UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event
reported): May 3, 2022 (
(Exact name of registrant as specified in its charter)
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(Commission file number) | (IRS Employer Identification No.) |
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Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligations of the registrant under any of the following provisions:
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| Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
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Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Securities registered pursuant to Section 12(b) of the Act:
| Title of each class | Trading Symbol(s) | Name of each exchange on which registered | ||
| The Stock Market LLC | ||||
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The Stock Market LLC |
| Item 1.01 | Entry into a Material Definitive Agreement. |
On April 27, 2022, Cuentas, Inc. (“Cuentas” or the “Company”) signed the Second Amendment to Binding Letter of Intent (the “SA-LOI”) with SDI Black 011, LLC (“SDI Black” and, together with Sohel Basir Kapadia and Sahedabanu Sohel Kapadia (collectively the “Owners”), for the potential acquisition of 100% of the assets of SDI Black 011(“Seller”) in exchange for $2.976 Million.
In February 2022, the Letter of intent was executed pursuant to which a) MangoTel LLC was removed from the transaction and b) the acquisition price was reduced from $3.2 Million to $2.976 Million due to the removal of MangoTel LLC.
The Second Amendment to Binding Letter of Intent provides that a definitive Asset Purchase Agreement (APA), subject to Cuentas Board of Director approval, will be signed by May 8, 2022 detailing the assets which will be acquired by Cuentas. It also provides that if the Board of Directors of Cuentas does not approve the APA, then “…the parties shall be released from any and all obligations thereunder including the termination penalty…”. The closing date for the APA shall under no circumstances be after May 20, 2022.
Within 5 days after execution of this LOI, Cuentas will deposit $1 Million into an escrow account while a definitive purchase and sale agreement (the “Agreement”) is drafted and negotiated. On or before five (5) business days before the Closing Date, Cuentas shall pay into the escrow trust account of it’s Escrow Agent, the remaining Purchase Price of ONE MILLION NINE HUNDRED SEVENTY-SIX THOUSAND DOLLARS ($1,976,000, the “Remaining Purchase Price”). . At the Closing, Owners shall transfer one hundred percent (100%) of the Purchased Assets free and clear of any liens, claims, and encumbrances to Cuentas.
On or before eight (8) business days following the execution of this Second Amendment by the parties, Owners shall pay into the escrow trust account of the Seller’s Escrow Agent, $1 Million to be held in trust under the terms and conditions of the Escrow Agreement as defined in the SA-LOI.
On or before five (5) business days following the execution of the Second Amendment by the parties, the Escrow Agents shall obtain from the SBA a payoff estoppel letter setting forth the outstanding loan balance, including principal, interest and applicable charges due under the applicable SBA loan documents with a per diem interest amount that will allow the parties to calculate the payoff amount necessary to satisfy in full the indebtedness owed by Seller to the SBA (the “SBA Indebtedness”) and obtain a release of the recorded liens and security interest and UCC-1s, and wiring instructions setting forth the financial account that SBA where it wants the payoff funds transferred to at the Closing (“SBA Wiring Instructions”). On the Closing Date, the parties shall provide a written notice signed by all of the parties, , directing the Escrow Agents to wire to the SBA $2,976,000 plus the $1,000,000 from the Owners, for a total of $3,976,000., to satisfy in full the SBA Indebtedness and obtain the release of any and all liens, claims, and encumbrances of the SBA against the Purchased Assets.
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On April 29, 2022, Cuentas sent the standard form bulk sale notice to all creditors listed by owners setting forth the proposed sale and providing an address for creditors to make an inquiry or claim against the Seller or the assets of the Seller. It shall be the responsibility of the Seller and Owners to resolve any and all claims filed within the 20-day notice period (“Bulk Sale Notice”) either through a writing signed by the claimant releasing the Seller and the assets from any further claims, or through escrow of sufficient funds to cover the amount of the claim as alleged by the creditor. The parties shall review all claims, and the resolution or escrow by Seller to satisfy all claims filed, no later than May 18, 2022, and if Buyer, at its sole discretion, is satisfied that each asserted claim has been resolved by a writing signed by the creditor, or an acceptable escrow amount is deposited by Seller in its attorney’s trust account to cover all unreleased alleged claims, the parties shall proceed to closing of the asset purchase transaction on or before the Closing Date. If any creditors provide timely notice of a claim against Seller or the Purchased Assets, then as a condition precedent to closing the Seller and Owners shall reduce the Purchase Price or escrow additional funds with the Escrow Agent sufficient to fully satisfy all such asserted claims as determined by the Buyer at its reasonable discretion. If the aggregate funds on deposit with the Escrow Agent aggregating $3,976,000.00 are insufficient to satisfy in full the SBA Loan Obligation as set forth in the estoppels letter to be provided by the SBA/lender, then Owners shall deposit any additional funds as determined by the Escrow Agent as necessary to satisfy in full the outstanding SBA Loan Indebtedness then the Owners shall fund the additional deposit by five (5) business days before the Closing.
