-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, NdOv0ZL0Zo3OUpFy+yktawLbL7gXvDLntd+/4nk7Y94FWYP7XrJMxZDq0KeoeP74 VWsvbA6BLhh6ANP/chRKrA== 0001017062-01-000628.txt : 20010329 0001017062-01-000628.hdr.sgml : 20010329 ACCESSION NUMBER: 0001017062-01-000628 CONFORMED SUBMISSION TYPE: S-3 PUBLIC DOCUMENT COUNT: 9 FILED AS OF DATE: 20010328 FILER: COMPANY DATA: COMPANY CONFORMED NAME: SEMOTUS SOLUTIONS INC CENTRAL INDEX KEY: 0000832370 STANDARD INDUSTRIAL CLASSIFICATION: TELEPHONE & TELEGRAPH APPARATUS [3661] IRS NUMBER: 954599440 STATE OF INCORPORATION: NV FISCAL YEAR END: 0331 FILING VALUES: FORM TYPE: S-3 SEC ACT: SEC FILE NUMBER: 333-57772 FILM NUMBER: 1582390 BUSINESS ADDRESS: STREET 1: 1735 TECHNOLOGY DRIVE STREET 2: STE 790 CITY: SAN JOSE STATE: CA ZIP: 95110 BUSINESS PHONE: 4083671700 MAIL ADDRESS: STREET 1: 1735 TECHNOLOGY DRIVE STREET 2: SUITE 790 CITY: SAN JOSE STATE: CA ZIP: 95110 FORMER COMPANY: FORMER CONFORMED NAME: DATALINK NET INC DATE OF NAME CHANGE: 19990707 FORMER COMPANY: FORMER CONFORMED NAME: DATALINK SYSTEMS CORP /CA/ DATE OF NAME CHANGE: 19960723 FORMER COMPANY: FORMER CONFORMED NAME: PLATINUM PRODUCTIONS INC /CO DATE OF NAME CHANGE: 19930803 S-3 1 0001.txt FORM S-3 UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 ---------------- Form S-3 REGISTRATION STATEMENT Under THE SECURITIES ACT OF 1933 SEMOTUS SOLUTIONS, INC. (Formerly Datalink.net, Inc.) ----------------------------------- (Exact Name of Registrant as Specified in its Charter) Nevada 36-3574355 (State or other jurisdiction of (I.R.S. Employer incorporation or organization) Identification No.) 1735 Technology Drive, Suite 790, San Jose, California 95110 (408) 367-1700 ----------------------------------- (Address, Including Zip Code, and Telephone Number, Including Area Code, of Registrant's Principal Executive Offices) Anthony N. LaPine, President 1735 Technology Drive, Suite 790, San Jose, California 95110 (408) 367-1700 ----------------------------------- (Name, Address and Telephone Number of Agent for Service) Copy to: Taliesin Durant, Esq. General Counsel and Corporate Secretary Datalink.net, Inc. 1735 Technology Drive, Suite 790 San Jose, California 95110 Approximate date of commencement of proposed sale to the public: As soon as practicable after the effective date of this registration statement. If the only securities being registered on this form are being offered pursuant to dividend or interest reinvestment plans, please check the following box: [_] If any of the securities being registered on this form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box: [X] If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering: [_] If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier registration statement for the same offering: [_] If delivery of the prospectus is expected to be made pursuant to Rule 434, please check the following box: [_]
CALCULATION OF REGISTRATION FEE - ----------------------------------------------------------------------------------------------------------------- Proposed Maximum Proposed Maximum Title of Each Class of Amount to be Offering Price Aggregate Offering Amount of Securities to be Registered Registered Per Share Price Registration Fee Common Stock, $.01 427,420 (1) $ 2.15 $918,953.00 $ 229.74 Par Value - -----------------------------------------------------------------------------------------------------------------
(1) Based upon the average of the high and low sale price of the common stock as reported by the American Stock Exchange on March 22, 2001, estimated solely for the purpose of calculating the registration fee in accordance with Rule 457(c) under the Securities Act of 1933. THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a), MAY DETERMINE. PROSPECTUS SUBJECT TO COMPLETION DATED ________ ___, 2001 The information in this prospectus is not complete and may be changed. The securities may not be sold until the registration statement filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell these securities and it is not soliciting an offer to buy these securities in any state where the offer or sale is not permitted. SEMOTUS SOLUTIONS, INC. [LOGO] 427,420 SHARES OF COMMON STOCK _____________________________ This prospectus relates to the possible offer and sale from time to time of up to 427,420 shares of common stock, par value $0.01 by the "selling stockholders" identified in this prospectus. We will not receive any proceeds from the sale of the shares of common stock offered by the selling stockholders. We are registering the offer and sale of these shares in order to provide the selling stockholders with freely tradable securities, but the registration of such shares does not necessarily mean that any of the shares will be offered or sold by the selling stockholders. Our shares of common stock are traded on the American Stock Exchange under the symbol "DLK". On March 22, 2001, the closing sale price of our common stock was $2.15. As of March 22, 2001, the year high and low closing prices for our common stock were $42.00 and $1.875, respectively. This investment involves a high degree of risk. You should purchase shares only if you can afford a complete loss. See "Risk Factors" beginning on page 6. NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR DETERMINED IF THIS PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE. The information in this prospectus is not complete and may be changed. A registration statement relating to these securities has been filed with the Securities and Exchange Commission. No one may sell these securities nor may offers to buy be accepted until the registration statement filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell these securities and is not soliciting an offer to buy these securities in any state where the offer, solicitation or sale is not permitted. __________________________ THE DATE OF THIS PROSPECTUS IS _____________, 2001 TABLE OF CONTENTS
Page ---- COMPANY SUMMARY.......................................................... 3 RISK FACTORS............................................................. 4 USE OF PROCEEDS......................................................... 9 SELLING STOCKHOLDERS.................................................... 9 PLAN OF DISTRIBUTION.................................................... 11 DESCRIPTION OF SECURITIES............................................... 13 LEGAL MATTERS........................................................... 14 EXPERTS ................................................................ 14 INCORPORATION OF CERTAIN INFORMATION BY REFERENCE....................... 14 AVAILABLE INFORMATION................................................... 15
YOU SHOULD RELY ONLY ON THE INFORMATION CONTAINED IN THIS PROSPECTUS. WE HAVE NOT AUTHORIZED ANYONE TO PROVIDE YOU WITH INFORMATION THAT IS DIFFERENT FROM THAT CONTAINED IN THIS PROSPECTUS. THE SELLING STOCKHOLDERS ARE OFFERING TO SELL AND SEEKING OFFERS TO BUY, SHARES OF OUR COMMON STOCK ONLY IN JURISDICTIONS WHERE OFFERS AND SALES ARE PERMITTED. THE INFORMATION CONTAINED IN THIS PROSPECTUS IS ACCURATE ONLY AS OF THE DATE OF THIS PROSPECTUS, REGARDLESS OF THE TIME OF DELIVERY OF THIS PROSPECTUS OR OF ANY SALE OF OUR COMMON STOCK. IN THIS PROSPECTUS, "SEMOTUS SOLUTIONS," "WE," "US" AND "OUR" REFER TO SEMOTUS SOLUTIONS, INC. AND OUR SUBSIDIARIES (UNLESS THE CONTEXT OTHERWISE REQUIRES). 2 COMPANY SUMMARY Semotus Solutions, Inc. changed its named from Datalink.net, Inc. as of January 11, 2001. Semotus Solutions, originally Datalink Systems Corporation, was formed under the laws of the State of Nevada on June 18, 1996. On June 27, 1996, we went public through an acquisition of a public corporation, Datalink Communications Corporation ("DCC"), which was previously Lord Abbott, Inc., a Colorado corporation formed in 1986. Our corporate headquarters are located at 1735 Technology Drive, Suite 790, San Jose California 95110. Our telephone number is (408) 367-1700 and our world wide web site is www.semotus.com. - --------------- Semotus Solutions is a wireless infrastructure company providing end-to-end mobile data solutions to enterprises for their employees and their customers. We enable enterprises and consumers to customize, interact with and respond to critical business data utilizing the new generation of wireless devices. We leverage our core patented XpressLink(TM) technology across the high demand vertical markets of finance, medical and mobile workforce through our growth of market leading technology, and through acquisitions of established companies providing products and services to which Semotus Solutions can contribute value through wireless enhancement. Recent acquisitions include Cross Communications, Inc., Simkin, Inc., ISS, Inc. dba WaresOnTheWeb.com, and together Five Star Advantage, Inc. and Tech-ni-comm, Inc. Through the acquisitions of these companies, which are now wholly owned subsidiaries of Semotus Solutions, we also have significant business interests in the medical, e-commerce and e- fullfillment markets. We offer specialized wireless solutions designed to expand the market reach for all enterprises. We have developed a suite of wireless enablement products and services that give Internet marketers and corporate enterprises a wireless outreach. Currently, our enterprise business solutions suite includes: Wireless Bookmark(TM); Auction Engine(TM); Content Engine(TM); Transaction Engine(TM); Intranet Productivity Tool(TM); Custom Wireless Application(TM); and Global Market Pro(TM). Global Market Pro, an advanced wireless application for financial professionals that was co-developed with J.P. Morgan Chase, is being marketed to traders and financial professionals at banks and financial institutions. Our consumer product line focuses on the device owner as the customer. These products allow customers to receive customized information from real-time data feeds, receive and send messages and other information, as well as set their own parameters for data they wish to receive. Real-time stock quotes, news and sports are a few examples of the information that customers can receive at scheduled times, intervals or as event driven alerts. Our current line of consumer products includes: QuoteXpress(R), SplitXpress(TM), CompanyNews, MailXpress(TM), MessageX(TM), RumorXpress(TM), InfoXtraII(TM), Net2Go(TM) and RelayXpress(TM). 3 RISK FACTORS Investing in the shares is very risky. You should be able to bear a complete loss of your investment. In deciding whether to purchase the shares, you should carefully consider the following factors, among others, as well as information contained in this prospectus, our most recent annual report on Form 10-KSB, and the other documents incorporated by reference into this prospectus: WE HAVE HISTORICALLY INCURRED LOSSES AND THESE LOSSES MAY INCREASE IN THE FUTURE. We have recorded a net loss for each year since our current business started in 1996 through our fiscal year ended March 31, 2000. As of December 31, 2000, we had an accumulated deficit of $37,404,734. Additionally, we had a reported loss of approximately $7,720,655 for the nine months ended December 31, 2000. Because we expect to continue to incur significant sales and marketing, systems development and administrative expenses, we will need to generate significant revenue to become profitable and sustain profitability on a quarterly or annual basis. We may not achieve or sustain our revenue or profit goals and our losses may continue or grow in the future. As a result, we may not be able to increase revenue or achieve profitability on a quarterly or annual basis. THERE IS NO ESTABLISHED MARKET FOR WIRELESS DATA SERVICES AND WE MAY NOT BE ABLE TO SELL ENOUGH OF OUR SERVICES TO BECOME PROFITABLE. The markets for wireless data services are still emerging and continued growth in demand for and acceptance of these services remains uncertain. Current barriers to market acceptance of these services include cost, reliability, functionality and ease of use. We cannot be certain that these barriers will be overcome. Our competitors may develop alternative wireless data communications systems that gain broader market acceptance than our systems. If the market for our services does not grow or grows more slowly than we currently anticipate, we may not be able to attract customers for our services and our revenues would be adversely affected. OUR RECENT ACQUISITIONS MAY NOT DELIVER THE VALUE WE PAID OR WILL PAY FOR THEM AND MAY RESULT IN EXCESSIVE EXPENSES IF WE DO NOT SUCCESSFULLY INTEGRATE THEM, OR IF THE COSTS AND MANAGEMENT RESOURCES WE EXPEND IN CONNECTION WITH THE INTEGRATIONS EXCEED OUR EXPECTATIONS. We expect that our recent acquisitions and any acquisitions we may pursue in the future will have a continuing, significant impact on our business, financial condition and operating results. The value of the companies that we acquire or invest in may be less than the amount we paid if there is: - a decline of their position in the respective markets they serve; or - a decline in general of the markets they serve. Our financial results may be adversely affected if: - we fail to assimilate