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1 UNITED STATES BANKRUPTCY COURT DISTRICT OF DELAWARE In re: Phoenix Payment Systems, Inc., Debtor Chapter 11 Case No (MFW Re: D.l. 540 ORDER APPROVING SETTLEMENT AGREEMENT WITH FRASCELLA CAPITAL, JEMS VENTURE PARTNERS, DWF INVESTMENTS AND RAYMOND MOYER Upon consideration of the motion of the above-captioned debtor (the "Debtor" for an order approving the agreement attached to this order as Exhibit A (the "Agreement" under Bankruptcy Rule 9019 (the "Motion"; and it appearing that the Court has jurisdiction over this matter; and due notice of the Motion having been provided, and it appearing that no other or further notice need be provided; and it further appearing that the Agreement is fair, reasonable, and in the best interests of the Debtor, it estate, its creditors and equityholders, and all parties in interest; and after due deliberation and due and sufficient cause appearing therefor, THE COURT ORDERS THAT: 1. The Motion is granted. 2. The Agreement is approved. 3. The Debtor and its officers and agents are authorized and directed to execute, deliver, implement, and fully perform any and all obligations, instruments, documents, and papers and to take any and all actions reasonably necessary or appropriate to consummate and fully execute the Agreement and effectuate its terms. RLFI v.l

2 4. This Court shall retain jurisdiction over any and all issues arising from or related to the implementation and interpretation ofthis Order. Dated: S ~,~ ~, 2015 Wilmington, Delaware THE HONORABLE MARY F. WALRATH UNITED STATES BANKRUPTCY JUDGE RLFI v.l 2

3 RLFI v.l EXHIBIT A

4 SETTLEMENT AGREEMENT AND RELEASE This Settlement Agreement and Release (this "Agreement" is made and entered into as of January 30, 2015, by and between Phoenix Payment Systems, Inc. ("Phoenix", Frascella Capital, LLC ("Frascella Capital", DWF Investments LLC ("DWF", JEMS Venture Capital, LLC ("JEMS", and Raymond Moyer ("Moyer" (each a "Party" and together the "Parties". Subject to bankruptcy court approval, the Parties agree as follows: Recitals WHEREAS, on August 4, 2014, Phoenix tiled a petition for relief under chapter 11 of the Bankruptcy Code in the United States Bankruptcy Court for the District of Delaware; WHEREAS, Frascella Capital filed proofs of claim (Claim Nos. 32 & 44 and asserts that it holds a claim against Phoenix's estate in the amounts of $11,010, in principal and interest under a convertible promissory note, as well as an equity interest of $850,000 on account of its ownership of Series B-2 preferred stock (together with all other issues of Series B preferred stock "Series B Stock", ' WHEREAS, DWF filed a proof of claim (Claim No. 44 asserts that it holds an equity interest against Phoenix's estate on account of its ownership of$145,000 in Series B Stock; WHEREAS, JEMS asserts that it holds a claim against Phoenix's estate in the amount of $3,000,000 plus interest under a convertible promissory note; WHEREAS, after exercising his right to conversion under his Series A preferred stock, Moyer will own 71.8% of Phoenix's outstanding common stock. Prior to February 2014, Moyer was Phoenix's chief executive officer and president; WHEREAS, Phoenix disputes the circumstances surrounding the issuance of the convertible promissory notes held by Frascella Capital and JEMS (collectively, the "Notes", and Phoenix has asserted defenses to the Notes; WHEREAS, Frascella Capital and JEMS are members of the Official Committee of Unsecured Creditors, and therefore owe certain fiduciary duties to the unsecured creditors of Phoenix; WHEREAS, to avoid the expense and uncertainty of litigation, the Parties desire to resolve all issues and disputes relating to the Series B Stock and the Notes on the terms set forth in this Agreement. Agreement NOW, THEREFORE, for good cause and valuable consideration, the receipt of which is hereby acknowledged, and subject to the approval of the United States Bankruptcy Court for the District of Delaware pursuant to Federal Rule of Bankruptcy Procedure 9019, the Parties agree as follows: RLFI I v.2