If after execution of the APA, Seller and Owners fail to satisfy the conditions to closing, the Buyer at its sole discretion may terminate this APA with written notice to the Seller and the Owners and the Escrow Agents. Upon receipt of the written notice of termination as set forth immediately above, Seller’s Escrow Agent shall deposit from the Seller’s Escrow Funds the $250,000 liquidation damages in the registry of a court of competent jurisdiction in Westchester County, New York and commence an interpleader action naming the parties and affording them notice to appear to determine their respective rights in the $250,000 liquidation damages and promptly return the remaining Seller’s Escrow Funds, less the $250,000 liquidating damages, to the Seller and Buyer’s Escrow Agent may promptly return the Buyer’s Escrowed Funds to Buyer. If after execution of the APA, the Buyer fails to fund the Remaining Purchase Price, the Owners may terminate the APA with written notice to the Buyer and the Escrow Agents. Upon receipt of the written notice of termination as set forth immediately above, Buyer’s Escrow Agent shall deposit from the Buyer’s Escrow Funds the $250,000 liquidation damages in the registry of a court of competent jurisdiction in Miami-Dade County, Florida and commence an interpleader action naming the parties and affording them notice to appear to determine their respective rights in the $250,000 liquidation damages and promptly return the remaining Buyer’s Escrow Funds to the Buyer and Owners’ Escrow Agent may promptly return the Owners’ Escrowed Funds to Owners.
The parties stipulate that the $250,000 liquidating damages is an approximate estimate of the costs and expenses incurred by each party in pursuing this transaction and is intended solely as an estimate of reimbursable costs and expenses and is not intended to be a penalty. Venue for any dispute over whether a party properly terminated the APA shall be on the county where the $250,000 liquidation damages are on deposit in the court registry. In any such interpleader, the parties agree to that their respective Escrow Agent is authorized to accept service of the interpleader complaint and summons and they waive any right to a jury trial on any and all issues.
Seller and Owners and their officers and directors and all of its shareholders including Owners, separately and severally, agree that, for a period of two (2) years after closing, they will not, directly or indirectly, own, manage, operate, join in, control, or participate in the ownership, management, operation, or control of, or be connected with in any manner, any entity engaged in the business of Fintec and Telcom anywhere in the world.
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Item 3.01, Notice of Delisting or Failure to Satisfy a Continued Listing Rule or Standard; Transfer of Listing
As previously disclosed in the Current Report on Form 8-K filed by the Company with the Securities and Exchange Commission on December 21, 2021, David B. Schottenstein and Richard J. Berman each resigned as a director of the Company, effective December 21, 2021. On April 29, 2022, the Company received two Nasdaq Staff Deficiency Letters indicating that, as a result of the resignations of Messrs. Schottenstein and Berman, the Company failed to comply with (i) Nasdaq’s independent director requirement for continued listing as set forth in Listing Rule 5605 and (ii) the audit committee requirements for continued listing set forth in Rule 5605 of the Nasdaq Listing Rules.
Nasdaq Listing Rule 5605(b)(1) requires that the Company maintain a board of directors comprised of a majority of independent directors. Following the resignations of Messrs. Schottenstein and Berman, the Company’s board if directors does not consist of a majority of independent directors. The Nasdaq deficiency letter relating to this deficiency indicated that the Company is not eligible for a cure period. Accordingly, the Company has 45 calendar days (or until June 13, 2022) to submit a plan to regain compliance. If the Company’s plan of compliance is accepted, Nasdaq may grant an extension of up to 180 calendar days from April 29, 2022 to evidence compliance.
Nasdaq Listing Rule 5605(c)(2) requires that the Company have an audit committee comprised of at least three members who meet the qualifications set forth in such rule. With the resignation of Mr. Berman, the Company’s audit committee currently consists of only two independent directors. In accordance with Nasdaq Listing Rule 5605(c)(4), Nasdaq has provided the Company with a cure period, until the earlier of (i) the Company’s next annual shareholders’ meeting, (ii) June 20, 2022, if the next annual shareholders’ meeting is held before June 20, 2022, or (iii) December 21, 2022, in order to regain compliance. In the event that the Company does not regain compliance by this date, Nasdaq rules require the Staff to provide written notification to the Company that its securities will be delisted. At that time, the Company may appeal the delisting determination to a Hearings Panel.
The Company has been taking steps to identify new director candidates to replace Messrs. Schottenstein and Berman to regain compliance with Nasdaq Listing Rule 5605(b)(1) and Rule 5605(c)(2). The Company is in the process of selecting suitable candidate and expects to regain compliance with both Nasdaq Listing Rules.
