FOR VALUE RECEIVED, MICT, Inc., a Delaware corporation (“MICT”), and MICT Fintech Limited, a British Virgin Islands business company and a wholly-owned subsidiary of MICT (“MICT Fintech” and, collectively, with MICT, the “Issuer”), hereby promises to pay to the order of DOZY MMOBUOSI or his heirs, successors and permitted assigns (“Holder”), in lawful money of the United States of America, the principal sum of TWO HUNDRED FOUR MILLION DOLLARS ($204,000,000) (the “Principal Amount”), together with interest thereon as provided below. Reference is hereby made to that certain Securities Purchase Agreement among the Issuer, the Holder, and MICT of even date herewith (the “Securities Purchase Agreement”), of which the form of this Note forms an exhibit. Capitalized terms not otherwise defined herein shall have the meaning ascribed to them as set forth in the Securities Purchase Agreement.

 

1. Maturity. Unless an Event of Default has occurred, the Principal Amount of this note (the “Note”), together with all interest as accrued thereon, shall be due and payable twenty-four (24) months from the Original Issuance Date set forth above (the “Maturity Date”). Payments made on this Note, if any, will be applied first to any costs and expenses incurred by Holder in connection with the collection of amounts owing pursuant to this Note following an Event of Default, then to accrued interest, and then to reduction of principal, or as otherwise determined at Holder's discretion.

 

2. Interest. Unless an Event of Default has occurred, this Note shall bear interest at the rate of five percent (5%) per annum, which shall be payable at the Maturity Date, together with the Principal Amount, in cash via wire transfer. Interest hereunder shall be calculated on the basis of a 360-day year for the actual number of days elapsed.

 

3. Rank. All payments due under this Note shall rank senior to all unsecured obligations of MICT Fintech and any of its Subsidiaries including, without limitation, Tingo Foods.

 

4. Security; Debenture. As security for the Issuer’s payment of this Note, Tingo Foods shall execute that certain All Assets Debenture (in the form attached to the Securities Purchase Agreement as an exhibit thereto), of even date herewith (the “Debenture”), in favor of the Holder, wherein Tingo Foods, as “Chargor”, has pledged to the Holder a first position security interest in all of the assets and properties of Chargor. Reference is made to the Debenture for a description of the obligations and duties of Chargor in connection with the Debenture and this Note and the collateral of Chargor secured thereby.

 

 

 

5. Covenants. MICT Fintech, for itself and its Subsidiaries (collectively, the “MICT Fintech Group”), agrees that, so long as any amount payable under this Note remains unpaid, it will not, and will cause Tingo Foods not to, without the prior written consent of the Holder (which shall not be unreasonably withheld, delayed or conditioned):

 

5.1. No Additional Indebtedness. Create, incur, guarantee, issue, assume or in any manner become liable in respect of, any obligation (i) for borrowed money, other than trade payables incurred in the ordinary course of business, (ii) evidenced by bonds, debentures, notes, or other similar instruments, (iii) in respect of letters of credit or other similar instruments (or reimbursement obligations with respect thereto), except letters of credit or other similar instruments issued to secure payment of trade payables arising in the ordinary course of business consistent with past practices, (iv) to pay the deferred purchase price of property or services, except trade payables arising in the ordinary course of business consistent with past practices, (v) as lessee under capitalized leases, or (vi) secured by a Lien (as defined below) on any asset of Tingo Foods, whether or not such obligation is assumed by the Issuer or Tingo Foods (except as permitted by Section 5.2 below) (any and all such obligations, collectively referred to herein as “Indebtedness), except:

 

(a) Indebtedness secured by an asset-based loan for working capital needs of the MICT Fintech Group on terms and conditions which are mutually acceptable to the Issuer and Holder;

 

(b) Indebtedness for borrowed money existing on the date hereof and set forth on the balance sheet of Tingo Foods as of the Closing Date, as may be refinanced, restated, extended or amended;

 

(c) Indebtedness secured by a Lien on property or equipment that is incurred for the purpose of financing all or any part of the cost of acquiring such property (including Indebtedness pursuant to a newly formed subsidiary); and

 

(d) Indebtedness incurred in connection with Liens permitted to be incurred under Section 5.2 hereof.

 

5.2. No New Liens. Create, incur, assume or suffer to exist any lien, claim, pledge, charge, security interest or encumbrance of any kind (“Liens” or, individually, a “Lien”) on any asset now owned or hereafter acquired by it, except:

 

(a) Liens existing on the date hereof;

 

(b) Liens for taxes or assessments and similar charges either (x) not delinquent or (y) contested in good faith by appropriate proceedings and as to which the Issuer shall have set aside on its books adequate reserves;

 

(c) Liens incurred or pledges and deposits in connection with workers’ compensation, unemployment insurance and other social security benefits, or securing the performance bids, tenders, leases, contracts (other than for the repayment of borrowed money), statutory obligations, progress payments, surety and appeal bonds and other obligations of like nature, incurred in the ordinary course of business;

 

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(d) Liens imposed by law, such as mechanics’, carriers’, warehousemen’s, materialmen’s and vendors’ Liens, incurred in good faith in the ordinary course of business;

 

(e) zoning restrictions, easements, licenses, covenants, reservations, restrictions on the use of real property or minor irregularities of title incident thereto which do not in the aggregate materially detract from the value of the property or assets of Tingo Foods or materially impair the use of such property in the operation of Tingo Foods’ business;

 

(f) other Liens incidental to the conduct of the business of Tingo Foods or the ownership of its property and assets which were not incurred in connection with the borrowing of money, and which do not in the aggregate detract from the value of its property or assets in an amount greater than $2,000,000; and

 

(g) Liens securing indebtedness described in Sections 5.1(a) through 5.1(d) above.

 

5.3. Limitations on Transfer Payments. Permit Tingo Foods to pay any amounts to or on behalf of MICT or any Subsidiary thereof, excepting Tingo Foods.

 

5.4. Limitations on Dividends or Distributions. Declare or make any cash dividend, distribution or other payment on any equity securities of Tingo Foods.

 

6. Default.

 

6.1. Events of Default. Any one of the following occurrences shall constitute an “Event of Default” under this Note:

 

(a) The Issuer shall fail to pay the Principal Amount of this Note and accrued interest thereon when due and payable (whether at the Maturity Date, upon acceleration or otherwise) with or without written notice from the Holder of such failure;

 

(b) A material breach by the Issuer of the terms of this Note, the Debenture, or the Securities Purchase Agreement that remains uncured for a period of ten (10) Business Days following written notice to the Issuer;

 

(c) The Issuer fails to make a required payment or payments on indebtedness for borrowed money (it being understood that obligations with respect to payables owed to vendors are not indebtedness for borrowed money), when due or within any applicable grace period, of Two Million Dollars ($2,000,000) or more in aggregate principal amount (unless the failure to make such payment is being made in connection with Issuer’s good faith contesting of amounts due thereunder);

 

(d) There shall have occurred an acceleration of the stated maturity of any indebtedness for borrowed money of the Issuer or any Subsidiary of Two Million Dollars ($2,000,000) or more in aggregate principal amount (which acceleration is not rescinded, annulled or otherwise cured within ten (10) Business Days of receipt by the Issuer or such Subsidiary of notice of such acceleration);

 

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(e) The Issuer shall sell, transfer, lease or otherwise dispose of all or any substantial portion of its assets in one transaction or a series of related transactions, participate in any unit exchange, consummate any recapitalization, reclassification, reorganization or other business combination transaction or adopt a plan of liquidation or dissolution or agree to do any of the foregoing;

 

(f) One or more judgments in an aggregate amount in excess of Two Million Dollars ($2,000,000) shall have been rendered against the Issuer or any Subsidiary and such judgment or judgments remain undischarged or unstayed for a period of sixty (60) days after such judgment or judgments become or became, as the case may be, final and unappealable;

 

(g) The Issuer shall have applied for or consented to the appointment of a custodian, receiver, trustee or liquidator, or other court-appointed fiduciary of all or a substantial part of its properties; or a custodian, receiver, trustee or liquidator or other court appointed fiduciary shall have been appointed with or without the consent of the Issuer; or the Issuer is generally not paying its debts as they become due by means of available assets, or has made a general assignment for the benefit of creditors; or the Issuer files a voluntary petition in bankruptcy, or a petition or an answer seeking reorganization or an arrangement with creditors or seeking to take advantage of any insolvency law, or an answer admitting the material allegations of a petition in any bankruptcy, reorganization or insolvency proceeding or has taken action for the purpose of effecting any of the foregoing; or if, within sixty (60) days after the commencement of any proceeding against the Issuer seeking any reorganization, rehabilitation, arrangement, composition, readjustment, liquidation, dissolution or similar relief under the Federal bankruptcy code or similar order under future similar legislation, the appointment of any trustee, receiver, custodian, liquidator, or other court-appointed fiduciary of the Issuer or of all or any substantial part of its properties, such order or appointment shall not have been vacated or stayed on appeal or otherwise or if, within sixty (60) days after the expiration of any such stay, such order or appointment shall not have been vacated (collectively, “Insolvency Events”); or

 

(h) Any Insolvency Event shall have occurred with respect to any Subsidiary of the Issuer.

 

6.2. Rights Upon Default. Upon the happening of any Event of Default, (i) the unpaid Principal Amount shall become due immediately and payable in full in cash with interest accruing thereon until paid in full, and (ii) Holder shall have and may exercise any and all rights and remedies available hereunder, at law and in equity.

 

6.3. Default Interest Rate. Upon an Event of Default, the rate of interest applicable to this Note shall be the lesser of: ten percent (10%) per annum; or (ii) the highest rate permissible under New York law.

 

6.4. Remedies not Cumulative. The remedies of Holder, as provided herein, shall be cumulative and concurrent, and may be pursued singularly, successively or together, at the sole discretion of Holder, and may be exercised as often as occasion therefor shall arise. Any act, omission or commission of Holder, including, specifically, any failure to exercise any right, remedy or recourse, shall be released and be effected only through a written document executed by Holder and then only to the extent specifically recited therein. A waiver or release with reference to any one event shall not be construed as continuing, as a bar to, or as a waiver or release of, any subsequent right, remedy or recourse as to a subsequent event.

 

7. Attorneys’ Fees and Costs. If, following an Event of Default, (i) this Note is referred to an attorney for collection or enforcement, or if this Note is collected upon or enforced through any legal proceeding; (ii) an attorney is retained to represent Holder in any bankruptcy, reorganization, receivership or other proceedings affecting creditors’ rights and involving a claim under this Note, or (iii) an attorney is retained to represent Holder in any other proceedings whatsoever in connection with this Note, the Issuer agrees to pay to Holder all reasonable attorneys’ fees, costs and expenses incurred in connection therewith, both before and after judgment, and before any legal action is filed with a court of competent jurisdiction.