5 1. Recitals. The recitals set forth above are incorporated herein by reference. 2. Settlement of Amounts Owed To Each Party. a. Frascella Capital. Frascella Capital shall have an allowed general unsecured claim against Phoenix's estate in the amount of $6,000,000 in full and final satisfaction of any and all claims and equity interests it has asserted or may assert against Phoenix, including all claims asserted in its Claim No. 32. No claims lower in priority than general unsecured claims will receive a distribution unless Frascella Capital receives payment in full of its general unsecured claim. b. DWF. DWF shall have no recovery against Phoenix's estate, either as an equity interest holder, a general unsecured claim holder or otherwise. c. JEMS. JEMS shall have an allowed general unsecured claim against Phoenix's estate in the amount of $2,250,000 in full and final satisfaction of any and all claims and equity interests it has asserted or may assert against Phoenix. No claims lower in priority than general unsecured claims will receive a distribution unless JEMS receives payment in full of its general unsecured claim. d. Moyer. On account of his stock ownership, Moyer shall be entitled to a pro rata distribution from the estate of funds available to common stockholders under any plan, provided, however, that on account of the Settlement Agreement and Release, dated January 29, 2015 (the "Moyer Settlement", between Phoenix and Moyer, the amount of any such distribution shall be reduced by $750,000 with such amount instead to be made available to other, minority common stockholders of Phoenix. 3. Release by Frascella Capital, DWF and JEMS. Effective as of the date of this Agreement, Frascella Capital, DWF and JEMS, and each of their present and former officers, directors, employees, affiliates, owners, agents, predecessors, successors, representatives, and assigns, including but not limited to David Frascella, Larry Frascella, Tina Frascella and Michael Schubiger, hereby waive and release any and all claims (whether known or unknown, asserted or unasserted, fixed or contingent, liquidated or unliquidated that they may have against Phoenix and Moyer, and, as applicable, their present and former officers, directors, employees, affiliates, owners, agents, predecessors, successors, representatives, attorneys, professionals and assigns, including but not limited to any claims arising under or related in any way to Series B Stock or the Notes. Frascella Capital and JEMS represent that they own and have not assigned or transferred to any other person or entity any of their rights and claims that arc being altered or otherwise affected by this Agreement. 4. Release by Phoenix. Effective as of the date of this Agreement, Phoenix waives and releases any and all claims (whether known or unknown, asserted or unasserted, fixed or contingent, liquidated or unliquidated that it may have against Frascella Capital, DWF JEMS, RLFI JJ341466v.2 2

6 and, as applicable, each of the foregoing's present and former officers, directors, employees, affiliates, owners, agents, predecessors, successors, representatives, attorneys and assigns, including but not limited to any claims arising under or related in any way to Series B Stock or the Notes. 5. Surrender of Equity Interests. Frascella Capital, DWF and JEMS hereby surrender any and all equity interests that they ever have had in Phoenix, if any. The Stock Certificate PB2-1 issued in the name of DWF and Stock Certificate PB2-2 issued in the name of Frascella Capital are hereby extinguished. 6. Plan Support. Frascella Capital, DWF and JEMS, subject to their fiduciary duties, agree to support any chapter 11 bankruptcy plan proposed by Phoenix provided that it is consistent with and provides for the material terms of this Agreement, including by (a timely voting their claims or interests in favor of the plan; (b not objecting to the plan; and (c not intentionally encouraging any other party in interest to object to the plan. 7. Binding Agreement. This Agreement is binding immediately upon the Parties and inures to the benefit of the Parties and their successors and assigns. Each Party executing this Agreement represents to the other that such Party has the full authority and legal power to do so. 8. Advice of Counsel. Each Party understands that this Agreement is a legally binding contract that may affect such Party's rights. Each Party represents to the other that it has received legal advice from counsel of its choice regarding the meaning and legal significance of this Agreement and is satisfied with its legal counsel and the advice received from it. 9. Entire Agreement. This Agreement together with the Moyer Settlement constitutes one integrated agreement of the Parties regarding the subject matter of both this Agreement and the Moyer Settlement. All prior or contemporaneous understandings, oral representations or agreements made among the Parties concerning the subject matter herein are merged and contained in this Agreement and the Moyer Settlement. Other than the Moyer Settlement, there are no other agreements, express or implied, between the Parties regarding the subject matter of this Agreement. This Agreement and the Moyer Settlement may be amended or modified only by a writing signed by all Parties to this Agreement and the Moyer Settlement. 10. Compromise. The Parties agree and acknowledge that this Agreement is the result of a compromise and a decision to enter into the Agreement. The language of all parts of this Agreement will in all cases be construed as a whole, according to its fair meaning and not strictly for or against any of the Parties. The execution of this Agreement will never be construed as an admission by the Parties of any liability, wrongdoing, or responsibility. 11. Costs. If it is fully and finally determined (including any appeals process by a court of competent jurisdiction that a Party defaulted on its obligations under this Agreement (a "Defaulting Party", then any other Party who brings suit to enforce compliance with this Agreement (the "Enforcing Party" is entitled to recover from the Defaulting Party all costs and fees, including legal fees, reasonably incurred by the Enforcing Party in enforcing the RLFI v.2 3

