Exhibit 10.1

EXECUTION VERSION

NOTE AND WARRANT PURCHASE AGREEMENT

This Note and Warrant Purchase Agreement (this “Agreement”) is dated as of December 31, 2019, between Cuentas Inc., a Florida corporation (“Cuentas” or the “Company”), and CIMA Telecom, Inc., a Florida corporation doing business as “CIMA Group” (including its successors and assigns, the “Purchaser” or “CIMA”).

WHEREAS, subject to the terms and conditions set forth in this Agreement and pursuant to Section 4(a)(2) of the Securities Act of 1933, as amended (the “Securities Act”) and Rule 506 of Regulation D promulgated under the Securities Act, and the Company desires to issue and sell to Purchaser, and Purchaser desires to purchase from the Company, a convertible promissory note of the Company, as more fully described in this Agreement.

NOW, THEREFORE, IN CONSIDERATION of the mutual covenants contained in this Agreement, and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the Company and Purchaser agree as follows:

ARTICLE I.

DEFINITIONS

1.1 Definitions. In addition to the terms defined elsewhere in this Agreement: (a) capitalized terms that are not otherwise defined herein have the meanings given to such terms in the Debenture (as defined herein), and (b) the following terms have the meanings set forth in this Section 1.1:

“A&R Articles of Incorporation” means the Amended and Restated Articles of Incorporation of the Company, as amended and restated in accordance with the terms of this Agreement.

“A&R Bylaws” means the Amended and Restated Bylaws of the Company, as amended and restated in accordance with the terms of this Agreement.

“Affiliate” means any Person that, directly or indirectly through one or more intermediaries, controls or is controlled by or is under common control with a Person, as such terms are used in and construed under Rule 405 under the Securities Act.

“Auris” means Auris, LLC, a Florida limited liability company and a wholly owned subsidiary of CIMA, together with any successor thereto.

“Board of Directors” means the board of directors of the Company.

“Budgets” shall mean the budget for the month ending and fiscal year ending December 31, 2020, and the schedule and payment plan for Cuentas to pay all accounts payable which are currently more than 30 days past due by December 31, 2019, as agreed upon by CIMA, Cuentas and Dinar, and as set forth on Schedule II attached hereto.

“Business Day” means any day except any Saturday, any Sunday, any day which is a federal legal holiday in the United States or any day on which banking institutions in the State of New York are authorized or required by law or other governmental action to close.

“CIMA” means CIMA Telecom, Inc., a Florida Corporation (D/B/A “CIMA Group”), together with any successor thereto or assign thereof.

“Closing” means the closing of the purchase and sale of the Debenture and the Warrant pursuant to Section 2.1.

“Closing Date” means the Trading Day on which all of the Transaction Documents have been executed and delivered by the applicable parties thereto, and all conditions precedent to (i) the Purchaser’s obligations to deliver the Licensed Technology and (ii) the Company’s obligations to deliver the Debenture and the Warrant, in each case, have been satisfied or waived.

“Commission” means the United States Securities and Exchange Commission.

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

“Common Stock Equivalents” means any securities of the Company or the Subsidiaries which would entitle the holder thereof to acquire at any time Common Stock, including, without limitation, any debt, preferred stock, right, option, warrant or other instrument that is at any time convertible into or exercisable or exchangeable for, or otherwise entitles the holder thereof to receive, Common Stock.

“Company Counsel” means Ellenoff Grossman & Schole LLP with offices located at 1345 Avenue of the Americas, 11^th Floor, New York, NY 10105.

“Cuentas Executive Officers” shall mean the current executive officers of the company listed on Schedule I attached hereto.

“Debenture” means the 3% Convertible Debenture issued by the Company to the Purchaser hereunder, substantially in the form of Exhibit A attached hereto, as may be amended, restated, modified or supplemented from time to time.

“Dinar” means Dinar Zuz, LLC, together with any successor thereto.

“Disclosure Schedules” shall have the meaning ascribed to such term in Section 3.1.

“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.

“GAAP” shall have the meaning ascribed to such term in Section 3.1(ii)(f).

“Governmental Authority” means (a) the government of (i) the United States of America or any state or other political subdivision thereof, or (ii) any other jurisdiction in which the Company or any Subsidiary conducts all or any part of its business, or which asserts jurisdiction over any properties of the Company or any Subsidiary; or (b) any entity exercising executive, legislative, judicial, regulatory or administrative functions of, or pertaining to, any such government.

“Knetik” means Knetik, Inc., a Delaware corporation and a wholly owned subsidiary of CIMA, together with any successor thereto.

“License Agreement” shall mean that certain Platform License Agreement, dated as of the date hereof by and among (i) the Company, (ii) CIMA, (iii) Knetik, and (iv) Auris, attached hereto as Exhibit C, as may be amended, restated, modified or supplemented from time to time.

“Licensed Technology” means the technology listed on Schedule [A] attached to the License Agreement.

“Liens” means a lien, charge, pledge, security interest, encumbrance, right of first refusal, preemptive right or other restriction.

“Material Adverse Effect” shall have the meaning assigned to such term in Section 3.1(i).

“Maximum Rate” shall have the meaning ascribed to such term in Section 5.16.

“NASDAQ” shall mean the Nasdaq Capital Market.

“Person” means an individual or corporation, partnership, trust, incorporated or unincorporated association, joint venture, limited liability company, joint stock company, government (or an agency or subdivision thereof) or other entity of any kind.

“Pledge Agreement” means that certain Pledge Agreement, dated as of the date hereof, by and among (i) the Company, (ii) CIMA, (iii) Knetik, and (iv) Auris, attached hereto as Exhibit D.

“Proceeding” means an action, claim, suit, investigation or proceeding (including, without limitation, an informal investigation or partial proceeding, such as a deposition), whether commenced or threatened.

“Purchaser Party” shall have the meaning ascribed to such term in Section 4.4.

“Required Approvals” means any items requiring additional approvals as set forth in Section 4.6 and Section 4.7.

“Rule 144” means Rule 144 promulgated by the Commission pursuant to the Securities Act, as such Rule may be amended from time to time, or any similar rule or regulation hereafter adopted by the Commission having substantially the same effect as such Rule.

“SEC” means the U.S. Securities and Exchange Commission.

“SEC Reports” shall have the meaning ascribed to such term in Section 3.1(ii)(f).

“Securities” means collectively, the Debenture, the Warrant and the Underlying Shares.

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

“Series B Preferred Stock” means the Series B Preferred Stock of the Company.

“Short Sales” means all “short sales” as defined in Rule 200 of Regulation SHO under the Exchange Act (but shall not be deemed to include locating and/or borrowing shares of Common Stock). 

“Side Letter Agreement” means that certain Side Letter Agreement, dated as of the date hereof, by and among the Company, the Purchaser, Dinar, Michael De Prado and Arik Maimon.

“Source Code Escrow Agreements” means collectively, (i) that certain Source Code Escrow Agreement, by and among the Company, the Purchaser and Knetik, dated as of the date hereof, and (ii) that certain Source Code Escrow Agreement, by and among the Company, the Purchaser and Auris, dated as of the date hereof, each as may be amended, restated, modified or supplemented from time to time, each attached hereto as Exhibit E.

“Subsidiaries” means Knetik, Auris and any other subsidiary of the Company that may exist from time to time.

“Trading Day” means a day on which the principal Trading Market is open for trading.

“Trading Market” means any of the following markets or exchanges on which the Common Stock is listed or quoted for trading on the date in question: the OTCQB or OTCOX, NYSE American, the Nasdaq Capital Market, the Nasdaq Global Market, the Nasdaq Global Select Market, the New York Stock Exchange (or any successors to any of the foregoing).

“Transaction Documents” means this Agreement, the Debenture, the Warrant, the Voting Agreement, the Side Letter Agreement, the License Agreement, the Source Code Escrow Agreements, the Pledge Agreement, and all exhibits and schedules thereto and hereto and any other documents or agreements executed by the Company in connection with the transactions contemplated hereunder.

“Underlying Shares” means the shares of Common Stock issuable upon the conversion of the Debenture and the shares of Common Stock issuable upon exercise of the Warrant, each pursuant to the terms and conditions of the Transaction Documents.

“Voting Agreement and Proxy” means that certain Voting Agreement and Proxy, dated as of the date hereof, by and among the Company, the Purchaser, Dinar, Michael De Prado and Arik Maimon, as may be amended, restated, modified or supplemented from time to time.

“Warrant” means that certain warrant to purchase shares of Common Stock of the Company, substantially in the form of Exhibit B attached hereto, as may be amended, restated, modified or supplemented from time to time, subject to the terms and conditions set forth herein.

“Written Consent of the Board” means the written resolutions of the Board of Directors authorizing the issuance of the Debenture and the Warrant, the reservation of the shares into which the Debenture is convertible and for which the Warrant is exercisable for, the approval of the Transaction Documents and any and all consent required in order to effectuate the transactions contemplated thereby.

ARTICLE II.

PURCHASE AND SALE

2.1 Closing. On the Closing Date, upon the terms and subject to the conditions set forth herein, substantially concurrent with the execution and delivery of this Agreement by the parties hereto, the Company agrees to sell, and the Purchaser agrees to purchase, (i) the Warrant and (ii) the Debentures in the principal amount of $9,000,000. Upon conversion of the Debenture, the Purchaser shall be issued that number of shares of Common Stock of the Company equal to twenty-five percent (25%) of the fully-diluted issued and outstanding shares of Common Stock of the Company (not taking into account the Warrant) as of December 31, 2019. Upon exercise of the Warrant, the Purchaser shall be entitled to purchase from the Company an aggregate of duly authorized, validly issued, fully paid and nonassessable shares of the Common Stock equal to twenty-five percent (25%) of total outstanding shares of the Company on a fully-diluted basis (taking into account any warrants, options, debt convertible into shares or other rights underlying shares of the Company) as of December 31, 2019; provided, however, that the Warrant shall increase to include 25% of any additional shares (or warrants, options, debt convertible into shares or other rights underlying shares of the Company) of the Company only to the extent such shares are issued in breach of the Voting Agreement. The Company shall deliver to the Purchaser the Debenture and the Warrant, and the Purchaser shall deliver the Licensed Technology to the Company, and the Company and Purchaser shall deliver the other items set forth in Section 2.2 deliverable at the Closing. Upon satisfaction of the covenants and conditions set forth in Sections 2.2 and 2.3, the Closing shall occur at the offices of Company Counsel or such other location as the parties shall mutually agree.

2.2 Deliveries.

(a) On or prior to the Closing Date, the Company shall deliver or cause to be delivered to the Purchaser the following:

(i) this Agreement duly executed by the Company;

(ii) the Debenture, duly executed by the Company, with a principal amount equal to $9,000,000;

(iii) the Warrant, duly executed by the Company;

(iv) standalone Non-Competition, Non-Solicitation, Confidentiality And Intellectual Property Assignment Agreement in substantially the same form as Exhibit F attached hereto, by and between the Company and (x) each of the Cuentas Executive Officers, and (y) each of the Company’s employees, consultants and contractors covering the Licensed Technology;

(v) the License Agreement, duly executed by the Company;

(vi) the Source Code Escrow Agreements, each duly executed by the Company;

(vii) the Pledge Agreement, duly executed by the Company;

(viii) the Voting Agreement and Proxy, duly executed by the Company; and

(ix) the Side Letter Agreement, duly executed by the Company.

(b) On or prior to the Closing Date, the Purchaser shall deliver or cause to be delivered to the Company the following:

(i) this Agreement duly executed by the Purchaser;

(ii) the License Agreement, duly executed by the Purchaser and the other parties thereto;

(iii) the Source Code Escrow Agreements, each duly executed by the Purchaser and the other parties thereto;

(iv) the Pledge Agreement, duly executed by the Purchaser and the other parties thereto;

(v) the Voting Agreement and Proxy, duly executed by the Purchaser and the other parties thereto; and

(vi) the Side Letter Agreement, duly executed by the Purchaser and the other parties thereto.

2.3 Closing Conditions.

(a) The obligations of the Company hereunder in connection with the Closing are subject to the following conditions being met or waived by the Purchaser:

(i) the accuracy in all material respects on (or, to the extent representations or warranties are qualified by materiality or Material Adverse Effect, in all respects) the Closing Date of the representations and warranties of the Purchaser contained herein (unless as of a specific date therein in which case they shall be accurate as of such date);

(ii) all obligations, covenants and agreements of the Purchaser required to be performed at or prior to the Closing Date shall have been performed; and

(iii) the delivery by the Purchaser of the items set forth in Section 2.2(b) of this Agreement.

(b) The obligations of the Purchaser hereunder in connection with the Closing are subject to the following conditions being met, each on terms and conditions acceptable to CIMA in its reasonable discretion, or waived in the sole discretion of CIMA:

(i) the accuracy in all material respects (or, to the extent representations or warranties are qualified by materiality or Material Adverse Effect, in all respects) when made and on the Closing Date of the representations and warranties of the Company contained herein (unless as of a specific date therein in which case they shall be accurate as of such date);

(ii) all obligations, covenants and agreements of the Company required to be performed at or prior to the Closing Date shall have been performed;

(iii) the delivery by the Company of the items set forth in Section 2.2(a) of this Agreement;

(iv) there shall have been no Material Adverse Effect with respect to the Company since the date hereof;

(v) from the date hereof to the Closing Date, trading in the Common Stock shall not have been suspended by the Commission or the Company’s principal Trading Market and, at any time prior to the Closing Date, trading in securities generally as reported by Bloomberg L.P. shall not have been suspended or limited, or minimum prices shall not have been established on securities whose trades are reported by such service, or on any Trading Market, nor shall a banking moratorium have been declared either by the United States or New York State authorities nor shall there have occurred any material outbreak or escalation of hostilities or other national or international calamity of such magnitude in its effect on, or any material adverse change in, any financial market which, in each case, in the reasonable judgment of the Purchaser, makes it impracticable or inadvisable to purchase the Securities at the Closing;

(vi) CIMA, Cuentas and Dinar shall cause the Board of Directors to authorize and approve an offering of debt or equity securities to be issued by Cuentas to raise up to $5,000,000, but no less than $3,000,000, of new capital within 120 days of the Closing Date;

(vii) the Budget shall have been agreed upon by CIMA, Cuentas and Dinar;

(viii) the Company shall have provided executed Non-Competition, Non-Solicitation, Confidentiality And Intellectual Property Assignment Agreement in substantially the same form as Exhibit D attached hereto from its employees, consultants and contractors covering the Licensed Technology to CIMA;

(ix) the A&R Articles of Incorporation, in a form duly acceptable to the Purchaser, duly authorized, shall have been executed, filed with and accepted by the Secretary of State of the State of Florida and the SEC pursuant to a Definitive Proxy Statement filed on Schedule 14A;

(x) Cuentas shall provide a copy of the A&R Bylaws, in a form acceptable to the Purchaser, which A&R Bylaws shall, among other things, provide the Company with the flexibility necessary to carry out its business plan and in order to be more consistent with Florida law, as it relates to the actions which are permissible by the Board and shareholders, respectively, which A&R Bylaws shall have been filed with and accepted by the SEC pursuant to a Definitive Proxy Statement filed on Schedule 14A;

(xi) Cuentas shall provide evidence reasonably acceptable to CIMA which confirms (i) that Cuentas has caused SDI Next Distribution LLC, a Florida limited liability company (“SDI”), to renegotiate its agreement with Fisk Holdings, LLC (“Fisk”) and (ii) the terms and conditions upon which Cuentas will fund a $500,000 capital contribution to SDI, and Fisk will provide at least 30,000 active point of sale locations for distribution of retail telecommunications and prepaid financial products and services, as contemplated by Cuentas’ related disclosure in its Annual Report on Form 10-K for the fiscal year ended December 31, 2018 (the “Form 10-K”); provided however, that all parties agree that any payments contemplated to be made by Cuentas to SDI shall not be effected or commenced until all such active points of sale locations for retail telecommunications and prepaid financial products and services are finalized; and

(xii) Cuentas shall provide evidence of Directors and Officers Liability Insurance policy, in an amount reasonably satisfactory to CIMA.

2.4 Covenants.

(a) In the event that CIMA, in its sole discretion, waives the closing condition of the Cuentas to:

(i) (A) Properly filed the A&R Articles of Incorporation with and accepted by with the Secretary of State of the State of Florida and the SEC, and (B) to effect and properly approve and file the A&R Bylaws with the SEC, in accordance with Sections 2.3(b)(ix) and (x) above, respectively, then Cuentas agrees that it shall take all necessary actions to properly file the A&R Articles of Incorporation with the Secretary of State of the State of Florida and to effect and properly approve the A&R Bylaws no later than June 30, 2020;

(ii) provide evidence of the Company’s obtained Directors and Officers Liability Insurance policy, in an amount reasonably satisfactory to CIMA, in accordance with Section 2.3(b)(xii) above, then Cuentas agrees that it shall, within thirty (30) days following the Closing, shall provide evidence of Directors and Officers Liability Insurance policy, in an amount reasonably satisfactory to CIMA; and

(iii) consummate and effect any of the closing conditions set forth in Section 2.3(b), each to be effected as of the Closing, Cuentas agrees that it shall deliver and effect each of the closing conditions not so properly effected as of the Closing, no later than the effective date of the A&R Charter, as filed with and accepted by the Secretary of State of the State of Florida; provided, however, if such closing condition requires Cuentas to enter into a new agreement or documentation with a third party or make a filing with the Commission, Cuentas shall provide a copy of such agreement, documentation or filing to CIMA for approval prior to entering into such agreement or documentation, or making such filing with the Commission.

(b) If any part of this Agreement is held to be invalid, illegal or unenforceable (whether in whole or in part), then such part shall be deemed modified to the extent, but only to the extent, of such invalidity, illegality or unenforceability, and the remaining part of this Agreement shall not be affected thereby. In furtherance of the foregoing, if any part of this Agreement is held to be invalid, illegal or unenforceable because it exceeds the maximum scope determined to be acceptable to permit such provision to be enforceable, then such part shall be deemed to be modified to the minimum extent necessary to modify such scope in order to make such provision enforceable under applicable state or federal laws.

ARTICLE III.

REPRESENTATIONS AND WARRANTIES

3.1 Representations and Warranties of the Company. Except as set forth in the disclosure schedules (the “Disclosure Schedules” and each, a “Disclosure Schedule”), which Disclosure Schedules shall be deemed a part hereof and shall qualify any representation or otherwise made herein to the extent of the disclosure contained in the corresponding section of the Disclosure Schedules, the Company hereby makes the following representations and warranties to the Purchaser:

(a) Organization and Qualification. The Company is an entity duly incorporated or otherwise organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation or organization, with the requisite power and authority to own and use its properties and assets and to carry on its business as currently conducted. The Company is not in violation nor default of any of the provisions of its respective certificate or articles of incorporation, bylaws or other organizational or charter documents. The Company is duly qualified to conduct business and is in good standing as a foreign corporation or other entity in each jurisdiction in which the nature of the business conducted or property owned by it makes such qualification necessary, except where the failure to be so qualified or in good standing, as the case may be, could not have or reasonably be expected to result in: (i) a material adverse effect on the legality, validity or enforceability of any Transaction Document, (ii) a material adverse effect on the results of operations, assets, business, prospects or condition (financial or otherwise) of the Company, taken as a whole, or (iii) a material adverse effect on the Company’s ability to perform in any material respect on a timely basis its obligations under any Transaction Document (any of (i), (ii) or (iii), a “Material Adverse Effect”) and no Proceeding has been instituted in any such jurisdiction revoking, limiting or curtailing or seeking to revoke, limit or curtail such power and authority or qualification.

(b) Authorization; Enforcement.

(i) The Company has the requisite corporate power and authority to enter into and to consummate the transactions contemplated by this Agreement and each of the other Transaction Documents and otherwise to carry out its obligations hereunder and thereunder. The execution and delivery of this Agreement and each of the other Transaction Documents by the Company and the consummation by it of the transactions contemplated hereby and thereby have been duly authorized by all necessary action on the part of the Company and no further action is required by the Company, the Board of Directors or the Company’s stockholders in connection herewith or therewith other than in connection with the Required Approvals. This Agreement and each other Transaction Document to which it is a party has been (or upon delivery will have been) duly executed by the Company and, when delivered in accordance with the terms hereof and thereof, will constitute the valid and binding obligation of the Company enforceable against the Company in accordance with its terms, except (i) as limited by general equitable principles and applicable bankruptcy, insolvency, reorganization, moratorium and other laws of general application affecting enforcement of creditors’ rights generally, (ii) as limited by laws relating to the availability of specific performance, injunctive relief or other equitable remedies and (iii) insofar as indemnification and contribution provisions may be limited by applicable law.

(ii) No Conflicts. The execution, delivery and performance by the Company of this Agreement and the other Transaction Documents to which it is a party, the issuance and sale of the Securities and the consummation by it of the transactions contemplated hereby and thereby do not and will not (i) conflict with or violate any provision of the Company’s or any Subsidiary’s certificate or articles of incorporation, bylaws or other organizational or charter documents, or (ii) conflict with, or constitute a default (or an event that with notice or lapse of time or both would become a default) under, result in the creation of any Lien upon any of the properties or assets of the Company or any Subsidiary, or give to others any rights of termination, amendment, anti-dilution or similar adjustments, acceleration or cancellation (with or without notice, lapse of time or both) of, any agreement, credit facility, debt or other instrument (evidencing a Company or Subsidiary debt or otherwise) or other understanding to which the Company or any Subsidiary is a party or by which any property or asset of the Company or any Subsidiary is bound or affected, or (iii) subject to the Required Approvals, conflict with or result in a violation of any law, rule, regulation, order, judgment, injunction, decree or other restriction of any court or Governmental Authority to which the Company or a Subsidiary is subject (including federal and state securities laws and regulations), or by which any property or asset of the Company or a Subsidiary is bound or affected; except in the case of each of clauses (ii) and (iii), such as could not have or reasonably be expected to result in a Material Adverse Effect.

(iii) Filings, Consents and Approvals. The Company is not required to obtain any consent, waiver, authorization or order of, give any notice to, or make any filing or registration with, any court or other federal, state, local or other Governmental Authority or other Person in connection with the execution, delivery and performance by the Company of the Transaction Documents, other than: (i) the filings required pursuant to Section 4.6 of this Agreement, (ii) the filing with the Commission pursuant to the Registration Rights Agreement, and (iii) the notice and/or application(s) to each applicable Trading Market for the issuance and sale of the Debenture.

(iv) Issuance of the Securities. The Debenture and Warrant duly authorized and, when issued and paid for in accordance with the applicable Transaction Documents, will be duly and validly issued, fully paid and nonassessable, free and clear of all Liens imposed by the Company other than restrictions on transfer provided for in the Transaction Documents. The Underlying Shares, when issued in accordance with the terms of the Transaction Documents, will be validly issued, fully paid and nonassessable, free and clear of all Liens imposed by the Company other than restrictions on transfer provided for in the Transaction Documents. The Company has reserved from its duly authorized capital stock a number of shares of Common Stock for issuance upon conversion of the Debenture and upon exercise of the Warrant.

(v) Capitalization. The capitalization of the Company as of the date hereof is as set forth on Schedule 3.1(ii)(e) attached hereto, which Schedule 3.1(ii)(e) shall also include the number of shares of Common Stock owned beneficially, and of record, by Affiliates of the Company as of the date hereof. The Company has not issued any capital stock since its most recently filed periodic report under the Exchange Act, other than pursuant to the exercise of employee stock options under the Company’s stock option plans, the issuance of shares of Common Stock to employees pursuant to the Company’s employee stock purchase plans and pursuant to the conversion and/or exercise of Common Stock Equivalents outstanding as of the date of the most recently filed periodic report under the Exchange Act. No Person has any right of first refusal, preemptive right, right of participation, or any similar right to participate in the transactions contemplated by the Transaction Documents. Except as a result of the purchase and sale of the Securities, there are no outstanding options, warrants, scrip rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities, rights or obligations convertible into or exercisable or exchangeable for, or giving any Person any right to subscribe for or acquire, any shares of Common Stock or the capital stock of any Subsidiary, or contracts, commitments, understandings or arrangements by which the Company or any Subsidiary is or may become bound to issue additional shares of Common Stock or Common Stock Equivalents or capital stock of any Subsidiary. The issuance and sale of the Securities will not obligate the Company or any Subsidiary to issue shares of Common Stock or other securities to any Person (other than the Purchaser). There are no outstanding securities or instruments of the Company or any Subsidiary with any provision that adjusts the exercise, conversion, exchange or reset price of such security or instrument upon an issuance of securities by the Company or any Subsidiary. There are no outstanding securities or instruments of the Company or any Subsidiary that contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which the Company or any Subsidiary is or may become bound to redeem a security of the Company or such Subsidiary. The Company does not have any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement. All of the outstanding shares of capital stock of the Company are duly authorized, validly issued, fully paid and nonassessable, have been issued in compliance with all federal and state securities laws, and none of such outstanding shares was issued in violation of any preemptive rights or similar rights to subscribe for or purchase securities. No further approval or authorization of any stockholder, the Board of Directors or others is required for the issuance and sale of the Securities. There are no stockholders agreements, voting agreements or other similar agreements with respect to the Company’s capital stock to which the Company is a party or, to the knowledge of the Company, between or among any of the Company’s stockholders.

(vi) SEC Reports; Financial Statements. The Company has filed all reports, schedules, forms, statements and other documents required to be filed by the Company under the Securities Act and the Exchange Act, including pursuant to Section 13(a) or 15(d) thereof, for the two years preceding the date hereof (or such shorter period as the Company was required by law or regulation to file such material) (the foregoing materials, including the exhibits thereto and documents incorporated by reference therein, being collectively referred to herein as the “SEC Reports”) on a timely basis or has received a valid extension of such time of filing and has filed any such SEC Reports prior to the expiration of any such extension. Except as set forth on the Disclosure Schedule or previously disclosed to the Purchaser, as of their respective dates, the SEC Reports complied in all material respects with the requirements of the Securities Act and the Exchange Act, as applicable, and none of the SEC Reports, when filed, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The financial statements of the Company included in the SEC Reports comply in all material respects with applicable accounting requirements and the rules and regulations of the Commission with respect thereto as in effect at the time of filing. Except as set forth on the Disclosure Schedule or previously disclosed to the Purchaser, such financial statements have been prepared in accordance with United States generally accepted accounting principles applied on a consistent basis during the periods involved (“GAAP”), except as may be otherwise specified in such financial statements or the notes thereto and except that unaudited financial statements may not contain all footnotes required by GAAP, and fairly present in all material respects the financial position of the Company and its consolidated Subsidiaries as of and for the dates thereof and the results of operations and cash flows for the periods then ended, subject, in the case of unaudited statements, to normal, immaterial, year-end audit adjustments.

(vii) Material Changes; Undisclosed Events, Liabilities or Developments. Since the date of the latest audited financial statements included within the SEC Reports, except as set forth on Schedule 3.1(ii)(g) attached hereto, (i) there has been no event, occurrence or development that has had or that could reasonably be expected to result in a Material Adverse Effect, (ii) the Company has not incurred any liabilities (contingent or otherwise) other than (A) trade payables and accrued expenses incurred in the ordinary course of business consistent with past practice and (B) liabilities not required to be reflected in the Company’s financial statements pursuant to GAAP or disclosed in filings made with the Commission, (iii) the Company has not altered its method of accounting, (iv) the Company has not declared or made any dividend or distribution of cash or other property to its stockholders or purchased, redeemed or made any agreements to purchase or redeem any shares of its capital stock and (v) the Company has not issued any equity securities to any officer, director or Affiliate, except pursuant to existing Company stock option plans. The Company does not have pending before the Commission any request for confidential treatment of information. Except for the issuance of the Securities contemplated by this Agreement or as set forth on Schedule 3.1(ii)(g), no event, liability, fact, circumstance, occurrence or development has occurred or exists or is reasonably expected to occur or exist with respect to the Company or its Subsidiaries or their respective businesses, prospects, properties, operations, assets or financial condition, that would be required to be disclosed by the Company under applicable securities laws at the time this representation is made or deemed made that has not been publicly disclosed at least one (1) Trading Day prior to the date that this representation is made.

(viii) Private Placement. Assuming the accuracy of the Purchaser’s representations and warranties set forth in Section 3.2, no registration under the Securities Act is required for the offer and sale of the Securities by the Company to the Purchaser as contemplated hereby. The issuance and sale of the Securities hereunder does not contravene the rules and regulations of the Trading Market. Neither the Company nor Person acting on its behalf has taken, or will take, any action that would subject the issuance or sale of the Debenture or the Warrant to the registration requirements of Section 5 of the Securities Act or to the registration requirements of any securities or blue sky laws of any applicable jurisdiction.

(ix) Investment Company. The Company is not, and is not an Affiliate of, and immediately after receipt of payment for the Securities, will not be or be an Affiliate of, an “investment company” within the meaning of the Investment Company Act of 1940, as amended. The Company shall conduct its business in a manner so that it will not become an “investment company” subject to registration under the Investment Company Act of 1940, as amended.

(x) Listing and Maintenance Requirements. The Common Stock is registered pursuant to Section 12(g) of the Exchange Act, and the Company has taken no action designed to, or which to its knowledge is likely to have the effect of, terminating the registration of the Common Stock under the Exchange Act nor has the Company received any notification that the Commission is contemplating terminating such registration. The Company has not, in the 12 months preceding the date hereof, received notice from any Trading Market on which the Common Stock is or has been listed or quoted to the effect that the Company is not in compliance with the listing or maintenance requirements of such Trading Market. The Company is, and has no reason to believe that it will not in the foreseeable future continue to be, in compliance with all such listing and maintenance requirements. The Common Stock is currently eligible for electronic transfer through the Depository Trust Company or another established clearing corporation and the Company is current in payment of the fees to the Depository Trust Company (or such other established clearing corporation) in connection with such electronic transfer.

(xi) No General Solicitation. Neither the Company nor any Person acting on behalf of the Company has offered or sold the Securities by any form of general solicitation or general advertising.

(xii) Litigation. Except as described in SEC Filings, there are no actions, suits, investigations or proceedings pending or, to the best knowledge of the Company, threatened in writing against or affecting the Company or any Subsidiary or any property of the Company or any Subsidiary in any court or before any arbitrator of any kind or before or by any Governmental Authority that could, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect

(xiii) Foreign Corrupt Practices Act. Neither the Company nor any of the Company’s directors, officers, employees or agents have, directly or indirectly, made, offered, promised or authorized any payment or gift of any money or anything of value to or for the benefit of any “foreign official” (as such term is defined in the U.S. Foreign Corrupt Practices Act of 1977, as amended (the “FCPA”)), foreign political party or official thereof or candidate for foreign political office for the purpose of (i) influencing any official act or decision of such official, party or candidate, (ii) inducing such official, party or candidate to use his, her or its influence to affect any act or decision of a foreign governmental authority, or (iii) securing any improper advantage, in the case of (i), (ii) and (iii) above in order to assist the Company or any of its Affiliates in obtaining or retaining business for or with, or directing business to, any person. Neither the Company nor any of its directors, officers, employees or agents have made or authorized any bribe, rebate, payoff, influence payment, kickback or other unlawful payment of funds or received or retained any funds in violation of any law, rule or regulation. The Company further represents that it has maintained, and has caused each of its Subsidiaries and Affiliates to maintain, systems of internal controls (including, but not limited to, accounting systems, purchasing systems and billing systems) to ensure compliance with the FCPA or any other applicable anti-bribery or anti-corruption law. Neither the Company, or, to the Company’s knowledge, any of its officers, directors or employees are the subject of any allegation, voluntary disclosure, investigation, prosecution or other enforcement action related to the FCPA or any other anti-corruption law.

