EXHIBIT 4.1
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THIS NOTE, AND THE SHARES OF COMMON STOCK ISSUABLE UPON CONVERSION HEREOF, HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE
STATE SECURITIES LAWS AND MAY NOT BE REOFFERED, SOLD, TRANSFERRED, PLEDGED, OR
OTHERWISE DISPOSED OF EXCEPT PURSUANT TO (1) REGISTRATION UNDER SUCH ACT OR LAWS
OR (2) AN OPINION OF COUNSEL FOR THE COMPANY OR OTHER COUNSEL REASONABLY
ACCEPTABLE TO THE COMPANY TO THE EFFECT THAT SUCH REGISTRATION IS NOT REQUIRED.
SEMOTUS SOLUTIONS, INC.
CONVERTIBLE PROMISSORY NOTE
$200,000 1 February, 2007
FOR VALUE RECEIVED, Semotus Solutions, Inc., a Nevada corporation (the
"Company"), promises to pay to the order of MIRO KNEZEVIC AND GAIL L. KNEZEVIC,
CO-TRUSTEES, KNEZEVIC FAMILY TRUST DATED JUNE 30, 1992 (the "Payee"), at the
office of the Payee at 110 Newport Center Drive, Suite 200, Newport Beach, CA
92660, or at such other place as Payee may designate in writing, the principal
sum of Two Hundred Thousand Dollars ($200,000) (the "Principal Amount") on the
terms set forth below. Interest on the unpaid principal balance shall accrue at
a rate of ten percent (10%) per annum, from 1 February 2007 with respect to the
Principal Amount. All payments of interest and principal hereunder shall be made
in U.S. currency and without setoff, deduction or counterclaim.
This Note is made in connection with that certain Investment Agreement
dated February 1, 2007 between Company and Payee (the "Investment Agreement").
1. DEFINITIONS.
Capitalized terms not defined herein shall have the same meaning as set forth in
the Investment Agreement. The following terms shall have the meanings herein
specified:
"Capital Stock" means any of the current or future authorized class or
series of capital stock of the Company.
"Common Stock" means authorized Common Stock, $.01 par value, of the
Company, and shall include any other class or series of capital stock of the
Company that is not limited to a fixed sum in respect of the rights of the
holder thereof to participate in the liquidation or winding up of the Company.
"Conversion Notice" shall have the meaning set forth in Section 2(a).
"Conversion Price" shall mean the per share price(s) at which some or all
of the Principal Amount plus all accrued interest thereon is converted or
convertible pursuant to Section 2, and in all cases as adjusted pursuant to
Section 2(e).
"Conversion Shares" means the shares of Capital Stock, issuable upon
conversion of this Note.
"Event of Default" means an event specified in Section 4 hereof.
"Holder" means the Payee, and each endorsee, pledgee, assignee, owner and
holder of this Note, as such; and any consent, waiver or agreement in writing by
the then Holder with respect to any matter or thing in connection with this
Note, whether altering any provision hereof or otherwise, shall bind all
subsequent Holders. Notwithstanding the foregoing, the Company may treat the
registered holder of this Note as the Holder for all purposes.
"Principal Amount" shall have the meaning set forth in the initial
paragraph.
"Person" means an individual, trust, partnership, firm, association,
corporation or other organization or a government or governmental authority.
Words of one gender include the other gender; the singular includes
the plural; and the plural includes the singular, unless the context otherwise
requires.
2. CONVERSION OF THE NOTE.
(a) Election to Convert. Holder may, at its option, exercise by written notice
(the "Conversion Notice") to the Company at any time prior to payment in full
hereof, elect to convert all or any part of the entire outstanding principal
amount of this Note plus a pro rata share of the accrued interest on the then
outstanding balance into Common Shares at a conversion price equal to the lesser
of (a) ten cents ($0.10) per share (which is the equivalent of two million
shares subject to adjustment as provided for herein) and (b) a fifteen percent
(15%) discount from the closing price of the Company's common stock calculated
using the average closing price over ten consecutive trading days immediately
preceding the Conversion Notice date , and with a floor which is not to exceed a
total maximum potential issuance of Three Million five hundred fifty seven
thousand and sixty (3,557,060) shares (subject to adjustment in the event of any
stock splits, stock dividends or other recapitalization of Common Shares) (the
"Conversion Price").