 

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8. Payments and Notices. All payments shall be made via wire transfer to an account designated in writing by Holder to the Issuer at least ten (10) Business Days prior to the due date of such payment, and Holder shall bear any costs (administrative or otherwise) imposed in connection with such payments by the financial institution where such account is maintained. Whenever any payment on this Note is stated to be due on a day that is not a Business Day, such payment shall instead be made on the next Business Day, and such extension of time shall be included in the computation of interest payable on this Note. Any notice required or permitted to be served hereunder shall be in writing and shall be delivered personally, or by express, overnight or courier service, by regular or certified mail, email, or by facsimile transmission (with a confirming copy sent by U.S. Mail, registered or certified, return receipt requested) to the addresses of the Issuer and Holder as set forth in the Note Purchase Agreement.

 

9. Prepayment. The Issuer shall have the right at any time and from time to time to prepay the Principal Amount of this Note in whole or in part, without premium or penalty, upon at least two (2) Business Days’ prior written notice. Any prepayment hereunder shall be accompanied by interest on the Principal Amount or portion thereof being prepaid to the date of prepayment.

 

10. Waiver. The Issuer, for itself, its successors, transferees and assigns and all guarantors, endorsers and signers, hereby waives all valuation and appraisement privileges, presentment and demand for payment, protest, notice of protest and nonpayment, dishonor and notice of dishonor, bringing of suit, lack of diligence or delays in collection or enforcement of this Note and notice of the intention to accelerate, the release of any liable party, and any other indulgence or forbearance, and is and shall be directly and primarily, liable for the amount of all sums owing and to be owed hereon, and agrees that this Note and any or all payments coming due hereunder may be extended or renewed from time to time by mutual consent without in any way affecting or diminishing the Issuer's liability hereunder.

 

11. Transfer. Holder shall have the right to transfer this Note or any interest therein in any transaction meeting the requirements of applicable securities laws..

 

12. Illegality and Severability. In no event shall the amount paid or agreed to be paid hereunder (including all interest and the aggregate of any other amounts taken, reserved or charged pursuant to this Note which under applicable law is deemed to constitute interest on the indebtedness evidenced by this Note) exceed the highest lawful rate permissible under applicable law; and if under any circumstances whatsoever, fulfillment of any provision of this Note at the time performance of such provision shall be due, shall involve transcending the limit of validity prescribed by applicable law, then ipso facto, the obligation to be fulfilled shall be reduced to the limit of such validity, and if from any circumstances Holder should receive as interest an amount which would exceed the highest lawful rate allowable under law, such amount which would be excessive interest shall be applied to the reduction of the unpaid principal balance due under this Note and not to the payment of interest, or if such excess interest exceeds the unpaid balance of principal, the excess shall be refunded to the Issuer. If any provision of this Note or any payments pursuant to the terms hereof shall be invalid or unenforceable to any extent, the remaining provisions of this Note and any other payments hereunder shall not be affected thereby and shall be enforceable to the greatest extent permitted by law.

 

13. Governing Law. The internal laws of the State of New York (without giving effect to any choice or conflict of law provision or rule (whether of the State of New York or any other jurisdiction) that would cause the application of laws of any other jurisdiction) govern all matters arising out of or relating to this Note and all of the transactions it contemplates, including its validity, interpretation, construction, performance and enforcement and any disputes or controversies arising therefrom or related thereto.

 

14. Venue and Jurisdiction; Waiver of Jury Trial. Any action or proceeding arising out of or relating to this Note or the transactions contemplated by this Note must be brought in the courts of the State of New York, New York County, or, if it has or can acquire jurisdiction, in the United States District Court for the Southern District of New York. Each of the parties knowingly, voluntarily and irrevocably submits to the exclusive jurisdiction of each such court in any such action or proceeding and waives any objection it may now or hereafter have to venue or to convenience of forum. Each of the Issuer and, by its acceptance hereof, the Holder knowingly, voluntarily and irrevocably waives, to the fullest extent permitted by law, all right to trial by jury in any action, Proceeding or counterclaim (whether based on contract, tort or otherwise) arising out of or relating to this Note or the transactions contemplated by this Note or the actions of any party to this Note in the negotiation, administration, performance or enforcement of this Note.

 

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IN WITNESS WHEREOF, the Issuer has caused this Note to be executed by its duly authorized representative as of the date first above written.

 

  MICT, INC.
     
  By /s/ Darren Mercer
    Darren Mercer
    CEO
     
  MICT FINTECH LIMITED
     
  By /s/ Darren Mercer
    Darren Mercer
    Director

 

 

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Exhibit 4.6

 

DESCRIPTION OF THE REGISTRANT’S SECURITIES REGISTERED

PURSUANT TO SECTION 12 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED

 

As of December 31, 2022, Tingo Group, Inc. (“we,” “our,” “us” or the “Company”) had one (1) class of securities registered under Section 12 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), its Common Stock, par value, $0.001 per share.

 

Pursuant to our certificate of incorporation, as amended, as of December 31, 2022, our authorized capital stock consisted of 250,000,000 shares of common stock and 10,000,000 shares of undesignated preferred stock, $0.001 par value. On May 10, 2022, the certificate of incorporation was amended to increase the number of our authorized capital stock to 425,000,000 shares of common stock and 15,000,000 shares of undesignated preferred stock, $0.001 par value.

 

The following description summarizes the material terms of our capital stock and does not purport to be complete. It is subject to, and qualified in its entirety by reference to, our certificate of incorporation, as amended and our amended and restated bylaws, each of which is incorporated by reference as an exhibit to our Annual Report on Form 10-K for the year ended December 31, 2021 (the “Report”) of which this Exhibit 4.6 is a part.

 

Defined terms used herein but not otherwise defined shall have the meaning ascribed to such terms in the Report.

 

Common Stock

 

Voting. Each holder of common stock is entitled to one vote for each share on all matters to be voted upon by the holders of common stock.

 

Dividends. Subject to preferences that may be applicable to any then outstanding preferred stock, and further subject to any contractual limitations on the declaration, setting aside or payment of dividends, holders of common stock are entitled to receive rateably those dividends, if any, as may be declared from time to time by our board of directors out of legally available funds.

 

Liquidation. In the event of our liquidation, dissolution or winding up, holders of common stock will be entitled to share rateably in the net assets legally available for distribution to stockholders after the payment of all of our debts and other liabilities and the satisfaction of any liquidation preferences that may be granted to the holders of any then outstanding shares of preferred stock.

 

Rights and Preferences. The common stock has no pre-emptive, conversion or other subscription rights, and there are no redemption or sinking fund provisions applicable to the common stock. The rights, preferences, and privileges of the holders of common stock are subject to, and may be adversely affected by, the rights of the holders of shares of any series of preferred stock, which we may designate and issue in the future.

 

 

 

 

Exhibit 10.14

 

Tingo Group, Inc.

 

Amendment to 2020 Equity Incentive Plan

 

WHEREAS, Tingo Group, Inc. (the “Company”) maintains the 2020 Equity Incentive Plan (the “Incentive Plan”);

 

WHEREAS, the Board of Directors (the “Board”) and the Compensation Committee of the Board has determined that it is in the best interests of the Company to amend the Incentive Plan to increase the maximum number of shares of the Company’s common stock authorized to be issued under the Incentive Plan by 5,000,000, from 20,000,000 to 25,000,000; and

 

WHEREASpursuant to Section 31 of the Incentive Plan, an amendment that materially increases the aggregate number of shares that may be issued under the Incentive Plan generally must be approved by a majority of votes cast by the stockholders of the Company in accordance with applicable stock exchange rules.

 

NOW, THEREFORE, effective as of the date of approval by a majority of votes cast by the stockholders of the Company in accordance with applicable stock exchange rules, the Incentive Plan is hereby amended in the following particulars:

 

  1. Section 3(a) of the Incentive Plan is deleted in its entirety and replaced with the following:

 

(a)The number of Shares which may be issued from time to time pursuant to this Plan shall be 25,000,000, or the equivalent of such number of Shares after the Administrator, in its sole discretion, has interpreted the effect of any stock split, stock dividend, combination, recapitalization or similar transaction in accordance with Paragraph 25 of the Plan, all of which Shares are eligible to be issued as ISOs.

 

  2. In all other respects the Incentive Plan shall remain unchanged and in full force and effect.

 

Exhibit 10.20

 

 

 

DATED THIS ________ DAY OF MARCH 2023

 

 

 

BETWEEN

 

 

TINGO FOODS PLC

as Chargor

 

 

AND

 

 

DOZY MMOBUOSI

as Chargee

 

 

 

ALL ASSETS DEBENTURE AGREEMENT

 

 

 

 

 

 

 

 

TABLE OF CONTENTS

 

1 Definitions and interpretation 1
2 Covenant to pay 5
3 Grant of security’ 6
4 Crystallisation of Floating Charge 7
5 Restrictions on Dealings 8
6 Representations and Warranties 9
7 Undertakings 10
8 Investments 12
9 Perfection of Security 13
10 Further Assurance 15
11 Powers of the Chargee 15
12 Receiver 16
13 Power of attorney 18
14 Other Powers Exercisable by the Chargee 18
15 Power of Sale 19
16 Protection of third parties 19
17 Consolidation of mortgages 20
18 Rights of Chargee or Receiver to Remedy Breach 20
19 Application of money received by the Chargee or a Receiver 20
20 Costs, Expenses and Indemnity 20
21 Assignment 20
22 Disclosure 21
23 Notices 21
24 Amendments 21
25 Remedies and waivers 21
26 Continuing and Additional Security 21
28 No Merger 22
29 Redemption and Release of Security 22
29 Conditional Discharge 22
31 Severability 22
32 Counterparts 22
33 Governing Law 22
34 Jurisdiction 22

 

Schedule 1 - SECURED aSSETS 23
   
Schedule 2 -Insurance Policies—Form of notice of assignment and acknowledgement 24
   
Part A - Form of NOTICE OF ASSIGNMENT TO INSURER 24
   
Schedule 3 - Assigned Contracts—Form of notice of assignment and acknowledgement 26
   
Part A Form OF NOTICE OF ASSIGNMENT TO CONTRACT COUNTERPARTY 26
Part B Form OF ACKNOWLEDGEMENT OF NOTICE OF ASSIGNMENT FROM CONTRACT COUNTERPARTY 28
   
EXECUTION PAGE 29

 

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THIS DEED OF ALL ASSETS DEBENTURE (this ’Deed’) is made this _______ day of March 2023

 

BETWEEN, ON THE ONE HAND,

 

TINGO FOODS PLC, a public limited company incorporated under the laws of the Federal Republic of Nigeria with RC No. 1961594 and having its principal place of business at Allianz Towers, Broad Street, Lagos (hereinafter referred to as the “Chargor”, which expression shall where the context so admits include its successors-in-title and assigns);

 

AND, ON THE OTHER HAND,

 

DOZY MMOBUOSI, a Nigerian citizen residing in the United Kingdom (hereinafter referred to as the “Chargee”, which expression shall where the context so admits include his successors-in-title and assigns).