3.2 Representations and Warranties of the Purchaser. The Purchaser, for itself and for no other Purchaser, hereby represents and warrants as of the date hereof and as of the Closing Date to the Company as follows (unless as of a specific date therein, in which case they shall be accurate as of such date):

(a) Organization; Authority. The Purchaser is either an individual or an entity duly incorporated or formed, validly existing and in good standing under the laws of the jurisdiction of its incorporation or formation with full right, corporate, partnership, limited liability company or similar power and authority to enter into and to consummate the transactions contemplated by the Transaction Documents and otherwise to carry out its obligations hereunder and thereunder. The execution and delivery of the Transaction Documents and performance by the Purchaser of the transactions contemplated by the Transaction Documents have been duly authorized by all necessary corporate, partnership, limited liability company or similar action, as applicable, on the part of the Purchaser. Each Transaction Document to which it is a party has been duly executed by the Purchaser, and when delivered by the Purchaser in accordance with the terms hereof, will constitute the valid and legally binding obligation of the Purchaser, enforceable against it in accordance with its terms, except (i) as limited by general equitable principles and applicable bankruptcy, insolvency, reorganization, moratorium and other laws of general application affecting enforcement of creditors’ rights generally, (ii) as limited by laws relating to the availability of specific performance, injunctive relief or other equitable remedies and (iii) insofar as indemnification and contribution provisions may be limited by applicable law.

(b) Own Account. The Purchaser understands that the Securities are “restricted securities” and have not been registered under the Securities Act or any applicable state securities law and is acquiring the Securities as principal for its own account and not with a view to or for distributing or reselling such Securities or any part thereof in violation of the Securities Act or any applicable state securities law, has no present intention of distributing any of such Securities in violation of the Securities Act or any applicable state securities law and has no direct or indirect arrangement or understandings with any other persons to distribute or regarding the distribution of such Securities in violation of the Securities Act or any applicable state securities law (this representation and warranty not limiting the Purchaser’s right to sell the Securities pursuant to the Registration Statement or otherwise in compliance with applicable federal and state securities laws). The Purchaser is acquiring the Securities hereunder in the ordinary course of its business.

(c) Purchaser Status. At the time the Purchaser was offered the Securities, it was, and as of the date hereof it is, and on each date on which it exercises the Debenture and Warrant it will be either: (i) an “accredited investor” as defined in Rule 501(a)(1), (a)(2), (a)(3), (a)(7) or (a)(8) under the Securities Act or (ii) a “qualified institutional buyer” as defined in Rule 144A(a) under the Securities Act.

(d) Experience of The Purchaser. The Purchaser, either alone or together with its representatives, has such knowledge, sophistication and experience in business and financial matters so as to be capable of evaluating the merits and risks of the prospective investment in the Securities, and has so evaluated the merits and risks of such investment. The Purchaser is able to bear the economic risk of an investment in the Securities and, at the present time, is able to afford a complete loss of such investment.

(e) General Solicitation. The Purchaser is not, to the Purchaser’s knowledge, purchasing the Securities as a result of any advertisement, article, notice or other communication regarding the Securities published in any newspaper, magazine or similar media or broadcast over television or radio or presented at any seminar or, to the knowledge of the Purchaser, any other general solicitation or general advertisement.

(f) Access to Information. The Purchaser acknowledges that it has had the opportunity to review the Transaction Documents (including all exhibits and schedules thereto) and the SEC Reports and has been afforded: (i) the opportunity to ask such questions as it has deemed necessary of, and to receive answers from, representatives of the Company concerning the terms and conditions of the offering of the Securities and the merits and risks of investing in the Securities; (ii) access to information about the Company and its financial condition, results of operations, business, properties, management and prospects sufficient to enable it to evaluate its investment; and (iii) the opportunity to obtain such additional information that the Company possesses or can acquire without unreasonable effort or expense that is necessary to make an informed investment decision with respect to the investment.

(g) Certain Transactions and Confidentiality. Other than consummating the transactions contemplated hereunder, the Purchaser has not, nor has any Person acting on behalf of or pursuant to any understanding with the Purchaser, directly or indirectly executed any purchases or sales, including Short Sales, of the securities of the Company during the period commencing as of the time that the Purchaser first received a term sheet (written or oral) from the Company or any other Person representing the Company setting forth the material terms of the transactions contemplated hereunder and ending immediately prior to the execution hereof. Notwithstanding the foregoing, in the case of a Purchaser that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of the Purchaser’s assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions of the Purchaser’s assets, the representation set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Securities covered by this Agreement. Other than to other Persons party to this Agreement or to the Purchaser’s representatives, including, without limitation, its officers, directors, partners, legal and other advisors, employees, agents and Affiliates, the Purchaser has maintained the confidentiality of all disclosures made to it in connection with this transaction (including the existence and terms of this transaction). Notwithstanding the foregoing, for the avoidance of doubt, nothing contained herein shall constitute a representation or warranty against, or a prohibition of, any actions with respect to the borrowing of, arrangement to borrow, identification of the availability of, and/or securing of, securities of the Company in order for the Purchaser (or its broker or other financial representative) to effect Short Sales or similar transactions in the future.

The Company acknowledges and agrees that the representations contained in this Section 3.2 shall not modify, amend or affect the Purchaser’s right to rely on the Company’s representations and warranties contained in this Agreement or any representations and warranties contained in any other Transaction Document or any other document or instrument executed and/or delivered in connection with this Agreement or the consummation of the transactions contemplated hereby. Notwithstanding the foregoing, for the avoidance of doubt, nothing contained herein shall constitute a representation or warranty, or preclude any actions, with respect to locating or borrowing shares in order to effect Short Sales or similar transactions in the future.

ARTICLE IV.

OTHER AGREEMENTS OF THE PARTIES

4.1 Transfer Restrictions.

(a) The Securities may only be disposed of in compliance with state and federal securities laws. In connection with any transfer of Securities other than pursuant to an effective registration statement or Rule 144, to the Company or to an Affiliate of a Purchaser or in connection with a pledge as contemplated in Section 4.1(ii), the Company may require the transferor thereof to provide to the Company an opinion of counsel selected by the transferor and reasonably acceptable to the Company, the form and substance of which opinion shall be reasonably satisfactory to the Company, to the effect that such transfer does not require registration of such transferred Securities under the Securities Act. As a condition of transfer, any such transferee shall agree in writing to be bound by the terms of this Agreement and the Registration Rights Agreement and shall have the rights and obligations of a Purchaser under this Agreement and the Registration Rights Agreement.

(b) The Purchaser agrees to the imprinting, so long as is required by this Section 4.1, of a legend on the Debenture and the Warrant in the following form:

NEITHER THIS SECURITY NOR THE SECURITIES UNDERLYING THIS SECURITY HAVE BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS.

THIS [WARRANT/NOTE] IS, AND THE UNDERLYING SHARES OF COMMON STOCK ARE, SUBJECT TO THE TERMS OF A VOTING AGREEMENT AND PROXY DATED AS OF THE DATE HEREOF, BY AND AMONG THE COMPANY AND THE OTHER PARTIES THERETO (THE “VOTING AGREEMENT”).

(c) Certificates evidencing the Underlying Shares shall contain a legend, if required, that such shares have not been registered under the Securities Act and may only be sold upon an exemption from registration.

(d) Subject to each party’s compliance obligations with state and federal securities laws and listing requirements, after the conversion of the Debenture to Common Stock and the exercise of the Warrant for Common Stock, CIMA shall have the right to sell any or all of CIMA’s Common Stock into which the Debenture was converted or Warrant was exercised (as determined in CIMA’s sole discretion) to any bona fide third party purchaser identified by CIMA at any price per share (including a price per share below the fair market value of the Common Stock), and Cuentas shall cooperate with CIMA to effectuate that sale, including, but not limited to, ensuring that all necessary approvals, documentation, and other actions are taken in order for CIMA to be able to consummate the contemplated sale of Common Stock, pursuant to the Side Letter Agreement containing a right of first refusal on the terms and conditions substantially set forth therein. Except for right of first refusal described in the Side Letter Agreement, there shall be no transfer restrictions on CIMA in the organizational documents of Cuentas or any other documents which could have the effect of prohibiting such private resales of Common Stock by CIMA.

4.2 Conversion and Exercise Procedures. The form of Notice of Conversion included in the Debenture sets forth the totality of the procedures required of the Purchaser in order to convert the Debenture. The form of Notice of Exercise included in the Warrant sets forth the totality of the procedures required of the Purchaser in order to exercise the Warrant. Without limiting the preceding sentences of this Section 4.2, no ink-original Notice of Conversion or Notice of Exercise shall be required, nor shall any medallion guarantee (or other type of guarantee or notarization) of the Notice of Conversion or the Notice of Exercise be required in order to convert the Debenture or exercise the Warrant, respectively. No additional legal opinion, other information or instructions shall be required of the Purchaser to convert the Debenture or exercise the Warrant. The Company shall honor conversion of the Debenture and the exercise of the Warrant, and shall deliver Underlying Shares in accordance with the terms, conditions and time periods set forth in the Transaction Documents.

4.3 Shareholder Rights Plan. No claim will be made or enforced by the Company or, with the consent of the Company, any other Person, that any Purchaser is an “acquiring person” under any control share acquisition, business combination, poison pill (including any distribution under a rights agreement) or similar anti-takeover plan or arrangement in effect or hereafter adopted by the Company, or that any Purchaser could be deemed to trigger the provisions of any such plan or arrangement, by virtue of receiving Securities under the Transaction Documents or under any other agreement between the Company and the Purchaser.

4.4 Indemnification of Purchaser. Subject to the provisions of this Section 4.4, the Company will indemnify and hold the Purchaser and its directors, officers, shareholders, members, partners, employees and agents (and any other Persons with a functionally equivalent role of a Person holding such titles notwithstanding a lack of such title or any other title), each Person who controls the Purchaser (within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act), and the directors, officers, shareholders, agents, members, partners or employees (and any other Persons with a functionally equivalent role of a Person holding such titles notwithstanding a lack of such title or any other title) of such controlling persons (each, a “Purchaser Party”) harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements, court costs and reasonable attorneys’ fees and costs of investigation that any the Purchaser Party may suffer or incur as a result of or relating to (a) any breach of any of the representations, warranties, covenants or agreements made by the Company in this Agreement or in the other Transaction Documents or (b) any action instituted against the Purchaser Parties in any capacity, or any of them or their respective Affiliates, by any stockholder of the Company who is not an Affiliate of the Purchaser Party, with respect to any of the transactions contemplated by the Transaction Documents (unless such action is solely based upon a material breach of the Purchaser Party’s representations, warranties or covenants under the Transaction Documents or any agreements or understandings the Purchaser Party may have with any such stockholder or any violations by the Purchaser Party of state or federal securities laws or any conduct by the Purchaser Party which is finally judicially determined to constitute fraud, gross negligence or willful misconduct). If any action shall be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, the Purchaser Party shall promptly notify the Company in writing, and the Company shall have the right to assume the defense thereof with counsel of its own choosing reasonably acceptable to the Purchaser Party. Any Purchaser Party shall have the right to employ separate counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the Purchaser Party except to the extent that (i) the employment thereof has been specifically authorized by the Company in writing, (ii) the Company has failed after a reasonable period of time to assume such defense and to employ counsel or (iii) in such action there is, in the reasonable opinion of counsel, a material conflict on any material issue between the position of the Company and the position of the Purchaser Party, in which case the Company shall be responsible for the reasonable fees and expenses of no more than one such separate counsel. The Company will not be liable to any Purchaser Party under this Agreement (y) for any settlement by a Purchaser Party effected without the Company’s prior written consent, which shall not be unreasonably withheld or delayed; or (z) to the extent, but only to the extent that a loss, claim, damage or liability is attributable to any Purchaser Party’s breach of any of the representations, warranties, covenants or agreements made by the Purchaser Party in this Agreement or in the other Transaction Documents. The indemnification required by this Section 4.4 shall be made by periodic payments of the amount thereof during the course of the investigation or defense, as and when bills are received or are incurred. The indemnity agreements contained herein shall be in addition to any cause of action or similar right of any Purchaser Party against the Company or others and any liabilities the Company may be subject to pursuant to law.

4.5 Reservation of Securities. The Company shall maintain a reserve from its duly authorized shares of Common Stock for issuance pursuant to the Transaction Documents in such amount as may then be required to fulfill its obligations in full under the Transaction Documents.

4.6 Remedies upon Breach. If the Company or its affiliate breaches any of its terms, conditions, duties, requirements or obligations under Article II of this Agreement or the Warrant, the Purchaser shall advise the Company of the breach in writing. The Company shall have thirty (30) days from receipt of written notice from the Purchaser to cure the breach to the Purchaser’s satisfaction. In the event that such breach is not cured within the period set forth in the preceding sentence, then the Company shall pay to the Purchaser Five Million Dollars ($5,000,000) and any and all reasonable attorneys’ fees and other costs and expenses incurred the Purchaser as a result of such breach, as liquidated damages. The Parties agree that actual damages that the Purchaser would suffer as a result of the Company’s such breach would be difficult to determine and that these liquidated damages are a reasonable and fair estimate of the damages which may be caused by such event, and are not a penalty. In the event that Company fails to pay such amounts, then the Purchaser shall be entitled to enforce its rights under the Pledge Agreement. The Company’s obligations to pay any partial liquidated damages or other amounts owing under the Transaction Documents is a continuing obligation of the Company and shall not terminate until all unpaid partial liquidated damages and other amounts pursuant to this Section 4.6 have been paid notwithstanding the fact that the Debenture, Warrant, Underlying Shares or other security pursuant to which such partial liquidated damages or other amounts are due and payable shall have been canceled. In the event that liquidated damages are due pursuant to this Section 4.6, and the Company is not able to pay such liquidated damages, the Pledge Agreement and the terms thereunder shall immediately be enforceable by the Purchaser. In the event that the terms of the Pledge Agreement are enforced by the Purchaser accordance with this Section 4.6 and the License Agreement is terminated in accordance with the terms of the Pledge Agreement, Purchaser shall transfer and return to the Company all shares of the Company it has been issued through the conversion of the Debenture or exercise of the Warrant. For the avoidance of doubt, in the event that the Pledge Agreement is enforced and the License Agreement is terminated, then the Five Million Dollars ($5,000,000) of liquidated damages called for under this Section 4.6 shall no longer be payable and due by the Company. For the avoidance of doubt, if the Purchaser demands $5,000,000 in liquidated damages per above, the Company can pay said $5,000,000 with the pledge and all shares shall be returned to the Company.

ARTICLE V.

MISCELLANEOUS

5.1 Publicity; Use of Name. This Agreement, the Transaction Documents, all exhibits and schedules hereto and thereto, and all of the transactions contemplated hereby and thereby are confidential. No publicity release, public announcement, press release, public filing, or any other disclosure to any other third-party, publicly or privately, concerning this Agreement, the Transaction Documents, any schedules or exhibits hereto or thereto, or the transactions contemplated hereby or thereby shall be made by Company or its Affiliates without the prior written consent of CIMA, except as required by applicable law. Further, neither the Company nor its affiliates shall use the name of CIMA or any of its Affiliates in any trade publication, marketing material or otherwise to the general public, in each case without the prior written consent of CIMA, which consent may be withheld in its sole discretion.

5.2 Termination. This Agreement may be terminated by the Purchase by written notice to the Company, if the Closing has not been consummated on or before the fifth (5^th) Trading Day following the date hereof, provided, however, that no such termination will affect the right of any party to sue for any breach by any other party (or parties).

5.3 Fees and Expenses. Each party shall bear their own expenses. Notwithstanding the foregoing sentence, the Company shall pay all legal fees and expenses incurred by CIMA in connection with the transactions contemplated in connection with filing the proxy (including the effectuation and filing, as applicable, of the A&R Articles of Incorporation and the A&R Bylaws), reviewing the 8-K with regards to this transaction, reviewing the Annual Report on Form 10-K and Quarterly Reports on Form 10-Q (including with respect to disclosure of the agreement and arrangement with SDI), and the filing Schedule 13G and/or Schedule 13D. Nevertheless, the reimbursed amount will not exceed $65,000 which will be paid within three (3) months following the closing date and receipt of invoice.

5.4 Entire Agreement. The Transaction Documents, together with the exhibits and schedules thereto, contain the entire understanding of the parties with respect to the subject matter hereof and thereof and supersede all prior agreements and understandings, oral or written, with respect to such matters, which the parties acknowledge have been merged into such documents, exhibits and schedules.

5.5 Notices. Any and all notices or other communications or deliveries required or permitted to be provided hereunder, under the Debenture or under the Warrant shall be in writing and shall be deemed given and effective on the earliest of: (a) the time of transmission, if such notice or communication is delivered via facsimile at the facsimile number or email attachment at the email address as set forth on the signature pages attached hereto at or prior to 5:30 p.m. (New York City time) on a Trading Day, (b) the next Trading Day after the time of transmission, if such notice or communication is delivered via facsimile at the facsimile number or email attachment as set forth on the signature pages attached hereto on a day that is not a Trading Day or later than 5:30 p.m. (New York City time) on any Trading Day, (c) the second (2^nd) Trading Day following the date of mailing, if sent by U.S. nationally recognized overnight courier service or (d) upon actual receipt by the party to whom such notice is required to be given. The address for such notices and communications shall be as set forth on the signature pages attached hereto. To the extent that any notice provided pursuant to any Transaction Document constitutes, or contains, material, non-public information regarding the Company or any of the Subsidiaries, the Company shall simultaneously file such notice with the Commission pursuant to a Current Report on Form 8-K.

5.6 Amendments; Waivers. No provision of this Agreement may be waived, modified, supplemented or amended except in a written instrument signed, in the case of an amendment, by the Company and the Purchaser or, in the case of a waiver, by the party against whom enforcement of any such waived provision is sought, No waiver of any default with respect to any provision, condition or requirement of this Agreement shall be deemed to be a continuing waiver in the future or a waiver of any subsequent default or a waiver of any other provision, condition or requirement hereof, nor shall any delay or omission of any party to exercise any right hereunder in any manner impair the exercise of any such right. Any amendment effected in accordance with this Section 5.6 shall be binding upon the Purchaser and each holder of Securities and the Company.

5.7 Headings. The headings herein are for convenience only, do not constitute a part of this Agreement and shall not be deemed to limit or affect any of the provisions hereof.

5.8 Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties and their successors and permitted assigns. The Company may not assign this Agreement or any rights or obligations hereunder without the prior written consent of the Purchaser (other than by merger). The Purchaser may assign any or all of its rights under this Agreement to any Person to whom the Purchaser assigns or transfers any Securities, provided that such transferee agrees in writing to be bound, with respect to the transferred Securities, by the provisions of the Transaction Documents that apply to the Purchaser.

5.9 Governing Law. All questions concerning the construction, validity, enforcement and interpretation of the Transaction Documents shall be governed by and construed and enforced in accordance with the internal laws of the State of Florida, without regard to the principles of conflicts of law thereof. Each party agrees that all legal Proceedings concerning the interpretations, enforcement and defense of the transactions contemplated by this Agreement and any other Transaction Documents (whether brought against a party hereto or its respective affiliates, directors, officers, shareholders, partners, members, employees or agents) shall be commenced exclusively in the state and federal courts, in each case sitting in Miami-Dade County, Florida (and any appellate courts thereof). Each party hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts sitting in the sitting in Miami-Dade County, Florida (and any appellate courts thereof) for the adjudication of any dispute hereunder or in connection herewith or with any transaction contemplated hereby or discussed herein (including with respect to the enforcement of any of the Transaction Documents), and hereby irrevocably waives, and agrees not to assert in any Proceeding, any claim that it is not personally subject to the jurisdiction of any such court, that such Proceeding is improper or is an inconvenient venue for such Proceeding. Each party hereby irrevocably waives personal service of process and consents to process being served in any such Proceeding by mailing a copy thereof via registered or certified mail or overnight delivery (with evidence of delivery) to such party at the address in effect for notices to it under this Agreement and agrees that such service shall constitute good and sufficient service of process and notice thereof. Nothing contained herein shall be deemed to limit in any way any right to serve process in any other manner permitted by law. If any party shall commence an Proceeding to enforce any provisions of the Transaction Documents, then, in addition to the obligations of the Company under the Transaction Documents, the prevailing party in such Proceeding shall be reimbursed by the non-prevailing party for its reasonable attorneys’ fees and other costs and expenses incurred with the investigation, preparation and prosecution of such Proceeding.

5.10 Survival. The representations and warranties contained herein shall survive the Closing and the delivery of the Securities. The damages provided for in Section 4.6 shall survive the Closing and the delivery of the Securities.

5.11 Execution. This Agreement may be executed in two or more counterparts, all of which when taken together shall be considered one and the same agreement and shall become effective when counterparts have been signed by each party and delivered to each other party, it being understood that the parties need not sign the same counterpart. In the event that any signature is delivered by facsimile transmission or by e-mail delivery of a “.pdf” format data file, such signature shall create a valid and binding obligation of the party executing (or on whose behalf such signature is executed) with the same force and effect as if such facsimile or “.pdf” signature page were an original thereof.

5.12 Severability. If any term, provision, covenant or restriction of this Agreement is held by a court of competent jurisdiction to be invalid, illegal, void or unenforceable, the remainder of the terms, provisions, covenants and restrictions set forth herein shall remain in full force and effect and shall in no way be affected, impaired or invalidated, and the parties hereto shall use their commercially reasonable efforts to find and employ an alternative means to achieve the same or substantially the same result as that contemplated by such term, provision, covenant or restriction. It is hereby stipulated and declared to be the intention of the parties that they would have executed the remaining terms, provisions, covenants and restrictions without including any of such that may be hereafter declared invalid, illegal, void or unenforceable.

5.13 Replacement of Securities. If any certificate or instrument evidencing any Securities is mutilated, lost, stolen or destroyed, the Company shall issue or cause to be issued in exchange and substitution for and upon cancellation thereof (in the case of mutilation), or in lieu of and substitution therefor, a new certificate or instrument, but only upon receipt of evidence reasonably satisfactory to the Company of such loss, theft or destruction. The applicant for a new certificate or instrument under such circumstances shall also pay any reasonable third-party costs (including customary indemnity) associated with the issuance of such replacement Securities.

5.14 Remedies. In addition to being entitled to exercise all rights provided herein or granted by law, including recovery of damages, the Purchaser and the Company will be entitled to specific performance under the Transaction Documents. The parties agree that monetary damages may not be adequate compensation for any loss incurred by reason of any breach of obligations contained in the Transaction Documents and hereby agree to waive and not to assert in any Action for specific performance of any such obligation the defense that a remedy at law would be adequate.

5.15 Payment Set Aside. To the extent that the Company makes a payment or payments to any Purchaser pursuant to any Transaction Document or a Purchaser enforces or exercises its rights thereunder, and such payment or payments or the proceeds of such enforcement or exercise or any part thereof are subsequently invalidated, declared to be fraudulent or preferential, set aside, recovered from, disgorged by or are required to be refunded, repaid or otherwise restored to the Company, a trustee, receiver or any other Person under any law (including, without limitation, any bankruptcy law, state or federal law, common law or equitable cause of action), then to the extent of any such restoration the obligation or part thereof originally intended to be satisfied shall be revived and continued in full force and effect as if such payment had not been made or such enforcement or setoff had not occurred.

5.16 Usury. To the extent it may lawfully do so, the Company hereby agrees not to insist upon or plead or in any manner whatsoever claim, and will resist any and all efforts to be compelled to take the benefit or advantage of, usury laws wherever enacted, now or at any time hereafter in force, in connection with any Proceeding that may be brought by any Purchaser in order to enforce any right or remedy under any Transaction Document. Notwithstanding any provision to the contrary contained in any Transaction Document, it is expressly agreed and provided that the total liability of the Company under the Transaction Documents for payments in the nature of interest shall not exceed the maximum lawful rate authorized under applicable law (the “Maximum Rate”), and, without limiting the foregoing, in no event shall any rate of interest or default interest, or both of them, when aggregated with any other sums in the nature of interest that the Company may be obligated to pay under the Transaction Documents exceed such Maximum Rate. It is agreed that if the maximum contract rate of interest allowed by law and applicable to the Transaction Documents is increased or decreased by statute or any official governmental action subsequent to the date hereof, the new maximum contract rate of interest allowed by law will be the Maximum Rate applicable to the Transaction Documents from the effective date thereof forward, unless such application is precluded by applicable law. If under any circumstances whatsoever, interest in excess of the Maximum Rate is paid by the Company to any Purchaser with respect to indebtedness evidenced by the Transaction Documents, such excess shall be applied by the Purchaser to the unpaid principal balance of any such indebtedness or be refunded to the Company, the manner of handling such excess to be at the Purchaser’s election.

5.17 Saturdays, Sundays, Holidays, etc. If the last or appointed day for the taking of any action or the expiration of any right required or granted herein shall not be a Business Day, then such action may be taken or such right may be exercised on the next succeeding Business Day.

5.18 Construction. The parties agree that each of them and/or their respective counsel have reviewed and had an opportunity to revise the Transaction Documents and, therefore, the normal rule of construction to the effect that any ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of the Transaction Documents or any amendments thereto. In addition, each and every reference to share prices and shares of Common Stock in any Transaction Document shall be subject to adjustment for reverse and forward stock splits, stock dividends, stock combinations and other similar transactions of the Common Stock that occur after the date of this Agreement.

5.19 WAIVER OF JURY TRIAL. IN ANY ACTION, SUIT, OR PROCEEDING IN ANY JURISDICTION BROUGHT BY ANY PARTY AGAINST ANY OTHER PARTY, THE PARTIES EACH KNOWINGLY AND INTENTIONALLY, TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW, HEREBY ABSOLUTELY, UNCONDITIONALLY, IRREVOCABLY AND EXPRESSLY WAIVES FOREVER TRIAL BY JURY.

(Signature Pages Follow)

IN WITNESS WHEREOF, the parties hereto have caused this Note and Warrant Purchase Agreement to be duly executed by their respective authorized signatories as of the date first indicated above.

Address for Notice:  

200 S. Biscayne Blvd  

Suite 5500  

Miami, FL 33131  

Email: arik@cuentas.com  

Fax:  

Address for Notice:

1728 Coral Way

Coral Gables, FL 33145

Email: jmgomez@cimagroup.com

Fax:  

Accepted and Agreed:

SCHEDULE I

Cuentas Executive Officers

SCHEDULE II

Budget

(See Attached)

EXHIBIT A

Form of 3% Convertible Debenture

(See Attached)

EXHIBIT B

Form of Warrant

(See Attached)

EXHIBIT C

License Agreement

(See Attached)

EXHIBIT D

Source Code Escrow Agreements

(See Attached)

Exhibit F

Form of
Non-Competition, Non-Solicitation, Confidentiality And

Intellectual Property Assignment Agreement

(See Attached)

35

Exhibit 10.2

NEITHER THIS SECURITY NOR THE SECURITIES UNDERLYING THIS SECURITY HAVE BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS.

THIS NOTE IS, AND THE UNDERLYING SHARES OF COMMON STOCK ARE, SUBJECT TO THE TERMS OF A VOTING AGREEMENT AND PROXY DATED AS OF THE DATE HEREOF, BY AND AMONG THE COMPANY AND THE OTHER PARTIES THERETO (THE “VOTING AGREEMENT”).

Original Issue Date: December 31, 2019

$9,000,000

3% CONVERTIBLE Promissory Note

DUE December 31, 2021

FOR VALUE RECEIVED, Cuentas Inc., a Florida corporation (the “Company”), having its principal place of business at 200 S. Biscayne Blvd., Suite 5500, Miami, Florida 33131, promises to pay to CIMA Telecom, Inc., a Florida corporation (the “Holder”), or shall have paid pursuant to the terms hereunder, the principal sum of $9,000,000 on December 31, 2020 (the “Maturity Date”) or such earlier date as this 3% Convertible Promissory Note (this “Debenture”) is required or permitted to be repaid as provided hereunder, and to pay interest to the Holder on the aggregate unconverted and then outstanding principal amount of this Debenture in accordance with the provisions hereof. This Debenture is subject to the following additional provisions:

Section 1. Definitions. For the purposes hereof, in addition to the terms defined elsewhere in this Debenture, (a) capitalized terms not otherwise defined herein shall have the meanings set forth in the Purchase Agreement and (b) the following terms shall have the following meanings:

“Alternate Consideration” shall have the meaning set forth in Section 5(b).

“Bankruptcy Event” means any of the following events: (a) the Company commences a case or other proceeding under any bankruptcy, reorganization, arrangement, adjustment of debt, relief of debtors, dissolution, insolvency or liquidation or similar law of any jurisdiction relating to the Company, (b) there is commenced against the Company any such case or proceeding that is not dismissed within 60 days after commencement, (c) the Company is adjudicated insolvent or bankrupt or any order of relief or other order approving any such case or proceeding is entered, (d) the Company suffers any appointment of any custodian or the like for it or any substantial part of its property that is not discharged or stayed within 60 calendar days after such appointment, (e) the Company makes a general assignment for the benefit of creditors, (f) the Company calls a meeting of its creditors with a view to arranging a composition, adjustment or restructuring of its debts, (g) the Company admits in writing that it is generally unable to pay its debts as they become due, or (h) the Company, by any act or failure to act, expressly indicates its consent to, approval of or acquiescence in any of the foregoing or takes any corporate or other action for the purpose of effecting any of the foregoing.

“Business Day” means any day except any Saturday, any Sunday, any day which is a federal legal holiday in the United States or any day on which banking institutions in the State of New York are authorized or required by law or other governmental action to close.

“Conversion” shall have the meaning ascribed to such term in Section 4(a).

“Conversion Date” shall have the meaning set forth in Section 4(a).

“Conversion Shares” means, collectively, the shares of Common Stock issuable upon conversion of this Debenture in accordance with the terms hereof.

“Debenture Register” shall have the meaning set forth in Section 3(a).

“Fundamental Transaction” shall have the meaning set forth in Section 5(b).

“New York Courts” shall have the meaning set forth in Section 7(d).

“Notice of Conversion” shall have the meaning set forth in Section 4(a).

“Original Issue Date” means the date of the first issuance of the Debentures, regardless of any transfers of any Debenture and regardless of the number of instruments which may be issued to evidence such Debentures.

“Purchase Agreement” means that certain Note Purchase Agreement dated as of the hereof, by and between the Company and the Holder, as may be amended, restated, modified or supplemented from time to time.

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

“Share Delivery Date” means the date that is two (2) Trading Days after the Conversion Date.

“Successor Entity” shall have the meaning set forth in Section 5(b).

“Trading Day” means a day on which the principal Trading Market is open for trading.

“Trading Market” means any of the following markets or exchanges on which the Common Stock is listed or quoted for trading on the date in question: the NYSE American, the Nasdaq Capital Market, the Nasdaq Global Market, the Nasdaq Global Select Market, the New York Stock Exchange, OTCQB or OTCQX (or any successors to any of the foregoing).

Section 2. Interest.

a) Payment of Interest in Cash. The Company shall pay interest to the Holder on the outstanding principal amount of this Debenture at an interest rate of 3% per annum (the “Interest Rate”), payable upon the Maturity Date (or, if the Maturity Date is not a Business Day, then the applicable payment shall be due on the next succeeding Business Day) or such earlier date on which the Holder has accelerated the obligations hereunder after an Event of Default, in cash, should the Holder hereof not convert the principal and interest due under this Debenture in accordance with the terms hereof.

b) Interest Calculations. Interest shall be calculated based on a year of 360 days, by multiplying the principal amount due under this Debenture by the Interest Rate as contemplated above; provided if the amounts set forth above are not paid when due, all amounts outstanding hereunder shall bear an interest rate of 6% per annum until paid in full.

c) Prepayment. Except as otherwise set forth in this Debenture, the Company may not prepay any portion of the principal amount of this Debenture without the prior written consent of the Holder.

Section 3. Registration of Transfers and Exchanges.

a) Debenture Register. The Company shall cause to be kept at its principal corporate office a register (herein sometimes referred to as the “Debenture Register”) in which, subject to such reasonable regulations as it may prescribe, the Company shall provide for the registration of this Debenture and of transfers of this Debenture. The Secretary of the Company is hereby appointed “Debenture registrar” for the purpose of registering this Debenture and transfers of this Debenture as herein provided.

b) Different Denominations. This Debenture is exchangeable for an equal aggregate principal amount of Debentures of different authorized denominations, as requested by the Holder surrendering the same. No service charge will be payable for such registration of transfer or exchange.

c) Reliance on Debenture Register. Prior to due presentment for transfer to the Company of this Debenture, the Company and any agent of the Company may treat the Person in whose name this Debenture is duly registered on the Debenture Register as the owner hereof for the purpose of receiving payment as herein provided and for all other purposes, whether or not this Debenture is overdue, and neither the Company nor any such agent shall be affected by notice to the contrary.