(b) Conversion Price Protection. During the time period beginning from February
1, 2007 and ending on the earlier to occur of (a) the Conversion Notice date and
(b) February 1, 2009, if the Company issues common stock or securities
convertible or exercisable into stock at a price (or conversion or exercise
right) that is less than the Conversion Price (the "Adjustment Price"), then, at
the time of such issuance(s) the Company shall reduce a certain number of Shares
from the Conversion Price to the
Adjustment Price, in proportion to the number of securities the Company actually
issues at the Adjustment Price,
For example, if the Company issues 1,000,000 shares (half as much as the Holder
would have on full conversion) at $0.08/share, the Holder would get a 50%
correction on his Conversion Price, to $0.09/share. If the Company issues
2,000,000 or more shares, the Holder would get the full Conversion Price
reduction to $0.08/share.
With respect to any adjustment to the Conversion Price or to the number of
Common Shares as provided for in this Note, the Company shall as soon as
practical send to Holder a detailed written explanation of each such adjustment.
(c) Delivery of Conversion Shares. The Capital Stock issued on conversion of
this Note (the "Conversion Shares") shall be delivered as follows:
As promptly as practicable after conversion, the Company shall deliver to
Holder, or to such person or persons as are designated by Holder in the
Conversion Notice, a certificate or certificates representing the number of
shares of Capital Stock into which this Note or portion thereof is to be
converted in such name or names as are specified in the Conversion Notice,
rounded to the nearest whole share. Such conversion shall be deemed to have been
effected at the close of business on the date when this Note shall
have been surrendered to the Company for conversion, so that the person entitled
to receive such Conversion Shares shall be treated for all purposes as having
become the record holder of such Conversion Shares at such time.
In the event that less than the entire outstanding principal of this
Note is converted hereunder pursuant to subsection (a) above, this Note shall
not be surrendered for cancellation but shall have the fact and amount of
conversion recorded on the face of this Note by writing acknowledged by Holder
and the Company. If less than the entire principal balance of this Note is
converted, the amount of principal converted shall be reduced to the nearest
amount that results in no fractional shares.
(d) Reservation of Shares. The Company will use its best efforts to gain the
approval of the American Stock Exchange to have the authority to issue the
Conversion Shares to the Holder. The Company agrees that, during the period
within which this Note may be converted, the Company will, at all times, have
authorized and in reserve, and will keep available solely for delivery upon the
conversion of this Note, Capital Stock and other securities and properties as
from time to time shall be receivable upon the conversion of this Note, free and
clear of all restrictions on issuance, sale or transfer other than those imposed
by law and free and clear of all pre-emptive rights. The Company agrees that the
Conversion Shares shall, at the time of such delivery, be validly issued and
outstanding, fully paid and non-assessable, and the Company will take all such
action as may be necessary to assure that the stated value or par value per
share of the Conversion Shares is at all times equal to or less than the
Conversion Price.
(e) Registration of Conversion Shares. See the Registration Rights Agreement,
attached hereto as Exhibit A and incorporated herein. The Company agrees to file
a registration statement on SEC Form S-3 within 60 days of conversion of this
Note that includes all of the Conversion Shares.
(f) Protection Against Dilution.
(i) In the event of any consolidation with or merger of the Company with or
into another corporation (other than a merger or consolidation in which the
Company is the surviving or continuing corporation) or any sale, lease or
conveyance to another corporation of the property of the Company as an entirety
or substantially as an entirety, in either case while any principal or accrued
interest remains outstanding under this Note, then such successor, leasing or
purchasing corporation, as the case may be, shall
(1) execute with the Holder an agreement providing that the
Holder shall have the right thereafter to receive upon conversion of
this Note solely the kind and amount of shares of stock and other
securities, property, cash or any combination thereof receivable upon
such consolidation, merger, sale, lease or conveyance by a holder of
the number of shares of Capital Stock for which this Note might have
been converted immediately prior to such consolidation, merger, sale,
lease or conveyance,
(2) make effective provision in its articles of association or
otherwise, if necessary, in order to effect such agreement, and
(3) set aside or reserve, for the benefit of the Holder, the
stock, securities, property and cash to which the Holder would be
entitled upon conversion of this Note.
