Exhibit 2.1
AGREEMENT
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TO AMEND AND REFORM THE STOCK PURCHASE AGREEMENT
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AND CANCEL THE WARRANT
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This is an agreement, made as of February 15, 2002 (the "Effective Date"),
by and among Application Design Associates, Inc. ("ADA"), Semotus Solutions,
Inc. ("Semotus") and 2007978 Ontario, Inc. (the "Purchaser"), to amend and
reform the Stock Purchase Agreement dated as of January 18, 2002, between
Semotus, ADA, the Purchaser, and Xxxx Xxxxxx (the "Agreement"), and to cancel ab
initio the warrant to purchase 150,000 shares of common stock of Semotus
Solutions, Inc. at $0.75 per share issued to the Purchaser and dated January 18,
2002 (the "Warrant").
WHEREAS, the Series B Preferred Stock issued pursuant to the private
placement agreements between Semotus and Xxxxx Xxxxxxx Partners, LLP dated
February 14, 2000 (the "Xxxxx Xxxxxxx Transaction") does not require a reset of
its conversion price upon the issuance of securities as part of an acquisition
transaction such as that provided for in the Agreement; and
WHEREAS, Xxxxx Xxxxxxx claims that the issuance of the Warrant does require
a conversion price adjustment; and
WHEREAS, a conversion price adjustment would be detrimental to all the
parties to the Agreement and the parties to the Agreement would not have
provided for a Warrant if they had known that Xxxxx Xxxxxxx would claim the
right to reset the conversion price of its Series B Preferred Stock; and
WHEREAS, the parties desire to reform and amend the Agreement as of its
effective date and terminate and cancel the Warrant.
NOW, THEREFORE, in consideration of the mutual covenants contained herein,
intending to be legally bound, hereby agree as follows:
1. Deletion of Section 1.1(b) of the Agreement. Section 1.1(b) of the
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Agreement is hereby terminated and deleted in its entirety from the
Agreement as of the date of the Agreement.
2. The Warrant. The Warrant is hereby terminated and cancelled in its entirety
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as of the date of the Warrant.
3. Miscellaneous. All other terms and conditions of the Agreement shall remain
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in full force and effect. This Amendment 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.
4. Fax Signatures. The parties hereby agree that signatures transmitted and
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received via facsimile or other electronic means shall be treated for all
purposes of this Amendment as original signatures and shall be deemed
valid, binding and enforceable by and against both parties.
5. Capitalized terms used and not otherwise defined in this Amendment shall
have the meanings ascribed to them in the Agreement.
IN WITNESS WHEREOF, the parties have executed this Amendment as of the date
first above written.
SEMOTUS SOLUTIONS, INC.
By: /s/ Xxxxxxx X. XxXxxx
Name: Xxxxxxx X. XxXxxx
Title: President and CEO
APPLICATION DESIGN ASSOCIATES, INC.
By: /s/ Xxx Xxxxxxxx
Name: Xxx Xxxxxxxx
Title: COO
2007978 ONTARIO, INC.
By: /s/ Xxx Xxxxxxxx
Name: Xxx Xxxxxxxx
Title: COO
By: /s/ Xxxx Xxxxxx
Xxxx Xxxxxx