Section 4. Conversion.

a) Voluntary Conversion. At any time on or before the Maturity Date, CIMA may elect in its sole and absolute discretion to convert all unpaid principal and accrued and unpaid interest under the Debenture into Common Stock equal to twenty-five percent (25%) of the fully-diluted outstanding shares of Common Stock of the Company as of December 31, 2019 (the “Conversion”), without taking into account the Warrant issued to CIMA. For the avoidance of doubt, the right to convert the Debenture into Common Stock is an option, to be exercised at the sole discretion of the Holder, and is not a requirement, nor is the Holder required to elect to convert the Debenture into Common Stock at any specific time following the issuance hereof. The Holder shall effect conversions by delivering to the Company a Notice of Conversion, the form of which is attached hereto as Annex A (each, a “Notice of Conversion”), specifying therein the date on which such conversion shall be effected (such date, the “Conversion Date”). If no Conversion Date is specified in a Notice of Conversion, the Conversion Date shall be the date that such Notice of Conversion is deemed delivered hereunder. No ink-original Notice of Conversion shall be required, nor shall any medallion guarantee (or other type of guarantee or notarization) of any Notice of Conversion form be required. To effect conversions hereunder, the Holder shall be required to physically surrender this Debenture to the Company in which case the Holder shall surrender this Debenture as promptly as is reasonably practicable after such conversion (without delaying the Company’s obligation to deliver the shares on the Share Delivery Date). The Company may deliver an objection to any Notice of Conversion within one (1) Business Day of delivery of such Notice of Conversion. In the event of any dispute or discrepancy, the records of the Holder shall be controlling and determinative in the absence of manifest error.

b) Mechanics of Conversion.

i. Conversion Shares Issuable Upon Conversion of Principal Amount. The number of Conversion Shares issuable upon a conversion hereunder shall be calculated as set forth above.

ii. Delivery of Conversion Shares Upon Conversion. The Company shall deliver, or cause to be delivered, to the Holder the Conversion Shares not later than the Share Delivery Date.

iii. Failure to Deliver Conversion Shares. If, in the case of any Notice of Conversion, such Conversion Shares are not delivered to or as directed by the applicable Holder by the Share Delivery Date, the Holder shall be entitled to elect by written notice to the Company at any time on or before its receipt of such Conversion Shares, to rescind such Conversion, in which event the Company shall promptly return to the Holder any original Debenture delivered to the Company and the Holder shall promptly return to the Company the Conversion Shares issued to such Holder pursuant to the rescinded Conversion Notice.

iv. Obligation Absolute; Partial Liquidated Damages. The Company’s obligations to issue and deliver the Conversion Shares upon conversion of this Debenture in accordance with the terms hereof are absolute and unconditional, irrespective of any action or inaction by the Holder to enforce the same, any waiver or consent with respect to any provision hereof, the recovery of any judgment against any Person or any action to enforce the same, or any setoff, counterclaim, recoupment, limitation or termination, or any breach or alleged breach by the Holder or any other Person of any obligation to the Company or any violation or alleged violation of law by the Holder or any other Person, and irrespective of any other circumstance which might otherwise limit such obligation of the Company to the Holder in connection with the issuance of such Conversion Shares; provided, however, that such delivery shall not operate as a waiver by the Company of any such action the Company may have against the Holder. Nothing herein shall limit a Holder’s right to pursue actual damages or declare an Event of Default pursuant to Section 6 hereof for the Company’s failure to deliver Conversion Shares within the period specified herein and the Holder shall have the right to pursue all remedies available to it hereunder, at law or in equity including, without limitation, a decree of specific performance and/or injunctive relief. The exercise of any such rights shall not prohibit the Holder from seeking to enforce damages pursuant to any other Section hereof or under applicable law.

v. Reservation of Shares Issuable Upon Conversion. The Company covenants that it will at all times reserve and keep available out of its authorized and unissued shares of Common Stock for the sole purpose of issuance upon conversion of this Debenture, each as herein provided, free from preemptive rights or any other actual contingent purchase rights of Persons other than the Holder, not less than such aggregate number of shares of the Common Stock as shall be issuable upon the Conversion. The Company covenants that all shares of Common Stock that shall be so issuable shall, upon issue, be duly authorized, validly issued, fully paid and nonassessable.

vi. Transfer Taxes and Expenses. The issuance of Conversion Shares on conversion of this Debenture shall be made without charge to the Holder hereof for any documentary stamp or similar taxes that may be payable in respect of the issue or delivery of such Conversion Shares, provided that the Company shall not be required to pay any tax that may be payable in respect of any transfer involved in the issuance and delivery of any such Conversion Shares upon conversion in a name other than that of the Holder of this Debenture so converted and the Company shall not be required to issue or deliver such Conversion Shares unless or until the Person or Persons requesting the issuance thereof shall have paid to the Company the amount of such tax or shall have established to the satisfaction of the Company that such tax has been paid. The Company shall pay all transfer agent fees required for same-day processing of any Notice of Conversion and all fees to the Depository Trust Company.

Section 5. Certain Adjustments.

a) Fundamental Transaction. If, at any time while this Debenture is outstanding, (i) the Company, directly or indirectly, in one or more related transactions effects any merger or consolidation of the Company with or into another Person, (ii) the Company, directly or indirectly, effects any sale, lease, license, assignment, transfer, conveyance or other disposition of all or substantially all of its assets in one or a series of related transactions, (iii) any, direct or indirect, purchase offer, tender offer or exchange offer (whether by the Company or another Person) is completed pursuant to which holders of Common Stock are permitted to sell, tender or exchange their shares for other securities, cash or property and has been accepted by the holders of 50% or more of the outstanding Common Stock, (iv) the Company, directly or indirectly, in one or more related transactions effects any reclassification, reorganization or recapitalization of the Common Stock or any compulsory share exchange pursuant to which the Common Stock is effectively converted into or exchanged for other securities, cash or property, or (v) the Company, directly or indirectly, in one or more related transactions consummates a stock or share purchase agreement or other business combination (including, without limitation, a reorganization, recapitalization, spin-off or scheme of arrangement) with another Person whereby such other Person acquires more than 50% of the outstanding shares of Common Stock (not including any shares of Common Stock held by the other Person or other Persons making or party to, or associated or affiliated with the other Persons making or party to, such stock or share purchase agreement or other business combination) (each a “Fundamental Transaction”), then, upon any subsequent conversion of this Debenture, the Holder shall have the right to receive, for each Conversion Share that would have been issuable upon such conversion immediately prior to the occurrence of such Fundamental Transaction, the number of shares of Common Stock of the successor or acquiring corporation or of the Company, if it is the surviving corporation, and any additional consideration (the “Alternate Consideration”) receivable as a result of such Fundamental Transaction by a holder of the number of shares of Common Stock for which this Debenture is convertible immediately prior to such Fundamental Transaction. For purposes of any such conversion, the determination of the conversion consideration shall be appropriately adjusted to apply to such Alternate Consideration based on the amount of Alternate Consideration issuable in respect of one (1) share of Common Stock in such Fundamental Transaction, and the Company shall apportion the conversion consideration among the Alternate Consideration in a reasonable manner reflecting the relative value of any different components of the Alternate Consideration. The Company shall cause any successor entity in a Fundamental Transaction in which the Company is not the survivor (the “Successor Entity”) to assume in writing all of the obligations of the Company under this Debenture in accordance with the provisions of this Section 5(e) pursuant to written agreements in form and substance reasonably satisfactory to the Holder and approved by the Holder (without unreasonable delay) prior to such Fundamental Transaction.

b) Calculations. All calculations under this Section 5 shall be made to the nearest cent or the nearest 1/100th of a share, as the case may be. For purposes of this Section 5, the number of shares of Common Stock deemed to be issued and outstanding as of a given date shall be the sum of the number of shares of Common Stock (excluding any treasury shares of the Company) issued and outstanding.

c) Notice to the Holder.

i. Adjustment to Number of Conversion Shares. Whenever the Conversion Shares is adjusted pursuant to any provision of this Section 5, the Company shall promptly deliver to each Holder a notice setting forth the Conversion Shares after such adjustment and setting forth a brief statement of the facts requiring such adjustment.

ii. Notice to Allow Conversion by Holder. If (A) the Company shall declare a dividend (or any other distribution in whatever form) on the Common Stock, (B) the Company shall declare a special nonrecurring cash dividend on or a redemption of the Common Stock, (C) the Company shall authorize the granting to all holders of the Common Stock of rights or warrants to subscribe for or purchase any shares of capital stock of any class or of any rights, (D) the approval of any stockholders of the Company shall be required in connection with any reclassification of the Common Stock, any consolidation or merger to which the Company is a party, any sale or transfer of all or substantially all of the assets of the Company, or any compulsory share exchange whereby the Common Stock is converted into other securities, cash or property or (E) the Company shall authorize the voluntary or involuntary dissolution, liquidation or winding up of the affairs of the Company, then, in each case, the Company shall cause to be filed at each office or agency maintained for the purpose of conversion of this Debenture, and shall cause to be delivered to the Holder at its last address as it shall appear upon the Debenture Register, at least twenty (20) calendar days prior to the applicable record or effective date hereinafter specified, a notice stating (x) the date on which a record is to be taken for the purpose of such dividend, distribution, redemption, rights or warrants, or if a record is not to be taken, the date as of which the holders of the Common Stock of record to be entitled to such dividend, distributions, redemption, rights or warrants are to be determined or (y) the date on which such reclassification, consolidation, merger, sale, transfer or share exchange is expected to become effective or close, and the date as of which it is expected that holders of the Common Stock of record shall be entitled to exchange their shares of the Common Stock for securities, cash or other property deliverable upon such reclassification, consolidation, merger, sale, transfer or share exchange, provided that the failure to deliver such notice or any defect therein or in the delivery thereof shall not affect the validity of the corporate action required to be specified in such notice. To the extent that any notice provided hereunder constitutes, or contains, material, non-public information regarding the Company or any of the Subsidiaries, the Company shall simultaneously file such notice with the Commission pursuant to a Current Report on Form 8-K. The Holder shall remain entitled to convert this Debenture during the 20-day period commencing on the date of such notice through the effective date of the event triggering such notice except as may otherwise be expressly set forth herein. A filing with the Commission on the EDGAR system that provides such information shall be deemed to comply with this notice.

Section 6. Events of Default.

a) “Event of Default” means, wherever used herein, any of the following events (whatever the reason for such event and whether such event shall be voluntary or involuntary or effected by operation of law or pursuant to any judgment, decree or order of any court, or any order, rule or regulation of any administrative or governmental body):

i. any default in the payment of (A) the principal amount of any Debenture or (B) interest, liquidated damages and other amounts owing to a Holder on any Debenture, as and when the same shall become due and payable (whether on a Conversion Date or the Maturity Date or by acceleration or otherwise) which default, solely in the case of an interest payment or other default under clause (B) above, is not cured within 3 Trading Days;

ii. the Company or any Significant Subsidiary (as such term is defined in Rule 1-02(w) of Regulation S-X) shall be subject to a Bankruptcy Event;

iii. the Company shall fail for any reason to deliver Conversion Shares to a Holder prior to the fifth Trading Day after a Conversion Date pursuant to Section 4(c);

iv. a material breach by the Company of the representations, warranties, covenants, or terms and conditions as set forth in any of the Transaction Agreements (as such term is defined in the Purchase Agreement), which default is not cured within 3 Trading Days; or

v. the Company fails to (A) amend and restate its Articles of Incorporation of the Company and/or (B) amend and restate its Bylaws of the Company, as soon as practicable following the Closing.

b) Remedies Upon Event of Default. If any Event of Default occurs while this Debenture is outstanding, the entire outstanding principal amount of this Debenture, plus accrued but unpaid interest, and other amounts owed in respect thereof through the date of such Event of Default, shall become, at the Holder’s election (which election shall not be required in the case of an Event of Default under Section 6(a)(i) or (ii)), immediately due and payable in cash, and the Holder may exercise any and all other remedies granted to it at law, in equity or otherwise. Upon the occurrence of an Event of Default hereunder, the Company shall pay all reasonable attorneys’ fees and court costs incurred by the Holder in enforcing and collecting the Debenture.

Section 7. Miscellaneous.

a) Notices. Any and all notices or other communications or deliveries to be provided by the Holder hereunder, including, without limitation, any Notice of Conversion, shall be in writing and delivered personally, by facsimile, by email attachment, or sent by a nationally recognized overnight courier service, addressed to the Company, at the address set forth above, or such other facsimile number, email address, or address as the Company may specify for such purposes by notice to the Holder delivered in accordance with this Section 7(a).  Any and all notices or other communications or deliveries to be provided by the Company hereunder shall be in writing and delivered personally, by facsimile, by email attachment, or sent by a nationally recognized overnight courier service addressed to each Holder at the facsimile number, email address or address of the Holder appearing on the books of the Company, or if no such facsimile number or email attachment or address appears on the books of the Company, at the principal place of business of such Holder, as set forth in the Purchase Agreement.  Any notice or other communication or deliveries hereunder shall be deemed given and effective on the earliest of (i) the date of transmission, if such notice or communication is delivered via facsimile at the facsimile number or email attachment to the email address set forth on the signature pages attached hereto prior to 5:30 p.m. (New York City time) on any date, (ii) the next Trading Day after the date of transmission, if such notice or communication is delivered via facsimile at the facsimile number or email attachment to the email address set forth on the signature pages attached hereto on a day that is not a Trading Day or later than 5:30 p.m. (New York City time) on any Trading Day, (iii) the second Trading Day following the date of mailing, if sent by U.S. nationally recognized overnight courier service or (iv) upon actual receipt by the party to whom such notice is required to be given.

b) Absolute Obligation. Except as expressly provided herein, no provision of this Debenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of, liquidated damages and accrued interest, as applicable, on this Debenture at the time, place, and rate, and in the coin or currency, herein prescribed. This Debenture is a direct debt obligation of the Company. This Debenture ranks pari passu with all other Debentures now or hereafter issued under the terms set forth herein. 

c) Lost or Mutilated Debenture. If this Debenture shall be mutilated, lost, stolen or destroyed, the Company shall execute and deliver, in exchange and substitution for and upon cancellation of a mutilated Debenture, or in lieu of or in substitution for a lost, stolen or destroyed Debenture, a new Debenture for the principal amount of this Debenture so mutilated, lost, stolen or destroyed, but only upon receipt of evidence of such loss, theft or destruction of such Debenture, and of the ownership hereof, reasonably satisfactory to the Company.

d) Governing Law. All questions concerning the construction, validity, enforcement and interpretation of this Debenture shall be governed by and construed and enforced in accordance with the internal laws of the State of Florida, without regard to the principles of conflict of laws thereof. Each party agrees that all legal proceedings concerning the interpretation, enforcement and defense of the transactions contemplated by any of the Transaction Documents (whether brought against a party hereto or its respective Affiliates, directors, officers, shareholders, employees or agents) shall be commenced in the state and federal courts, in each case sitting in Miami-Dade County, Florida (and any appellate courts thereof). Each party hereto hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts sitting in the sitting in Miami-Dade County, Florida (and any appellate courts thereof) for the adjudication of any dispute hereunder or in connection herewith or with any transaction contemplated hereby or discussed herein (including with respect to the enforcement of any term of this Debenture), and hereby irrevocably waives, and agrees not to assert in any Proceeding, any claim that it is not personally subject to the jurisdiction of any such court, that such Proceeding is improper or is an inconvenient venue for such Proceeding. Each party hereby irrevocably waives personal service of process and consents to process being served in any such Proceeding by mailing a copy thereof via registered or certified mail or overnight delivery (with evidence of delivery) to such party at the address in effect for notices to it under this Debenture and agrees that such service shall constitute good and sufficient service of process and notice thereof. Nothing contained herein shall be deemed to limit in any way any right to serve process in any other manner permitted by law. Each party hereto hereby irrevocably waives, to the fullest extent permitted by applicable law, any and all right to trial by jury in any legal proceeding arising out of or relating to this Debenture or the transactions contemplated hereby. If any party shall commence an action or proceeding to enforce any provisions of this Debenture, then the prevailing party in such action or proceeding shall be reimbursed by the other party for its attorney’s fees and other costs and expenses incurred in the investigation, preparation and prosecution of such action or proceeding.

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

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

g) Remedies, Characterizations, Other Obligations, Breaches and Injunctive Relief.  The remedies provided in this Debenture shall be cumulative and in addition to all other remedies available under this Debenture and any of the other Transaction Documents at law or in equity (including a decree of specific performance and/or other injunctive relief), and nothing herein shall limit the Holder’s right to pursue actual and consequential damages for any failure by the Company to comply with the terms of this Debenture.  The Company covenants to the Holder that there shall be no characterization concerning this instrument other than as expressly provided herein. Amounts set forth or provided for herein with respect to payments, conversion and the like (and the computation thereof) shall be the amounts to be received by the Holder and shall not, except as expressly provided herein, be subject to any other obligation of the Company (or the performance thereof). The Company acknowledges that a breach by it of its obligations hereunder will cause irreparable harm to the Holder and that the remedy at law for any such breach may be inadequate. The Company therefore agrees that, in the event of any such breach or threatened breach, the Holder shall be entitled, in addition to all other available remedies, to an injunction restraining any such breach or any such threatened breach, without the necessity of showing economic loss and without any bond or other security being required. The Company shall provide all information and documentation to the Holder that is requested by the Holder to enable the Holder to confirm the Company’s compliance with the terms and conditions of this Debenture.

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

i) Headings. The headings contained herein are for convenience only, do not constitute a part of this Debenture and shall not be deemed to limit or affect any of the provisions hereof.

Section 8. Disclosure. Upon receipt or delivery by the Company of any notice in accordance with the terms of this Debenture, unless the Company has in good faith determined that the matters relating to such notice do not constitute material, nonpublic information relating to the Company or its Subsidiaries, the Company shall within four (4) Business Days after such receipt or delivery publicly disclose such material, nonpublic information on a Current Report on Form 8-K or otherwise. In the event that the Company believes that a notice contains material, non-public information relating to the Company or its Subsidiaries, the Company so shall indicate to the Holder contemporaneously with delivery of such notice, and in the absence of any such indication, the Holder shall be allowed to presume that all matters relating to such notice do not constitute material, nonpublic information relating to the Company or its Subsidiaries.

*********************

(Signature Page Follows)

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

ANNEX A

NOTICE OF CONVERSION

The undersigned hereby elects to convert principal under the 3% Convertible Debenture due December 31, 2021 of Cuentas Inc., a Florida corporation (the “Company”), into shares of common stock (the “Common Stock”), of the Company according to the conditions hereof, as of the date written below. No fee will be charged to the holder for any conversion, except for such transfer taxes, if any.

Conversion calculations:

Date to Effect Conversion: December 31, 2019

Principal Amount of Debenture to be Converted: $9,000,000

Number of shares of Common Stock to be issued: 25% of the fully-diluted outstanding shares of Common Stock of the Company as of December 31, 2019.

12

Exhibit 10.4

NEITHER THIS SECURITY NOR THE SECURITIES UNDERLYING THIS SECURITY HAVE BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS.

THIS WARRANT IS, AND THE UNDERLYING SHARES OF COMMON STOCK ARE, SUBJECT TO THE TERMS OF A VOTING AGREEMENT AND PROXY DATED AS OF THE DATE HEREOF, BY AND AMONG THE COMPANY AND THE OTHER PARTIES THERETO (THE “VOTING AGREEMENT”).

Date of Issuance (“Issue Date”): December 31, 2019

WARRANT

For value received, the receipt and sufficiency of which is hereby acknowledged, this Warrant is issued to Cima Telecom, Inc. (“Holder”), by Cuentas Inc., a Florida corporation (the “Company”). Reference is hereby made to that certain Note and Warrant Purchase Agreement, dated as of December 31, 2019, by and between the Company and the Holder (the “Purchase Agreement”). Capitalized terms not otherwise defined herein shall have the meanings set forth in the Purchase Agreement.

1. Purchase of Shares.

1.1 Number of Shares. Subject to the terms and conditions set forth herein and in the PurchaseAgreement, Holder shall be entitled, upon surrender of this Warrant, to purchase from the Company an aggregate of duly authorized, validly issued, fully paid and nonassessable shares (the “Shares”) of the Common Stock equal to twenty-five percent (25%) of total outstanding shares of the Company on a fully-diluted bases (taking into account any warrants, options, debt convertible into shares or other rights underlying shares of the Company) as of December 31, 2019; provided, however, that this Warrant shall increase to include 25% of any additional shares (or warrants, options, debt convertible into shares or other rights underlying shares of the Company) of the Company only to the extent such shares are issued in breach of the Voting Agreement and Proxy entered among Holder, the Company and the other parties thereto as of the date hereof (the “Voting Agreement”). The term “Warrant” as used herein shall be deemed to include any warrants issued upon transfer or partial exercise of this Warrant unless the context clearly requires otherwise. “Common Stock” means (a) the Company’s shares of common stock, $0.001 par value per share, and (b) any capital stock into which such common stock shall have been changed or any share capital resulting from a reclassification of such common stock or such other equity interest of the Company.

1.2 Exercise Price. In respect of the exercise of this Warrant pursuant to Section 1.1 above, the exercise price in the aggregate for all of the Shares issuable upon such exercise shall be equal to $1.00 (the “Exercise Price”) plus the value of the License, which value has already been received by the Company through the issuance of the License by an affiliate of the Holder to the Company (less any consideration provided by the Company to the Holder or its affiliates in connection therewith). Notwithstanding the immediately preceding sentence or Section 1.1, the number of Shares and the Exercise Price shall be subject to adjustment pursuant to Section 5 hereof. The term “License” as used herein shall be deemed to mean that certain License exectued as of the date hereof between the Company, Auris, LLC, a Florida limited liability company and Knetik, Inc., a Delaware corporation.

1.3 Vesting of Shares. This Warrant shall be fully vested and exercisable as of the date of issuance set forth above.

1.4 Restriction on Exercise. Notwithstanding anything set forth herein to the contrary, this Warrant will not be exercisable (and the Holder shall not provide any notice of exercise) if at the time of such exercise, Cuentas’ rights under the License have been terminated.

2. Exercise Period. This Warrant shall be exercisable, in whole only, during the term commencing on the Issue Date and ending on the earlier of (a) thirty (30) days following the date on which the Company’s Amended and Restated Articles of Incorporation have been filed with and accepted by the Secretary of State of the State of Florida or (b) upon a Change of Control (as defined below) (such date, the “Expiration Date”).

3. Method of Exercise. While this Warrant remains outstanding and exercisable in accordance with Section 2 above, Holder may exercise, in whole only, the purchase rights evidenced hereby. Such exercise shall be effected by:

(a) the surrender of this Warrant, together with a duly executed copy of the Notice of Exercise attached hereto, to the Secretary of the Company at its principal office (or at such other place as the Company shall notify Holder in writing); and

(b) the payment to the Company by check or wire transfer of immediately available funds to an account designated by the Company of an amount equal to the aggregate Exercise Price.

(c) Shares. As soon as reasonably practicable after the exercise of this Warrant as aforesaid, the Company at its expense will cause to be issued in the name of, and delivered to, Holder a certificate or certificates (with appropriate restrictive legends) for the number of Shares to which Holder shall be entitled in such denominations as may be requested by Holder

4. Legend. It is understood that the Shares shall bear the following legend:

“THE SHARES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS AND MAY NOT BE OFFERED, SOLD, PLEDGED, OR OTHERWISE TRANSFERRED OR DISPOSED OF UNLESS AND UNTIL THESE SHARES ARE REGISTERED UNDER THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS OR AN EXEMPTION FROM SUCH REGISTRATION IS AVAILABLE.

THE SHARES EVIDENCED HEREBY ARE SUBJECT TO AN VOTING AGREEMENT (A COPY OF WHICH MAY BE OBTAINED UPON WRITTEN REQUEST FROM THE COMPANY), AND BY ACCEPTING ANY INTEREST IN SUCH SHARES THE PERSON ACCEPTING SUCH INTEREST SHALL BE DEEMED TO AGREE TO AND SHALL BECOME BOUND BY ALL THE PROVISIONS OF THE VOTING AGREEMENT.”

5. Adjustment of Exercise Price and Number of Shares. The number of Shares purchasable upon exercise of this Warrant shall be subject to adjustment from time to time as follows:

5.1 Subdivisions, Combinations and Other Issuances. If the Company shall at any time after the issuance but prior to the expiration of this Warrant (i) subdivide its outstanding Common Stock, by split-up or otherwise, into a larger number of shares, (ii) combine its Common Stock into a smaller number of shares, or (iii) issue additional shares of its Common Stock as a dividend or distribution with respect to its outstanding Common Stock to all holders thereof, then in each such case the number of Shares that may be purchased upon exercise of this Warrant shall be increased or decreased proportionately, so that after such subdivisions, combinations, or other issuances, the adjusted number of Shares received by the Holder shall be the same on a pro rata basis to the Shares (on a pro rata basis) that the Holder would have received immediately prior to such adjustment. Any adjustment under this Section 7.1 shall become effective at the close of business on the date the subdivision or combination becomes effective, or as of the record date of such dividend, or in the event that no record date is fixed, upon the making of such dividend, provided that any adjustment that occurs hereunder on the record date of a dividend shall be null and void if such dividend is never paid or otherwise distributed by the Company.

5.2 Reclassification, Reorganization and Consolidation. In the event of any capital reorganization, consolidation, spin-off, merger, transfer of all or a substantial portion of the Company’s properties or assets, or any dissolution, liquidation, or winding up of the Company (other than as a result of a subdivision, combination, dividend, or distribution provided for in Section 5.1 above or other event provided for in Section 5.3 below) (a “Corporate Transaction”), then, as a condition of such Corporate Transaction, provision shall be made, and duly executed documents evidencing the same from the Company and any surviving or acquiring Person (the “Successor Company”) shall be delivered to Holder, so that Holder shall have the right to receive upon exercise of this Warrant the same number of shares of Common Stock, amount of cash and/or other property (as the case may be) that Holder would have been entitled to receive upon such Corporate Transaction had this Warrant been exercised immediately prior to the effective time of such Corporate Transaction (but taking account of any partial redemption of this Warrant required by Holder pursuant to Section 3.3 above). The Company shall provide that any Successor Company in such Corporate Transaction shall enter into an agreement with the Company confirming Holder’s rights pursuant to this Warrant, assuming the Company’s obligations under this Warrant, jointly and severally with the Company if the Company shall survive such Corporate Transaction, and providing after the date of such Corporate Transaction for adjustments, which shall be as nearly equivalent as possible to the adjustments provided for in this Section 7. The Company shall ensure that Holder is a beneficiary of such agreement and shall deliver a copy thereof to Holder. The provisions of this Section 5.2 shall apply similarly to successive Corporate Transactions involving any Successor Company. Dividends and Distributions.

(a) If the Company shall declare or make any dividend or other distribution of its assets (or rights to acquire its assets) to holders of shares of Common Stock, by way of return of capital or otherwise (including, without limitation, any distribution of cash, stock or other securities, property or options by way of a dividend, spin off, reclassification, corporate rearrangement, scheme of arrangement or other similar transaction) (other than (x) a dividend or distribution payable in additional shares of Common Stock that gives rise to an adjustment pursuant to Section 7.1 hereof, or (y) any dividend or distribution of cash paid out of retained earnings of the Company to the ESOP, but only to the extent subsequently paid to the Company to fund repayment of then-outstanding ESOP debt, or (z) any repurchase by the Company of shares of Common Stock from the ESOP or from current or former participants (or their beneficiaries) of the ESOP to fund the Company’s and/or the ESOP’s repurchase obligation or any other payment required pursuant to the terms of the ESOP or as required pursuant to the Code or ERISA) (a “Distribution”), at any time after the issuance of this Warrant, then, in each such case, the Holder shall be entitled to participate in such Distribution to the same extent that the Holder would have participated therein if the Holder had held the number of shares of Common Stock acquirable upon complete exercise of this Warrant immediately before the date on which a record is taken for such Distribution, or, if no such record is taken, the date as of which the record holders of shares of Common Stock are to be determined for the participation in such Distribution (provided, however, such Distribution shall be held in abeyance for the benefit of the Holder until such time as the Holder exercises this Warrant (whether in whole or in part), and, upon each exercise of this Warrant after such Distribution, the Company shall make such Distribution to the Holder with respect to each Share for which this Warrant is so exercised until such time as this Warrant has been exercised in full).

(b) If at any time the Company grants, issues or sells any Options (as defined below), Convertible Securities (as defined below) or rights to purchase stock, warrants, securities or other property pro rata to the record holders of all shares of Common Stock (the “Purchase Rights”), then the Holder will be entitled to acquire, upon the terms applicable to such Purchase Rights, the aggregate Purchase Rights which the Holder could have acquired if the Holder had held the number of shares of Common Stock acquirable upon complete exercise of this Warrant immediately before the date on which a record is taken for the grant, issuance or sale of such Purchase Rights, or, if no such record is taken, the date as of which the record holders of shares of Common Stock are to be determined for the grant, issue or sale of such Purchase Rights (provided, however, such Purchase Right shall be held in abeyance for the benefit of the Holder until such time as the Holder exercises this Warrant (whether in whole or in part), and, upon each exercise of this Warrant after such grant, issuance or sale of such Purchase Right, the Company shall deliver such Purchase Right to the Holder that is allocable to each Share for which this Warrant is so exercised until such time as this Warrant has been exercised in full).

5.3 Other Securities. In the event that (a) the Company shall, at any time or from time to time after the date of this Warrant and prior to the expiration of this Warrant, issue any shares of its capital stock in a reclassification or reorganization of the Company’s Common Stock, or (b) at any time, as a result of an adjustment made pursuant to this Section 5, the Holder shall become entitled to receive any securities of the Company other than shares of Common Stock, thereafter, in each such case, the number of such other securities so receivable upon exercise of this Warrant shall be subject to adjustment from time to time in a manner and on terms as nearly equivalent as practicable to the provisions with respect to the shares of Common Stock contained in this Section 5 such that the Holder shall receive its pro rata share of such securities as such pro rata share was originally contemplated (subject to adjustment) as set forth in Section 1 herein.

5.4 Other Events. If any other similar event occurs as to which the provisions of this Section 5 are not strictly applicable or if strictly applicable would not fairly protect the purchase rights of Holder in accordance with such provisions, then the Board of Directors of the Company shall make an adjustment in the number of Shares available under this Warrant or the applicability of such provisions so as to protect such purchase rights. The adjustment shall be such as will give Holder upon exercise of the Exercise Price the total number of shares of Common Stock as Holder would have owned had this Warrant been exercised prior to the event and had Holder continued to hold such Common Stock until after the event requiring the adjustment, but in no event shall any such adjustment have the effect of increasing or decreasing the Exercise Price.

5.5 Minimum Adjustment. The adjustments required by the preceding subsections of this Section 5 shall be made whenever and as often as any specified event requiring an adjustment shall occur.

5.6 Accountants’ Report as to Adjustments. In the case of any adjustment in the number of Shares purchasable upon exercise of this Warrant or the Exercise Price, the Company, at its sole expense, shall promptly (a) compute such adjustment in accordance with the terms of this Warrant and, if Holder so requests in writing from the Company within thirty (30) days of receipt of such computations from the Company, cause independent certified public accountants to verify such computation at the expense of Company, (b) prepare a report setting forth such adjustment and showing in reasonable detail the method of calculation thereof and the facts upon which such adjustment is based, including, without limitation, (i) the event or events giving rise to such adjustment, (ii) the number of shares of Common Stock outstanding or deemed to be outstanding prior and subsequent to any such transaction, (iii) the method by which any such adjustment was calculated (including a description of the basis on which the Board made any determination of fair market value) and (iv) the number of Shares purchasable upon exercise of this Warrant and the Exercise Price in effect immediately prior to such event or events and as adjusted, (c) send a copy of each such report to Holder and, upon the request at any time of Holder, furnish to Holder a like report setting forth the number of Shares purchasable upon exercise of this Warrant and the Exercise Price at the time in effect and showing in reasonable detail how they were calculated, and (d) keep copies of all such reports available at the principal office of the Company for inspection during normal business hours by Holder or any prospective qualified purchaser of this Warrant designated by Holder.