(ii) In the event of any reclassification or change of the Capital Stock
into which this Note may be converted (other than a change in par value or from
no par value to a specified par value, or as a result of a subdivision or
combination, but including any change in the shares into two or more classes or
series of shares), or in the event of any consolidation or merger of another
corporation into the Company in which the Company is the continuing corporation
and in which there is a reclassification or change (including a change to the
right to receive cash or other property) of the Capital Stock into which this
Note may be converted (other than a change in par value, or from no par value to
a specified par value, or as a result of a subdivision or combination, but
including any change in the shares into two or more classes or series of
shares), in either case while any principal or accrued interest remains
outstanding under this Note, then the Holder shall have the right thereafter to
receive upon conversion of this Note solely the kind and amount of shares of
stock and other securities, property, cash or any combination thereof receivable
upon such reclassification, change, consolidation or merger by a holder of the
number of shares of Capital Stock for which this Note might have been converted
immediately prior to such reclassification, change, consolidation or merger.
(iii) If the Capital Stock shall be recapitalized or reclassified or the
Company shall effect any stock dividend, stock split, or reverse stock split of
the Capital Stock, then the Conversion Shares to be issued shall be
proportionately and equitably adjusted to reflect any increase or decrease in
the number of Conversion Shares resulting from such corporate event.
3. PAYMENT OF THIS NOTE - PRINCIPAL AND INTEREST.
(a) Payment after Milestone Deadline. All principal and interest that has not
been converted into Capital Stock pursuant to Section 2 above shall be due and
payable on February 1, 2009 (the "Maturity Date") and, at any time thereafter,
the Holder may proceed to collect such unconverted principal and accrued
interest.
(b) Payment on an Event of Default. If an Event of Default occurs and is
continuing, then the Holder of this Note may without presentment, protest,
notice or demand, all of which are expressly waived, declare this Note
immediately due and payable and demand payment of all principal and interest
that has not been converted into Common Stock pursuant to Section 2 above, and,
at any time thereafter, the Holder may proceed to collect such unconverted
principal and accrued interest.
(c) Prepayment. The Company may prepay this Note at any time after six months
after the date hereof; provided that, prior to on or before July 1, 2007, the
Company shall give Holder at least 30 days' advance written notice, and after
July 1, 2007, the Company shall give Holder at least 15 days' advance written
notice, of the Company's intent to prepay and Holder shall have the right to
convert all or any portion of this Note pursuant to Section 2(b) at any time
during such 30-day or 15-day period, as applicable.
4. EVENTS OF DEFAULT.
The existence of any of the following conditions shall constitute an Event of
Default:
(a) Commencement of proceedings under any bankruptcy or insolvency law or other
law for the reorganization, arrangement, composition or similar relief or aid of
debtors or creditors if such proceeding remains undismissed and unstayed for a
period of 60 days following notice to the Company by the Holder.
(b) If the Company shall dissolve, liquidate or wind up its affairs or sell
substantially all of its assets.
(c) If the Company breaches any of its representations, warranties, covenants or
agreements set forth in the Investment Agreement and such breach shall not be
cured within 30 days after written notice thereof shall have been given to the
Company by the Holder.
(d) One or more final judgments are entered against the Company involving
aggregate unpaid liability not covered by insurance in excess of $1,000,000, and
such amounts are not paid in full within 30 days.
(e) Attachment or similar process of execution is levied against a material
portion of the Company's assets and such process is not terminated and any
orders issued pursuant thereto canceled within 90 calendar days.
(f) The Company is in breach of any provision of this Note, which breach (other
than a breach described in Section 4(a) through 4(e) above) continues for more
than 30 calendar days following notice to the Company by the Holder.
(g) The Company fails to pay any amounts owed under this Note on the Maturity
Date.
5. TRANSFER.
(a) Transfer of this Note shall be subject to prior delivery by the proposed
transferee to the Company of an opinion of counsel that such transfer is in
compliance with all federal and all applicable securities laws. In order to
transfer this Note, the Holder, or its
duly authorized attorney, shall surrender this Note at the office of the Company
pursuant to Section 10 herein, accompanied by an assignment duly executed by the
Holder hereof.
(b) This Note is, and each certificate representing Conversion Shares shall be,
stamped or otherwise imprinted with a legend substantially in the following
form:
"The securities represented hereby have not been registered under the
Securities Act of 1933, as amended or applicable state securities laws
and may not be reoffered, sold, transferred, pledged, or otherwise
disposed of except pursuant to (1) registration under such act or laws
or (2) an opinion of counsel for the Company or other counsel
reasonably acceptable to the Company to the effect that such
registration is not required."
6. LOSS OR MUTILATION OF NOTE.
Upon receipt by the Company of evidence satisfactory to the Company of the loss,
theft, destruction or mutilation of this Note, together with an indemnity
reasonably satisfactory to the Company, in the case of loss, theft, or
destruction, or the surrender and cancellation of this Note, in the case of
mutilation, the Company shall execute and deliver to the Holder a new Note of
like tenor and denomination as this Note.