the acquired assets with our pre-existing business; - we lose key employees of these companies or of SSI as a result of the acquisitions; - our management's attention is diverted by other business concerns; or - we assume unanticipated liabilities related to the acquired assets. OUR RECENT ACQUISITIONS MAY NOT DELIVER THE VALUE WE PAID OR WILL PAY FOR THEM AND MAY RESULT IN EXCESSIVE EXPENSES IF THERE ARE COSTS DUE TO SPECIFIC BUSINESS RISKS WITHIN OUR SUBSIDIARIES' VERTICAL MARKETS. The companies we have acquired or may acquire are subject to the business risks as described in this section, as well as additional business risks due to their respective vertical markets. For instance, Simkin, Inc., because it is in the healthcare 4 field, is subject to additional business risks such as a slow rate of adoption to new technologies; Five Star Advantage, Inc. and Wares On The Web, Inc., because they are both in the e-commerce and e-fullfillment markets, are subject to additional business risks such as the uncertainty of whether online sales will increase in the future. If our subsidiaries incur any of these risks, the businesses may not be as valuable as the amount we paid. Additionally, we cannot guarantee that we will realize the benefits or strategic objectives we are seeking to obtain by acquiring these companies. WE MAY NOT ACHIEVE PROFITABILITY IF WE ARE UNABLE TO MAINTAIN, IMPROVE AND DEVELOP THE WIRELESS DATA SERVICES WE OFFER. We believe that our future business prospects depend in part on our ability to maintain and improve our current services and to develop new ones on a timely basis. Our services will have to achieve market acceptance, maintain technological competitiveness and meet an expanding range of customer requirements. As a result of the complexities inherent in our service offerings, major new wireless data services and service enhancements require long development and testing periods. We may experience difficulties that could delay or prevent the successful development, introduction or marketing of new services and service enhancements. Additionally, our new services and service enhancements may not achieve market acceptance. If we cannot effectively maintain, improve and develop services we may not be able to recover our fixed costs or otherwise become profitable. IF WE DO NOT RESPOND EFFECTIVELY AND ON A TIMELY BASIS TO RAPID TECHNOLOGICAL CHANGE, OUR SERVICES MAY BECOME OBSOLETE AND WE MAY LOSE SALES. The wireless and data communications industries are characterized by rapidly changing technologies, industry standards, customer needs and competition, as well as by frequent new product and service introductions. Our services are integrated with wireless handheld devices and the computer systems of our customers. Our services must also be compatible with the data networks of wireless carriers. We must respond to technological changes affecting both our customers and suppliers. We may not be successful in developing and marketing, on a timely and cost-effective basis, new services that respond to technological changes, evolving industry standards or changing customer requirements. Our ability to grow and achieve profitability will depend, in part, on our ability to accomplish all of the following in a timely and cost-effective manner: - effectively use and integrate new wireless and data technologies; - continue to develop our technical expertise; - enhance our wireless data, engineering and system design services; - develop applications for new wireless networks; and - influence and respond to emerging industry standards and other changes. WE DEPEND UPON WIRELESS NETWORKS OWNED AND CONTROLLED BY OTHERS. IF WE DO NOT HAVE CONTINUED ACCESS TO SUFFICIENT CAPACITY ON RELIABLE NETWORKS, WE MAY BE UNABLE TO DELIVER SERVICES AND OUR SALES COULD DECREASE. Our ability to grow and achieve profitability partly depends on our ability to buy sufficient capacity on the networks of wireless carriers and on the reliability and security of their systems. We depend on these companies to provide uninterrupted and trouble free service and would not be able to satisfy our customers' needs if they failed to provide the required capacity or needed level of service. In addition, our expenses would increase and our profitability could be materially adversely affected if wireless carriers were to increase the prices of their services. WE MAY FAIL TO SUPPORT OUR ANTICIPATED GROWTH IN OPERATIONS WHICH COULD REDUCE DEMAND FOR OUR SERVICES AND MATERIALLY ADVERSELY AFFECT OUR REVENUE. 5 Our business strategy is based on the assumption that the number of subscribers to our services, the amount of information they want to receive and the number of services we offer will all increase. We must continue to develop and expand our systems and operations to accommodate this growth. The expansion and adaptation of our customer service and network operations center requires substantial financial, operational and management resources. We may be unable to expand our operations for one or more of the following reasons: - we may not be able to locate or hire at reasonable compensation rates qualified engineers and other employees necessary to expand our capacity; - we may not be able to obtain the hardware necessary to expand our capacity; - we may not be able to expand our customer service, billing and other related support systems; and - we may not be able to obtain sufficient additional capacity from wireless carriers. Due to the limited deployment of our services to date, the ability of our systems and operations to connect and manage a substantially larger number of customers while maintaining superior performance is unknown. Any failure on our part to develop and maintain our wireless data services as we experience rapid growth could significantly reduce demand for our services and materially adversely affect our revenue. WE DEPEND ON RECRUITING AND RETAINING KEY MANAGEMENT AND TECHNICAL PERSONNEL WITH WIRELESS DATA AND SOFTWARE EXPERIENCE AND WE MAY NOT BE ABLE TO DEVELOP NEW PRODUCTS OR SUPPORT EXISTING PRODUCTS IF WE CANNOT HIRE OR RETAIN QUALIFIED EMPLOYEES. Because of the technical nature of our products and the dynamic market in which we compete, our performance depends on attracting and retaining key employees. Competition for qualified personnel in the wireless data and software industries is intense and finding qualified personnel with experience in both industries is even more difficult. We believe there are only a limited number of individuals with the requisite skills in the field of wireless data communication, and it is becoming increasingly difficult to hire and retain these persons. We have a written employment agreement and key-man life insurance in the face amount of $3 million with Anthony N. LaPine, the Company's chairman, CEO and president. We do not have employment agreements or key-man life insurance with any other officer. The loss of Mr. LaPine or any other officer may have an adverse effect on our business and prospects by depriving us of the management services necessary to operate our business and achieve profitability. THERE IS NO ASSURANCE THAT WE WILL BE ABLE TO EFFECTIVELY COMPETE AGAINST CURRENT AND FUTURE COMPETITORS. OUR MARKET IS VERY COMPETITIVE. There are a number of competitors who are larger and have much greater resources than we do. Our competitors have more experienced people and larger facilities and budgets than we do. These competitors could use their resources to conduct greater amounts of research and development and to offer services at lower prices than we can. These factors may adversely affect our ability to compete by decreasing the demand for our products and services. WE MAY NEED TO RAISE ADDITIONAL FUNDS. These funds may not be available to us. Alternatively, raising additional funds may dilute your share ownership. We have met capital needs with private sales of securities. However, we cannot assure you that we will not need additional funds, that any needed funds will be available to us at all, or that any available funds will be given on acceptable terms. If we need additional funds, and are unable to raise them, we will not be able to continue our business operations. If we raise funds by selling equity securities, those sales may dilute your share ownership. If we raise funds by forming joint ventures with other companies, we may have to give up some of our rights to certain technologies, products or marketing territories. OUR PATENTS MAY NOT PROTECT US FROM COMPETITORS. 6 Costs of prosecuting and defending patent infringement claims could hurt our business. We currently own a number of patents related to our products, and have applied for additional patents. We are not certain whether any new patents will be granted in the future. Even if we receive additional patents, they may not provide us with protection from competitors. Our failure to obtain patent protection, or illegal use by others of any patents we have or may obtain could adversely affect our business, financial condition and operating results. In addition, the laws of certain foreign countries do not protect proprietary rights to the same extent as the laws of the United States. Claims for damages resulting from any such infringement may be asserted or prosecuted against us. The validity of any patents we have or obtain could also be challenged. Any such claims could be time consuming and costly to defend, diverting management's attention and our resources. WE MAY BE SUBJECT TO LIABILITY FOR TRANSMITTING INFORMATION, AND OUR INSURANCE COVERAGE MAY BE INADEQUATE TO PROTECT US FROM THIS LIABILITY. We may be subject to claims relating to information transmitted over systems we develop or operate. These claims could take the form of lawsuits for defamation, negligence, copyright or trademark infringement or other actions based on the nature and content of the materials. Although we carry general liability insurance, our insurance may not cover potential claims of this type or may not be adequate to cover all costs incurred in defense of potential claims or to indemnify us for all liability that may be imposed. DISRUPTION OF OUR SERVICES DUE TO ACCIDENTAL OR INTENTIONAL SECURITY BREACHES MAY HARM OUR REPUTATION CAUSING A LOSS OF SALES AND COULD INCREASE OUR EXPENSES. A significant barrier to the growth of wireless data services or transactions on the Internet or by other electronic means has been the need for secure transmission of confidential information. Our systems could be disrupted by unauthorized access, computer viruses and other accidental or intentional actions. We may incur significant costs to protect against the threat of security breaches or to alleviate problems caused by such breaches. If a third-party were able to misappropriate our users' personal or proprietary information or credit card information, we could be subject to claims, litigation or other potential liabilities that could materially adversely impact our revenue and may result in the loss of customers. 7 ANY TYPE OF SYSTEMS FAILURE COULD REDUCE SALES, OR INCREASE COSTS OR RESULT IN CLAIMS OF LIABILITY. Our existing wireless data services are dependent on real-time, continuous feeds. The ability of our subscribers to obtain data or make wireless transactions through our service requires timely and uninterrupted connections with our wireless network carriers. Any disruption could result in delays in our subscribers' ability to receive information or execute wireless transactions. There can be no assurance that our systems will operate appropriately if we experience a hardware or software failure or if there is an earthquake, fire or other natural disaster, a power or telecommunications failure, insurrection or an act of war. A failure in our systems could cause delays in transmitting data, and as a result we may lose customers or face litigation that could involve material costs and distract management from operating our business. AN INTERRUPTION IN THE SUPPLY OF PRODUCTS AND SERVICES THAT WE OBTAIN FROM THIRD PARTIES COULD CAUSE A DECLINE IN SALES OF OUR SERVICES. In designing, developing and supporting our wireless data services, we rely on wireless carriers, wireless handheld device manufacturers, content providers and software providers. These suppliers may experience difficulty in supplying us products or services sufficient to meet our needs or they may terminate or fail to renew contracts for supplying us these products or services on terms we find acceptable. Any significant interruption in the supply of any of these products or services could cause a decline in sales of our services unless and until we are able to replace the functionality provided by these products and services. We also depend on third parties to deliver and support reliable products, enhance their current products, develop new products on a timely and cost-effective basis and respond to emerging industry standards and other technological changes. In addition, we rely on the ability of our content providers to continue to provide us with uninterrupted access to the news and financial information we provide to our customers. The failure of third parties to meet these criteria, or their refusal or failure to deliver the information for whatever reason, could materially harm our business. NEW LAWS AND REGULATIONS THAT IMPACT OUR INDUSTRY COULD INCREASE OUR COSTS OR REDUCE OUR OPPORTUNITIES TO EARN REVENUE. We are not currently subject to direct regulation by the Federal Communications Commission or any other governmental agency, other than regulations applicable to businesses in general. However, in the future, we may become subject to regulation by the FCC or another regulatory agency. In addition, the wireless carriers who supply us airtime are subject to regulation by the FCC and regulations that affect them could increase our costs or reduce our ability to continue selling and supporting our services. OUR STOCK PRICE, LIKE THAT OF MANY TECHNOLOGY COMPANIES, MAY BE VOLATILE. We expect that the market price of our common stock will be volatile. We are involved in a highly visible, rapidly changing industry and stock prices in our industry and similar industries have risen and fallen in response to a variety of factors, including: - announcements of new wireless data communications technologies and new providers of wireless data communications; - acquisitions of or strategic alliances among providers of wireless data communications; - changes in recommendations by securities analysts regarding the results or prospects of providers of wireless data communications; and - changes in investor perceptions of the acceptance or profitability of wireless data communications. 