5.7 No Dilution or Impairment. The Company shall not, by amendment of its Certificate of Incorporation or other organizational document or through any sale or other issuance of securities, capital reorganization, reclassification, recapitalization, consolidation, merger, transfer of assets, dissolution, liquidation, winding up or any similar transaction, or any other voluntary action, to avoid or to seek to avoid the observance or performance of any of the terms of this Warrant, but will at all times in good faith assist in the carrying out of all terms hereunder and in the taking of all such action as may be necessary or appropriate in order to protect the rights of Holder against dilution or other impairment in a manner that is consistent with the Company’s obligations hereunder. Without limiting the generality of the foregoing, the Company (a) will not permit the par value of any shares of Common Stock receivable upon the exercise of this Warrant to exceed the Exercise Price and (b) will take all such action as may be necessary or appropriate in order that the Company may validly and legally issue fully paid and nonassessable shares of Common Stock upon the exercise of this Warrant by Holder. Without limiting the generality of the foregoing, before taking any action that would cause a reduction of the Exercise Price pursuant to this Section 5 to an amount less than the then par value (if any) of the Common Stock, the Company shall take any and all corporate action (including, without limitation, a reduction in par value) which shall be necessary to validly and legally issue fully paid and nonassessable shares of Common Stock, as the case may be, at the Exercise Price as so reduced.

5.8 Notice of Corporate Action. In the event the Company proposes to: (a) take any action that would require an adjustment in the Exercise Price or the number of Warrant Shares hereunder, (b) pay, distribute, or take a record of Holders of any class of securities for the purpose of determining Holders thereof who are entitled to receive any dividend or other distribution, or any right to subscribe for, purchase or otherwise acquire any shares of capital stock or any other securities or property, (c) consummate any change of control, reclassification, capital reorganization, reorganization or any similar transaction, (d) effect a sale of any material asset or assets of the Company, (e) effect a redemption or repurchase of any of the Company’s Common Stock or other equity securities, or (f) effect the voluntary or involuntary dissolution, liquidation or winding-up of the Company, then, at least twenty (20) days prior to the earlier of any applicable record date or such event, as the case may be, the Company shall mail to Holder a notice specifying: (i) the date or expected date on which any such payment or distribution is to be made or record is to be taken and the amount and character of any such dividend, distribution, or right, (ii) the date or expected date on which any such change of control, reclassification, capital reorganization, reorganization, similar transaction or dissolution, liquidation or winding up is to take effect and any record date therefor, (iii) the time as of which any holders of record of shares of Common Stock and/or any other class of securities shall be entitled to exchange their shares of Common Stock and/or other securities for the securities or other property deliverable upon such Change of Control, reclassification, capital reorganization, reorganization or similar transaction and a description in reasonable detail of such transaction, and (iv) in each case, the expected effect on the number of Shares purchasable upon exercise of this Warrant and the Exercise Price of such action, transaction or event.

6. No Fractional Shares. No fractional shares of Common Stock shall be issued in connection with any exercise hereunder, but in lieu of such fractional shares the Company shall make a cash payment therefor based on the fair market value thereof.

7. No Stockholder Rights. Prior to exercise of this Warrant, Holder shall not have any liability or obligations as a holder of the Shares issuable upon exercise hereof, and shall not be entitled to any rights of a stockholder with respect to the Shares, including (without limitation) the right to vote such Shares, receive dividends or other distributions thereon, exercise preemptive rights or be notified of stockholder meetings, and, except as otherwise provided in this Warrant, such Holder shall not be entitled to any stockholder notice or other communication concerning the business or affairs of the Company; provided, that Holder shall be entitled to the rights set forth in the Voting Agreement that are expressly applicable to the Holder of this Warrant.

8. Certain Covenants. The Company covenants and agrees that while any Warrants are outstanding, it shall perform and comply with all covenants set forth herein and in the Agreement.

9. Definitions. In addition to the capitalized terms defined elsewhere in this Warrant, the following capitalized terms have the following respective meanings when used in this Warrant:

“Business Day” shall mean a day, other than Saturday or Sunday, on which the banks are authorized or required to be open in Miami, Florida.

10. Reimbursement. The Company shall promptly reimburse the Holder for or pay any reasonable costs and expenses (including reasonable fees and expenses of its counsel) the Holder incurs in connection with the successful enforcement of its rights against the Company under this Warrant. The Company will also bear the reasonable legal fees and disbursements of the Holder’s legal counsel in connection with any mutually agreed upon waivers under or amendments to this Warrant, or any amendments or waivers proposed by the Company whether or not effected.

11. Transfer of Warrant. Subject to compliance with applicable federal and state securities laws and any other contractual restrictions between the Company and Holder contained herein, this Warrant and the Shares issuable upon exercise hereof are transferable only as set forth in the Voting Agreement.

12. Governing Law. This Warrant shall be governed by, and construed in accordance with, the laws of the State of Florida applicable to contracts executed in and to be performed in that State, without regard to its choice of law principles.

13. Successors and Assigns. The terms and provisions of this Warrant shall inure to the benefit of, and be binding upon, the Company, the Holder and their respective successors and assigns.

14. Headings. Headings of the Sections of this Warrant are for convenience of the parties only and shall be given no substantive or interpretive effect whatsoever.

15. Notices. Any notice required to be given hereunder shall be sufficient if in writing, and sent by email transmission with no error or return transmittal message received by the sender (provided that any notice received by email or otherwise at the addressee’s location on any Business Day after 5:00 p.m. (addressee’s local time) shall be deemed to have been received at 9:00 a.m. (addressee’s local time) on the next Business Day), by reliable overnight delivery service (with proof of service), hand delivery or certified or registered mail (return receipt requested and first-class postage prepaid), addressed as follows:

If to the Company, to:

Cuentas, Inc.

Michael De Prado – President & COO

200 S. Biscayne Blvd., SUITE 5500

Miami, FL 33131

Michael@cuentas.com

If to Holder, to:

CIMA Telecom, Inc.

1728 SW 22^nd Street

Suite 600

Miami, FL 33145

legal@cimagroup.com

16. Entire Agreement; Amendments and Waivers. The Purchase Agreement, this Warrant and the documents delivered pursuant hereto constitute the entire agreement, and supersede all other prior agreements and understandings, both written and oral, between the parties with respect to the subject matter hereof. Subject to the Voting Agreement, any provision of this Warrant may be amended or waived if, and only if, such amendment or waiver is in writing and signed by the Company and Holder. Any such amendment, modification, supplement, omission, waiver, or consent shall be binding upon the Holder and its successors and permitted assigns and upon the Company and its successors and permitted assigns, whether or not such Warrant shall have been marked to indicate such amendment, modification, supplement, omission, waiver, or consent.

17. Severability. Any term or provision of this Warrant which is invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the extent of such invalidity or unenforceability without rendering invalid or unenforceable the remaining terms and provisions of this Warrant in any other jurisdiction. If any provision of this Warrant is so broad as to be unenforceable, such provision shall be interpreted to be only so broad as is enforceable. Upon any such determination that any portion of this Warrant is invalid or enenfoceable, the parties hereto shall negotiate in good faith to modify this Warrant so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.

18. Reservation of Shares. The Company covenants and agrees that during the period within which the rights represented by this Warrant may be exercised, the Company will at all times have authorized and reserved, for the purpose of issue or transfer upon exercise of the subscription rights evidenced by this Warrant, a sufficient number of shares of authorized but unissued Common Stock, or other securities and property, when and as required to provide for the exercise of the rights represented by this Warrant. The Company will take all such action as may be necessary to assure that such Shares may be validly issued as provided herein without violation of any applicable law or regulation or of any requirements of any domestic securities exchange upon which the Shares may be then listed.

19. Issue Tax. The issuance of certificates for Shares upon the exercise of this Warrant shall be made without charge to Holder of this Warrant for any issue tax in respect thereof; provided, however, that the Company shall not be required to pay any tax which may be payable in respect of any transfer involved in the issuance and delivery of any certificate in a name other than that of the then Holder of this Warrant being exercised.

20. Remedies. The Company stipulates that the remedies at law of Holder in the event of any default or threatened default by the Company in the performance of or compliance with any of the terms of this Warrant may not be adequate, and that such terms may be specifically enforced by a decree for the specific performance of any agreement contained herein or by an injunction against a violation of any terms hereof or otherwise. No failure or delay on the part of Holder in exercising any right, power or remedy hereunder shall operate as a suspension or waiver thereof, nor shall any single or partial exercise of any such right, power or remedy preclude any other or further exercise thereof or the exercise of any other right, power or remedy hereunder. The remedies herein provided are in addition to and not exclusive of any other remedies provided at law or in equity.

21. Lost Warrants or Stock Certificates. Upon receipt of evidence reasonably satisfactory to the Company of the loss, theft, destruction, or mutilation of any Warrant or stock certificate representing any Shares issued hereunder and, in the case of any such loss, theft, or destruction, upon receipt of an indemnity reasonably satisfactory to the Company, or in the case of any such mutilation upon surrender and cancellation of such Warrant or stock certificate, the Company at Holder’s expense will make and deliver a new Warrant or stock certificate, of like tenor, in lieu of the lost, stolen, destroyed, or mutilated Warrant or stock certificate.

22. Voting Agreement. Holder acknowledges that this Warrant is a “Warrant” under the terms of the Voting Agreement, and Holder is bound by the restrictions set forth in such agreement.

[Remainder of page intentionally left blank; signature page follows]

IN WITNESS WHEREOF, the Company has caused this Warrant to be executed in its corporate name by its duly authorized officer and to be dated as of the date first set forth above.

Acknowledged and agreed to:

HOLDER:

CIMA TELECOM, INC.

Signature Page to Warrant

NOTICE OF EXERCISE

WO Partners Holdings, Inc.

Attention: Corporate Secretary

The undersigned hereby elects to purchase, pursuant to the provisions of the Warrant, as follows:

10

Exhibit 10.5

NEITHER THIS SECURITY NOR THE SECURITIES UNDERLYING THIS SECURITY HAVE BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS.

THIS WARRANT IS, AND THE UNDERLYING SHARES OF COMMON STOCK ARE, SUBJECT TO THE TERMS OF A VOTING AGREEMENT AND PROXY DATED AS OF THE DATE HEREOF, BY AND AMONG THE COMPANY AND THE OTHER PARTIES THERETO (THE “VOTING AGREEMENT”).

Date of Issuance (“Issue Date”): December 31, 2019

WARRANT

For value received, the receipt and sufficiency of which is hereby acknowledged, this Warrant is issued to Dinar Zuz, LLC (“Holder” or “Dinar Zuz”), by Cuentas Inc., a Florida corporation (the “Company”). Reference is hereby made to that certain Note and Warrant Purchase Agreement, dated as of December 31, 2019, by and between the Company and the Holder (the “Purchase Agreement”). Capitalized terms not otherwise defined herein shall have the meanings set forth in the Purchase Agreement.

1. Purchase of Shares.

1.1 Number of Shares. Subject to the terms and conditions set forth herein and in the PurchaseAgreement, Holder shall be entitled, upon surrender of this Warrant, to purchase from the Company an aggregate of duly authorized, validly issued, fully paid and nonassessable shares (the “Shares”) of the Common Stock equal to twenty-five percent (25%) of total outstanding shares of the Company on a fully-diluted bases (taking into account any warrants, options, debt convertible into shares or other rights underlying shares of the Company) as of December 31, 2019; provided, however, that this Warrant shall increase to include 25% of any additional shares (or warrants, options, debt convertible into shares or other rights underlying shares of the Company) of the Company only to the extent such shares are issued in breach of the Voting Agreement and Proxy entered among Dinar Zuz, the Company and the other parties thereto as of the date hereof (the “Voting Agreement”). The term “Warrant” as used herein shall be deemed to include any warrants issued upon transfer or partial exercise of this Warrant unless the context clearly requires otherwise. “Common Stock” means (a) the Company’s shares of common stock, $0.001 par value per share, and (b) any capital stock into which such common stock shall have been changed or any share capital resulting from a reclassification of such common stock or such other equity interest of the Company.

1.2 Exercise Price. In respect of the exercise of this Warrant pursuant to Section 1.1 above, the exercise price in the aggregate for all of the Shares issuable upon such exercise shall be equal to $1.00 (the “Exercise Price”) plus the value of the convertible note owned by Dinar Zuz.

1.3 Vesting of Shares. This Warrant shall be fully vested and exercisable as of the date of issuance set forth above.

1.4 Restriction on Exercise. Notwithstanding anything set forth herein to the contrary, this Warrant will not be exercisable (and the Holder shall not provide any notice of exercise) if at the time of such exercise, Cuentas’ rights under the License have been terminated.

2. Exercise Period. This Warrant shall be exercisable, in whole only, during the term commencing on the Issue Date and ending on the earlier of (a) thirty (30) days following the date on which the Company’s Amended and Restated Articles of Incorporation have been filed with and accepted by the Secretary of State of the State of Florida or (b) upon a Change of Control (as defined below) (such date, the “Expiration Date”).

3. Method of Exercise. While this Warrant remains outstanding and exercisable in accordance with Section 2 above, Holder may exercise, in whole only, the purchase rights evidenced hereby. Such exercise shall be effected by:

(a) the surrender of this Warrant, together with a duly executed copy of the Notice of Exercise attached hereto, to the Secretary of the Company at its principal office (or at such other place as the Company shall notify Holder in writing); and

(b) the payment to the Company by check or wire transfer of immediately available funds to an account designated by the Company of an amount equal to the aggregate Exercise Price.

(c) Shares. As soon as reasonably practicable after the exercise of this Warrant as aforesaid, the Company at its expense will cause to be issued in the name of, and delivered to, Holder a certificate or certificates (with appropriate restrictive legends) for the number of Shares to which Holder shall be entitled in such denominations as may be requested by Holder

4. Legend. It is understood that the Shares shall bear the following legend:

“THE SHARES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS AND MAY NOT BE OFFERED, SOLD, PLEDGED, OR OTHERWISE TRANSFERRED OR DISPOSED OF UNLESS AND UNTIL THESE SHARES ARE REGISTERED UNDER THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS OR AN EXEMPTION FROM SUCH REGISTRATION IS AVAILABLE.

THE SHARES EVIDENCED HEREBY ARE SUBJECT TO AN VOTING AGREEMENT (A COPY OF WHICH MAY BE OBTAINED UPON WRITTEN REQUEST FROM THE COMPANY), AND BY ACCEPTING ANY INTEREST IN SUCH SHARES THE PERSON ACCEPTING SUCH INTEREST SHALL BE DEEMED TO AGREE TO AND SHALL BECOME BOUND BY ALL THE PROVISIONS OF THE VOTING AGREEMENT.”

5. Adjustment of Exercise Price and Number of Shares. The number of Shares purchasable upon exercise of this Warrant shall be subject to adjustment from time to time as follows:

5.1 Subdivisions, Combinations and Other Issuances. If the Company shall at any time after the issuance but prior to the expiration of this Warrant (i) subdivide its outstanding Common Stock, by split-up or otherwise, into a larger number of shares, (ii) combine its Common Stock into a smaller number of shares, or (iii) issue additional shares of its Common Stock as a dividend or distribution with respect to its outstanding Common Stock to all holders thereof, then in each such case the number of Shares that may be purchased upon exercise of this Warrant shall be increased or decreased proportionately, so that after such subdivisions, combinations, or other issuances, the adjusted number of Shares received by the Holder shall be the same on a pro rata basis to the Shares (on a pro rata basis) that the Holder would have received immediately prior to such adjustment. Any adjustment under this Section 7.1 shall become effective at the close of business on the date the subdivision or combination becomes effective, or as of the record date of such dividend, or in the event that no record date is fixed, upon the making of such dividend, provided that any adjustment that occurs hereunder on the record date of a dividend shall be null and void if such dividend is never paid or otherwise distributed by the Company.

5.2 Reclassification, Reorganization and Consolidation. In the event of any capital reorganization, consolidation, spin-off, merger, transfer of all or a substantial portion of the Company’s properties or assets, or any dissolution, liquidation, or winding up of the Company (other than as a result of a subdivision, combination, dividend, or distribution provided for in Section 5.1 above or other event provided for in Section 5.3 below) (a “Corporate Transaction”), then, as a condition of such Corporate Transaction, provision shall be made, and duly executed documents evidencing the same from the Company and any surviving or acquiring Person (the “Successor Company”) shall be delivered to Holder, so that Holder shall have the right to receive upon exercise of this Warrant the same number of shares of Common Stock, amount of cash and/or other property (as the case may be) that Holder would have been entitled to receive upon such Corporate Transaction had this Warrant been exercised immediately prior to the effective time of such Corporate Transaction (but taking account of any partial redemption of this Warrant required by Holder pursuant to Section 3.3 above). The Company shall provide that any Successor Company in such Corporate Transaction shall enter into an agreement with the Company confirming Holder’s rights pursuant to this Warrant, assuming the Company’s obligations under this Warrant, jointly and severally with the Company if the Company shall survive such Corporate Transaction, and providing after the date of such Corporate Transaction for adjustments, which shall be as nearly equivalent as possible to the adjustments provided for in this Section 7. The Company shall ensure that Holder is a beneficiary of such agreement and shall deliver a copy thereof to Holder. The provisions of this Section 5.2 shall apply similarly to successive Corporate Transactions involving any Successor Company. Dividends and Distributions.

(a) If the Company shall declare or make any dividend or other distribution of its assets (or rights to acquire its assets) to holders of shares of Common Stock, by way of return of capital or otherwise (including, without limitation, any distribution of cash, stock or other securities, property or options by way of a dividend, spin off, reclassification, corporate rearrangement, scheme of arrangement or other similar transaction) (other than (x) a dividend or distribution payable in additional shares of Common Stock that gives rise to an adjustment pursuant to Section 7.1 hereof, or (y) any dividend or distribution of cash paid out of retained earnings of the Company to the ESOP, but only to the extent subsequently paid to the Company to fund repayment of then-outstanding ESOP debt, or (z) any repurchase by the Company of shares of Common Stock from the ESOP or from current or former participants (or their beneficiaries) of the ESOP to fund the Company’s and/or the ESOP’s repurchase obligation or any other payment required pursuant to the terms of the ESOP or as required pursuant to the Code or ERISA) (a “Distribution”), at any time after the issuance of this Warrant, then, in each such case, the Holder shall be entitled to participate in such Distribution to the same extent that the Holder would have participated therein if the Holder had held the number of shares of Common Stock acquirable upon complete exercise of this Warrant immediately before the date on which a record is taken for such Distribution, or, if no such record is taken, the date as of which the record holders of shares of Common Stock are to be determined for the participation in such Distribution (provided, however, such Distribution shall be held in abeyance for the benefit of the Holder until such time as the Holder exercises this Warrant (whether in whole or in part), and, upon each exercise of this Warrant after such Distribution, the Company shall make such Distribution to the Holder with respect to each Share for which this Warrant is so exercised until such time as this Warrant has been exercised in full).

(b) If at any time the Company grants, issues or sells any Options (as defined below), Convertible Securities (as defined below) or rights to purchase stock, warrants, securities or other property pro rata to the record holders of all shares of Common Stock (the “Purchase Rights”), then the Holder will be entitled to acquire, upon the terms applicable to such Purchase Rights, the aggregate Purchase Rights which the Holder could have acquired if the Holder had held the number of shares of Common Stock acquirable upon complete exercise of this Warrant immediately before the date on which a record is taken for the grant, issuance or sale of such Purchase Rights, or, if no such record is taken, the date as of which the record holders of shares of Common Stock are to be determined for the grant, issue or sale of such Purchase Rights (provided, however, such Purchase Right shall be held in abeyance for the benefit of the Holder until such time as the Holder exercises this Warrant (whether in whole or in part), and, upon each exercise of this Warrant after such grant, issuance or sale of such Purchase Right, the Company shall deliver such Purchase Right to the Holder that is allocable to each Share for which this Warrant is so exercised until such time as this Warrant has been exercised in full).

5.3 Other Securities. In the event that (a) the Company shall, at any time or from time to time after the date of this Warrant and prior to the expiration of this Warrant, issue any shares of its capital stock in a reclassification or reorganization of the Company’s Common Stock, or (b) at any time, as a result of an adjustment made pursuant to this Section 5, the Holder shall become entitled to receive any securities of the Company other than shares of Common Stock, thereafter, in each such case, the number of such other securities so receivable upon exercise of this Warrant shall be subject to adjustment from time to time in a manner and on terms as nearly equivalent as practicable to the provisions with respect to the shares of Common Stock contained in this Section 5 such that the Holder shall receive its pro rata share of such securities as such pro rata share was originally contemplated (subject to adjustment) as set forth in Section 1 herein.

5.4 Other Events. If any other similar event occurs as to which the provisions of this Section 5 are not strictly applicable or if strictly applicable would not fairly protect the purchase rights of Holder in accordance with such provisions, then the Board of Directors of the Company shall make an adjustment in the number of Shares available under this Warrant or the applicability of such provisions so as to protect such purchase rights. The adjustment shall be such as will give Holder upon exercise of the Exercise Price the total number of shares of Common Stock as Holder would have owned had this Warrant been exercised prior to the event and had Holder continued to hold such Common Stock until after the event requiring the adjustment, but in no event shall any such adjustment have the effect of increasing or decreasing the Exercise Price.

5.5 Minimum Adjustment. The adjustments required by the preceding subsections of this Section 5 shall be made whenever and as often as any specified event requiring an adjustment shall occur.

5.6 Accountants’ Report as to Adjustments. In the case of any adjustment in the number of Shares purchasable upon exercise of this Warrant or the Exercise Price, the Company, at its sole expense, shall promptly (a) compute such adjustment in accordance with the terms of this Warrant and, if Holder so requests in writing from the Company within thirty (30) days of receipt of such computations from the Company, cause independent certified public accountants to verify such computation at the expense of Company, (b) prepare a report setting forth such adjustment and showing in reasonable detail the method of calculation thereof and the facts upon which such adjustment is based, including, without limitation, (i) the event or events giving rise to such adjustment, (ii) the number of shares of Common Stock outstanding or deemed to be outstanding prior and subsequent to any such transaction, (iii) the method by which any such adjustment was calculated (including a description of the basis on which the Board made any determination of fair market value) and (iv) the number of Shares purchasable upon exercise of this Warrant and the Exercise Price in effect immediately prior to such event or events and as adjusted, (c) send a copy of each such report to Holder and, upon the request at any time of Holder, furnish to Holder a like report setting forth the number of Shares purchasable upon exercise of this Warrant and the Exercise Price at the time in effect and showing in reasonable detail how they were calculated, and (d) keep copies of all such reports available at the principal office of the Company for inspection during normal business hours by Holder or any prospective qualified purchaser of this Warrant designated by Holder.

5.7 No Dilution or Impairment. The Company shall not, by amendment of its Certificate of Incorporation or other organizational document or through any sale or other issuance of securities, capital reorganization, reclassification, recapitalization, consolidation, merger, transfer of assets, dissolution, liquidation, winding up or any similar transaction, or any other voluntary action, to avoid or to seek to avoid the observance or performance of any of the terms of this Warrant, but will at all times in good faith assist in the carrying out of all terms hereunder and in the taking of all such action as may be necessary or appropriate in order to protect the rights of Holder against dilution or other impairment in a manner that is consistent with the Company’s obligations hereunder. Without limiting the generality of the foregoing, the Company (a) will not permit the par value of any shares of Common Stock receivable upon the exercise of this Warrant to exceed the Exercise Price and (b) will take all such action as may be necessary or appropriate in order that the Company may validly and legally issue fully paid and nonassessable shares of Common Stock upon the exercise of this Warrant by Holder. Without limiting the generality of the foregoing, before taking any action that would cause a reduction of the Exercise Price pursuant to this Section 5 to an amount less than the then par value (if any) of the Common Stock, the Company shall take any and all corporate action (including, without limitation, a reduction in par value) which shall be necessary to validly and legally issue fully paid and nonassessable shares of Common Stock, as the case may be, at the Exercise Price as so reduced.

5.8 Notice of Corporate Action. In the event the Company proposes to: (a) take any action that would require an adjustment in the Exercise Price or the number of Warrant Shares hereunder, (b) pay, distribute, or take a record of Holders of any class of securities for the purpose of determining Holders thereof who are entitled to receive any dividend or other distribution, or any right to subscribe for, purchase or otherwise acquire any shares of capital stock or any other securities or property, (c) consummate any change of control, reclassification, capital reorganization, reorganization or any similar transaction, (d) effect a sale of any material asset or assets of the Company, (e) effect a redemption or repurchase of any of the Company’s Common Stock or other equity securities, or (f) effect the voluntary or involuntary dissolution, liquidation or winding-up of the Company, then, at least twenty (20) days prior to the earlier of any applicable record date or such event, as the case may be, the Company shall mail to Holder a notice specifying: (i) the date or expected date on which any such payment or distribution is to be made or record is to be taken and the amount and character of any such dividend, distribution, or right, (ii) the date or expected date on which any such change of control, reclassification, capital reorganization, reorganization, similar transaction or dissolution, liquidation or winding up is to take effect and any record date therefor, (iii) the time as of which any holders of record of shares of Common Stock and/or any other class of securities shall be entitled to exchange their shares of Common Stock and/or other securities for the securities or other property deliverable upon such Change of Control, reclassification, capital reorganization, reorganization or similar transaction and a description in reasonable detail of such transaction, and (iv) in each case, the expected effect on the number of Shares purchasable upon exercise of this Warrant and the Exercise Price of such action, transaction or event.

6. No Fractional Shares. No fractional shares of Common Stock shall be issued in connection with any exercise hereunder, but in lieu of such fractional shares the Company shall make a cash payment therefor based on the fair market value thereof.

7. No Stockholder Rights. Prior to exercise of this Warrant, Holder shall not have any liability or obligations as a holder of the Shares issuable upon exercise hereof, and shall not be entitled to any rights of a stockholder with respect to the Shares, including (without limitation) the right to vote such Shares, receive dividends or other distributions thereon, exercise preemptive rights or be notified of stockholder meetings, and, except as otherwise provided in this Warrant, such Holder shall not be entitled to any stockholder notice or other communication concerning the business or affairs of the Company; provided, that Holder shall be entitled to the rights set forth in the Voting Agreement that are expressly applicable to the Holder of this Warrant.

8. Certain Covenants. The Company covenants and agrees that while any Warrants are outstanding, it shall perform and comply with all covenants set forth herein and in the Agreement.

9. Definitions. In addition to the capitalized terms defined elsewhere in this Warrant, the following capitalized terms have the following respective meanings when used in this Warrant:

“Business Day” shall mean a day, other than Saturday or Sunday, on which the banks are authorized or required to be open in Miami, Florida.

10. Reimbursement. The Company shall promptly reimburse the Holder for or pay any reasonable costs and expenses (including reasonable fees and expenses of its counsel) the Holder incurs in connection with the successful enforcement of its rights against the Company under this Warrant. The Company will also bear the reasonable legal fees and disbursements of the Holder’s legal counsel in connection with any mutually agreed upon waivers under or amendments to this Warrant, or any amendments or waivers proposed by the Company whether or not effected.

11. Transfer of Warrant. Subject to compliance with applicable federal and state securities laws and any other contractual restrictions between the Company and Holder contained herein, this Warrant and the Shares issuable upon exercise hereof are transferable only as set forth in the Voting Agreement.

12. Governing Law. This Warrant shall be governed by, and construed in accordance with, the laws of the State of Florida applicable to contracts executed in and to be performed in that State, without regard to its choice of law principles.

13. Successors and Assigns. The terms and provisions of this Warrant shall inure to the benefit of, and be binding upon, the Company, the Holder and their respective successors and assigns.

14. Headings. Headings of the Sections of this Warrant are for convenience of the parties only and shall be given no substantive or interpretive effect whatsoever.

15. Notices. Any notice required to be given hereunder shall be sufficient if in writing, and sent by email transmission with no error or return transmittal message received by the sender (provided that any notice received by email or otherwise at the addressee’s location on any Business Day after 5:00 p.m. (addressee’s local time) shall be deemed to have been received at 9:00 a.m. (addressee’s local time) on the next Business Day), by reliable overnight delivery service (with proof of service), hand delivery or certified or registered mail (return receipt requested and first-class postage prepaid), addressed as follows:

If to the Company, to:

Cuentas, Inc.

Michael De Prado – President & COO

200 S. Biscayne Blvd., SUITE 5500

Miami, FL 33131

Michael@cuentas.com

If to Holder, to:

Dinar Zuz, LLC

Yochanan Brook –CEO

200 S. Biscayne Blvd., SUITE 5500

Miami, FL 33131

Michael@cuentas.com

16. Entire Agreement; Amendments and Waivers. The Purchase Agreement, this Warrant and the documents delivered pursuant hereto constitute the entire agreement, and supersede all other prior agreements and understandings, both written and oral, between the parties with respect to the subject matter hereof. Subject to the Voting Agreement, any provision of this Warrant may be amended or waived if, and only if, such amendment or waiver is in writing and signed by the Company and Holder. Any such amendment, modification, supplement, omission, waiver, or consent shall be binding upon the Holder and its successors and permitted assigns and upon the Company and its successors and permitted assigns, whether or not such Warrant shall have been marked to indicate such amendment, modification, supplement, omission, waiver, or consent.

17. Severability. Any term or provision of this Warrant which is invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the extent of such invalidity or unenforceability without rendering invalid or unenforceable the remaining terms and provisions of this Warrant in any other jurisdiction. If any provision of this Warrant is so broad as to be unenforceable, such provision shall be interpreted to be only so broad as is enforceable. Upon any such determination that any portion of this Warrant is invalid or enenfoceable, the parties hereto shall negotiate in good faith to modify this Warrant so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.

18. Reservation of Shares. The Company covenants and agrees that during the period within which the rights represented by this Warrant may be exercised, the Company will at all times have authorized and reserved, for the purpose of issue or transfer upon exercise of the subscription rights evidenced by this Warrant, a sufficient number of shares of authorized but unissued Common Stock, or other securities and property, when and as required to provide for the exercise of the rights represented by this Warrant. The Company will take all such action as may be necessary to assure that such Shares may be validly issued as provided herein without violation of any applicable law or regulation or of any requirements of any domestic securities exchange upon which the Shares may be then listed.

19. Issue Tax. The issuance of certificates for Shares upon the exercise of this Warrant shall be made without charge to Holder of this Warrant for any issue tax in respect thereof; provided, however, that the Company shall not be required to pay any tax which may be payable in respect of any transfer involved in the issuance and delivery of any certificate in a name other than that of the then Holder of this Warrant being exercised.

20. Remedies. The Company stipulates that the remedies at law of Holder in the event of any default or threatened default by the Company in the performance of or compliance with any of the terms of this Warrant may not be adequate, and that such terms may be specifically enforced by a decree for the specific performance of any agreement contained herein or by an injunction against a violation of any terms hereof or otherwise. No failure or delay on the part of Holder in exercising any right, power or remedy hereunder shall operate as a suspension or waiver thereof, nor shall any single or partial exercise of any such right, power or remedy preclude any other or further exercise thereof or the exercise of any other right, power or remedy hereunder. The remedies herein provided are in addition to and not exclusive of any other remedies provided at law or in equity.

21. Lost Warrants or Stock Certificates. Upon receipt of evidence reasonably satisfactory to the Company of the loss, theft, destruction, or mutilation of any Warrant or stock certificate representing any Shares issued hereunder and, in the case of any such loss, theft, or destruction, upon receipt of an indemnity reasonably satisfactory to the Company, or in the case of any such mutilation upon surrender and cancellation of such Warrant or stock certificate, the Company at Holder’s expense will make and deliver a new Warrant or stock certificate, of like tenor, in lieu of the lost, stolen, destroyed, or mutilated Warrant or stock certificate.

22. Voting Agreement. Holder acknowledges that this Warrant is a “Warrant” under the terms of the Voting Agreement, and Holder is bound by the restrictions set forth in such agreement.

[Remainder of page intentionally left blank; signature page follows]

IN WITNESS WHEREOF, the Company has caused this Warrant to be executed in its corporate name by its duly authorized officer and to be dated as of the date first set forth above.

Signature Page to Warrant

NOTICE OF EXERCISE

WO Partners Holdings, Inc.

