EXHIBIT 4.5
WARRANT AGREEMENT dated as of October 21, 1998 between
SMARTSERV ONLINE, INC., a Delaware corporation (the "Company"), and the
investors whose names appear on the signature page hereto (each, an "Investor"
and, collectively, the "Investors").
W I T N E S S E T H
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WHEREAS, the Investor has agreed, pursuant to a Securities
Purchase Agreement ("Agreement"), dated as of the date hereof, between the
Investors and the Company, to purchase Units described therein in connection
with the Company's proposed sale of four Units (the "Offering"); and
WHEREAS, each Unit contains warrants ("Warrants") to purchase
shares of Common Stock, $0.01 par value per share, of the Company ("Common
Stock").
NOW, THEREFORE, in consideration of the payment by each
Investor to the Company of ONE DOLLAR, the agreements herein set forth and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. GRANT. Each Investor is hereby granted the right to purchase the
number of shares set forth on such Investor's signature page to the Agreement
("Warrant Shares"), as such number may be adjusted pursuant hereto, at any time
from the date hereof until 5:30 p.m., New York time, on _______________, 2003
(the "Warrant Exercise Term"), at the Exercise Price. "Exercise Price" shall
initially mean $_____ per share as such price may be, from time to time,
adjusted pursuant to Section 7 hereof.
2. WARRANT CERTIFICATES. Simultaneous with the delivery of this Warrant
Agreement, the Company shall deliver to each Investor or each Investor's
designees, warrant certificates (the "Warrant Certificates") evidencing Warrants
to purchase the appropriate number of Warrant Shares. Each Warrant Certificate
delivered and to be delivered pursuant to this Agreement shall be in the form
set forth in Exhibit 1 attached hereto and made a part hereof, with such
appropriate insertions, omissions, substitutions and other variations as
required or permitted by this Agreement and shall be delivered without tax, cost
or other expense of any kind to each Investor. The Warrant Certificates, and the
certificates representing the Warrant Shares and/or other securities, property
or rights issuable upon exercise of the Warrants, shall be executed on behalf of
the Company by the manual or facsimile signature of the then present Chairman or
Vice Chairman of the Board of Directors or President or Vice President of the
Company attested to by the manual or facsimile signature of the then present
Secretary or Assistant Secretary of the Company. Warrant Certificates shall be
dated the date of execution by the Company upon initial issuance notwithstanding
any subsequent division, exchange, substitution or transfer.
3. EXERCISE OF WARRANT.
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3.1 METHOD OF EXERCISE. A Warrant Certificate may be exercised
by each Investor and/or other registered holders (collectively, the "Holders")
thereof by surrender of such Warrant Certificate with the annexed Form of
Election to Purchase duly executed, together with payment of the Exercise Price
by certified or official bank check in New York Clearing House funds for the
Warrant Shares purchased, at the Company's principal offices, currently at Xxx
Xxxxxxx Xxxxx, Xxxxxxxx, Xxxxxxxxxxx 00000. The Warrant Certificate may be
exercised to purchase all or part of the Warrant Shares covered thereby (but not
for fractional shares of Common Stock). In the event that any Warrant
Certificate is exercised to purchase less than all the Warrant Shares covered
thereby, the Company shall cancel said Warrant Certificate upon the surrender
thereof and shall execute and deliver a new Warrant Certificate of like tenor
for the balance of the Warrant Shares.
3.2 EXERCISE BY SURRENDER OF WARRANT. Warrants may also be
exercised, in full or in part, without cash payment, by surrendering the Warrant
Certificate with the annexed Form of Election to Purchase duly executed in
exchange for the number of shares of Common Stock equal to the product of (i)
the number of shares as to which the Warrants are being exercised multiplied by
(ii) a fraction, the numerator of which is the Market Price (as hereinafter
defined) of the Common Stock minus the Exercise Price and the denominator of
which is such Market Price. For the purposes of this Agreement, the phrase
"Market Price" at any date shall be deemed to be the last reported sale price,
or, in case no such reported sale takes place on such day, the average of the
last reported sale prices for the last five trading days, in either case as
officially reported by the principal securities exchange on which the Common
Stock is listed or admitted to trading, or, if the Common Stock is not listed or
admitted to trading on any national securities exchange, the average closing bid
price as furnished by the National Association of Securities Dealers, Inc.