8 WE DO NOT PLAN TO PAY ANY DIVIDENDS. Our shares should not be purchased by investors who need income from their holdings. We intend to retain any future earnings to fund the operation and expansion of our business. We do not anticipate paying cash dividends on our shares in the future. As a result, our common stock is not a good investment for people who need income from their holdings. THE RESALES OF OUR COMMON STOCK RECENTLY REGISTERED COULD HAVE A DEPRESSIVE EFFECT ON THE MARKET PRICE OF OUR SHARES. We recently registered 3,171,810 shares of common stock subject to resale by certain of our security holders. Up to 1,283,350 of those shares are issuable upon the exercise of warrants and up to 469,231 of those shares are issuable upon the conversion of Series B Convertible Preferred Stock. We are unable to predict the effect that sales of these shares may have on the then prevailing market price of our shares. It is likely that market sales of large amounts of our shares (or the potential for those sales even if they do not actually occur) will have the effect of depressing the market price of our shares. FORWARD-LOOKING STATEMENTS This prospectus, including the sections entitled "Prospectus Summary" and "Risk Factors," contains forward-looking statements within the meaning of Section 27A of the Securities Act and Section 21E of the Securities Exchange Act of 1934. These statements relate to future events of our future financial and operating performance and involve known and unknown risks, uncertainties and other factors that may cause our or our industry's actual results, levels of activity, performance or achievements to be materially different from that expressed or implied by these forward-looking statements. These risks and other factors include, among other things, those listed under "Risk Factors" and elsewhere in this prospectus. In some cases, you can identify forward-looking statements by terminology such as "may," "will," "should," "expects," "plans," "anticipates," "believes," "estimates," "predicts," "potential," "continue," "our future success depends," "seek to continue" or the negative of these terms or other comparable terminology. These statements are only predictions. Actual events or results may differ materially. In evaluating these statements, you should specifically consider various factors, including the risks outlined under "Risk Factors." These factors may cause our actual results to differ materially from any forward-looking statement. Although we believe that the expectations reflected in the forward-looking statements are reasonable, we cannot guarantee future results, levels of activity, performance or achievements. Moreover, neither we nor any other person assumes responsibility for the accuracy and completeness of these statements. We do not intend to update any of the forward-looking statements after the date of this prospectus to conform these statements to actual results except as requried by law. USE OF PROCEEDS We will not receive any proceeds from the sale of the common stock by the selling stockholders. We will receive $2.09 for each Warrant exercised. SELLING STOCKHOLDERS Certain stockholders may offer 427,420 shares of common stock for resale. The shares are being offered for the account of the stockholder in the table below and their donees or pledgees. The following table sets forth information concerning the selling stockholders, including: - the number of shares owned by the selling stockholder; and - the maximum number of shares issuable upon exercise of common stock purchase warrants; and - the number of shares offered by the selling stockholder. We have no knowledge of the intentions of any selling stockholder to actually sell any of the securities listed under the columns "Shares Offered". There are no material relationships between any of the selling stockholders and us other than as disclosed below. 9 Beneficial Ownership Before Offering ------------------------------------ - ------------------------------------------------------------------------------- Selling Stockholder Shares Owned Shares Offered ------------------- ------------ -------------- - ------------------------------------------------------------------------------- Jeff Gleckman (1) 550,000 150,000 - ------------------------------------------------------------------------------- Haefele, Flanagan & Co. p.c. (2) 29,420 29,420 - ------------------------------------------------------------------------------- Capital Management Internationale (3) 11,500 11,500 - ------------------------------------------------------------------------------- Steven S. Sadleir (3) 11,500 11,500 - ------------------------------------------------------------------------------- Vision Selling LLC (4) 40,000 40,000 - ------------------------------------------------------------------------------- FMG Marketing, Inc. (5) 35,000 35,000 - ------------------------------------------------------------------------------- SmallCaps Online Group, LLC (6) 150,000 (6) 150,000 (6) - ------------------------------------------------------------------------------- TOTAL 827,420 427,420 - ------------------------------------------------------------------------------- (1) In connection with a merger agreement by and among Semotus Solutions, Five Star Advantage, Inc., Jeff Gleckman, and Five Acquisition, Inc. (a wholly owned subsidiary of Semotus Solutions), and a merger agreement among Semotus Solutions, Tech-ni-comm, Inc., Jeff Gleckman, and Five Acquisition, Inc., whereby Semotus Solutions purchased Five Star Advantage, Inc. and Tech-ni-comm, Inc., Semotus Solutions issued 550,000 shares of restricted common stock to Jeff Gleckman, the 100% owner of Five Star Advantage, Inc. Jeff Gleckman is currently the President of Five Star Advantage, Inc., a Delaware corporation and wholly owned subsidiary of Semotus Solutions, Inc. (2) In connection with a settlement agreement dated February 15, 2001 by and among Haefele, Flanagan & Co. ("HFC") and ISS, Inc. dba WaresOnTheWeb.com ("Wares"), to settle the amount owed to HFC in connection with certain accounting services provided to Wares, now a wholly owned subsidiary of Semotus Solutions, Semotus Solutions issued 29,420 shares of restricted common stock to HFC. (3) In connection with a settlement agreement dated January 26, 2001 by and among Capital Management Internationale ("CMI") and Semotus Solutions, to settle the amount owed to CMI in connection with a broker agreement by and among CMI and Tech-ni-comm, Inc., Semotus Solutions issued a total of 23,000 shares of restricted common stock to CMI and Steven S. Sadlier. (4) In connection with a settlement agreement by and among Vision Selling LLC ("Vision") and Semotus Solutions dated March 19, 2001, to settle the amount owed to Vision pursuant to a consulting agreement by and among Vision and Wares dated June 12, 2000, Semotus Solutions issued 9,300 shares of restricted common stock to Vision. Additionally, in connection with a consulting agreement by and among Vision and Semotus Solutions, dated March 19, 2001, Semotus Solutions issued 30,700 shares of restricted common stock to Vision. (5) In connection with a settlement agreement by and among FMG Marketing, Inc. ("FMG") and Semotus Solution dated March 5, 2001, to settle the amount owed to FMG pursuant to a marketing agreement by and among FMG and Semotus Solutions dated June 13, 2000, Semotus Solutions issued 35,000 shares of restricted common stock to FMG. (6) In connection with a consulting services contract by and among SmallCaps Online Group, LLC and Semotus Solutions dated December 27, 2000, Semotus Solutions issued SmallCaps Online Group, LLC warrants to purchase up to 150,000 shares of common stock. Each warrant gives the holder the right to purchase one share of common stock at $2.09 per share. This prospectus includes all of the shares of common stock which are issuable upon the exercise of the warrants. The warrants to purchase 150,000 shares of common stock included in this prospectus are exercisable at any time until December 27, 2003. No information is given with respect to beneficial ownership after the offering because the number of shares held would be zero, or would be less than 1% of our common stock after the offering. 10 The information concerning the selling stockholders may change from time to time and will be set forth in supplements to this prospectus. PLAN OF DISTRIBUTION The purpose of this prospectus is to permit each selling stockholder to offer and sell up to 427,420 shares at such times and at such places as he chooses. The decision to sell any shares is within the sole discretion of the holder thereof. The distribution of the common stock by a selling stockholder may be effected from time to time in one or more transactions. Any of the common stock may be offered for sale, from time to time, by a selling stockholder, or by permitted transferees or successors of the selling stockholder, on the American Stock Exchange, or otherwise, at prices and on terms then obtainable, at fixed prices, at prices then prevailing at the time of sale, at prices related to such prevailing prices, or in negotiated transactions at negotiated prices or otherwise. The common stock may be sold by one or more of the following: * On the American Stock Exchange or any other national common stock exchange or automated quotation system on which our common stock is traded, which may involve transactions solely between a broker-dealer and its customers which are not traded across an open market and block trades. * Through underwriters, or through underwriting syndicates. * Through one or more dealers or agents (which may include one or more underwriters), including, but not limited to: a. Block trades in which the broker or dealer act as principal to facilitate the transactions. b. Purchases by a broker or dealer as principal and resale by such broker or dealer for its account pursuant to this prospectus. c. Ordinary brokerage transactions. d. Transactions in which the broker solicits purchasers. * Directly to one or more purchasers * A combination of these methods. The names of any underwriters or agents involved in the sale of the common stock will be set forth in a prospectus supplement. In connection with the distribution of the common stock or otherwise, the selling stockholder may enter into hedging transactions with broker-dealers or other financial institutions. In connection with such transactions, broker- dealers or other financial institutions may engage in short sales of shares in the course of hedging the positions they assume with the selling stockholder. A selling stockholder may also sell shares short and redeliver the shares to close out such short positions. A selling stockholder may also enter into options or other transactions with broker-dealers or other financial institutions which require the delivery to such broker-dealers or other financial institutions of the common stock, which shares such broker-dealers or financial institutions may resell pursuant to this prospectus, as supplemented or amended to reflect that transaction. A selling stockholder may also pledge the common stock registered hereunder to a broker-dealer or other financial institution and, upon a default, such broker-dealer or other financial institution may effect sales of the pledged shares pursuant to this prospectus, as supplemented or amended to 11 reflect such transaction. In addition, any common stock covered by this prospectus that qualifies for sale pursuant to Rule 144 under the Securities Act may be sold under Rule 144 rather than pursuant to this prospectus. The selling stockholders or their underwriters, dealers or agents may sell the common stock to or through underwriters, dealers or agents, and such underwriters, dealers or agents may receive compensation in the form of discounts or concessions allowed or reallowed. Underwriters, dealers, brokers or other agents engaged by the selling stockholders may arrange for other such persons to participate. Any fixed public offering price and any discounts and concessions may be changed from time to time. Underwriters, dealers and agents who participate in the distribution of the common stock may be deemed to be underwriters within the meaning of the Securities Act, and any discounts or commissions received by them or any profit on the resale of shares by them may be deemed to be underwriting discounts and commissions thereunder. The proposed amounts of the common stock, if any, to be purchased by underwriters and the compensation, if any, of underwriters, dealers or agents will be set forth in a prospectus supplement. 