EXHIBIT 99.2
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AMENDMENT
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TO THE AGREEMENT OF MERGER
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This is an Agreement, effective as of May 15, 2003, by and among
Semotus Solutions, Inc. ("Semotus") and Xxxxxxxx X. Xxxx, to amend the Agreement
of Merger dated as of July 10, 2000, between Xxxxxxxx.xxx, Inc. (now known as
Semotus), Acquisition Wireless, Inc., a Delaware corporation ("Sub"), Cross
Communications, Inc., an Illinois corporation, (the "Company"), and Xxxxxxxx X.
Xxxx (the "Shareholder").
WHEREAS, the Company was merged with Sub, and the Shareholder received
a certain number of Parent Shares on the Closing Date, and has the right to
potentially receive a certain additional number of Parent Shares as part of an
earn-out and/or a reset provision, in accordance with the terms and conditions
of the Agreement of Merger; and
WHEREAS, the parties desire to terminate any remaining obligations of
either party under the Agreement of Merger, and accelerate the reset provision
set forth in Section 3.2 of the Agreement of Merger; and
WHEREAS in consideration for the termination and acceleration of the
obligations as described above, Semotus shall issue a final, definitive number
of restricted common shares as of the Effective Date of this Agreement to
Shareholder; and
WHEREAS, the parties desire to amend the Agreement of Merger, so as to
be consistent with the purpose of the above mentioned settlement.
NOW, THEREFORE, the parties, intending to be legally bound, hereby
agree as follows:
1. Semotus agrees to issue one hundred and eighty seven thousand five
hundred (187,500) restricted common shares of Semotus to Shareholder.
2. Both parties agree to terminate in their entirety any and all
provisions of the Agreement of Merger wherein either [party] has
remaining obligations to the other [party]; such provisions shall be of
no further force or effect. These 187,500 shares, the termination of
Semotus' remaining obligations under the Agreement of Merger and the
mutual release as set forth below in Section 3, are for full settlement
of the consideration owed by each Party under the Agreement of Merger
and represent complete satisfaction of all obligations of either party
under the Agreement of Merger.
3. Piggy Back Registration Rights.
a. If (but without any obligation to do so) Parent proposes to
register any of the Parent Shares on a registration statement
(other than a registration relating solely to the sale of
securities to participants in a Parent stock plan, a registration
relating to a corporate reorganization or other transaction under
Rule 145 of the Act, a registration on any form that does not
include substantially the same information as would be required
to be included in a registration statement covering the sale of
the Parent Shares issuable as Merger Consideration, or a
registration in which the only Parent Shares being registered are
Parent Shares issuable upon conversion of debt securities that
are also being registered), Parent shall, at such time, promptly
give the Shareholder written notice of such registration. Upon
the written request of the Shareholder given within ten (10) days
after mailing of such notice by Parent, Parent shall, subject to
the final approval of the other holder(s) of securities
(including the underwriter, if applicable) intended to be
included on such registration statement, use all reasonable
efforts to
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cause to be registered under the Act all of the Parent Shares
that the Shareholder has requested to be registered
b. Unless otherwise approved by Parent, the Shareholder shall have
the right to include its Parent Shares in no more than one
registration statement filed by Parent in accordance with this
Section.
c. Parent shall have the right to terminate or withdraw any
registration initiated by it under this Section prior to the
effectiveness of such registration. The expenses of such
withdrawn registration shall be borne by Parent.
4. Each Party hereby releases, waives and forever discharges, individually
and collectively, the other Party, and the other Party's current or
former officers, directors, employees, agents, affiliates,
predecessors, successors, assigns, subsidiaries and all persons acting
through or with them (hereinafter collectively referred to as
"Releasees"), from any and all claims, rights, demands, liabilities,
causes of action, losses, costs or expenses (including attorneys' fees)
of any kind whatsoever, known or unknown, suspected or unsuspected,
that a Party may now have or has ever had against the other Party's
Releasees prior to and including the date of this Agreement. This
release includes, without limitation, all claims relating to any
contract between the Parties or the Party's Releasees, whether express
or implied, and its termination or breach; any claims for
misrepresentation, fraud, or breach of any covenant of good faith and
fair dealing.