Attention: Corporate Secretary

The undersigned hereby elects to purchase, pursuant to the provisions of the Warrant, as follows:

HOLDER

Exhibit 10.6

EXECUTION VERSION

PLATFORM EXCLUSIVE LICENSE AGREEMENT

This PLATFORM EXCLUSIVE LICENSE AGREEMENT (this “Agreement”) is made and entered into as of December 31, 2019 (the “Effective Date”), among CIMA Telecom, Inc. (dba CIMA Group), a Florida corporation with an address of 1728 Coral Way, 6^th Floor, Miami, FL 33145 (“CIMA”), KNETIK, INC, a Delaware corporation, with an address for correspondence at 150 N. Westmonte Drive, Altamonte Springs, Florida 33145 (“Knetik”), AURIS, LLC, a Florida limited liability company with an address for correspondence at 1728 SW 22^nd St., 6^th Floor, Miami, Florida 33145 (“Auris” and, with CIMA and Knetik, collectively, the “Licensor”), and CUENTAS, INC., a Florida corporation with an address for correspondence at 200 S. Biscayne Blvd., Suite 5500, Miami, Florida 33131 (the “Licensee” and together, with the Licensor, the “Parties” and each a “Party”).

Recitals

WHEREAS, Licensor and Licensee entered into the Note and Warrant Purchase Agreement (the “Purchase Agreement”), pursuant to which Licensee paid Nine Million Dollars ($9,000,000) in the form of a Convertible Promissory Note to Licensor as consideration for the license of the rights and privileges in the Platform (defined below), as set forth in this Agreement; and

WHEREAS, Licensor desires to grant to Licensee, and Licensee desires to obtain from Licensor, the license to access and use the Platform (as defined below), all on the terms and conditions set out below.

NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and agreements contained herein, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged by the Parties, the Parties hereby agree as follows:

Agreement

1. Definitions. The following terms have the meanings ascribed below:

1.1. “Agreement” means this Agreement, and any exhibit, schedule, addendum, or amendment hereto. In the event of a conflict between this Agreement and any Statement of Work, exhibit, schedule, or addendum, the body of this Agreement shall control, unless expressly stated to the contrary in such additional document, and executed by the Party against whom enforcement is sought.

1.2. “Auris Platform” means a platform as a service solution made available by Auris, which is used for managing consumer telephony products and designed to: (i) allow mobile network operators, mobile virtual network operators, mobile service operators, and distribution networks to offer or expand their consumer voice service offerings; (ii) be scalable and redundant both geographically and logically; (iii) provide tools to allow customers to create and manage their retail telecom offerings; (iv) to enable VoIP services via IP, mobile applications, and APIs. (See Exhibit 1.2 (Auris Platform Description)).

1.3. “Documentation” means any written, printed, or otherwise recorded or stored material that relates to the Platform, including technical specifications, training and support materials, and other instructions.

1.4. “Escrow Materials” means the version of the Platform deposited under the Escrow Agreement, including object code, binary code, and Source Code.

1.5. “Field of Use” means the business of triggering a request of an individual natural person located within the United States to establish financial accounts that will be linked to such financial accounts with a general purpose of establishing reloadable payment card by the financial institution after their compliance acceptance, creating a mobile application that provides mobile wallet functionality by interacting with the financial institution, and processing and or recording payments made by end users using such cards and applications among accounts, merchants, and financial institutions.

1.6. “Improvement” means any invention, modification, addition, derivative work, enhancement, revision, translation, abridgment or expansion of the Platform, and any idea, conception, concept, enhancement, discovery, design, improvement, creation, and reduction incorporated into the Platform.

1.7. “Intellectual Property” or “Intellectual Property Rights” means any and all copyrights, trademarks, Patent Rights, whether registered or unregistered and trade secrets, whether under common, statutory, or federal law, and further including, without limitation, all proprietary, moral, and database rights associated with the technology, inventions, know-how, show-how, designs, formulae, processes, techniques, ideas, artwork, software, works of authorship, and any suggestions, enhancement requests, feedback, recommendations or other similar information relating to the Platform and any document or other materials embodying any of the foregoing, whether or not any of the same are patentable or copyrightable, and any and all related Documentation.

1.8. “Knetik Platform” means a software application made available by Knetik that is designed to facilitate the instantiation, management, and retirement of: (i) an online storefront; (ii) online catalog of products to be offered via the storefront; (iii) shopping cart functionality to support the ordering of products from the store front; (iv) product offerings with bundled discount-pricing, and consolidated checkout; (v) economic instruments, including range of virtual wallets defined against fiat and/or virtual currencies; (vi) coupon functionality for discounting of products via the storefront (vii) loyalty program functionality for incentivizing the users of the storefront; (viii) invocation of communication capabilities for email, text, carrier (“push”) notifications and telephonic voice notification for users of the storefront; and (ix) processing of reports in support of the transaction which transpire on the storefront.(See Exhibit 1.8 (Knetik Platform Description)).

1.9. “Licensee Customer” means an individual natural person that enters into an agreement with Licensee regarding Licensee’s provision of services within the Field of Use.

1.10. “Licensee Data” means any data or information that Licensee, or Licensee Customers, submits to Licensor via the Platform or otherwise in connection with this Agreement.

1.11. “Licensee Improvements” means Improvements to the Platform conceived, crafted, acquired, developed, or made by or on behalf (by a Representative) of Licensee after the Use Release Event, including all Intellectual Property Rights of Licensee therein or thereto.

1.12. “Licensor Improvements” means Improvements and updates to the Platform that meet both of the following two conditions, the Improvements and updates to the Platform are: (i) conceived, crafted, acquired, developed, or made by or on behalf (by a Representative) of Licensor after the Effective Date hereof, and (ii) are expressly made available to Licensee by Licensor in connection with Licensee’s use of the Platform as permitted herein. The term Licensor Improvements include all associated Intellectual Property Rights of Licensor.

1.13. “Licensor Intellectual Property” means all Intellectual Property owned by Licensor.

1.14. “Losses” means any loss, damage, liability, claim, demand, settlement, judgment, award, fine, penalty, deficiencies, fee (including reasonable attorneys’, accountants’ and other advisors’ fees), charge, cost (including costs of investigation) or expense of any nature; provided that in no case will “Losses” include punitive, consequential, indirect, diminution in value, special or any similar damages (other than in respect of such amounts paid to a third-party).

1.15. “Patent Rights” means rights under and to patents, patent applications, divisions, continuations, continuations-in-part, reissues, renewals, extensions, supplementary protection certificates, utility models, and the like of such patents and patent applications, and foreign counterparts and equivalents thereof.

1.16. “Platform” means, collectively: (i) the Knetik Platform and the Auris Platform as each exists on the Effective Date, and (ii) Licensor Improvements. The term “Platform” expressly excludes Third Party Materials.

1.17. “Representative” means any employee, agent, affiliate, subcontractor, or independent contractor given the authority to act on behalf of a given Party.

1.18. “Source Code” means computer programs, instructions, and related material written in a human-readable source language in a form capable of serving as the input to a compiler or assembler program, and in a form capable of being modified, supported, and enhanced by programmers reasonably familiar with the source language. The term “Source Code” includes reasonable programmer notes to the extent that the same is available.

1.19. “Statement of Work” means a statement of work specifying the Out-of-Scope Services to be provided, that is signed by both Parties, and that references this Agreement.

1.20. “Third Party Materials” has the meaning set forth in Section 5.2 (Third Party Materials).

1.21. “Use Release Event” has the meaning set out in Section 4.4 (Notice of Access Condition; Release of Escrow Materials).

2. Grant of Rights.

2.1. Grant of Rights to Licensee During the Term.

2.1.1. Limited Exclusive Grant of Rights in Platform. Subject to the terms and conditions of this Agreement, including Section 2.1.3 (Limitation on Exclusivity), Licensor, under its Intellectual Property Rights, hereby grants to Licensee during the Term, an exclusive, non-transferrable (except to a wholly-owned subsidiary and further subject to Section 20.11 (Assignment; Successors)), non-sublicensable (subject to Section 2.1.4 (Limitation on Sublicenses)), royalty-free license to access and use the Platform in the form provided to it by Licensor, and solely within the Field of Use for Licensee’s business purposes.

2.1.2. Non-Exclusive Grant of Rights in Documentation. Subject to the terms and conditions of this Agreement, Licensor, under its Intellectual Property Rights, hereby grants to Licensee during the Term, a non-exclusive, non-transferrable, non-sublicensable, royalty-free license to copy, access, and use the Documentation as necessary for Licensee to exercise its rights pursuant to this Section 2.1 (Grant of Rights to Licensee during the Term).

2.1.3. Limitation on Exclusivity. Licensee acknowledges and agrees that: (i) the exclusivity of its rights set out in Section 2.1.1 (Limited Exclusive Grant of Rights in Platform) is limited to the use of the Platform within the Field of Use and shall not be interpreted as limiting or otherwise preventing Licensor from exploiting the Platform outside of the limited Field of Use; (ii) Licensor continually updates and modifies the Platform with Licensor Improvements, including Licensor Improvements that have direct applications within the Field of Use, and nothing herein shall be interpreted as preventing, or otherwise limiting, Licensor’s right to continue to make Licensor Improvements (including those that have direct application within the Field of Use); and (iii) the exclusivity of its rights set out in Section 2.1.1 (Limited Exclusive Grant of Rights in Platform) shall terminate if the Agreement is terminated for cause pursuant to Section 15.2 (Termination for Cause). Licensor acknowledges and agrees that it shall not license, sell or transfer its rights in the Platform to any third parties within the Field of Use during the Term.

2.1.4. Limitation on Sublicenses. Licensee acknowledges and agrees that the licenses granted to Licensee pursuant to Sections 2.1.1 (Limited Exclusive Grant of Rights in Platform) and 2.1.2 (Non-Exclusive Grant of Rights in Documentation) shall not include the right to grant sublicenses, except as provided in this Section 2.1.4 (Limitation on Sublicenses). If Licensee wishes to sublicense the Platform or Documentation, then Licensee shall provide a written notice to Licensor regarding the sublicensing opportunity, and Licensor shall determine in its sole discretion whether to consent to such sublicensing. For the avoidance of doubt, Licensee shall not sublicense the Platform or Documentation except with Licensor’s prior written consent, which consent shall not be unreasonably withheld. Each such approved sublicensing shall be memorialized in a written agreement between Licensee and the applicable sublicensee (each, a “Sublicense Agreement”). Each Sublicense Agreement shall include grants of rights to the applicable sublicensee that are consistent with the grants of rights to Licensee set forth in this Agreement, and shall incorporate terms and conditions sufficient to enable Licensee to comply with this Agreement, including, but not limited to, its confidentiality and use restrictions. Licensee shall provide to Licensor a fully signed and non-redacted copy of each Sublicense Agreement and amendments thereto, including all exhibits, attachments and related documents, within five (5) days of executing the same.

2.2. Grant of Rights to Licensee Upon a Use Release Event.

2.2.1. Right to Escrow Material. Upon a Use Release Event, subject to the terms and conditions of this Agreement, Licensee shall have during the Term a limited, non-transferrable license to install, copy, modify, display, distribute, perform, access, execute, and use the Escrow Materials in order to update, maintain, and otherwise use the Platform within the Field of Use.

2.2.2. Right to Make Licensee Improvements. Upon a Use Release Event, Licensee shall have the right to make and exploit Licensee Improvements to the Platform; provided, however, that Licensee’s use and exploitation of Licensee Improvements are limited to the Field of Use. By way of clarification, and not limitation, Licensee agrees that it shall have no right under this Agreement to make Licensee Improvements prior to a Use Release Event. If Licensee desires Improvements to the Platform prior to a Use Release Event, then Licensee shall present a written request to Licensor regarding the same, and the Parties shall proceed as set out in Agreement Section 5 (Improvements; Out-of-Scope Services).

2.3. Grant of Rights to Licensor.

2.3.1. Grant of Rights in Licensee Data. Subject to the terms and conditions of this Agreement, Licensee, under its Intellectual Property Rights, hereby grants to Licensor during the Term a limited, non-exclusive, non-transferable, sublicensable license to access, copy, and modify Licensee Data, but solely for the purpose of Licensor fulfilling its obligations to Licensee under this Agreement.

2.3.2. Perpetual Grant of Rights in Licensee Improvements; Disclosure of Licensee Improvements. Subject to the terms and conditions of this Agreement, Licensee, under its Intellectual Property Rights, hereby grants to Licensor, a perpetual, royalty-free, non-exclusive, fully paid-up, irrevocable, worldwide license to use, copy, modify, distribute, and otherwise exploit the Licensee Improvements for Licensor’s business purposes. Licensee shall, within thirty (30) days of final testing and approval of any Licensee Improvement, disclose such Licensee Improvements to Licensor and provide Licensor with all related Source Code to such Licensee Improvements.

2.4. No Implied Rights. Any license granted under this Agreement must be expressly provided herein, and there shall be no licenses or rights implied pursuant to this Agreement, based on any course of conduct, or other construction or interpretation thereof. All rights and licenses not expressly granted herein are reserved.

3. Ownership.

3.1. Licensor Ownership. The Platform, Documentation, and Escrow Materials are licensed, and not sold, to Licensee. Licensee agrees that, subject to the terms and conditions of this Agreement, Licensor is the sole and exclusive owner of all of the right, title, and interest in and to the Platform, Escrow Materials, and Documentation, and in and to all associated Intellectual Property Rights.

3.2. Licensee Ownership of Licensee Data and Licensee Improvements. The Licensee Data and Licensee Improvements are licensed, and not sold, to Licensor. Licensor agrees that, as between the Parties and subject to the terms and conditions of this Agreement, Licensee is the sole and exclusive owner of all of the right, title, and interest in and to the Licensee Data and Licensee Improvements, and in and to all associated Intellectual Property Rights.

4. Platform Escrow. Subject to Licensee’s continued compliance with its obligations under this Agreement, Licensee shall be entitled to access and use the Escrow Materials as permitted pursuant to Section 4.5 (Right to Use Escrow Materials Following Release), subject to the following:

4.1. Software Escrow Agreement. Within thirty (30) days of the Effective Date, the Parties shall enter into a mutually agreeable software escrow agreement (the “Software Escrow Agreement”) with a mutually agreeable escrow agent (the “Escrow Agent”). The Software Escrow Agreement shall contain rights and obligations with respect to the Parties that are the same in all material respects as those set out in this Section 4 (Platform Escrow).

4.2. Escrow Material Deposit. Within five (5) days of the execution of the Software Escrow Agreement, Licensor shall deposit the Escrow Materials into escrow with the Escrow Agent. Licensee shall be responsible for all escrow fees and all other fees and costs charged by the Escrow Agent.

4.3. Access Conditions. Any of the following events during the Term constitutes an “Access Condition”: (i) Licensor releases the Source Code to Licensee; (ii) Licensor makes a general assignment for the benefit of creditors, suffers, or permits the appointment of a receiver for its business or assets, or has voluntarily wound up or liquidated its business (or that segment of its business pertinent to this Agreement); (iii) Licensor as a debtor-in possession or a trustee-in-bankruptcy in a case under the United States Bankruptcy Code rejects this Agreement; (iv) Licensor breaches its obligations under this Agreement, fails to cure such breach within sixty (60) days upon receipt of Licensee’s written notice, and fails to pay the liquidated damages, as set forth in Section 15.2 (Termination for Cause); or (v) Licensee, in its sole discretion, elects to access the Escrow Material.

4.4. Notice of Access Condition; Release of Escrow Materials. Upon the occurrence of an Access Condition, Licensee shall notify Licensor and the Escrow Agent of its intent to access the Escrow Materials as permitted pursuant to Section 4.5 (Right to Use Escrow Materials Following Release). Upon (i) the completion of all transactions under all agreements by and between the Parties(including the Purchase Agreement) or Licensor’s written waiver of such condition; and (ii) Licensee’s payment of the Use Release Event Fees as set out in Section 9.3 (Use Release Event Fees), Licensor shall notify the Escrow Agent to release the Escrow Materials to Licensee (the “Release Notice”). Upon receipt of the Release Notice, the Escrow Agent shall release the Escrow Materials to Licensee. The date upon which the Escrow Materials are released to Licensee as permitted pursuant to this Section 4.4 (Notice of Access Condition; Release of Escrow Materials) is referred to herein as the “Use Release Event”.

4.5. Right to Use Escrow Materials Following Release. Upon the Use Release Event, Licensee shall have those rights in the Escrow Materials set out in Section 2.2.1 (Right to Escrow Material).

4.6. Source Code is Confidential Information. Source Code for the Platform is Licensor Confidential Information, and Licensee shall only access such Source Code as permitted pursuant to this Agreement and the Software Escrow Agreement. Licensee shall take all reasonable measures to protect the Source Code from theft, or unauthorized disclosure, reproduction, or copying. Licensee shall allow use of, or access to, the Source Code only by Licensee employees and contractors that have a need to use the Source Code for Licensee to exercise its rights with respect to the Source Code set forth herein and who have agreed to confidentiality restrictions that are at least as restrictive as those set out in this Agreement; provided, however, in no event shall Licensee allow use of, or access to, the Source Code for the Platform by any third party that, in Licensor’s reasonable discretion, is a direct or indirect competitor of Licensor. Licensee shall notify Licensor at least fifteen (15) days prior to engaging any third party to access or use the Source code for the Platform, and such notice shall include the identity of the third party. Licensor shall notify Licensee within such fifteen (15) day period if the designated third party is a competitor of Licensor and, if such third party is designated as a Licensor competitor, then Licensee shall be prohibited from allowing such third party to access or use the Source Code for the Platform.

4.7. Effect of Use Release Event. Upon the occurrence of a Use Release Event, each of the following obligations and provisions shall immediately terminate and shall have no remaining effect: (i) Licensor’s obligations to provide, and Licensee’s rights to receive, the Maintenance and Support Services; and (ii) Sections 12.1 (Licensor Representations and Warranties), 14.1 (Indemnification by Licensor), and 18 (Network Load Levels). For the avoidance of doubt, except as expressly set forth in this Agreement, the occurrence of a Use Release Event shall not impact any of Licensee’s obligations set out in this Agreement. By way of example, and not limitation, Licensee’s obligations to comply with applicable Laws as set forth in Section 6.1 (Licensee Sole Obligation to Comply with Law) shall continue in force after the occurrence of a Use Release Event.

4.8. Transition Assistance. Upon the occurrence of a Use Release Event, Licensor shall provide Licensee with reasonable assistance, cooperation, and consultation in connection with Licensee’s transition of the Platform and Licensee Data from the Hosting Vendor to a third party designated by Licensee (the “Transition Assistance”). All Transition Assistance shall be treated as Out-of-Scope Services and provided pursuant to Section 5 (Out-of-Scope Services).

5. Out-of-Scope Services.

5.1. Statement of Work. Licensee acknowledges and agrees that Licensor shall not have any duties or responsibilities in connection with the licensing of the Platform, other than those expressly set forth in this Agreement, and that no implied obligations, shall be read into this Agreement. If Licensee desires services other than those expressly set forth in this Agreement (“Out-of-Scope Services”), then it shall present a written request to Licensor outlining such work. The Parties shall then negotiate in good faith a written Statement of Work, and such Statement of Work shall include a detailed description of the Out-of-Scope Service to be provided, an estimated delivery schedule, and fees associated with the provision of Out-of-Scope Service. When both Parties have signed a Statement of Work, the Statement of Work shall be deemed incorporated into and made a part of this Agreement for all purposes. By way of clarification, and not limitation, Licensee shall have no right to engage third parties during the Term to provide any Out-of-Scope Services relating to the subject matter of this Agreement, including any relating to the Platform.

5.2. Third Party Materials. Licensee acknowledges that the Platform may include materials owned by third parties (collectively, the “Third Party Materials”), including those specified on Exhibit 5.2 (List of Third Party Materials) attached hereto, and that the licenses granted to Licensee in Section 2 (Grant of Rights) do not include rights to any Third Party Materials. Licensor shall obtain, at Licensee’s expense as set forth in Section 9 (Consideration), rights, licenses, consents, and permissions necessary to use the Third Party Materials during the Term. Similarly, if any Out-of-Scope Service requires the use of Third Party Materials, then Licensor shall identify such Third Party Materials, and, upon written request, Licensor shall obtain, at Licensee’s expense, rights, licenses, consents, and permissions necessary to use such Third Party Materials during the Term.

6. Compliance with Laws; Use of Platform.

6.1. Licensee Sole Obligation to Comply with Law. Licensee acknowledges and agrees that: (i) Licensee is solely responsible for determining what Licensee Data (including information pertaining to Licensee Customers) is submitted to the Platform, and Licensor’s use of such Licensee Data is at Licensee’s direction; and (ii) the Platform was not designed to ensure compliance with specific international, federal, state, or local laws, rules, regulations, or industry standards and requirements (collectively, the “Laws”) including, but not limited to, those Laws applicable to Licensee’s intended use of the Platform. Accordingly, Licensee further acknowledges and agrees that: (a) Licensee shall comply with all applicable Laws, including those relating to the Intellectual Property of others, in all activities involving the Platform and the licenses and rights granted to Licensee under this Agreement, all at Licensee’s sole cost and expense and without any reliance on Licensor or the Platform; (b) Licensor does not guarantee or otherwise represent that the Platform will comply with any Laws or meet any legal or industry requirements; and (c) as between the Parties, Licensee is solely responsible and liable for its use of the Platform, including complying with applicable Law in connection with such use by Licensee and any Licensee Customers. Licensee shall be solely responsible and liable for any and all claims brought against either Party relating to the use of the Platform by Licensee and Licensee Customers including, but not limited to, claims made by third parties that the Licensee Data (including information pertaining to Licensee Customers) was collected or used in a manner that violates Law.

6.2. Legal Compliance. If Licensee desires Licensor to develop Improvements or make any configurations, modifications, customizations, or other changes to the Platform to comply with any Laws or to meet any legal requirements, and Licensor agrees to provide such changes, then the provision of such changes shall constitute an Out-of-Scope Service subject to a Statement of Work.

7. Enforcement Obligations.

7.1. Notice of Potential Infringement. In the event that either Party becomes aware that a product or service being made, used, sold, or imported by a third party infringes any Intellectual Property Rights embodied in the Platform, such Party shall promptly advise the other Party of all known facts and circumstances relating thereto.

7.2. Infringement Action by Licensee. Licensee shall have the first right to enforce, at Licensee’s sole cost, Intellectual Property Rights embodied in the Platform against infringement by third parties. Licensor shall reasonably cooperate in any such enforcement and, if necessary, join as a party therein, at Licensee’s reasonable expense. Should Licensee elect to enforce an infringement action at its sole cost, Licensee shall retain all proceeds resulting from such enforcement.

7.3. Infringement Action by Licensor. In the event that Licensee does not file suit against or commence settlement negotiations with a substantial infringer of an Intellectual Property Right embodied in the Platform within two (2) months after receipt of a written demand from Licensor that Licensee bring suit, Licensor shall have the right to enforce at its own cost any Intellectual Property Rights embodied in the Platform on behalf of itself and Licensee. Licensee shall reasonably cooperate with Licensor in such action, at Licensor’s reasonable expense. Should Licensor elect to enforce an infringement action at its sole cost pursuant to this Section 7.3 (Infringement Action by Licensor), Licensor shall be entitled to retain all proceeds resulting from such enforcement.

8. Maintenance and Support. Licensor shall provide Licensee with the maintenance and support services for the Platform as set forth in Schedule A (Maintenance and Support) (collectively, the “Maintenance and Support Services”) during the Term. Notwithstanding anything to the contrary, upon a Use Release Event, Licensor shall have no obligation to provide Maintenance and Support Services to Licensee.

9. Consideration.

9.1. Fees.

9.1.1. License Fees. As part of the consideration for this Agreement and the licenses granted herein, Licensee shall pay Licensor a licensing fee of Nine Million Dollars ($9,000,000) (the “Licensing Fee”), which shall be paid in the form of a Convertible Promissory Note executed and delivered by Licensee in favor of Licensor on the Effective Date.

9.1.2. Maintenance Fees. During the Term, Licensee shall pay Licensor annual fees for the Maintenance and Support Services as follows (the “Maintenance Fees”): (i) for the first (1^st) calendar year from the Effective Date, Three Hundred Thousand Dollars ($300,000.00) paid on the date that is six (6) calendar months from the Effective Date; (ii) for the second (2^nd) calendar year from the Effective Date, Five Hundred Thousand Dollars ($500,000.00) paid on the first (1^st) anniversary of the Effective Date; (iii) for the third (3^rd) calendar year from the Effective Date, Seven Hundred Thousand Dollars ($700,000.00) paid on the second (2^nd) anniversary of the Effective Date; (iv) for the fourth (4^th) calendar year from the Effective Date, One Million Dollars ($1,000,000.00) paid on the third (3^rd) anniversary of the Effective Date; (v) for the fifth (5^th) calendar year from the Effective Date, Six Hundred and Forty Thousand Dollars ($640,000.00) paid on the fourth (4^th) anniversary of the Effective Date; and (vi) for each calendar year thereafter, Six Hundred and Forty Thousand Dollars ($640,000.00) paid on the anniversary of the Effective Date. The Maintenance Fees may not be increased by Licensor without the prior written approval from Licensee. The failure to pay any Maintenance Fee, in whole or in part, shall constitute a material breach of this Agreement.

9.1.3. Pass-Through Fees. Subject to Section 9.1.4 (Licensee Direct Payment of Pass-Through Fees), Licensee shall pay to Licensor all third party fees incurred by Licensor in connection with its provision of the Platform pursuant to this Agreement, including fees for Third Party Materials, electricity, location services, and fees charged by Hosting Vendors (collectively, the “Pass-Through Fees”), as specified in Exhibit 9.1.3 (List of Pass-Through Fees). Pass-Through Fees consist of both (i) “Fixed Costs”, which are fixed costs that Licensor will incur in connection with its provisions of the Platform pursuant to this Agreement regardless of Licensee’s use of the Platform, and (ii) “Variable Costs”, which are variable costs that Licensor will incur in connection with its provision of the Platform pursuant to this Agreement, with such variable costs determined based on Licensee’s use of the Platform. Licensee agrees to pay all Fixed Costs in effect as of the Effective Date. Licensor shall obtain Licensee’s prior written approval, and such approval shall not be unreasonably withheld or delayed, for increases in Fixed Costs that exceed three percent (3%) in any calendar year during the Term. Licensee shall not have any prior approval right with respect to Variable Costs; provided, however, Licensor shall obtain Licensee’s prior written approval, and such approval shall not be unreasonably withheld or delayed, for monthly Variable Costs exceeding Five Thousand Dollars ($5,000.00) (the “Initial Monthly Variable Costs Cap”) and further provided that Licensor shall be entitled to suspend Licensee’s access to and use of the Platform until Licensee provides such approval. The Parties acknowledge that the amount of the Initial Monthly Variable Costs Cap is based on an estimate of Variable Costs as of the Effective Date, and agree to discuss in good faith during the Term to make reasonable adjustments to such amount. Notwithstanding anything to the contrary, all Pass-Through Fees shall be billed to Licensee at Licensor’s cost and without markup.

9.1.4. Licensee Direct Payment of Pass-Through Fees. Notwithstanding Section 9.1.3 (Pass-Through Fees), Licensor, in its sole discretion and upon reasonable notice, shall have the right to require Licensee to directly obtain any or all of the third party services or products (including Third Party Materials) that are subject to such Pass-Through Fees from the applicable third parties, and Licensee shall become the party directly responsible for paying any such third party fees to the applicable third parties.

9.1.5. Out-of-Scope Services Fees. All fees for Out-of-Scope Services (collectively, the “Out-of-Scope Fees”) and related payment terms shall be paid pursuant to the terms set out in the applicable Statement of Work.

9.2. Payment Terms. The term “Fees” means, collectively: (i) the Maintenance Fees; (ii) Pass-Through Fees; and (iii) Out-of-Scope Fees. Fees shall be invoiced by Licensor and due within thirty (30) days of the invoice date. Any Fees not received by Licensor on or prior to the due date therefor shall bear interest from the due date at a rate equal to the lesser of: (i) one and one-half percent (1.5%) per month; and (ii) the maximum amount permitted under applicable Law. All Fees shall be paid without offset for any amount that may be required to be withheld under the regulations promulgated by any governmental taxing authority.

9.3. Use Release Event Fees. Upon the occurrence of a Use Release Event, Licensee shall pay Licensor all Maintenance Fees that are due for the first (1^st) calendar year from the Effective Date through and including the sixth (6^th) calendar year from the Effective Date, subtracted by any Maintenance Fees that were paid by Licensee to Licensor prior to the Use Release Event (“Use Release Event Fees”). Licensor shall invoice such amounts in one lump sum. The Parties agree that actual damages that Licensor would suffer as a result of the occurrence of the Use Release Event would be difficult to determine and that these liquidated damages are a reasonable and fair estimate of the damages which may be caused by such event, and are not a penalty. By way of clarification, and not limitation, if a Use Release Event occurs during the first (1^st) calendar year from the Effective Date, then Licensee shall pay to Licensor: (i) Three Million and Seven Hundred Eighty Thousand Dollars ($3,780,000.00), and any other Maintenance Fees due and owing, which would be due and owing for Maintenance and Support Services for the first, second, third, fourth, fifth, and sixth calendar years from the Effective Date; minus (ii) amounts of Maintenance Fees paid by Licensee as of the Use Release Event, if any.

9.4. Taxes. Licensee shall be responsible for any and all taxes, assessments, or other charges of any kind that may be imposed on Licensor by any governmental taxing authority (other than any taxes based upon the income of Licensor).

10. Audit. Licensor shall have the right, at its expense, to audit Licensee’s use of the Licensor Intellectual Property, the Platform, and/or any services incidental thereto, upon not less than seven (7) days’ prior notice to Licensee. Any such audit shall be during Licensee’s normal business hours and shall not be made more frequently than two (2) times every twelve (12) months, provided that if any such audit reveals a breach of this Agreement, Licensor may conduct such audits on a quarterly basis until such audits confirm that the relevant breach has been cured, and Licensee shall be responsible for the costs of such audit(s).

11. Quality Control.

11.1. Monitoring. Licensor shall have the right to monitor Licensee’s usage of the Platform and Licensor Intellectual Property. Licensee shall not use the Platform or any Licensor Intellectual Property in any manner that may or does damage, reduce the value of or in any way harm the Platform or any Licensor Intellectual Property. Any such usage shall be a material breach of this Agreement by Licensee.

11.2. Value of the Platform. Licensee shall only use the Platform and Licensor Intellectual Property in manner that preserves or increases the inherent value of the same.

11.3. Non-Conforming Use. In the event that Licensor reasonably determines that any use by Licensee of the Platform or Licensor Intellectual Property is in violation of this Section 11 (Quality Control), Licensee shall remedy such non-conforming use within ten (10) days of receiving written notice from Licensor. If the use in the reasonable opinion of the Licensor poses an immediate threat to the validity or enforceability of the Licensor Intellectual Property or harm to Licensor’s business, reputation or goodwill, Licensor shall provide Licensee with written notice and Licensee shall, immediately cease and desist all such non-conforming uses.

11.4. Quality Standard. Licensee shall only use the Licensor Intellectual Property under this Agreement: (i) in good faith, in a dignified manner; (ii) in a manner that does not harm or jeopardize the value of the Licensor Intellectual Property or the associated goodwill; and (iii) in connection with activities, products, and services that maintain at all times the high levels of quality associated with Licensor’s products, services and brands.

12. Representations and Warranties.

12.1. Licensor Representations and Warranties. Licensor represents and warrants to Licensee during the Term that, as of the Effective Date: (i) Licensor has the full right, power, and authority to enter into this Agreement, to undertake the transactions contemplated hereby and to grant the licenses granted herein; and (ii) to Licensor’s actual knowledge, the Platform does not contain any viruses, Trojan horses, worms or similar harmful code. The foregoing representations and warranties of Licensor shall expire twenty-four (24) months after the Effective Date. Except as expressly set forth herein, the Platform, Escrow Material, and related Licensor Intellectual Property are provided on an as-is, where is, with all faults and without any warranty of any kind, express or implied, including any warranty of merchantability, interoperability, or fitness for any particular purpose, or non-infringement.