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Item 9.01 Exhibits
| 10.1 | SECOND & FIRST AMENDMENTS TO BINDING LETTER OF INTENT | |
| 10.2 | BINDING LETTER OF INTENT | |
| 104 | Cover Page Interactive Data File (the cover page XBRL tags are embedded within the inline XBRL document) |
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| CUENTAS INC. | ||
| Dated: May 3, 2022 | By: | /s/ Jeffery D. Johnson |
| Jeffery D. Johnson | ||
| Chief Executive Officer | ||
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Exhibit 10.1
SECOND & FIRST AMENDMENTS TO BINDING LETTER OF INTENT
SECOND AMENDMENT TO BINDING LETTER OF INTENT
THIS SECOND AMENDMENT TO BINDING LETTER OF INTENT (the “Second Amendment”) is entered into April 27, 2022, SDI Black 011, LLC, a New York limited liability company located at 1091 Yonkers Avenue, Yonkers, New York 10704 (hereinafter collectively “Seller”), and Sahedabanu Sohel Kapadiai and Sohel Basir Kapadia, the managing members and owners of Seller (hereinafter collectively “Owners”), and Cuentas, Inc., a Florida corporation located at 235 Lincoln Road, Suite 210, Miami Beach, Florida 33139 (“Buyer”).
WHEREAS on or about October 29, 2021, Seller, including as of that date, Mango Tel LLC, a Wyoming limited liability company “Mango Tel”), owned by Fisk Holdings, LLC, a New York limited liability company located at 1091 Yonkers Avenue, Yonkers, New York 10704, and Buyer entered into that certain Non-binding Letter of Intent (the “NLOI”) whereby the parties conducted their due diligence regarding the desirability of the proposed purchase of the assets of Seller by Buyer;
WHEREAS on or about January 3, 2022, Seller, including at that time Mango Tel, Owners and Buyer entered into that certain Binding Letter of Intent (the “BLOI”);
WHEREAS on or about February 11, 2022, Seller, including at that time Mango Tel, Owners and Buyer entered into that Amendment to Binding Letter of Intent (the “First Amendment”) which amended certain terms of the BLOI, including without limitation, excluding the assets of Mango Tel from the contemplated Purchased Assets, and, accordingly, removing Mango Tel as a party from the contemplated transaction and reducing the Purchase Price of the Purchase Assets to TWO MILLION NINE HUNDRED SEVENTY-SIX THOUSAND DOLLARS ($2,976,000.00); and
WHEREAS as of the date set forth above, the parties hereto have agreed to enter into this Second Amendment to amend certain of the terms and conditions of the First Amendment and the BLOI as set forth below.
ACCORDINGLY, the parties covenant and agree as follows:
1. Recitals: The above recitals are true and correct and form a part of the parties’ agreement.
2. Conflict Between Agreements: The terms and conditions of the First Amendment and the BLOI, attached hereto as Composite Exhibit A, are incorporated herein by reference, and shall remain in full force and effect, subject to the terms and conditions set forth in this Second Amendment. To the extent there is a conflict between the terms and conditions of this Second Amendment and the terms and conditions of the First Amendment or the BLOI, the terms and conditions of this Amendment shall control. The capitalized terms in the First Amendment and the BLOI are incorporated herein unless otherwise modified in this Amendment.
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3. Definitive Asset Purchase Agreement: As contemplated by the parties, the material terms and conditions of the transaction shall be set forth in a definitive asset purchase agreement (“APA”) that shall have the customary representations and warranties as is standard in the business including a detailed listing of the Purchased Assets being acquired by the Buyer from the Seller. The parties shall execute the APA on or before May 8, 2022. The APA is subject to approval by the Board of Directors of Buyer at its absolute and sole discretion; and, accordingly, if the Board of Directors of Directors elects not to approve the APA for whatever reason on or before May 8, 2022, including without limitation, insufficiency of the detailed listing of the Purchased Assets, at its sole and absolute discretion, the APA, the Second Amendment, the BLOI, and/or NLOI and the parties shall be released from any and all obligations arising thereunder including the termination penalty set forth in paragraph 11 below.
4. Closing Date: The closing date for the APA shall be as agreed by the parties in writing but not later than five (5) business days following expiration of the Bulk Sale Notice as defined in paragraph 9 below (the “Closing Date”) or as otherwise defined in the APA however, under no circumstances shall the Closing Date be after May 20, 2022.
