EXHIBIT 99.2
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AMENDMENT 2
TO THE AGREEMENT
BETWEEN SEMOTUS SOLUTIONS, INC. AND BATHGATE CAPITAL PARTNERS, LLC
This Amendment, entered into this 29th day of April, 2005, modifies the
Agreement by and among Semotus Solutions, Inc. (the "Company") and Bathgate
Capital Partners, LLC ("Bathgate") dated May 27, 2004 and Amendment 1 (the
"Agreement").
WHEREAS, the Parties desire to amend the Agreement as set forth below, for the
purposes of the Business Combination with Clickmarks, Inc.
NOW THEREFORE, for good and valuable consideration, in consideration of the
mutual covenants and conditions set forth herein, and with the intent to be
legally bound hereby, the Company and Bathgate agree to amend the Agreement for
the purposes of the Business Combination with Clickmarks, Inc. as follows:
SECTION 1(d) OF THE AGREEMENT IS AMENDED SO THAT THE DEFINITION SHALL BE
IDENTICAL TO WHAT IS AGREED UPON BY THE COMPANY AND CLICKMARKS, AND AS DEFINED
IN THE DEFINITIVE ASSET PURCHASE AGREEMENT TO BE AGREED UPON BY AND AMONG THE
COMPANY AND CLICKMARKS.
SECTION 4(d) OF THE AGREEMENT IS DELETED IN ITS ENTIRETY AND REPLACED WITH THE
FOLLOWING LANGUAGE:
"CONTINGENT FEE. IF, DURING THE ENGAGEMENT PERIOD OR THE TAIL PERIOD YOU ENTER
INTO AN AGREEMENT THAT SUBSEQUENTLY RESULTS IN A BUSINESS COMBINATION WITH A
BATHGATE CAPITAL CONTACT, YOU SHALL PAY US AN ADDITIONAL FEE BASED ON THE
FOLLOWING: 3% OF THE PURCHASE PRICE (AS DEFINED ABOVE) PAID IN SUCH BUSINESS
COMBINATION UP TO AND INCLUDING $1,000,000; PLUS 2 1/2 % OF THE PURCHASE PRICE
PAID IN SUCH BUSINESS COMBINATION GREATER THAN $1,000,000 AND UP TO AND
INCLUDING $2,000,000."
THE SECOND SENTENCE OF SECTION 4(c) OF THE AGREEMENT IS DELETED IN ITS ENTIRETY
AND REPLACED WITH THE FOLLOWING LANGUAGE: "PAYMENT FOR THE CLICKMARKS BUSINESS
COMBINATION WILL BE AS FOLLOWS: THE FEE WILL BE PAID IN RESTRICTED COMMON STOCK
AT ONE HUNDRED AND TWENTY PERCENT (120%) OF THE VALUE OF THE FEE. ADDITIONALLY,
BATHGATE SHALL RECEIVE CERTAIN REGISTRATION RIGHTS EQUIVALENT TO THE
REGISTRATION RIGHTS GRANTED TO CLICKMARKS SHAREHOLDERS AND AS SET FORTH IN THE
DEFINITIVE ASSET PURCHASE AGREEMENT TO BE AGREED UPON BY AND AMONG THE COMPANY
AND CLICKMARKS."
FINANCING COMPENSATION. The Company agrees to pay Bathgate the following fees
for a financing transaction provided by a Bathgate Capital contact:
(a) Contingent Fee. If, during the Engagement Period or the tail
period the Company enters into an agreement that subsequently results in a
Financing Transaction with a Bathgate Capital Contact, the Company shall
pay Bathgate an additional fee based on the following:
Senior Debt 2.0% cash-of the loan commitment amount, and
"Contingent Warrants" equivalent to 2.0% of the
securities that could be purchased based upon the
funded amount at the closing bid price on the day of
closing;
Subordinated Debt 7.0% cash-of the loan commitment amount and
Contingent Warrants equivalent to 7.0% of the
securities that could be purchased based upon the
funded amount at the closing bid price on the day of
closing:
Equity or Convertible Debt 10.0% cash-of the capital raised
and Contingent Warrants equivalent to 10.0% of the
securities sold by the Company in the transaction.
(f) Contingent Warrants. The number of Contingent Warrants to be
issued to Bathgate pursuant to the schedule in subparagraph (f) shall be
determined as follows: (a) with respect to non-convertible debt, the number
of warrants shall be equal to the sum of the number of shares of common
stock that could have been purchased using the debt commitment proceeds
multiplied by the applicable warrant coverage percentage (e.g., 2% or 8%);
or (b) with respect to equity or convertible debt, the number of warrants
shall be equal to the sum of the total number of shares issued or that
would be issued upon conversion multiplied by the applicable warrant
coverage percentage. For purposes of determining the "number of shares of
common stock that could be purchased" the most recent ten day average of
the quoted bid and the ask price of the Company's common stock shall be
used; or, if the Company is a private company, the fair market value shall
be the per share offering price of any offering completed by the Company
within the immediately preceding three month period; or, if no current
offering has been made, by the mutual agreement of the Company and
Bathgate. The terms and conditions of the Warrants shall be no less
favorable than those contained in any securities issued by the Company in
the transaction, shall provide for a term of five years, shall contain
standard anti-dilution and cashless exercise provisions; and shall also
provide the holders of the Warrants with "piggy-back" and "take-along"
registration rights to register the shares underlying the warrants at the
Company's cost.
(g) Payment of Contingent Fee. The Contingent Fee shall be paid at the
closing of the Financing Transaction for which it is payable; provided that
compensation due to Bathgate Capital as a result of capital proceeds that
are contingent upon the occurrence of some future event or pursuant to any
Financing Transaction shall be paid by the Company to Bathgate Capital at
the earlier of (a) the receipt of such capital, or (b) the time that the
amount of such capital can be determined. No fee payable to any other
advisor shall operate to reduce the fees payable to Bathgate Capital
hereunder.
All of the terms and conditions of the original Agreement and Amendment(s)
remain in full effect, unless specifically modified by the terms herein.
Fax Signatures. The parties hereby agree that signatures transmitted and
received via facsimile or other electronic means shall be treated for all
purposes of this Addendum, and any future Addendums or Amendments, as original
signatures and shall be deemed valid, binding and enforceable by and against
both parties.
BOTH PARTIES HERETO REPRESENT THAT THEY HAVE READ THIS AMENDMENT, UNDERSTAND IT,
AGREE TO BE BOUND BY ALL TERMS AND CONDITIONS STATED HEREIN, AND ACKNOWLEDGE
RECEIPT OF A SIGNED, TRUE AND EXACT COPY OF THIS AMENDMENT.
IN WITNESS WHEREOF, the parties hereto hereby execute this Amendment by their
duly authorized representatives on the dates set forth below.
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AGREED TO:
SEMOTUS SOLUTIONS, INC. BATHGATE CAPITAL PARTNERS, LLC
BY: /S/ XXXXXXX XXXXXX BY: /S/ XXXXX XXXXXX
NAME: XXXXXXX XXXXXX NAME: XXXXX XXXXXX
TITLE: PRESIDENT AND CEO TITLE: SR. MANAGING PARTNER
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DATE: MAY 2, 2005 DATE: APRIL 29, 2005
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