EXHIBIT 4.2
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NEITHER THESE SECURITIES NOR THE SECURITIES ISSUABLE UPON EXERCISE HEREOF HAVE
BEEN REGISTERED WITH THE UNITED STATES SECURITIES AND EXCHANGE COMMISSION OR THE
SECURITIES COMMISSION OF ANY STATE OR CANADIAN PROVINCE, OR UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"). THE SECURITIES ARE RESTRICTED
AND MAY NOT BE OFFERED, RESOLD, PLEDGED OR TRANSFERRED EXCEPT AS PERMITTED UNDER
THE SECURITIES ACT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT OR AN
EXEMPTION FROM SUCH REGISTRATION REQUIREMENTS.
SEMOTUS SOLUTIONS, INC.
Incorporated Under the Laws of the State of Nevada
No. A-1 45,000 Common Stock
Purchase Warrants
CERTIFICATE FOR COMMON STOCK
PURCHASE WARRANTS
1. Warrants. This Warrant Certificate certifies that BATHGATE CAPITAL
PARTNERS, LLC, or registered assigns (the "Holder"), is the registered owner of
the above-indicated number of Warrants expiring on May 27, 2009 ("Expiration
Date"). One (1) Warrant entitles the Holder to purchase one share of common
stock, $.01 par value ("Share"), from Semotus Solutions, Inc., a Nevada
corporation ("Company"), at a purchase price of $0.34 per share ("Exercise
Price"), commencing May 27, 2004, and terminating on the Expiration Date
("Exercise Period"), upon surrender of this Warrant Certificate with the
exercise form hereon (or the Warrant Conversion Form in the case of a warrant
conversion pursuant to Section 3(b) below) duly completed and executed with
payment of the Exercise Price at the offices of the Company, 16400 Lark Ave.,
Suite 230, Los Gatos, CA 95032.
2. Transfer of Warrants. The Warrants represented by this Warrant
Certificate shall not be transferable except upon the death of the Holder and
then only to the estate of the Holder or pursuant to the Holder's will or the
applicable laws of descent and distribution.
3. (a) Exercise of Warrant. The Warrant may be exercised in whole
or in part at any time on or before the Expiration Date upon surrender of the
Warrant in conjunction with Form of Election to Purchase and the payment at the
Exercise Price stipulated above. If the Warrant is exercised in part, then the
Holder shall be entitled to receive a new Warrant covering the remaining number
of Warrant Shares not exercised.
(b) Conversion Right. In addition to and without limiting the
rights of the Warrantholder under the terms of the Warrant, the Holder shall
have the right (the "Conversion Right") to convert this Warrant or any portion
thereof into Shares as provided in this Section 2.4 at any time or from time to
time prior to its expiration. ) Upon exercise of the Conversion Right with
respect to a particular number of Warrants (the "Converted Warrants"), the
Company shall deliver to the Holder, without payment by the Holder of any
Exercise Price or any cash or other consideration, that number of Shares
computed using the following formula:
X = Y(A-B)
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A
Where: X = the number of Shares and/or Warrants to be issued
to the Holder;
Y = the number of Shares and/or Warrants to be
converted under this Warrant;
A = the Current Market Price of one share of Common
Stock; and
B = the Share Exercise Price.
4. Expiration of Warrants. No Warrant may be exercised or converted
after 5:00 p.m. Pacific Time on the Expiration Date and any Warrant not
exercised or converted by such time shall become void, unless the Expiration
Date of this Warrant is extended by the Company.
5.Piggy Back Registration Rights.
(a) If (but without any obligation to do so) Company proposes
to register any of the Shares on a registration statement (other than a
registration relating solely to the sale of securities to participants in a
Company 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 Shares, a
registration in which the only Shares being registered are Shares issuable upon
conversion of debt securities that are also being registered, or if there is a
managing underwriter of the offering of shares referred to in the registration
statement and such managing underwriter advises the Company in writing that the
Shares proposed to be included in the offering will have an adverse effect on
its ability to successfully conclude the offering), Company shall, at such time,
promptly give the Holder written notice of such registration. Upon the written
request of the Holder given within ten (10) days after mailing of such notice by
Company, Company 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 cause to be
registered under the Act all of the Shares that the Holder has requested to be
registered
(b) Unless otherwise approved by Company, the Holder shall
have the right to include its Shares in no more than one registration statement
filed by Company in accordance with this Section.