("NASD") through The NASDAQ Stock Market ("Nasdaq"), the OTC Bulletin Board, or
a similar organization if Nasdaq is no longer reporting such information, or if
the Common Stock is not quoted on Nasdaq or such a similar organization, as
determined in good faith by resolution of the Board of Directors of the Company,
based on the best information available to it.
4. ISSUANCE OF CERTIFICATES. Upon the exercise of the Warrants, the
issuance of certificates for the Warrant Shares shall be made within five (5)
business days thereafter without charge to the Holder thereof including, without
limitation, any tax which may be payable in respect of the issuance thereof.
Such certificates shall be issued in the name of the Holder thereof. The Warrant
Certificates and the certificates representing the Warrant Shares shall be duly
executed on behalf of the Company. Warrant Certificates shall be dated the date
of initial issuance, division, exchange, substitution or transfer.
5. TRANSFER OF SECURITIES. Each Investor covenants and agrees that he
is acquiring the Warrants and the Warrant Shares (collectively, the "Warrant
Securities") for his own account, for investment, and not with a view to
distribution thereof. Holders of the Warrants or Warrant Shares may transfer
such Warrants or Warrant Shares only in compliance with applicable federal and
state securities laws. In order for any transferee of any Warrants or Warrant
Shares to receive any of the benefits of this Agreement, the Company must have
received notice of such
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transfer, at the address in Section 3.1 above, in the Form of Assignment annexed
hereto, accompanied by an opinion of counsel, which opinion and counsel shall be
reasonably acceptable to the Company, that an exemption from registration of
such Warrants or Warrant Shares under the Securities Act of 1933, as amended
(the "1933 Act"), and under any applicable state securities laws is available.
Any transferee must also covenant and agree that it is acquiring such Warrants
or Warrant Shares, as the case may be, as an investment and not with a view to
distribution thereof.
6. NO REGISTRATION UNDER THE 1933 ACT. The Warrant Securities have not
been registered under the 1933 Act or any state securities or "blue sky" laws
and may not be resold except pursuant to an effective registration statement
thereunder or exemption therefrom. The Warrant Certificates and certificates
representing the Warrant Shares shall bear the legend set forth below:
"The securities represented by this certificate have been issued
without registration under the Securities Act of 1933, as amended, or
under any state securities laws, and may not be sold, transferred or
pledged in the absence of an effective registration statement under
applicable federal and state securities laws, or an opinion of counsel,
that the transfer is exempt from registration under applicable federal
and state securities laws."
7. ADJUSTMENTS TO EXERCISE PRICE AND NUMBER OF SECURITIES.
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7.1 COMPUTATION OF ADJUSTED EXERCISE PRICE. Except as
hereinafter provided, in case the Company shall at any time after the date
hereof issue or sell any shares of Common Stock, including, without limitation,
shares held in the Company's treasury and shares of Common Stock issued upon the
exercise of any options, rights or warrants to subscribe for shares of Common
Stock and shares of Common Stock issued upon the direct or indirect conversion
or exchange of securities for shares of Common Stock, (i) for a consideration
per share less than the Exercise Price in effect immediately prior to the
issuance or sale of such shares or (ii) to officers, directors or holders of 5%
of more of the Company's outstanding Common Stock on a fully diluted basis for a
consideration per share less than the Market Price of a share of Common Stock on
the last business day immediately preceding the issuance or sale of such shares
(other than shares issued upon the exercise of options, rights or warrants
granted prior to the date hereof or issued upon the exercise of options granted
after the date hereof under the terms of the Company's stock option plan) or
(iii) without consideration, then forthwith upon such issuance or sale, the
Exercise Price shall (until another such issuance or sale) be reduced to the
lower of the prices (calculated to the nearest full cent) determined as follows:
(a) By dividing (i) an amount equal to the sum of (A) the number
of shares of Common Stock outstanding immediately prior to such issuance or sale
multiplied by the then existing Exercise Price, and (B) the aggregate amount of
the consideration, if any, received by the Company upon such issuance or sale,
by (ii) the total number of shares of Common Stock outstanding immediately after
such issuance or sale; and
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(b) By multiplying the Exercise Price in effect immediately prior
to the time of such issuance or sale by a fraction, the numerator of which shall
be the sum of (i) the number of shares of Common Stock outstanding immediately
prior to such issuance or sale multiplied by the Market Price of a share of
Common Stock on the last business day immediately preceding such issuance or
sale, plus (ii) the aggregate amount of the consideration received by the
Company upon such issuance or sale, and the denominator of which shall be the
product of (A) the total number of shares of Common Stock outstanding
immediately after such issuance or sale, multiplied by (B) such Market Price;
provided, however, that in no event shall the Exercise Price be adjusted
pursuant to the computations in this Section 7.1 to an amount in excess of the
Exercise Price in effect immediately prior to such computation, except in the
case of a combination of outstanding shares of Common Stock, as provided by
Section 7.3 hereof.