 

WHEREAS

 

A.Pursuant to the terms of the Securities Purchase Agreement (as defined below) dated of even date herewith, the Issuers (as defined below) agreed to issue certain Promissory Note (as defined below) in favour of the Chargee .

 

B.As a condition to the issuance of the Promissory Note, the Chargor has agreed, pursuant to the terms of the Securities Purchase Agreement, to create a first ranking security over all of its assets in favour of the Chargee.

 

C.The Chargor and the Chargee now wish to enter into this Deed for the purpose of setting out the terms and conditions of the Security Interest (as defined below) charged in favour of the Chargee.

 

IT IS AGREED as follows:

 

1Definitions and interpretation

 

1.1Definitions

 

Subject to Clause 1.2 (Incorporation definitions), in this Deed, unless otherwise provided:

 

Account Deposit

  means all cash, instruments, investments, securities or other property at any time on deposit in or credited to a Bank Account, including income or gain earned thereon;
Assigned Contracts   means the contracts relating to the business of the Chargor and designated as such by the Parties and which are set out in Part A (Assigned Contracts), Schedule 1 (Secured Assets);
Bank Accounts   means all present accounts opened or maintained by the Chargor, which are set out in Part B (Bank Accounts), Schedule 1 (Secured Assets) of this Deed (and any replacement account or subdivision or subaccount of that account), in each case, together with the debt or debts represented thereby;
Business Day   means a day (other than a Saturday or Sunday) on which banks are open for general business in Lagos, Nigeria;

 

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CAC   means the Corporate Affairs Commission, Abuja, Nigeria;
CAC Registration Fees   means the relevant registration fees payable to the CAC in order to register the Security Interest created by or pursuant to this Deed in accordance with the CAMA;
CAMA   means the Companies and Allied Matters Act, 2020;
CA   means the Conveyancing Act of 1881 now applicable in the states comprising the former Northern Region of Nigeria, Lagos, Rivers, Cross Rivers, Akwa Ibom and Bayelsa States;
Debts   means the revenue claims and monetary claims owing to the Chargor which are set out in Part C (Debts), Schedule 1 (Secured Assets);
Deed   means this all assets debenture;
Event of Default  

has the meaning given to such term in the Purchase Documents;

FIRS  

means the Federal Inland Revenue Service;

Floating Charge Assets   means the assets for the time being comprised within the floating charge created by Clause 3.3 (Floating charge);
Governmental Authority   means any legislative, executive, administrative, judicial, arbitral, government owned entity, or other body, of any federal, regional, state, local or other authority at any time having jurisdiction over the Chargor;
Initial Stamped Amount   means an amount representing 10% of the original principal amount of the Promissory Note, being the amount in respect of which, stamp duty and CAC Registration Fees shall be assessed and paid by the Chargor on this Deed for the purpose of its initial perfection and which the Chargee has a right to upstamp in accordance with agreement of the Parties;
Insurance Policies   means all the contracts of insurance and reinsurances entered into by or on behalf of the Chargor which form part of the subject matter of the Security Interest created pursuant to this Deed and more particularly described in Part D (Insurance Policies) Schedule 1 (Secured Assets) and all Related Rights in respect of the same;
Intellectual Property   means all:
    (a) patents, trademarks, service marks, brand and trade names, domain names, copyrights, design rights and registered designs, documented trade secrets and know-how, confidential information and other intellectual property rights and interests anywhere in the world; and

 

 

  (b) rights under agreements and licences relating to the rights to use such assets or exploitation of any such rights and assets,
    held by or for the benefit of the Chargor which are set out in Part E (Intellectual Property), Schedule 1 (Secured Assets);

Issuers

 

  Issuers means MICT Inc., A Delaware corporation and MICT Fintech Limited, a British Virgin Islands business company;
MPL   means the Mortgage and Property Law, Cap M5 Laws of Lagos State 2015;

 

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NCR   means the Nigerian Collateral Registry established pursuant to the Secured Transactions in Movable Assets Act, 2017;
Party  

means a party to this Deed;

PCL

 

 

means the Property and Conveyancing Law of 1959 Cap 100, Laws of the Western Region, 1959, now applicable in Delta, Edo, Ogun, Osun, Oyo, Ondo and Ekiti States;

Plant and Machinery  

means the plant, machinery and associated equipment, office equipment, computers, vehicles and other chattels of the Chargor (excluding those forming part of the Chargor’s stock in trade or work in progress) and the warranties relating to the same and which are set out in Part F (Plant and Machinery) Schedule 1 (Secured Assets);

Promissory Note

 

 

  means that certain Promissory Note of even date herewith issued in connection with the Securities Purchase Agreement in respect of a principal amount of US$204,000,000 (two hundred four million United States Dollars) between the Issuer, on the one hand, and Chargee, on the other hand;
Purchase Documents   means, collectively, the Securities Purchase Agreement, the Promissory Note, and this Deed;
Real Property   means:
    (a) any present or future freehold and/or leasehold properties in Nigeria in respect of which the Chargor has an interest;
    (b) any buildings, fixtures, fittings, fixed plant or machinery from time to time situated on or forming part of any of such properties; and
  (c) all income, rights and proceeds of sale derived from such properties and the benefits of all covenants to which the Chargor is entitled in respect of such properties.

Receiver   means any receiver appointed under this Deed or pursuant to any applicable law, whether alone or jointly, and includes a receiver and/or manager or administrator receiver or administrator;
Related Investments Rights   means all of the present and future rights to:
    (a) dividends, distributions, interest and other income from the Shares and Investments;
    (b) allotments, rights, money or property arising from the Shares and Investments by way of conversion, exchange, redemption, bonus, preference, option or otherwise;
    (c) stock, shares and securities offered in addition to or substitution for the Shares and Investments; and
  (d) proceeds of, or from, the disposal of, or other dealing with, any of the Shares and Investments.

Related Rights

 

means, in relation to any Secured Asset:

    (a) all rights under any licence, agreement for sale or agreement for lease or other use in respect of all or any part of that asset;
    (b) all rights, powers, benefits, claims, contracts, warranties, remedies, covenants for title, security, guarantees or indemnities in respect of any part of that asset;
    (c) the proceeds of sale of all or any part of that asset; and
    (d) any other moneys paid or payable in respect of that asset.
Secured Assets   means all of the present and future assets and undertaking of the Chargor including the Related Investments Rights and Related Rights which from time to time are the subject of any Security Interest created, or purported to be created, by or pursuant to this Deed;
Secured Obligations   means all present and future monies, obligations and liabilities (whether actual or contingent and whether owed jointly or severally, as principal or surety or in any other capacity whatsoever) of the Issuers and the Chargor to the Chargee under or in connection with each Purchase Document, together with all interest accruing on such monies and liabilities;

 

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Secured Share Assets  

means all of the:

    (a) Shares and Investments; and
    (b) Related Investments Rights.
Securities Purchase Agreement   means that certain Securities Purchase Agreement, of even date herewith, between, on the first hand, the Issuers, on the second hand, the Chargor, and, on the third hand, the Seller(s) as defined under it, of which this Deed is an exhibit thereto;
Security Interest   means any mortgage, charge, assignment (including by way of security), pledge, hypothecation, lien, retention of title provision, trust or flawed asset arrangement (for the purpose of, or which has the effect of, granting security) or any other security interest of any kind whatsoever, or any agreement, whether conditional or otherwise, to create any of the same, or any agreement to sell or otherwise dispose of any asset on terms whereby such asset is or may be leased to or re-acquired or acquired by the person selling it or any affiliate of that person;
Security Period   means the period beginning on the date of this Deed and ending on the date on which the Chargee is satisfied that the Secured Obligations have been unconditionally and irrevocably paid and discharged in full in accordance with the terms of this Deed;
Shares and Investments  

means all of the present and future:

    (a) shares owned or held by the Chargor, or by any nominee on behalf of the Chargor, in any company; and
    (b) stocks, debentures, securities and certificates of deposit held by the Chargor or by any nominee on behalf of the Chargor.

 

1.2Incorporation of definitions

 

Unless defined otherwise in this Deed, or the context requires otherwise, words and expressions defined in the Securities Purchase Agreement or Promissory Note (as applicable) have the same meanings when used in this Deed.

 

1.3Interpretation

 

1.3.1In this Deed, unless the context otherwise requires:

 

(a)words in the singular include the plural and vice versa;
   
(b)including means including without limitation;

 

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(c)where an act is required to be performed promptly, it shall be performed as soon as reasonably possible from the moment when the act could reasonably have been performed, having regard to all of the circumstances;
   
(d)a reference to any Party shall be construed as including, where relevant, successors in title to that Party, and that Party’s permitted assigns and transferees (if any);
   
(e)a reference to a person includes individuals, unincorporated bodies, government entities, companies and corporations (whether or not having separate legal personality);
   
(f)a reference to a Clause or a Schedule is to a clause of, or schedule to, this Deed;
   
(g)a reference to this Deed, any other Purchase Document or any other agreement is a reference to that document as amended, novated, supplemented, restated or replaced from time to time in accordance with its terms; and
   
(h)references to legislation and any statutory provision thereunder include any amendment, replacement, modification or re-enactment of such legislation or statutory provision, or any part of it.
   
1.3.2A reference to this Deed includes its Schedules, which form part of this Deed.

 

1.3.3The table of contents and any Clause title, Schedule title or other headings in this Deed are included for convenience only and shall have no effect on the interpretation of this Deed.

 

1.3.4An Event of Default is “continuing” if it has not been remedied or waived in accordance with the relevant Purchase Document.

 

2Covenant to pay

 

2.1The Chargor covenants with the Chargee that it shall, on demand, pay and discharge all the Secured Obligations when due.

 

2.2The Chargor shall pay interest as required under the Purchase Documents until the Secured Obligation are fully paid and discharged, notwithstanding any demand or any judgment obtained by the Chargee or the liquidation or insolvency of, or any arrangement or composition with creditors by the Chargor.