5. Purchase Price: The Purchase Price for the Purchased Assets of TWO MILLION NINE HUNDRED SEVENTY-SIX THOUSAND DOLLARS ($2,976,000.00) shall be funded as follows:
a. On or before five (5) business days following the execution of this Second Amendment by the parties hereto, Buyer shall pay into the escrow trust account of the Buyer’s Escrow Agent as defined in paragraph 7 below, ONE MILLION DOLLARS ($1,000,000.00) to be held in trust under the terms and conditions of the Escrow Agreement as defined below in paragraph 7 below; and
b. On or before five (5) business days before the Closing Date, Buyer shall pay into the escrow trust account of Buyer’s Escrow Agent, the remaining Purchase Price of ONE MILLION NINE HUNDRED SEVENTY-SIX THOUSAND DOLLARS ($1,976,000.00, the “Remaining Purchase Price”).
c. At the Closing, Owners shall transfer one hundred percent (100%) of the membership interest in Cuentas SDI, as that term is defined in paragraph 6 of the BLOI attached as Exhibit A hereto, to Buyer and cause Seller to deliver acceptable bill of sale, assignments of contracts, and all other title documents as necessary to transfer title in the Purchased Assets free and clear of any liens, claims, and encumbrances to Buyer or Cuentas SDI at Buyer’s sole discretion.
6. Owners’ Escrow Funding Obligation: On or before eight (8) business days following the execution of this Second Amendment by the parties hereto, Owners shall pay into the escrow trust account of the Seller’s Escrow Agent, as defined in paragraph 7 below, ONE MILLION DOLLARS ($1,000,000.00) to be held in trust under the terms and conditions of the Escrow Agreement as defined below in paragraph 7 below.
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7. Escrow Agents and Escrow Agreements:
a. Buyer’s escrow agent shall be Gary M. Murphree, Esq., AM Law LLC, 10743 SW 104th Street, Miami Florida 33176 (“Buyer’s Escrow Agent”) to hold the deposits from Buyer as set forth in paragraphs 5 above (the “Buyer’s Escrow Funds”). The Buyer’s Escrow Agent shall circulate a draft proposed Escrow Agreement subject to revision and approval by the parties hereto and the Escrow Agent. The Escrow Agreement shall set forth the duties and obligations of the Escrow Agent and the terms and conditions of the Escrow Agent’s release of the Escrow Funds to satisfy in full of the SBA Loan Obligation owed by Seller by direct wire transfer of Buyer’s Escrow Funds to the SBA at Closing of the APA defined in paragraph 3 above.
b. Owner’s escrow agent shall be Geist Schwarz & Jellinek, PLLC, who shall serve as Escrow Agent (“Owner’s Escrow Agent”) to hold the deposit from Owner as set forth in paragraph 6 above (the “Owners’ Escrow Funds”). The Owners’ Escrow Agent shall circulate a draft proposed Escrow Agreement subject to revision and approval by the parties hereto and the Escrow Agent. The Escrow Agreement shall set forth the duties and obligations of the Escrow Agent and the terms and conditions of the Escrow Agent’s release of the Escrow Funds to satisfy in full of the SBA Loan Obligation owed by Seller by direct wire transfer of Owners’ Escrow Funds to the SBA at Closing of the APA defined in paragraph 3 above.
c. Collectively the Buyer’s Escrow Agent and Seller’s Escrow Agent shall be referred to collectively as the “Escrow Agents”.
8. Satisfaction of Seller’s SBA Loan Obligation: On or before five (5) business days following the execution of this Second Amendment by the parties, the Escrow Agents shall obtain from the SBA a payoff estoppel letter setting forth the outstanding loan balance, including principal, interest and applicable charges due under the applicable SBA loan documents with a per diem interest amount that will allow the parties to calculate the payoff amount necessary to satisfy in full the indebtedness owed by Seller to the SBA (the “SBA Indebtedness”) and obtain a release of the recorded liens and security interest and UCC-1s, and wiring instructions setting forth the financial account that SBA where it wants the payoff funds transferred to at the Closing (“SBA Wiring Instructions”). At the Closing on the Closing Date, the parties shall provide written notice signed by all of the parties, including the SBA Wiring Instructions, directing the Escrow Agents to wire the $2,976,000.00 plus the $1,000,000.00 for a total of $3,976,000.00, including any additional funds provided by Owners under subparagraph 10(c) below, to the SBA in accordance with the SBA Wiring Instruction as necessary to satisfy in full the SBA Indebtedness and obtain the release of any and all liens, claims, and encumbrances of the SBA against the Purchased Assets.
9. Bulk Sales Notice Requirements: The Buyer shall on or before April 29, 2022 send a notice as contemplated by UCC Article Six Bulk Sales Notice provisions as follows. The Buyer has already been provided a complete list of all creditors of Seller who may have a claim against the Seller or the assets of the Seller. On or before April 29, 2022 the standard form bulk sale notice shall be sent to all creditors by Buyer setting forth the proposed sale and providing an address for creditors to make an inquiry or claim against the Seller or the assets of the Seller. It shall be the responsibility of the Seller and Owners to resolve any and all claims filed within the 20-day notice period (“Bulk Sale Notice”) either through a writing signed by the claimant releasing the Seller and the assets from any further claims, or through escrow of sufficient funds to cover the amount of the claim as alleged by the creditor. The parties shall review all claims, and the resolution or escrow by Seller to satisfy all claims filed, no later than May 18, 2022, and if Buyer, at its sole discretion, is satisfied that each asserted claim has been resolved by a writing signed by the creditor, or an acceptable escrow amount is deposited by Seller in its attorney’s trust account to cover all unreleased alleged claims, the parties shall proceed to closing of the asset purchase transaction on or before the Closing Date.