(c) For the purposes of any computation to be made in accordance
with this Section 7.1, the following provisions shall be applicable:
(1) In case of the issuance or sale of shares of Common Stock for
a consideration part or all of which shall be cash, the amount of the cash
consideration therefor shall be deemed to be the amount of cash received by the
Company for such shares (or, if shares of Common Stock are offered by the
Company for subscription, the subscription price, or, if shares of Common Stock
are sold to underwriters or dealers for public offering without a subscription
offering, the public offering price, before deducting therefrom any compensation
paid or discount allowed in the sale, underwriting or purchase thereof by
underwriters or dealers or others performing similar services, or any expenses
incurred in connection therewith) plus any amounts payable to security holders
or any affiliate thereof, including without limitation, any employment
agreement, royalty, consulting agreement, covenant not to compete, earnout or
contingent payment right or similar arrangement, agreement or understanding,
whether oral or written; all such amounts shall be valued at the aggregate
amount payable thereunder whether such payments are absolute or contingent and
irrespective of the period or uncertainty of payment, the rate of interest, if
any, or the contingent nature thereof except if the payment of such amounts has
been approved by the Placement Agent (as defined in the Agreement).
(2) In case of the issuance or sale (otherwise than as a dividend
or other distribution on any stock of the Company) of shares of Common Stock for
a consideration part or all of which shall be other than cash, the amount of the
consideration therefor other than cash shall be deemed to be the value of such
consideration as determined in good faith by the Board of Directors of the
Company.
(3) Shares of Common Stock issuable by way of dividend or other
distribution on any stock of the Company shall be deemed to have been issued
immediately after the opening of business on the day following the record date
for the determination of stockholders entitled to receive such dividend or other
distribution and shall be deemed to have been issued without consideration.
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(4) The reclassification of securities of the Company other than
shares of Common Stock into securities including shares of Common Stock shall be
deemed to involve the issuance of such shares of Common Stock for a
consideration other than cash immediately after the opening of business on the
day following the record date for the determination of security holders entitled
to receive such shares, and the value of the consideration allocable to such
shares of Common Stock shall be determined as provided in paragraph (2) of this
Section 7.1(c).
(5) The number of shares of Common Stock at any one time
outstanding shall include the aggregate number of shares issued or issuable
(subject to readjustment upon the actual issuance thereof) upon the exercise of
then outstanding options, rights, warrants and upon the conversion or exchange
of then outstanding convertible or exchangeable securities.
(6) No adjustment shall be made to the Exercise Price then in
effect upon the exercise of the Warrants or the conversion or exchange of
convertible or exchangeable securities outstanding as of the date hereof.