 

2.3If any amount payable by the Chargor hereunder is not paid when due, interest shall accrue on the overdue amount from day to day until the Chargor actually pays off the overdue amount together with the accrued interest (notwithstanding any judgment or demand for payment) and the interest shall be calculated at the default interest rate as provided under the Promissory Note.

 

2.4Save to the extent already provided for in any other Purchase Documents, all sums payable by the Chargor under this Deed shall be paid without any set off, counterclaim, withholding or deduction whatsoever unless required by law, in which event the Chargor shall, simultaneously with making the relevant payment under this Deed, pay to the Chargee such additional amount as will result in the receipt by the Chargee of the full amount which would otherwise have been receivable and supply the Chargee promptly with evidence satisfactory to it confirming that the Chargor has accounted to the relevant authority for the sum withheld or deducted.

 

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3Grant of security

 

The Chargor, as legal and beneficial owner with full title guarantee and as continuing security for the payment and discharge of the Secured Obligations, hereby charges the following in favour of the Chargee:

 

3.1Fixed Charges

 

By way of a first ranking fixed charge, the Chargor, as legal and/or beneficial owner with full title guarantee, hereby charges in favour of the Chargee as continuing security for the payment and discharge of the Secured Obligations, all its present and future rights, benefits, title, interest and claims under and in respect of the following:

 

(a)Plant and Machinery, and associated equipment belonging to the Chargor;
   
(b)all the Chargor’s rights to and title, benefit and interest present and future, in, to and under the Bank Accounts and corresponding Account Deposits;
   
(c)all rights in the Intellectual Property or similar rights now or hereafter owned, possessed or controlled by the Chargor and all Related Rights in respect of same;
   
(d)the Debts;
   
(e)all other moneys due and owing to it;
   
(f)all shares held by the Chargor in any company and distributions made in respect of such shares;
   
(g)the Related Rights;
   
(h)all its present and future goodwill and all rights and claims relating to its uncalled capital for the time being of the Chargor; and
   
(i)if not effectively assigned by Clause 3.2 (Assignment), all its rights, title and interest in (and proceeds and claims under) the Insurance Policies and the Assigned Contracts.

 

3.2Assignment

 

3.2.1The Chargor, with full title guarantee, assigns by way of security to the Chargee and as continuing security for the payment and discharge of the Secured Obligations, to the extent permissible under applicable law, all of its present and future rights, benefits, interests and claims due or owing to it under or in connection with:

 

(a)each Insurance Policy; and

 

(b)each Assigned Contract.

 

3.2.2To the extent that any right, title and interest described in Clause 3.2.1 above is not capable of assignment, the assignment thereof purported to be effected by clause 3.2.1 shall only operate as an assignment of any and all proceeds, damages, compensation, profit or income which the Chargor may derive therefrom or be amended or entitled to in respect thereof in each case as a continuing security for the payment, discharge and performance of the Secured Obligations.

 

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3.3Floating Charge

 

The Chargor, as legal and beneficial owner with full title guarantee, charges by way of floating charge in favour of the Chargee and as continuing security for the payment and discharge of the Secured Obligations, all of its present and future assets (except to the extent that those assets are for the time being effectively charged by way of fixed charge or assigned under Clause 3.1 (Fixed Charges) or Clause 3.2 (Assignment) including any assets which have been reconverted into a floating charge under Clause 4.4 (Decrystallisation of Floating Charge).

 

3.4Dealing with the Secured Assets

 

Notwithstanding the other terms in this Clause ‎3 (Grant of Security), prior to the occurrence of an Event of Default, the Chargor may, continue to exercise all and any of its rights under and in connection with the Bank Accounts, the Account Deposits, the Insurance Policies, the Assigned Contracts or any of the other Secured Assets specified in Clause 3.1 (Fixed Charges).

 

4Crystallisation of Floating Charge

 

4.1Crystallisation by Notice

 

4.1.1The floating charge created by Clause 3.3 (Floating Charge) may be crystallised into a fixed charge by the Chargee giving written notice to the Chargor in relation to any or all of the Floating Charge Assets, if:

 

(a)the Security Interest created by or pursuant to this Deed become enforceable in accordance with Clause 11.1 (Enforcement); or
   
(b)the Chargee considers (in his reasonable opinion), that crystallisation is required to protect the priority, value or enforceability of the Security Interest created under this Deed.
   
4.1.2Where no Floating Charge Assets are specified in the notice referred to in Clause 4.1.1 above, the crystallisation shall take effect over all the Floating Charge Assets.

 

4.2Automatic Crystallisation

 

Upon the occurrence of any of the following:

 

(a)the Chargor, without the Chargee’s prior written consent, resolves to take or takes any step to create a Security Interest or trust over any Floating Charge Asset or to dispose of any Floating Charge Asset;

 

(b)any person resolves to take or takes any step to levy any distress, execution, sequestration or other process against any Floating Charge Asset;

 

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(c)the members of the Chargor convene a meeting for the purposes of considering any resolution for its winding up, dissolution, or a compromise, assignment or arrangement with any creditor;

 

(d)an order is made for the winding-up, dissolution or other insolvency procedure of or in relation to the Chargor;

 

(e)a Receiver or manager or administrator is appointed; or

 

(f)if any other floating charge created by the Chargor crystallises for any reason;

 

the floating charge created by Clause 3.3 (Floating Charge) shall automatically and with immediate effect crystallise (without notice) into a fixed charge in relation to all the Floating Charge Asset(s) to which the relevant breach or step relates, as soon as that breach occurs or that step is taken.

 

4.3Assets Acquired Post-Crystallisation

 

Any assets acquired by the Chargor after crystallisation has occurred and that are not effectively charged by way of fixed charge or assigned under Clauses 3.1 (Fixed charges) or 3.2 (Assignment) shall become subject to the floating charge created by Clause 3.3 (Floating Charge) so that the crystallisation shall be effective as if such assets were owned by the Chargor at the date of crystallisation.

 

4.4Decrystallisation of Floating Charge

 

Any charge that has crystallised under Clause 4.1 (Crystallisation by Notice) or Clause 4.2 (Automatic Crystallisation) may by notice in writing (given at any time by the Chargee), be reconverted into a floating charge in relation to the assets or class of assets specified in that notice.

 

5Restrictions on Dealings

 

5.1Security

 

5.2Except as expressly allowed under the Purchase Documents, the Chargor must not create or permit to subsist any Security Interest on any Secured Assets.

 

5.3Disposals

 

Except as expressly permitted under Purchase Documents or in the ordinary course of its business, the Chargor shall not sell or agree to sell or otherwise dispose of and will not at any time during the subsistence of this Deed sell, assign, part with transfer, lease, license or otherwise dispose of the benefits of all or any of the Chargor’s rights title and interest in and to the Secured Assets or any material part of them.

 

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6Representations and Warranties

 

6.1The Chargor makes the following representations and warranties to and for the benefit of the Chargee on the date of this Deed and acknowledges that the Chargee has entered into this Deed in reliance on such representations and warranties:

 

(a)it has the power to execute, deliver and perform its obligations under this Deed and all necessary corporate, shareholder, board and other action has been taken by it to authorise the execution, delivery and performance of this Deed;

 

(b)subject to the completion of the applicable perfection requirements, this Deed creates the Security Interest that it purports to create and each of such Security Interest constitutes a legal, valid and effective Security Interest with first ranking priority;

 

(c)no Security Interest subsists over any of the Secured Assets except for the Security Interest permitted under the Purchase Documents;

 

(d)it is the legal and beneficial owner of all of the Secured Assets and upon its acquiring any property forming part of the Secured Assets, it shall be the legal and beneficial owner of that property;

 

(e)it has not sold or agreed to sell or otherwise disposed of or agreed to dispose of the benefit of all or any of its rights, title and interest in and to the Secured Assets in breach of the provisions of the Purchase Documents; and

 

(f)following the execution thereof, each Assigned Contract shall be in full force and effect and its obligations thereunder shall constitute valid and binding obligations, and it shall not be in default thereunder.

 

6.1.1To the extent permissible under applicable law:

 

(a)it has the right and authority to assign and transfer its rights, benefits and receivables under each Insurance Policy;
   
(b)it has the authority and (upon execution of each Assigned Contract) the right to charge all its rights, benefits, title, interest and claims under and in respect of each Assigned Contract, and the rights assigned pursuant to Clause 3.2 (Assignment) are free of any lien, encumbrance or adverse claim; and
   
(c)its entry into of this Deed shall not constitute a breach of any term of any Insurance Policy.

 

6.2Repetition of Representations and Warranties

 

The representations and warranties set forth in this Clause 6 (Representations and Warranties) are deemed to be made by the Chargor on the date of this Deed and shall survive the execution of this Deed and are continuing representations and warranties which are repeated by the Chargor on every day up to and until the expiry of the Security Period.

 

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7Undertakings

 

7.1The undertakings in this Clause 7 (Undertakings) remain in effect throughout the Security Period.

 

7.1.1The Chargor shall not:

 

(a)create or permit to subsist any Security Interest over any of the Secured Assets other than any Security Interest permitted under the Purchase Documents except with the prior written consent of the Chargee (such consent not to be unreasonably withheld, delayed or conditioned);
   
(b)either in a single transaction or in a series of transactions sell, transfer, licence, lease, grant any option in respect of or otherwise dispose of all or any part of the Secured Assets or agree or attempt to do so except with the prior written consent of the Chargee (such consent not to be unreasonably withheld, delayed or conditioned) or in the ordinary course of its business; and
   
(c)knowingly cause or permit to be done anything which is reasonably likely to jeopardise or otherwise prejudice the ability of the Chargee to realise the Security Interest created under this Deed.

 

7.2Real Property

 

7.2.1The Chargor shall:

 

(a)keep all buildings, plant, machinery, fixtures, fittings and other effects charged under this Deed in good and substantial repair and in good working order (except only for fair wear and tear) and renew and replace them when they become obsolete, worn out or destroyed;
   
(b)punctually pay or cause to be paid and keep the Chargee indemnified against, all present and future rents, rates, taxes, levies, charges, duties, assessments, impositions and other outgoings assessed, charged or imposed upon or in respect of its Real Property and, when required, produce to the Chargee proof of such payment;
   
(c)ensure compliance with all laws, statutes, statutory instruments, regulations and by-laws for the time being in force and all notices, orders and requirements of any competent authority, and all directives and codes of practice affecting its Real Property, business or assets or relating to the protection of the environment or health and safety and give effect to all arrangements which any such authority may direct or recommend;
   
(d)permit the Chargee to enter any of its Real Property, without prejudice to the powers conferred by this Deed and without becoming a mortgagee in possession, for any reasonable purpose and to view the state of the same;
   
(e)punctually pay the rents and perform any other obligations contained in any lease, agreement for lease, tenancy agreement or licence to occupy its Real Property and enforce the observance and performance by the landlord or licensor of their respective obligations under any such document; and
   
(f)insure and keep insured all its Real Property.

