EXHIBIT 4.3
NEITHER THESE SECURITIES NOR THE SECURITIES INTO WHICH THESE SECURITIES ARE
EXERCISABLE HAVE BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR
THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN
AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE
SECURITIES LAWS AS EVIDENCED BY A LEGAL OPINION OF COUNSEL TO THE TRANSFEROR TO
SUCH EFFECT, THE SUBSTANCE OF WHICH SHALL BE REASONABLY ACCEPTABLE TO THE
COMPANY.
SMARTSERV ONLINE, INC.
WARRANT
Warrant No. W-___ Date of Original Issuance: June 13, 2003
SmartServ Online, Inc., a Delaware corporation (the "COMPANY"), hereby
certifies that, for value received, ___________ or his registered assigns (the
"HOLDER"), is entitled to purchase from the Company up to a total of ___________
shares of common stock, $.01 par value per share (the "COMMON STOCK"), of the
Company (each such share, a "WARRANT SHARE" and all such shares, the "WARRANT
SHARES") at an exercise price equal to $0.794 per share (as adjusted from time
to time as provided in Section 9, the "EXERCISE PRICE"), at any time and from
time to time from and after the date hereof and through and including June 13,
2006 (the "EXPIRATION DATE"), and subject to the following terms and conditions.
1. Definitions. In addition to the terms defined elsewhere in this
Warrant, capitalized terms that are not otherwise defined herein shall have the
meanings given to such terms in the Securities Purchase Agreement, dated as of
June 13, 2003 between the Company, the original Holder and other original
holders named therein (the "PURCHASE AGREEMENT").
2. Registration of Warrant. The Company shall register this Warrant,
upon records to be maintained by the Company for that purpose (the "WARRANT
REGISTER"), in the name of the record Holder hereof from time to time. The
Company may deem and treat the registered Holder of this Warrant as the absolute
owner hereof for the purpose of any exercise hereof or any distribution to the
Holder, and for all other purposes, absent actual notice to the contrary.
3. Registration of Transfers. The Company shall register the transfer
of any portion of this Warrant in the Warrant Register, upon surrender of this
Warrant, with the Form of Assignment attached hereto duly completed and signed,
to the Company at its address specified herein. Upon any such registration of
transfer, an exchange Warrant to purchase Common Stock, in substantially the
form of this Warrant (any such exchange Warrant, a "NEW WARRANT"), evidencing
the portion of this Warrant so transferred shall be issued to the transferee and
a New Warrant evidencing the remaining portion of this Warrant not so
transferred, if any,
shall be issued to the transferring Holder. The acceptance of the New Warrant by
the transferee thereof shall be deemed the acceptance by such transferee of all
of the rights and obligations of a holder of a Warrant. Warrants and Warrant
Shares may only be disposed of in compliance with state and federal securities
laws. In connection with any transfer of Warrant Shares other than pursuant to
an effective registration statement, to the Company or to an Affiliate of a
Holder, the Company may require the transferor thereof to provide to the Company
an opinion of counsel selected by the transferor, the form and substance of
which opinion shall be reasonably satisfactory to the Company, to the effect
that such transfer does not require registration under the Securities Act.
4. Exercise and Duration of Warrants. This Warrant shall be exercisable
by the registered Holder, in whole or in part, at any time and from time to time
on or after the date hereof to and including 5:30 p.m., New York City time, on
the Expiration Date. The Exercise Price is payable in immediately available
funds or as otherwise provided in Section 13. At 5:30 p.m., New York City time
on the Expiration Date, the portion of this Warrant available for exercise and
not exercised prior thereto shall be and become void and of no value.
5. Delivery of Warrant Shares and Exercise of Warrant. Upon delivery of
the Form of Election to Purchase, which Form shall specify the number of shares
of Common Stock to be purchased, and this Warrant to the Company at its address
for notice set forth in Section 11 and upon payment of the Exercise Price
multiplied by the number of Warrant Shares that the Holder intends to purchase
hereunder, the Company shall, within three business days, issue and deliver to
the Holder, a certificate for the Warrant Shares issuable upon such exercise
with the appropriate legend, if required. As used in this Agreement, a "DATE OF
EXERCISE" means the date on which the Holder shall have delivered to the Company
(i) the Form of Election to Purchase attached hereto, appropriately completed
and duly signed, (ii) payment of the Exercise Price for the number of Warrant
Shares so indicated by the Holder to be purchased and (iii) this Warrant. If the
Warrant has not been fully exercised, the Company will deliver a replacement
Warrant to the Holder for the number of Warrant Shares remaining subject to the
Warrant, which replacement Warrant shall in all other respects be identical to
this Warrant or, at the election of the Company, an appropriate notation shall
be made on this Warrant, which shall then be returned to the Holder.