(c) Company 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
Company.
6. Adjustment of Exercise Price. After each adjustment of the Exercise
Price pursuant to this paragraph 5, the number of shares of Common Stock
purchasable on the exercise of each Warrant shall be the number derived by
dividing such adjusted pertinent Exercise Price into the original pertinent
Exercise Price. The pertinent Exercise Price shall be subject to adjustment as
follows:
In the event, prior to the expiration of the Warrants by
exercise or by their terms, the Company shall issue any shares of its
Common Stock as a share dividend or shall subdivide the number of
outstanding shares of Common Stock into a greater number of shares,
then, in either of such events, the Exercise Price per share of Common
Stock purchasable pursuant to the Warrants in effect at the time of
such action shall be reduced proportionately and the number of shares
purchasable pursuant to the Warrants shall be increased
proportionately. Conversely, in the event the Company shall reduce the
number of shares of its outstanding Common Stock by combining such
shares into a smaller number of shares, then, in such event, the
Exercise Price
per share purchasable pursuant to the Warrants in effect at the time of
such action shall be increased proportionately and the number of shares
of Common Stock at that time purchasable pursuant to the Warrants shall
be decreased proportionately. Any dividend paid or distributed on the
Common Stock in shares of any other class of the Company or securities
convertible into shares of Common Stock shall be treated as a dividend
paid in Common Stock to the extent that shares of Common Stock are
issuable on the conversion thereof.
7. Adjustments for Reorganization, Consolidation, Merger, or Sale of
Assets. If at any time while the Warrant, or any portion thereof, remains
outstanding and unexpired, should there occur a reorganization, merger, or
consolidation; or should there occur a sale or transfer of the Company's assets
or properties substantially in entirety as part of a reorganization, merger or
consolidation, then lawful provision shall be made so that the Holder shall
thereafter be entitled to receive upon exercise of the Warrant, or any unexpired
exercisable portion thereof, the number of shares of stock or other securities
or property of the successor corporation resulting from such reorganization,
consolidation, merger, sale or transfer that the Holder would have been entitled
to if the Warrant, or portions thereof, had been exercised immediately prior to
the event. The foregoing shall apply similarly to any successive
reorganizations, consolidations, mergers, sales or transfers that may occur
while the Warrant, or any portion thereof, remains exercisable.
8. Reservation of Stock Underlying the Warrant. At all times until the
expiration of the Warrant, the Company will authorize, reserve, and keep
available, solely for issuance and delivery upon the exercise of the Warrant,
the shares of Common Stock of the Company that shall be receivable upon exercise
of the Warrant.
9. Underlying Stock to be Fully Paid and Non-Assessable. The Company
covenants that the shares of Common Stock issuable upon exercise of the Warrant
shall be duly and validly issued, fully paid, non-assessable, and free of any
liens, charges, and all taxes with respect to the issue thereof.
10. No Impairment. The Company shall not, by amendment of its
Certificate of Incorporation or other method or venue, avoid or seek to avoid
the observance or performance of any of the terms of the Warrant, but shall at
all times, in good faith, take all such actions as may be necessary or
appropriate in order to protect the rights of the Holder thereunder against
impairment.
IN WITNESS WHEREOF, the Company has caused this Warrant to be signed by
its President and by its Secretary.
Dated: May 27, 2004
SEMOTUS SOLUTIONS, INC.
Attest:
/s/ Tali Durant By: /s/ Anthony N. LaPine
Tali Durant, Secretary Anthony N. LaPine, President
FORM OF ELECTION TO PURCHASE
(To be executed by the Holder if he desires to exercise
Warrants evidenced by the within Warrant Certificate)
To Semotus Solutions, Inc.:
The undersigned hereby irrevocably elects to exercise ____________
Warrants, evidenced by the within Warrant Certificate for, and to purchase
thereunder, ________________ full shares of Common Stock issuable upon exercise
of said Warrants and delivery of $____________ and any applicable taxes.