12 Unless granted an exemption by the Commission from Rule 10b-6 under the Exchange Act, or unless otherwise permitted under Rule l0b-6, a selling stockholder will not engage in any stabilization activity in connection with the Company's common stock, will furnish each broker or dealer engaged by a selling stockholder and each other participating broker or dealer the number of copies of this prospectus required by such broker or dealer, and will not bid for or purchase any common stock of the Company or attempt to induce any person to purchase any of the common stock other than as permitted under the Exchange Act. We will not receive any proceeds from any sales of the common stock. We shall use our best efforts to prepare and file with the Commission such amendments and supplements to the registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective and to comply with the provisions of the Securities Act with respect to the disposition of the common stock covered by the registration statement for the period required to effect the distribution of such common stock. We are paying certain expenses (other than commissions and discounts of underwriters, dealers or agents) incidental to the offering and sale of the common stock to the public, which are estimated to be approximately $4,453.25. If SSI is required to update this prospectus during such period, it may incur additional expenses in excess of the amount estimated above. In order to comply with certain state securities laws, if applicable, the common stock will be sold in such jurisdictions only through registered or licensed brokers or dealers. In certain states the shares of common stock may not be sold unless they have been registered or qualify for sale in such state or an exemption from registration or qualification is available and is complied with. DESCRIPTION OF SECURITIES We have 55,000,000 authorized shares of stock, consisting of 50,000,000 shares of common stock, having a par value of $.01 per share, and 5,000,000 shares of preferred stock, having a par value of $.001 per share. COMMON STOCK As of December 31, 2000, there were 15,732,344 shares of common stock outstanding. All outstanding shares of common stock are fully paid and non- assessable. Each share of common stock has an equal and ratable right to receive dividends when declared by the Board of Directors of SSI out of assets legally available for that purpose and subject to the dividend obligations of SSI to holders of any preferred stock then outstanding. In the event of a liquidation, dissolution or winding up of SSI the holders of common stock are entitled to share equally and ratably in the assets available for distribution after payment of all liabilities, and subject to any prior rights of any holders of preferred stock outstanding at that time. The holders of common stock have no preemptive, subscription, conversion or redemption rights, and are not subject to further calls or assessments of SSI. Each share of common stock is entitled to one vote in the election of directors and on all other matters submitted to a vote of stockholders. Our Articles of Incorporation provide that a holder of any class or series of stock entitled to vote in the election of directors shall be entitled to cumulate his votes, and may cast votes equal to the number of votes which (except for cumulative voting) he would be entitled to cast for the election of directors with respect to his shares of stock multiplied by the number of directors to be elected. Such shareholders may cast all such votes for a single director or allocate such votes to two or more directors as such shareholder sees fit. Under Nevada law, to exercise the right to cumulative voting, a shareholder must give Semotus Solutions written notice of his intent to do so at least 48 hours before the time fixed for the annual meeting. Such written notice must be given to the president or secretary of Semotus Solutions. 13 PREFERRED STOCK Preferred stock may be issued from time to time in one or more series, and the board of directors, without further approval of the stockholders, is authorized to fix the dividend rates and terms, conversion rights, voting rights, redemption rights and terms, liquidation preferences and any other rights, preferences, privileges and restrictions applicable to each series of preferred stock. The purpose of authorizing the board of directors to determine such rights, preferences, privileges and restrictions is to eliminate delays associated with a stockholder vote on specific issuances. The issuance of preferred stock, while providing flexibility in connection with possible acquisitions and other corporate purposes, could, among other things, adversely affect the voting power of the holders of common stock and, under some circumstances, make it more difficult for a third party to gain control of the Company. SERIES B CONVERTIBLE PREFERRED STOCK As of December 31, 2000, we had 469,231 shares of preferred stock outstanding, designated as series B convertible preferred stock. The preferred stock is convertible into common stock on a 2-for-1 basis. Holders of preferred stock are entitled to receive dividends equal to any dividends paid on the common stock. Holders of preferred stock are entitled to vote together with the holders of common stock on an "as-converted" basis. In the event of a liquidation or change of ownership of Semotus Solutions, holders of preferred stock are entitled to receive $13.00 per share prior to any distributions to be made to holders of common stock. The series B convertible preferred stock is subject to a right of first refusal held by Semotus Solutions. LEGAL MATTERS The legality of the shares offered hereby is being passed upon for us by: Greenberg Glusker Fields Claman Machtinger & Kinsella LLP 1900 Avenue of the Stars, Suite 2100 Los Angeles, California 90067. EXPERTS The annual financial statements incorporated by reference in this prospectus have been audited by BDO Seidman, LLP, independent certified public accountants, to the extent and for the periods set forth in their report, incorporated by reference herein, and are incorporated herein in reliance upon such report given upon the authority of that firm as experts in accounting and auditing. INCORPORATION OF CERTAIN INFORMATION BY REFERENCE The Securities and Exchange Commission allows us to "incorporate by reference" the information we file with them, which means that we can disclose important information to you by referring you to those documents that we have previously filed with the Commission or documents that we will file with the Commission in the future. The information incorporated by reference is considered to be part of this prospectus, and later information that we file with the Commission will automatically update and supersede this information. We incorporate by reference the documents listed below, and any future filings made with the Commission under Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, until we close this offering. The documents we incorporate by reference are: (a) Our annual report on Form 10-KSB for the fiscal year ended March 31, 2000 (SEC File No. 1-15569). (b) Our quarterly report on Form 10-QSB for the quarter ended December 31, 2000 (SEC File No. 1-15569). (c) Our quarterly report on Form 10-QSB for the quarter ended September 30, 2000 (SEC File No. 1-15569). 14 (d) Our quarterly report on Form 10-QSB for the quarter ended June 30, 2000 (SEC File No. 1-15569). (e) Our Form 8-Ks filed on October 16, 2000 and January 12, 2001, and its Form 8-K/A filed on January 9, 2001. (f) Our Proxy Statements for our Annual Meeting held on August 14, 2000 and the Special Meeting held on January 11, 2001. (g) The description of our shares contained in the registration statement on Form 8-A filed on December 15, 2000. All reports and other documents subsequently filed by us with the SEC pursuant to Sections 13(a), 13(c), 14 and 15(d) of the 1934 Exchange Act, prior to the filing of a post-effective amendment which indicates that all securities covered by this prospectus have been sold or which deregisters all such securities then remaining unsold, shall be deemed to be incorporated by reference herein and to be a part hereof from the date of the filing of such reports and documents. AVAILABLE INFORMATION We are subject to certain informational reporting requirements of the Exchange Act and accordingly file reports and other information with the Securities and Exchange Commission. These reports, proxy statements and other information may be read and copied at the SEC's Public Reference Room at 450 Fifth Street, N.W., Washington, DC 20549 at prescribed rates. You may obtain information on the operation of the Public Reference Room by calling the SEC at 1-800-SEC-0330. The SEC maintains an internet site (http://www.sec.gov) that contains reports, proxy and information statements and other information regarding registrants that file electronically. Additional updating information with respect to the securities covered herein may be provided in the future to purchasers by means of appendices to this prospectus. We have filed with the SEC in Washington, DC a registration statement under the 1933 Act with respect to the securities offered or to be offered hereby. This prospectus does not contain all of the information included in the registration statement, certain items of which are omitted in accordance with the rules and regulations of the SEC. For further information about Semotus Solutions and the securities offered hereby, reference is made to the registration statement and the exhibits thereto. The registration statement has been filed electronically through the SEC's Electronic Data Gathering, Analysis and Retrieval System and may be obtained through the SEC's Internet site (http://www.sec.gov.). We will provide without charge to each person to whom this prospectus is delivered, on the written or oral request of such person, a copy of any document incorporated herein by reference, excluding exhibits. Requests should be made to Semotus Solutions, Inc. 1735 Technology Drive, Suite 790, San Jose, California 95110, telephone (408) 367-1700, and directed to the attention of Charles K. Dargan, II, Chief Financial Officer. PART II. INFORMATION NOT REQUIRED IN PROSPECTUS ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION. The following expenses incurred in connection with the sale of the securities being registered will be borne by the Registrant. Other than the registration fee, the amounts stated are estimates. Registration Fees........................................ $ 253.25 Legal Fees and Expenses.................................. 1,500.00 15 Accounting Fees and Expenses.............................. 2,500.00 Miscellaneous............................................. 