12.2. Licensee Representations and Warranties. Licensee represents and warrants to Licensor that as of the Effective Date: (i) Licensee has the full right, power, and authority to enter into this Agreement, to undertake the transactions contemplated hereby; (ii) the execution, delivery, and performance by the Licensee of this Agreement does not and will not violate any provision of nor accelerate any right or obligation under any contract or agreement to which Licensee is bound, nor will such execution, delivery, and performance violate any restriction of any kind, whether contractual or at law, affecting the Licensee; (iii) the Licensee Improvements shall not violate the Intellectual Property Rights of any third party; (iv) Licensee shall use the Platform, Escrow Materials, and related Intellectual Property in full compliance with all Law; and (v) Licensee has secured all rights and interests in and to Licensee Data in order to provide the same to Licensor as contemplated in this Agreement.

13. Disclaimer of Representations and Warranties.

13.1. Disclaimer. EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES EXPRESSLY SET FORTH IN THIS AGREEMENT, THE LICENSOR INTELLECTUAL PROPERTY, THE PLATFORM, MAINTENANCE SERVICES, ESCROW MATERIALS, AND ALL PORTIONS THEREOF, AND SUCH OTHER SERVICES AS ARE TO BE PROVIDED UNDER THIS AGREEMENT (INCLUDING ANY STATEMENT OF WORK), ARE PROVIDED “AS IS.” TO THE MAXIMUM EXTENT PERMITTED BY LAW, LICENSOR AND ITS REPRESENTATIVES DISCLAIM ANY AND ALL OTHER REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SYSTEM INTEGRATION, DATA ACCURACY, TITLE, NON-INFRINGEMENT, AND/OR QUIET ENJOYMENT. EXCEPT AS EXPRESSLY AND SPECIFICALLY PROVIDED IN ANY ATTACHED SCHEDULE(S), NEITHER LICENSOR NOR ITS REPRESENTATIVES WARRANT THAT THE FUNCTIONS OR INFORMATION CONTAINED IN THE LICENSOR INTELLECTUAL PROPERTY, THE PLATFORM, MAINTENANCE SERVICES, ESCROW MATERIALS, AND ALL PORTIONS THEREOF, AND SUCH OTHER SERVICES AS ARE TO BE PROVIDED UNDER THIS AGREEMENT (INCLUDING ANY STATEMENT OF WORK) WILL MEET ANY REQUIREMENTS OR NEEDS LICENSEE MAY HAVE, OR THAT THE LICENSOR INTELLECTUAL PROPERTY, THE PLATFORM, MAINTENANCE SERVICES, ESCROW MATERIALS, AND ALL PORTIONS THEREOF, AND SUCH OTHER SERVICES AS ARE TO BE PROVIDED UNDER THIS AGREEMENT (INCLUDING ANY STATEMENT OF WORK) WILL OPERATE ERROR FREE OR WITHOUT INTERRUPTION, OR THAT ANY DEFECTS OR ERRORS IN SAME WILL BE CORRECTED, OR ARE COMPATIBLE WITH ANY PARTICULAR NETWORK, COMPUTER SYSTEM OR SOFTWARE. LICENSOR AND ITS THIRD-PARTY LICENSORS MAKE NO GUARANTEE OF ACCESS OR OF ACCURACY OF THE CONTENT CONTAINED IN OR ACCESSED THROUGH THE LICENSOR INTELLECTUAL PROPERTY, THE PLATFORM, MAINTENANCE SERVICES, ESCROW MATERIALS, AND ALL PORTIONS THEREOF, AND SUCH OTHER SERVICES AS ARE TO BE PROVIDED UNDER THIS AGREEMENT (INCLUDING ANY STATEMENT OF WORK). LICENSEE AND ITS REPRESENTATIVES SHALL NOT EXTEND WARRANTIES TO LICENSEE CUSTOMERS IN THE NAME OF LICENSOR OR IN ANY WAY BIND LICENSOR OR ITS THIRD-PARTY LICENSORS WITH RESPECT TO WARRANTIES.

13.2. Prior Agreements. EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES EXPRESSLY SET FORTH IN THIS AGREEMENT, EACH PARTY DISCLAIMS ALL LIABILITY AND RESPONSIBILITY FOR ANY REPRESENTATION, WARRANTY, STATEMENT MADE, OR INFORMATION COMMUNICATED (WHETHER ORALLY OR IN WRITING) TO THE OTHER PARTY AND/OR ANY OF THE OTHER PARTY’S REPRESENTATIVES. THE PARTIES DO NOT MAKE ANY REPRESENTATIONS OR WARRANTIES EXCEPT AS CONTAINED IN THIS AGREEMENT, AND ANY AND ALL STATEMENTS MADE OR INFORMATION COMMUNICATED OUTSIDE OF THIS AGREEMENT (INCLUDING BY WAY OF THE DOCUMENTS PROVIDED IN RESPONSE TO ANY DILIGENCE REQUEST), WHETHER VERBALLY OR IN WRITING, ARE DEEMED TO HAVE BEEN SUPERSEDED BY THIS AGREEMENT, IT BEING INTENDED THAT NO SUCH PRIOR STATEMENTS OR COMMUNICATIONS OUTSIDE OF THIS AGREEMENT SHALL SURVIVE THE EXECUTION AND DELIVERY OF THIS AGREEMENT, AND THAT NO WARRANTIES OTHER THAN THOSE EXPRESSLY SET FORTH HEREIN, WHETHER IMPLIED OR AT LAW, SHALL BE APPLIED TO OR INCORPORATED INTO THIS AGREEMENT.

14. Indemnification.

14.1. Indemnification by Licensor. Licensor shall defend, indemnify, and hold harmless the Licensee and the affiliates and Representatives of Licensee (each, a “Licensee Indemnified Party” and, collectively, the “Licensee Indemnified Parties”) from and against any and all Losses asserted against, incurred, sustained or suffered by a Licensee Indemnified Party as a result of, arising out of, or relating to, a claim that the Platform as licensed and delivered to Licensee by Licensor infringes or misappropriates the Intellectual Property of any third-party existing as of the Effective Date (each an “Infringement Claim”); provided, however that Licensor shall have no obligation to Licensee under this Agreement with respect to any Infringement Claim arising: (a) twenty four (24) months after the Effective Date; (b) to the extent arising from: (i) Any Licensee Improvements or any modifications to the Platform or Escrow Materials made by, or on behalf of, Licensee or otherwise at Licensee’s request; (ii) Licensee’s breach of this Agreement; (iii) Licensee’s or its Representative or sublicensees’ use of the Platform or any Licensor Intellectual Property in any manner in violation of this Agreement or associated Documentation; and (iv) the combination of the Platform and Licensor Intellectual Property with any Licensee or third-party software or other Intellectual Property; or (c) after the occurrence of a Use Release Event. If the Platform or any Licensor Intellectual Property becomes the subject of any Infringement Claim or injunction, Licensor may (at its sole option), do one of the following to mitigate the Losses relating to the Infringement Claim: (1) procure for the Licensee (at Licensor’s expense) the right to continue using the impacted portions of the Platform or Licensor Intellectual Property; (2) replace or modify the impacted portions of the Platform or Licensor Intellectual Property so that it becomes non-infringing without substantially compromising functions, features, or performance of the Platform or the Licensor Intellectual Property; or (3) if Licensor is unable at commercially reasonable effort or expense to make such modifications, then Licensor shall be entitled to terminate this Agreement without further liability to Licensee. This Section 14.1 (Indemnification by Licensor) is Licensee’s sole and exclusive remedy for any claim that the Platform or any Licensor Intellectual Property infringes or misappropriates the Intellectual Property of any third party and Licensor may not exercise any indemnity or similar monetary remedy under the Purchase Agreement.

14.2. Indemnification by Licensee. Licensee shall defend, indemnify, and hold harmless the Licensor and any affiliates and Representatives of Licensor (each, a “Licensor Indemnified Party” and, collectively, the “Licensor Indemnified Parties”) from and against any and all Losses asserted against, incurred, sustained or suffered by a Licensor Indemnified Party as a result of, arising out of, or relating to: (i) allegations that any Licensee Improvement infringes or misappropriates the Intellectual Property of any third party; (ii) Licensee’s or its Representatives’ use of the Licensor Intellectual Property, the Platform, and Escrow Materials in a manner not expressly permitted by the Documentation; (iii) Licensee’s combination of the Platform, Licensor Intellectual Property, or Escrow Materials with any Licensee or third-party software or other Intellectual Property; (iv) any breach, failure, misrepresentation, or omission of any representation, warranty, covenant, or condition contained in this Agreement; (v) the willful, negligent or reckless misconduct or negligent acts and/or omissions of Licensee; (vi) Licensee’s or its Representatives’ noncompliance with Laws, including Laws relating to data privacy and security; (vii) the acts and omissions of any Licensee Representative; and (viii) Licensor’s possession and/or use of Licensee Data as contemplated herein.

14.3. Procedures. The indemnified Party shall promptly notify the indemnifying Party in writing of any claim, action, demand or lawsuit for which the indemnified Party intends to claim indemnification hereunder (provided, however, that the failure to give such notice shall not relieve the indemnifying Party from its obligations hereunder, except to the extent that the indemnifying Party is prejudiced by such delay). The indemnifying Party has the right to take control of the defense of all actions that are indemnified against hereunder; provided, however, the indemnifying Party shall not have the right to settle or compromise any claim involving the admission of liability, injunctive relief, or which could set a precedent that may be reasonably considered to have a negative effect on the indemnified Party’s business, without the written consent of the indemnified Party, which consent shall not be unreasonably withheld or delayed. The indemnified Party shall cooperate with the indemnifying Party and its legal representatives in the investigation and defense of any action covered by this indemnification.

15. Term; Termination.

15.1. Term. The term of this Agreement shall commence as of the Effective Date and shall continue in perpetuity unless terminated as provided in this Section 15 (Term; Termination) (the “Term”).

15.2. Termination for Cause. If Licensee breaches its obligations under this Agreement, Licensor shall advise Licensee of the breach in writing. Licensee shall have sixty (60) days from receipt of written notice to cure the breach to Licensor’s reasonable satisfaction. In the event that such breach is not cured to Licensor’s satisfaction within sixty (60) days of written notice thereof from Licensor to Licensee, then Licensor may terminate this Agreement and the licenses granted hereunder, either in whole or in part, in Licensor’s discretion by providing written notice to Licensee. If Licensee or its affiliate breaches any of its terms, conditions, duties, requirements, or obligations under Article II of the Purchase Agreement or the Warrant (as such term is defined in the Purchase Agreement), Licensor shall advise the Licensee of the breach in writing, and if Licensee fails to cure such breach to Licensor’s satisfaction within thirty (30) days from receipt of the written notice, then Licensee shall pay to Licensor Five Million Dollars ($5,000,000) as liquidated damages and any and all reasonable attorneys’ fees and other costs and expenses incurred by Licensor as a result of such breach, as liquidated damages. The Parties agree that actual damages that Licensor would suffer as a result of Licensee’s such breach would be difficult to determine and that these liquidated damages are a reasonable and fair estimate of the damages which may be caused by such event, and are not a penalty. In the event that Licensee fails to pay such amounts, then Licensor shall be entitled to enforce its rights under the Asset Pledge Agreement between Licensee and Licensor attached hereto as Exhibit 15.2. For the avoidance of doubt, in the event that Licensor enforces the Pledge Agreement, then the Five Million Dollars ($5,000,000) of liquidated damages called for under this Section shall no longer be payable and due by Licensee. If Licensor breaches its obligations under this Agreement, Licensee shall advise Licensor of the breach in writing. Licensor shall have sixty (60) days from receipt of written notice to cure the breach to Licensee’s satisfaction. In the event that such breach is not cured to Licensee’s satisfaction within sixty (60) days of written notice thereof from Licensee to Licensor, then Licensor shall pay to Licensee Five Million Dollars ($5,000,000) as liquidated damages. The Parties agree that actual damages that Licensee would suffer as a result of Licensor’s such breach would be difficult to determine and that these liquidated damages are a reasonable and fair estimate of the damages which may be caused by such event, and are not a penalty. In the event that Licensor fails to pay such amounts, then Licensee shall be entitled to access the Escrow Materials in accordance with Section 4 (Platform Escrow) including subsections thereto. For the avoidance of doubt, in the event that Licensee accesses the Escrow Materials pursuant to this Section, then the Five Million Dollars ($5,000,000) of liquidated damages called for under this Section shall no longer be payable and due by Licensor. Notwithstanding the foregoing in this Section 15.2 (Termination for Cause), Licensor and/or Licensee may initiate legal action against Licensee and or Licensor for monetary damages resulting from Licensee’s and or licensor breach, and such monetary damages will be in addition to all other damages available to Licensor and or Licensee respectively, including injunctive relief, whether provided hereunder, in the Purchase Agreement, in equity, or at law.

15.3. Effect of Termination. Upon termination of this Agreement, any and all Schedules hereto shall automatically and immediately terminate and Licensee shall cease any and all use of or access to the Licensor Intellectual Property, the Platform, and all services and licenses granted under this Agreement, and, if this Agreement terminates after the occurrence of a Use Release Event, the Escrow Materials and any Licensee Improvements. In addition, upon termination of this Agreement, each Party will: (i) immediately cease any and all uses of the other Party’s Confidential Information (including Licensee Data); (ii) promptly and permanently delete any and all of the other Party’s Confidential Information from its computer storage or any other media, including, but not limited to, online and off-line libraries; and (iii) promptly return to the other Party or, at the other Party’s option, destroy, all copies of the other Party’s Confidential Information then in its possession and certify in writing to the other Party both the deletion, and if applicable, the destruction of all such Confidential Information. Without limiting the foregoing, upon termination of any schedule (including upon termination of this Agreement in its entirety), the provisions of such schedule regarding the effect of such schedule’s termination (if any) shall also apply.

15.4. Survival. Subject to Section 4.7 (Effect of Use Release Event), in addition to any other right or obligation that by its nature is intended to survive any termination or expiration, the following Sections shall survive any termination or expiration of this Agreement: (i) Section 3 (Ownership); (ii) Section 14 (Indemnification); (iii) Section 16 (Limitation on Liability); (iv) Section 17 (Confidential Information); and (v) Section 20 (Miscellaneous).

16. Limitation on Liability.

16.1. DISCLAIMER OF LIABILITY. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR SPECIAL DAMAGES WHATSOEVER, INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, AND THE LIKE, ARISING OUT OF THIS AGREEMENT, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

16.2. DAMAGE CAP. IN NO EVENT SHALL THE LIABILITY OF LICENSOR TO THE LICENSEE, IN THE AGGREGATE, IN LAW OR IN EQUITY, EXCEED ANY AMOUNTS RECOVERABLE BY LICENSOR UNDER LICENSOR’S APPLICABLE INSURANCE POLICIES, IF ANY, IT BEING THE EXPRESS INTENTION OF THE PARTIES FOR SUCH DAMAGES TO BE THE SOLE AND EXCLUSIVE MONETARY REMEDY FOR A BREACH OF THIS AGREEMENT. IN THE EVENT THAT NO AMOUNTS ARE RECOVERABLE BY LICENSOR OR LICENSOR’S INSURANCE POLICIES DO NOT COVER THE LIABILITY AT ISSUE, THEN THE TOTAL LIABILITY OF LICENSOR TO THE LICENSEE, IN THE AGGREGATE, IN LAW OR IN EQUITY, SHALL NOT EXCEED FIVE HUNDRED THOUSAND DOLLARS ($500,000).

17. Confidential Information. This section governs the protections for Confidential Information that one Party (the “Disclosing Party”) provides to the other (the “Receiving Party”) under this Agreement.

17.1. Scope. Subject to Section 17.2 (Exceptions), the term “Confidential Information” means information the Disclosing Party provides to, or that the Receiving Party accesses from the Disclosing Party that meets one of the following two criteria: the information either (i) is identified by a “CONFIDENTIAL” legend or similar legend of the Disclosing Party, or (ii) is obtained under circumstances such that the Receiving Party knew or reasonably should have known that the information should be treated as confidential to the Disclosing Party. Subject to Section 17.2 (Exceptions), “Confidential Information” includes inventions, specifications, drawings, models, samples, reports, plans, financial information, work-in-progress, forecasts, computer programs or documentation, and all other technical, financial, intellectual or business information or data. By way of example and not limitation, Confidential Information of Licensor includes the Escrow Materials (including all associated Source Code) and the Platform.

17.2. Exceptions. The Parties’ obligations of confidentiality and non-use shall not apply where the Receiving Party shows that the information (that would otherwise qualify as Confidential Information): (i) is or after the Effective Date becomes publicly available or part of the public domain through no wrongful act, fault, or negligence on the part of the Receiving Party; (ii) was in the possession of the Receiving Party at the time of the Receiving Party’s receipt of the Confidential Information, and was not otherwise subject to an existing agreement of confidentiality; (iii) is received from a third party without restriction and without breach of any obligation of confidentiality to the Disclosing Party; or (iv) was independently developed by the Receiving Party without reliance on the Disclosing Party’s Confidential Information.

17.3. Confidentiality. The Receiving Party shall not access, use, or disclose any of the Disclosing Party’s Confidential Information except as expressly permitted under this Agreement. The Receiving Party shall protect the Disclosing Party’s Confidential Information with the same level of care it uses for its own Confidential Information of like nature; provided, however, that the Receiving Party shall at a minimum use reasonable care to protect the Disclosing Party’s Confidential Information. A Receiving Party shall be entitled to disclose the Disclosing Party’s Confidential Information to its employees and the employees of its affiliates (collectively, “Authorized Individuals”); provided that each such Authorized Individual (i) has a need to know the Confidential Information for the purposes of this Agreement, and (ii) has been apprised of and agrees to the confidentiality and use obligations set out in this Agreement. Each Party shall be responsible for any breach of confidentiality by its employees and (where applicable) its service providers.

17.4. Compelled Disclosure. Nothing herein shall prevent a Receiving Party from disclosing any Confidential Information as necessary pursuant to any court order, lawful requirement of a governmental agency, or when disclosure is required by operation of law (including disclosures pursuant to any applicable securities laws and regulations); provided, however, that prior to any such disclosure, the Receiving Party shall use reasonable efforts to (a) promptly notify the Disclosing Party in writing of such requirement to disclose and (b) reasonably cooperate with the Disclosing Party, at the Disclosing Party’s expense, in protecting against or minimizing such disclosure.

18. Network Load Levels. To the extent that Licensor is providing Hosting Services to Licensee, Licensor shall use good faith efforts to ensure that the Auris Platform or the Knetik Platform each supports a load level up to 200 transactions per section, which is equivalent to 525,600,000 transactions per month. If during the Term, Licensee should reach the load capacity level of the Knetik Platform or of the Auris Platform, then Licensor and Licensee shall discuss in good faith to implement a Statement of Work pursuant to Section 5.1 (Statement of Work) to expand the capacity of the applicable Platform, and such expansion shall constitute an Out-of-Scope Service.

19. Insurance.

19.1. Required Insurance. Each Party will keep in full force and effect at all times during the Term: (i) comprehensive general liability insurance in an amount not less than One Million Dollars ($1,000,000.00) per occurrence and not less than Two Million Dollars ($2,000,000.00) in the aggregate for bodily injury and property damage; (ii) employer’s liability insurance in an amount not less than One Million Dollars ($1,000,000.00) per occurrence; (iii) workers’ compensation insurance in an amount not less than that required by applicable law; (iv) extended risk insurance covering all of customer’s equipment and other personal property (including data and media) to cover the replacement cost of same, including but not limited to, EDP (electronic data processing property) perils written on a “Special Form” basis at full replacement cost value; (v) coverage for the contractual liability to indemnify the other Party; (vi) errors and omissions insurance in an amount not less than Five Million Dollars ($5,000,000.00); and (vii) cybersecurity insurance in an amount not less than Five Million Dollars ($5,000,000.00). The Parties shall place the policies required herein with reputable insurers having an AM Best rating of A- or better. Each Party also expressly agrees that it will be solely responsible for ensuring that its agents (including contractors and subcontractors) maintain additional insurance at levels no less than those required by applicable law and customary in such Party’s industry. Prior to the Effective Date, each Party will furnish the other Party with certificates of insurance which evidence the minimum levels of insurance set forth above, name the other Party as additional insured, require notification of the other Party in writing of the effective date of such coverage and provide that all insurance policies provide the other Party with thirty (30) days advanced written notice of cancellation or termination.

19.2. Insurance Claims. Licensee and its Representatives shall not pursue any claims against Licensor for any liability Licensor may have under or relating to this Agreement unless and until Licensee or its employee(s), as applicable, first makes claims against Licensee’s insurance provider(s) and such insurance provider(s) finally resolve(s) such claims. Any inability by Licensee to furnish the proof of insurance required under this Section or failure to obtain such insurance shall be a material breach of this Agreement. Licensee and all parties claiming under, by and through Licensee, hereby waive any and all rights to recover against Licensor or against its affiliates, subsidiaries, or its or their respective officers, directors, shareholders, partners, members, employees, agents, customers or invitees for any loss or damage to such waiving Party from any cause covered by any insurance required to be carried by any such Party hereunder to the extent insured. Licensor, its agents and employees make no representation that the limits of liability specified to be carried by Licensee pursuant to this Section are adequate to protect Licensee.

20. Miscellaneous.

20.1. Amendment and Modification. This Agreement may not be amended, modified or supplemented in any manner, whether by course of conduct or otherwise, except by an instrument in writing specifically designated as an amendment hereto, and signed on behalf of each Party.

20.2. Notices. All notices, requests, claims, demands, and other communications under this Agreement, unless provided to the contrary herein, shall be sent to:

20.3. Waiver. The failure or delay of either Party in exercising any right or remedy hereunder shall not operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such right or power, or any course of conduct, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Parties are cumulative and are not exclusive of any rights or remedies which they would otherwise have hereunder. Any agreement on the part of either Party to any such waiver shall be valid only if set forth in a written instrument executed and delivered by a duly authorized officer on behalf of such Party.

20.4. Interpretation. When a reference is made in this Agreement to a Section, such reference shall be to a Section of this Agreement unless otherwise indicated. Any headings contained in this Agreement are for convenience of reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. All words used in this Agreement will be construed to be of such gender or number as the circumstances require. The word “including” and words of similar import when used in this Agreement will mean “including, without limitation,” unless otherwise specified.

20.5. Entire Agreement. This Agreement constitutes the entire agreement, and supersedes all prior written agreements, arrangements, communications and understandings and all prior and contemporaneous oral agreements, arrangements, communications and understandings between the Parties with respect to the subject matter hereof.

20.6. Responsibility for Representatives. Licensee agrees that it is solely responsible and liable for the actions of its Representatives, including any breach of Licensee’s obligations under this Agreement that are attributable to Licensee. By way of example, and not limitation, if Licensee engages a Representative to develop a Licensee Improvement using Escrow Materials and the Representative discloses Source Code for the Platform in violation of the confidentiality obligations set out in this Agreement, then Licensee shall be liable to Licensor for such breach as if the Licensee were the party that breached the applicable confidentiality obligation.

20.7. No Third-Party Beneficiaries. Nothing in this Agreement, express or implied, is intended to or shall confer upon any person other than the Parties, their affiliates and their respective successors and permitted assigns any legal or equitable right, benefit or remedy of any nature under or by reason of this Agreement.

20.8. Governing Law. This Agreement and all disputes or controversies arising out of or relating to this Agreement or the transactions contemplated hereby shall be governed by, and construed in accordance with, the laws of the State of Florida, without regard to the laws of any other jurisdiction that might be applied because of the conflicts of laws principles of the State of Florida.

20.9. Publicity. Licensee agrees that (i) it shall not use Licensor’s names, logos, tag lines, or any other identifying information in any manner, including, but not limited to, in advertisements, publications, press releases, articles, websites, or social media, without Licensor’s prior written approval (the “Publicity Prohibition”), and (ii) the Publicity Prohibition applies to Licensor, and all of their related or affiliated entities. Licensee shall not, without Licensor’s prior written consent (which may be withheld or withdrawn for any reason) use any applicable names, logos, tag lines, or any other identifying information in violation of the Publicity Prohibition.

20.10. Submission to Jurisdiction. Each of the Parties irrevocably agrees that any action arising out of or relating to this Agreement brought by the other Party or its successors or assigns shall be brought and determined exclusively in the state or federal courts located in Miami-Dade County, Florida (or, if such court lacks subject matter jurisdiction, in any appropriate state or federal court within the State of Florida), and each of the Parties hereby irrevocably submits to the exclusive jurisdiction of the aforesaid courts for itself and with respect to its property, generally and unconditionally, with regard to any such action arising out of or relating to this Agreement and the transactions contemplated hereby. Each of the Parties agrees not to commence any action relating thereto except in the aforementioned courts (or, if such court lacks subject matter jurisdiction, in any appropriate state or federal court within the State of Florida), other than actions in any court of competent jurisdiction to enforce any judgment, decree or award rendered by any such court in Florida as described herein. Each of the Parties hereby irrevocably and unconditionally waives, and agrees not to assert, by way of motion or as a defense, counterclaim or otherwise, in any action arising out of or relating to this Agreement or the transactions contemplated hereby, any action (a) that it is not personally subject to the jurisdiction of the courts in Florida as described herein for any reason, (b) that it or its property is exempt or immune from jurisdiction of any such court or from any legal process commenced in such courts (whether through service of notice, attachment prior to judgment, attachment in aid of execution of judgment, execution of judgment or otherwise), and (c) that (i) the action in any such court is brought in an inconvenient forum, (ii) the venue of such action is improper, or (iii) this Agreement, or the subject matter hereof, may not be enforced in or by such courts.

20.11. Assignment; Successors. Neither this Agreement nor any of the rights, interests or obligations under this Agreement may be assigned or delegated, in whole or in part, by operation of law or otherwise, by Licensee without the prior written consent of the Licensor, and any such assignment without such prior written consent shall be null and void. Licensee acknowledges that Licensor may assign this Agreement (or any of its rights or obligations hereunder) or any of its Intellectual Property Rights to a third-party upon notice to Licensee. Subject to the preceding sentence, this Agreement will be binding upon, inure to the benefit of, and be enforceable by, the Parties and their respective successors and assigns.

20.12. Severability. Whenever possible, each provision or portion of any provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable Law, but if any provision or portion of any provision of this Agreement is held to be invalid, illegal or unenforceable in any respect under any applicable Law or rule in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other provision or portion of any provision in such jurisdiction, and this Agreement shall be reformed, construed and enforced in such jurisdiction as if such invalid, illegal or unenforceable provision or portion of any provision had never been contained herein.

20.13. Enforcement. 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. Each of the Parties shall be entitled to specific performance of the terms hereof, including an injunction or injunctions to prevent breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement in the state and or federal courts located in Miami-Dade County, Florida (or, if such court lacks subject matter jurisdiction, in any appropriate state or federal court within the State of Florida), this being in addition to any other remedy to which such Party is entitled at law or in equity. Each of the Parties hereby further waives (a) any defense in any action for specific performance that a remedy at law would be adequate and (b) any requirement under any law to post security as a prerequisite to obtaining equitable relief.

20.14. Waiver of Jury Trial. EACH OF THE PARTIES HEREBY IRREVOCABLY WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.

20.15. Counterparts; Electronic Signatures. This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original but all of which together shall constitute one and the same instrument and shall become effective when one or more counterparts have been signed by each of the Parties and delivered to the other Party. A facsimile, PDF or other electronic signature of this Agreement shall be valid and have the same force and effect as a manually signed original.

20.16. No Presumption Against Drafting Party. Each of the Licensor and the Licensee acknowledges that each Party to this Agreement has been represented by legal counsel in connection with this Agreement and the transactions contemplated by this Agreement. Accordingly, any rule of law or any legal decision that would require interpretation of any claimed ambiguities in this Agreement against the drafting Party has no application and is expressly waived.

20.17. Force Majeure. Neither Party shall be liable hereunder by reason of any failure or delay in the performance of its obligations on account of strikes, shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, terrorism, war, governmental action, earthquakes, or any other cause that is beyond the reasonable control of such Party.

20.18. Exclusive Remedies. Except as expressly stated herein, no remedy conferred by any of the provisions of this Agreement is intended to be exclusive of any other remedy, and each remedy is cumulative and in addition to every other remedy available to a Party hereunder or otherwise existing at law, in equity, by statute, or otherwise. The election of any one or more remedies by either Party shall not constitute a waiver of the right to pursue any other available remedies.

20.19. Independent Contractors. The Parties are independent contractors, and no agency, partnership, joint venture, or employer-employee relationship is intended or created by this Agreement. Neither Party shall have the power to obligate or bind the other Party. Personnel supplied by Licensor shall work exclusively for Licensor and shall not, for any purpose, be considered Licensee employees or agents.

IN WITNESS WHEREOF, the Parties hereto have executed Platform License Agreement as of the Effective Date.

SCHEDULE A

Maintenance and Support

Subject to the terms and conditions of the Agreement, this Schedule A (Maintenance and Support) (the “Schedule”) to the Platform License Agreement (the “Agreement”) sets out the terms and conditions under which Licensor will provide certain maintenance and support services for the Platform (as further described in this Schedule, the “Maintenance and Support Services”). All capitalized terms used but not otherwise defined in this Schedule shall have the meanings ascribed to them in the Agreement.

1. Fees; Expenses. Licensor shall provide the Licensee with the Maintenance and Support Services for the Platform as consideration for the Maintenance Fees set forth in Section 9.1.2 (Maintenance Fees) of the Agreement. The Maintenance Fees shall be due on their respective due dates, without need for invoice from Licensor. To the extent that Licensor is required to travel to Licensee’s premises, or otherwise incurs any costs from third-parties, which are reasonably necessary for Licensor to perform the Maintenance and Support Services, then, Licensor shall invoice such expenses to Licensee, and within thirty (30) days of receipt of such invoice, Licensee shall reimburse Licensor for such expenses.

2. Maintenance and Support Services.

2.1. Scope of Services. Licensor shall provide operational support to manage and support daily operations which include triage of issues, and defect process management. During any period for which Licensee has paid the required Maintenance Fees, Licensor shall provide Licensee with the following maintenance and support services, subject to the limitations and procedures set forth in this Schedule A (Maintenance and Support):

2.1.1. Monitor the Platform for errors and the instruction to correct errors;

2.1.2. Provide upgrades, patches and service packs for the Platform, as needed for the Platform to be compatible with updates to the peripherals or the operating system;

2.1.3. Log, track, and, correct Defects (as defined below) in the Platform, pursuant to Section 5 (Defect Correction) of this Schedule; and

2.1.4. Update Documentation for any material upgrades, modifications, improvements, enhancements, extensions, and other changes to the Platform.

2.2. Support Hours. Licensor shall provide the Maintenance and Support Services on a 24/7/365 basis. Without limiting the foregoing, the monitoring and correction aspects of the Maintenance and Support Services include: production system issue triage; prioritization, management and reporting the disposition of all Defects and issues; analysis of Defects and related issues, and correction of object and Source Code to resolve the Defect; preparation of documentation for Licensor’s technical staff demonstrating the Defect and resolution of the Defect; unit testing of Defects and corrections to the Defects; version control over all corrections to code; packaging and delivery of the corrected object code and related documentation to Licensor; maintenance of the current version of Source Code on behalf of Licensor, and depositing same with escrow agent; ensuring integrity of database and system performance through database administration services; and provision of ad hoc reports and interface support as directed. Notwithstanding anything to the contrary, Licensee agrees that Licensor shall only provide Maintenance and Support Services requiring changes to Source Code during Licensor’s regular business hours.

2.3. Support Contact. All requests for Maintenance and Support Services will be initiated when the Authorized Representative (defined below) of Licensee contacts Licensor’s Authorized Representative and provides the Licensee’s name and telephone number of technical contact, contract number, product and/or serial number, and brief description of the problem.

3. Hosting Services.

3.1. Provision of Hosting Services. The Platform is provided to Licensee as a hosted solution. Accordingly, Licensor shall host the Platform via its Hosting Vendor, and such services shall include those services that Licensor generally makes available to its other customers (collectively, the “Hosting Services”). The Hosting Services shall include Licensee’s access to and use of the Platform as permitted pursuant to the Documentation via the internet.