The undersigned requests that certificates for such shares be issued in
the name of:
PLEASE INSERT SOCIAL SECURITY OR
TAX IDENTIFICATION NUMBER
- ------------------------------- --------------------------------
(Please print name and address)
- ------------------------------- --------------------------------
- ------------------------------- --------------------------------
If said number of Warrants shall not be all the Warrants evidenced by
the within Warrant Certificate, the undersigned requests that a new Warrant
Certificate evidencing the Warrants not so exercised be issued in the name of
and delivered to:
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(Please print name and address)
Dated: ____________________ Signature: _____________________________________
NOTICE: The above signature must correspond with the name as written upon the
face of the within Warrant Certificate in every particular, without
alteration or enlargement or any change whatsoever, or if signed by
any other person the Form of Assignment hereon must be duly executed
and if the certificate representing the shares or any Warrant
Certificate representing Warrants not exercised is to be registered in
a name other than that in which the within Warrant Certificate is
registered, the signature of the holder hereof must be guaranteed.
Signature Guaranteed: __________________________________________
SIGNATURE MUST BE GUARANTEED BY A COMMERCIAL BANK OR MEMBER FIRM OF ONE
OF THE FOLLOWING STOCK EXCHANGES: NEW YORK STOCK EXCHANGE, PACIFIC COAST STOCK
EXCHANGE, AMERICAN STOCK EXCHANGE, OR MIDWEST STOCK EXCHANGE.
FORM OF ELECTION TO CONVERT
(To be executed by the Holder if he desires to exercise
Warrants evidenced by the within Warrant Certificate)
TO: Semotus Solutions, Inc.
Pursuant to Section 3(b) of the Warrant, he undersigned hereby
irrevocably elects to convert ____________ Warrants, evidenced by the within
Warrant Certificate for, and to purchase thereunder, ________________ full
shares of Common Stock issuable upon conversion of said Warrants. A conversion
calculation is attached hereto.
The undersigned requests that certificates for such shares be issued in
the name of:
PLEASE INSERT SOCIAL SECURITY OR
TAX IDENTIFICATION NUMBER
- ------------------------------- ---------------------------------
(Please print name and address)
- ------------------------------- ---------------------------------
If said number of Warrants shall not be all the Warrants evidenced by
the within Warrant Certificate, the undersigned requests that a new Warrant
Certificate evidencing the Warrants not so converted be issued in the name of
and delivered to:
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(Please print name and address)
Dated: ____________________ Signature: _____________________________________
NOTICE: The above signature must correspond with the name as written upon the
face of the within Warrant Certificate in every particular, without
alteration or enlargement or any change whatsoever, or if signed by
any other person the Form of Assignment hereon must be duly executed
and if the certificate representing the shares or any Warrant
Certificate representing Warrants not exercised is to be registered in
a name other than that in which the within Warrant Certificate is
registered, the signature of the holder hereof must be guaranteed.
Signature Guaranteed: __________________________________________
SIGNATURE MUST BE GUARANTEED BY A COMMERCIAL BANK OR MEMBER FIRM OF ONE OF THE
FOLLOWING STOCK EXCHANGES: NEW YORK STOCK EXCHANGE, PACIFIC COAST STOCK
EXCHANGE, AMERICAN STOCK EXCHANGE, OR MIDWEST STOCK EXCHANGE.
CALCULATION OF WARRANT CONVERSION
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X = Y(A-B)
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A
Where: X = the number of Shares and/or Warrants to be
issued to the Holder;
Y = the number of Shares and/or Warrants to be
converted under this Warrant;
A = the Current Market Price of one share of Common
Stock; and
B = the Share Exercise Price.
Fractional Converted Shares = (1)
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(1) <<Company>> to pay for fractional Shares in cash @ $ per Share.
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