Exhibit 4.2
SETTLEMENT AND GENERAL RELEASE AGREEMENT
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This Settlement and General Release Agreement ("Agreement") is entered into
between Semotus Solutions, Inc. (formerly Xxxxxxxx.xxx, Inc.) (hereinafter
"Semotus") and Xxxxxxxxx Xxxxxxx Fields Claman Machtinger & Xxxxxxxx LLP
(hereinafter "GGFCMK"). GGFCMK and Semotus agree as follows:
RECITALS
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A. GGFCMK and Semotus entered into a legal services arrangement, pursuant
to an Engagement Letter dated January 14, 2000 (the "Engagement
Letter") whereby GGFCMK was hired by Semotus to provide certain legal
services to Semotus, and GGFCMK did provide such services to Semotus,
whereupon certain fees for these services are now owed to GGFCMK; and
B. GGFCMK and Semotus have entered into this Agreement to settle the
compensation owed to GGFCMK for such services provided to Semotus, and
any claim that Semotus has not paid the full consideration or
compensation due for such services.
AGREEMENT
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WHEREFORE, the parties to this Agreement hereby agree as follows:
1. Semotus agrees to issue in the name of GGFCMK, seventy four thousand
eighty five dollars ($74,085.00) worth of restricted common stock,
valued based on the closing price of Semotus' common stock on April 4,
2001, and eleven thousand six hundred sixty nine dollars ($11,669.00)
in cash, which, together, is the total outstanding balance Semotus owes
to GGFCMK for the legal fees and costs incurred through February 2001;
such stock issuance shall occur after the parties' execution of this
Agreement and receipt of approval from the AMEX of the issuance of such
shares (the "Effective Date"). Semotus also agrees to include this
stock in the filing of its next Form S-3 Registration Statement, which
shall be filed no later than May 6, 2001. Upon the effectiveness of
such registration statement, GGFCMK agrees that it shall not sell more
than five thousand shares a day. Semotus' common stock issued to
GGFCMK, and the subsequent registration of it with the SEC, is for full
settlement of the consideration owed for all services provided by
GGFCMK to Semotus through February 2001. GGFCMK shall be responsible
for payment of all taxes related to receipt of the consideration
hereunder.
It is expressly understood and agreed by the parties that this
Agreement is in full accord, satisfaction and discharge of any and all
claims by GGFCMK against Semotus for all legal fees incurred through
February 2001, and that this Agreement has been signed with the express
intent of extinguishing all such claims.
2. Any controversy or claim of any kind arising out of relating to this
Agreement or its breach, including but not limited to any claim
relating to its validity, interpretation, or enforceability, shall be
submitted to binding arbitration in the State of California, in
accordance with the Arbitration Rules of the American Arbitration
Association ("AAA").
3. The Engagement Letter shall continue in full force and effect and shall
continue to govern all legal services performed by GGFCMK.
4. This is the entire Agreement regarding the subject matter hereof and
supersedes all previous and contemporaneous discussions, negotiations,
agreements and understandings. No other promises or agreements have
been made.
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. This agreement may be executed in counterparts, and each counterpart
shall be deemed a duplicate original.
AGREED AND UNDERSTOOD:
SEMOTUS SOLUTIONS, INC.
DATE: April 5, 2001 By: /s/ Xxxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxx
CFO
Xxxxxxxxx Glusker Fields Claman
Machtinger & Xxxxxxxx LLP
DATE: April 5, 2001 By: /s/ Xxxxxxx X. Xxxxx
Name: Xxxxxxx X. Xxxxx
Title: Management Committee Member