6. Charges, Taxes and Expenses. Issuance and delivery of New Warrants,
replacement Warrants issued upon a partial exercise, and certificates for shares
of Common Stock upon exercise of this Warrant shall be made without charge to
the Holder for any issue or transfer tax, withholding tax, transfer agent fee or
other incidental tax or expense in respect of the issuance of such certificates,
all of which taxes and expenses shall be paid by the Company; provided, however,
that the Company shall not be required to pay any tax which may be payable in
respect of any transfer involved in the registration of any certificates for
Warrant Shares or Warrants in a name other than that of the Holder. The Holder
shall be responsible for all other tax liability that may arise as a result of
holding or transferring this Warrant or receiving Warrant Shares upon exercise
hereof.
7. Replacement of Warrant. If this Warrant is mutilated, lost, stolen
or destroyed, the Company shall issue or cause to be issued in exchange and
substitution for and upon cancellation hereof, or in lieu of and substitution
for this Warrant, a New Warrant, but only upon
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receipt of evidence reasonably satisfactory to the Company of such loss, theft,
destruction, or mutilation and customary and reasonable indemnity, if requested.
Applicants for a New Warrant under such circumstances shall also comply with
such other reasonable regulations and procedures and pay such other reasonable
third-party costs as the Company may prescribe. If a New Warrant is requested as
a result of a mutilation of this Warrant, then the Holder shall also deliver
such mutilated Warrant to the Company as a condition precedent to the Company's
obligation to issue the New Warrant.
8. Reservation of Warrant Shares. The Company covenants that it has and
will at all times reserve and keep available out of the aggregate of its
authorized but unissued and otherwise unreserved Common Stock, solely for the
purpose of enabling it to issue Warrant Shares upon exercise of this Warrant as
herein provided, the number of Warrant Shares which are then issuable and
deliverable upon the exercise of all Warrants issued pursuant to the Purchase
Agreement. All shares of Common Stock issued upon the exercise of this Warrant
shall be validly issued, fully paid, and non-assessable and free from all
preemptive rights of any stockholder of the Company and from all taxes, liens,
and charges with respect to the issue thereof (other than transfer taxes), and
if the Common Stock of the Company is then listed on any national securities
exchange (as defined in the Exchange Act) or eligible for trading on The Nasdaq
Stock Market or the Nasdaq OTC Bulletin Board, shall be duly listed or eligible
thereon, as the case may be.
9. Certain Adjustments. The Exercise Price and number of Warrant Shares
issuable upon exercise of this Warrant are subject to adjustment from time to
time as set forth in this Section 9.
(a) Stock Dividends and Splits. If the Company, at any time while
this Warrant is outstanding, (i) pays a stock dividend on its Common Stock or
otherwise makes a distribution on any class of capital stock that is payable in
shares of Common Stock, (ii) subdivides outstanding shares of Common Stock into
a larger number of shares, or (iii) combines outstanding shares of Common Stock
into a smaller number of shares, then in each such case the Exercise Price shall
be multiplied by a fraction of which the numerator shall be the number of shares
of Common Stock outstanding immediately before such event and of which the
denominator shall be the number of shares of Common Stock outstanding
immediately after such event. Any adjustment made pursuant to clause (i) of this
paragraph shall become effective immediately after the record date for the
determination of stockholders entitled to receive such dividend or distribution,
and any adjustment pursuant to clause (ii) or (iii) of this paragraph shall
become effective immediately after the effective date of such subdivision or
combination. If any event requiring an adjustment under this paragraph occurs
during the period that an Exercise Price is calculated hereunder, then the
calculation of such Exercise Price shall be adjusted appropriately to reflect
such event.
(b) Pro Rata Distributions. If the Company, at any time while this
Warrant is outstanding, distributes to all holders of Common Stock (i) evidence
of its indebtedness, (ii) any security (other than a distribution of Common
Stock covered by the preceding paragraph), (iii) rights or warrants to subscribe
for or purchase any security, or (iv) any other asset (in each case,
"DISTRIBUTED PROPERTY"), then, at the request of any Holder delivered before the
30th day after the record date fixed for determination of stockholders entitled
to receive such distribution,
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the Company will deliver to such Holder, within seven days after such request
(or, if later, on the effective date of such distribution), the Distributed
Property that such Holder would have been entitled to receive in respect of the
Warrant Shares for which such Xxxxxx's Warrant could have been exercised
immediately prior to such record date. If such Distributed Property is not
delivered to a Holder pursuant to the preceding sentence, then upon any exercise
of the Warrant that occurs after such record date, such Holder shall be entitled
to receive, in addition to the Warrant Shares otherwise issuable upon such
conversion, the Distributed Property that such Holder would have been entitled
to receive in respect of such number of Warrant Shares had the Holder been the
record holder of such Warrant Shares immediately prior to such record date.