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10. Conditions to Closing:
a. As set forth in paragraph 6 above, if any creditors provide timely notice of a claim against Seller or the Purchased Assets, then as a condition precedent to closing the Seller and Owners shall reduce the Purchase Price or escrow additional funds with the Escrow Agent sufficient to fully satisfy all such asserted claims as determined by the Buyer at its reasonable discretion.
b. The aggregate funds on deposit with the Escrow Agent aggregating $3,976,000.00 are insufficient to satisfy in full the SBA Loan Obligation as set forth in the estoppel letter to be provided by the SBA/lender, then Owners shall deposit any additional funds as determined by the Escrow Agent as necessary to satisfy in full the outstanding SBA Loan Indebtedness then the Owners shall fund the additional deposit by five (5) business days before the Closing.
11. Liquidating Damages Upon Default:
a. If after execution of the APA as provided in paragraph 3 above, if Seller and Owners fail to satisfy the conditions to closing in subparagraphs (a) or (b), the Buyer at its sole discretion may terminate this APA with written notice to the Seller and the Owners and the Escrow Agents. Upon receipt of the written notice of termination as set forth immediately above, Seller’s Escrow Agent shall deposit from the Seller’s Escrow Funds the $250,000 liquidation damages in the registry of a court of competent jurisdiction in Westchester County, New York and commence an interpleader action naming the parties and affording them notice to appear to determine their respective rights in the $250,000 liquidation damages and promptly return the remaining Seller’s Escrow Funds, less the $250,000 liquidating damages, to the Seller and Buyer’s Escrow Agent may promptly return the Buyer’s Escrowed Funds to Buyer.
b. If after execution of the APA as provided in paragraph 3 above, and the Buyer fails to fund the Remaining Purchase Price defined in subparagraph 5(b) above, the Owners may terminate the APA with written notice to the Buyer and the Escrow Agents. Upon receipt of the written notice of termination as set forth immediately above, Buyer’s Escrow Agent shall deposit from the Buyer’s Escrow Funds the $250,000 liquidation damages in the registry of a court of competent jurisdiction in Miami-Dade County, Florida and commence an interpleader action naming the parties and affording them notice to appear to determine their respective rights in the $250,000 liquidation damages and promptly return the remaining Buyer’s Escrow Funds to the Buyer and Owners’ Escrow Agent may promptly return the Owners’ Escrowed Funds to Owners.
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c. The parties stipulate that the $250,000 liquidating damages is an approximate estimate of the costs and expenses incurred by each party in pursuing this transaction and is intended solely as an estimate of reimbursable costs and expenses and is not intended to be a penalty.
d. Venue for any dispute over whether a party properly terminated the APA as set forth in subparagraphs (a) and (b) above and/or entitlement of a party to recovery of the $250,000 liquidating damages shall be on the county where the $250,000 liquidation damages are on deposit in the court registry. In any such interpleader, the parties agree to that their respective Escrow Agent is authorized to accept service of the interpleader complaint and summons and they waive any right to a jury trial on any and all issues.
12. Non-compete and non-solicitation: Seller and Owners and their officers and directors and all of its shareholders including Owners, separately and severally, agree that, for a period of two (2) years after closing, they will not, directly or indirectly, own, manage, operate, join in, control, or participate in the ownership, management, operation, or control of, or be connected with in any manner, any entity engaged in the business of Fintec and Telcom anywhere in the world.
13. Terms and Conditions: All terms and conditions of the First Amendment and the BLOI shall be remain in full force and effect unless other modified herein or in the APA.
By signing below each party agrees to be bound by this Second Amendment and the terms and conditions of the First Amendment and the BLOI except as modified by the terms and conditions of this Amendment and the APA.