3.2. Management of Hosting Vendor. The Parties agree that Licensor, in connection with its provision of Hosting Services, shall be relying on third parties to provide the hosting solution (the “Hosting Vendor”). Accordingly, Licensee agrees that (i) Licensor’s provision of the Hosting Services is dependent on the performance of the Hosting Vendor, and (ii) Licensor’s failure to fulfill any of its obligations under this Agreement shall constitute a force majeure event to the extent that such failure is attributable to the Hosting Vendor.

3.3. Hosting Service Servers. Licensor shall provide the Hosting Services using the same server and service configuration that Licensor has in place prior to the Effective Date. Any Licensee-requested changes to the server configuration or other aspects of the Hosting Services shall be treated as Out-of-Scope Services and handled pursuant to Agreement Section 5 (Improvements; Out-of-Scope Services). By way of clarification, and not limitation, if Licensee desires to have the Knetik Platform hosted on a single-tenant server, then Licensee shall present a written request to Licensor regarding the same, and the Parties shall proceed as set out in Agreement Section 5 (Improvements; Out-of-Scope Services).

4. General Assumptions. Licensor’s ability to provide the Maintenance and Support Services is conditioned upon the following requirements and specifications:

4.1. Processes Information. Licensee shall provide the Licensor’s project team with knowledge of current installation and business processes (or access to them).

4.2. Licensee Failure. Licensee acknowledges and agrees that its failure to satisfy or provide any of the preceding requirements and specifications is likely to hinder Licensor’s ability to perform the Maintenance and Support Services, and that if such specifications and requirements are not met by Licensee, then the failure of Licensor to perform the Maintenance and Support Services, whether in whole or partially, shall be excused and Licensor shall have no liability for such performance failure.

4.3. Use Release Event. As further set forth in Section 4.7 (Effect of Use Release Event), Licensor’s obligations to provide, and Licensee’s rights to receive, the Maintenance and Support Services shall immediately terminate upon the occurrence of a Use Release Event.

5. Defect Correction.

5.1. Defect Correction Support. When Licensee reports a suspected Defect in the Platform to Licensor, Licensor shall attempt, based upon information provided by Licensee, to recreate the suspected Defect. If the Defect is confirmed, Licensor shall use commercially reasonable efforts to provide Licensee a Correction during Licensor’s normal business hours. For the purpose herein, a “Defect” is a material failure of the Platform to operate substantially in accordance with the applicable Documentation, and a “Correction” includes, without limitation, workarounds, support releases, update disks, correction disks, component replacements, patches and/or Documentation changes, as Licensor deems appropriate.

5.2. Implementation of Corrections. Licensee agrees to implement within a reasonable time all Corrections provided by Licensor hereunder.

6. Service Level Agreement. Licensor shall, using commercially reasonable efforts and commercially reasonable response and resolution times, ensure that the Platform has an uptime of 99.9% measured on a monthly basis (the “Availability Commitment”), subject to reasonable downtime for maintenance, error corrections, and matters beyond Licensor’s control (each, an “Exception”). The total number of minutes that the Platform’s availability does not meet the Availability Commitment in a given month that is not due to an Exception, shall be referred to as “Downtime”. If Licensor fails to meet the Availability Commitment in a particular month, then Licensee shall be entitled to a service credit (each, a “Service Credit”), and such Service Credit be calculated as a percentage of one-twelfth (1/12) of the Maintenance Fees for the calendar year in which the Service Credit is due as follows:

By way of clarification, and not limitation, if the Platform availability in a month during the first calendar year of the Effective Date is 97.5%, then the available Service Credit shall be $1,250 (i.e., (500,000/12)(.03)).

7. Service Credits as Exclusive Remedy. Licensee agrees that the remedies provided for under Schedule A Section 6 (Service Level Agreement) are the sole and exclusive remedy available to Licensee for any failure in the availability of the Platform, service interruptions, service response issues, and/or service deficiencies of any kind and, Licensee agrees that Licensee shall not have any other claims, rights, or remedies, and Licensor shall have no other liabilities or obligations to Licensee, with respect to the availability of the Platform, service interruptions, service response issues, and/or service deficiencies of any kind.

8. Termination of Support/Renewal. Licensor may suspend providing support upon thirty (30) days’ written notice to Licensee, if Licensee fails to pay the (a) Maintenance Fees, or (b) any other amount owed under this Agreement within thirty (30) days of the receipt of Licensor’s invoice and if such failure is not corrected within the said thirty (30) day period.

9. Authorized Representatives. The following employee representatives of Licensee are hereby authorized to contact the following employee representatives for Licensor (each of the below listed persons, an “Authorized Representative” for the respective Party) for support for the term of this Schedule, or unless otherwise modified in writing by an authorized representative of the respective Party.

EXHIBIT 5.2 (LIST OF THIRD PARTY MATERIALS)

EXHIBIT 9.1.3 (LIST OF PASS-THROUGH FEES)

EXHIBIT 15.2 (PLEDGE AGREEMENT)

EXHIBIT 1.2 (AURIS PLATFORM DESCRIPTION)

Auris Retail Platform

EXHIBIT 1.8 (KNETIK PLATFORM DESCRIPTION)

Knetik Retail Platform

28

Exhibit 10.7

EXECUTION VERSION

VOTING AGREEMENT and Proxy

This Voting Agreement and Proxy (this “Agreement”) is entered into as of December 31, 2019, by and among Cuentas Inc., a Florida corporation (the “Company”), Arik Maimon (“Maimon”), Michael De Prado (“De Prado”), Dinar Zuz LLC, a Florida limited liability company (“Dinar”), and CIMA Telecom Inc., a Florida corporation doing business as “CIMA Group” (“CIMA”). Each of Maimon, De Prado, Dinar, and CIMA are referred to in this Agreement as a “Shareholder.”

RECITALS

A. Maimon owns 368,808 shares (the “Maimon Common Stock”) of Common Stock, par value $0.001 per share, of the Company (“Common Stock”), and 5,107,500 shares (the “Maimon Preferred Stock”) of Series B Preferred Stock, par value $0.001 per share, of the Company (“Series B Preferred Stock”). The Maimon Common Stock, Maimon Preferred Stock, and all other shares of Common Stock, Series B Preferred Stock, and any other class or series of capital stock of the Company hereafter authorized and issued, whether now owned or subsequently directly or indirectly acquired by Maimon, and however acquired, whether through stock splits, stock dividends, reclassifications, recapitalizations, similar events, or otherwise, are collectively referred to in this Agreement as the “Maimon Stock.”

B. De Prado owns 256,957 shares of Common Stock (the “De Prado Common Stock”) and 822,700 shares of Series B Preferred Stock (the “De Prado Preferred Stock”). The De Prado Common Stock, De Prado Preferred Stock, and all other shares of Common Stock, Series B Preferred Stock, and any other class or series of capital stock of the Company hereafter authorized and issued, whether now owned or subsequently directly or indirectly acquired by De Prado, and however acquired, whether through stock splits, stock dividends, reclassifications, recapitalizations, similar events, or otherwise, are collectively referred to in this Agreement as the “De Prado Stock.”

C. Dinar owns (i) 500,000 shares of Common Stock (the “Dinar Common Stock”), (ii) zero shares of Series B Preferred Stock (the “Dinar Preferred Stock”), and (iii) a Warrant (the “Dinar Warrant”) to purchase shares of Common Stock of the Company, subject to the terms and conditions of the Dinar Warrant. The Dinar Common Stock, Dinar Preferred Stock, and all other shares of Common Stock, Series B Preferred Stock, and any other class or series of capital stock of the Company hereafter authorized and issued, whether now owned or subsequently directly or indirectly acquired by Dinar (including, but not limited to, any shares of Common Stock acquired upon exercising the Dinar Warrant), and however acquired, whether through stock splits, stock dividends, reclassifications, recapitalizations, similar events, or otherwise, are collectively referred to in this Agreement as the “Dinar Stock.”

D. CIMA and the Company have entered into that certain Note Purchase Agreement, dated December 30, 2019 (the “Purchase Agreement”), pursuant to which CIMA has agreed to purchase from the Company, and the Company has agreed to issue and sell to CIMA, (i) a Debenture in the principal amount of $9,000,000 that is convertible into Common Stock of the Company (the “Debenture”); and (ii) a Warrant (the “CIMA Warrant”) to purchase shares of Common Stock of the Company, subject to the terms and conditions of the CIMA Warrant. The shares of Common Stock issuable to CIMA upon conversion of the Debenture and exercise of the CIMA Warrant are collectively referred to in this Agreement as the “CIMA Stock” and, collectively with the Maimon Stock, De Prado Stock, and Dinar Stock, the “Voting Stock.”

E. Contemporaneous with the Company’s issuance of the Debenture and the CIMA Warrant to CIMA, the Company, CIMA, Knetik, Inc., a Delaware corporation (“Knetik”), and Auris, LLC, a Florida limited liability company (“Auris”), shall enter into a Platform License Agreement (the “License Agreement”) pursuant to which Knetik and Auris shall license certain Licensed Technology (as defined in the License Agreement) to the Company.

F. To induce CIMA to enter into the Purchase Agreement, purchase the Debenture and the CIMA Warrant, and enter into the License Agreement and other Transaction Documents (as described in the Purchase Agreement), and to induce Dinar to purchase the Dinar Warrant, the parties desire to enter into this Agreement to: (i) set forth the terms and conditions of proxies intended to be granted by Maimon and De Prado to each of CIMA and Dinar pursuant to the terms and conditions of this Agreement; (ii) determine the election of certain members of the Board of Directors of the Company (the “Board”) in accordance with the terms of this Agreement; and (iii) confirm how the parties shall vote on other particular matters described in this Agreement during the term of this Agreement, including, but not limited to, the reclassification of Series B Preferred Stock as Common Stock pursuant to Amended and Restated Articles of Incorporation of the Company proposed to be filed soon after the closing of the transactions contemplated by the Purchase Agreement.

G. On or before the date of this Agreement, Adiv Baruch and Richard Berman resigned as directors of the Company, leaving at least two vacant seats on the Board.

NOW, THEREFORE, in consideration of the foregoing, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound, hereby agree as follows:

1. Voting Provisions Regarding the Board of Directors.

1.1 Size of the Board.

(a) Subject to Section 1.1(b) and Section 1.1(c), each Shareholder hereby agrees to vote, or cause to be voted, all Shares (as defined below) owned by such Shareholder, or over which such Shareholder has voting control, from time to time and at all times, in whatever manner as shall be necessary, to ensure that the size of the Board shall be set and remain at five (5) directors elected pursuant to Section 1.2(a) and may be increased only with the written consent of the Shareholders who are signatories to this Agreement, subject to the limitations of Section 6. For the purposes of this Agreement, the term “Shares” shall mean and include any securities of the Company that the holders of which are entitled to vote for members of the Board, including, but not limited to, Common Stock and Series B Preferred Stock, whether now owned or subsequently acquired by a Shareholder, and however acquired, whether through stock splits, stock dividends, reclassifications, recapitalizations, similar events, or otherwise.

(b) If the Company’s shares of Common Stock become listed on the NASDAQ Capital Market (or if there is any other similar transaction which ultimately involves the listing of the Company’s capital stock, whether Common Stock or any other class or series of capital stock of the Company, on any exchange affiliated with or similar to NASDAQ) (such event, the “NASDAQ Uplisting”), each Shareholder hereby agrees to vote, or cause to be voted, all Shares owned by such Shareholder, or over which such Shareholder has voting control, from time to time and at all times, in whatever manner as shall be necessary, to ensure that the size of the Board shall be set and remain at eleven (11) directors elected pursuant to Section 1.2(b) and may be increased only with the written consent of the Shareholders who are signatories to this Agreement, subject to the limitations of Section 6.

(c) If there is a Budget Violation (as defined below) before the NASDAQ Uplisting, then each Shareholder hereby agrees to vote, or cause to be voted, all Shares owned by such Shareholder, or over which such Shareholder has voting control, from time to time and at all times, in whatever manner as shall be necessary, to ensure that the size of the Board shall be set and remain at seven (7) directors elected pursuant to Section 1.2(c) and may be increased only with the written consent of the Shareholders who are signatories to this Agreement, subject to the limitations of Section 6.

1.2 Board Composition.

(a) Prior to NASDAQ Uplisting. Subject to Section 1.1(b), Section 1.1(c), Section 1.2(b), and Section 1.2(c), as promptly as practicable after the execution of this Agreement, the Company and the Shareholders shall cause the appointment of the following individuals to fill vacant seats on the Board (but only to the extent such individual is not already serving as a director), and each Shareholder agrees to vote, or cause to be voted, all Shares owned by such Shareholder, or over which such Shareholder has voting control, from time to time and at all times, in whatever manner as shall be necessary, to ensure that at each annual or special meeting of shareholders at which an election of directors is held or pursuant to any written consent of the shareholders, the following individuals shall be elected to the Board:

(i) one individual designated from time to time by CIMA, which seat shall initially be vacant and which person shall be subsequently identified by CIMA in its discretion;

(ii) one individual designated from time to time by Dinar, which individual shall initially be Yochanon Bruk;

(iii) one individual designated by De Prado, who shall initially be De Prado; and

(iv) two individuals designated by Maimon, who shall initially be Maimon and Natali Dadon.

(b) After NASDAQ Uplisting. Subject to Section 1.1(c) and Section 1.2(c), if the NASDAQ Uplisting is completed and the size of the Board is increased to eleven (11) directors pursuant to Section 1.1(b), then the Company and the Shareholders shall cause the appointment of the following individuals to the Board, and each Shareholder agrees to vote, or cause to be voted, all Shares owned by such Shareholder, or over which such Shareholder has voting control, from time to time and at all times, in whatever manner as shall be necessary, to ensure that at each annual or special meeting of shareholders at which an election of directors is held or pursuant to any written consent of the shareholders, the following individuals shall be elected to the Board:

(i) one individual designated from time to time by CIMA;

(ii) one individual designated from time to time by Dinar;

(iii) one individual designated by De Prado;

(iv) two individuals designated by Maimon; and

(v) six directors elected by the shareholders of the Company pursuant to the Company’s Amended and Restated Articles of Incorporation (as further amended from time to time, the “Articles”) and Amended and Restated Bylaws (as further amended from time to time, the “Bylaws”), each as further amended from time to time.

(c) Budgetary Violation Before NASDAQ Uplisting. It is agreed by the parties that, until the NASDAQ Uplisting, management will present a quarterly budget to the Board of Directors for its approval at least two weeks before the beginning of each fiscal quarter. For the avoidance of doubt, the first fiscal quarter for which such a budget shall be presented and approved shall be the fiscal quarter ending March 31, 2020. It also agreed that prior to the NASDAQ Uplisting, if the Company’s expenses exceed the expenses set forth in any such quarterly budget for the Company for two consecutive fiscal quarters during the fiscal year ending December 31, 2020, by more than twenty percent (20%), either individually or in the aggregate, without the prior written approval of at least three of CIMA, Dinar, Maimon, and De Prado (each of the matters described in (x) and (y) above, a “Budget Violation”), then the size of the Board shall be increased to seven (7) directors pursuant to Section 1.1(c), and the Company and the Shareholders shall cause the Board to appoint the following individuals to the Board, and each Shareholder agrees to vote, or cause to be voted, all Shares owned by such Shareholder, or over which such Shareholder has voting control, from time to time and at all times, in whatever manner as shall be necessary, to ensure that at each annual or special meeting of shareholders at which an election of directors is held or pursuant to any written consent of the shareholders, the following individuals shall be elected to the Board:

(i) two individuals designated from time to time by CIMA,

(ii) two individuals designated from time to time by Dinar,

(iii) one individual designated from time to time by De Prado, and

(iv) two individuals designated from time to time by Maimon, and

thereafter, the executive officers of the Company may be removed by the affirmative vote of at least four directors, and upon such removal, the Board shall appoint new executive officers of the Company.

(d) The Shareholders shall cause the Board to include the individuals identified by the Shareholders pursuant to Section 1.2 to be included as nominees for election to the Board on the slate of nominees recommended by the Board in the Company’s future proxy statements and on its proxy cards for future annual or special meetings of the shareholders at which an election of directors is held or pursuant to any written consent of the shareholders, and shall use its best efforts (which shall include the solicitation of proxies) to obtain the election of such individuals to the Board for as long as this Agreement is in effect, subject to the limitations of Section 6.

(e) To the extent that any of Section 1.2(a)(i) through Section 1.2(a)(iv), Section 1.2(b)(i) through Section 1.2(b)(v), or Section 1.2(c)(i) through Section 1.2(c)(iv) shall not be applicable (including, but not limited to, as a result of a Shareholder ceasing to have rights under this Agreement pursuant to Section 6), any member of the Board who would otherwise have been designated in accordance with the terms thereof shall instead be voted upon by all of the shareholders of the Company entitled to vote thereon in accordance with, and pursuant to, the Company’s Articles and Bylaws.

(f) For purposes of this Agreement, an individual, firm, corporation, partnership, association, limited liability company, trust, or any other entity (collectively, a “Person”) shall be deemed to be an “Affiliate” of another Person who, directly or indirectly, controls, is controlled by, or is under common control with such Person, including, but not limited to, any general partner, managing member, officer, or director of such Person.

1.3 Failure to Designate a Board Member. In the absence of any designation by the Persons or groups with the right to designate a director as specified above, the director previously designated by them and then serving on the Board shall be reelected if still eligible and willing to serve as provided herein and, otherwise, such Board seat shall remain vacant.

1.4 Removal of Board Members. Each Shareholder also agrees to vote, or cause to be voted, all Shares owned by such Shareholder, or over which such Shareholder has voting control, from time to time and at all times, in whatever manner as shall be necessary, to ensure that:

(a) no director elected pursuant to Section 1.2 of this Agreement may be removed from office other than for cause unless (i) such removal is directed or approved by the affirmative vote of the Person(s) entitled under Section 1.2 to designate such director; or (ii) the Person(s) originally entitled to designate or approve such director or occupy such Board seat pursuant to Section 1.2 is no longer so entitled to designate or approve such director or occupy such Board seat, including as a result of the limitations in Section 6;

(b) any vacancies created by the resignation, removal, or death of a director elected pursuant to Section 1.2 shall be filled pursuant to the provisions of this Section 1; and

(c) upon the request of any party entitled to designate a director as provided in Section 1.2 to remove such director, such director shall be removed.

All Shareholders agree to execute any written consents required to perform the obligations of this Agreement, and the Company agrees at the request of any Person or group entitled to designate directors to call a special meeting of shareholders for the purpose of electing directors.

1.5 No Liability for Election of Recommended Directors. No Shareholder, nor any Affiliate of any Shareholder, shall have any liability, as a result of designating an individual (other than the Shareholder) for election as a director, for any act or omission by such designated individual in such individual’s capacity as a director of the Company, nor shall any Shareholder have any liability as a result of voting for any such designee in accordance with the provisions of this Agreement.

1.6 Other Governance Matters. For as long as any individual designated by CIMA or Dinar pursuant to Section 1.2 is serving on the Board, then: (a) each committee of the Board shall include at least one director designated by CIMA, if requested by CIMA, and one director designated by Dinar, if requested by Dinar; and (b) the Board shall meet at least once per calendar quarter unless otherwise agreed upon by a vote of the majority of the Board; provided, that any such decision not to hold a quarterly meeting must include the affirmative vote of at least one director designated by CIMA and at least one director designated by Dinar in order to be effective. Promptly after the execution of this Agreement, in preparation for the NASDAQ Uplisting, the Shareholders shall cause the Board to, and the Company shall, take all commercially reasonable steps to comply with NASDAQ Listing Standards relating to corporate governance, including, but not limited to, holding an Annual Meeting of Shareholders, adopting and adhering to a Conflict of Interest Policy for transactions involving related parties, and creating standing committees of the Board similar to other U.S. companies whose shares are publicly traded on the NASDAQ exchange.

1.7 Board Observer. At any time when CIMA or Dinar, as applicable, does not have a designee serving as a director of the Company, the Company shall invite one representative of CIMA (who shall initially be Juan Martin Gomez) or one representative of Dinar, as applicable, to attend all meetings of the Board in a non-voting observer capacity and, in this respect, shall give such representative copies of all notices, minutes, consents, and other materials that the Company provides to its directors at the same time and in the same manner as provided to such directors; provided, however, that such representative shall agree to hold in confidence and trust and to act in a fiduciary manner with respect to all information so provided; and provided further, that the Company reserves the right to withhold any information and to exclude such representative from any meeting or portion thereof if access to such information or attendance at such meeting could adversely affect the attorney-client privilege between the Company and its counsel or result in disclosure of trade secrets or a conflict of interest.

2. Voting Provisions Regarding Share Reclassification and Amended and Restated Articles of Incorporation. Each of Maimon, De Prado, Dinar, and CIMA agree to vote all of their respective shares of Voting Stock (which, for the avoidance of doubt, shall include all of their respective shares of Common Stock and Series B Preferred Stock), to (a) authorize, approve, and direct the Company file Amended and Restated Articles of Incorporation of the Company with the Florida Department of State, Division of Corporations, substantially in the form attached as Appendix A to the Schedule 14A (Preliminary Proxy Statement) filed with the Securities and Exchange Commission on December 10, 2019 (the “Preliminary Proxy”), with any deviations therefrom to be agreed upon by Maimon, De Prado, Dinar and CIMA; and (b) approve all other proposals set forth in the Preliminary Proxy and any additional matters set forth in a subsequent Definitive Proxy Statement based on the Preliminary Proxy, in each case, as soon as practicable after the closing of the transactions contemplated by the Purchase Agreement, but no later than May 28, 2020.

3. Grant of Irrevocable Proxies for CIMA and Dinar.

3.1 Definitions. The following definitions shall apply for purposes of this Section 3:

(a) “CIMA Proxy Stock” means a number of shares of Series B Preferred Stock, which may fluctuate from time to time subject to the terms and conditions of this Agreement, that CIMA would need to own and control in order for the sum of (i) the voting power represented by CIMA’s shares of Voting Stock, plus (ii) the voting power represented by the CIMA Proxy Stock, to equal 25.0% of all of the voting power of the Common Stock and Series B Preferred Stock of the Company.

(b) “Dinar Proxy Stock” means a number of shares of Series B Preferred Stock, which may fluctuate from time to time subject to the terms and conditions of this Agreement, that Dinar would need to own and control in order for the sum of (i) the voting power represented by Dinar’s shares of Voting Stock, plus (ii) the voting power represented by the Dinar Proxy Stock, to equal 25.0% of all of the voting power of the Common Stock and Series B Preferred Stock of the Company.

(c) “Pro Rata Percentage” means, for purposes of this Section 3, the product obtained by multiplying the number of shares of CIMA Proxy Stock or Dinar Proxy Stock, as applicable, by the quotient of (i) the number of shares of Voting Stock owned by Maimon or De Prado, as applicable, as of the date on which the calculation is being made, divided by (ii) the total number of shares of Voting Stock owned by Maimon and De Prado as of the date on which the calculation is being made.

3.2 Proxy for CIMA. Each of Maimon and De Prado hereby appoint CIMA as his proxy and attorney-in-fact, with full power of substitution and resubstitution, to vote or act by written consent with respect to shares of his Voting Stock representing his Pro Rata Percentage of the CIMA Proxy Stock, as may be recalculated from time to time subject to the terms and conditions of this Agreement, until the CIMA Warrant is exercised. Maimon and De Prado shall take such further actions and execute such other instruments as may be necessary from time to time to effectuate the intent of their respective proxies and limited powers of attorney. The proxies and limited powers of attorney granted by Maimon and De Prado pursuant to this Section 3 shall (a) be irrevocable until CIMA exercises the CIMA Warrant, (b) be deemed to be coupled with an interest sufficient in law to support an irrevocable proxy, and (c) shall revoke any and all prior proxies granted by Maimon or De Prado, as applicable, with respect to the matters contemplated hereunder. The power of attorney granted by Maimon and De Prado pursuant to this Section 3 is a limited durable power of attorney and, with respect to each of Maimon and De Prado, shall survive the bankruptcy, death, or incapacity of each of Maimon and De Prado, as applicable. Each of Maimon and De Prado hereby revokes any and all previous proxies or powers of attorney with respect to their respective shares of Voting Stock and shall not hereafter, unless and until CIMA exercises the CIMA Warrant, purport to grant any other proxy or power of attorney with respect to any of the CIMA Proxy Stock or deposit any of the CIMA Proxy Stock into a voting trust, voting agreement, or other voting arrangement with any person or entity, directly or indirectly, to vote, grant any proxy, or give instructions with respect to the voting of any of the CIMA Proxy Stock. Each of Maimon and De Prado agrees that he will not, and will not permit any entity under his control, to grant any proxies with respect to the CIMA Proxy Stock or subject any of the CIMA Proxy Stock to any voting trust, voting agreement, or other voting arrangement with respect to the CIMA Proxy Stock other than pursuant to this Agreement. For the avoidance of doubt, upon CIMA’s exercise of the CIMA Warrant, the proxy described in this Section 3.2 shall terminate, but the other rights of CIMA set forth in this Agreement shall continue in full force and effect subject to Section 6.1.

3.3 Proxy for Dinar. Each of Maimon and De Prado hereby appoint Dinar as his proxy and attorney-in-fact, with full power of substitution and resubstitution, to vote or act by written consent with respect to shares of his Voting Stock representing his Pro Rata Percentage of the Dinar Proxy Stock, as may be recalculated from time to time subject to the terms and conditions of this Agreement, until the Dinar Warrant is exercised. Maimon and De Prado shall take such further actions and execute such other instruments as may be necessary from time to time to effectuate the intent of their respective proxies and limited powers of attorney. The proxies and limited powers of attorney granted by Maimon and De Prado pursuant to this Section 3 shall (a) be irrevocable until Dinar exercises the Dinar Warrant, (b) be deemed to be coupled with an interest sufficient in law to support an irrevocable proxy, and (c) shall revoke any and all prior proxies granted by Maimon or De Prado, as applicable, with respect to the matters contemplated hereunder. The power of attorney granted by Maimon and De Prado pursuant to this Section 3 is a limited durable power of attorney and, with respect to each of Maimon and De Prado, shall survive the bankruptcy, death, or incapacity of each of Maimon and De Prado, as applicable. Each of Maimon and De Prado hereby revokes any and all previous proxies or powers of attorney with respect to their respective shares of Voting Stock and shall not hereafter, unless and until Dinar exercises the Dinar Warrant, purport to grant any other proxy or power of attorney with respect to any of the Dinar Proxy Stock or deposit any of the Dinar Proxy Stock into a voting trust, voting agreement, or other voting arrangement with any person or entity, directly or indirectly, to vote, grant any proxy, or give instructions with respect to the voting of any of the Dinar Proxy Stock. Each of Maimon and De Prado agrees that he will not, and will not permit any entity under his control, to grant any proxies with respect to the Dinar Proxy Stock or subject any of the Dinar Proxy Stock to any voting trust, voting agreement, or other voting arrangement with respect to the Dinar Proxy Stock other than pursuant to this Agreement. For the avoidance of doubt, upon Dinar’s exercise of the Dinar Warrant, the proxy described in this Section 3.3 shall terminate, but the other rights of Dinar set forth in this Agreement shall continue in full force and effect subject to Section 6.2.

4. Covenants.

4.1 Each of Maimon and De Prado hereby represents, warrants, and agrees that, without first obtaining CIMA’s and Dinar’s prior written consent, he shall not (a) grant any liens, claims, charges, security interests, or other encumbrances on any shares of Voting Stock that are necessary to fulfill their respective obligations under Section 3.1 and Section 3.2 for as long as the proxies described in Section 3.1 and Section 3.2 are in effect, other than those that may be created pursuant to applicable securities laws, the Transaction Documents, or this Agreement; (b) grant any options, warrants, or other rights, agreements, arrangements, or commitments of any kind relating to the pledge, disposition, or voting of any shares of Voting Stock that are necessary to fulfill their respective obligations under Section 3.1 and Section 3.2 for as long as the proxies described in Section 3.1 and Section 3.2 are in effect; and (c) enter into any voting trusts, voting agreements, or other voting arrangement with respect to any shares of Voting Stock that are necessary to fulfill their respective obligations under Section 3.1 and Section 3.2 for as long as the proxies described in Section 3.1 and Section 3.2 are in effect, other than this Agreement and applicable trust agreements for estate planning purposes, including, but not limited to, charitable remainder trusts.

4.2 Each of Maimon and De Prado hereby represents and warrants to CIMA and Dinar that: (a) he has the full power and authority to enter into, execute, and deliver this Agreement and to fully perform his obligations pursuant to this Agreement; (b) this Agreement constitutes his legal, valid, and binding obligation in accordance with its terms; (c) he has not granted any other proxy or entered into any other voting trust, voting agreement, or similar voting arrangement with respect to his shares of Voting Stock; (d) he has not granted any liens, claims, charges, security interests, or other encumbrances on any of his shares of Voting Stock that are necessary to fulfill his obligations under Section 3.1 and Section 3.2; and (e) his shares of Voting Stock described in the recitals of this Agreement constitute all of the securities of the Company directly or indirectly owned by him as of the date of this Agreement.

4.3 Notwithstanding anything to the contrary in this Agreement, neither Maimon nor De Prado shall transfer any shares of Voting Stock that are necessary to fulfill their respective obligations under Section 3.1 and Section 3.2 for as long as the proxies described in Section 3.1 and Section 3.2 are in effect. For the avoidance of doubt, Maimon and De Prado shall be free to transfer any shares of Voting Stock that they own that are not necessary for fulfilling their respective obligations under Section 3.1 and Section 3.2. For purposes of this Agreement, “Transfer” means to, directly or indirectly, sell, transfer, assign, pledge, encumber, hypothecate, or similarly dispose of, either voluntarily or involuntarily, by operation of law or otherwise, or to enter into any contract, option, or other arrangement or understanding with respect to the sale, transfer, assignment, pledge, encumbrance, hypothecation, or similar disposition of, any Voting Stock or any interest (including a beneficial interest) in any Voting Stock.

5. Remedies.

5.1 Covenants of the Company. The Company agrees to use its best efforts, within the requirements of applicable law, to ensure that the rights granted under this Agreement are effective and that the parties enjoy the benefits of this Agreement. Such actions include, but are not limited to, the use of the Company’s best efforts to cause the nomination and election of the directors as provided in this Agreement.

5.2 Remedial Irrevocable Proxy and Power of Attorney. Each party to this Agreement hereby constitutes and appoints as the proxy of the parties, and hereby grants a power of attorney to, a designee of CIMA (who shall be an executive officer of CIMA and shall initially be Juan Martin Gomez), with full power of substitution, with respect to the matters set forth herein, including, but not limited to, the election of individuals as members of the Board in accordance with Section 1 hereof and the approval of the matters described in Section 2, and hereby authorizes each of them to represent and vote, if and only if such party (i) fails to vote, or (ii) attempts to vote (whether by proxy, in person, or by written consent), in a manner that is inconsistent with the terms of this Agreement, all of such party’s Shares in favor of the election of individuals as members of the Board determined pursuant to and in accordance with the terms and provisions of this Agreement and the approval of the matters described in Section 2. Each of the proxy and power of attorney granted pursuant to this Section 5.2 is given in consideration of the agreements and covenants of the Company and the parties in connection with the transactions contemplated by this Agreement and, as such, each is coupled with an interest and shall be irrevocable unless and until CIMA’s rights under this Agreement terminate or expire pursuant to Section 6 hereof. Each party hereto hereby revokes any and all previous proxies or powers of attorney with respect to the Shares (except as set forth in Section 3) and shall not hereafter, unless and until CIMA’s rights under this Agreement terminate or expire pursuant to Section 6 hereof, purport to grant any other proxy or power of attorney with respect to any of the Shares, deposit any of the Shares into a voting trust, or enter into any agreement (other than this Agreement), arrangement, or understanding with any Person, directly or indirectly, to vote, grant any proxy, or give instructions with respect to the voting of any of the Shares, in each case, with respect to any of the matters set forth herein.

5.3 Specific Enforcement. Each party to this Agreement acknowledges and agrees that each party hereto will be irreparably damaged in the event any of the provisions of this Agreement are not performed by the parties in accordance with their specific terms or are otherwise breached. Accordingly, it is agreed that each of the Company and the Shareholders shall be entitled to an injunction to prevent breaches of this Agreement and to specific enforcement of this Agreement and its terms and provisions in any action instituted in any court of the United States or any state having subject matter jurisdiction.