(c) Fundamental Transactions. If, at any time while this Warrant is
outstanding, (1) the Company effects any merger or consolidation of the Company
with or into another Person, (2) the Company effects any sale of all or
substantially all of its assets in one or a series of related transactions, (3)
any tender offer or exchange offer (whether by the Company or another Person) is
completed pursuant to which holders of Common Stock are permitted to tender or
exchange their shares for other securities, cash or property, or (4) the Company
effects any reclassification of the Common Stock or any compulsory share
exchange pursuant to which the Common Stock is effectively converted into or
exchanged for other securities, cash or property (in any such case, a
"FUNDAMENTAL TRANSACTION"), then the Holder shall have the right thereafter to
receive, upon exercise of this Warrant, in lieu of any other consideration, the
same amount and kind of securities, cash or property as he would have been
entitled to receive upon the occurrence of such Fundamental Transaction if he
had been, immediately prior to such Fundamental Transaction, the holder of the
number of Warrant Shares then issuable upon exercise in full of this Warrant
(the "ALTERNATE CONSIDERATION"). For purposes of any such exercise, the
determination of the Exercise Price shall be appropriately adjusted to apply to
such Alternate Consideration based on the amount of Alternate Consideration
issuable in respect of one share of Common Stock in such Fundamental
Transaction, and the Company or its successor or the surviving entity following
such Fundamental Transaction shall apportion the Exercise Price among the
Alternate Consideration in a reasonable manner reflecting the relative value of
any different components of the Alternate Consideration. If holders of Common
Stock are given any choice as to the securities, cash or property to be received
in a Fundamental Transaction, then the Holder shall be given the same choice as
to the Alternate Consideration he receives upon any exercise of this Warrant
following such Fundamental Transaction. At the Holder's option and request, any
successor to the Company or surviving entity in such Fundamental Transaction
shall, either (1) issue to the Holder a New Warrant substantially in the form of
this Warrant and consistent with the foregoing provisions and evidencing the
Holder's right to purchase the Alternate Consideration for the aggregate
Exercise Price upon exercise thereof, or (2) purchase the Warrant from the
Holder for a purchase price, payable in cash within seven days after such
request (or, if later, on the effective date of the Fundamental Transaction),
equal to the Black Scholes value of the remaining unexercised portion of this
Warrant on the date of such request. The terms of any agreement pursuant to
which a Fundamental Transaction is effected shall include terms requiring any
such successor or surviving entity to comply with the provisions of this
paragraph (c) and ensuring that the Warrant (or any such replacement security)
will be similarly adjusted upon any subsequent transaction analogous to a
Fundamental Transaction.
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(d) Number of Warrant Shares. Simultaneously with any adjustment to
the Exercise Price pursuant this Section 9, the number of Warrant Shares that
may be purchased upon exercise of this Warrant shall be increased or decreased
proportionately, so that after such adjustment the aggregate Exercise Price
payable hereunder for the increased number of Warrant Shares shall be the same
as the aggregate Exercise Price in effect immediately prior to such adjustment.
(e) Calculations. All calculations under this Section 9 shall be
made to the nearest cent or the nearest 1/100th of a share, as applicable. The
number of shares of Common Stock outstanding at any given time shall not include
shares owned or held by or for the account of the Company, and the disposition
of any such shares shall be considered an issue or sale of Common Stock.
(f) Notice of Adjustments. Upon the occurrence of each adjustment
pursuant to this Section 9, the Company at its expense will promptly compute
such adjustment in accordance with the terms of this Warrant and prepare a
certificate setting forth such adjustment, including a statement of the adjusted
Exercise Price and adjusted number or type of Warrant Shares or other securities
issuable upon exercise of this Warrant (as applicable), describing the
transactions giving rise to such adjustments and showing in detail the facts
upon which such adjustment is based. Upon written request, the Company will
promptly deliver a copy of each such certificate to the Holder and to the
Company's Transfer Agent.
