EXHIBIT 99.3
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AMENDMENT 3
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TO THE AGREEMENT
BETWEEN SEMOTUS SOLUTIONS, INC. AND BATHGATE CAPITAL PARTNERS, LLC
This Amendment supersedes Amendment 1 and Amendment 2, entered into this 18th
day of November, 2005, modifies the Agreement by and among Semotus Solutions,
Inc. (the "Company") and Bathgate Capital Partners, LLC ("Bathgate") dated May
27, 2004 as amended (the "Agreement").
WHEREAS, the Parties desire to amend the Agreement as set forth below:
Section 1. (b) is amended to read: "Bathgate Capital Partners Contact" is any
party or entity, that Bathgate Capital Partners intends to contact with regard
to a Business Combination and/or Financing during the engagement period. Contact
shall also include any party or entity referred to the Company by another
Bathgate Capital Partners Contact during the Engagement period or the Tail
Period.
Section 4. (a) Retainer. The following sub-paragraph shall be added: (i) The
Company shall issue Bathgate Capital upon the full execution of this Amendment,
warrants to purchase a total of 45,000 shares of its common stock (the
"Amendment Warrants"), exercisable at Semotus' common stock's closing price on
the date of the full exercise of this Agreement, at any time within five years
of the date of their issuance. The retainer Warrants shall contain standard
anti-dilution provisions; shall provide their holders with "piggy-back"
registration rights at the Company's cost; and contain a cashless exercise
provision.
Section 23. Financing Compensation. You agree to pay us the following fees for a
financing transaction provided by a Bathgate Capital contact or any party or
entity referred to the Company by another Bathgate Capital Partners Contact
during the Engagement period or the Tail Period.
(a) Contingent Fee. If, during the Engagement Period or the tail
period you enter into an agreement that subsequently results in a
Financing Transaction with a Bathgate Capital Contact, you shall pay
us 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 4.0% cash-of the loan commitment amount
and Contingent Warrants equivalent to 4%
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 8.0% cash-of the capital raised and
Contingent Warrants equivalent to 8% of
the securities sold by the Company in
the transaction.
(b) Contingent Warrants. The number of Contingent Warrants to be
issued to Bathgate Capital pursuant to the schedule in subparagraph
(a) 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 Capital. 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 at
the Company's cost.
(c) 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.
AGREED TO:
SEMOTUS SOLUTIONS, INC. BATHGATE CAPITAL PARTNERS, LLC
BY: /S/ XXXX XXXXXX BY: /S/ XXXXX XXXXXX
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NAME: XXXX XXXXXX NAME: XXXXX XXXXXX
TITLE: GENERAL COUNSEL TITLE: SR. MANAGING PARTNER
DATE: 12/8/05 DATE: 12/8/05