 

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7.2.2The Chargor shall not:

 

(a)create any legal or equitable estate or interest (including any license or sub-license, or grant any interest or right relating to the use, occupation or possession) in or over the whole or any part of its Real Property (or purport to do so) or part with possession or ownership or allow any third-party access to or the right to use any of its Real Property except with the prior written consent of the Chargee (such consent not to be unreasonably withheld, delayed or conditioned) or in the ordinary course of its business, repair, maintenance or improvement;
   
(b)without the prior written consent of the Chargee (such consent not to be unreasonably withheld, delayed or conditioned):
   
(i)exercise any power of leasing its Real Property, or accepting any lease surrenders, nor (except where obliged to do so by law) extend, renew or vary any lease or tenancy agreement or grant any licence to assign or underlet;
   
(ii)construct any building or make any structural alteration or apply for any planning consent for the development or change of use of any of its Real Property, or, except in the ordinary course of repair, replacement or improvement, at any time sever, remove or dispose of any fixture on it;
   
(iii)enter into onerous or restrictive obligations affecting its Real Property or create or permit to arise any overriding interest or any easement or right in or over it; or
   
(iv)alter, pull down, remove or dispose of any buildings, plant, machinery, fixtures, fittings on its Real Property except in the ordinary course of repair, maintenance or improvement.

 

7.3Intellectual Property

 

7.3.1The Chargor shall:

 

(a)take all necessary action to protect and maintain its Intellectual Property and franchises, wherever situated, that are material to its business and contracts; and
   
(b)pay all application, registration, renewal and other payments necessary to effect, protect, maintain or renew registrations in respect of its Intellectual Property and do all such things necessary to maintain all Intellectual Property rights in full force and effect, and send or deliver to the Chargee the receipt for every such payment immediately when requested by the Chargee.

 

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7.3.2The Chargor shall not:

 

(a)sell, assign, transfer, license or agree to license any Intellectual Property belonging to it or any interest in them, or permit any third party to use them except with the prior written consent of the Chargee (such consent not to be unreasonably withheld, delayed or conditioned) or in the ordinary course of its business; or
   
(b)alter any specification for which any of its trademarks has been registered or give its consent to registration by a third party of any trademark which is the same or confusingly similar to any of its trademarks.

 

7.4Book and Other Debts

 

7.4.1The Chargor shall collect and realise all its Debts and shall pay all money it may receive in respect of them into one of the Bank Accounts promptly on receipt and, pending such payment, will hold all money so received upon trust for the Chargee.

 

7.4.2Unless permitted by the Purchase Documents, the Chargor shall not, without the prior written consent of the Chargee which shall not be unreasonably withheld, delayed or conditioned charge, factor, discount, assign, postpone, subordinate, release or waive its rights in respect of any of its Debts in favour of any other person or purport to do so.

 

7.5Bank Account

 

7.5.1The Chargor shall collect, realise and immediately on receipt pay into the Bank Accounts, all money it may receive in respect of Debts or each Assigned Contract and pending such payment, it will hold such moneys in trust for the Chargee.

 

7.5.2At any time upon an Event of Default, the Chargee may, and is hereby irrevocably and unconditionally authorised, without further enquiry and without either giving notice to the Chargor or obtaining any consent, to apply the whole or part of all monies standing to the credit of the Bank Accounts in or towards payment of the Secured Obligations.

 

8Investments

 

8.1All investments made by the Chargor after the date of this Deed shall be subject to the floating charge created under this Deed and all investment certificates and other documents of title or evidence of ownership relating to any such investment acquired by the Chargor shall be deposited with the Chargee or in accordance with his direction.

 

8.2Except with the prior written consent of the Chargee (such consent not to be unreasonably withheld, delayed or conditioned), the Chargor shall not during the Security Period be entitled to nominate any person to hold any investment on its behalf.

 

8.3Notwithstanding the security created by this Deed, the Chargor shall promptly pay all calls, instalments and other payments that may be or become due and payable in respect of all or any investments. The Chargor acknowledges that the Chargee shall not be under any liability in respect of any such calls, instalments or other payments.

 

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9Perfection of Security

 

9.1Deposit of Title Documents

 

The Chargor shall promptly following the execution of this Deed (or, if later, following the acquisition of any Secured Assets) deposit (or procure the deposit) with the Chargee (or as it shall direct):

 

(a)all deeds, title documents, certificates, account mandates, signing authorities and other documents constituting or evidencing title to each of the Secured Assets;
   
(b)such deeds and documents of title (if any) relating to the Book Debts as the Chargee may from time to time specify;
   
(c)at any time after the execution of this Deed, deposit with the Chargee any further deeds, title documents, certificates, account mandates, signing authorities and other documents constituting or evidencing title to the Secured Assets, promptly upon coming into possession of any of them; and
   
(d)any other documents which the Chargee may from time to time require for perfecting his title or the titles of any purchaser.

 

9.2Stamping and Registration

 

9.2.1The Chargor shall, promptly following the execution of this Deed (and promptly upon the acquisition of any Secured Assets after the date of this Deed), execute and deliver to the Chargee (at the Chargor’s expense) in such form and substance as the Chargee may reasonably require:

 

(a)all documents required to perfect the Security Interest created, or purported to be created, by or pursuant to this Deed, including any documents required in connection with any registration formalities such as perfection letters addressed to the FIRS and security registration forms as prescribed by the CAC (executed by the Chargor with the date left blank);
   
(b)in relation to the Secured Share Assets, all certificates relating to the Shares and Investments and share transfer forms or other instruments of transfer (executed by the Chargor with the details of the transferee and the date left blank); and
   
(c)any notices to any third party of any of the charges or assignments contained in this Deed.
   
9.2.2The Chargor shall take all such other action as is available to it as may be necessary or as may reasonably be requested by the Chargee to create, perfect, protect or maintain any of the Security Interest created, or purported to be created, by or pursuant to this Deed or (after the Security Interest created by or pursuant to this Deed have become enforceable) to vest title to any Secured Asset in the Chargee or his nominee or any purchaser, or to facilitate the realisation of any Secured Asset under this Deed or the exercise of any of the rights, powers and remedies of the Chargee provided by or pursuant to this Deed or by law, including:

 

(a)the payment of the applicable stamp duties to the FIRS and the stamping of this Deed to fully secure the Secured Obligation; provided that the Chargor upon execution of this Deed shall only stamp for the Initial Stamped Amount (within 30 (thirty) days after execution) and subsequently upstamp as may be directed by the Chargee;

 

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(b)the payment of applicable CAC Registration Fees and the registration of this Deed at the CAC within 90 (ninety) days of the execution of this Deed; provided that the Chargor upon execution of this Deed shall pay the CAC Registration Fees covering the Initial Stamped Amount (within 90 days after execution) or further amounts in the event of an upstamping as may be directed by the Chargee;
   
(c)the payment of the applicable fee and the registration of this Deed at the NCR upon execution of this Deed; and
   
(d)the entry of the particulars of the Security Interest created under this Deed into its register of charges.

 

9.3No Governmental Consents, Waivers or Approvals

 

Notwithstanding any other provision of this Deed, the Chargor shall not be required to procure or obtain any waiver, approval or consent of any Governmental Authority in connection with any Security Interest purported to be created by or pursuant to this Deed until such Security Interest has become enforceable in accordance with this Deed, and in that instance, such waivers, approvals or consents, or any Governmental Authority required for the enforcement of the Security Interest shall be procured by the Chargor.

 

9.4Notices of Security Interest

 

The Chargor shall give notices of assignment or charge, as required by the Chargee, in relation to each Secured Asset which is subject to an assignment or charge pursuant to Clause 3.1 (Fixed Charges) or Clause 3.2 (Assignments), to each of the relevant counterparties including:

 

9.4.1Insurance Policies

 

The Chargor shall at its own expense, execute and deliver executed irrevocable notices of assignment in the form contained in Schedule 2 (Insurance Policies—Form of notice of assignment and acknowledgement) to each of the other parties to each of the Insurance Policies and use all reasonable endeavours to procure that the other party returns the signed acknowledgement of such notice directly to the Chargee within 10 (ten) Business Days from the date of the notice provided that, if the Chargor has used all reasonable endeavours and has still not been able to obtain such acknowledgment from the Insurer, any obligation to obtain an acknowledgment shall cease 10 (ten) Business Days following the date of service of the notice; and the Chargor provides to the Chargee satisfactory evidence that the notice of assignment was delivered to, and received by the Insurer.

 

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9.4.2Assigned Contracts

 

The Chargor shall at its own expense, execute and deliver executed irrevocable notices of assignment in substantially the form contained in ‎Schedule 3 (Assigned Contracts—Form of notice of assignment and acknowledgement) to each of the other parties to each of the Assigned Contracts and use all reasonable endeavours to procure that such parties return the signed acknowledgement of such notice directly to the Chargee within 10 (ten) Business Days from the date of this Deed provided that, if the relevant Chargor has used its reasonable endeavours and has still not been able to obtain such acknowledgment from the relevant counterparty any obligation to obtain an acknowledgment shall cease 20 (twenty) Business Days following the date of service of the notice; and the Chargor provides to the Chargee evidence that the notice of assignment was delivered to, and received by the counterparty to the Assigned Contract.

 

10Further Assurance

 

The Chargor shall promptly, at its own cost, do any act, make any stamping, filing or registration or sign, seal, execute and deliver such mortgages, charges, transfers, assignments, securities, notices, deeds, instruments or other documents as in each case the Chargee shall from time to time stipulate and in such form as the Chargee may require to:

 

(a)perfect and protect the Security Interest created or intended to be conferred on the Chargee by this Deed or the ranking thereof or which are required for the exercise of the rights created by this Deed;
   
(b)maintain the Security Interests intended to be hereby created or the ranking thereof;
   
(c)create, perfect or protect any security which it may, or may be required to, create in connection with this Deed and/or;
   
(d)facilitate the enforcement of the Security Interest, the exercise of the rights created by this Deed and the realisation of the Security Interest.

 

11Powers of the Chargee

 

11.1Enforcement

 

11.1.1The Security Interest created by or pursuant to this Deed shall become immediately enforceable at any time after the occurrence of an Event of Default.

