Exhibit 99.1
FIRST AMENDMENT TO
AMENDED AND RESTATED NOTE
PURCHASE AGREEMENT
THIS FIRST AMENDMENT TO AMENDED AND
RESTATED NOTE PURCHASE AGREEMENT (the “ Amendment
”) is made and entered into as of the 1
st day of July, 2009, by and between FNDS3000
CORP ., a Delaware corporation (the “ Issuer
”), and SHERINGTON HOLDINGS, LLC , a Georgia limited
liability company (“ Purchaser ”).
W I T N E S
S E T H :
WHEREAS, Issuer and Purchaser are
parties to that certain Amended and Restated Note Purchase
Agreement, dated as of December 1, 2008, as amended or
otherwise modified from time to time (as so amended or otherwise
modified, the “ Note Purchase Agreement ”), and
in connection therewith, the Issuer and Atlas Merchant Services,
LLC, a Nevada limited liability company, delivered to Purchaser
that certain Amended and Restated Secured Convertible Promissory
Note, dated as of December 1, 2008 (as so amended or otherwise
modified, the “ Original Note ”), in the
original principal amount of up to $1,000,000); and
WHEREAS, Issuer has requested that
Purchaser amend the Note Purchase Agreement to, among other things,
(i) modify the covenant contained in Section 4(v) thereof
as hereinafter set forth; and
WHEREAS, Purchaser is willing to so
amend the Note Purchase Agreement as set forth herein, subject to
the terms and conditions also set forth herein;
NOW, THEREFORE, in consideration of
the foregoing premises, to induce Purchaser to amend the Note
Purchase Agreement as hereinafter set forth, and for other good and
valuable consideration, the receipt, adequacy and sufficiency of
which are hereby acknowledged, the parties hereto hereby agree as
follows:
1. Definitions . All
capitalized terms used herein and not otherwise expressly defined
herein shall have the respective meanings given to such terms in
the Note Purchase Agreement.
2. Amendments .
(a) Section 2(g) of the Note
Purchase Agreement is hereby amended and restated in its entirety
to read as follows:
(g) Capitalization . The
authorized capital stock of the Parent consists solely of 5,000,000
shares of Preferred Stock, par value $.001, none of which are
issued and outstanding, and 100,000,000 shares of Common Stock, par
value $0.001, of which, after giving effect to the transactions
contemplated by, an closing concurrently with, the First Amendment
to Amended and Restated Note Purchase Agreement dated as of
July 1, 2009, between the Parent and the
Purchaser, (a) 40,562,786
shares are issued and outstanding, (b) no shares are held in
treasury, (c) 23,101,647 shares are reserved for issuance upon
the exercise of options and warrants outstanding (the “
Option and Warrant Shares ”), and (d) 6,333,715
shares are reserved for issuance upon the exercise of the Note (the
“ Conversion Shares ”). All of the issued and
outstanding shares of Common Stock have been duly authorized and
are validly issued, fully paid and nonassessable. Except as set
forth in this Agreement (including the Note), and except for
options and warrants relating to the Option and Warrant Shares and
for the convertible notes relating to the Conversion Shares, there
are no options, warrants, conversion privileges, preemptive rights
or other rights presently outstanding to purchase or otherwise
acquire any authorized but unissued shares of capital stock or
other securities of the Parent, or any other written agreements of
the Parent to issue any such securities or rights.
(b) Clause (iii) of
Section 4(d) of the Note Purchase Agreement is hereby amended
and restated in its entirety to read as follows:
(iii) Furnish to the Purchaser
within thirty (30) days after the end of each calendar
quarter, an unaudited balance sheet of the Issuers on a
consolidated and consolidating basis and unaudited statements of
income and stockholders’ equity and cash flow of the Issuers
on a consolidated and consolidating basis reflecting results of
operations from the beginning of the fiscal year to the end of such
quarter and for such quarter, prepared on a basis consistent with
prior practices and complete and correct in all material respects,
subject to normal and recurring year end adjustments.
(c) Section 4(k) of the Note
Purchase Agreement is hereby amended by deleting the words
“this clause 4(g)” contained in the second sentence of
such section, and replacing such deleted words with the words
“this clause 4(k)”.
(d) Section 4(v) of the Note
Purchase Agreement is hereby amended and restated in its entirety
to read as follows:
(v) Minimum Card Sales. For the
period commencing on the date hereof and ending on
September 30, 2009, the Issuer shall, or shall cause its
subsidiaries to, issue and distribute in South Africa a minimum of
at least one hundred thousand (100,000) prepaid debit
cards.
3. Amendment and Restatement of
the Original Note . On the date hereof, the Issuer and the
Purchaser have agreed that the Issuer shall issue to the Purchaser
that certain Second Amended and Restated Secured Convertible
Promissory Note, in the original principal amount of $1,000,000
(the “ Restated Note ”). Such Restated Note
shall replace the Original Note, and all references in the Note
Purchase Agreement to the “Note” shall be to the
Restated Note.
4. Acknowledgment of Release of
Atlas from Transaction Documents . On or about May 14,
2009, the Issuer sold its interest in Atlas, and Atlas was released
from its obligations under
the Original Note and the Note Purchase
Agreement. Notwithstanding that, pursuant to the terms of the Note
Purchase Agreement, any amendment thereto is to be executed
by