200.00 --------- TOTAL..................................................... $4,453.25 ITEM 15. INDEMNIFICATION OF OFFICERS AND DIRECTORS. The only statute, charter provision, bylaw, contract, or other arrangement under which any controlling person, director or officer of Semotus Solutions, Inc. is insured or indemnified in any manner against any liability which he may incur in his capacity as such, is as follows: (a) Subsection (1) of Section 78.751 of the Nevada Corporation Law empowers a corporation to "indemnify any person who is a party or is threatened to be made a party to any threatened pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, except an action by or in the right of the corporation, by reason of the fact that he is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses, including attorneys' fees, judgments, fines and amounts paid in settlement actually and reasonably incurred by him in connection with the action, suit or proceeding if he acted in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, does not, of itself, create a presumption that the person did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the corporation, and that, with respect to any criminal action or proceeding, he had reasonable cause to believe that his conduct was unlawful." Subsection (2) of Section 78.751 empowers a corporation to "indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the corporation to procure a judgment in its favor by reason of the fact that he is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against expenses, including amounts paid in settlement and attorneys' fees actually and reasonably incurred by him in connection with the defense or settlement of the action or suit if he acted in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the corporation. Indemnification may not be made for any claim, issue or matter as to which such a person has been adjudged by a court of competent jurisdiction, after exhaustion of all appeals therefrom, to be liable to the corporation or for amounts paid in settlement to the corporation, unless and only to the extent that the court in which the action or suit was brought or other court of competent jurisdiction determines upon application that in view of all the circumstances of the case, the person is fairly and reasonably entitled to indemnify for such expenses as the court deems proper." Subsection 78.751(3) further provides that "to the extent that a director, officer, employee or agent of a corporation has been successful on the merits or otherwise in defense of any action, suit or proceeding referred to in subsections 1 and 2, or in defense of any claim, issue or matter herein he must be indemnified by the corporation against expenses, including attorneys' fees, actually and reasonably incurred by him in connection with the defense." (b) Article VII of our Articles of Incorporation provides that we are authorized to indemnify directors, officers, employees and agents to the full extent allowed for under the Nevada Business Corporation Act. (c) Article XI of our Articles of Incorporation provides that no director, officer or stockholder of Semotus Solutions shall be personally liable for damages for breach of fiduciary duty as a director or officer; provided, that this provision shall not eliminate liability of a director or officer for acts or omissions involving intentional misconduct, fraud or a knowing violation of law or payments or distributions in violation of Nevada law. 16 ITEM 16. EXHIBITS. Exhibit Number Description ------ ----------- 4.1 Warrant to purchase up to 150,000 shares of common stock issued to SmallCaps Online Group, LLC dated December 27, 2000. 4.2 Settlement Agreement by and among Haefele, Flanagan & Co. and SSI dated February 15, 2001. 4.3 Settlement Agreement by and among Capital Management Internationale and SSI dated January 26, 2001. 4.4 Settlement agreement by and among FMG Marketing, Inc. and SSI dated March 5, 2001. 4.5 Settlement Agreement by and among Vision Selling LLC and SSI dated March 19, 2001. 4.6 Consulting services contract by and among SmallCaps Online Group, LLC and SSI dated December 27, 2000. 5.1 Opinion of Greenberg Glusker Fields Claman Machtinger & Kinsella LLP regarding the legality of the securities being registered. 23.1 Consent of BDO Seidman, LLP. 23.2 Consent of Greenberg Glusker Fields Claman Machtinger & Kinsella LLP (contained in Exhibit 5.1). 24.1 Power of Attorney (contained in the signature page hereof). ITEM 17. UNDERTAKINGS. The undersigned registrant hereby undertakes: (1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement: (i) To include any prospectus required by Section 10(a)(3) of the Securities Act, of 1993 (ii) To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post- effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) (Section 230.424(b) of this 17 chapter) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the "Calculation of Registration Fee", table in the effective registration statement. (iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement; Provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if the registration statement is on Form S-3 or Form S-8, and the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed by the registrant pursuant to Section 13 or Section 15(d) of the Securities Act of 1934 that are incorporated by reference in the registration statement. (2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of our annual report pursuant to section 13(a) or section 15(d) of the Securities Act of 1934 (and, where applicable, each filing of an employee benefit plan's annual report pursuant to section 15(d) of the Securities Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of Semotus Solutions pursuant to the foregoing provisions, or otherwise, Semotus Solutions has been advised that in the opinion of the Commission such indemnification is against public policy as expressed in the Securities Act of 1933 and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by Semotus Solutions of expenses incurred or paid by a director, officer or controlling person of Semotus Solutions in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, Semotus Solutions will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act of 1933 and will be governed by the final adjudication of such issue. 18 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, as amended, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this Registration Statement on Form S-3 to be signed on its behalf by the undersigned, hereunto duly authorized, in San Jose, California, on March 28, 2001. By: /s/ Anthony N. LaPine Anthony N. LaPine, President and Chief Executive Officer POWER OF ATTORNEY KNOW ALL ME BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Anthony N. LaPine and Charles K. Dargan, II his true and lawful attorneys-in-fact and agents, each acting alone, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any or all amendments to this Registration Statement, including post-effective amendments, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents full power and authority to do and perform each and every act and thing requisite and necessary to be done, as fully to all intents and purposes as he might or could do in person, and hereby ratifies and confirms all his said attorneys-in-fact and agents, each acting alone, or his substitute or substitutes may lawfully do or cause to be done by virtue thereof. Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated:
SIGNATURES TITLE DATE ---------- ----- ---- /s/ Anthony N. LaPine Chief Executive Officer, President and March 28, 2001 Anthony N. LaPine Chairman of the Board /s/ Frederick M. Hoar Director March 28, 2001 Frederick M. Hoar /s/ Charles K. Dargan, II Chief Financial and Accounting Officer March 28, 2001 Charles K. Dargan, II and Director /s/ Jason Pavona Director March 28, 2001 Jason Pavona
S-1 EX-4.1 2 0002.txt WARRANT TO PURCHASE DATED 12/27/2000 EXHIBIT 4.1 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, CompaqFinancial Printing GroupNEITHER 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. (Formerly Datalink.net, Inc.) Incorporated Under the Laws of the State of Nevada No. A-1 150,000 Common Stock Purchase Warrants CERTIFICATE FOR COMMON STOCK PURCHASE WARRANTS 1. Warrants. This Warrant Certificate certifies that SmallCaps Online -------- Group, LLC, or registered assigns (the "Holder"), is the registered owner of the above-indicated number of Warrants expiring on December 27, 2003 ("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 $2.09 per share ("Exercise Price"), commencing December 27, 2000, and terminating on the Expiration Date ("Exercise Period"), upon surrender of this Warrant Certificate with the exercise form hereon duly completed and executed with payment of the Exercise Price at the offices of the Company, 1735 Technology Drive, Suite 790, San Jose, California 95110. 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. 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. 4. Expiration of Warrants. No Warrant may be exercised after 5:00 p.m. ---------------------- Pacific Time on the Expiration Date and any Warrant not exercised by such time shall become void, unless the Expiration Date of this Warrant is extended by the Company. 5. 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. 6. 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. 7. 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. 8. 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. 9. 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. 10. The Company shall give written notice to the Holder prior to filing an Underwritten Registration Statement or a Form S-1, S-2, S-3 or S-8 (the "Registration Statement"), advising that the Company is proceeding with a Registration Statement, and offering to include therein the common shares underlying the Holder's Warrant (the "Registrable Securities"). The Holder may, within ten days of the Company's notification of such a filing, request in writing that all or a portion of at least 25% of the Registrable Securities be included in the Registration Statement. If the Holder so elects, the Company shall use commercially reasonable efforts to effect such registration in a manner that permits the disposition of the Registrable Securities requested to be included in the Registration Statement. In the case of an Underwritten Offering, and if the managing underwriters advise the Company and such Holders in writing that in their opinion the amount of Registrable Securities proposed to be sold in such Underwritten Offering exceeds the amount of Registrable Securities which can be sold in such Underwritten Offering, there shall be included in such Underwritten Offering the amount of such Registrable Securities which in the opinion of such managing underwriters can be sold, and such amount shall be allocated pro rata among the Holders proposing to sell Registrable Securities in such Underwritten Offering. No Holder may participate in any Underwritten Offering hereunder unless such Holder (i) agrees to sell its Registrable Securities on the basis provided in any customary underwriting agreements approved by the Persons entitled hereunder to approve such arrangements and (ii) completes and executes all customary questionnaires, powers of attorney, indemnities, underwriting agreements and other customary documents required under the terms of such arrangements. The Company shall pay for the expenses in connection with the Registration Statement, including all registration, filing and NASD fees, all fees and expenses of complying with securities or blue sky laws, the fees and disbursements of counsel for the Company and its independent accountants, and any fees and disbursements of underwriters customarily paid by the issuers, but excluding any underwriting discounts and commissions and any transfer taxes. IN WITNESS WHEREOF, the Company has caused this Warrant to be signed by its President and by its Secretary. Dated as of: __________________ Semotus Solutions, Inc. Attest: _________________________________ By_______________________________________ Tali Durant, Secretary Anthony N. LaPine, President EX-4.2 3 0003.txt SETTLEMENT AGREEMENT DATED FEBRUARY 15, 2001 EXHIBIT 4.2 SETTLEMENT AND GENERAL RELEASE AGREEMENT ---------------------------------------- This Settlement and General Release Agreement ("Agreement") is entered into between Semotus Solutions, Inc. (formerly Datalink.net, Inc.) (hereinafter "Semotus") and Haefele, Flanagan & Co. (hereinafter "HFC"). HFC and Semotus agree as follows: RECITALS -------- A. HFC was hired by ISS, Inc. dba WaresOnTheWeb.com ("ISS"), a subsidiary of Semotus, to provide certain accounting services to ISS, and HFC did provide such accounting services to ISS, whereupon certain fees for these accounting services are now owed to HFC; and B. HFC and Semotus have entered into this Agreement to settle the compensation owed to HFC for such accounting services and any claim that Semotus and/or ISS have not paid the full consideration or compensation due for such services. AGREEMENT --------- WHEREFORE, the parties to this Agreement hereby agree as follows: 1. Semotus agrees to issue to HFC a total of sixty nine thousand seven hundred twenty five dollars ($69,725.00) worth of restricted common stock of Semotus, valued by using the close price of Semotus' common stock five trading days prior to the filing of a Registration Statement filed on Form S-3 with the SEC (the "S-3"). Semotus agrees to register this stock in its next S-3, such Statement to be filed expeditiously with the SEC but in no event later than March 28, 2001, which is the end of the next filing period. Semotus shall be responsible for all filing fees related to the S-3. The S-3 shall remain open for a minimum period of thirty days from the effective date of the registration of the securities issued where the then registered securities may be sold without any restrictions. This stock and the subsequent registration of it with the SEC, is for full settlement of the consideration owed for all services provided by HFC to ISS and for the release, as set forth below. If this Registration does not go effective, this Agreement, the securities issued pursuant to this Agreement and all its terms and conditions shall be null and void. HFC shall be responsible for payment of all taxes related to receipt of the consideration hereunder. 