7 Agreement. If any releasor (a "Releasing Party" asserts against any releasee (a "Released ill1y" a claim that has been released under this Agreement, then the Released Party is entitled to recover from the Releasing Party all costs and fees, including legal fees, reasonably incurred in defending against such claim and in enforcing its rights under this Agreement. 12. Jointly Drafted. This Agreement has been jointly drafted by the Parties and shall not be construed against one Party in favor of any other Party by reason of any presumption concerning the Party drafting this Agreement. 13. Governing Law. This Agreement is governed by the law of the State of Delaware, exclusive of its choice-of-law provisions. Each Party irrevocably consents to the jurisdiction of the United States Bankruptcy Court for the District of Delaware with respect to any action to enforce the terms and provisions of this Agreement. Each Party waives any right to commence any such action in any other forum. 14. Execution. This Agreement may be executed by facsimile or scanned PDF, and in any number of counterparts, each of which will be deemed to be an original as against any Party whose signature appears thereon, and all of which will together constitute one and the same instrument. IN WITNESS WHEREOF, the Parties or their authorized representatives execute this Agreement as of the date first set forth above. Phoenix Payment Systems, Inc. Frascella Capital, LLC: /Jti 1 (.,G..."<,{ JtLGd. c ~'4 ~s DWF Investments LLC JEMS Venture Capital, LLC Raymond Moyer HLFI 1134!466v ~~ <> -----

8 Agreement. If any releasor (a "Releasing Party" asserts against any releasee (a "Released fill!y" a claim that has been released under this Agreement, then the Released Party is entitled to recover from the Releasing Party all costs and fees, including legal fees, reasonably incurred in defending against such claim and in enforcing its rights under this Agreement. 12. Jointly Drafted. This Agreement has been jointly drafted by the Parties and shall not be construed against one Party in favor of any other Party by reason of any presumption concerning the Party drafting this Agreement. 13. Governing Law. This Agreement is governed by the law of the State of Delaware, exclusive of its choice-of-law provisions. Each Party irrevocably consents to the jurisdiction of the United States Bankruptcy Court for the District of Delaware with respect to any action to enforce the terms and provisions of this Agreement. Each Party waives any right to commence any such action in any other forum. 14. Execution. This Agreement may be executed by facsimile or scanned PDF, and in any number of counterparts, each of which will be deemed to be an original as against any Party whose signature appears thereon, and all of which will together constitute one and the same instrument. IN WITNESS WHEREOF, the Parties or their authorized representatives execute this Agreement as of the date first set forth above. Phoenix Payment Systems, Inc. Frascella Capital, LLC: DWF Investments LLC JEMS Ventur~ Capital, LLC ~OAst/ Nam?' v 0-tc.~ S'!>lfv6tl.,q_ Raymond Moyer ~~ Raymond Moyer RLFI v.2 4

9 ,,_,_,,,._,~ Agreement. If any releasor (a "Releasing Party" asserts against any releasee (a "Released Party" a claim that has been released under this Agreement, then the Released Party is entitled to recover from the Releasing Pmty all costs and fees, including legal fees, reasonably incurred in defending against such claim and in enforcing its rights under this Agreement. 12. Jointly Drafted. This Agreement has been jointly drafted by the Parties and shall not be construed against one Party in favor of any other Pmiy by reason of any presmnption conceming the Party drafting this Agreement. 13. Governing Law. This Agreement is governed by the law of the State of Delaware, exclusive of its choice-of-law provisions. Each Pruiy irrevocably consents to the jurisdiction of the United States Bankruptcy Court for the District of Ddaware with respect to any action to enforce the terms and provisions of this Agreement. Each Party waives any right to conunence any such action in any other fomm. 14. Execution. This Agreement may be executed by facsimile or scanned PDF, and in any number of counterparts, each of which will be deemed to be an original as against any Party whose signatme appears thereon, and all of which will together constitute one and the same instmment. IN WITNESS WHEREOF, the Parties or their authorized representatives execute this Agreement as of the date first set forth above. Phoenix Payment Systems, Inc. Frascella Capital, LLC: DWF Investments LLC JEMS Venture Capital, LLC Raymo~?/JMJyel" /----- /"...,. /'71 /'_/.v~/\ Raymond Moyer ~-~- - ' RLFI \ v.2 4

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