7.2 OPTIONS, RIGHTS, WARRANTS AND CONVERTIBLE AND EXCHANGEABLE
SECURITIES. In case the Company shall at any time after the date hereof grant or
issue options, rights or warrants to subscribe for shares of Common Stock, or
issue any securities convertible into or exchangeable for shares of Common
Stock, where the aggregate consideration per share is less than the Exercise
Price in effect immediately prior to the issuance of such options, rights or
warrants, or such convertible or exchangeable securities, the Exercise Price in
effect immediately prior to the issuance of such options, rights or warrants, or
such convertible or exchangeable securities, as the case may be, shall be
reduced to a price determined by making a computation in accordance with the
provisions of Section 7.1 hereof, provided that:
(a) The aggregate maximum number of shares of Common Stock, as
the case may be, issuable under such options, rights or warrants shall be deemed
to be issued and outstanding at the time such options, rights or warrants were
issued;
(b) The aggregate consideration for any such options, rights or
warrants shall be equal to the minimum purchase price per share provided for in
such options, rights or warrants at the time of issuance, plus the
consideration, if any, received by the Company for such options, rights or
warrants;
(c) The aggregate maximum number of shares of Common Stock
issuable upon conversion or exchange of any convertible or exchangeable
securities shall be deemed to be issued and outstanding at the time of issuance
of such securities;
(d) The aggregate consideration for any such convertible or
exchangeable securities shall be equal to the consideration received by the
Company for such securities, plus the minimum consideration, if any, receivable
by the Company upon the conversion or exchange thereof;
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(e) If any change shall occur in the exercise price per share
provided for in any of such options, rights or warrants or in the price per
share at which such convertible or exchangeable securities are convertible or
exchangeable, such options, rights or warrants or convertible or exchangeable
securities, as the case may be, shall be deemed to have expired or terminated on
the date when such price change became effective in respect of shares not
theretofore issued pursuant to the exercise or conversion or exchange thereof,
and the Company shall be deemed to have issued upon such date new options,
rights or warrants or convertible or exchangeable securities at the new price in
respect of the number of shares issuable upon the exercise of such options,
rights or warrants or the conversion or exchange of such convertible or
exchangeable securities; and
(f) In case there has been any adjustment hereunder in the
Exercise Price by reason of the offer, issue or sale of any subscription or
purchase rights or options or any convertible or exchangeable securities or
obligations and the purchase, conversion or exchange privilege so created
thereafter terminates unexercised or changes, such Exercise Price shall as of
the date of such termination or change be adjusted to reflect such termination
or change.
7.3 SUBDIVISION AND COMBINATION. In case the Company shall at any time
subdivide or combine the outstanding shares of Common Stock, the Exercise Price
shall forthwith be proportionately decreased in the case of subdivision or
increased in the case of combination.
7.4 ADJUSTMENT IN NUMBER OF SHARES. Upon each adjustment of the
Exercise Price pursuant to the provisions of this Section 7, the number of
Warrant Shares issuable upon exercise of the Warrants shall be adjusted to the
nearest full amount by multiplying a number equal to the Exercise Price in
effect immediately prior to such adjustment by the number of Warrant Shares
issuable upon exercise of the Warrants immediately prior to such adjustment and
dividing the product so obtained by the adjusted Exercise Price.
7.5 DEFINITION OF COMMON STOCK. For the purpose of this Agreement, the
term "Common Stock" shall mean (i) the class of stock designated as Common Stock
in the Certificate of Incorporation of the Company as such Certificate of
Incorporation may be amended as of the date hereof, or (ii) any other class of
stock resulting from successive changes or reclassifications of such Common
Stock consisting solely of changes in par value, or from par value to no par
value, or from no par value to par value.
7.6 MERGER OR CONSOLIDATION. In case of any consolidation of the
Company with, or merger of the Company with, or merger of the Company into,
another corporation (other than a consolidation or merger which does not result
in any reclassification or change of the outstanding Common Stock), the
corporation formed by such consolidation or merger shall execute and deliver to
each Holder a supplemental warrant agreement providing that the Holder of each
Warrant then outstanding or to be outstanding shall have the right thereafter
(until the expiration of such Warrant) to receive, upon exercise of such
Warrant, the kind and amount of shares of stock and other securities and
property receivable upon such consolidation or merger,
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by a holder of the number of shares of Common Stock of the Company for which
such Warrant might have been exercised immediately prior to such consolidation
or merger. Such supplemental warrant agreement shall provide for adjustments
which shall be identical to the adjustments provided in this Section 7. The
above provision of this subsection 7.6 shall similarly apply to successive
consolidations or mergers.