BUYER:
By:
| /s/ Jeff Johnson | |
| Jeff Johnson | |
| CEO | |
| Cuentas, Inc. | |
| 235 Lincoln Road, Suite 210 | |
| Miami Beach, FL 33139 | |
| April 27, 2022 |
| SELLER: |
| /s/ Saheda Kapadia | |
| SDI Black 011, LLC, | |
| By: Saheda Kapadia | |
| Managing Member | |
| 1091 Yonkers Avenue | |
| Yonkers, New York 10704 | |
| April 27, 2022 |
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| OWNERS: | |
| /s/ Sohel Kapadia | |
| Sohel Kapadia | |
| April 27, 2022 | |
| /s/ Saheda Kapadia | |
| Saheda Kapadia | |
| April 27, 2022 |
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AMENDMENT TO BINDING LETTER OF INTENT
TillS AMENDMENT TO BINDING LEITER OF INTENT (the “Amendment”) is entered into February_, 2022, by and among Mango Tel LLC, a Wyoming limited liability company, owned by Fisk Holdings, LLC, a New York limited liability company located at 1091 Yonkers Avenue, Yonkers, New York 10704 and SDI Black 011, LLC, a New York limited liability company located at 1091 Yonkers Avenue, Yonkers, New York 10704 (hereinafter collectively “Seller”), and Sahedabanu Sobel Kapadiai and Sobel Basir Kapadia, the managing members and owners of Seller (hereinafter collectively “Owners”), and Cuentas, Inc., a Florida corporation located at 235 Lincoln Road, Suite
210, Miami Beach, Florida 33139 (“Buyer”).
WHEREAS on or about October 29, 2021, Seller and Buyer entered into that certain Non-binding Letter of Intent (the ’‘NLOI”) whereby the parties conducted their due diligence regarding the desirability of the proposed purchase of the assets of Seller by Buyer. A copy of the executed NLOI is attached as Exhibit A to the BLOI defmed immediately below, and the terms and conditions of the executed NLOI are incorporated herein by reference into this Amendment;
WHEREAS on or about January 3, 2022, Seller, Owners and Buyer entered into that certain Binding Letter oflntent (the “BLOI”), a copy of which is attached hereto as Exhibit A hereto;
WHEREAS as of the date set forth above the parties hereto have agreed to enter into this Amendment to the Binding Letter of Intent amending certain terms and conditions of the Binding Letter of Intent as set forth below;
ACCORDINGLY, the parties covenant and agree as follows:
1. Recitals: The above recitals are true and correct and form a part of the parties’ agreement.
2. Conflict Between Agreements: The terms and conditions of the BLOI executed by the parties and attached hereto as Exhibit A, are incorporated herein by reference, and shall remain in full force and effect, subject to the terms and conditions set forth in this Amendment. To the extent there is a conflict between the terms and conditions of this Amendment, and the terms and conditions of the BLOI, the terms and conditions of this Amendment shall control. The capitalized terms in the BLOI and NLOI are incorporated herein unless otherwise modified in this Amendment.
3. Assets To Be Purchased: Buyer shall acquire all of the assets of Seller which include without limitation the Seller’s blackwireless.com domain and other assets as set forth on Schedule A attached to the BLOI but as amended herein to specifically exclude the asset of Mango Tel LLC listed on Schedule A as “rnymangornobile.com” (the “Purchased Assets”). Any asset of Seller not listed on either Schedule A or Schedule B shall be included in the Purchased Assets.
4. Purchase Price: The Purchase Price for the Purchased Assets of THREE MILLION TWO HUNDRED THOUSAND DOLLARS ($3,200,000.00) shall be reduced by seven percent (7%) or TWO HUNDRED TWENTY-FOUR THOUSAND DOLLARS ($224,000.00) to TWO MILLION NINE HUNDRED SEVENTY-SIX DOLLARS ($2,976,000.00) in consideration for the assets of Mango Tel LLC being excluded from the Purchased Assets. The Final Escrow Purchase Price be paid by Buyer shall be reduced by the $224,000.00.
5. As a result of the assets of Mango Tel LLC being excluded from the Purchased Assets pursuant to this Amendment, Mango Tel LLC shall no longer be a party to the (i) contemplated asset purchase agreement or (ii) further amendments or modifications, if any, to the BLOI as amended by this Amendment.
6. Paragraph 6 of the NLOJ regarding Buyer entering into satisfactory employee agreements with the employees of the Seller is void and of no further force and affect. At the sole and absolute discretion of Buyer, Buyer may enter into individual employment agreements with employees of Seller as it may desire but has no legal obligation whatsoever to do so.
7. All terms and conditions of the BLOI shall be remain in full force and effect unless other modified above.
By signing below each party agrees to be bound by this Amendment and the terms and conditions of the BLOI except as modified by the terms and conditions of this Amendment.