 

11.1.2The Parties agree that after the Security Interest created by or pursuant to this Deed have become enforceable, the Chargee may in his absolute discretion without further notice to the Chargor or prior authorisation from any court, enforce all or any part of this Deed in any manner the Chargee sees fit.

 

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11.1.3Subject to this Clause 11.1 (Enforcement), the Chargee shall be entitled to do any or all of the following:

 

(a)take possession of the relevant Secured Assets and otherwise exercise in relation to the same, all of the rights of an absolute owner (including without limitation the right to sell any part of the Secured Assets);
   
(b)assign or dispose of any or all the Secured Assets to any person on such terms as the Chargee considers appropriate;
   
(c)apply the Secured Assets in or towards the payment of the Secured Obligations and any costs incurred in relation thereto;
   
(d)collect, recover, compromise and give a good discharge for, all claims then outstanding or thereafter arising in respect of the Secured Assets and to take over or institute all such proceedings in connection therewith as the Chargee in his absolute discretion thinks fit; and
   
(e)recover from the Chargor on demand all expenses incurred or paid by the Chargee in connection with the exercise of the powers referred to in this Clause 11.1 (Enforcement).

 

11.2Protective Action

 

The Chargee shall be entitled (but not bound) at any time after the Security Interest created by or pursuant to this Deed have become enforceable, and as often as may be necessary, to take any such action as it may in his discretion think fit for the purpose of protecting or maintaining the Security Interest created by or pursuant to this Deed.

 

11.3Custody

 

The Chargee shall be entitled to provide for the safe custody by third parties, at the cost of the Chargor, of all share certificates and other documents of title deposited with the Chargee under this Deed and shall not be responsible for any loss or damage to any such certificates or documents unless such loss or damage arises as a result of its fraud, gross negligence or willful misconduct.

 

12Receiver

 

12.1Appointment of a Receiver

 

12.1.1At any time after the Security Interest created by or pursuant to this Deed have become enforceable; or if so requested by the Chargor, the Chargee may appoint by writing any person to be a Receiver of all or any part of the Secured Assets.

 

12.1.2Where more than one Receiver is appointed, they shall have power to act separately unless the Chargee in the appointment specifies to the contrary.

 

12.1.3The Chargee may from time to time determine the remuneration of the Receiver.

 

12.1.4The Chargee may remove the Receiver from the Secured Assets of which it is a Receiver and appoint another in his place.

 

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12.2Further Appointment

 

The appointment of a Receiver shall not preclude:

 

(a)the Chargee from making any subsequent appointment of a Receiver over all or any of the Secured Assets over which a Receiver has not previously been appointed or has ceased to act; or

 

(b)a Receiver, while continuing to act, consenting to the appointment of an additional Receiver to act with it.

 

12.3Status of Receiver as an Agent

 

A Receiver shall be the agent of the Chargor and the Chargor shall be solely liable for the Receiver’s acts, defaults, remuneration and costs.

 

12.4Powers of Receiver

 

A Receiver shall have and be entitled to exercise in relation to the Chargor all the powers set out in the CAMA, and in particular, by way of addition and without limiting such powers, and without prejudice to the powers of the Chargee, a Receiver shall have power either in its own name or in the name of the Chargor:

 

(a)in connection with any sale or other disposition of the Secured Assets, to receive the consideration for the sale in a lump sum or in instalments and to receive shares by way of consideration;

 

(b)to grant options, licences or any other interests in the Secured Assets;

 

(c)to sever fixtures from, and to repair, improve and make any alterations to, the Secured Assets;

 

(d)to exercise any voting rights belonging to the Chargor;

 

(e)to do all other acts and things which it may consider desirable or necessary for realising any Secured Asset or incidental or conducive to any of the rights, powers or discretions conferred on a Receiver under or by virtue of this Deed; and

 

(f)to exercise in relation to any of the Secured Assets all the powers, authorities and things which it would be capable of exercising if it was the absolute beneficial owner of the Secured Asset.

 

12.5Limitation of liability

 

Neither the Chargee nor any Receiver shall be liable (other than as a result of its fraud, gross negligence or willful misconduct) for any loss, however caused, arising out of:

 

(a)any sale or other disposal of any of the Secured Assets and whether or not a better price could or might have been obtained by deferring or advancing the date of such sale or other disposal; or
   
(b)the exercise of or failure to exercise any of the Chargee’s powers under this Deed; or
   
(c)to account as mortgagee in possession for any of the Secured Assets.

 

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12.6Statutory Restrictions on Appointment of Receiver

 

The restriction contained in Section 24 of the CA, Section 131 of the PCL and Section 43(1) of the MPL shall not apply to the appointment of Receivers.

 

13Power of attorney

 

13.1The Chargor, by way of security for the performance of its obligations under this Deed, irrevocably appoints the Chargee (whether or not a Receiver has been appointed) and any Receiver separately, to be the attorney of the Chargor with full power to appoint substitutes and to delegate, for the Chargor in its name and on its behalf, and as its act and deed or otherwise, to execute, deliver and otherwise perfect any document, or perform any act:

 

(a)that may be required of the Chargor under this Deed and that the Chargor has failed to do within 10 (ten) Business Days of being notified by the Chargee that it is required; or

 

(b)that may be deemed by the attorney necessary or desirable for any purpose of this Deed (including, after the Security Interest created by or pursuant to this Deed have become enforceable, to transfer legal ownership of any of the Secured Assets).

 

13.2Ratification

 

Without prejudice to the generality of Clause 13 (Power of Attorney), the Chargor covenants with the Chargee and separately with any Receiver to ratify:

 

(a)all transactions entered into by any attorney in the proper exercise of its powers in accordance with this Deed; and

 

(b)all transactions entered into by any attorney in signing, sealing or delivering any deed, assurance or document, perfecting any Security Interest or performing any act, in each case in the proper exercise of its powers in accordance with this Deed.

 

14Other Powers Exercisable by the Chargee

 

14.1Chargee may exercise Receiver’s powers

 

All powers of a Receiver conferred by this Deed may be exercised by the Chargee after the Security Interest created by or pursuant to this Deed have become enforceable, whether as attorney of the Chargor or otherwise, and whether or not a Receiver has been appointed.

 

14.2Chargee empowered to receive receivables

 

After the Security Interest created by or pursuant to this Deed have become enforceable, the Chargee or any of his authorised representative is empowered to receive all receivables and claims that may be assigned to the Chargee under this Deed, on payment to give an effectual discharge for them, on non-payment to take and institute if the Chargee in his sole discretion so decides all steps and proceedings either in the name of the Chargor or in the name of the Chargee for their recovery, and to agree accounts and to make allowances and to give time to any surety. The Chargor undertakes to ratify and confirm whatever the Chargee or his authorised representative shall do or purport to do under this Clause 14 (Other powers exercisable by the Chargee) in the proper exercise of his powers in accordance with this Deed.

 

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14.3Chargee not Obliged to Take Action Relating to Receivables

 

The Chargee shall not be obliged to:

 

(a)make any enquiry as to the nature or sufficiency of any sums received by him in respect of any receivables or claims assigned to the Chargee under this Deed or pursuant to any of the Secured Assets;

 

(b)make any enquiry as to the adequacy of performance by any other party to any of the Assigned Contracts of that party’s obligations under any of the Assigned Contracts;

 

(c)make any claim or take any other action under this Deed; or

 

(d)collect any money or enforce any of the Chargee’s other rights under this Deed.

 

14.4Obligation under the Insurance Policies or Assigned Contracts

 

The Chargee shall have no obligation under the Insurance Policies or the Assigned Contracts and shall have no liability in the event of failure by the Chargor to perform its obligations under the Insurance Policies or the Assigned Contracts.

 

15Power of Sale

 

15.1The statutory power of sale shall, as between the Chargee and a purchaser from the Chargee, arise on, and be exercisable at any time after, the execution of this Deed. That notwithstanding, the Chargee shall not exercise such power of sale until the Security Interest created by or pursuant to this Deed have become enforceable.

 

15.2The restrictions contained in Section 20 of the CA, Section 125 of the PCL and Section 37 of the MPL shall not apply to this Deed.

 

16Protection of third parties

 

16.1No person (including a purchaser) dealing with the Chargee or any Receiver or any of their respective nominees or agents, shall be concerned to enquire:

 

(a)whether the Security Interest created by or pursuant to this Deed have become enforceable;

 

(b)whether any Receiver is validly appointed or acting within its powers;

 

(c)whether any power exercised or purported to be exercised has become exercisable;

 

(d)whether any of the Secured Obligations remain due;

 

(e)as to the necessity or expediency of any stipulations or conditions subject to which the sale of any Secured Asset is made, or otherwise as to the propriety or regularity of the sale of any Secured Asset; or

 

(f)how any money paid to the Chargee or a Receiver, or their respective nominees or agents, is applied.

 

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17Consolidation of mortgages

 

The restrictions on consolidation of mortgages contained in Section 17 of the CA, Section 115 of the PCL and Section 28 of the MPL shall not apply to this Deed.

 

18Rights of Chargee or Receiver to Remedy Breach

 

If the Chargor defaults in its performance of any of the undertakings under Clause 7 (Undertakings) or other obligations in this Deed, the Chargee or any Receiver may (but shall not be obliged to) do whatever may be necessary to rectify the default or protect the Chargee’s interest under this Deed (including, if applicable, entering the Chargor’s Real Property without becoming liable as mortgagee in possession) at the expense of the Chargor.

 

19Application of money received by the Chargee or a Receiver

 

Any money received or recovered by the Chargee or a Receiver under this Deed shall be applied by the Chargee in settlement of the Secured Obligation, and the payment of the surplus (if any) to the Chargor or any other person entitled thereto.

 

20Costs, Expenses and Indemnity

 

20.1The Chargor shall promptly on demand pay the Chargee the amount of all receipted costs and expenses (including legal fees) incurred by it in connection with the negotiation, preparation, printing and execution of this Deed and any other documents referred to in this Deed.

 

20.2If an amendment is made to this Deed at the instance of the Chargor, the Chargor shall, within 5 (five) Business Days of demand, reimburse the Chargee for the amount of all receipted costs and expenses (including legal fees) reasonably incurred by the Chargee in responding to, evaluating, negotiating or complying with that request or requirement.

 

20.3The Chargor shall, within 5 (five) Business Days of demand, pay to the Chargee the amount of all costs and expenses (including legal fees) incurred by the Chargee in connection with the enforcement of, or the preservation of any rights under this Deed.

 

21Assignment

 

21.1The Chargee may at any time assign or transfer any of his rights, interests, benefits or obligations under this Deed.