7.7 NO ADJUSTMENT OF EXERCISE PRICE IN CERTAIN CASES. No adjustment of
the Exercise Price shall be made:
(a) Upon the issuance of shares of Common Stock issuable upon
conversion of the Notes or exercise of the Warrants contained in Units sold in
the Offering;
(b) Upon the issuance of shares of Common Stock issuable upon
exercise or conversion of securities outstanding as of the date of this Warrant
Agreement;
(c) Upon the issuance of shares issued in respect of the
anti-dilution provisions of any securities of the Company; or
(d) If the amount of said adjustment shall be less than $0.01 per
Warrant Share; provided, however, that in such case any adjustment that would
otherwise be required then to be made shall be carried forward and shall be made
at the time of and together with the next subsequent adjustment which, together
with any adjustment so carried forward, shall amount to at least $0.01 per
Warrant Share.
7.8 DIVIDENDS AND OTHER DISTRIBUTIONS. In the event that the Company
shall at any time prior to the exercise of all Warrants declare a dividend
(other than a dividend consisting solely of shares of Common Stock) or otherwise
distribute to its stockholders any assets, property, rights, evidences of
indebtedness, securities (other than shares of Common Stock), whether issued by
the Company or by another, or any other thing of value, the Holders of the
unexercised Warrants shall thereafter be entitled, in addition to the shares of
Common Stock or other securities and property receivable upon the exercise
thereof, to receive, upon the exercise of such Warrants, the same property,
assets, rights, evidences of indebtedness, securities or any other thing of
value that they would have been entitled to receive at the time of such dividend
or distribution as if the Warrants had been exercised immediately prior to such
dividend or distribution. At the time of any such dividend or distribution, the
Company shall make appropriate reserves to ensure the timely performance of the
provisions of this Subsection 7.8.
8. EXCHANGE AND REPLACEMENT OF WARRANT CERTIFICATES. (a) Each Warrant
Certificate shall be exchangeable, upon the surrender thereof by the registered
Holder at the principal office of the Company and reimbursement to the Company
of all reasonable expenses incidental thereto, for a new Warrant Certificate of
like tenor and date representing in the aggregate the right to purchase the same
number of Warrant Shares in such denominations as shall be designated by the
Holder thereof at the time of such surrender.
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(b) Upon receipt by the Company of evidence reasonably
satisfactory to it of the loss, theft, destruction or mutilation of any Warrant
Certificate, and, in case of loss, theft or destruction, of indemnity or
security reasonably satisfactory to it, and reimbursement to the Company of all
reasonable expenses incidental thereto, and upon surrender and cancellation of
the Warrant Certificate, if mutilated, the Company shall make and deliver a new
Warrant Certificate of like tenor, in lieu thereof.
9. ELIMINATION OF FRACTIONAL INTERESTS. The Company shall not be
required to issue certificates representing fractions of shares of Common Stock
upon the exercise of the Warrants, nor shall it be required to issue scrip or
pay cash in lieu of fractional interests, it being the intent of the parties
that all fractional interests shall be eliminated by rounding any fraction to
the nearest whole number of shares of Common Stock or other securities,
properties or rights.
10. RESERVATION OF SECURITIES. The Company shall at all times reserve
and keep available out of its authorized shares of Common Stock, solely for the
purpose of issuance upon the exercise of the Warrants, such number of shares of
Common Stock or other securities, properties or rights as shall be issuable upon
the exercise thereof. The Company covenants and agrees that, upon exercise of
the Warrants and payment of the Exercise Price therefor, all shares of Common
Stock and other securities issuable upon such exercise shall be duly and validly
issued, fully paid, non-assessable and not subject to the preemptive rights of
any stockholder.
