Exhibit 99.1
SETTLEMENT/ MEMBERSHIP
INTEREST PURCHASE AGREEMENT
THIS SETTLEMENT/MEMBERSHIP
INTEREST PURCHASE AGREEMENT (this “Agreement”) is made effective
as of the 14th day of May, 2009, by and among Victor F. Gerber
(“Gerber”), Atlas Merchant Services, Inc., a Georgia
corporation (“Atlas, Inc.”), Atlas Merchant Services,
LLC, a Nevada limited liability company (the “Company”)
and FNDS3000 Corp, a Delaware corporation (“Seller”).
Seller, Gerber, Company and Atlas, Inc. are sometimes referred to
herein singly as, a “Party,” and collectively as, the
“Parties.”
PREAMBLE
Whereas , Gerber is the principal shareholder of Atlas,
Inc.; and
Whereas , Atlas, Inc. sold substantially all of its
assets to the Company on or about June 30, 2008 pursuant to a
certain Asset Purchase Agreement dated June 30, 2008 by and
between the Company and Atlas, Inc. (the “Purchase
Agreement”); and
Whereas , the Company is a wholly-owned subsidiary of
Seller; and
Whereas , Gerber is the Executive Vice President
Americas of Seller and, in such capacity is responsible for the
operations of the Company; and
Whereas , Gerber and Seller are parties to that certain
Employment Agreement dated July 1, 2008 (the “Employment
Agreement”); and
Whereas , Gerber wrote to John Hancock
(“Hancock”), CEO of the Seller requesting a meeting as
soon as possible to discuss the future of the Atlas business and
the requested meeting was held on Thursday March 26 between
Gerber, Hancock and John Watson (“Watson”);
and
Whereas , at such meeting Gerber informed Hancock and
Watson that he did not believe the operation of the Company was
working out in the way he expected; and
Whereas , Gerber proposed that the Atlas business be
transferred to him, and that the Seller make an additional cash
payment to Atlas, Inc., and Hancock stated that Seller would
consider the proposal and communicate back to Gerber expeditiously;
and
Whereas, a meeting took place on Monday March 30
between Gerber and Watson during which Watson presented a proposal
acceptable to Seller, and after discussion and amendment an
AGREEMENT OUTLINE was signed by Gerber on behalf of himself and
Atlas Inc. and Watson on behalf of Seller and its management;
and
Whereas , Gerber and Atlas, Inc. desire to sever all
ties to Seller and to raise additional cash; and in furtherance of
such goals, Atlas, Inc. has separately offered to sell the
remaining shares it owns in Seller to Sherington Holdings, another
investor in Seller; and
Whereas , Atlas, Inc. has requested that Company waive
its right of first refusal under the Purchase Agreement and permit
the sale of such shares of Seller; and
Whereas , Gerber and Seller wish to terminate the
Employment Agreement, and Seller wishes to sell, and Atlas Inc.
wishes to purchase, all of the outstanding membership interests in
the Company (the “Membership Interests”), in each case,
upon and pursuant to the terms set forth herein.
NOW, THEREFORE, in consideration of
the premises and the mutual promises herein made, and in
consideration of the representations, warranties, and covenants
herein contained, the Parties agree as follows.
SECTION 1
SETTLEMENT OF PURCHASE AGREEMENT
ISSUES
In settlement of all issues among
the Parties relating to the Purchase Agreement, the Parties hereby
agree that the Purchase Agreement and Seller’s guaranty of
Company’s obligations under the Purchase Agreement are hereby
terminated and of no further force or effect, including without
limitation, Company’s obligations, and Seller’s
guaranty thereof, to make payments pursuant to Section 1.03
thereof or to deliver additional shares of Seller’s common
stock pursuant to Section 1.04 thereof. For the avoidance of
doubt, Gerber and Atlas, Inc. acknowledge and agree that upon the
consummation of the transactions contemplated herein, including the
sale of the Membership Interests to Atlas Inc. as provided for in
Section 3 hereof, neither Seller, nor any officer, director,
employee, agent or affiliate of Seller shall have any further
obligations or liability under the Purchase Agreement, whether
suspected or unsuspected, liquidated or unliquidated, contingent or
otherwise, and whether accrued before or after the date hereof.