 

21.2The Chargor shall not be entitled to assign its rights or otherwise transfer all or any part of its rights, interests, benefits or obligations under this Deed.

 

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22Disclosure

 

22.1The Chargor irrevocably authorises the Chargee to disclose any information concerning the Chargor, this Deed or the Secured Obligations to:

 

(a)any prospective assignee or transferee referred to in Clause ‎21 (Assignment) and any other person considered by the Chargee to be concerned in the prospective assignment or transfer; and

 

(b)any person who, as part of the arrangements made in connection with any transaction referred to in Clause 21 (Assignment), requires such information after the transaction has been effected.

 

23Notices

 

23.1The provisions of the Securities Purchase Agreement as it relates to Notices shall, to the extent applicable to the Parties be deemed to be incorporated into this Deed in full mutatis mutandis.

 

23.2This Clause 23 (Notices) does not apply to any notice given in legal proceedings, arbitration or other dispute resolution proceedings.

 

24Amendments

 

No amendment, waiver or variation of any of the terms of this Deed will be valid or effective unless made in writing and executed by or on behalf of the Parties.

 

25Remedies and waivers

 

25.1No failure, delay or omission by the Chargee in exercising any right, power or remedy provided by law or under this Deed shall operate as a waiver of that right, power or remedy, nor shall it preclude or restrict any future exercise of that or any other right, power or remedy.

 

25.2No single or partial exercise of any right, power or remedy provided by law or under this Deed shall prevent any future exercise of it or the exercise of any other right, power or remedy.

 

25.3The Chargee’s rights, powers and remedies under this Deed are cumulative and they do not exclude any rights or remedies that arise by law.

 

25.4Any release, waiver or discharge of the whole or any part of the Secured Obligations or any consent, approval or waiver given by the Chargee in relation to this Deed shall only be effective for that specific purpose and for the terms and conditions upon which it was granted.

 

26Continuing and Additional Security

 

26.1Until the end of the Security Period, the Security Interest created by or pursuant to this Deed shall remain in full force and effect as a continuing security for the Secured Obligations unless and until discharged by the Chargee in the manner provided for in Clause 29 (Redemption and Release of Security).

 

26.2No part of the Security Interest created by or pursuant to this Deed will be considered satisfied or discharged by any intermediate payment, discharge or satisfaction of the whole or any part of the Secured Obligations until the Security Interest is discharged in the manner provided under Clause 29 (Redemption and Release of Security)

 

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27No Prejudice

 

The Security Interest created, or intended to be created, by or pursuant to this Deed shall not be prejudiced by any unenforceability or invalidity of any other agreement or document.

 

28No Merger

 

Nothing contained in this Deed shall operate so as to merge or otherwise prejudice, affect or exclude any other Security Interest which the Chargee may for the time being, hold for the Secured Obligations or would have but for this Deed.

 

29Redemption and Release of Security

 

Subject to and without prejudice to Clause 30 (Conditional discharge), at the end of the Security Period, the Chargee shall, at the request and cost of the Chargor:

 

(a)take whatever action is necessary to release and cancel the Security Interest created by or pursuant to this Deed; and

 

(b)return all deeds, certificates, account mandates, signing authorities and other documents of title delivered to the Chargee under this Deed,

 

in each case without recourse to, or any representation or warranty by, the Chargee or any of his nominees.

 

30Conditional Discharge

 

30.1Any release, settlement or discharge between the Chargee and the Chargor shall be conditional upon no security, disposition or payment to the Chargee by the Chargor or any other person in respect of the Secured Obligations being avoided, set aside, reduced or ordered to be refunded by virtue of any statutory provision relating to insolvency or liquidation or for any reason whatsoever.

 

30.2If any such release, settlement or discharge is reasonably considered by the Chargee to be capable of being avoided, set aside, reduced or ordered to be refunded, the liability of the Chargor under this Deed shall continue or be reinstated and the Chargee shall be entitled to recover the value or amount of any such security, disposition or payment from the Chargor as if the release, settlement or discharge had not occurred.

 

31Severability

 

If any provision of this Deed (or part of any provision of this Deed) is or becomes illegal, invalid or unenforceable, the legality, validity and enforceability of any other provision of this Deed (or other part of that provision of this Deed) shall not be affected.

 

32Counterparts

 

This Deed may be executed in any number of separate counterparts and this has the same effect as if the signatures on those counterparts were on a single copy of this Deed.

 

33Governing Law

 

This Deed and any dispute or claim arising out of, or in connection with it, its subject matter or formation (including non-contractual disputes or claims) shall be governed by, and construed in accordance with, the laws of the Federal Republic of Nigeria.

 

34Jurisdiction

 

34.1The Parties agree that the courts of Nigeria shall have jurisdiction to settle any dispute which may arise in connection with this Deed and that any final judgment or order of courts in connection with this Deed is conclusive and binding on them and may be enforced against them in the courts of any other jurisdiction.

 

34.2Notwithstanding Clause 34.1 above, the Chargee retains the right to bring proceedings against the Chargor in respect of any dispute arising out of or in connection with this Deed in any other court of competent jurisdiction.

 

This Deed has been executed and delivered as a deed and is intended to take effect as a deed by the Parties on the date written at the beginning of this Deed.

 

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SCHEDULE 1 - SECURED ASSETS

 

 

PART A - ASSIGNED CONTRACTS

 

[       ]

 

PART B – BANK ACCOUNTS

 

[       ]

 

PART C – DEBTS

 

[       ]

 

PART D – INSURANCE POLICIES

 

[       ]

 

PART E – INTELLECTUAL PROPERTY

 

[       ]

 

PART F – EQUIPMENT

 

[       ]

 

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SCHEDULE 2 -INSURANCE POLICIES—FORM OF NOTICE OF ASSIGNMENT AND ACKNOWLEDGEMENT

 

 

Part A - Form of notice of assignment to insurer

 

[To be printed on the LETTER HEAD of the Chargor]

 

To: [insert name and address of the relevant insurer]

 

Date: []

 

Dear Sirs,

 

[insert brief description of the relevant insurance policy]

 

1We refer to the All Assets Debenture dated [] and granted by us as chargor (the ’Chargor’) in favour of Dozy Mmobuosi (the ’Chargee’) (the ’Debenture’).

 

2We refer to the insurance policy effected by us as the policy holder, with you as the insurer relating to [insert brief description of relevant policy and risks covered], with policy number [] and any policy that may be effected to renew, substitute or replace such insurance policy (the ’Insurance Policy’).

 

3We give you notice that pursuant to the terms of the Debenture, we have assigned (and, to the extent not validly or effectively assigned, we have charged by way of fixed charge) to the Chargee by way of security all of our rights and claims from time to time arising in relation to the Insurance Policy including the benefit of all claims arising and all money payable under the Insurance Policy.

 

4With effect from the date of receipt of this notice, we irrevocably and unconditionally instruct and authorise you to pay all monies payable to us under the Insurance Policy:

 

4.1to the following bank account:

 

[specify full details of Account]; or

 

4.2to such bank account of the Chargor as the Chargee may from time to time specify to you.

 

5All settlements of claims in respect of third-party liability, including employer’s liability claims, shall be paid directly to person(s) entitled thereto except in the case where we have properly discharged our liability to such person(s), in which case such payments shall be made to us in reimbursement of moneys expended in satisfaction of such liability You shall not (without the Chargee’s prior written consent) exercise any right of set-off or counterclaim in relation to any amounts owed under or in connection with the Insurance Policy.

 

24

 

 

6We irrevocably and unconditionally instruct and authorise you, without requiring further approval from us, to:

 

6.1promptly disclose to the Chargee such information relating to the Insurance Policy as the Chargee may at any time request; and

 

6.2provide the Chargee with copies of all correspondence given to or received from us under the Insurance Policy promptly after it is given or received.

 

7The authority and instructions contained in this notice cannot be revoked or varied by us without the prior written consent of the Chargee.

 

8This notice and any dispute or claim arising out of, or in connection with it, its subject matter or formation [(including non-contractual disputes or claims)] shall be governed by, and construed in accordance with Nigerian law.

 

9Please acknowledge safe receipt of this notice within [] days of receipt of this notice, by signing, dating and returning the attached acknowledgement directly to the Chargee at [insert name and address], (marked for the attention of [insert name of individual and/or position]) and by sending a copy to us at [insert name and address], (marked for the attention of [insert name of individual and/or position]).

 

Yours faithfully

 

___________________

 

Director/Authorised signatory

 

for and on behalf of Tingo Foods PLC.

 

[On duplicate]

 

We acknowledge receipt of the Notice of Assignment of which this is a copy and agree to comply with its terms. We confirm that we have not received notice of any other assignment, charge or other third party interest whatsoever of or in any of the rights, title or interest of the Chargor under the Insurance Policy.

 

By

 

___________________

 

Authorised signatory

 

for and on behalf of [insert name of the Insurer]

 

25

 

 

SCHEDULE 3 - ASSIGNED CONTRACTS—FORM OF NOTICE OF ASSIGNMENT AND ACKNOWLEDGEMENT

 

 

Part A

 

Form of notice of assignment to contract counterparty

 

[TO BE PRINTED ON THE LETTER HEAD OF THE CHARGOR]

 

To: [insert name and address of the relevant contract counterparty]

 

Date: []

 

Dear Sirs,

 

[insert brief description of the relevant assigned contract]

 

1We refer to the All Assets Debenture (the ’Debenture’) dated [] and granted by us as chargor (the ’Chargor’) in favour of Dozy Mmobuosi (the ’Chargee’).

 

2We refer to the contract relating to [insert description of relevant contract] dated [] and entered into between us as [] and you, [insert name of relevant counterparty], as [] (as amended, novated, supplemented, restated or replaced from time to time) (the ’Contract’).

 

3We give you notice that pursuant to the terms of the Debenture, we have assigned (and, to the extent not validly or effectively assigned, we have charged by way of fixed charge) to the Chargee by way of security all of our rights, title and interest from time to time in, and the full benefit of, the Contract and all rights, title and interest in any amounts payable to us under the Contract, including any claims for damages in respect of any breach of the Contract.

 

4Upon receiving a written notice from the Chargee that an ‘Event of Default’ (as defined or incorporated by reference in the Debenture) has occurred:

 

4.1you shall treat the Chargee as entitled to exercise all rights exercisable by us under the Contract;

 

4.2you are authorised and instructed, without requiring further approval from us, to comply with your obligations (including without limitation your payment obligations) under the Contract in accordance with the written instructions of the Chargee from time to time (and to hold the money for any such payments to the Chargee’s order pending receipt of written instructions from the Chargee); and

 

4.3subject to paragraph ‎5 below, you shall allow the Chargee to perform all the obligations assumed by us under the Contract.