7. HOLDER NOT SHAREHOLDER.
This Note does not confer upon the Holder any right to vote or to consent or to
receive notice as a shareholder of the Company, as such, in respect of any
matters whatsoever, or any other rights or liabilities as a shareholder, prior
to the conversion hereof.
8. WAIVERS.
The failure of Holder to enforce at any time any of the provisions of this Note
shall not, absent an express written waiver signed by Holder specifying the
provision being waived, be construed to be a waiver of any such provision, nor
in any way to affect the validity of this Note or any part hereof or the right
of Holder thereafter to enforce each and every such provision. No waiver of any
breach of this Note shall be held to be a waiver of any other or subsequent
breach. The Company waives presentment, demand, notice of dishonor, protest and
notice of nonpayment and protest.
9. TAXES.
The Company agrees that it will pay, when due and payable, any and all stamp,
original issue or similar taxes which may be payable in respect of the issue of
this Note and/or any Conversion Shares or certificates therefor. The Company
shall not be required to pay any stamp, original issue or similar tax which may
be payable in respect of any transfer involved in the transfer and delivery of
stock certificates to a person other than of the Payee.
10. NOTICES.
All notices or other communications to a party required or permitted hereunder
shall be in writing and shall be delivered personally or by facsimile (receipt
confirmed electronically) to such party (or, in the case of an entity, to an
executive officer of such party) or shall be sent by a reputable express
delivery service or by certified mail, postage prepaid with return receipt
requested, addressed as follows:
if to Payee to:
Miro Knezevic, Trustee
Knezevic Family Trust
110 Newport Center Drive
Suite 200
Newport Beach, California 92660
Jack Cornman
Cornman & Swartz
19800 MacArthur Blvd., Suite 820
Irvine, CA 92612
Fax: 949 224 1505
if to the Company to:
Anthony LaPine
Semotus Solutions, Inc.
718 University Avenue, Suite 202
Los Gatos, CA 95032
Any party may change the above specified recipient and/or mailing address
by notice to all other parties given in the manner herein prescribed. All
notices shall be deemed given on the day when actually delivered as provided
above (if delivered personally or by facsimile, provided that any such facsimile
is received during regular business hours at the recipient's location) or on the
day shown on the return receipt (if delivered by mail or delivery service).
11. HEADINGS.
The titles and headings to the Sections herein are inserted for the convenience
of reference only and are not intended to be a part of or to affect the meaning
or interpretation of this Note. This Note shall be construed without regard to
any presumption or other rule requiring construction hereof against the party
causing this Note to be drafted.
12. APPLICABLE LAW AND JURISDICTION.
The legality, validity, enforceability and interpretation of this Note and the
relationship of the parties hereunder shall be governed by the laws of the State
of California, without giving effect to the principles of conflict of laws,
except with respect to matters of law concerning the internal corporate affairs
of any corporate entity which is a party to or the subject of this Agreement,
and as to those matters the law of the jurisdiction under which the respective
entity derives its powers shall govern. Any claim, cause of action, suit or
demand allegedly arising out of or related to this Note, or the relationship of
the parties, shall be brought exclusively in the state or federal courts located
in Orange County, California, and the parties irrevocably consent to the
exclusive jurisdiction and venue of such courts and waive any objections they
may have at any time to such exclusive jurisdiction and venue.
13. SURVIVAL OF REPRESENTATIONS AND WARRANTIES; ATTORNEYS FEE. This
Note shall inure to the benefit of and be binding upon the successors and
assigns of each of the parties hereto. If this Note is not paid when due or if
the Company breaches any provisions of this Note, in addition to all other
amounts due herein, the Company promises to pay all costs of collection and all
reasonable attorney fees and court costs incurred by Holder.
14. ASSIGNMENT. This Note may not be assigned by either party hereto
without the prior written consent of the other (except that the Company may
without the prior written consent of the Holder assign this Note in the event of
a merger, acquisition or reorganization to the surviving entity of such merger,
acquisition or reorganization.
IN WITNESS WHEREOF, Semotus Solutions, Inc. has caused this Convertible
Promissory Note to be signed in its name by the signature of its duly authorized
representative.
SEMOTUS SOLUTIONS, INC.
/s/ Anthony LaPine
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By: Anthony LaPine
Its: CEO & Chairman