It is expressly understood and agreed by each Party that this Agreement
is in full accord, satisfaction and discharge of any and all claims by
a Party against the other Party's Releasees, and that this Agreement
has been signed with the express intent of extinguishing all such
claims.
Civil Code Section 1542. Each Party represents that it is not aware of
any claim against the other than the claims that are released by this
Agreement. Each Party acknowledges that it has been advised by legal
counsel and is familiar with the provisions of California Civil Code
Section 1542, which provides as follows:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR
DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF
EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE
MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.
Each Party, being aware of said code section, agrees to expressly waive
and relinquish any right or benefit it has or may have under Section
1542 of the Civil Code of the State of California, as well as any other
similar provision under the statutory or nonstatutory law of any other
jurisdiction to the full extent that it may lawfully waive all such
rights and benefits.
5. In the event that any provision of this Agreement is determined to be
unenforceable for any reason, the remaining provisions shall remain in
full force and effect and the unenforceable provision(s) shall be
interpreted and rewritten to give effect to the parties' economic
intentions.
6. Each Party further agrees not to make any negative or disparaging
statements about the other Party or its employees or representatives to
any third party, or to disclose any confidential information that it
became aware of as a result of its relationship with the other Party.
7. This Agreement shall be governed by and construed and enforced in
accordance with the laws of
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California (regardless of that jurisdiction or any other jurisdiction's
choice of law principles).
8. Arbitration. In the event a disagreement between the parties cannot be
resolved, the parties mutually agree to resolve any conflicts through
binding arbitration proceedings. Such arbitration shall be conducted
before a single arbitrator and, except as otherwise set forth herein,
shall be conducted in accordance with the then-existing rules of the
Arbitration Association and judgment upon the award rendered by the
arbitrator may be entered in any court having jurisdiction thereof.
Arbitration shall take place at San Jose, California or any other
location mutually agreeable to the parties. The arbitration award shall
be specifically enforceable; judgment upon any arbitration award may be
entered in any court with personal jurisdiction over the parties and
subject matter of the disputes.
9. Each Party acknowledges and agrees that it has been advised that this
Agreement is a binding legal document. Each Party further agrees that
it has had adequate time and a reasonable opportunity to review the
provisions of this Agreement and to seek legal advice regarding all its
aspects, and that in executing this Agreement, each Party has acted
voluntarily and has not relied upon any representation made by another
Party or any of that Party's employees or representatives regarding the
Agreement's subject matter and/or effect. Each Party has read and fully
understands this Agreement and voluntarily agrees to its terms.
10. Miscellaneous. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, and all of
which taken together shall constitute one and the same instrument.
11. 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 Agreement as original signatures and shall be
deemed valid, binding and enforceable by and against both parties.
12. Capitalized terms used and not otherwise defined in this Agreement
shall have the meanings ascribed to them in the Agreement of Merger.
13. Pre-Signing Consultation. Shareholder and Company each represent and
warrant that it has had an opportunity to consult with its advisors,
accountants and attorneys concerning the execution of this Agreement,
and the transactions contemplated herein. By the Shareholder's and
Company's execution hereof, the Shareholder and Company each confirm
that either it has consulted with an
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attorney or has determined not to obtain such representation in
connection with this Agreement or transactions contemplated herein.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
SEMOTUS SOLUTIONS, INC.
By: /s/ Xxxxxxx X. XxXxxx
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Name: Xxxxxxx X. XxXxxx
Title: President and CEO
CROSS COMMUNICATIONS, INC. (formerly Acquisition
Wireless, Inc.)
By: /s/ Xxx Xxxx
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Name: Xxx Xxxx
Title: President
SHAREHOLDER
By: /s/ Xxxxxxxx X. Xxxx
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Name: Xxxxxxxx X. Xxxx
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