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BUYER:
| By: | |
| /s/ Jeff Johnson | |
| Jeff Johnson CEO | |
| Cuentas, Inc. | |
| 235 Lincoln Road, Suite 210 | |
| Miami Beach, FL 33139 | |
| SELLER: | |
| By: | |
| /s/ Sohel Kapadia | |
By: Fisk Holdings, LLC By: Sohel Kapadia Managing Member |
|
| 1091 Yonkers Avenue | |
| Yonkers, New York 10704 |
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| /s/ Saheda Kapadia | |
SDI Black 011, LLC, By: Saheda Kapadia Managing Member |
|
| 1091 Yonkers Avenue | |
| Yonkers, New York 10704 | |
| /s/ Saheda Kapadia | |
| Saheda Kapadia |
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Exhibit 10.2
BINDING LETTER OF INTENT
THIS BINDING LETTER OF INTENT (the “ Agreement ”) entered into December , 2021, sets forth certain binding understandings and certain binding covenants with respect to the purchase of the assets of Mango Tel LLC, a Wyoming limited liability company, owned by Fisk Holdings, LLC, a New York limited liability company located at 1091 Yonkers Avenue, Yonkers, New York 10704 and SDI Black 011, LLC, a New York limited liability company located at 1091 Yonkers Avenue, Yonkers, New York 10704 (hereinafter collectively “ Seller ”), and Sahedabanu Sohel Kapadiai and Sohel Basir Kapadia, the managing members and owners of Seller (hereinafter collectively “ Owners”), by Cuentas, Inc., a Florida corporation located at 235 Lincoln Road, Suite 210, Miami Beach, Florida 33139 ( “Buyer” ).
WHEREAS on or about October 29, 2021, Seller and Buyer entered into that certain Non-binding Letter of Intent (the “ NLOI ”) whereby the parties conducted their due diligence regarding the desirability of the proposed purchase of the assets of Seller by Buyer. A copy of the executed NLOI is Exhibit A hereto, and the terms and conditions of the executed NLOI are incorporated by reference into this Agreement;
WHEREAS as of the date set forth above the parties hereto have agreed to enter into this Binding Letter of Intent so they may consummate the contemplated transaction through entry into a final Asset Purchase Agreement;
ACCORDINGLY, the parties covenant and agree as follows:
1. Recitals: The above recitals are true and correct and form a part of the parties’ agreement.
2. Conflict Between Agreements: The terms and conditions of the NLOI executed by the parties and attached hereto as Exhibit A shall remain in full force and effect subject to the additional terms and conditions set forth in this Agreement. To the extent there is a conflict between the terms and conditions of this Agreement and the terms and conditions of the NLOI, the terms and conditions of this Agreement shall control.
3. Assets To Be Purchased: Buyer shall acquire all of the assets of Seller which include without limitation the Seller’s blackwireless.com domain and other assets as set forth on Schedule A attached hereto (the “ Purchased Assets ”). Seller shall retain only those assets set forth on Schedule B attached hereto (the “ Retained Assets”). Any asset of Seller not listed on either Schedule A or Schedule B shall be included in the Purchased Assets.
4. Purchase Price: Buyer agrees to purchase, and Seller agrees to sell, the Purchased Assets for THREE MILLION TWO HUNDRED THOUSAND DOLLARS ($3,200,000.00) (the “ Purchase Price ”) to be paid by Buyer as follows:
a. Within three business days of execution of this Agreement, Buyer shall pay into the Buyer’s counsel’s trust account in cleared funds TWO MILLION DOLLARS ($2,000,000.00) to be held in escrow (the “ Initial Escrowed Purchase Price ”) pending the closing (the “Closing”) of the contemplated Purchase and Sale Agreement (the “ PSA ”), and written instructions signed by each party to the PSA directing Buyer’s counsel, AM Law LLC (the “ Escrow Agent ”), to wire transfer the Initial Escrowed Purchase Price directly to the Small Business Administration (SBA) as partial satisfaction of the Seller’s approximate FOUR MILLION TWO HUNDRED THOUSAND DOLLAR ($4,200,000.00) outstanding loan balance owed to the SBA (the “ SBA Loan ”); and
b. on or before the Closing, Buyer shall pay into the trust account of Escrow Agent the remaining Purchase Price of ONE MILLION TWO HUNDRED THOUSAND DOLLARS ($1,200,000.00) to be held in escrow (the “ Final Escrowed Purchase Price ”), pending written instructions signed by each party to the PSA directing the Escrow Agent to wire transfer the Final Escrowed Purchase Price directly to the Small Business Administration (SBA) as partial satisfaction of the Seller’s approximate FOUR MILLION TWO HUNDRED THOUSAND DOLLAR ($4,200,000.00) outstanding loan balance owed to the SBA (the “ SBA Loan ” ).
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5. Owner Repayment Obligation re SBA Loan: on or before the Closing, Owner shall pay directly to the SBA in cleared funds the SBA Loan which is estimated to have an outstanding balance in the approximate amount of ONE MILLION DOLLARS ($1,000,000) after the payments by the Escrow Agent of the Initial Escrowed Purchase Price and Final Escrowed Purchase Price. Owner shall be solely responsible for satisfying in full the remaining SBA Loan balance outstanding as of May 17, 2022, after deducting the payments by the Escrow Agent of the Initial Escrowed Purchase Price and Final Escrowed Purchase Price.