2. HFC and its current or former officers, directors, employees, agents, affiliates, predecessors, successors, assigns, subsidiaries and all persons acting through or with them (collectively referred to as "HFC Releasees") and Semotus, ISS, and its current or former officers, directors, employees, agents, affiliates, predecessors, successors, assigns, subsidiaries and all persons acting through or with them (collectively referred to as "Semotus Releasees"), hereby release, waive and forever discharge, individually and collectively, each other from any and all claims, rights, demands, liabilities, causes of action, losses, costs or expenses (including attorneys' fees) of any kind whatsoever, known or unknown, suspected or unsuspected, that either Party or its Releasees may now have or has ever had against the other prior to and including the date of this Agreement. This release includes, without limitation, all claims relating to any contract between the parties or its Releasees, whether express or implied, and its termination or breach; any claims for misrepresentation, fraud, or breach of any covenant of good faith and fair dealing; and any and all claims related to or in any manner incidental to either party's relationship with the other or its Releasees. If any agency or court already has assumed jurisdiction of any complaint or claim against any party or its Releasees, the party that filed such complaint or claim will direct that agency or court to withdraw from or dismiss the matter with prejudice. This document contains information that is confidential and is the property of Semotus Solutions, Inc. It may not be copied, published or used, in whole or in part, for any purposes other than as expressly authorized by Semotus. (C)Semotus Solutions 2001 All Rights Reserved. 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 HFC Releases against Semotus Releasees, and Semotus Releasees against HFC Releasees, and that this Agreement has been signed with the express intent of extinguishing all such claims. 3. 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 New York, in accordance with the Arbitration Rules of the American Arbitration Association ("AAA"). 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. HFC acknowledges and agrees that it has been advised that this Agreement is a binding legal document. HFC further agrees that has had adequate time and a reasonable opportunity to review the provisions of this Agreement and to seek legal advice regarding all its aspects, and that in executing this Agreement HFC has acted voluntarily and has not relied upon any representation made by the Semotus or any of its employees or representatives regarding the Agreement's subject matter and/or effect. HFC has read and fully understands this Agreement and voluntarily agrees to its terms. 7. HFC agrees not to disclose the fact or any of the terms of this Agreement to anyone except for its attorney, accountant and government taxing authorities, unless required to do so by court order. HFC further agrees not to make any negative or disparaging statements about Semotus or its employees or representatives to any third party, or to disclose any information that it became aware of as a result of its relationship with Semotus. 8. This agreement may be executed in counterparts, and each counterpart shall be deemed a duplicate original. AGREED AND UNDERSTOOD: SEMOTUS SOLUTIONS, INC. DATE: 2/15/01 By: /s/ Tali Durant Tali Durant General Counsel Haefele, Flanagan & Co. DATE: 2/15/01 By: /s/ Thomas P Fea Name: Thomas P Fea Jr. Title: President This document contains information that is confidential and is the property of Semotus Solutions, Inc. It may not be copied, published or used, in whole or in part, for any purposes other than as expressly authorized by Semotus. (C)Semotus Solutions 2001 All Rights Reserved. FORM OF ELECTION TO PURCHASE (To be executed by the Holder if he desires to exercise Warrants evidenced by the within Warrant Certificate) To Datalink.net, 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: _______________________________________________________ _______________________________________________________ _______________________________________________________ (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. EX-4.3 4 0004.txt SETTLEMENT AGREEMENT DATED JANUARY 26, 2001 EXHIBIT 4.3 SETTLEMENT AND GENERAL RELEASE AGREEMENT ---------------------------------------- This Settlement and General Release Agreement ("Agreement") is entered into between Semotus Solutions, Inc. (formerly Datalink.net, Inc.) (hereinafter "Semotus") and Capital Management International (hereinafter "CMI"). CMI and Semotus agree as follows: RECITALS -------- A. A Corporate Development Agreement was signed by and among CMI and Five Star Advantage (the "Contract"), whereby CMI provided certain corporate development and financing services to Five Star Advantage,and Semotus, upon acquiring Five Star Advantage, agreed to pay CMI for those services; and B. There was a dispute between the parties related to what the appropriate amount of compensation owed to CMI pursuant to the Contract should be; and C. CMI and Semotus have entered into this Agreement to settle the compensation terms of the Contract and any other existing or potential disputes relating to the Contract or any claim that Semotus and/or CMI have acted unlawfully, have not paid the full consideration or compensation due under the Contract, or have breached the terms of any contract, duty, policy, practice, law or regulation. AGREEMENT --------- WHEREFORE, the parties to this Agreement hereby agree as follows: 1. Semotus agrees to issue to CMI a total of twenty three thousand (23,000) shares of Semotus Solutions, Inc. restricted common stock upon the parties' execution of this Agreement; eleven thousand five hundred (11,500) shares shall be issued in the name of Capital Management Internationale; eleven thousand five hundred (11,500) shares shall be issued in the name of Steven S. Sadleir. Semotus also agrees to register this stock in its next S-3 Registration Statement, which will include the registration of a portion of Five Star Advantage's shares, such Statement to be filed with the SEC no later than March 28, 2001. This stock, and the subsequent registration of it with the SEC, is for full settlement of the consideration owed under the Contract and for the release, as set forth below. CMI shall be responsible for payment of all taxes related to receipt of the consideration hereunder. 2. CMI hereby releases, waives and forever discharges, individually and collectively, Semotus and Semotus's current or former officers, directors, employees, agents, affiliates, predecessors, successors, assigns, subsidiaries and all persons acting through or with them (hereinafter collectively referred to as "Releasees"), from any and all claims, rights, demands, liabilities, causes of action, losses, costs or expenses (including attorneys' fees) of any kind whatsoever, known or unknown, suspected or unsuspected, that CMI may now have or has ever had against Releasees prior to and including the date of this Agreement. This release includes, without limitation, all claims relating to any contract between the parties or Releasees, whether express or implied, and its termination or breach; any claims for misrepresentation, fraud, or breach of any covenant of good faith and fair dealing; and any and all claims related to or in any manner incidental to CMI's relationship with Semotus or the Releasees. If any agency or court already has assumed jurisdiction of any complaint or claim against Releasees, CMI will direct that agency or court to withdraw from or dismiss the matter with prejudice. This document contains information that is confidential and is the property of Semotus Solutions, Inc. It may not be copied, published or used, in whole or in part, for any purposes other than as expressly authorized by Semotus. (C) Semotus Solutions 2001 All Rights Reserved. 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 CMI against Releasees, and that this Agreement has been signed with the express intent of extinguishing all such claims. 3. 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"). 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. CMI acknowledges and agrees that it has been advised that this Agreement is a binding legal document. CMI further agrees that has had adequate time and a reasonable opportunity to review the provisions of this Agreement and to seek legal advice regarding all its aspects, and that in executing this Agreement CMI has acted voluntarily and has not relied upon any representation made by the Semotus or any of its employees or representatives regarding the Agreement's subject matter and/or effect. CMI has read and fully understands this Agreement and voluntarily agrees to its terms. 7. CMI agrees not to disclose the fact or any of the terms of this Agreement to anyone except for its attorney, accountant and government taxing authorities, unless required to do so by court order. CMI further agrees not to make any negative or disparaging statements about Semotus or its employees or representatives to any third party, or to disclose any information that it became aware of as a result of its relationship with Semotus. 8. This agreement may be executed in counterparts, and each counterpart shall be deemed a duplicate original. AGREED AND UNDERSTOOD: SEMOTUS SOLUTIONS, INC. DATE: 1/26/01 By: /s Tali Durant Tali Durant General Counsel CAPITAL MANAGEMENT INTERNATIONALE DATE: 1/25/01 By: /s/ William K. Lundy Name: William K. Lundy Title: President By: /s/ Steven Sadleir Name: Steven Sadleir Title: This document contains information that is confidential and is the property of Semotus Solutions, Inc. It may not be copied, published or used, in whole or in part, for any purposes other than as expressly authorized by Semotus. (C) Semotus Solutions 2001 All Rights Reserved. EX-4.4 5 0005.txt SETTLEMENT AGREEMENT DATED MARCH 5, 2001 EXHIBIT 4.4 SETTLEMENT AND GENERAL RELEASE AGREEMENT ---------------------------------------- This Settlement and General Release Agreement ("Agreement") is entered into between Semotus Solutions, Inc. (formerly Datalink.net, Inc.) (hereinafter "Semotus") and FMG Marketing, Inc. (hereinafter "FMG"). FMG and Semotus agree as follows: RECITALS -------- A. FMG and Semotus entered into a Marketing Agreement dated June 13, 2000, whereby FMG was hired by Semotus to provide certain marketing services to Semotus, and FMG did provide such marketing services to Semotus, whereupon certain fees for these marketing services are now owed to FMG; and B. FMG and Semotus have entered into this Agreement to settle the total compensation owed to FMG for such marketing services and any claim that Semotus has not paid the full consideration or compensation due for such services. AGREEMENT --------- WHEREFORE, the parties to this Agreement hereby agree as follows: 1. Semotus agrees to issue in the name of FMG Marketing, Inc., and send to its designated brokerage account, thirty five thousand (35,000) shares of restricted common stock, which is intended to be the approximate equivalent value of eighty thousand dollars ($80,000), which is the approximate outstanding balance Semotus owes to FMG as of the date of this agreement; 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 register this stock in its next S-3 Registration Statement, such Statement to be filed expeditiously with the SEC but in no event later than March 28, 2001, which is the end of the Company's next filing period. Within three business days of the Registration Statement going effective, FMG shall then sell these shares over a period of not less than seven business days and not more than five thousand shares per day. If the total value that FMG receives from the sale of these shares by May 1, 2001 is less than the outstanding balance owed to FMG at that time, Semotus shall make up the difference in cash; however, depending on the circumstances, FMG reserves the right to negotiate a new stock agreement with Semotus in lieu of cash. If the total value that FMG receives is greater than the outstanding balance owed to FMG at the time, the difference shall be credited towards Semotus for services by FMG or by an outside third party hired through FMG for the benefit of Semotus. Semotus' common stock issued to FMG, but only up to a total resale value of eighty thousand dollars, and the subsequent registration of it with the SEC, is for full settlement of the consideration owed for all services provided by FMG to Semotus under the Marketing Agreement signed on June 13, 2000 and for the release, as set forth below. FMG shall be responsible for payment of all taxes related to receipt of the consideration hereunder. 