11. NOTICES TO WARRANT HOLDERS. Nothing contained in this Agreement
shall be construed as conferring upon the Holders the right to vote for, consent
to or receive notice as a stockholder in respect of, any meetings of
stockholders for the election of directors or any other matter, or to confer
upon the Holders any rights whatsoever as a stockholder of the Company. If,
however, at any time prior to the expiration of the Warrants and their exercise,
any of the following events shall occur:
(a) The Company intends to declare a dividend (other than a
dividend consisting solely of shares of Common Stock) or otherwise distribute to
its stockholders any assets (other than shares of Common Stock), whether issued
by the Company or by another, or any other thing of value; or
(b) The Company shall take a record of the holders of its
shares of Common Stock for the purpose of entitling them to receive a dividend
or distribution payable otherwise than in cash, or a cash dividend or
distribution payable otherwise than out of current or retained earnings, as
indicated by the accounting treatment of such dividend or distribution on the
books of the Company; or
(c) The Company shall offer to all the holders of its Common
Stock any additional shares of capital stock of the Company or securities
convertible into or exchangeable for shares of capital stock of the Company, or
any option right or warrant to subscribe therefor; or
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(d) A dissolution, liquidation or winding up of the Company
(other than in connection with a consolidation or merger) or a sale of all or
substantially all of its property, assets and business as an entirety shall be
proposed;
then, in any one or more of said events, the Company shall give written notice
of such event at least fifteen (15) days prior to the date fixed as a record
date or the date of closing the transfer books for the determination of the
stockholders entitled to such dividend, distribution, convertible or
exchangeable securities or subscription rights, or entitled to vote on such
proposed dissolution, liquidation, winding up or sale. Such notice shall specify
such record date or the date of closing the transfer books, as the case may be.
12. NOTICES. All notices, requests, consents and other communications
hereunder shall be in writing and shall be deemed to have been duly made when
delivered, or mailed by registered or certified mail, return receipt requested:
(a) If to a registered Holder of Warrants, to the address of
such Holder as shown on the books of the Company; or
(b) If to the Company, to the address set forth in Section 3.1
hereof or to such other address as the Company may designate by notice to the
Holders.
13. SUPPLEMENTS AND AMENDMENTS. Amendments to this Agreement may be
made only with the written consent of the Company and the Holders of a majority
of the Warrants.
14. SUCCESSORS. All the covenants and provisions of this Agreement
shall be binding upon and inure to the benefit of the Company and the Holders
and their respective successors and assigns hereunder.
15. TERMINATION. This Agreement shall terminate at the close of
business on the last date of the Warrant Exercise Term.
16. GOVERNING LAW; SUBMISSION TO JURISDICTION. (a) This Agreement and
each Warrant Certificate issued hereunder shall be deemed to be a contract made
under the laws of the State of New York and for all purposes shall be construed
in accordance with the laws of said State without giving effect to the rules of
said State governing the conflicts of laws.
(b) The Company and the Holders, by accepting Warrants issued
pursuant to this Agreement, hereby agree that any action, proceeding or claim
against it or them arising out of, or relating in any way to, this Agreement
shall be brought and enforced in the courts of the United States and the State
of New York, located in the City of New York, and shall be irrevocably submitted
to such jurisdiction, which jurisdiction shall be exclusive. The Company and the
Holders hereby irrevocably waive any objection to such exclusive jurisdiction or
inconvenient forum. Any process or summons to be served upon any of the Company
and the Holders (at the option of the party bringing such action, proceeding or
claim) may be served by transmitting a copy thereof, by registered or certified
mail, return receipt requested, postage
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prepaid, addressed to it at the address as set forth in Section 12 hereof. Such
mailing shall be deemed personal service and shall be legal and binding upon the
party so served in any action, proceeding or claim. The Company and the Holders
agree that the prevailing party(ies) in any such action or proceeding shall be
entitled to recover from the other party(ies) all of its/their reasonable legal
costs and expenses relating to such action or proceeding and/or incurred in
connection with the preparation therefor. THE COMPANY AND THE HOLDERS AGREE TO
WAIVE THEIR RIGHTS TO A JURY TRIAL ON ANY CLAIM OR CAUSE OF ACTION BASED UPON OR
ARISING OUT OF THIS AGREEMENT OR ANY DOCUMENT OR AGREEMENT CONTEMPLATED HEREBY.