6. Transfer of Assets By Seller To Buyer’s Newco: After execution this Agreement, Buyer shall form a newco titled Cuentas SDI, LLC, a Florida limited liability company (“ Newco ” ). Once Newco has set up appropriate bank accounts, Seller shall immediately transfer all revenue transactions from Seller’s existing credit card services and direct deposits from its existing bank accounts to effectuate all revenue sources of Seller being deposited into the bank account(s) opened in the name of the Newco. As soon as practicable after execution of this Agreement, Seller shall deliver to Buyer all of the remaining Purchased Assets into the custody and control of Newco. A condition of the PSA is that at closing Seller shall deliver a bill of sale or assignment of license or other intellectual property rights as the case maybe, in favor of Newco, in a form acceptable to Buyer, transferring title to the Purchased Assets to Newco free and clear of any and all liens, claims, or encumbrances. Until the Closing, Seller shall own 100% of the interest in the Newco and shall assign at Closing the 100% interest in the Newco to Buyer. The managing members of the Newco until closing shall be Jeff Johnson, Arik Maimon, and Sahedabanu Sohel Kapadiai. After the Closing, Buyer shall appoint at its sole discretion the managing members of the Newco.
7. Indemnification of Buyer by Seller and Owner: The parties waive compliance with the provisions of any applicable state version of the Uniform Commercial Code relating to bulk transfers in connection with the transactions contemplated by this Agreement; provided, however, Seller and Owner agree to indemnify and hold Buyer harmless from and against any liability for any amount owing to Seller’s creditors with respect to the Purchased Assets or the business operation of Seller being transferred to Buyer pursuant to this Agreement, which liability arose prior to the transfer of the Purchased Assets and business operations from Seller to Buyer under this Agreement. Buyer agrees to indemnify and hold Seller harmless from and against any liability for any amount owing with respect to the Purchased Assets and business operations of the Seller transferred by Seller to Buyer pursuant to this Agreement, which liability arises subsequent to the transfer of the Purchased Assets and business operations from Seller to Buyer under this Agreement.
8. Purchase and Sale Agreement: Buyer, Owner, and Seller shall negotiate in good faith and enter into the PSA containing the terms and conditions set forth in this Agreement on or before December 31, 2021. The parties admit that this Agreement is binding on each of them and that they will use their best efforts and good faith to enter into the PSA with terms and conditions consistent with this Agreement.
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9. Expedited Binding Arbitration: Buyer, Owner, and Seller agree that any dispute regarding this Agreement or dispute over the final terms and conditions of the PSA will be settled by binding arbitration according to the rules of the American Arbitration Association (the “ AAA ”) conducted in Miami, Florida by the AAA. The parties agree to expedite the necessary arbitration as quickly as the rules of the AAA permit. The parties agree to mutually select the arbitrator or the will promptly notify the AAA they are unable to agree and the AAA will select an arbitrator with 20 plus years of experience in complex commercial asset purchases or business acquisitions. The parties agree to follow and implement the fmal ruling of the Arbitrator without recourse to an appeal or the necessity of the prevailing party having to file the ruling with the circuit court to have the ruling converted into a fmal judgment. This provision is a material consideration in the parties entering into this agreement.
10. Seller represents and warrants that the gross revenues of the two entities whose assets are the subject matter of this Agreement have combined gross revenues of nine million dollars ($9,000,000.00) for the year ending 2021 is materially less than said amount, Buyer shall have the option at its sole discretion to cancel this Agreement by providing written notice to Seller. If the Buyer elects to cancel this Agreement, this Agreement and the NLOI shall be null and void except for any non-disclosure provisions.
II. Time is of the Essence: Time is of the essence in the performance of the parties to the obligations and conditions of the terms of the NLOI and this Agreement.
11. Waiver of Jury Trial: EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAlVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL ACTION, PROCEEDING, CAUSE OF ACTION OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT, INCLUDING ANY EXHIBITS AND SCHEDULES ATTACHED TO THIS AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED HEREBY.
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By signing below each party agrees to be bound by this Agreement and the terms and conditions of the NLOI except as modified by the terms and conditions of this Agreement.
| BUYER: | |
| By: | |
| /s/ Jeff Johnson | |
| Jeff Johnson | |
| CEO | |
| Cuentas, Inc. | |
| 235 Lincoln Road, Suite 210 | |
| Miami Beach, FL 33139 | |
| SELLER: | |
| /s/ Sohel Kapadia | |
| Mango Tel LLC | |
| By: Fisk Holdings, LLC | |
| By: Sohel Kapadia | |
| Managing Member | |
| 1091 Yonkers Avenue | |
| Yonkers, New York 10704 | |
| /s/ Saheda Kapadia | |
| SDI Black 011, LLC, | |
| By: Saheda Kapadia | |
| Yonkers, New York 10704 |
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| OWNERS: | |
| /s/ Sohel Kapadia | |
| Sohel Kapadia | |
| /s/ Saheda Kapadia | |
| Saheda Kapadia |
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