2. FMG hereby releases, waives and forever discharges, individually and collectively, Semotus, and its current or former officers, directors, employees, agents, affiliates, predecessors, successors, assigns, subsidiaries and all persons acting through or with them (hereinafter collectively referred to as "Releasees"), from any and all claims, rights, demands, liabilities, causes of action, losses, costs or expenses (including attorneys' fees) of any kind whatsoever, known or unknown, suspected or unsuspected, that FMG may now have or has ever had against Releasees prior to and including the date of this Agreement. This release includes, without limitation, all claims relating to any contract between the parties or Releasees, whether express or implied, and its termination or breach; any claims for misrepresentation, fraud, or breach of any covenant of good faith and fair dealing; and any and all claims related to or in any manner incidental to FMG's relationship with This document contains information that is confidential and is the property of Semotus Solutions, Inc. It may not be copied, published or used, in whole or in part, for any purposes other than as expressly authorized by Semotus. (C) Semotus Solutions 2001 All Rights Reserved. Semotus or the Releasees. If any agency or court already has assumed jurisdiction of any complaint or claim against Releasees, FMG will direct that agency or court to withdraw from or dismiss the matter with prejudice. 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 FMG against Releasees, and that this Agreement has been signed with the express intent of extinguishing all such claims. 3. 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"). 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. FMG acknowledges and agrees that it has been advised that this Agreement is a binding legal document. FMG further agrees that has had adequate time and a reasonable opportunity to review the provisions of this Agreement and to seek legal advice regarding all its aspects, and that in executing this Agreement FMG has acted voluntarily and has not relied upon any representation made by the Semotus or any of its employees or representatives regarding the Agreement's subject matter and/or effect. FMG has read and fully understands this Agreement and voluntarily agrees to its terms. 7. FMG agrees not to disclose the fact or any of the terms of this Agreement to anyone except for its attorney, accountant and government taxing authorities, unless required to do so by court order. FMG further agrees not to make any negative or disparaging statements about Semotus or its employees or representatives to any third party, or to disclose any information that it became aware of as a result of its relationship with Semotus. 8. This agreement may be executed in counterparts, and each counterpart shall be deemed a duplicate original. AGREED AND UNDERSTOOD: SEMOTUS SOLUTIONS, INC. DATE: /s/ March 2, 2001 By: /s/ Anthony LaPine Anthony LaPine President and CEO FMG Marketing, Inc. DATE: /s/ March 5, 2001 By: /s/ Gary Mitchem Name: Gary Mitchem Title: CFO This document contains information that is confidential and is the property of Semotus Solutions, Inc. It may not be copied, published or used, in whole or in part, for any purposes other than as expressly authorized by Semotus. (C) Semotus Solutions 2001 All Rights Reserved. EX-4.5 6 0006.txt SETTLEMENT AGREEMENT DATED MARCH 19, 2001 Exhibit 4.5 SETTLEMENT AND GENERAL RELEASE AGREEMENT This Settlement and General Release Agreement ("Agreement") is entered into between Semotus Solutions, Inc. (formerly Datalink.net, Inc.) (hereinafter "Semotus") and Vision Selling, LLC. (hereinafter "VS"). VS and Semotus agree as follows: RECITALS -------- A. VS and ISS, Inc. dba WaresOnTheWeb, Inc. ("Wares"), a wholly owned subsidiary of Semotus, entered into a Consulting Agreement dated June 12, 2000, whereby VS was hired by Wares to provide certain sales services to Wares, and VS did provide such services to Wares, whereupon certain fees for these services are now owed to VS; and B. VS and Semotus have entered into this Agreement to settle the total compensation owed to VS for such services provided to Wares, and any claim that Semotus and/or Wares has not paid the full consideration or compensation due for such services. AGREEMENT --------- WHEREFORE, the parties to this Agreement hereby agree as follows: 1. Semotus agrees to issue in the name of VS, nine thousand three hundred (9,300) shares of restricted common stock, which is intended to be the approximate equivalent value of twenty three thousand one hundred ninety seven dollars ($23,197), which is the outstanding balance Wares owes to VS as of the date of this Agreement; 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 register this stock in its next S-3 Registration Statement, such Statement to be filed expeditiously with the SEC but in no event later than March 28, 2001, which is the end of the Company's next filing period. Upon the effectiveness of such registration statement, VS agrees that it shall not sell more than three thousand shares a day. Semotus' common stock issued to VS, and the subsequent registration of it with the SEC, is for full settlement of the consideration owed for all services provided by VS to Wares under the Consulting Agreement signed on June 12, 2000 and for the release, as set forth below. VS shall be responsible for payment of all taxes related to receipt of the consideration hereunder. 2. VS hereby releases, waives and forever discharges, individually and collectively, Semotus and Wares, and their current or former officers, directors, employees, agents, affiliates, predecessors, successors, assigns, subsidiaries and all persons acting through or with them (hereinafter collectively referred to as "Releasees"), from any and all claims, rights, demands, liabilities, causes of action, losses, costs or expenses (including attorneys' fees) of any kind whatsoever, known or unknown, suspected or unsuspected, that VS may now have or has ever had against Releasees prior to and including the date of this Agreement. This release includes, without limitation, all claims relating to any contract between the parties or Releasees, whether express or implied, and its termination or breach; any claims for misrepresentation, fraud, or breach of any covenant of good faith and fair dealing; and any and all claims related to or in any manner incidental to VS's relationship with the Releasees. If any agency or court already has assumed jurisdiction of any complaint or claim against Releasees, VS will direct that agency or court to withdraw from or dismiss the matter with prejudice. This document contains information that is confidential and is the property of Semotus Solutions, Inc. It may not be copied, published or used, in whole or in part, for any purposes other than as expressly authorized by Semotus. (C) Semotus Solutions 2001 All Rights Reserved. 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 VS against Releasees, and that this Agreement has been signed with the express intent of extinguishing all such claims. 3. 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"). 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. VS acknowledges and agrees that it has been advised that this Agreement is a binding legal document. VS further agrees that has had adequate time and a reasonable opportunity to review the provisions of this Agreement and to seek legal advice regarding all its aspects, and that in executing this Agreement VS has acted voluntarily and has not relied upon any representation made by the Semotus or any of its employees or representatives regarding the Agreement's subject matter and/or effect. VS has read and fully understands this Agreement and voluntarily agrees to its terms. 7. VS agrees not to disclose the fact or any of the terms of this Agreement to anyone except for its attorney, accountant and government taxing authorities, unless required to do so by court order. VS further agrees not to make any negative or disparaging statements about Semotus or its employees or representatives to any third party, or to disclose any information that it became aware of as a result of its relationship with Semotus. 8. This agreement may be executed in counterparts, and each counterpart shall be deemed a duplicate original. AGREED AND UNDERSTOOD: SEMOTUS SOLUTIONS, INC. DATE: 3/19/01 By: /s/ Anthony LaPine Anthony LaPine President and CEO Vision Selling, LLC DATE: 3/19/01 By: /s/ Byron Druss Byron Druss President This document contains information that is confidential and is the property of Semotus Solutions, Inc. It may not be copied, published or used, in whole or in part, for any purposes other than as expressly authorized by Semotus. (C) Semotus Solutions 2001 All Rights Reserved. EX-4.6 7 0007.txt CONSULTING SERVICES CONTRACT DATED 12/27/2000 EXHIBIT 4.6 Consulting Agreement This Agreement is Effective as of this 23rd day of March, 2001, by and between SEMOTUS SOLUTIONS, INC., a Nevada corporation (hereinafter "Semotus"), with an address at1735 Technology Drive, Suite 790, San Jose, CA 95110, and VISION SELLING, LLC, a New Jersey Limited Liability Company, (hereinafter "Consultant" or "Independent Contractor"), with an address at 900 Briggs Road, Suite # 101A, Mount Laurel, NJ 08054. WHEREAS, the Consultant desires to provide services to Semotus, and Semotus desires to retain Consultant to provide such services for the compensation as set forth in Section 2 and in accordance with the terms and conditions specified in this Agreement. NOW, THEREFORE, Consultant and Semotus hereby agree as follows: Such services shall be rendered on a non-exclusive basis. Consultant shall act as an independent contractor to Semotus and not as an agent, employee, partner, affiliate, or co-joint venturer of Semotus. The terms of this Agreement are set out below: 1. Services. Independent Contractor will perform specific sales functions and -------- services. The scope of Independent Contractor's services hereunder shall be limited those described in Exhibit A; Independent Contractor's services does not extend to directly and/or solely presenting to or negotiating with Customers. Reports. Consultant shall furnish Semotus with such written reports of the services performed hereunder as Semotus shall reasonably require. Any reports prepared and furnished by Consultant to Semotus hereunder shall be the property of Semotus and may be used by Semotus without an additional charge. 2. Compensation. ------------ a. Semotus agrees to pay Independent Contractor for its services in the form of shares of restricted common stock, not to exceed a total amount of 30,700 shares. Semotus shall also file a Form S-3 Registration Statement (the "S-3") and include such shares in it. After such shares are registered under the S-3, Independent Contractor shall have the right to sell, pursuant to the S-3, seven thousand dollars ($7,000) worth of such shares per month; the value of the shares shall be based on the closing price of Semotus' common stock on the last day of each month. b. Semotus also agrees to issue Independent Contractor a total of fifty thousand (50,000) options to purchase shares of Semotus common stock with an exercise price equal to the Effective Date of this Agreement, and with contingent vesting, based on the revenues earned by Semotus, Cross Communications, Inc. and Wares On The Web, Inc. (together, the "Combined Entities"), and having the following vesting schedule: i. Fifty percent (50%), or twenty five thousand (25,000) options, shall vest at the end of the six month anniversary of the grant, if the Combined Entities' revenues in one full month, between and including Month's one through six, are greater than four hundred thousand dollars ($400,000); ii. Fifty percent (50%), or twenty five thousand (25,000) options, shall vest at the first annual anniversary date of the grant if the Combined Entities' revenues in one full month, between and including Month's seven through twelve, are greater than seven hundred and fifty thousand dollars ($750,000). Months one through twelve, above, are considered the full months, respectively, after the Effective Date of this Agreement. The compensation specified in this Paragraph 2 (a) and (b) shall constitute Consultant's sole compensation hereunder. 3. Expenses. Independent Contractor shall be responsible for all costs and -------- expenses incident to the performance of the services described hereunder, including but not limited to, all costs of its employees' salaries, equipment, hardware, software, fees, fines, licenses, taxes, communications, travel and all other costs of doing business. Subject to supervisor pre-approval, Semotus may reimburse Independent Contractor for out- of-pocket expenses incurred by Independent Contractor in performing its services hereunder. 4. Term and Termination. The term of this Agreement shall commence on the date -------------------- hereof and end twelve months thereafter. This Agreement may be renewed upon mutual written agreement of Independent Contractor and Semotus. Either party shall have the right to terminate this Agreement only during the first 90 days from the Effective date of this Agreement; any termination must be with 30 days prior written notice. Semotus agrees to pay Independent Contractor any fees specified in paragraph 2(a) if the events specified therein shall occur during the term of this Agreement. Independent Contractor agrees to return any unearned shares of stock that it was issued, or the money value of such shares (based on the closing price of the stock on the date Independent Contractor terminates or ceases work under this Agreement for any reason) to Semotus should Independent Contractor terminate this Agreement or cease providing its services under this Agreement for any reason. Any obligation pursuant to this Paragraph 4 shall survive the termination or expiration of this Agreement. 