5.4 Remedies Cumulative. All remedies, either under this Agreement or by law or otherwise afforded to any party, shall be cumulative and not alternative.

6. Term. Subject to Section 6.1 through Section 6.4 below, this Agreement shall be effective as of the date hereof and shall continue in effect until the earlier to occur of (a) the parties to this Agreement executing a binding written agreement terminating this Agreement; or (b) the termination of all of CIMA’s, Dinar’s, De Prado’s, and Maimon’s respective rights under this Agreement pursuant to the terms and conditions of Section 6.1 through Section 6.4. Notwithstanding the foregoing sentence and the terms and conditions of Section 6.1 through Section 6.4, the termination of the proxies set forth in Section 3.1 and Section 3.2 shall be governed by Section 3.1 and Section 3.2, respectively.

6.1 CIMA. CIMA’s rights under this Agreement shall automatically terminate upon the earliest to occur of: (a) the termination of the License Agreement; (b) the payment in full of all outstanding principal, accrued and unpaid interest, and all other amounts required to be paid by the Company to CIMA under the Debenture in cash and not as a result of the conversion of the Debenture into Common Stock of the Company; or (c) after the conversion of the Debenture into Common Stock of the Company, the date on which CIMA ceases to own 5% or more of the issued and outstanding Common Stock of the Company.

6.2 Dinar. Dinar’s rights under this Agreement shall automatically terminate when Dinar ceases to own 5% or more of the issued and outstanding Common Stock of the Company.

6.3 De Prado. De Prado’s rights under this Agreement shall automatically terminate when De Prado ceases to own 5% or more of the issued and outstanding Common Stock of the Company.

6.4 Maimon. Maimon’s rights under this Agreement shall automatically terminate when Maimon ceases to own 5% or more of the issued and outstanding Common Stock of the Company.

7. Other Provisions.

7.1 Successors and Assigns. The terms and conditions of this Agreement shall inure to the benefit of and be binding upon the respective successors and permitted assigns of the parties. Nothing in this Agreement, express or implied, is intended to confer upon any party other than the parties hereto or their respective successors and assigns any rights, remedies, obligations, or liabilities under or by reason of this Agreement, except as expressly provided in this Agreement. No party shall assign this Agreement without the prior written consent of the other parties to this Agreement.

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

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

7.4 Notices. All notices and other communications given or made pursuant to this Agreement shall be in writing and shall be deemed effectively given upon the earlier of actual receipt or (i) personal delivery to the party to be notified, (ii) when sent, if sent by e-mail during normal business hours of the recipient, and if not sent during normal business hours, then on the recipient’s next business day, (iii) five (5) days after having been sent by registered or certified mail, return receipt requested, postage prepaid, or (iv) one business day after deposit with a nationally recognized overnight courier, freight prepaid, specifying next business day delivery, with written verification of receipt. All communications shall be sent to the respective parties at their address set forth below or any other address as subsequently modified by written notice given in accordance with this Section 7.4:

If to the Company, Maimon, or De Prado:

Cuentas Inc.
200 S. Biscayne Blvd., Suite 5500

Miami, Florida 33131

Attn: Arik Maimon and Michael De Prado

If to CIMA:

CIMA Telecom, Inc.

1728 SW 22^nd Street, 6^th Floor

Miami, Florida 33145

Attn: Juan Martin Gomez

If to Dinar:

Dinar Zuz LLC

1898 NW 74^th Avenue

Pembrook Pines, Florida 33024

Attn: Yochanon Bruk

7.5 Consent Required to Amend, Modify, Terminate or Waive. This Agreement may be amended, modified, or terminated only by a written agreement signed by all of CIMA, Dinar, De Prado, Maimon, and the Company. The observance of any term of this Agreement may be waived (either generally or in a particular instance and either retroactively or prospectively) by a written instrument executed by the party providing the waiver.

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

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

7.8 Entire Agreement. This Agreement, the Articles, the Bylaws, and the other Transaction Agreements (as defined in the Purchase Agreement) constitute the full and entire understanding and agreement between the parties with respect to the subject matter hereof.

7.9 Share Certificate Legend. Each certificate representing any Shares of Voting Stock of the Company issued to a signatory to this Agreement prior to or after the date hereof shall be notated by the Company with a legend reading substantially as follows:

“THE SHARES REPRESENTED HEREBY ARE SUBJECT TO A VOTING AGREEMENT AND PROXY, AS MAY BE AMENDED FROM TIME TO TIME (A COPY OF WHICH MAY BE OBTAINED UPON WRITTEN REQUEST FROM THE COMPANY).”

The Company, by its execution of this Agreement, agrees that it will cause the certificates evidencing the Shares issued to a Shareholder prior to or after the date hereof to be notated with the legend required by this Section 7.9 of this Agreement, and the Company shall supply, free of charge, a copy of this Agreement to any holder of such Shares upon written request from such holder to the Company at its principal office. The parties to this Agreement do hereby agree that the failure to cause the certificates evidencing the Shares to be notated with the legend required by this Section 7.9 herein and/or the failure of the Company to supply, free of charge, a copy of this Agreement as provided hereunder shall not affect the validity or enforcement of this Agreement.

7.10 Stock Splits, Stock Dividends, Etc. In the event of any issuance of additional Shares hereafter to any of the Shareholders (including, without limitation, in connection with any stock split, stock dividend, recapitalization, reorganization, or the like), such Shares shall become subject to this Agreement and shall be notated with the legend set forth in Section 7.9.

7.11 Manner of Voting. The voting of Shares pursuant to this Agreement may be effected in person, by proxy, by written consent, or in any other manner permitted by applicable law. For the avoidance of doubt, voting of the Shares pursuant to this Agreement need not make explicit reference to the terms of this Agreement.

7.12 Further Assurances. At any time or from time to time after the date hereof, the parties agree to cooperate with each other, and at the request of any other party, to execute and deliver any further instruments or documents and to take all such further action as the other party may reasonably request in order to carry out the intent of the parties hereunder.

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

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

7.14 Costs of Enforcement. If any party to this Agreement seeks to enforce its rights under this Agreement by legal proceedings, the non-prevailing party shall pay all costs and expenses incurred by the prevailing party, including, without limitation, all reasonable attorneys’ fees and costs.

7.15 Aggregation of Stock; Capacity. All Shares held or acquired by a Shareholder and/or its Affiliates shall be aggregated together for the purpose of determining the availability of any rights under this Agreement, and such Affiliates may apportion such rights as among themselves in any manner they deem appropriate.

[Remainder of Page Left Blank - Signatures Follow] 

IN WITNESS WHEREOF, the parties have executed this Voting Agreement and Proxy as of the date first written above.

Signature Page to Voting Agreement and Proxy

Exhibit 10.8

EXECUTION VERSION

ASSET PLEDGE AGREEMENT

This Asset Pledge Agreement is entered into as of December 31, 2019 by and among: on one side (i) CIMA Telecom, Inc., a corporation organized under the laws of the State of Florida (hereinafter referred to as “Pledgee”), and on the other side (ii) Cuentas Inc., a corporation organized under the laws of the State of Florida (hereinafter referred to as “Pledgor”)

PREAMBLE

WHEREAS, the Pledgor is the Licensee under that certain Platform License Agreement, by and among Auris, LLC and Knetik, Inc., each wholly-owned subsidiaries of Pledgee, Pledgee and Pledgor entered into as of the date hereof (the “License”);

WHEREAS, the Pledgee and the Pledgor have entered into a series of other transaction documents, including the License, that certain Voting Agreement and Proxy between Pledgor, the Pledgee and the other parties thereto (the “Voting Agreement”), that certain Note and Warrant Purchase Agreement by and between Pledgor and the Pledgee (the “Purchase Agreement”) and Promissory Note and Warrant issued by the Pledgor in favor of the Pledgee, and any other transaction documents related thereto (the “Transaction Documents”);

WHEREAS, Pledgor has agreed to take certain actions in connection with and as set forth more specifically in the Transaction Documents;

WHEREAS it is a condition of the License and the Note Purchase Agreement that the Pledgor unconditionally and irrevocably pledges all of its rights, title and interest in and to the License and any rights and assets granted pursuant to the License (the “Assets”) to the Pledgee as a guarantee for the full and punctual fulfillment of its obligations under Sections 2, 3, and 4 of the Voting Agreement, the issuance of the securities under the Debenture and Warrant (the “Obligations”).

NOW, THEREFORE, in consideration of the premises and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the Pledgor and the Pledgee hereby agree as follows.

1. Pledge. The Pledgor hereby pledges to the Pledgee all of its rights and interests in the Assets (the “Pledged Assets”), and hereby grants to the Pledgee a first priority security interest in the Pledged Assets, as collateral security for the prompt and complete payment and performance when due (whether at the stated maturity, by acceleration or otherwise) of its Obligations.

2. Representations and Warranties. The Pledgor represents and warrants to the Pledgee as follows:

2.1. The Pledgor has lawfully entered into this Agreement and this Agreement constitutes a legal, valid and binding obligation of the Pledgor enforceable against the relevant Pledgor in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, moratorium or similar laws affecting the rights of creditors generally;

2.2. No governmental approvals or other consents or approvals or notices of or to any person are required in connection with (i) the pledge by the Pledgor of the Pledged Assets pursuant to this Agreement, or the execution, delivery, performance by the Pledgor of this Agreement, (ii) the validity or enforceability of this Agreement, (iii) the perfection or the maintenance of the security interests created hereby (including the first priority nature of such security interests), or (iv) the exercise by the Pledgee of the rights provided for in this Agreement or the remedies in respect of the Pledged Assets pursuant to this Agreement, except to the extent the same have been obtained and are in full force and effect .

2.3. No litigation, investigation or proceeding of or before any arbitrator, court or governmental authority with respect to this Agreement, the Pledged Assets or any of the transactions contemplated hereby is pending or, to the best of its knowledge, threatened against or affecting the Pledgor or against or affecting any of its properties, rights, revenues or assets, in each case that could reasonably be expected to have a material adverse effect on the rights and remedies of the Pledgee hereunder;

2.4. The Assets are not subject to any transfer or sale restrictions, except as provided herein or in the License;

2.5. The Pledgor is the legal owner of the Pledged Assets (as set forth in the recitals hereof), free of any and all liens or encumbrances in favor of, or claims of, any other person, except as provided for by this Agreement or the License; and

2.6. The lien granted pursuant to this Agreement will constitute in favor of the Pledgee a legal, valid and enforceable perfected, first priority lien on the Pledged Assets under Florida law; and, upon compliance by the Pledgor with its obligations under Section 3 hereof, the lien granted pursuant to this Agreement will constitute in favor of Pledgee a legal, valid and enforceable perfected, first priority lien on any Assets acquired by the Pledgor after the date hereof under Florida law;

2.7. Neither the Pledgor nor the Pledged Assets have any immunity from jurisdiction of any court or from off-set or any legal process (whether through service of notice, attachment prior to judgment, attachment in aid of execution, execution or otherwise).

3. Covenants. The Pledgor covenants and agrees with the Pledgee that from and after the date of this Agreement until its Obligations are satisfied in full:

3.1. Without the prior written consent of the Pledgee, the Pledgor will not (i) create, incur or permit to exist any lien or option in favor of, or any claim of any person with respect to, any of the Pledged Assets or any interest therein or (ii) sell, assign, transfer, exchange, or otherwise dispose of the Pledged Assets. The Pledgor will defend the right, title and interest of the Pledgee in and to the Pledged Assets against the claims and demands of all persons whomsoever.

3.2. At any time and from time to time, upon the written request of the Pledgee and at the sole expense of the Pledgor, the Pledgor will promptly and duly execute and deliver such further instruments and documents and take such further actions as the Pledgee may reasonably request for the purposes of obtaining or preserving the full benefits of this Agreement and of the rights and powers herein granted.

3.3. The Pledgor will pay, and save the Pledgee and its successors, assigns, employees and agents harmless from, any and all liabilities, costs and expenses (including, without limitation, legal fees and expenses) (i) with respect to, or resulting from, any delay in paying any and all excise, sales or other taxes which may be payable or determined to be payable with respect to any of the Pledged Assets, (ii) with respect to or resulting from any breach by the Pledgor of its representations contained in Section 2 hereof or its covenants contained in this Section 3 and the other provisions hereof, or (iii) in connection with the grant and perfection of the lien contemplated by this Agreement (including, without limitation, those actions described in Section 1 hereof).

4. Termination and Release. This Agreement shall be terminated and the Pledgor shall consequently be released and discharged from the obligations established herein upon full and punctual satisfaction of all of its Obligations. The Pledgee shall confirm to the Pledgor in writing within 30 (thirty) days as of the settlement of the Obligations secured by the pledge hereunder that such Obligations have been fully and punctually satisfied, after which the parties shall perform all further acts and execute all documents necessary to cancel the pledge granted by virtue of this Agreement, including, but not limited to, entering into a Termination Asset Pledge Agreement to evidence the termination of the pledge and release of obligations. It is hereby expressly agreed that each party shall bear its respective expenses in connection with such termination and registration.

5. Events of Default. If any of the following events (“Events of Default”) shall occur and be continuing, the Pledgee may, at its option, by notice in writing to the Pledgor, declare all of the obligations to be immediately due together with interest accrued thereon:

(a) if the Pledgor defaults in its fulfillment of any of its Obligations;

(b) if any representation or warranty made by the Pledgor herein shall be false or misleading in any material respect;

(c) if the Pledgor makes an assignment of the Pledged Assets for the benefit of creditors;

(d) if the Pledgor files a petition or application, or commences any proceedings, under any insolvency or readjustment of debt laws of any jurisdiction, whether now or hereafter in effect;

(e) if any such petition or application is filed, or any such proceedings are commenced, against the Pledgor, and the Pledgor by any act indicates its approval thereof, consent there to, or acquiescence therein, or any order is entered adjudicating the Pledgor bankrupt or insolvent, or approving the petition in any proceedings; or

(f) if the Pledgor defaults on its obligations in the Voting Agreement, in the Warrant or under Article II of the Purchase Agreement.

In the event that the terms of the Pledge Agreement are enforced by the Pledgee upon an event of default pursuant to this Section 6 and the License Agreement is terminated, Pledgee shall transfer and return to the Pledgor all shares of the Pledgor it has been issued through the conversion of the Debenture or exercise of the Warrant. For the avoidance of doubt, in the event that the terms of this Agreement are enforced and the License Agreement is terminated, then the Five Million Dollars ($5,000,000) of liquidated damages called for under this Section 4.6 of the Purchase Agreement shall no longer be payable and due by the Pledgor.

6. Severability. Any provision of this Agreement which is prohibited or unenforceable shall be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability shall not invalidate or render unenforceable such provision in any other jurisdiction. Where provisions of any law or regulation resulting in such prohibition or unenforceability may be waived they are hereby waived by the Pledgor and the Pledgee to the full extent permitted by law so that this Agreement shall be deemed a valid, binding agreement, and the security interest created hereby shall constitute a continuing first lien on and first perfected security interest in the Pledged Assets, in each case enforceable in accordance with its terms.

7. Headings. The paragraph, section and caption headings used in this Agreement are for convenience of reference only and are not to affect the construction hereof or be taken into consideration in the interpretation hereof.

8. Waivers and Amendments; Successors and Assigns. None of the terms or provisions of this Agreement may be waived, amended, supplemented or otherwise modified except by a written instrument executed by the parties hereto; provided, however, that any provision of this Agreement may be waived by the Pledgee in a written letter or agreement executed by the Pledgee or by facsimile transmission from the Pledgee. This Agreement shall be binding upon the successors and permitted assigns of the Pledgor and shall inure to the benefit of the Pledgee and its respective successors and assigns.

9. Notices. All notices, requests and demands to or upon the respective parties hereto to be effective shall be in writing (including by facsimile transmission), and, unless otherwise expressly provided herein, shall be deemed to have been duly given or made when delivered by hand, or five (5) Business Days after being deposited in the Brazilian mail, first class air mail postage prepaid, or, in the case of telecopy notice, when confirmation of receipt is obtained. Each notice, demand or request shall be made to the intended recipient at the addresses indicated in the Preamble hereto or at such other address or facsimile number from time to time designated by such party to the other hereto for such purposes.

10. Governing Law. This Agreement shall be governed by, and shall be construed and enforced in accordance with the laws of Florida, without regard to its principles of conflicts of law.

IN WITNESS WHEREOF, the undersigned have caused this Asset Pledge Agreement to be duly executed and delivered as of the date first above written, in the presence of the two undersigned witnesses.

6

Exhibit 10.9

EXECUTION VERSION

CONFIDENTIAL

December 31, 2019

CIMA Telecom, Inc.

(dba CIMA Group)

1728 Coral Way, 6^th Floor

Miami, Florida 33145

Re: Investment in Cuentas Inc. Purchase Agreement & Debenture

Ladies and Gentlemen:

This letter agreement (this “Letter Agreement”) is being provided by Cuentas Inc., a Florida corporation (the “Company” or “Cuentas”) in connection with and in consideration for the investment by CIMA Telecom, Inc., a Florida corporation doing business as “CIMA Group” (including its successors and assigns, the “Purchaser” or “CIMA”), in the Company pursuant to that certain Note and Warrant Purchase Agreement (the “Purchase Agreement”), by and between the Company and CIMA, dated as of the date hereof. This Letter Agreement reflects certain agreements between CIMA and the Company intended to be in addition to those in the Purchase Agreement and the Debenture. To the extent of any conflict between the terms of this Letter Agreement and the Purchase Agreement, the terms set forth herein shall govern. As used herein, an “Affiliate” of CIMA shall refer to the direct or indirect subsidiaries of CIMA.

1. Supermajority Approvals of New Board Members. The Company agrees that for as long as the Platform License Agreement, dated as of the date hereof by and among (i) the Company, (ii) CIMA, (iii) Knetik, and (iv) Auris, as may be amended, restated, modified or supplemented from time to time (the “License Agreement”) is in effect, the 3% Convertible Debenture issued by the Company to the Purchaser pursuant to the Purchase Agreement (the “Debenture”) is outstanding and unpaid, and CIMA is a shareholder of Cuentas and owns at least 5% of the Company’s Common Stock, in addition to any other vote or approval required under Cuentas’ Amended and Restated Articles of Incorporation (the “Articles of Incorporation”), Bylaws, or any other agreement, each as amended from time to time, Cuentas shall not, either directly, indirectly, or by amendment, merger, consolidation, or otherwise, take any of the following actions without the approval of the directors on the Board of Directors of the Company (the “Board”) appointed by at least three of four of (i) CIMA, (ii) Dinar Zuz, LLC (“Dinar”), (iii) Michael De Prado, and (iv) Arik Maimon:

(a) make any loan or advance outside the ordinary course of business of Cuentas to, or own any stock or other securities of, any subsidiary or other corporation, partnership, limited liability company, or other entity unless such entity is wholly owned by Cuentas;

(b) make any loan or advance outside the ordinary course of business of Cuentas to any person, including, but not limited to, any employee, consultant, contractor, director, or shareholder of Cuentas, except loans, advances, and similar expenditures in the ordinary course of business of Cuentas;

(c) guarantee any indebtedness except for trade accounts of Cuentas or any subsidiary arising in the ordinary course of business;

(d) make any investment inconsistent with any investment policy approved in advance by the Board;

(e) incur any aggregate indebtedness or other liability in excess of $325,000 which is: (i) not already included in a budget approved by the Board; and (ii) not in the ordinary course of business of Cuentas;

(f) hire, engage, retain, terminate, or change the compensation or other terms of the employment or other relationship of any officer, consultant, or contractor of Cuentas, whose compensation is greater than $120,000 per year, -including, but not limited to, any amendment to any Employment Agreement or other written agreement between Cuentas and any director, officer, consultant, or contractor;

(g) change the principal business of Cuentas, enter a new line of business, or exit any current line of business;

(h) sell, assign, license, pledge, or encumber any material technology or intellectual property, excluding licenses granted in the ordinary course of business;

(i) enter into any corporate strategic relationship involving the payment, contribution, or assignment by Cuentas or to Cuentas of assets greater than $325,000;

(j) enter into any consolidation, combination, or merger of Cuentas with or into any other entity regardless of whether Cuentas is the surviving entity;

(k) enter into any recapitalization or reorganization of Cuentas;

(l) any filing by Cuentas under the United States Bankruptcy Code or other insolvency law, or any admission in writing of Cuentas’ bankruptcy insolvency, or general inability to pay Cuentas’ debts, or any action that could result in the dissolution or liquidation of Cuentas or its assets;

(m) adopting, making, amending, or revoking any tax or accounting election, method, or Significant Internal Control relating to Cuentas;

(n) any conversion of Cuentas into any other form of legal entity;

(o) any initiation or settlement of any legal proceeding or mediation or arbitration thereof for which the amount in controversy or settlement amount exceeds $75,000 except for the current litigations and contingencies with the following parties: (i) J.P. Cary and (ii) the FCC; provided, however, that if either of such settlement with J.P. Cary or FCC exceeds $150,000, then the vote required by this Section 1 shall be applicable;

(p) liquidate, dissolve, or wind up the affairs of Cuentas or effect any merger or consolidation of Cuentas or any other sale, lease, transfer, exclusive license, or other disposition of all or substantially all of the assets of Cuentas;

(q) purchase, redeem, or pay any dividend on any securities issued by Cuentas;

(r) increase or decrease the size of the Board of the Company (except as otherwise expressly contemplated by this Letter Agreement); and

(q) enter into or be a party to any transaction with any shareholder, director, officer, employee, consultant, or contractor of Cuentas or any “associate” (as defined in Rule 12b-2 promulgated under the Securities Exchange Act of 1934, as amended) of any such person; provided that, if such transaction pertains to compensation, the vote called for by this Section 1 shall only be required to be obtained if the contemplated compensation of such affiliated party is greater than $120,000 per year.

The Company and the parties agree that after the completion of up-listing of the Company’s shares in the Nasdaq Capital Markets, instead of the approval of at least three of four directors, the approval will require 60% or more of the voting shareholders provided that shareholder approval is necessary.

2. Unanimous Approvals of New Board Members. The Company agrees that for as long as the License Agreement is in effect, the Debenture is outstanding and unpaid, or CIMA is a shareholder of Cuentas and owns at least 5% of the Company’s Common Stock, in addition to any other vote or approval required under Cuentas’ Articles of Incorporation, Bylaws, or any other agreement, each as amended from time to time, Cuentas shall not, either directly, indirectly, or by amendment, merger, consolidation, or otherwise, take any of the following actions without the unanimous approval of directors on the Board appointed by (i) CIMA, (ii) Dinar, (iii) Michael De Prado, and (iv) Arik Maimon (together with the required approvals pursuant to Section 1 herein:

(a) create, authorize the creation of, or issue any additional capital stock of Cuentas (including, but not limited to, any additional Common Stock of the Company or any new class or series of “Blank Check” Preferred Stock of the Company) or other equity or debt securities of Cuentas, including, but not limited to, any securities convertible into or exchangeable or exercisable for any securities of Cuentas; excluding up to 1% of fully diluted total outstanding Common Stock shares in the aggregate over a year period or underwritten firm commitment public offering of its securities;

(b) amend, alter, or repeal any provision of the Articles of Incorporation or Bylaws of Cuentas (including any Certificate of Designations or similar document which authorizes and creates an additional class or series of “Blank Check” Preferred Stock and designates the rights, privileges, and preferences of such new class or series of Preferred Stock of the Company); and

(c) create or hold equity securities in any subsidiary that is not a wholly-owned subsidiary, dispose of any equity securities in any subsidiary, or cause any subsidiary to dispose of all or substantially all of such subsidiary’s assets.

3. Anti-dilution. CIMA shall not have any anti-dilution rights as a shareholder of Cuentas. All anti-dilution rights currently available to any shareholder, except for Red Diamond’s warrants, of Cuentas shall be terminated on or before the December 31, 2019 so that, immediately after closing, no shareholder of Cuentas will have any anti-dilution rights.

4. Right of First Refusal; Co-Sale Right.

(a) Upon conversion of the Debenture, before CIMA sells any or all of CIMA’s Common Stock to any bona fide third party purchaser, Cuentas shall have the primary right of first refusal to purchase the shares of Common Stock which CIMA intends to sell to the bona fide third party purchaser on the same terms and conditions as CIMA would have sold such shares of the Company’s Common Stock to any third party purchaser. Should Cuentas refuse or fail to elect to purchase such shares on such terms and conditions within fifteen (15) days of being notified of CIMA’s intention to sell such shares of Common Stock to a third party purchaser, then each of Dinar, Michael De Prado and Arik Maimon (the “Secondary ROFR Parties”) shall have a secondary right of first refusal to purchase the shares of Common Stock which CIMA intends to sell to the bona fide third party purchaser on the same terms and conditions. Each Secondary ROFR Party will be entitled to purchase that number of shares of the Company’s Common Stock being sold by CIMA equal to the product obtained by multiplying (x) the number of such shares of Common Stock being sold by CIMA by (y) a fraction, (i) the numerator of which shall be the number of shares of capital stock of Cuentas held by such party on the date of receipt of notice of CIMA’s intention to transfer such shares of Common Stock, and (ii) the denominator of which shall be the aggregate number of shares of capital stock of Cuentas held by all of the Secondary ROFR Parties. The Secondary ROFR Parties have ten (10) days after being notified of Cuentas refusal or failure to exercise its right of first refusal to elect to purchase such shares on the same terms and conditions as the proposed sale to the third party purchaser. If any of the shares of the Company’s Common Stock contemplated to be sold by CIMA to the bona find third party purchaser remain available after exercise of the right of first refusal by Cuientas and each of the Secondary ROFR Parties pursuant to the terms of this Section 4(a), then CIMA shall be free to sell and transfer any such remaining shares to the third party purchaser; provided, that, in the event the terms and conditions of the sale to such third party purchaser changes such right of first refusal shall revert back to Cuentas.

(b) Before any of Michael De Prado, Arik Maimon, or any other officer or director of Cuentas holding greater than 1% of the Company’s Common Stock (calculated on a fully diluted basis) sells any or all of their Common Stock, CIMA shall have the right to participate in such sale on a basis proportionate to the amount of the company’s Common Stock held by such seller and those held by CIMA.

(c) Notwithstanding the foregoing or anything to the contrary herein, the provisions of this Section 4(c) shall not apply upon a transfer by CIMA to its stockholders, members, partners, equity holders or any of its Affiliates.

5. Information Rights. For as long as CIMA and/or Dinar is the holder of a Debenture or 5% or more of the Company’s Common Stock, CIMA and/or Dinar will be granted access to Cuentas’ facilities and personnel during normal business hours and with reasonable advance notice, and Cuentas will deliver to CIMA:

(a) annual, quarterly, and monthly financial statements and other information as reasonably requested by CIMA and/or Dinar ;

(b) thirty days prior to the end of each fiscal year, a comprehensive operating budget forecasting Cuentas’ revenues, expenses, and cash position on a month-to-month basis for the upcoming fiscal year approved by the Board (which approval must include the affirmative vote of all directors appointed by CIMA and Dinar); and

(ci) promptly following the end of each fiscal quarter, an up-to-date capitalization table showing the ownership of Cuentas on a fully diluted basis.

6. Cuentas Executive Special Bonus. It is further agreed by all of the undersigned parties hereto that Arik Maimon and Michael De Prado shall each earn an additional special bonus of $500,000 (the “Bonus”) upon a successful up-listing of the Company’s shares on the NASDAQ Capital Markets and once the market capitalization of Cuentas (on the NASDAQ Capital Markets) is greater than $50 million for a period of 10 trading days,. Such Bonus may be paid in the Company’s shares, cash- less options or cash at the discretion of Mr. Maimon and MR. De Prado, as long as the cash composition election should not cause financial burden on the Company. For the avoidance of doubt, the Bonus set for herein shall be in full replacement and shall supersede any agreement by the Company to pay Arik Maimon and Michael De Prado any bonus or other extraordinary payment in connection with the up-listing of the Company’s shares on the NASDAQ and the Bonus shall be the only such payment received by Arik Maimon and Michael in connection therewith unless otherwise agreed to by the parties in writing.

7. Uplisting. Cuentas shall file an application with NASDAQ to “up-list” from OTCQB to the NASDAQ Capital Market as soon as the “Market Value of Publicly Held Shares” (as set forth in the NASDAQ Initial Listing Guide) and all other SEC criteria (SEC up-listing requirements) of Cuentas meets or exceeds the requisite level for the NASDAQ Capital Market listing standard pursuant to which Cuentas intends to “up-list” to the NASDAQ Capital Market; provided, however, that, in any event, such application must be filed no later than 120 days after the date on which Cuentas qualifies under the NASDAQ Capital Market listing standard which Cuentas intends to use, or how many days the entity organizing the up-listing states will be required, if greater than 120 days.

8. No Liquidation Preference. In the event of any liquidation, dissolution, or winding up of Cuentas, the proceeds shall be paid pro rata to holders of Common Stock and Series B Preferred Stock of the Company. There shall be no liquidation preference for holders of Series B Preferred Stock or for CIMA, or CIMA’s successors or assigns.

9. Directors’ and Officers’ Insurance. For as long as CIMA is permitted to designate one or more directors on the Board, Cuentas shall obtain, within ninety (90) days of the date hereof, Directors & Officers liability insurance from a financially sound and reputable carrier and in an amount and on terms and conditions satisfactory to CIMA. If Cuentas has existing Directors & Officers liability insurance, Cuentas shall provide copies of such policy or policies to CIMA as part of CIMA’s due diligence review. Any such Directors & Officers liability insurance policy shall not be cancellable by Cuentas without the prior approval by the Board (including the CIMA Designee). Cuentas shall enter into a customary Indemnification Agreement with each director appointed by CIMA in a form acceptable to CIMA. If Cuentas merges with any other entity and is not the surviving corporation, or if Cuentas transfers all or substantially all of its assets to another entity, proper provisions shall be made so that the successor of Cuentas assumes Cuentas’ obligations with respect to the indemnification of the members of the Board.

10. Reserved.

11. Miscellaneous

(a) Governing Law. This Letter Agreement shall be governed by and construed in accordance with the laws of the State of Florida, without giving effect to principles of conflicts of laws.

(b) Amendment. This Letter Agreement may not be amended or modified without the written consent of CIMA and the Company, nor shall any waiver be effective against any party unless in writing and executed by such party.

(c) Assignment. This Letter Agreement may be assigned by CIMA to any of its Affiliates to which it transfers the Debenture (or any security issued or issuable upon conversion or exchange thereof). Any other assignment by CIMA or its Affiliates shall require the prior written consent of the Company. Any purported assignment without such consent shall be null and void. This Letter Agreement may not be transferred or assigned by the Company without the prior written consent of CIMA. This Letter Agreement shall be binding on the parties hereto and their respective successors and assigns.

(d) Severability. If any provision of this Letter Agreement shall be declared void or unenforceable by any judicial or administrative authority, the validity of any other provision and of the entire Letter Agreement shall not be affected thereby.

(e) Enforceability; Conflicts. In all events, the terms and provisions of this Letter Agreement shall be enforceable notwithstanding any conflicting term or provision set forth in the Note. In the event of any conflict between any term or provision of this Letter Agreement and any term or provision set forth in the Purchase Agreement or Debenture, such term or provision of this Letter Agreement shall prevail over such term or provision set forth in the Purchase Agreement or Debenture. Noting in this Letter Agreement shall affect any rights that CIMA may have under the Purchase Agreement or Debenture. This Letter Agreement, the Purchase Agreement, the Debenture and the License Agreement, together with any exhibits and schedules hereto and thereto, constitute the entire agreement among the parties hereto relating to the subject matter thereof.

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

(g) Termination. This Letter Agreement shall terminate and be of no further force or effect until such time as CIMA and/or Dinar individually or together with any of its Affiliates no longer holds any Debenture or 5% or more of outstanding shares of capital stock, including, for the avoidance of doubt, 5% or more of outstanding shares of Common Stock of the Company.

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Please confirm that the above correctly reflects our understanding and agreement with respect to the foregoing matters by signing the enclosed copy of this Letter Agreement and returning such copy to the Company.