Gerber and Atlas, Inc. hereby authorize Seller to take all actions
and make any book entries required to eliminate and/or cancel any
and all shares of Seller’s common stock that are reflected in
Seller’s records as being available for delivery, or that are
being held by Seller or Company, to satisfy any obligations of
Seller or Company under the Purchase Agreement, and agree to
execute any further documents and take any further actions, as may
be requested by Seller to effectuate the elimination or
cancellation of such shares.
SECTION 2
SETTLEMENT OF EMPLOYMENT
ISSUES
In consideration for thirty thousand
dollars ($30,000) paid by Company to Gerber contemporaneously
herewith, which payment shall be in full satisfaction of any and
all amounts or benefits whatsoever to which Gerber otherwise could
be entitled under the Employment Agreement, the Parties hereby
agree that the Employment Agreement, and all obligations of Seller
and Gerber thereunder, are hereby terminated and of no further
force or effect.
SECTION 3
SALE OF MEMBERSHIP
INTEREST
3.1 Sale of Membership
Interests . Subject to
the terms and conditions hereof, Seller hereby sells to Atlas, Inc.
all of the outstanding Membership Interests in the Company in
consideration for the termination of the Purchase
Agreement.
3.2 Disclaimer of Representations
and Warranties . Except
as expressly provided herein to the contrary, the Membership
Interests, and the Company, are transferred hereby
“AS-IS” with all faults and without any representations
or warranties of any kind whatsoever all of which are hereby
disclaimed, other than as expressly set forth in Section 4
hereof.
SECTION 4
REPRESENTATIONS AND WARRANTIES OF
GERBER AND ATLAS, INC.
Gerber and Atlas, Inc. hereby
jointly and severally represent and warrant to Seller and Company
as follows:
4.1 Information.
Gerber and Atlas, Inc. are familiar
with the books and records of the Company, its business and
operations, and have been furnished with such materials and have
been given access to such information relating to the Company as
they or their representatives have requested. Gerber and Atlas,
Inc. acknowledge that Seller has only owned the business operated
by the Company for less than one year and that, during such period,
Gerber, as an employee of Seller, has been responsible for the
operations of the Company. Accordingly, Gerber and Atlas, Inc.
agree that Atlas, Inc. is relying on its own due diligence, and on
the due diligence conducted by Gerber, and not on any
representations or warranties of Seller, other than those expressly
set forth herein, in order to make the investment decision to
purchase the Membership Interests.
4.2 Power and
Authority . Gerber and
Atlas, Inc. have all requisite capacity and authority to execute,
deliver and perform this Agreement, this Agreement has been duly
and validly authorized by the Board of Directors and shareholders
of Atlas, Inc. and no other corporate action on the part of Atlas,
Inc. is necessary. This Agreement has been duly and validly
executed and delivered by Gerber and Atlas, Inc. and constitutes
legal, valid and binding obligations of each of Gerber and Atlas,
Inc., enforceable against each such Party in accordance with its
terms.
4.3 Organization, Standing and
Power . Atlas, Inc. is a
corporation duly organized, validly existing and in good standing
under the laws of the jurisdiction of its incorporation.
4.4 No Conflicts.
The execution and delivery by Atlas,
Inc. and Gerber of this Agreement does not, and the execution and
delivery by Gerber and Atlas, Inc. of any other agreements
contemplated hereby (“Other Agreements”) to which
either of them is a party, the performance by Gerber and Atlas,
Inc. of their respective obligations under this Agreement and the
Other Agreements, and the consummation of the transactions
contemplated hereby and thereby will not: (a) conflict with or
result in a violation or breach of any of the terms, conditions or
provisions of the articles of incorporation or bylaws of Atlas,
Inc.; or (b) conflict with or result in a material violation
or breach of any term or provision of any law or order applicable
to Atlas, Inc. or Gerber, or to any of their assets and
properties.