 

5We shall remain liable to perform all our obligations under the Contract and the Chargee shall be under no obligation of any kind whatsoever in respect of the Contract.

 

26

 

 

6We irrevocably and unconditionally instruct and authorise you, without requiring further approval from us, to:

 

6.1promptly disclose to the Chargee such information relating to the Contract as the Chargee may at any time request including, without limitation, all information, accounts and records in your possession or control that may be necessary or of assistance to enable the Chargee to verify (i) the amount of all payments made or payable under the Contract by you or (ii) the performance by you of all your obligations under the Contract; and

 

6.2provide the Chargee with copies of all notices given to or received from us under the Contract promptly after they are given or received.

 

7The authority and instructions contained in this notice cannot be revoked or varied by us without the prior written consent of the Chargee.

 

8This notice and any dispute or claim arising out of, or in connection with it, its subject matter or formation [(including non-contractual disputes or claims)] shall be governed by, and construed in accordance with, the laws of the Federal Republic of Nigeria.

 

9Please acknowledge safe receipt of this notice within [] days of receipt of this notice, by signing, dating and returning the attached acknowledgement directly to the Chargee at [insert name and address], (marked for the attention of [insert name of individual and/or position]) and by sending a copy to us at [insert name and address], (marked for the attention of [insert name of individual and/or position]).

 

Yours faithfully

 

___________________

 

Director/Authorised signatory

 

for and on behalf of Tingo Foods PLC

 

27

 

 

Part B Form of acknowledgement of notice of assignment from contract counterparty

 

[TO BE PRINTED ON THE LETTER HEAD OF THE RELEVANT CONTRACT COUNTERPARTY]

 

To: [insert name and address of the Chargee]

 

For the attention of: [insert name of individual and/or position]

 

Copy to: [insert name and address of Chargor]

 

For the attention of: [insert name of individual and/or position]

 

Date: []

 

Dear Sirs,

 

[insert brief description of the relevant assigned contract ] (the ‘Contract’)

 

1We acknowledge receipt of the notice of assignment dated [] and sent to us by Tingo Foods PLC, (the ‘Chargor’) in connection with the Contract (the ‘Notice’).

 

1We agree to comply with the terms of the Notice.

 

2We confirm that we have not received notice of any other assignment, charge or other third-party interest whatsoever of or in any of the rights, title or interest of the Chargor under the Contract.

 

3This acknowledgement and any dispute or claim arising out of, or in connection with it, its subject matter or formation (including non-contractual disputes or claims) shall be governed by, and construed in accordance with, the laws of the Federal Republic of Nigeria.

 

Yours faithfully

 

___________________

 

Director/Authorised signatory

 

for and on behalf of [insert name of the relevant contract counterparty]]

 

28

 

 

EXECUTION PAGE

 

 

This Deed has been executed and delivered by the Parties on the date written at the beginning of this Deed.

 

A.

THE CHARGOR

 

Executed for

TINGO FOODS PLC

by

 

   
DIRECTORDIRECTOR/COMPANY SECRETARY

 

B.

THE CHARGEE

 

Executed by

DOZY MMOBUOSI

 

___________________    
     
In the presence of:    
Witness’ name:    
Witness’ signature:    
Witness’ address:    
Occupation:    

 

 

 

29

 

 

Exhibit 21.1

 

  Name   Ownership
1 Tingo Group. Inc.   A Delaware corporation- (MICT)
2 MICT Telematics ltd   100% owned by MICT inc
3 MICT Management ltd   100% owned by MICT Telematics ltd
4 MICRONET ltd   31.47% owned by MICT Telematics ltd
5 MICRONET INC   100% owned by MICRONET ltd
6 GFH Intermediate Holdings Ltd.   100% owned by MICT. Inc.
7 BI Intermediate (Hong Kong) Limited   100% owned by GFH Intermediate Holdings Ltd.
8 Magpie Securities Limited   100% owned by BI Intermediate (Hong Kong) Limited
9 Magpie Securities (Singapore) PTE. Ltd.   100% owned by BI Intermediate (Hong Kong) Limited
10 Mapie Securities (Australia) Pty Ltd.   100% owned by BI Intermediate (Hong Kong) Limited
11 Magpie Forex Limited (Hong Kong company)   100% owned by BI Intermediate (Hong Kong) Limited
12 Shenzhen Magpie Information Consulting Technology Co., Ltd.   100% owned by BI Intermediate (Hong Kong) Limited
13 Bokefa Petroleum and Gas Co. Ltd.   100% owned by BI Intermediate (Hong Kong) Limited
14 Shanghai Zhengzhong Energy Technology Co., Ltd.   100% owned by Bokefa Petroleum and Gas Co. Ltd.
15 Tianjin Dibao Technology Development Co. Ltd.   24% owned by Shanghai Zhengzhong Energy Technology Co., Ltd.. (76% VIE)
16 Tianjin Bokefa Technology Co., Ltd.   100% owned by Bokefa Petroleum and Gas Co. Ltd.
17 Beijing Fucheng Lianbao Technology Co., Ltd.   24% owned by Tianjin Bokefa Technology Co., Ltd. (76% VIE)
18 Beijing Yibao Technology Co   100% owned by Beijing Fucheng Lianbao Technology Co., Ltd
19 Beijing Fucheng Insurance Brokerage Co., Ltd   100% owned by Beijing Yibao Technology Co
20 Guangxi Zhongtong Insurance Agency Co., Ltd   60% owned by Beijing Yibao Technology Co
21 All Weather Insurance Agency Co., Ltd.   100% VIE by TIANJIN BOKEFA Technology Co., Ltd
22 Beijing All Weather Appraisal Co., Ltd.   99.583% owned by All Weather Insurance Agency Co., Ltd.
23 Tingo Group Holdings LLC   100% owned by MICT inc
24 MICT Fintech Limited (BVI)   100% owned by Tingo Group Holdings LLC
25 Tingo Mobile Limited (Nigeria)   100% owned by MICT Fintech Limited (BVI)
26 Tingo Mobile Ghana Limited (Ghana)   100% owned by Tingo Mobile Limited (Nigeria)

 

Exhibit 23.1

 

CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

 

We consent to the incorporation by reference in Registration Statement Nos. 333-245027, 333-248602, 333-251483, 333-256209 on Form S-3 of our report dated March 31, 2023, relating to the financial statements of Tingo Group, Inc. appearing in this Annual Report on Form 10-K for the year ended December 31, 2022.

 

/s/ Brightman Almagor Zohar & Co.

 

Brightman Almagor Zohar & Co.

Certified Public Accountants

A Firm in the Deloitte Global Network

 

Tel Aviv, Israel

March 31, 2023

 

Exhibit 23.2

 

Independent Registered Public Accounting Firm’s Consent

 

We consent to the incorporation by reference in the Registration Statement of Tingo Group, Inc. (formerly known as MICT, Inc.) on Form S-3 File No. 333-245027, Form S-3 File No. 333-248602, Form S-3 File No. 333-251483, and Form S-3 File No. 333-256209 of our report dated June 17, 2022, with respect to our audit of the consolidated financial statements of MICT, Inc. as of December 31, 2021 and for the year ended December 31, 2021, which report is included in this Annual Report on Form 10-K of Tingo Group, Inc. for the year ended December 31, 2022.

 

We resigned as auditors on October 3, 2022 and, accordingly, we have not performed any audit or review procedures with respect to any financial statements incorporated by reference for the periods after the date of our resignation.

 

/s/ Friedman LLP

 

Friedman LLP

New York, NY

March 31, 2023

Exhibit 31.1

 

CERTIFICATION OF THE PRINCIPAL EXECUTIVE OFFICER PURSUANT TO SECTION 302 OF THE SARBANES-OXLEY ACT OF 2002

 

I, Darren Mercer, certify that:

 

1. I have reviewed this annual report on Form 10-K of Tingo Group, Inc.;

 

2.

Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;

 

3.

Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;

 

4.

The registrant’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a–15(e) and 15d–15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a–15(f) and 15d–15(f)) for the registrant and have:

 

  (a)

Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;

 

  (b)

Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;

 

  (c)

Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and

 

  (d)

Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and

 

5.

The registrant’s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):

 

  (a)

All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and

 

  (b)

Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.

 

March 31, 2023  
   
/s/ Darren Mercer  
Darren Mercer  
Chief Executive Officer (Principal Executive Officer)  

 

Exhibit 31.2

 

CERTIFICATION OF THE PRINCIPAL FINANCIAL OFFICER PURSUANT TO SECTION 302 OF THE SARBANES-OXLEY ACT OF 2002

 

I, Kevin Chen, certify that:

 

1. I have reviewed this annual report on Form 10-K of Tingo Group, Inc.;

 

2.

Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;

 

3.

Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;

 

4.

The registrant’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a–15(e) and 15d–15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a–15(f) and 15d–15(f)) for the registrant and have:

 

  (a)

Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;

 

  (b)

Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;

 

  (c)

Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and

 

  (d)

Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and

 

5.

The registrant’s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):

 

  (a)

All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and

 

  (b)

Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.

 

March 31, 2023  
   
/s/ Kevin Chen  
Kevin Chen,  
Chief Financial Officer  

 

 

 

 

 

Exhibit 32.1

 

CERTIFICATION OF THE PRINCIPAL EXECUTIVE OFFICER PURSUANT TO SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002

 

In connection with the Annual Report of Tingo Group, Inc. (the “Company”) on Form 10-K for the fiscal year ended December 31, 2022 as filed with the Securities and Exchange Commission on the date hereof (the “Report”), I, Darren Mercer, Chief Executive Officer of the Company, certify, pursuant to 18 U.S.C. Section 1350 as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that to my knowledge:

 

(1)

The Report fully complies with the requirements of section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended; and

 

(2)

The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.

 

March 31, 2023  
   
/s/ Darren Mercer  
Darren Mercer  
Chief Executive Officer (Principal Executive Officer)  

 

Exhibit 32.2

 

CERTIFICATION OF THE PRINCIPAL FINANCIAL OFFICER PURSUANT TO SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002

 

In connection with the Annual Report of Tingo Group, Inc. (the “Company”) on Form 10-K for the fiscal year ended December 31, 2022 as filed with the Securities and Exchange Commission on the date hereof (the “Report”), I, Kevin Chen Chief Financial Officer of the Company, certify, pursuant to 18 U.S.C. Section 1350 as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that to my knowledge:

 

(1)

The Report fully complies with the requirements of section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended; and

 

(2)

The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.

 

March 31, 2023  
   
/s/ Kevin Chen  
Kevin Chen  
Chief Financial Officer