(g) Notice of Corporate Events. If the Company (i) declares a
dividend or any other distribution of cash, securities or other property in
respect of its Common Stock, including without limitation any granting of rights
or warrants to subscribe for or purchase any capital stock of the Company or any
Subsidiary, (ii) authorizes or approves, enters into any agreement contemplating
or solicits stockholder approval for any Fundamental Transaction or (iii)
authorizes the voluntary dissolution, liquidation or winding up of the affairs
of the Company, then the Company shall deliver to the Holder a notice describing
the material terms and conditions of such transaction at least 20 days prior to
the applicable record or effective date on which a Person would need to hold
Common Stock in order to participate in or vote with respect to such
transaction, and the Company will take all steps reasonably necessary in order
to ensure that the Holder is given the practical opportunity to exercise this
Warrant prior to such time so as to participate in or vote with respect to such
transaction; provided, however, that the failure to deliver such notice or any
defect therein shall not affect the validity of the corporate action required to
be described in such notice.
10. No Fractional Shares. No fractional shares of Warrant Shares will be
issued in connection with any exercise of this Warrant. In lieu of any
fractional shares which would otherwise be issuable, the Company shall issue the
next highest number of whole Warrant Shares.
11. Notices. Any and all notices or other communications or deliveries
hereunder (including without limitation any Exercise Notice) shall be in writing
and shall be deemed given and effective on the earliest of (i) the date of
transmission, if such notice or communication is delivered via facsimile at the
facsimile number specified in this Section 11 prior to 5:30 p.m. (New York City
time) on a day on which banks in the State of Delaware are not required or
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permitted to close (a "BUSINESS DAY"), (ii) the next Business Day after the date
of transmission, if such notice or communication is delivered via facsimile at
the facsimile number specified in this Section 11 on a day that is not a
Business Day or later than 5:30 p.m. (New York City time) on any Business Day,
(iii) the Business Day following the date of mailing, if sent for next day
delivery by nationally recognized overnight courier service, or (iv) upon actual
receipt by the party to whom such notice is required to be given. The addresses
for such communications shall be: (i) if to the Company, SmartServ Online, Inc.,
Xxx Xxxxxxx Xxxxx, Xxxxxxxx, XX 00000, Facsimile No.: (000) 000-0000, Attn:
Chief Financial Officer, or (ii) if to the Holder, to the address or facsimile
number appearing on the Warrant Register or such other address or facsimile
number as the Holder may provide to the Company in accordance with this Section
11.
12. Warrant Agent. The Company shall serve as warrant agent under this
Warrant. Upon 20 days' notice to the Holder, the Company may appoint a new
warrant agent. Any corporation into which the Company or any new warrant agent
may be merged or any corporation resulting from any consolidation to which the
Company or any new warrant agent shall be a party or any corporation to which
the Company or any new warrant agent transfers substantially all of its
corporate trust or shareholders services business shall be a successor warrant
agent under this Warrant without any further act. Any such successor warrant
agent shall promptly cause notice of its succession as warrant agent to be
mailed (by first class mail, postage prepaid) to the Holder at the Holder's last
address as shown on the Warrant Register.
13. Cashless Exercise. Notwithstanding anything to the contrary contained
herein, if this Warrant will expire within five days or if, one year from the
date hereof, there is not then and has not theretofore been a currently
effective Registration Statement covering the resale of the Warrant Shares, this
Warrant may be exercised in whole or in part by presentation and surrender of
this Warrant to the Company at its principal executive offices with a written
notice of the holder's intention to effect a cashless exercise, including a
calculation of the number of shares of Common Stock to be issued upon such
exercise in accordance with the terms hereof (a "CASHLESS EXERCISE"). In the
event of a Cashless Exercise, in lieu of paying the Exercise Price in cash, the
holder shall surrender this Warrant (or portion thereof) for that number of
shares of Common Stock determined by multiplying the number of Warrant Shares to
which it would otherwise be entitled by a fraction, the numerator of which shall
be the difference between the closing price per share of the Common Stock on the
trading day immediately prior to the date of exercise and the Exercise Price,
and the denominator of which shall be such closing price per share of Common
Stock.
14. Miscellaneous.
(a) This Warrant shall be binding on and inure to the benefit of the
parties hereto and their respective successors and assigns. Subject to the
preceding sentence, nothing in this Warrant shall be construed to give to any
Person other than the Company and the Holder any legal or equitable right,
remedy or cause of action under this Warrant. This Warrant may be amended only
in writing signed by the Company and the Holder and their successors and
assigns.