17. ENTIRE AGREEMENT; MODIFICATION. This Agreement contains the entire
understanding among the parties hereto with respect to the subject matter hereof
and may not be modified or amended except as provided in Section 13 hereof or by
a writing duly signed by the party against whom enforcement of the modification
or amendment is sought.
18. SEVERABILITY. If any provision of this Agreement shall be held to
be invalid and unenforceable, such invalidity or unenforceability shall not
affect any other provision of this Agreement.
19. CAPTIONS. The caption headings of the Sections of this Agreement
are for convenience of reference only and are not intended, nor should they be
construed as, a part of this Agreement and shall be given no substantive effect.
20. BENEFITS OF THIS AGREEMENT. Nothing in this Agreement shall be
construed to give to any person or corporation other than the Company and the
Investors and any other registered Holder(s) of the Warrants or Warrant
Securities any legal or equitable right, remedy or claim under this Agreement;
and this Agreement shall be for the sole and exclusive benefit of the Company
and the Investors and any other Holder(s) of the Warrants or Warrant Shares.
This Agreement shall not be assignable, except as expressly permitted herein.
21. COUNTERPARTS. This Agreement may be executed in any number of
counterparts and each of such counterparts shall for all purposes be deemed to
be an original, and such counterparts shall together constitute but one and the
same instrument.
[Signature Page follows]
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IN WITNESS WHEREOF, the parties hereto have caused this
Warrant Agreement to be duly executed, as of the day and year first above
written.
SMARTSERV ONLINE, INC.
By______________________________
Title:
[NEXT PAGE IS INVESTOR'S SIGNATURE PAGE]
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SIGNATURE PAGE TO WARRANT AGREEMENT, DATED OCTOBER 21, 1998,
AMONG SMARTSERV ONLINE, INC. AND THE INVESTOR NAMED BELOW,
AMONG OTHERS
IN WITNESS WHEREOF, the Investor has executed this Warrant
Agreement this ___ day of ______________, 1998.
----------------- (divided by) $------ = -------------------
Amount of Notes Warrants contained
In Units being Purchased
If the Investor is an INDIVIDUAL, and if purchased as JOINT
TENANTS, as TENANTS IN COMMON, or as COMMUNITY PROPERTY:
------------------------------- -------------------------------
Print Name(s) Social Security Number(s)
------------------------------- -------------------------------
Signature(s) of Purchaser(s)
------------------------------- -------------------------------
Date Address
If the Investor is a PARTNERSHIP, CORPORATION or TRUST:
------------------------------- -------------------------------
Name of Partnership, Federal Taxpayer
Corporation or Trust Identification Number
-------------------------------
Date
By:_____________________________ ________________________________
Name: State of Organization
Title:____________________________ _________________________________
Address
EXHIBIT 1
[FORM OF WARRANT CERTIFICATE]
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ISSUED
WITHOUT REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR UNDER ANY
STATE SECURITIES LAWS, AND MAY NOT BE SOLD, TRANSFERRED OR PLEDGED IN THE
ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER APPLICABLE FEDERAL AND
STATE SECURITIES LAWS, OR AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY,
THAT THE TRANSFER IS EXEMPT FROM REGISTRATION UNDER APPLICABLE FEDERAL AND STATE
SECURITIES LAWS.
THE TRANSFER OR EXCHANGE OF THE WARRANTS REPRESENTED BY THIS
CERTIFICATE IS RESTRICTED IN ACCORDANCE WITH THE WARRANT AGREEMENT REFERRED TO
HEREIN.