5. Non-Disclosure. Each party agrees that, except as compelled by law, it will -------------- not disclose the services or advice to be provided by Independent Contractor under this Agreement publicly or to any third party without the prior written approval of the other party. 6. No Authority to Bind. In providing the Services, Independent Contractor -------------------- acknowledges that it shall have no authority to bind Semotus in any respect. 7. Confidentiality. Any and all information, in any form, other than --------------- information intended for public distribution, given by Semotus to Independent Contractor shall be treated as confidential, whether or not it is labeled as such. This information shall be treated in a manner no less restrictive than the strictest procedures used by Independent Contractor to protect its own confidential information. Independent Contractor agrees not to disclose this information to others except to those employees, directors, agents, or representatives who are required to have the information in order to carry out the contemplated purposes described in this Agreement. Such purposes include dissemination of the business plan and other appropriate materials to potential acquisition candidates. Independent Contractor agrees to notify Semotus in writing of any misuse or misappropriation of such confidential information. Independent Contractor's obligation under this paragraph shall survive for two years after the termination of this Agreement. Any materials or documents which have been furnished to Independent Contractor in accordance to this Agreement will be promptly returned at Semotus's request, or upon termination of the Agreement. 8. Indemnification. Independent Contractor agrees to indemnify, defend and --------------- hold harmless Semotus, its affiliates, customers, employees, successors and assigns (all referred to as "Semotus") from and against any and all losses, damages, claims and expenses (including reasonable attorney's fees) that arise out of or result from any acts, statements, representations or guarantees made to a third party by Independent Contractor that are beyond the scope of this Agreement. Semotus agrees to indemnify, defend and hold harmless Independent Contractor, its affiliates, customers, employees, successors and assigns (all referred to as "Semotus") from and against any and all losses, damages, claims and expenses (including reasonable attorney's fees) that arise out of or result from any acts, statements, representations or guarantees made to a third party by Semotus that are beyond the scope of this Agreement. 9. Notice. All notices and other communications provided for hereunder shall ------ be in writing and shall be mailed, faxed or e-mailed to such party at its address as set forth below or at such other address as shall be designated by such party in a written notice complying with the terms set out in this Paragraph 8. Such notices shall be effective upon receipt. 10. Governing Law. This Agreement shall be governed by and construed in ------------- accordance with the laws of the State of California without regard to the conflict of laws or provisions thereof and may not be amended or modified except in a writing signed by both parties. 11. Binding Effect; Assignment. This Agreement and all rights, liabilities and -------------------------- obligations hereunder shall be binding upon and inure to the benefit of each party's successors, but may not be assigned without the prior written approval of the other party. 12. Entire Agreement. This Agreement represents the entire Agreement between ---------------- the parties and may not be modified or amended except in writing signed by both parties. 13. Severability. If any provision of this Agreement shall be held or made ------------ invalid by a status, rule, regulation, decision of a tribunal or otherwise, the remainder of this Agreement shall not be affected thereby and, to this extent, the provisions of this Agreement shall be deemed to be severable. 14. Arbitration. In the event a disagreement between the parties cannot be ----------- resolved, the parties mutually agree to resolve any conflicts through arbitration proceedings. Such arbitration shall be conducted before a single arbitrator and, except as otherwise set forth herein, shall be conducted in accordance with the then-existing rules of the Arbitration Association and judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction thereof; provided, however, that the law applicable to any such controversy shall be the law of California, regardless of its or any jurisdiction's choice of law principle. Arbitration shall take place at San Jose, California or any other location mutually agreeable to the parties. The arbitration award shall be specifically enforceable; judgment upon any arbitration award may be entered in any court with personal jurisdiction over the parties and subject matter of the disputes. 15. Miscellaneous. As used herein, references in the singular shall, as and if ------------- appropriate, include the plural. 16. Captions. All paragraph headings are for convenience of reference only, -------- and do not form part of this Agreement and shall not affect in any way the meaning or interpretation for this Agreement. 17. Survival. Sections 4 through 14 shall survive the termination or expiration -------- of this Agreement. 18. 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 Agreement as original signatures and shall be deemed valid, binding and enforceable by and against both parties. 19. Covenant Not-To-Hire-Consultants-Employees. Both Parties agree that, during ------------------------------------------ the term of this Agreement and / or the one (1) year period following the termination thereof, howsoever arising, neither Party shall, whether directly or indirectly, in any way for its own account of for the account or any other person, venture, firm, business, corporation or enterprise, as employee, officer, director, stockholder, proprietor, partner, or in any other capacity, offer employment to any employee, agent or representative of the other Party or attempt to induce or cooperate with any other party in an attempt to induce or entice any employee, agent or representative of the other Party to leave the employ of such Party. 20. Provision of a Wireless Device and Office Space. Semotus shall provide the ------------------------------------------------ Independent Contractor's President with one RIM 957 including its basic monthly operating fees. Consultant will have the option to use a dedicated private office at the Wares On The Web office in New Jersey, as needed, but Consultant shall work at Consultant's office otherwise. 21. Promotional. Consultant may refer to this Agreement and the fact that it is ------------ a consultant for Semotus in its normal promotional efforts, literature, web sites and email communications. Press Releases shall require prior contextual approval, in writing, by Semotus. Please confirm that the foregoing correctly sets forth our agreement by signing the enclosed letters in the space provided and returning them to use for execution, whereupon we will send you a fully executed original letter which shall constitute a binding agreement as of the date first written above. Vision Selling, LLC By:_______________________ Byron Druss President Date:_____________________ Agreed to and accepted as of the above date. Semotus Solutions, Inc. By:_______________________________ Anthony LaPine Chief Executive Officer Date:_____________________________ EXHIBIT A SERVICES Consultant shall perform the following sales services. Services include, but are not limited to: (a) Developing sales strategies and tactics in the form of goals, models and leadership. (b) Assisting in hiring and developing Sales & Marketing staff. (All final hiring decisions will be made by Semotus, and Semotus shall do any actual hiring itself) (c) Providing strategic assistance to the President of Semotus. (d) Participate in executive operations involving financing, mergers and other key planning issues effecting sales planning, execution and valuation. (e) Developing Service Level Agreements with Sales & Marketing vendors, including, but not limited to: I. Sales Force Automation vendor(s) II. Lead Generation or Telesales vendor(s) III. Staff Recruitment agencies IV. Professional Sales Trainers for Sales & Marketing Personnel V. Sales Team Effectiveness and Empowerment Training (All Agreements developed by Consultant shall not be binding and shall require final approval by Semotus. Consultant shall not have the authority to bind Semotus in any way, as set forth in Section 8 of this Agreement.) EX-5.1 8 0008.txt OPINION OF GREENBERG GLUSKER ET AL [LETTERHEAD OF GREENBERG GLUSKER FIELDS CLAMAN MACHTINGER & KINSELLA LLP] March 27, 2001 Semotus Solutions, Inc. 1735 Technology Drive, Suite 790 San Jose, CA 95110 Ladies and Gentlemen: We have acted as counsel to Semotus Solutions, Inc., a Nevada corporation (the "Company"), in connection with the preparation and filing with the Securities and Exchange Commission of a Registration Statement on Form S-3 (the "Registration Statement"), pursuant to which the Company is registering under the Securities Act of 1933, as amended, 277,420 shares (the "Shares") of its outstanding common stock, $.01 par value per share (the Common Stock), and 150,000 shares (the "Warrant Shares") subject to issuance upon the exercise of warrants. The Shares and the Warrant Shares are being sold by the selling stockholders identified in the Registration Statement. This opinion is being rendered in connection with the filing of the Registration Statement. In connection with this opinion, we have examined the Company's Articles of Organization and By-Laws, both as currently in effect; such other records of the corporate proceedings of the Company and certificates of the Company's officers as we have deemed relevant; and the Registration Statement and the exhibits thereto. In our examination, we have assumed the genuineness of all signatures, the legal capacity of natural persons, the authenticity of all documents submitted to us as originals, the conformity to 1 GREENBERG GLUSKER FIELDS CLAMAN MACHTINGER & KINSELLA LLP Semotus Solutions, Inc. March 27, 2001 Page 2 original documents of all documents submitted to us as certified, photostatic, facsimile or electronic copies and the authenticity of the originals of such copies. Based upon the foregoing, we are of the opinion that (i) the Shares have been duly and validly authorized and issued by the Company, and are fully paid and non-assessable shares of the Company's Common Stock, and (ii) the Warrant Shares have been duly and validly authorized and, when issued upon the exercise of the related warrants, will be duly and validly issued, fully paid and non- assessable shares of the Company's Common Stock. Our opinion is limited to the laws of the State of California, corporate laws of the State of Nevada and the federal laws of the United States of America, and we express no opinion with respect to the laws of any other jurisdiction. No opinion is expressed herein with respect to the qualification of the Shares under the securities or blue sky laws of any state or any foreign jurisdiction. The foregoing opinion is rendered as of the date hereof. We assume no obligation to update such opinion to reflect any facts or circumstances which may hereafter come to our attention or changes in the law which may hereafter occur. We understand that you wish to file this opinion as an exhibit to the Registration Statement, and we hereby consent thereto. We hereby further consent to the reference to us under the caption "Legal Matters" in the prospectus included in the Registration Statement. In giving this consent, we do not thereby admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act or the Rules and Regulations of the Commission. Very truly yours, GREENBERG GLUSKER FIELDS CLAMAN MACHTINGER & KINSELLA LLP 2 EX-23.1 9 0009.txt CONSENT OF BDO SEIDMA, LLP Exhibit 23.1 CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS Semotus Solutions, Inc. San Jose, CA We hereby consent to the incorporation by reference in the Registration Statement on Form S-3 of our report dated May 1, 2000, relating to the consolidated financial statements of Datalink.net appearing in the Annual Report on Form 10-KSB for the year ended March 31, 2000. We also consent to the reference to our firm under the caption "Experts" in the Registration Statement. /s/ BDO Seidman, LLP -------------------------------------- BDO Seidman, LLP San Jose, California March 28, 2001 -----END PRIVACY-ENHANCED MESSAGE-----