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(b) All questions concerning the construction, validity, enforcement
and interpretation of this Agreement shall be governed by and construed and
enforced in accordance with the internal laws of the State of Delaware, without
regard to the principles of conflicts of law thereof. Each party agrees that all
legal proceedings concerning the interpretation, enforcement and defense of the
transactions contemplated by this Warrant (whether brought against a party
hereto or its respective affiliates, directors, officers, shareholders,
employees or agents) (each, a "PROCEEDING") shall be exclusively commenced in
the state and federal courts sitting in the State of New York in New York County
(the "COURTS"). Each party hereto hereby irrevocably submits to the exclusive
jurisdiction of the Courts for any Proceeding, and hereby irrevocably waives,
and agrees not to assert in any Proceeding, any claim that it is not personally
subject to the jurisdiction of any such court, or such Courts are improper or
inconvenient venue for such proceeding. Each party hereby irrevocably waives
personal service of process and consents to process being served in any
Proceeding by mailing a copy thereof via registered or certified mail or
overnight delivery (with evidence of delivery) to such party at the address in
effect for notices to it under this Warrant and agrees that such service shall
constitute good and sufficient service of process and notice thereof. Nothing
contained herein shall be deemed to limit in any way any right to serve process
in any manner permitted by law. Each of the Company and the Holder hereby
irrevocably waives, to the fullest extent permitted by applicable law, any and
all right to trial by jury in any Proceeding. If any party shall commence an
action or proceeding to enforce any provisions of this Warrant, then the
prevailing party in such Proceeding shall be reimbursed by the other party for
its attorneys fees and other costs and expenses incurred with such Proceeding.
(c) The Company shall not by any action avoid or seek to avoid the
observance or performance of any of the terms of this Warrant, but will at all
times in good faith assist in the carrying out of all such terms and the taking
of all such actions as may be necessary or appropriate to protect the rights of
the Holder against impairment. Without limiting the generality of the foregoing,
the Company will (i) take all such action as may be necessary or appropriate in
order that the Company may validly and legally issue fully paid and
non-assessable shares of Common Stock upon the exercise of this Warrant and (b)
use its best efforts to obtain all such authorizations, exemptions, or consents
from any public or regulatory body having jurisdiction thereof as may be
necessary to enable the Company to perform its obligations under this Warrant.
(d) The headings herein are for convenience only, do not constitute
a part of this Warrant and shall not be deemed to limit or affect any of the
provisions hereof.
(e) In case any one or more of the provisions of this Warrant shall
be invalid or unenforceable in any respect, the validity and enforceability of
the remaining terms and provisions of this Warrant shall not in any way be
affected or impaired thereby and the parties will attempt in good faith to agree
upon a valid and enforceable provision which shall be a reasonable substitute
therefor, and upon so agreeing, shall incorporate such substitute provision in
this Warrant.
(f) All pronouns and any variations thereof refer to the masculine,
feminine or neuter, singular or plural, as the context may require. All terms
defined in this Agreement in
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their singular or plural forms have correlative meanings when used herein in
their plural or singular forms, respectively.
IN WITNESS WHEREOF, the Company has caused this Warrant to be duly
executed by its authorized officer as of the date first indicated above.
SMARTSERV ONLINE, INC.
By:
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Name: _________________________
Title: _________________________
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FORM OF ELECTION TO PURCHASE
To SMARTSERV ONLINE, INC.:
In accordance with the Warrant enclosed with this Form of Election to
Purchase, the undersigned hereby irrevocably elects to purchase _____________
shares of common stock ("COMMON STOCK"), $.01 par value per share, of SMARTSERV
ONLINE, INC. and encloses herewith $________ in cash, certified or official bank
check or checks or other immediately available funds, which sum represents the
aggregate Exercise Price (as defined in the Warrant) for the number of shares of
Common Stock to which this Form of Election to Purchase relates, together with
any applicable taxes payable by the undersigned pursuant to the Warrant.
The Holder hereby represents, warrants and covenants that he is an
accredited investor within the meaning of Regulation D under the Securities Act
of 1933, as amended, and has sold or will sell the shares of Common Stock
issuable upon this exercise pursuant to the Company's registration statement
covering the resale by the Holder of such shares and, in connection therewith,
has complied or will comply with the prospectus delivery requirements under
Federal securities laws.
The undersigned requests that certificates for the shares of Common Stock
issuable upon this exercise be issued in the name of
PLEASE INSERT SOCIAL SECURITY OR
TAX IDENTIFICATION NUMBER
(Please print name and address)
FORM OF ASSIGNMENT
[To be completed and signed only upon transfer of Warrant]
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto ________________________________ the right represented by the within
Warrant to purchase ____________ shares of Common Stock of SMARTSERV ONLINE,
INC. to which the within Warrant relates and appoints ________________ attorney
to transfer said right on the books of SMARTSERV ONLINE, INC. with full power of
substitution in the premises.
Dated: _______________, ____
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(Signature must conform in all respects
to name of holder as specified on the
face of the Warrant)
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Address of Transferee
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In the presence of:
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