No. W- _______ Warrants
WARRANT CERTIFICATE
This Warrant Certificate certifies that ______________ is the
registered holder of ___________ Warrants each to purchase initially, at any
time after the date hereof until 5:30 p.m. New York time on ______________, 2003
(the "Expiration Date"), one fully paid and non-assessable share of Common
Stock, par value $0.01 per share ("Common Stock"), of the Company at the initial
exercise price, subject to adjustment in certain events (the "Exercise Price"),
of $______ per share upon surrender of this Warrant Certificate and payment of
the Exercise Price at an office or agency of the Company, or by surrender of
this Warrant Certificate in lieu of cash payment, but subject to the conditions
set forth herein and in the Warrant Agreement dated as of October 21, 1998
between the Company and the Investors named therein (the "Warrant Agreement").
Capitalized terms not otherwise defined herein shall have the meanings ascribed
to them in the Warrant Agreement. Payment of the Exercise Price shall be made by
certified or official bank check in New York Clearing House finds payable to the
order of the Company or by any other method permitted by the Warrant Agreement.
No Warrant may be exercised after 5:30 p.m., New York time, on
the Expiration Date, at which time all Warrants evidenced hereby, unless
exercised prior thereto, shall thereafter be void.
The Warrants evidenced by this Warrant Certificate are part of
a duly authorized issue of Warrants issued pursuant to the Warrant Agreement,
which Warrant Agreement is hereby incorporated by reference in, and made a part
of, this instrument and is hereby referred to for a description of the rights,
limitation of rights, obligations, duties and immunities thereunder of the
Company, the Investors and the holders (the words "holders" or "holder" meaning
the registered holder or registered holders) of the Warrants.
A-1
Upon due presentment for registration of transfer of this
Warrant Certificate in accordance with the Warrant Agreement at an office or
agency of the Company, a new Warrant Certificate or Warrant Certificates of like
tenor and evidencing in the aggregate a like number of Warrants shall be issued
to the transferee(s) in exchange for this Warrant Certificate, subject to the
limitations provided herein and in the Warrant Agreement, without any charge
except for any tax or other governmental charge imposed in connection with such
transfer or as provided in the Warrant Agreement.
Upon the exercise of less than all of the Warrants evidenced by
this Certificate, the Company shall forthwith issue to the holder hereof a new
Warrant Certificate representing such number of unexercised Warrants.
The Company may deem and treat the registered holder(s) hereof as
the absolute owner(s) of this Warrant Certificate (notwithstanding any notation
of ownership or other writing hereon made by anyone), for the purpose of any
exercise hereof, and of any distribution to the holder(s) hereof, and for all
other purposes, and the Company shall not be affected by any notice to the
contrary.
IN WITNESS WHEREOF, the Company has caused this Warrant
Certificate to be duly executed under its corporate seal.
Dated as of , 1998
SMARTSERV ONLINE, INC.
By: _____________________________
Title:
Attest:
--------------------------------
Title:
FORM OF ELECTION TO PURCHASE
The undersigned hereby irrevocably elects to exercise the
right, represented by this Warrant Certificate, to purchase ____________ shares
of Common Stock.
In accordance with the terms of Section 3.1 of the Warrant
Agreement dated as of ___________________, 1998 between SmartServ Online, Inc.
and the Investors named therein, the undersigned requests that a certificate for
such securities be registered in the name of ___________________ whose address
is ____________________________________________ ______________________________
and that such Certificate be delivered to _______________ whose address is
_______________________________________________________________.
Dated: _____________
Signature
----------------------------------
(Signature must conform in all respects to
name of holder as specified on the face of
the Warrant Certificate.)
-------------------------------------------
(Insert Social Security or Other Identifying
Number of Holder)
FORM OF ASSIGNMENT
(To be executed by the registered holder if such holder
desires to transfer the Warrant Certificate.)
FOR VALUE RECEIVED __________________ hereby sells,
assigns and transfers unto ---------------------------------------------
------------------------------------------------------------------------------
(Please print name and address of transferee)
this Warrant Certificate, together with all right, title and interest therein,
and does hereby irrevocably constitute and appoint
________________________________________________, Attorney, to transfer the
within Warrant Certificate on the books of the within-named Company, with full
power of substitution.
Dated: ____________
Signature ______________________________
(Signature must conform in all respects
to name of holder as specified on the
face of the Warrant Certificate.)
----------------------------------------
(Insert Social Security or Other
Identifying Number of Holder)
